In United States v. Maurya, Case No. 19-10746 (Feb. 1, 2022) (William Pryor, Grant, Anderson), the Court affirmed Nathan Hardwick's convictions, but vacated the restitution portion of his sentence and remanded.  The Court vacated Asha Maurya's sentence and remanded for resentencing.   On appeal, both Hardwick and Maurya challenged the restitution order requiring a payment of over $40 million because the district court failed to support its order with any reasoning.  The government conceded that the district court failed to support its calculation with any factual findings, and the Court agreed.  As a result, the Court vacated the restitution order and remanded for the district court to "correct its oversight."   Maurya also argued that her sentence must be vacated because the district court applied a sentencing enhancement that did not exist when her offense was committed, therefore violating the Constitution's prohibition against ex post facto laws.  Applying plain error review, the Court agreed.  The Court noted that though courts typically apply the Guidelines in effect at the time of sentencing, the Ex Post Facto Clause prohibits the use of the Guidelines issued after the offense that create a higher applicable sentencing range.  In this case, the district court used the 2018 Guidelines, which [...]

In Chamu v. U.S. Att'y Gen., No. 19-13908 (Jan. 26, 2022) (Branch, Grant, Brasher), the Court, on appeal from a Board of Immigration Appeals ("BIA") decision, found Mr. Chamu ineligible for cancellation of removal on account of his prior conviction of an offense "relating to a controlled substance (as defined in section 802 of title 21)"--namely cocaine possession under Fla. Stat. §  893.13(6)(a). Mr. Chamu argued that the Florida statute was overbroad because Florida considers some substances to be cocaine that the federal government, in the federal controlled substance schedules, does not.  He also argued that the Florida statute was overbroad because it covered more states of mind than its federal counterpart--that is, the Florida possession statute alone presumes that a defendant knows a possessed substance is illegal, whereas federal law requires proof of knowledge. The BIA rejected both of his arguments.  As to his first argument, the BIA accepted that the Florida and federal definitions were not a perfect match, but concluded that the mismatch made no difference because Mr. Chamu had failed to show a "realistic probability that the Florida statute would be enforced more broadly." The Court, reviewing the BIA's determination, applied the categorical approach to determine if § [...]

In United States v. Nicholson, No. 19-11669 (Jan. 24, 2022) (Jill Pryor, Luck, and Brasher), the Court affirmed Nicholson's convictions for child pornography and child sex abuse. On appeal, Nicholson made three arguments: (1) the evidence was insufficient as to three counts; (2) the district court should have suppressed the evidence from the searches that occurred in New York and Kentucky; and (3) the district court should have granted his motion for a mistrial when it admitted, but then excluded, six images found in a camera's unallocated space. As to the first issue, the Court found the evidence sufficient to sustain the convictions.  It first found that with regard to convictions under 18 U.S.C. § 2423, the government need not prove actual sexual activity, and that evidence of actual sex acts is not the only way to prove the criminal intent to commit those acts.  The Court next rejected Nicholson's venue challenge to his conviction under 18 U.S.C.  §§ 2251(a), (e).  The Court reaffirmed that venue need only be proved by a preponderance of the evidence as opposed to beyond a reasonable doubt.  Additionally, the Court noted that there need not be direct proof of venue where circumstantial evidence in the record [...]

In United States v. Smith, No. 20-12667 (Jan. 12, 2022) (William Pryor, Grant, Hull), the Court vacated the defendant's conviction for theft of trade secrets and related sentencing enhancements for lack of venue, affirmed the extortion conviction and related sentencing enhancements, and remanded for resentencing. The Court addressed whether an accused can be tried in a venue where he did not commit any of the conduct elements of the charged crime.  Defendant was a software engineer in Mobile, Alabama who obtained the coordinates of artificial fishing reefs in the Gulf of Mexico from a website owned by StrikeLines, whose office is located in Pensacola, Florida, but whose servers are located in Orlando, Florida.  He did so by bypassing StrikeLines's security measures, and then posted them to his Facebook page.  Defendant was convicted of one count of theft of trade secrets and one count of extortion, and received an enhanced sentence. In the district court, the defendant moved to dismiss the indictment, and then renewed the motion to dismiss at trial, on the grounds that venue was improper.  He argued that venue was improper in the Northern District of Florida because all prohibited conduct occurred in the Southern District of Alabama and [...]

In United States v. Fleury, No. 20-11037 (Dec. 16, 2021) (Wilson, Rosenbaum, Hull), the Court affirmed the defendant’s convictions for transmitting interstate threats and cyberstalking. First, the Court rejected the defendant’s facial and as-applied First Amendment challenges to the cyberstalking statute.  Joining every circuit to address the issue, the Court held that the statute was not facially overbroad because the elements did not target expressive speech but rather unprotected conduct involving an intent to kill, injure, harass, or intimidate.  And the Court rejected the defendant’s as-applied challenge because his conduct did not involve a matter of public concern but rather “true threats” to the families of the victims of the Parkland shooting. Second, the Court held that the indictment sufficiently charged the cyberstalking counts because it tracked the statutory language and otherwise provided adequate notice of the charges. Third, the Court held that the evidence was sufficient for a reasonable jury to find that the defendant had the subjective intent to transmit interstate threats and to cyberstalk the victims.  Although the defense expert testified about the defendant’s autism, the jury heard from the government’s competing expert and was free to weigh assess the experts’ credibility as it saw fit. Fourth, [...]

In Telcy v. United States, No. 19-13029 (Dec. 10, 2021) (Wilson, Lagoa, Brasher), the Court affirmed the dismissal of a 2255 motion as an unauthorized second or successive motion. The issue on appeal was whether a sentence reduction under Section 404 of the First Step Act qualifies as a “new judgment” for purposes of the bar on second or successive habeas 2255 motions, and thus resets the clock.  The Court held that it does not.  The Court emphasized that Section 404 did not authorize courts to conduct a plenary, de novo resentencing or impose a new judgment.  Rather, as a matter of legislative grace, Section 404 only authorizes a sentence reduction for certain covered offenses, and it does not require the court to consider the 3553(a) factors or hold a hearing with the defendant.  For those reasons, and applying the Court’s precedents, it held that a sentence reduction under Section 404 did not give rise to a “new judgment” for purposes of the bar on second or successive 2255 motions. https://media.ca11.uscourts.gov/opinions/pub/files/201913029.pdf https://defensenewsletter.blogspot.com/