In United States v. Dawson, No. 21-11425 (Apr. 5, 2023) (Wilson, Branch, Lagoa), the Court affirmed Mr. Dawson's convictions. The Court considered, as an issue of first impression, whether an adult who films himself exposing his genitals and masturbating in the presence of a child where the child is the object of the sexual desire in the film "uses" that child to engage in sexually explicit conduct for purposes of 18 U.S.C. § 2251(a), and held that such conduct fits squarely within the language of the statute. On appeal, Mr. Dawson argued that he did not violate § 2251(a) because the videos underlying his convictions depicted an adult engaging in solo, adult-only, sexually explicit conduct near a fully clothed minor who was neither the focal point of the images, depicted as a sexual object, nor otherwise involved in the sexual act.  He argued that his conduct did not constitute "uses" as that term is defined.  The Court disagreed, agreeing instead with the government's reading of § 2251(a)--that it covered passive use of a child in sexually explicit conduct.  That is, under § 2251(a), a minor must be involved in the offender's sexually explicit conduct, but need not necessarily be actively engaging in his or her own [...]

In United States v. Hall, No. 22-10230 (Apr. 5, 2023) (Branch, Brasher, Ed Carnes), the Court held, as a matter of first impression, that a district court may not sentence a defendant to home confinement for violating the terms of his supervised release where the district court has also sentenced the defendant to the statutory maximum period of imprisonment for that violation.  The Court vacated Mr. Hall's sentence to the extent it imposed a term of home confinement and remanded for resentencing. Mr. Hall, a class C felon, violated the conditions of his supervised release.  After revoking his supervised release, the district court sentenced Mr. Hall to the statutory maximum two years' imprisonment and added one year of home confinement with location monitoring. The Court held that such a sentence is inconsistent with the limitation that a district court may impose home confinement "only as an alternative to incarceration."  As such, the district court lacked the authority to impose an additional year of home confinement on top of the statutory maximum sentence of incarceration.  In so holding, the Court joined the Fifth Circuit in United States v. Ferguson, 369 F.3d 847 (5th Cir. 2004), which reasoned that a court cannot impose the maximum term of [...]

In United States v. Penn, No. 21-12420 (Mar. 24, 2023) (Lagoa, Brasher, Ed Carnes), the Court affirmed the defendant’s ACCA sentence based on prior Florida sale-of-cocaine convictions. In holding that the prior convictions were ACCA “serious drug offenses,” the Court rejected three arguments. First, circuit precedent foreclosed the defendant’s argument that a serious drug offense have a mens rea element requiring the defendant know the illicit nature of the substance, which Fla. Stat. 893.13 lacks.  Second, and in a question of first impression resulting in an extended discussion, the Court held that, although the least culpable conduct prohibited by 893.13 was “attempted transfer,” that conduct was covered by the word “distribution” in the ACCA definition and so was not overbroad. Third, applying Wooden, the Court held that the two prior convictions occurred on separate occasions because they occurred 30 days apart, and the Court rejected under plain error the defendant’s Apprendi argument, which was raised for the first time on appeal, because there was no precedent directly resolving the issue. https://media.ca11.uscourts.gov/opinions/pub/files/202112420.pdf http://defensenewsletter.blogspot.com/

In United States v. Batmasian, No. 21-12800 (Mar. 24, 2023) (Branch, Luck, Antoon), the Court held that the district court lacked jurisdiction to consider the pardoned defendant’s motion to expunge his conviction. The defendant filed his expungement motion in the district court that convicted him. But the Eleventh Circuit rejected the defendant’s reliance on the doctrine of ancillary jurisdiction. No court had ever expressly embraced such jurisdiction for a constitutional expungement request. And the Court declined to do so because the alleged constitutional violation—a purported denial of his First Amendment right to donate to charities—was the natural result of an otherwise valid arrest or conviction. https://media.ca11.uscourts.gov/opinions/pub/files/202112800.pdf http://defensenewsletter.blogspot.com/

In United States v. Files, No. 21-12859 (Mar. 24, 2023) (Newsom, Luck, Tjoflat), the Court affirmed the denial of the defendant’s motion for a reduced sentence under Section 404 of the First Step Act. The question in the case was whether the district court had authority to reduce the defendant’s sentence for a non-covered offense in addition to a covered offense. In Denson, the Court had previously stated that district courts could reduce a sentence only for a covered offense.  Here, the Court concluded that this statement in Denson was part of the holding of the case. And, it concluded, the Supreme Court’s decision in Concepcion did not abrogate that holding. The Court engaged in a lengthy discussion (which Judge Luck did not join) about when a statement is “necessary” to the result and thus forms part of the holding rather than dicta. Judge Newsom, joined by Judge Tjoflat, concurred to explain why he believed it is a bad idea for appellate courts to issue alternative holdings. https://media.ca11.uscourts.gov/opinions/pub/files/202112859.pdf http://defensenewsletter.blogspot.com/

In United States v. Morel, No. 20-14315 (Mar. 23, 2023) (William Pryor, Rosenbaum, Marcus), the Court affirmed the defendant’s convictions for importing cocaine. First, the district court interrupted the trial to instruct the jury about the law of conspiracy after a witness incorrectly used the term incorrectly, implying that he had to personally know the defendant in order to conspire with him. The district court’s sua sponte instruction was not an discretion or an impermissible departure from the court’s neutral role, as it merely and accurately clarified the law in order to prevent confusion, and did not otherwise comment on the witness’s testimony. Second, the evidence was sufficient to support the jury’s finding that the defendant knew that the contraband on board the vessel was cocaine in particular.  Applying the prudent-smuggler doctrine, the Court emphasized, among other facts, that the defendant was communicating and working closely with one of the co-conspirators (who knew about the cocaine), the defendant was invited to unload the cocaine (which was visible in the packages), and the defendant was privy to the time and location of the drug shipment and its final destination. https://media.ca11.uscourts.gov/opinions/pub/files/202014315.pdf http://defensenewsletter.blogspot.com/