Federal 11th Circuit Criminal Case Law Update (November 7, 2022 – November 10, 2022)

by Lasnetski Gihon Law

The “Cite” of the Crime Podcast
CASE SUMMARIES

Federal 11th Circuit Criminal Case Law Update
(November 7, 2022 – November 10, 2022)

Listen to this week’s The “Cite” of the Crime Podcast episode here.

OVERVIEW

10 cases
0 published decisions
10 unpublished decisions
12 various compassionate release, substantive reasonableness of the sentence and other miscellaneous short opinions not discussed on the podcast.

Case #1 – United States v. Archible, No. 21-14172 (11th Cir. Unpub. Dec.)(November 9, 2022)

Archible is a retaliation against a federal judge case.
Mr. Archible was sentenced to 105 months for retaliating against a federal judge by false claim in violation of 18 USC §1521 and attempting to interfere with the administration of the Internal Revenue laws in violation of §7212.
On appeal, Mr. Archuble argued that the district court erred by allowing a federal judge to testify under Rule 404(b) , by convicting him of three counts in violation of double jeopardy, and violating his 5th Amendment right by increasing his sentence because he asserted his innocence at the sentencing hearing.
Rule 404(b) excludes evidence of other crimes, wrongs, or acts offered to prove the defendant’s character, however, such evidence is admissible to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Also, if the offered evidence is inextricably intertwined with the charged offense, it may also be admissible.
If the 404(b) evidence is offered to prove intent, it must require the same intent as the charged offense.
Here, the 11th Circuit didn’t go into too much analysis on how the 404(b) evidence was relevant but it held that the federal judge’s testimony about uncharged conduct was relevant and the probative value was not substantially outweighed by the prejudicial effect. And the district court gave a limiting instruction.
The Court next turned to Mr. Archible’s argument that his conviction for three counts violated double jeopardy.
- Under United States v. Phillips, the government cannot punish a person more than once for the same offense when 1) one act is a lesser included offense of the other, and 2) both offenses arise out of the same incident.
- Here, Mr. Archible’s conduct arose from three separate UCC financing statements that were filed against different people for at least two of the counts, were filed on different days and asserted different false claims, so his double jeopardy claim fails.
The Court next addressed Mr. Archible’s sufficiency of the evidence claim.
- Because Mr. Archible did not move for a judgment of acquittal at the trial court level, the issue was not preserved and he must show a manifest miscarriage of justice.
- In United States v. Pate, the 11th Circuit held that the statutory purpose of §1521 is to criminalize the act of filing or attempting to file a false lien or encumbrance against the real or personal property of a federal officer or employee because of something that they did as part of their official duties.
- §1521 applies to current or former federal officers or employees.
- §7212 requires that the defendant must do something more than interfere with routine, day-to-day work carried out in the ordinary course by the IRS, such as the review of tax returns.
- The defendant must take a targeted administrative action against the IRS.
- Here, the government provided evidence that Mr. Archible filed liens that were UCC financing statements, were public records, were publically accessible, listed the victims as debtors, and were materially false.
- The 11th Circuit found this evidence sufficient for conviction.
Mr. Archible next argued that the district court erred by increasing his sentence for maintaining his innocence at the sentencing hearing.
- Because he failed to object at the trial court level, the plain error standard applies.
- Regardless of the appellate standard of review, the 11th Circuit found that its precedent decision in United States v. Stanley foreclosed Mr. Archible’s argument because Stanley held that a district court can consider a defendant’s lack of remorse at sentencing and using a defendant’s silence as to remorse at sentencing to increase a sentence does not violate a defendant’s 5th amendment right.
- Case Affirmed.

Case #2 – United States v. Berry, No. 21-14221 (11th Cir. Unpub. Dec.)(November 10, 2022)

Berry is a suppression of evidence.
The victim of a shooting told law enforcement that the shooting occurred in the 700 block of Monroe Street and the suspect fled into the backyard of 718 Monroe Street, which was Mr. Berry’s residence.
Law enforcement found 9mm shell casings on the roadway in front of 718 Monroe Street.
Law enforcement obtained a search warrant based on the statements of the victim and the 9mm casings and noting that 718 Monroe STree had exterior cameras that were pointing towards the area where the shooting occurred.
Here, the 11th Circuit found that there was a fair probability that physical evidence would be found in the residence and there was a sufficient connection between the property and the crime as it was a path of egress from the crime scene.
And even if there was no probable cause for the warrant, the Leon good faith exception applied because the search warrant wasn’t so lacking in indicia of probable cause that the officer’s reliance on it was entirely unreasonable and there was no evidence showing the officers acted dishonestly in preparing the affidavit.
Mr. Berry next argued that the district court did not properly follow Rule 11 in determining that his plea was knowing and voluntary.
- Here, the 11th Circuit did find that the magistrate judge did err by incorrectly advising Mr. Berry on the possible punishment he faced.
- Because Mr. Berry didn’t object at the trial level, the plain error standard applied.
- To establish plain error, there must be error, it must be plain, and the error must have affected the defendant’s substantial rights.
- The 11th Circuit found that there was error and that it was plain, but found that Mr. Berry did not establish that the error affected his substantial rights because he did not show there was a reasonable probability that but for the error, he would not have entered his plea of guilty.
- In fact, Mr. Berry stated on the record that he expected a sentence of 188 months and that is the sentence he ultimately received.
- Case Affirmed.

Case #3 – United States v. Clark, No. 21-14473 (11th Cir. Unpub. Dec.)(November 10, 2022)

Clark is an appeal waiver case.
Mr. Clark attempted to enter a change of plea pursuant to a plea agreement with the government.
The plea agreement contained an appeal waiver where Mr. Clark could not appeal his sentence unless the sentence was above the guideline range as determined by the Court.
So, if the district court erred in calculating the guidelines and then sentenced Mr. Clark within that erroneous higher guideline range, Mr. Clark would not be able to appeal .
Mr. Clark and the government were both fine with this appeal waiver provision, but the district court rejected the plea agreement noting that the 11th Circuit had recently held that this appeal waiver provision bars appellate review even the district court’s guideline calculation is clearly erroneous and therefore the agreement did not fit the main objectives of the sentencing guidelines.
So, Mr. Clark entered an open plea, but objected to the rejection of the plea agreement.
The district court then calculated Mr. Clark’s guidelines to be 185-235 months and sentenced Mr. Clark to 180 months applying a downward variance.
Mr. Clark then appealed to the 11th arguing that the district court abused its discretion in rejecting the plea offer.
The 11th Circuit began its analysis with United States v. Howle, where the 11th upheld an appeal waiver noting that, “while it may appear unjust to allow criminal defendants to bargain away meritorious appeals, such is the necessary consequence of a system in which the right to appeal may be freely traded.”
The Court in Howle noted that an appeal waiver does not bar review if the sentence is entirely at the whim of the district court, above the statutory maximum, or based on a constitutionally impermissible factor. So, basically although there is no absolute bar to review, there’s an almost absolute bar.
In United States v. Boyd, the 11th Circuit held that an appeal waiver that precluded an appeal unless the sentence exceeded the guideline range unambiguously barred review of the district court’s guideline calculation.
The Court found that an appeal waiver may waive the right to appeal difficult or debatable legal issues or even blatant error.
Such a waiver of appellate review is another chip that the defendant can bring to the bargaining table.
So, the 11th Circuit found that the district court abused its discretion by finding that the Boyd case changed 11th Circuit caselaw.
The 11th also found that the district court acted arbitrarily because it accepted plea agreements with the exact same language for Mr. Clark’s co-defendants and other defendants with no explanation why Mr. Clark’s case was any different from the co-defendants and other defendants.
The Court also found that Mr. Clark was prejudiced because without the plea agreement, he could not obligate the government to consider filing a 5k motion or to not file any additional charges.
Case vacated and remanded.

Case #4 – United States v. Hammock, No. 21-14019 (11th Cir. Unpub. Dec.)(November 9, 2022)

Hammock is a §2422(b) attempting to persuade a child to engage in unlawful sexual conduct and §2251 attempting to exploit a minor for the production of child pornography case.
§ 2251 requires the same conduct as §2422 when the defendant is attempting to produce child pornography.
A conviction for attempt under §2422(b) requires that the defendant 1) had the specific intent to persuade, induce, entice, or coerce a minor to engage in unlawful sexual activity, and 2) took actions that constituted a substantial step toward the commission of the crime.
To prove intent, the government must show that the defendant intended to cause the minor’s consent, not that he acted with the specific intent to engage in sexual activity.
The government must demonstrate that the defendant took a substantial step toward causing assent, not actual contact.
Communications soliciting sexual activity can constitute a substantial step for §2422(b) purposes.
In United States v. Lee, the 11th Circuit held that sending nude photographs, encouraging an agent of the minor to show the photos to the minor, promising to buy gifts for the minor, assuring the agent of the minor that he would not harm her during sexual encounters and describing how he would complete the sexual act was a sufficient substantial step toward causing the minor’s assent, even though the defendant only sent messages to the minor’s purported father.
So, sending online messages alone can be a substantial step toward committing the crime.
Here, Mr. Hammock sent messages to a purported child and emphasized that she could trust him, he was a police officer, encouraged her to send him “naughty” photos, directly requesting photos of her privates, directed her how to take the photos, sent a photo of his penis, and stated that “now that they trusted each other he would show her more if she wanted him to.”
The 11th Circuit held that these online messages alone were sufficient to show a substantial step toward the commission of the offense and therefore the evidence was sufficient.
Case Affirmed.

Case #5 – United States v. Hardy & Simmons, No. 21-13701 (11th Cir. Unpub. Dec.)(November 8, 2022)

Hardy & Simmons is a resentencing case on a Hobbs Act robbery and brandishing a firearm in furtherance of a crime of violence.
Mr. Hardy was originally convicted of Hobbs Act Robbery, 924(c) brandishing a firearm in furtherance of a crime of violence and kidnapping.
- Mr. Hardy’s 924(c) conviction was overturned and his overall sentence was reduced by 48 months from 480 to 432 months.
- On appeal, Mr. Hardy argued that the district court violated his due process rights by vindictively not reducing his sentence by the full 84 months, which was the length of sentence added by the 924(c) count.
- On resentencing, a district court is free to unbundle the entire sentencing package and resentence the defendant anew as to the surviving counts of convictions.
- However, a resentence must not be exercised with the purpose of punishing a successful appeal.
- Under North Carolina v. Pearce, a presumption of vindictiveness at resentencing arises if two conditions are present:
  - 1) the sentencing judge imposes a more severe sentence, and
  - 2) no non-vindictive reasons for doing so affirmatively appear in the record.
- To determine whether the sentencing judge imposed a sentence more severe, the appellate court uses the aggregate package approach and compares the new total aggregate sentence to the old sentence.
- If the new total sentence is less than the old sentence, no presumption of vindictiveness arises.
- Where the presumption of vindictiveness does not apply, the defendant must affirmatively prove actual vindictiveness.
- Here, the district court reduced the overall sentence by 48 months and nothing in the record suggested the district court was punishing Mr. Hardy for a successful appeal.
- So, even though the district court didn’t reduce the sentence by the actual amount of time added by the 924(c) count, the district court did not abuse its discretion
- Mr. Hardy’s sentence affirmed.
As for Mr. Simmons, he was convicted of Conspiracy to commit Hobbs Act robbery, Hobbs Act robbery, and 924(c) brandishing a firearm in furtherance of a crime of violence.
- Mr. Simmons was originally sentenced to life but his case was reversed when the district court erred in finding Mr. Simmons was a career offender and qualified for the three strikes law.
- Mr. Simmons appeals his resentencing arguing that the district court erred by relying on coconspirator conduct not relevant to his offenses to apply abduction, carjacking and firearm enhancements and the district court improperly double counted certain conduct.
- For robbery offenses, §2B3.1(b)(4)(A) provides for a 4 level increase if “any person was abducted to facilitate commission of the offense or to facilitate escape.”
- §2B3.1(b)(5) provides for a 2 level increase if the offense involved carjacking.
- A district court may rely on all relevant conduct when calculating the guideline range.
- Relevant conduct includes all acts and omissions of others that were within the scope of the jointly undertaken criminal activity, in furtherance of that criminal activity, and reasonably foreseeable in connection with that criminal activity, whether those acts occurred in preparation for the offense, during its commission, or to avoid detection or responsibility.
- Here, Mr. Simmons, Mr. Hardy, and a co conspirator robbed a jewelry store with firearms.
- During his escape, co-defendant Hardy, who fled in a different direction than Mr. Simmons, forcibly entered a nearby residence, held four people hostage and forced them to drive him to another city.
- At sentencing, the district court attributed Mr. Hardy’s conduct to Mr. Simmons in applying the carjacking and abduction enhancements.
- In United States v. Cover, the 11th Circuit held that an accomplice’s escape by means of carjacking and kidnapping was reasonably foreseeable given the circumstances, including the coconspirator’s actions before arrival of police officers.
- The fact that the co-conspirators did not discuss or plan carjacking or abduction does not preclude a finding that carjacking and abduction were reasonably foreseeable if the original plan goes awry and the police become involved.
- Here, Mr. Simmons was involved in an armed robbery where employees were ordered to the ground at gunpoint.
- The possibility of violence during a potential escape was plainly within the scope of the jointly undertaken activity in the case.
- The Court also addressed the issue of when the robbery ended in relation to the escape.
- Escape immediately following the taking is a necessary phase of most violent robberies.
- The robbery is not over until the immediate removal phase comes to a halt.
- The escape continues so long as flight occurs from the possibility of hot pursuit.
- Here, the 11th Circuit called this a close call, but determined that Mr. Hardy’s escape was during flight from the possibility of hot pursuit.
- Therefore, the district court did not err in attributing the enhancements to Mr. Simmons based on Mr. Hardy’s conduct.
The Court next addressed Mr. Simmons’ argument that the district court impermissibly double counted sentencing enhancements.
- Impermissible double counting occurs only when one part of the guidelines is applied to increase a defendant’s punishment on account of a kind of harm that has already been fully accounted for by application of another part of the guidelines.
- Here, Mr. Simmons was given a 6 level enhancement under §2B3.1(b)(2)(B) because a firearm was used during a robbery.
- When a defendant is convicted of a §924(c) count as well as a predicate crime of violence; here Hobbs Act Robbery, possession of a weapon cannot be used to enhance the offense level of the predicate offense.
- But, this rule does not apply to robbery counts where there is no corresponding 924(c) conviction.
- So, the rule does not bar the 4 point enhancement for a co-conspirator’s use of a firearm during a robbery that did not form the basis of a defendant’s §924(c) conviction.
- Here, the district court applied the robbery firearm sentencing enhancement on a count where there was no 924(c) conviction and therefore there was no impermissible double counting.
- Case Affirmed.

Case #6 – United States v. Lynch, No. 21-13385 (11th Cir. Unpub. Dec.)(November 9, 2022)

Lynch is a loss amount determination case.
Ms. Lynch was convicted of several counts of wire fraud and sentenced to 63 months for defrauding taxplayer clients who believed were making payments to settle outstanding tax debt, but were really depositing the money for Ms. Lynch’s personal use.
Ms. Lynch argued on appeal, among other things, that the district court erred in determining the loss amount.
The guidelines do not require a precise determination of loss and the district court need only make a reasonable estimate of the loss, given the available information.
A district court’s loss estimate is reasonable where it is based on reliable, specific evidence.
Case law does not require a court to go through the loss calculation on the record and Ms. Lynch stipulated to the loss calculation in her plea agreement.
Case Affirmed.

Case #7 – United States v. Morrow, No. 21-14056 (11th Cir. Unpub. Dec.)(November 10, 2022)

Morrow is another loss amount calculation case.
Mr. Morrow was convicted after a jury trial of knowingly using one or more unauthorized access devices with intent to defraud under 18 USC §1029(a)(2) and he was sentenced to 41 months.
Mr. Morrow had used four debit cards issued in the names of other people to withdraw funds from fraudulent unemployment claims.
The intended loss was calculated to be $284,739 by using the maximum payable benefit amount for each of the 56 fraudulent unemployment claims.
Mr. Morrow objected and then appealed arguing that the loss amount was closer to $26,000.
§2B1.1 comments define loss as the greater of actual loss or intended loss.
Actual loss is the reasonably foreseeable pecuniary harm that resulted from the offense.
Intended loss is pecuniary harm that the defendant purposely sought to inflict including intended pecuniary harm that would have been impossible or unlikely to occur.
When the loss amount is disputed, the government has the burden of proof by a preponderance of the evidence.
Reliable and specific evidence can include evidence at trial, undisputed statements in the presentence investigation report, or evidence presented at sentencing.
Here, although the cards were only used for $26,000 in actual withdrawals or attempted withdrawals, the maximum amount payable by South Carolina in unemployment benefits was $284,739 because the maximum number of weeks payable is 20 and the maximum benefit is $326, so a calculation based on the maximum number of weeks and the weekly benefit amount for each of the 56 accounts was an accurate estimate of the total amount of money that would have been available had the State not stopped it.
So, the district court was within its discretion in determining the intended loss to be more than $250,000 for guideline purposes.
Case Affirmed.

Case #8 – United States v. Sharpe, No. 21-13574 (11th Cir. Unpub. Dec.)(November 9, 2022)

Sharpe is a government breach of plea agreement case.
Mr. Sharpe was indicted for conspiracy and the substantive charge of possession with intent to distribute 50 grams or more of meth.
Mr. Sharpe entered into a plea agreement with the government where the prosecutor agreed to recommend a sentence of 180 months.
Mr. Sharpe’s guidelines were 360 months to life.
At the sentencing hearing, the prosecutor stated “we had a joint, nonbinding recommendation where the United States was going to recommend – or is going to recommend the 15 year sentence of imprisonment.”
The prosecutor went on to describe Mr. Sharpe’s criminal history as significant and then mentioned some of the mitigating information as well.
The district court then asked the prosecutor whether Mr. Sharpe played a larger role in the conspiracy than the codefendant and the prosecutor responded that Mr. Sharpe played a different role and was very good at coordinating deals.
The district court then asked if the quantity of drugs attributed to Mr. Sharpe was limited to those found in his home and the prosecutor answered in the affirmative.
The district court sentenced Mr. Sharpe to 292 months.
Neither party objected to the sentence.
M.r Sharpe appealed arguing that the government breached the plea agreement by not being more proactive in advocating for the 15 year sentence.
The 11th Circuit first determined that Mr. Sharpe did not preserve the issue for appeal.
- Mr. Sharpe’s attorney never brought to the district court’s attention that the government was required to argue for the 180 month sentence and never objected on the basis that the government breached that agreement.
- And the argument that a contemporaneous objection would be futile is foreclosed by the Supreme Court’s decision in Puckett which requires a contemporaneous objection whether the objection would be futile or not.
- Therefore, the plain error standard applies.
As for the substance of the argument, 11th Circuit caselaw finds a breach where the government takes a position blatantly at odds with the plea agreement.
Here, the government promised to recommend a 180 month sentence and that is what the government did.
In United States v. Benchimol, the Supreme Court stated that while the government in a particular case might commit itself to enthusiastically make a particular recommendation to the court, or to explain to the court the reasons for the government’s making a particular recommendation, there was no indication in that case that the government promised to do either of those things.
Here, the government did not promise to provide enthusiastic advocacy and was therefore not required to do so.
As the court noted, “while the government may have done the bare minimum it was required to do, it nonetheless did the minimum.”
Case Affirmed.

Case #9 – United States v. Truley, No. 21-14352 (11th Cir. Unpub. Dec.)(November 10, 2022)

Truley is a removal of a defendant from the courtroom case.
Mr. Truley pled guilty to committing Hobbs Act robbery and 924(c).
He filed a motion to withdraw his plea and the trial court set the motion for hearing.
At the hearing, Mr. Truley, a sovereign citizen, started interrupting his attorney. The trial court warned Mr. Truley that he would be removed if he continued to interrupt.
Mr. Truley continued to interrupt and the trial court removed him for approximately six minutes while his attorney argued the motion.
The court then brought Mr. Truley back and warned him that if he continued to interrupt, he would be removed permanently.
While the trial court was speaking, Mr. Truley stated, “excuse me, your Honor.”
The court told Mr. Truley not to interrupt the court and Mr. Truley said, “I thought you were done talking.”
The judge then had Mr. Truley removed and Mr. Truley’s attorney did not object.
The motion to withdraw plea was denied.
During the sentencing hearing, Mr. Truley was again removed for approximately 31 minutes.
Mr. Truley was brought back in and allowed to allocute and the district court then sentenced Mr. Truley to 231 months.
On appeal, Mr. Truley argues that the district court erred in removing him from the courtroom.
Under the Due Process Clause, a defendant has a right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.
Under Rule 43, a defendant’s right to be present extends to the initial appearance, arraignment, plea, every trial stage, and sentencing.
Rule 43 allows a defendant to voluntarily waive his right to be present.
Rule 43 rights are considered waived if a defendant persists in conduct that justifies removal after the court warns of potential removal for disruptive behavior.
Repeated interruptions and refusal to cooperate with trial proceedings are considered disruptive behavior.
Here, even assuming the trial court erred, any error would have been harmless because it is unlikely to have changed the result of the hearing.
As for the motion to withdraw his plea, Mr. Truley argued that there was an insufficient factual basis and did not challenge the circumstances surrounding his entry of a plea.
- The district court only needed a copy of the plea transcript to evaluate his claim that he never brandished a firearm.
- The plea transcript showed that Mr. Truley admitted to the facts underlying the brandishing charge.
- Mr. Truley’s presence at the motion to withdraw plea hearing could not have aided the court’s analysis of the plea transcript.
- And Mr. Truley’s lawyer was present during the entire hearing. Mr. Truley had plenty of time to discuss the hearing and to communicate any information needed prior to the hearing.
- And Mr. Truley was brought back into the hearing and could have told his attorney any new information during the government’s argument or before his attorney’s rebuttal.
- Therefore, even if the district court erred in removing Mr. Truley from the motion to withdraw plea hearing, it was harmless.
As for Mr. Truley’s removal from the sentencing hearing, no objection was made and therefore plain error review applied and Mr. Truley cannot establish that his substantial rights were affected.
- Mr. Truley has not offered what information or objections he would have submitted had he not been removed.
- He was able to contribute to the sentencing hearing when he was present, his attorney requested a below guideline sentence, and he was allowed to allocute.
- And Mr. Truley was given the opportunity to challenge the sentencing evidence, to reiterate his sentencing objections, or to present new evidence and he never did.
- So, no plain error occurred.
Case Affirmed.

Case #10 – United States v. Wimbley, No. 22-11223 (11th Cir. Unpub. Dec.)(November 9, 2022)

Wimbley is a violation of supervised release case involving §3583(h).
Upon a revocation of supervised release, the district court sentenced Mr. Wimbley to 2 years in prison followed by 1 year of supervised release.
Mr. Wimbley appealed arguing that the district court misapplied §3583(h).
Under §3583(e)(3), a district court may revoke a term of supervised release and sentence a defendant to serve all or part of the term of supervised release in prison.
If the court finds that the violation was for possessing a firearm, the court must revoke the term of supervised release and impose a term of imprisonment not to exceed the maximum authorized under §3583(e)(3).
For a Class C felony, the maximum imprisonment term upon revocation is 2 years and the maximum supervised release term is 3 years.
Under §3583(h), when a term of supervised release is revoked and the defendant is required to be sentenced to prison, the court may sentence the defendant to a term of supervised release after release from prison.
However, the supervised release term shall not exceed the term of supervised release authorized by statute minus any term of imprisonment that was imposed upon revocation.
So, here because Mr. Wimbley’s Class C felony carried a maximum 3 year term of supervised release and he was sentenced to 2 years in prison, the district court could only sentence him to an additional term of 1 year of supervised release to follow that 2 years of prison, which is exactly what it did.
Case Affirmed.