Highlights from the Eleventh Circuit court of appeals

Sentencing guidelines enhancement prohibited for trafficking in access device identity theft

July 7, 2014,

In U.S. v. Charles the defendant was found in possession of prepaid debit cards that were loaded with tax-refund monies sent by the I.R.S. in response to fraudulent tax returns. Charles pleaded guilty to the federal crimes of trafficking in access devices and aggravated identity theft. The identity theft count carries an additional two-year sentence that runs consecutively to another other predicate crime involving the unauthorized transfer, possession, or use of the identity of another. The applicable sentencing guidelines provision for the access device count, section 2B1(b)(11)(B), has a two-level increase for the production or trafficking of unauthorized devices The district court found that the enhancement was warranted because the Charles transferred one of the prepaid debit cards to his codefendant and thereby "trafficked" an unauthorized access device.

On appeal, Charles challenged the two point enhancement arguing the district court erred in refusing to submit the applicability of the enhancement to a jury pursuant to Alleyne v. U. S. The court rejected his Alleyne argument because the two level increase only affected Charles' guidelines calculation and not his statutory mandatory minimum or maximum sentence. Alleyne holds that a court cannot make a judicial finding of a fact at sentencing where the fact is an element of a crime that increases the maximum sentence. Alleyne preserved a sentencing court's fact finding authority concerning facts that impact the statutory punishment.

However, the court of appeals did find that the two level increase for trafficking was error. U.S.C. § 1028A(a)(1). The guidelines applicable to U.S.C. § 1028A is USSG 2B1.6 which specifically provides that the sentencing guideline for the identity theft offense is the two year consecutive sentence mandated by statute. The Application Notes of the guidelines explain that if a sentence under section 2B1.6 is imposed in conjunction with a sentence for an underlying offense, the court should not apply any specific offense characteristic for the "transfer, possession, or use of a means of identification when determining the sentence for the underlying offense." Because Charles already received the mandated two-year consecutive for aggravated identity theft, the Application Note to section 2B1.6 precluded the two level increase for transferring the debit card to the codefendant.

The government's alternative argument was that the court should affirm the two-level increase because the record supported a finding that Charles "produced" unauthorized access devices. Section 2B1.1(b)(11)(B) also applies a two level increase in the guidelines offense level when the offense involves "the production of any unauthorized access device." Section 2B1.6 does not prohibit the two level enhancement based on the production of the unauthorized access device. At sentencing, the government argued that there was production and asked the district court for a ruling on that ground, but the district court ruled solely on the "trafficking" ground and declined to rule on the government's "production" argument. Because the court of appeals did not have the benefit of fact finding on this issue, the court remanded to the district court to address the issue of production.

Resentencing after remand from the U.S. Supreme Court was correct

July 1, 2014,

In U. S. v Fowler the defendant was convicted of under the federal witness tampering statute for murdering a police officer with the intent of preventing him from communicating information about a federal criminal offense to a federal law enforcement officer. He was also charged in count two with using a firearm during a federal crime of violence, specifically a conspiracy to commit a robbery in the conspiracy to commit bank robbery and in doing so by murdering officer police officer following. Following a trial Fowler was found guilty on both counts is presentence investigation report calculated is offense level for count one the witness tampering at 46 and with his criminal history category of six he faced a recommended sentencing guideline of life in prison. For the gun possession the presentence investigation report recommended the 10 year mandatory minimum sentence. He was sentenced to life imprisonment for count one in eight consecutive term of 10 years for count two.

Fowler appealed his conviction for witness tampering arguing that the evidence was insufficient to show the officer would likely have communicated with a federal official. The conviction was affirmed by the 11th circuit, but the U.S. Supreme Court reversed, holding that the evidence was insufficient for the conviction under the witness tampering statute. On remand, the district court vacated the sentence and decided it would re-sentence the defendant and count two. The district would announced that it would not have given someone 810 year sentence on a murder with a firearm charge standing alone. After the presentence report calculated the defendant's guideline range it found the guideline range to be life imprisonment. The court imposed a life sentence.

On appeal, the defendant Fowler argued the district court had no authority to re-sentence him on the remaining count of possession of a firearm during the commission of a federal crime, but instead was required to let the 10 year sentence stand. And he argued that the original sentence was not a "sentencing package" and the firearm count was not interdependent with the witness tampering count. He argued that the two counts were not put together under the sentencing guidelines and that the sentencing court should not impose any sentence greater than the ten-year term originally imposed.

The court rejected this argument and found that in a multi-count case, the when the case is remanded, the district court has the authority to fully revisit the sentencing and may look at the entire and facts of the case of for the re-sentencing. The court held that the inter dependence requirement for re-sentencing was only applicable to unbundling decisions in 2255 cases. Here the sentence was part of multi-count package that may be revisited to ensure the overall sentence on the surviving counts is consistent with the court's intent.

The court also rejected Fowler's position that his life sentence violated due process rights because it was imposed as a punishment for his Appellate reversal. The 11th circuit rejected this argument finding the sentence imposed was no more severe than the original sentence and therefore was not the product of vindictiveness.

No error found in mortgage fraud guilty plea

June 18, 2014,


Rodriguez challenged her guilty plea to conspiracy to commit the federal crimes of mail fraud and wire fraud arguing that her plea was not knowing or voluntary. She also claimed her plea should not have been accepted by the district judge because she told the district judge she suffered from a mental illness. She also challenged the sentence imposed. The court of appeals found no error. Rodriguez pleaded guilty for her participation in a mortgage fraud scheme involving fraudulent loan applications submitted to lenders across the country to obtain loans and properties in Miami-Dade County and in Broward County. The scheme used straw buyers who had no intention of residing in the purchase properties. The loan applications contained false employment verifications, false paystubs, and false deposit verifications. The guideline range came to 78 to 97 months, but the district court gave her a sentence below the guideline range to prevent disparity with co-conspirators.

Because Rodriguez's guilty plea challenge was raised for the first time on appeal, the court of appeals reviewed for plain error. During the plea she indicated that she had undergone treatment for mental than illness for the year following her arrest and was under the care of a psychologist. The court of appeals found that she had a full opportunity to do to consult with her Attorney during the guilty plea hearing. There was no evidence indicating an inability to consult with her attorney or to understand his advice to her. Similarly, there was no evidence to indicate she was not competent to enter the plea. The court found that the colloquy satisfied the provisions of rule 11.

The court of appeals rejected the defendant's plea challenge on the grounds that there was and in sufficient factual basis to accept her plea. The court determined that Rodriguez confirmed at the plea hearing that she committed the offense, and it found a sufficient factual basis for the plea.

The court of appeals rejected the defendant's challenge to the $12,000,000 loss, which resulted in a 20 level guideline enhancement. The court of appeals found that the government carried its burden of proving the loss attributable to the defendant. At her sentencing, the government introduced a spreadsheet demonstrating the total loss amount attributable to Rodriguez was over $12,000,000.

The court of appeals rejected the defendant's challenge to other sentencing guidelines enhancements. The court found that the number of victim lenders was more than 10. The court rejected her sophisticated means challenge finding that the facts of the offense met the guidelines definition. Court also rejected her appeal from the district court's decision to deny her a minor role reduction.

Finally, the court rejected the defendant's challenge to the restitution order. She argued that more than two years he lapsed between the sentencing and the date of her restitution hearing. The court rejected her argument for a speedy sentencing and speedy appeal. The court found that her due process rights were not violated by the delay because the court sentencing court stated its intent to impose a restitution amount at the original sentencing and the defendants the defendant suffered no prejudice from the lengthy delay.

Speedy trial motion was not timely but defendant overturns his sentence

June 17, 2014,

Isaacson appealed his conviction following a jury trial for conspiracy to commit wire fraud and mail fraud and securities fraud. The conspiracy defrauded investors through a hedge fund that placed money in shell companies with no assets or business operations. The hedge fund drove up the prices of the shell companies causing them to appear more valuable than they really were. From his Florida office, the defendant assisted in creating fraudulent valuation reports in an effort to placate auditors.

In his appeal, the defendant challenged the district court's failure to grant his speedy trial motion. The court of appeals upheld the district court's decision because it found the defendant filed his motion after the trial began. The defendant's speedy trial motion was filed on April 19, 2010. Prior to that the trial court began ruling on jury challenges based on the written responses to juror questionnaires sent to perspective jurors. The court of appeals concluded that the voir dire had begun when the trial court began making its rulings.

The court also upheld the district court's denial of the defendant's statute of limitations challenge based on his claim that the government failed to prove an overt acts occurred within the period of the statute of limitations. The one overt act that took place within the statute of limitation period was done by the codefendant. The defendant argued that the overt act does not mention the defendant and cannot be used to bootstrap the defendant's conduct within the statute of limitations. Rejecting this argument, the court of appeals found an individual conspirator need not participate in the overt act done in furtherance of the conspiracy for the overt act to fall within the statute of limitations.

The court also rejected the defendant's argument that the evidence was insufficient to support his conviction. The argument was largely based the argument that two of the government's witnesses were not credible. The defendant could not point to any circumstances that would render their testimony incredible as a matter of law.

Loss amount incorrect

The defendant successfully challenged his sentence in arguing that the court erred in by attributing Morgan Stanley's $15 million dollars investment loss to the defendant. The court takes a two-step process in determining whether to hold the defendant responsible for losses from the receipt reasonably foreseeable acts of co-conspirators. First the district court must make the individualized findings concerning the scope of criminal activity undertaken by a particular defendant. Second the court can only enhance for reasonably foreseeable losses caused by the co-conspirators acting in furtherance of the conspiracy to which the defendant agree to participate. Here, the government failed to establish that Morgan Stanley's losses were the result the defendant or his co-conspirators conduct in furtherance of the conspiracy. The government could not prove that Morgan Stanley's losses were attributable to any fraud by the coconspirators. Morgan Stanley never saw any of the false evaluations prepared by the co-conspirators and apparently made its investment decision entirely independent of any false audit reports.

Evidence of marriage fraud by three brothers in their bid for citizenship was enough to convict

June 17, 2014,


The defendants in U.S. v. Chahla were three brothers from Syria who were convicted following a jury trial of various federal crimes in connection with their fraudulent marriages and their subsequent attempt to procure citizenship. The three brothers, all of whom resided in Florida, paid three women for a marriage. After their respective marriages, the brothers filed an I-130 petition to sponsor the defendants in their request for lawful permanent resident status ("green card".) At the same time the brothers filed their own form I-485 application to adjust their status based on marriage to a U.S. citizen. After they were interviewed by immigration officials, the defendants received lawful permanent resident status. Two of brothers up applied for citizenship while the third just applied for his lawful permanent residency. An investigation into their marriage led to these charges.

The defense were indicted and convicted of conspiracy to commit marriage fraud and six counts of unlawful procurement of naturalization pursuant to 18 U.S.C. § 1425. For two of the defendants, the unlawful procurement of naturalization charges was based on false statements made in the application to become a lawful permanent resident and false statements made in the naturalization application. For a third brother the unlawful procurement charges were only based on his original lawful permanent resident application. Two defendants challenged their conviction under 18 USC § 1425 for unlawful procurement of naturalization and citizenship because the counts relied on false statements made in support of the lawful permanent resident application. The defense argued that the conviction should be reversed because § 1425 criminalizes fraudulent procurement of naturalization, but not false statements made in the application to adjust to permanent residents. The court rejected this argument. It found that becoming a lawful permanent resident was a statutory a prerequisite to becoming a naturalized citizen. The defendants' attempt to become a naturalized citizen was contrary to law to the extent it was based on fraudulently obtained status as a lawful permanent resident. The defendants filed naturalization applications and a reasonable jury could conclude that the defense intended to seek naturalization when they file their fraudulent lawful permanent resident applications.

A third brother was convicted of making a false statement in the naturalization application. The naturalization form asked if the defendant had ever given false or misleading information to any U.S. government official while applying for any immigration benefits. There was overwhelming evidence that the defendant's marriage was fraudulent, and the answers to these questions provided evidence for the court to conclude sufficient evidence existed to convict this count.

Claim of bad faith

Finally the defendants challenge to the conviction based upon their argument the government acted in bad faith in calling as a witness when did knew her testimony would conflict with prior statements. The court found no error because the court found the government had not acted in bad faith in offering the testimony of the witness knowing it to be useless without eliciting impeachment testimony.

What is an instrumentality of a foreign government under the bribery statute? And deliberate ignorance instruction to the jury was error but harmless

June 4, 2014,

Defendants Esquenazi and Rodriguez were convicted in Miami federal court of conspiracy to violate the Foreign Corrupt Practices Act (FCPA) and conspiracy to commit wire fraud and money laundering. The FCPA makes it a crime to bribe the foreign official for the purpose of influencing the official. A foreign official is defined as an officer or employee of a foreign government or of any department, agency, or instrumentality thereof. The chief issue in the appeal in U.S. v. Esquenazi, was the definition of an instrumentality of a foreign government.

The defendants ran a telecommunications company that purchased phone time from foreign vendors and resold the minutes to customers in the United States. One of their main vendors was a telecommunications company in Haiti. The defendants worked out a deal with the phone company that reduced the defendants' phone bill debt and in exchange the defendants agreed to funnel 50% of the savings to the principle under the guise of a consulting agreement. The government presented evidence that Haiti owned the phone company and that the phone company was an instrumentality of the government of Haiti. The issue to the court of appeals said to resolve was whether the district court's definition of the instrumentality as it was used in the jury instructions was correct. Furthermore it had to define instrumentality in resolving the sufficiency of the evidence issue and the defendants' challenge to the constitutionality of the statute.

The court rejected the defendants' argument that the definition had to be limited to entities that perform traditional core government functions. The court defined instrumentality as an entity controlled by a foreign country that performs a function that the controlling government treats as its own. To decide whether the government controls entity courts and juries should look to the following: the foreign government's formal designation of that entity; whether the gov't has a majority interest in the entity; the government's ability to hire and fire the entities principles; the extent to which the entity's profits go directly to the government; and the to the extent to which the government funds the entity if it fails to break even. The court found that the lower courts jury instruction included most of the relevant elements for determining an instrumentality of a foreign governments incorrectly stated the definition of an instrumentality.

As for sufficiency the evidence, the court found that the evidence supported a verdict of that Teleco was and instrumentality of the Haitian government. Haiti gave the company a monopoly over Telecommunications Services, and its director was chosen by the Haitian president. The government expert testified that Teleco belong totally to the state and was considered a public entity.

The court rejected the defendants' argument that the statute was unconstitutionally vague. Here they're as no question under these facts that the company was overwhelmingly owned by the state and had no separate independents based on these facts there was no vagueness.

Deliberate Ignorance jury instruction

The court did find fault in giving the deliberate ignorance instruction but found harmless error. The court found the trial judge erred in giving the instruction because the evidence only points to either actual knowledge or no knowledge on the part of the defendant. It cautioned trial courts not to give the deliberate instruction except when there is evidence in the record showing the defendant purposely contrived to avoid learning the truth. It was harmless error because of overwhelming evidence that the defendant had actual knowledge of the unlawful payments.

Guilty plea thrown out because the district court participated in plea discussions

May 30, 2014,


The defendant in U.S. v Harrell received a 25 year sentence after pleading guilty to conspiracy and the substantive robbery a Miami Walgreens and a McDonalds in violation of the Hobbs Act and two counts of possession of a firearm in relation to the robberies. He argued on appeal that the district judge participated in the plea negotiations in violation of Federal Rule of Criminal Procedure 11(c).

Here's what happened in this Miami federal criminal case. On the day of trial, prior to bringing the jury venire into the courtroom, the district court stated that "it might be worth spending a few minutes in terms of the overall gravity of the situation to discuss whether or not there is some possibility of a plea or pleas of the two defendants." The district court then engaged defense counsel for the codefendants, and the prosecutors "in a lengthy discussion regarding the likelihood of a plea from either or both of the defendants." The discussion then turned to the possibility of a plea by the Defendant Harrell and his attorney mentioned he had been interested in the same plea certain codefendants received but that the government would not treat Mr. Harrell the same because he was facing state court charges involving murder and attempted murder pending. At one point the district court commented that Harrell was facing a "horrendous mandatory sentence that becomes somewhat irrevocable after a trial if there is a conviction." After a recess, the government came back with an offer to an agreed upon 25 year sentence that Harrell rejected. The trial began with jury selection but after the lunch recess Harrell's attorney announced that his client would accept the 25 year sentence. The codefendant, Dantzle, proceeded to trial and was convicted.

Because the issue was raised on appeal for the first time, the plain error standard applied. It required the defendant to show the error was plain, that the error affected his substantial rights, and the error seriously affected the fairness, integrity or public reputation of the judicial proceedings. The 11th Circuit found several violations of Rule 11(c)(1). First, the district court "instigated - without any mention of possible plea agreements from the parties" the plea-related discussions with counsel for both defendants and the government. Second, the district court improperly cautioned the defendants about the severity of his potential 32 year sentence should be convicted after trial and generally warned the defendant about the extremely high sentences they were facing should they be convicted and that the court would not have the same latitude to fashion a fair sentence if the defendants were found guilty by the jury. Third, the district court took the lead in orchestrating the plea agreement. While it found the district court had good intentions, the Rule 11 violation was plain error and reversible because comments by the district court, the defendant would reasonably have felt pressured to accept a plea rather than go to trial.

The codefendant who was convicted following trial argued on appeal that the district court erred in allowing the government to present expert testimony from a detective with respect to cell phones and cell towers without requiring the government to comply with the requirements for an expert witness opinion testimony pursuant to Rule 702. While the 11th Circuit agreed there was a violation of Rule 702, the district court abused its discretion in allowing the detective to testify as an expert. The court found the error was harmless because there was other evidence supporting the conviction


No credit against loss where the guideline sentence is based on intended loss and there is no victim

May 24, 2014,

In U.S. v. Massam, the defendant was convicted of theft and embezzlement of an employee benefit fund (E.R.I.S.A) he set of for himself and his employees and for which he served as the pension plan administrator. After divorcing his fifth wife, the state divorce court entered a distribution order to his ex-wife in the amount of $452,242. The defendant then attempted to illegally transfer of the funds in the pension plans to a foreign bank account so he could later withdraw the funds. His attempt to transfer the funds failed when the foreign bank refused to accept the wire and the funds were returned to the domestic bank. Following that failed attempt he appealed the state court judgment awarding his wife's funds pension funds, and in filing the appeal he posted a supersedeas bond in an amount which covered the court ordered amount for the ex-wife. Subsequently, the divorce court order was affirmed and his obligation to pay her was met by the supersedeas bond. Following all that, the defendant was investigated for his theft of the pension plans and eventually indicted and he pleaded guilty to the federal crime of theft, embezzlement, and money laundering in connection with his attempted transfer of the employee benefit funds.

His presentence investigation report calculated is guideline range based on the intended loss of $1,185,863.00 which was the amount that he attempted to transfer to the foreign bank. The presentence report gave him some credit for the funds still remaining in the pension fund. The district court rejected his argument that he should receive credit and for the amount he paid out of the bond to satisfy his pension related obligations to in his ex-wife under the asset allocation order. Credit for this amount would have reduced his sentencing guideline range significantly but the district court refused to give them credit.

The 11th Circuit found that he should not be given credit for the bond posted to pay his ex-wife because in his case the sentencing guidelines required that the calculation be based upon the intended loss which was the amount the defendant attempted to transfer to the foreign bank. It rejected his argument that his guideline should be reduced by the amount his wife received from the bond posted after he appealed from the divorce order. While the guidelines provide that a loss they would be reduced by the money returned by the defendant, the credit-against-loss is not available where the guideline range is based upon intended loss alone. It is also not available here because there is no victim in the case of an intended loss. The 11th Circuit also rejected the defense argument that the wife became a victim because her property interests was imperiled by the attempted overseas transfer. The court found the overseas transfer attempt took place long before his wife was due to receive the funds, which she eventually received from the supersedeas bond.

The entertaining opening paragraph of this opinion written by Judge Carnes is worth the read.

No second bite at the apple for crack cocaine defendant originally sentenced with career offender status

May 16, 2014,

In U.S v. Tellis, the Defendant pleaded guilty to selling crack cocaine in October of 2001. The presentence investigation report designated him as a career offender giving him an offense level of 37 under the sentencing guidelines, but because of the amount quantity of crack cocaine his base offense level became 38 under the drug quantity table of the federal sentencing guidelines manual. The drug offense quantity level of 38 was higher than the career offender level so his career offender status did not impact his offense level. For that reason, his sentence was based on the drug quantity and not his status as a career offender. The federal judge in Florida reduced his offense level to 32 after giving reductions for acceptance of responsibility and substantial assistance and then sentenced him to 210 months. The sentencing was not transcribed because the court reporter's notes were destroyed, but there was no dispute as to these reductions.

In 2007 the United States Sentencing Commission amended the guideline range providing for a two-level reduction in the based offense level for crack cocaine offenses. Known as amendment 706, it applied retroactively. As a result the defendant's offense level was reduced from a level 38 to a level 36 for his offense. The defendant moved for a sentence reduction under the new calculation. This time however the starting point was offense level 37 and not at a level 36 because of his career offender status, giving him an offense level 31 after acceptance and substantial assistance reductions.

In November 2011 the sentencing commission again amended the guidelines for crack cocaine. This time the defendant's based offense level fell to a level 34 instead of the original level 38. The defendant again moved to reduce his sentence, but this time probation office found he was not eligible for a sentence reduction because of his status as a career offender. The defendant argued in this appeal that he should be eligible for the reduction because the record was not clear that he was considered a career offender and the initial sentence. The court of appeals rejected his position because it found that the record was clear he did have a career offender status. And also found that when he received the reduction in 2008 the defendant had stipulated to a sentence modification that was calculated based of his career offender status.

He also argued that the career offender status should not apply because his original sentence was based the drug quantity and not career offender range. By relying on the career offender provision at this point, it would constitute a resentencing as opposed to a sentencing modification. The court of appeals rejected this argument finding that at his first sentencing reduction the court made a determination that his original sentence was as a career offender and only modified his sentence based on his career offender status. It found there was no alteration in the guideline range that applied at his original sentence. The court affirmed several prior unpublished cases in which it held that a district court lacked discretion to modify the sentence under amendment 750 after the a defendant with career offender status had previously received a sentence reduction under the earlier amendment.

No ineffective assistance because the defendant could not prove he would have pled guilty to the mandatory minimum sentence

May 15, 2014,

In Osley v. United States, the Eleventh Circuit rejected the defendant's section 2255 claim that his counsel failed to advise him he faced a mandatory sentence, because he had turned down a plea offer prior to trial that would have given him only 70 months. Osley was convicted of multiple counts commercial sex trafficking of a minor by means of force fraud and coercion, including a violation of 18 U.S.C. § 1591. Following the Miami federal criminal trial Osley was sentenced to 365 months and his sentence and conviction were affirmed. He filed a motion to vacate sentence pursuant to 28 U.S.C. 2255 claiming (1) his counsel was ineffective for failing to inform him of the mandatory minimum 15 year sentence for violating § 1591, (2) appellate counsel was ineffective for failing to challenge an obvious double counting violation of his sentencing guidelines, and (3) counsel failed to advise him he faced life term of supervised release.

Prior to trial his counsel discussed the possibility of a plea agreement. Both counsel and the prosecutor agreed that the guidelines calculation would be 97 to 121 months. At a status hearing held by the district court the prosecutor also informed the court there was no mandatory sentence under the sentencing guidelines and if found guilty he would be facing 97 to 121 months. The defendant had previously rejected a plea offer of 80 months. Osley chose a trial where the government's star witness was a 17 year old victim was a run-away from home who said Osley promised to buy her ticket to Miami and discovered that she would have to become a prostitute for him, and described how he threatened her with a gun because she did not bring in enough money. After the trial and an during the Presentence Investigation interview, the probation officer informed the defendant and his counsel that the statute had been amended by Congress prior to the date Osley violated the statute, making the penalty a 15 year mandatory minimum sentence. The PSI also recommended a four level enhancement for uncharged conduct, giving him a range of 210 to 260 months. The judge also imposed a variance up by three levels.

While the Eleventh Circuit had serious doubts about whether counsel's performance satisfied the standard of reasonableness required by the Sixth Amendment, it found that the defendant could not meet the prejudice pronged of Strickland. It rejected the Osley's claim that he would have taken the 15 year mandatory sentence had he known he was facing 262 months under the guidelines, because Osley had rejected the government's offer of 70 to 87 months. The 15 year deal that the defendant claims he would have taken was substantially more time than the deal he rejected. The court did not accept his claim that he would have taken 15 year deal even if he had known he would be facing a guideline range of up to 262 months. Furthermore, the defendant's denial of guilt was a factor in determining whether he would have accepted the government's plea offer.

The court found no ineffective assistance for failing to advise that the sentence carried a lifetime supervised release since the defendant was informed that the court could impose a maximum sentence of life in prison, and no ineffective assistance for failure to raise the double counting argument and because the court was not convinced that applying the four levels enhancement was error.

In my opinion this case should have been reversed because the defendant was not fully informed he faced an upside risk of 262 months. Knowing that risk would he have rolled the dice with a trial even though the plea offer was 180 months? Its seems he met the prejudice requirement.

Sentencing judge has no authority to reduce a restitution amount by the value of a forfeiture

May 9, 2014,

In U.S. v. Joseph, the defendant was convicted mail fraud and theft from the government for filing false income tax returns using false information. As a result of his committing this federal crime, the Internal Revenue Service actually disbursed $37,196. Before sentencing the government obtained an order from the district court entering a preliminary order of forfeiture under 18 U.S.C. § 3663A and 28 U.S.C. § 2461 for $29,514 in currency seized by government officials that were the proceeds of Joseph's fraud. Joseph objected to the presentence investigation report because it recommended restitution in the amount of $37,196 to the IRS without reducing by the value of the funds forfeited to the government. At the sentencing, the government argued that the defendant was not entitled to an offset and the district court seemed to agree but announced that the restitution would be offset by the forfeiture amount. Following the sentencing, the government noticed the sentencing judge that the restitution and forfeiture laws do not permit the district judge to offset restitution by the amount forfeited. It argued the discretion whether to apply the forfeited funds to restitution belonged to the government. The sentencing court later entered a written order that required Joseph to pay $37,196 restitution to the IRS and directed the forfeiture of $29,514. There was no mention of an offset.

On appeal Joseph argued the district court had the authority to offset restitution by forfeiture, and argued that the sentencing court's pronouncement at sentencing correctly intended to make the victim whole. The defendant relied on the rule that when an oral pronouncement of sentencing unambiguously conflicts with the judgment, the oral pronouncement controls. But the 11th circuit held that the rule does not apply here because the oral pronouncement was contrary to law. It found that under the language of the Mandatory Victim Restitution Act (MVRA) and the forfeiture act, the judge had no authority to offset the restitution amount by the forfeiture. The MVRA only permits a reduction for an amount later recovered for compensatory damages for the same loss by the victim in a civil proceeding.

In addition, the MVRA requires the court to order the forfeiture of property traceable to certain criminal offenses. The statute provides that the Attorney General has sole responsibility for disposing of petitions for remission or mitigation "or to transfer the property on such terms and conditions as he may determine, including as restoration to any victim of the offense giving rise to the forfeiture." A defendant is not entitled to offset the amount of restitution owed to a victim by the value of the property forfeited to the government because restitution and forfeiture serve distinct purposes. Restitution is compensatory for the victim and forfeiture is punitive. The district court has no authority to offset a defendant's restitution by the value of forfeited property except that the MVRA does allow for reduction of a restitution order for amounts "later recovered as compensatory damages for the same loss by the victim in" a federal or state civil proceeding. This only applies to compensatory damage awards recovered by a victim in a civil proceeding after the sentencing court enters a restitution order.

Defendant's failure to object with specificity results in the court affirming a sentence enhancement for a prior burglary conviction as a crime of violence

May 8, 2014,

After the defendant in U.S. v Ramirez-Florez pleaded guilty to reentry after deportation, he received a 16-level enhancement in his sentencing guidelines range because of a prior conviction for burglary of a dwelling in violation of the South Carolina conviction for burglary of a dwelling conviction that the district court determined was a crime of violence. The statute encompasses more than the generic definition of a burglary which is the unlawful entry into a residence. It also encompasses the unlawful entry into non-generic structures such as outhouses, sheds, or other buildings that are within two hundred yards of an appurtenant to a residence. Following the sentencing and after the briefs were filed on appeal, the Supreme Court decided Descamps v. U. S. and the defendant raised the argument for the first time at oral argument that the South Caroline statute is not divisible under Descamps and the district court erred in applying the modified categorical approach. In a divisible statute, where the statute sets out one or more elements of the offense in the alternative that in effect creates several different crimes, the courts must apply the modified categorical approach. If at least one of the alternative elements matches the generic definition, the court may consult a limited class of documents, such as the indictment and jury instructions to determine which element formed the basis of the defendant's prior conviction.

Viewed the challenge to the defendant's argument that the statute was divisible under the plain error because the argument was not raised before the district court or in the briefs on appeal. The defendant could not show that that the error was plain or obvious that the South Carolina statute is not divisible and found the issue is subject to interpretation.

In his second argument raised in the brief, he argued that his prior South Carolina conviction did not qualify as a crime of violence because the Shepard documents do not prove that he burglarized a generic dwelling. Because Ramirez-Flores could not show that the statute was indivisible, the court decided it was appropriate to consider Shepard documents. As the presentence investigation (psi) report presented evidence to the district court that the defendant's prior burglary conviction involved the burglary of a residence. A court applying the modified categorical approach may consider undisputed facts in the psi which in this case said that the defendant forcibly entered the victim's residence with a codefendant and removed property from the residence. Ramirez-Flores claims he objected at the sentencing hearing to these facts in the psi and therefore cannot rely on its description of his conduct. The court found that his objection was only a general objection to the factual and legal statements in the particular paragraph relating to the narrative of this prior conviction. The court held that vague assertions of inaccuracies are not sufficient to raise a factual dispute. "We require objections to the psi to be made with specificity and clarity in order to alert the government and the district court to the mistake of which the defendant complains." The only factual objection made by the defendant to the psi was that the prior crime was not a crime violence and this did not fairly apprise the government or the court of any objections. Therefor the district court properly relied on undisputed facts.

Even though she never handled any drugs, evidence was sufficient to convict the wife of participating in husband's drug conspiracy

April 12, 2014,

Reeves and five codenfendants in U.S. v. Reeves were convicted following a nine day trial of federal drug charges including conspiracy to distribute more than five kilograms of cocaine, possession of more than 50 grams of crack cocaine, and possession of a firearm by a convicted felon. The indictment followed nearly one year of investigation by the Georgia Bureau of Investigation and the Drug Enforcement Agency into the drug activities of individuals involved in drug distribution in the area of Baldwin County, Georgia. Agents used video surveillance and court ordered wiretaps to determine that numerous coconspirators were involved in large scale cocaine distribution network starting from a Mexican supplier of large quantities down to low level distributors of small quantities.

Reeves challenged his conspiracy conviction arguing that the facts showed he and his coconspirators were not part of a single criminal agreement but rather he just bought and sold cocaine in the ordinary course of several discrete agreements. The court rejected his arguments finding that he regularly purchased from one coconspirator and repeatedly sold to the same street-level distributors was more than adequate evidence for the jury to find a single overarching conspiracy to possess with intent to distribute cocaine. Reeves' codefendant wife argued the evidence was insufficient to convict her of the conspiracy particularly because there was no evidence she personally distributed drugs. The court of appeals disagreed on the basis of the tape recorded telephone conversations presented at trial showing her knowledge of the cocaine conspiracy. Those conversations showed that a reasonable jury could find that the wife knew there was cocaine hidden in the house, that she agree to dispose of it after coconspirator was arrested, and that she tried to conceal the conspiracy by falsely tell the police that her codefendant husband lived at another address.

Another issue the wife raised was the admission of telephone recordings without proper authentication. The court of appeals found there was plenty of evidence establishing her voice on the recordings, including testifying on her own behalf in which she acknowledged speaking on the phone and identifying her own voice.

The wife also claimed that the agent who arrested her commented on her right to remain silent when asked an open ended question by the prosecutor about the post arrest interview. In relating the questions and answers, at one point in the interview he commented that the defendant "hesitated for a minute, and she said well I think I might need to talk to a lawyer..." The defendant's counsel immediately objected. The court of appeals found no fifth amendment violation because the agent was responding to an open ended question about her discussion with the defendant and the comment does not appear to have been intended to be a comment on her exercise of the right to remain silent. "A single inappropriate reference to a defendant's post arrest silence that is not mentioned again is too brief to constitute a Fifth Amendment violation."

The defendants also raised the issue of the prosecutor's deliberate and repeated misstatements in closing argument. The court of appeals found that three of the prosecutor's statements could be deemed "improper" but they do not "affect [the defendant's] substantial rights because there isn't a probability that, but for the remarks, the outcome of his trial would have been different."

Money laundering sentence incorrectly enhanced by defendant's role in the drug conspiracy

March 30, 2014,


The defendant in U.S. v. Salgado was indicted and convicted of the federal crimes of drug conspiracy, money laundering conspiracy, and possession with intent to distribute as least one kilogram of heroin. Prior to sentencing the presentence investigation report (psi) calculated his guidelines sentence range by grouping his convictions together under USSG § 3D1.2(c) because the drug conspiracy and distribution offenses were "the underlying offenses from which the laundered funds were derived." The psi used the money laundering guideline, USSG § 2S1.1 to determine the defendant's base offense level. To calculate the offense level under § 2S1.1, the psi set his base offense level using the guideline for the underlying conspiracy to distribute heroin. Under the facts of this case it came to a level 34. It then determined that certain enhancements applied under § 2S1.1, including a role enhancement, for his role in the heroin transactions that qualified him as a manager, leader or supervisor.

The issue in this appeal was not whether Salgado's role in the heroin distribution conspiracy made him a manager, leader, or supervisor. Instead, the issue was whether the district court misapplied the guidelines by using Saldgado's conduct in the underlying drug conspiracy to impose a role enhancement when calculating his offense level for money laundering under USSG § 2S1.1(a)(1).

According to §1B1.5(c), if the offense level adjustments is determined by reference to another guideline, the Chapter Three adjustments also are determined in respect to the referenced offense guideline "except as otherwise expressly provided." This means that where a guideline determines a defendant's offense level by reference to another offense, the Chapter Three adjustments are to be based on the guideline and rules for that other offense. But the 11th Circuit pointed out that this is a default rule because the "except as otherwise" provided language. Application note 2(c) of § 2S1.1 is one of the otherwise provided exceptions. It instructs courts that when setting an offense level under § 2S1.1(a)(1), a court should make Chapter Three adjustments based on the defendant's conduct in the money laundering offense itself, and not based on his conduct in the offense from which the money that was laundered was obtained. This meant that when the district court calculated Salgado's offense level under § 2S1.1(a)(1), it could base his role enhancement on conduct in the money laundering conspiracy but not on his conduct in the underlying drug offense.

The psi should have first determined which of the three grouped convictions would result in the highest adjusted offense level by calculating Salgado's offense level under the guideline for each offense. The district court must select the offense with the highest offense level and then apply the enhancements based on the factual conduct for that underlying offense. Here the money laundering conduct did not lead to role enhancement for the defendant. The 11th Circuit rejected the Government's argument that the court should consider relevant conduct and found that the "unless otherwise specified" language together with Application Note 2(c) to § 2S1.1 means that the relevant conduct is limited solely to the defendant's conduct in the money laundering offense.

Secretary of State Certification showing that a drug laden vessel found in international waters was stateless does not violate the Confrontation Clause

March 30, 2014,

In U.S v. Campbell the defendant was indicted for conspiracy to possess and for possession with intent to distribute 100 kilograms or more of marijuana in violation of 46 U.S.C. § 70501 after he was arrested by Coast Guard on a vessel in international waters. The Coast Guard had earlier observed the vessel off the coast of Jamaica with three individuals aboard discarding dozens of bale in the water that the Coast Guard later determined were about 997 kilograms of marijuana. The Coast Guard determined the vessel lacked indicia of nationality because it lacked a flag, port, or registration number. The captain claimed the vessel was registered in Haiti. When the Coast Guard contacted the Republic of Haiti about whether the vessel was of Haitian nationality the response from Haiti was that it could neither confirm nor deny the registry. In a pretrial motion to dismiss on jurisdictional grounds, the defendant argued the certification of the Secretary of State to establish extraterritorial jurisdiction for prosecution violated the defendant's right under the Confrontation Clause and there was insufficient evidence to prove that the defendant was aboard a vessel subject to the jurisdiction of the United States. The defendant was convicted following a bench trial where he stipulated to the material facts.

In the first issue raised, defendant argued the admission of the certification of the Secretary of State without the ability to cross examine a Haitian witness violated his right under the Confrontation Clause. The Eleventh Circuit found the stateless nature of the vessel was not an element of the offense to be proved at trial and the admission of the certification did not violate his right to confront the witnesses at trial. The Confrontation Clause does not bar the admission of hearsay to make a pretrial determination of jurisdiction when it is not an element of the offense. The Confrontation Clause protects a defendant's right to confront testimony offered against him to establish guilt, and the Supreme Court has never extended the reach of the Confrontation Clause "beyond the confines of a trial.

In the second issue the defendant argued that the Fifth and Sixth Amendments require a jury to determine whether extraterritorial jurisdiction exists. The Eleventh Circuit rejected this argument in find that the issue of jurisdiction was preliminary to trial because the issue whether the boat was seized within the prescribed limit did not affect the right of the court to hold the person for trial. It only affect the question of guilt or innocence.

Third, the defendant argued the Secretary of State certification lacked details of the communication between the Coast Guard and Haiti and there was no testimony to corroborate the certification. The Eleventh Circuit found the certification provided conclusive proof that the vessel was within the jurisdiction of the United States.

Fourth, the defendant argued that Congress exceeded its authority under the Felonies Clause when it enacted the Maritime Drug Law Enforcement Act because the defendant's drug trafficking lacked any nexus to the United States and because drug trafficking was not a capital offense during the "Founding era." These arguments were foreclosed by Eleventh Circuit precedents which held that Congress has the authority to extend criminal jurisdiction of the U.S. to any stateless vessel in international waters as an exercise of its power under the Felonies Clause.