In United States v. Hernandez, No. 22-13311 (July 8, 2024) (Rosenbaum, Newsom, Luck), the Court affirmed Mr. Hernandez’s sentence for several 18 U.S.C. § 924(c) convictions, among other offenses on the same indictment. Although Mr. Hernandez’s original sentence was pronounced before the First Step Act’s passage, it was judicially vacated after such passage. He therefore argued—and the government conceded—that the modified stacking rule under § 403(a) of the Act applied to his case. A majority of the panel disagreed. Mr. Hernandez’s argument, it reasoned, depends on whether the vacated sentence qualifies as “a sentence” that “has been imposed as of [the] date of [the Act’s] enactment,” within the meaning of § 403(b) of the Act. It does, the majority held. This is so because the vacated sentence satisfies the dictionary definition of “sentence.” Meanwhile, Congress’s use of the indefinite “a” indicates that § 403(b) covers any type of “sentence”—even one that was subsequently vacated. Further, the phrase “has not been” refers to a completed act, and Eleventh Circuit precedent establishes that the verb “imposed,” as used in the criminal sentencing context, refers to the historical fact of pronouncement. So because the district court had pronounced a sentence for Mr. Hernandez before the Act’s enactment, and because [...]

In United States v. Wright, No. 22-12338 (Mar. 19, 2024) (Branch, Grant, Carnes), the Court affirmed Mr. Wright’s conviction, pursuant to a plea agreement, for producing child pornography in violation of 18 U.S.C. § 2251(a) and (e). Mr. Wright argued that § 2251(a) required proof that the minor in question had volitionally participated in the sexually explicit conduct, but that she could not have done so because she was asleep. And so, the district court violated Rules 11(b)(1)(G) and (b)(3) in accepting Mr. Wright’s guilty plea because the court neither discussed this volition requirement when instructing Mr. Wright on the charge’s nature, nor required the government to make a factual showing of volition. The Court disagreed. Section 2251, it held, did not require the minor to have been actively engaged in sexually explicit conduct. It sufficed that the minor served as the object of Mr. Wright’s sexual desire as he engaged in the conduct. 202212338.pdf (uscourts.gov) https://defensenewsletter.blogspot.com/2024/04/wright-child-pornography-production.html

In United States v. Gbenedio, No. 22-12044 (Mar. 6, 2024) (CJ Pryor, Rosenbaum, Abudu), the Court affirmed Mr. Gbenedio’s convictions and sentence for unlawful drug dispensing. The charges were based on allegations that Mr. Gbenedio, a licensed pharmacists, had operated his business as a “pill mill.” The Court addressed six issues: First, the district court did not abuse its discretion in denying Mr. Gbenedio’s motion to dismiss. Mr. Gbenedio conceded that the indictment alleged facts about him and his pharmacy, the Controlled Substances Act, and all of the fake prescriptions that Mr. Gbenedio allegedly filled. The prosecution had no obligation to explain its legal theory as to why the prescriptions were invalid, or to provide a detailed disclosure of its evidence before the trial. And in any event, Mr. Gbenedio had learned the prosecution’s theory, including the details in a bill of particulars, as recent as one year before trial. Second, the district court did not abuse its discretion in admitting a DEA agent’s testimony about convictions of employees from a pain clinic that was associated with Mr. Gbenedio’s pharmacy, including testimony that law enforcement learned of the pharmacy while investigating the clinic. The Court rejected argument that the testimony [...]

In United States v. Boone, No. 22-11153 (Apr. 9, 2024) (Jordan, Lagoa, Hull), the Court affirmed Mr. Boone's 840-month sentence. Mr. Boone pleaded guilty to using a minor to produce child pornography, and distributing and possessing child pornography, in violation of 18 U.S.C. §§ 2251 and 2252A.  The PSR recommended applying a five-level increase pursuant to U.S.S.G. § 4B1.5(b) because (1) the offense was a covered sex crime and neither § 4B1.1 nor § 4B1.5(a) applied and (2) Mr. Boone “engaged in a pattern of activity involving prohibited sexual conduct.”  As explained in the PSR, the pattern-of-activity enhancement applied because Mr. Boone produced child sexual abuse material on at least two separate occasions.  With a criminal history category of I and a total offense level of 43, Mr. Boone’s advisory guidelines range was life imprisonment.  Because Mr. Boone's statutory maximum sentences were 30 years for the production offense and 20 years for each of the two distribution and possession offenses, and because the statutory maximums were less than the advisory guidelines sentence of life, U.S.S.G. § 5G1.2 provided that the sentences “shall run consecutively,” which in turn yielded a total advisory guidelines sentence of 840 months. On appeal, Mr. Boone argued that the district court [...]

In United States v. Handlon, No. 22-13699 (Apr. 3, 2024) (Rosenbaum, Grant, Ed Carnes) (per curiam), the Court affirmed the denial of a motion for compassionate release. Mr. Handlon moved for compassionate release, contending that his eighty-five-year-old father had severe medical issues and needed help.  He requested that he be released to spend what time he had left with his father.  The district court denied the motion because Mr. Handlon did not provide any supporting documentation regarding his father's condition or care, or whether he was the only available caretaker.  Mr. Handlon tried to provide the court with further information, which the court construed as a motion for reconsideration and denied. This Court noted that when Mr. Handlon filed his motion, the Sentencing Commission had not yet amended its policy statement, and the district court was bound by Bryant's holding regarding the old catchall category--"other reasons" as determined by the Director of the Bureau of Prisons--that Congress delegated the power to define what should be considered extraordinary and compelling reasons for a sentence reduction to the Sentencing Commission, not the courts.  As a result, the Court held that Mr. Handlon was ineligible for compassionate release because he failed to present an extraordinary and compelling [...]