In United States v. Carroll, No. 16-16652 (Apr. 5, 2018) (Wilson, Dubina, Goldberg), the Court affirmed in part and reversed in part the defendant's child pornography convictions. First, the Court concluded that a warrant affidavit supported the conclusion that there was probable cause to believe that child pornography would be found in the defendant's home.  The affiant explained how peer to peer file sharing worked and how the officers used the program to identify the defendant's IP address.  The Court rejected the defendant's argument that the issuing magistrate was required to personally review the pornographic material.  The Court also rejected the defendant's argument that the warrant failed to satisfy the particularity requirement, because it detailed the types of electronic items to be seized in the home. Second, the Court found the evidence sufficient to uphold the defendant's possession conviction, because there was evidence that he knowingly possessed the images: although the files were discovered in an unallocated space on his computer and were deleted, there was evidence that he regularly and manually downloaded files to his computer over an 11-month period.  However, the Court concluded concluded that the evidence was insufficient to sustain the defendant's distribution conviction, because [...]

In United States v. Harris, No. 16-17646 (Jill Pryor, Hull, Proctor) (Apr. 2, 2018), the Court affirmed the defendant's witness tampering and obstruction convictions over four evidentiary challenges. First, the Court rejected the defendant's Rule 403 argument that it was unduly prejudicial for the government to introduce evidence of a murder for which she was never charged, because that evidence was highly probative of the obstruction charge and necessary to provide the jury with necessary context about it.  The Court also found that the admission of five gruesome and inflammatory photographs of the murder was probative and did not carry an impermissibly high risk of inflaming the jury. Second, the Court rejected challenges to the admission of hearsay evidence, because the statements were not offered to prove the truth of the matter asserted but rather to show its motivational effect on others.  The Court also rejected a Rule 403 challenge to that evidence because it had probative value to the obstruction charge and thus its unfair prejudice did not substantially outweigh its probative value. Third, the Court found that certain statements satisfied the co-conspirator exception to the hearsay rule in Rule 801(d)(2)(E).  The Court rejected the defendant's argument [...]

In United States v. Lee, No. 16-16590 (Apr. 2, 2018) (Martin, Jordan, Ginsburg) (per curiam), the Court re-affirmed its many circuit precedents holding that Florida robbery -- of all varieties and all years of conviction -- satisfies the elements clause of the ACCA and Sentencing Guidelines.   The panel recognized that the defendant's contrary arguments "have some force," and it "might well agree with them" were it writing on a clean slate, citing Judge Martin's earlier concurrence in Seabrooks.  However, the Court was bound by its prior panel precedents, even if they were wrong, poorly reasoned, or failed to properly apply the law. Judge Jordan concurred, opining that the circuit's precedents were wrong, because robbery by "putting in fear" and robbery by "force" in Florida did not necessarily require the use, attempted use, or threatened use of violent force.  He concluded: " When we wrongly decided in Dowd, and then Lockley, that Florida robbery is categorically a violent felony under the elements clauses of the ACCA and the career offender provision of the Sentencing Guidelines, we dug ourselves a hole. We have since made that hole a trench by adhering to those decisions without analyzing Florida law. Hopefully [...]

In United States v. Green, No. 14-12830 (Sept. 29, 2017) (Julie Carnes, Jordan, Robreno), the Court revised its earlier panel opinion from December 2016 in light of the recent en banc decision in Vail-Bailon. Relying on Vail-Bailon, it held that the defendant's Florida felony battery conviction satisfied the elements clause.  The panel removed its earlier holding that the "touching or striking" component of Florida battery law was divisible, and that the defendant's offense involved a striking under the modified categorical approach. Recent News

In Griffith v. United States, No. 15-11877 (Sept. 26, 2017) (Ed Carnes, Rosenbaum, Dubina), the Court concluded that the district court erred by failing to hold an evidentiary hearing a 2255 motion alleging ineffective assistance of counsel. The motion alleged that trial counsel was ineffective by failing to argue that some waste materials in the drug manufacturing process should not have been included as a “mixture or substance”in the drug quantity determination. After reviewing the case law on that subject in depth, it concluded that, accepting the allegations as true, counsel was deficient for failing to research circuit precedent on the issue--namely, whether certain liquids used to make methamphetamine were "usable" and thus countable. The Court also concluded that this deficient performance was prejudicial because the drug quantity determination raised the guideline range and triggered a mandatory minimum penalty, and there was nothing in the record indicating that these errors did not affect his sentence.  In footnote 14, the Court said that this conclusion was consistent with the recent decision in Beeman, because, if his allegations were proven and he faced an erroneously high guideline range, then he would have likely received a lower sentence. After an extended discussion, the Court found [...]

In Beeman v. United States, No. 16-16710 (Sept. 22, 2017) (Julie Carnes, Edmondson, Kathleen Williams), the Court held that an initial 2255 movant bringing an ACCA Johnson claim failed to meet his burden of proof, because he could not prove that it was more likely than not that the sentencing court relied on the residual clause, as opposed to another clause. As an initial matter, the Court agreed that the 2255 motion was in part timely under 2255(f)(3). His motion alleged that his prior conviction for Georgia aggravated assault was no longer a violent felony, both because it did not satisfy the elements clause after Descamps and because it did not satisfy the residual clause after Johnson.  Although the Court found that the Descamps aspect of that claim was untimely, it found that the Johnson aspect was timely. However, it affirmed on the ground that the movant could not meet his burden to show that the sentencing court had relied on the residual clause.  The Court relied heavily on the burden of proof in 2255 proceedings being on the movant, and it refused to place that burden on the government merely because sentencing courts did not specify the [...]