In United States v. Lee, 20-13505 (Mar. 21, 2022) (Lagoa, Brasher, Tjoflat), the Court affirmed the defendant’s conviction under 18 U.S.C. 2251(a) over a double jeopardy challenge. The defendant sent text messages to a minor requesting sexually explicit images.  The defendant was originally charged with violating 2251(d), and a jury convicted him.  Shortly thereafter, however, the Eleventh Circuit in Caniff clarified that such conduct does not violate 2251(d), and the district court granted a judgment of acquittal.  Based on the same conduct, the government brought a new indictment, charging the defendant with violating 2251(a), and the defendant moved to dismiss on double jeopardy grounds.  The Eleventh Circuit held that the district court correctly denied the motion because 2251(a) and 2251(d) are distinct offenses with different elements.  2251(d) requires proof that the defendant made a notice or advertisement involving a sexually explicit depiction of a minor, whereas 2251(a) requires proof that the defendant arranged for a minor to engage in sexually explicit conduct for the purpose of creating a depiction of that conduct.  Because there were scenarios where a defendant could violate 2251(d) but not 2251(a), and vice versa, they were not the same offense for double jeopardy purposes. https://media.ca11.uscourts.gov/opinions/pub/files/202013505.pdf https://defensenewsletter.blogspot.com/ [...]

In United States v. Dennis, Case No. 21-10316 (Feb. 16, 2022) (William Pryor, Jordan, Anderson), the Court affirmed Ms. Dennis's revocation sentence. The issue addressed on appeal concerned the notice that a probationer must receive before her probation can be revoked.  Ms. Dennis was serving a sentence of 24 months probation when probation filed a petition to revoke her probation for violating her conditions of supervision.  The petition alleged that she had committed a felony (willful obstruction of law enforcement by threats or violence), and two misdemeanor offenses (simple battery on a police officer and theft of services).  At her revocation hearing, Ms. Dennis argued that she did not commit felony obstruction, which requires something more than misdemeanor obstruction, for which she was not charged.  She argued that she was entitled to written notice of the allegations against her, and that because there was no allegation of misdemeanor obstruction, she could not be found to have committed that offense.  The district court rejected Ms. Dennis's argument, found that she had committed the act of misdemeanor obstruction, and sentenced her to 2 years of supervised release. On appeal, this Court affirmed.  At issue was whether the petition to revoke Ms. Dennis's probation [...]

In United States v. Williams, Case No. 20-14187 (Feb. 15, 2022) (Wilson, Luck, Lagoa), the Court affirmed the denial of Mr. Williams's motion for a sentence reduction under § 404 of the First Step Act, finding that he was not sentenced for a covered offense. Mr. Williams pleaded guilty to one count of distribution of unspecified amounts of crack cocaine within 1,000 feet of a housing facility, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 860(a). He stipulated that the drug quantity attributable to him for purposes of calculating his guideline range was more than 500mg but less than 1g of crack cocaine.  His base offense level was calculated using the career offender enhancement and resulted in a guideline imprisonment range of 188 to 235 months.  His statutory penalty was 1 to 40 years' imprisonment and at least 6 years of supervised release, pursuant to 21 U.S.C. §§ 841(b)(1)(C) and 860(a).  He was sentenced to 200 months' imprisonment followed by 6 years of supervised release. On appeal of the district court's denial of his motion to reduce his sentence based on the First Step Act, Mr. Williams argued that, because his 21 U.S.C. § 860(a) conviction was a “covered offense” under the First Step [...]

In Washington v. Durand, Case No. 20-12148 (Feb. 7, 2022) (William Pryor, Lagoa, Schlesinger (M.D. Fla.)), the Court, in a 42 U.S.C. § 1983 case, addressed whether an officer must release a suspect detained pursuant to a valid arrest warrant when the officer learns of possibly exculpatory evidence.   Here, during the investigation of the murder of an elderly woman, Vivianne Washington was arrested pursuant to a warrant based on a tip from a confidential informant that she was involved in the crime and a positive photograph identification by a perpetrator who had already confessed.  Shortly after Ms. Washington's arrest, however, police officers brought her in front of the perpetrator, who said, "That's not her."  Officers did not immediately release Ms. Washington.  Instead, she was detained for an additional twenty hours, and only released when the perpetrator confessed that he had lied about Ms. Washington. Ms. Washington argued that police officers had an affirmative duty to return to the magistrate to inform him that the perpetrator had failed to identify her in person, and that their failure to do so violated her right to be free from unreasonable seizures under the 4th and 14th Amendments because there was no longer probable cause to [...]