News2017-12-18T21:16:38+00:00

Legal News & Updates

United States v. Heaton, No. 20-12568 (Feb. 14, 2023)

In United States v. Heaton, No. 20-12568 (Feb. 14, 2023) (Wilson, Jill Pryor, Hull), the Court affirmed Dr. Heaton's convictions. Dr. Heaton was charged with one count of conspiracy to unlawfully distribute and dispense controlled substances, in violation of 21 U.S.C. §§ 841(b)(1)(C), 843, & 846; 102 counts of unlawful dispensing of controlled substances to patients, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C); and 27 counts of aiding and abetting a patient's acquisition of controlled substances by deception, in violation of 21 U.S.C. § 843(a)(3) and 18 U.S.C. § 2.  He proceeded to trial and was found not guilty on the conspiracy and guilty on all substantive counts. On appeal, he challenged the district court's jury instructions.  He first challenged the court's use of "or" instead of "and" in its § 841(a) offense instruction.  He argued that § 841(a) requires the government to prove that he prescribed medication both "outside the course of professional practice" and "for no legitimate medical purpose."  The Court disagreed, citing to prior caselaw and 21 C.F.R. § 1306.04(a). Dr. Heaton next argued that the court's instructions as to mens rea for § 841(a) ran afoul of the Supreme Court's recent decision in Ruan.  More specifically, he argued that the district court erred in instructing the jury [...]

February 16th, 2023|

United States v. Jackson, No. 19-11955 (Feb. 3, 2023)

In United States v. Jackson, No. 19-11955 (Feb. 3, 2023) (William Pryor, Grant, Jung (M.D. Fla.)), the Court, on remand from the Supreme Court post-Concepcion, reinstated its prior decision affirming the denial of relief. Jackson moved to reduce his sentence under the First Step Act, arguing that he was eligible for a sentence reduction because a judge, not a jury, made the drug-quantity finding that increased his statutory range, in violation of Apprendi and Alleyne.  The Court affirmed the denial of his motion, holding that although he was convicted of a "covered offense," he did not prove that the reduction he sought would be "as if . . . the Fair Sentencing Act . . . were in effect at the time the covered offense was committed."  This was so because the Court held that in deciding motions for reduced sentences under the First Step Act, district courts may rely on earlier judge-found facts that triggered statutory penalties that the Fair Sentencing Act later modified.  In Mr. Jackson's case, because his sentence would have remained the same following consideration of the court's drug-quantity finding, any reduction would not be "as if" the Fair Sentencing Act had been in effect. The Court reaffirmed its holding [...]

February 8th, 2023|

In re: Grand Jury Subpoena, FGJ-21-01-MIA, No. 21-13651 (Jan. 31, 2023)

In In re: Grand Jury Subpoena, FGJ-21-01-MIA, No. 21-13651 (Jan. 31, 2023) (Wilson, Jordan, Brasher), the Court dismissed the appeal for lack of jurisdiction. The appellant was the custodian of business entities that were served with subpoenas to appear before a grand jury, produce documents, and certify that the documents satisfied the business records exception to hearsay. The appellant moved to quash the subpoenas and asserted a Fifth Amendment act-of-production privilege.  The district court denied the motion and then held him in civil contempt after he refused to comply.  However, the district court stayed issuance of sanctions pending appeal.  Applying Eleventh Circuit precedent, and disagreeing with Second Circuit precedent, the court of appeals held that a contempt order must be accompanied by sanctions in order to be an appealable final judgment.  Accordingly, the Court dismissed the appeal for lack of jurisdiction. https://media.ca11.uscourts.gov/opinions/pub/files/202113651.pdf http://defensenewsletter.blogspot.com/

February 1st, 2023|

United States v. King, No. 21-12963 (Jan. 23, 2023)

In United States v. King, No. 21-12963 (Jan. 23, 2023) (Rosenbaum, Grant, Tjoflat), the Court—without oral argument—affirmed the defendant’s 36-month sentence for violating his supervised release. The Court rejected the defendant’s arguments that his sentence was substantively unreasonable.  Although the defendant argued that the sentence was a major upward variance from the guideline range of 4-10 months, he repeatedly accepted responsibility, and he was less than a year away from completing his supervision, the district court acted within its discretion by weighing the 3553(a) factors. Responding to the dissent’s argument, the Court found that the district court did not commit plain error by sentencing the defendant based on his need for rehabilitation, in violation of the Supreme Court’s decision in Tapia.  The defendant forfeited that issue by failing to raise it on appeal, and his argument challenging the substantive reasonableness of his sentence did not cover this procedural error.  Even assuming that the district court committed an error, it did not plainly err or violate the defendant’s substantial rights.  The district court does not violate Tapia merely by discussing how defendants would benefit from a drug abuse program after it imposes sentence; it errs only when it imposes or extends [...]

January 23rd, 2023|

United States v. Scott, No. 21-11467 (Jan. 20, 2023)

In United States v. Scott, No. 21-11467 (Jan. 20, 2023) (Jordan, Rosenbaum, Newsom), the Court affirmed the defendant’s healthcare fraud convictions. First, and assuming that de novo review applied, the Court rejected the defendant’s belated challenge to the indictment on the ground that Medicare actually covered the testing he performed.  And even if it did, he would not have been entitled to dismissal of the indictment, as Medicare coverage for the particular tests would have been a factual issue to be resolved at trial, and the defendant failed to make that argument in the district court. Second, the Court concluded that the evidence was sufficient to support the convictions.  Specifically, the Court found sufficient evidence to support his willful intent to defraud Medicare based on circumstantial evidence. https://media.ca11.uscourts.gov/opinions/pub/files/202111467.pdf http://defensenewsletter.blogspot.com/

January 23rd, 2023|

United States v. Dupree, No. 19-13776 (Jan. 18, 2023)

In United States v. Dupree, No. 19-13776 (Jan. 18, 2023), the en banc Court held that the definition of “controlled substance offense” in U.S.S.G. 4B1.2(b) does not include inchoate offenses like conspiracy. In an opinion by Jill Pryor, and joined by Chief Judge Bill Pryor and Judges Wilson, Jordan, Rosenbaum, Newsom, Lagoa, and Brasher, the Court held that the definition in the text of 4B1.2(b) unambiguously excludes inchoate offenses.  Because there was no ambiguity, the Court was precluded from deferring to the commentary’s broader definition (expressly including inchoate offenses) under the Supreme Court’s recent decision in Kisor clarifying its earlier decision Stinson. Chief Judge Pryor concurred in order to correct the common misconception.  The Guidelines’ commentary typically goes through the same notice-and-comment and congressional review process as amendments to the text of the Guidelines themselves. He encouraged the Commission to move what normally goes in the commentary into the text of the Guidelines. Judge Grant concurred in the judgment, agreeing with the result but criticizing the majority for effectively overruling Stinson, which she viewed as distinct from the administration law cases upon which it relied.  She feared that the majority’s opinion may “unsettled much of our case law” because courts [...]

January 18th, 2023|
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