Federal 11th Circuit Criminal Case Law Update (October 31, 2022 - November 4, 2022) — Jacksonville Criminal Lawyer Blog

The “Cite” of the Crime Podcast
CASE SUMMARIES

Federal 11th Circuit Criminal Case Law Update
(October 31, 2022 – November 4, 2022)

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OVERVIEW

8 cases
0 published decisions
8 unpublished decisions

Case #1 – United States v. Benitez Gonzalez, No. 21-13306 (11th Cir. Unpub. Dec.)(November 1, 2022)

Benitez is an attempted Hobbs Act robbery case.
Mr. Benitez was indicted on conspiracy to commit Hobbs Act robbery, attempted Hobbs Act robbery, and 924(c) brandishing and discharging a firearm during and in relation to, and in furtherance of a crime of violence.
Mr. Benitez entered into a plea agreement where he pled to the attempted Hobbs Act robbery and to aiding and abetting the use and brandishing of a firearm during and in relation to a crime of violence, that is attempted Hobbs Act Robbery and the government agreed to dismiss the conspiracy charge.
Mr. Benitez agreed to a factual basis that stated he attempted to commit an armed robbery of a Garda-World truck outside a bank.
Mr. Benitez was a GardaWorld employee with inside knowledge and he followed the truck route, knew firearms would be used during the robbery and expected to receive a share of the profit from the robbery.
Mr. Benitez’s co-conspirators went through with the robbery without him where a gunfight resulted and a victim was shot and a co-conspirator was killed.
At the change of plea hearing, Mr. Benitez used a Spanish interpreter, stated he was 32 years old, had a GED, understood some English, was competent, fully discussed the indictment with his attorney, was satisfied with his attorney and understood the charges.
The government recited the elements of each offense specifically covering aiding and abetting for the brandishing a firearm count, but not the attempted Hobbs Act Robbery count.
Mr. Benitez told the court that he had difficulty understanding exactly what he was pleading to because he wasn’t present at the actual robbery and defense counsel explained that he explained the aiding and abetting theory as is set out in Rosemond v. United States.
Mr. Benitez then confirmed his understanding and entered his guilty plea.
For the first time on appeal, Mr. Benitez claims that the district court erred by failing to ensure that he understood the nature of the charge.
Rule 11(b) sets out the procedure to ensure a guilty plea is knowing and voluntary.
There are three core objectives – to ensure the plea is free from coercion, to ensure the defendant understands the nature of the plea, and to ensure the defendant understands the consequences of the plea.
The Rule 11 procedures are not mandatory and only a total or abject failure to address any of the three core concerns will be enough to warrant reversal.
The issue in this case was whether Mr. Benitez understood the nature of his plea.
The appellate court will review the record as a whole to determine whether the defendant understood what he was admitting to and that what he was admitting to constituted the crime charged.
Under Rule 11(b), the district court must also determine that there is a factual basis for the plea, which means there is evidence from which a court could reasonably find that the defendant was guilty, and uncontroverted evidence is not required.
Mr. Benitez claimed that the district court didn’t adequately cover the complex interaction between vicarious liability and attempt and the plea agreement covered aiding and abetting for the 924(c) count only, not the attempted Hobbs Act Robbery count.
Mr. Benitez also claimed that his attorney confused aiding and abetting liability with co-conspirator liability which may have induced him to plead guilty based on uncharged or incorrect theories of vicarious liability.
18 USC §2, the federal aiding and abetting statute states that a person who aids, abets, counsels, commands, induces or procures the commission of a federal offense is punishable as the principal.
Under Rosemund v. United States, a person is liable under §2 for aiding and abetting if and only if he takes an affirmative act in furtherance of that offense with the intent of facilitating the offense’s commission.
The government must also prove that the substantive crime was committed by someone.
Because aiding and abetting is merely a theory of criminal liability and not an essential element of the underlying offense, it does not have to be charged in the Indictment.
Failure to mention aiding and abetting in the plea agreement does not render a guilty plea invalid.
Here, the 924(c) count did refer to aiding and abetting, which put him on notice, even though there is no requirement to mention aiding and abetting in the indictment, plea agreement or to put a defendant on notice.
There also was a sufficient factual basis as Mr. Benitez admitted to supplying two co-conspirators with inside knowledge of the truck, bringing them to the bank and expecting a share of the proceeds.
And even though Mr. Benitez stated on the record that he initially had some difficulty understanding his culpability when he wasn’t present at the robbery, nothing in the record suggested that difficulty continued.
Mr. Benitez confirmed that he fully discussed the indictment with his counsel, that he was fully satisfied with his representation, he understood the charges, agreed to the factual proffer and was pleading guilty because he was in fact guilty.
Therefore, there was no plain error.
However, the 11th Circuit did reverse Mr. Benitez’s conviction for the 924(c) count because it relied on the attempted Hobbs Act Robbery as a crime of violence.
The U.S. Supreme Court recently held in United States v. Taylor that attempted Hobbs Act robbery is not a crime of violence and therefore the government concedes that, based on this new change in law, the 924(c) count must be reversed.
Therefore, the Court vacated the 924(c) conviction and reversed and remanded for resentencing on the Attempted Hobbs Act Robbery count.
Case affirmed in part, reversed in part, and vacated and remanded in part.

Case #2 – United States v. Blanc, No. 21-12259 (11th Cir. Unpub. Dec.)(November 2, 2022)

Blanc is a motion for retroactive recommendation of concurrent sentence case.
Mr. Blanc was found guilty by a jury of conspiracy to steal government funds, wire fraud, aggravated identity theft, and of stealing government funds for filing fraudulent tax returns using stolen identities.
He was sentenced to 192 months and his conviction and sentence were affirmed on direct appeal.
At the time of his sentencing, Mr. Blanc had several state charges pending for possession of a firearm by a convicted felon and felony fleeing and eluding., but he never requested that the district court run his federal sentence concurrently with any sentence he would receive on those state charges.
After his federal sentencing, Mr. Blanc pled guilty to those state charges and received 1949 days and 5 years credit for time served for his two state charges.
So, Mr. Blanc filed a motion with the district court asking the court to retroactively run his federal sentence concurrently to the state sentences and requested credit for the time he had served in state custody.
The district court denied the motion and denied a motion for reconsideration.
On appeal, the 11th Circuit noted that Mr. Blanc provided no authority for a district court to modify an already imposed sentence.
Federal Rule of Criminal Procedure 35(a) provides a mechanism to correct clerical errors or omissions.
§3582(c) allows a district court to modify a term of imprisonment only in limited circumstances like when a guideline range is later lowered by the sentencing commission or when there are extraordinary and compelling reasons to reduce a sentence.
Sentences imposed at different times are presumed to run consecutive to one another unless the sentencing court orders otherwise.
Mr. Blanc’s subsequent request for retroactive concurrent sentence is not authorized by §3582 or any other statute.
Case Affirmed.

Case #3 – United States v. Gorycki, No. 21-12823 (11th Cir. Unpub. Dec.)(November 4, 2022)

Gorycki is an attempting to entice or induce a minor to engage in unlawful sexual activity case dealing with the proper definition of “induce”
Mr. Gorycki responded to pornography website forum post titled “couples seeking man” that referenced incest and taboo.
The post was created by an undercover officer.
Mr. Gorycki reached out and began communicating with the undercover agent who was pretending to be the father of a 13 year old daughter.
Mr. Gorycki said he was cool with the fact that the daughter was 13 as long as it wasn’t forced.
Mr. Gorycki discussed sexual activities with the child, agreed to meet up, told the father things to tell the child to make her more comfortable, suggested getting the child high to ease her nervousness. Mr. Gorycki also sent a pornographic video to the father to show the child and drove to the meetup location where he was ultimately arrested.
Mr. Gorycki’s defense was that he never attempted to persuade a child to do something she would not otherwise have done.
Mr. Gorycki claimed that the evidence only showed that he attempted to have sex with a willing minor which is not prohibited by the particular statute he was charged with, §2422(b).
At trial, Mr. Gorycki requested a jury instruction defining the term “induce” as overcoming or transforming the will of a minor.
The district court denied the request relying on 11th circuit precedent in United States v. Murrell, which held that the term “induce” means simply to stimulate the occurrence of or to cause.
Mr. Gorycki moved for judgment of acquittal and the trial court denied the motion.
Mr. Gorycki was found guilty by the jury.
The PSR recommended a guideline range of 135 – 168 months and recommended against an acceptance of responsibility reduction because he went to trial.
Mr. Gorycki argued that he should receive the acceptance of responsibility reduction because he never denied the facts, but simply challenged the applicability of the statute.
The district court denied the acceptance of responsibility reduction finding that he held the government to its burden of proof and had not expressed any remorse and sentenced him to 160 months.
The district court also prohibited Mr. Gorycki from opening any new lines of credit or making major purchases as a condition of supervised release.
On appeal, Mr. Gorycki challenged the district court’s denial of his requested jury instruction defining the term “induce.”
- §2422(b) criminalizes an attempt to knowingly persuade, induce, entice, or coerce any minor to engage in unlawful sexual activity using interstate commerce.
- A conviction requires proof that the defendant
  - 1) intended to cause assent on the part of the minor, and
  - 2) took actions that constituted a substantial step towards causing assent.
  - The government does not have to prove that the defendant acted with a specific intent to engage in sexual activity or that he took a substantial step towards causing actual sexual contact.
  - In Murrell, the 11th Circuit chose between two alternative definitions of the term induce. First, to lead or move by influence or persuasion; to prevail upon. Or Second, “to stimulate the occurrence of; cause”
  - The Court decided on the “to stimulate the occurrence of; cause” definition.
  - The defendant in Murrell also communicated with an adult who he believed was the father of a 13 year old girl and he agreed with the father, who was acting as an agent or representative to procure the daughter to engage in sexual activity.
  - A substantial step occurs when a defendant’s objective acts mark his conduct as criminal such that his acts as a whole strongly corroborate the required culpability.
  - In Murrell, the Court held that the defendant took a substantial step when he made incriminating statements to an undercover officer, traveled several hours to meet the child at a motel, and brought a teddy bear, money to pay the father and condoms with him.
  - Here, the 11th Circuit held that Mr. Gorycki’s requested definition of “induce” was foreclosed by Murrell.
  - The Court also held that the evidence was sufficient to support his conviction.
  - Mr. Gorycki acted with the requisite intent to cause a minor’s assent, by communicating with who he believed was the father of a 13 year old who presumably exercised influence over her and he intended to cause her assent to sexual activity.
  - He also took a substantial step towards causing the child’s assent by negotiating with the father, arranging to meet the father and child, sending a pornographic video to be shown to the minor, and travelling to meet the child.
  - And even though he didn’t bring any gifts or items with him intended to create comfort for the child, like was done in Murrell, the evidence was still sufficient.
  - The Court next turned to Mr. Gorycki’s argument that the district court erred by denying his acceptance of responsibility reduction.
  - Under §3E1.1, in deciding whether to grant an acceptance of responsibility reduction, the court should consider whether the defendant truthfully admitted the conduct supporting the offense and whether the defendant truthfully admitted or did not falsely deny any additional relevant conduct.
  - 3E1.1 is designed to reward defendants who affirmatively acknowledge their crimes and express genuine remorse for the harm caused.
  - Ordinarily, defendants who proceed to trial are not entitled to an acceptance reduction.
  - However, in rare situations, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt may still be able to obtain an acceptance of responsibility reduction.
  - Here, the 11th Circuit found that Mr. Gorycki forced the government to meet its burden of proof, minimized the facts of his conduct, claimed that the case was a “setup” and that he merely followed the lead of the fake bad dad.
  - This minimization of his own conduct was not consistent with clearly accepting responsibility.
  - The Court also noted that Mr. Gorycki failed to give a clear statement expressing remorse.
  - Based on these considerations, the 11th Circuit held that the district court did not clearly err in denying his acceptance of responsibility request.
Mr. Gorycki also claimed that the condition of supervised release prohibiting him from opening new lines of credit or making major purchases without probation approval was improper.
- Any special conditions imposed must be
  - reasonably related to the nature and circumstances of the offense, the history and characteristics of the defendant, and the needs for deterrence, protection of the public, and rehabilitation of the defendant;
  - Not more restrictive than is reasonably necessary, and
  - Consistent with pertinent policy statements.
- 5D1.3(d)(2) recommends requiring access to financial information if the court imposes an order of restitution, forfeiture, or notice to victims or orders the defendant to pay a fine. It also states that this condition may otherwise be appropriate in particular cases.
- Here, the district court did not impose any continuing payment obligation.
- However, the 11th found that the district court could have imposed the condition to monitor Mr. Gorycki’s compliance with other conditions of supervised release like refraining from using or possessing a computer, smartphone or other device without probation approval because the financial condition may make it less likely that he can obtain such a device without probation’s knowledge.
- And the condition is not more restrictive than necessary, because Mr. Gorycki can open new lines of credit and make major purchases, he just has to do so with probation approval.
Case Affirmed.

Case #4 – United States v. Harvey, No. 22-10610 (11th Cir. Unpub. Dec.)(November 3, 2022)

Harvey is a violation of supervised release case involving failure to register an email address or social media identifiers.
Mr. Harvey was convicted of failure to register as a sex offender and sentenced to 27 months in prison followed by a life term of supervised release.
While on supervised release, Mr. Harvey was prohibited from possessing, exchanging, or producing any sexually explicit materials involving minors or adults.
When initially imposing this condition, the district court wondered whether adult pornography needed to be included and the probation officer said it was to be on the safe side, and so the court imposed the condition.
While on supervised release, a violation report was submitted alleging that Mr. Harvey violated Fla. Stat. §943.0435(4)(e) by failing to register an email address or social media identifier, by failing to submit truthful reports by omitting an email address, by possessing a Samsung Galaxy phone, and by possessing and trading adult pornography.
Mr. Harvey admitted to possessing the cell phone and possessing adult pornography.
During the revocation hearing, the probation officer testified that the Florida Sex Offender Registration Form did not list any email addresses or social media identifiers, but a forensic examination of his phone revealed an email address he used to communicate with a woman and social media accounts on Facebook and Tic Tok.
Mr. Harvey also admitted to using WhatsApp and he sent a link to an adult pornographic video to a person through WhatsApp.
The district court found that Mr. Harvey violated 6 conditions of 7 alleged violations.
Mr. Harvey’s guideline range was 12-18 months and the district court sentenced him to the maximum 24 months.
The district court relied on Fla. Stat. §943.0435, which the court read to provide for a mandatory minimum two year prison sentence for a third offense and because the district court viewed Mr. Harvey’s violations as repetitive, the court thought a two year upward variance was warranted.
Mr. Harvey appealed.
In a supervised release revocation hearing, the government bears the burden of proving by a preponderance of the evidence that the defendant violated a condition of release.
Fla. Stat. §943.0435(4)(e) requires sex offenders to register all electronic mail addresses and Internet identifiers either online or in person at the sheriff’s office within 48 hours after using them.
Failure to register this information must be knowing.
Mr. Harvey argues on appeal that the government did not establish that he knowingly failed to report his email address and social media identifiers
- At the hearing, the government relied solely on testimony from the probation officer who testified that the Florida registration form was not signed by Mr. Harvey or any officer who may have received it.
- However, the 11th Circuit found that the unsigned form was sufficient because it did not include any email addresses or social media identifiers and he failed to report similar information to his federal probation officer.
- Therefore, the district court could reasonably conclude that it is more likely than not that Mr. Harvey knowingly failed to report that information.
- The Court noted that the form was not the basis of the violation, it was simply evidence of Mr. Harvey’s failure to report information.
The Court next turned to Mr. Harvey’s 24 month sentence.
- Here, Mr. Harvey argued, and the government conceded, that the district court misread Fla. Stat. §943.0435 to require a mandatory minimum 24 month prison sentence, when in fact it only requires a minimum term of two years of community control.
- Because the district court relied on this erroneous interpretation of the statute, the case must be remanded for resentencing.
- The government requested the Court simply remand for the limited purpose of clarifying the grounds for imposing a two year sentence, but the 11th Circuit wanted to give the district court more leeway by fully remanding the case.
  - And in so doing, the Court encouraged the district court to more fully explore the condition prohibiting adult pornography based on the district court’s reservation when first imposing supervised release.
Case Affirmed in part, vacated, and remanded in part.

Case #5 – United States v. James, No. 21-13689 (11th Cir. Unpub. Dec.)(October 31, 2022)

James is a possession of a firearm by a convicted felon case involving suppression of evidence and statements.
Mr. James was in the backseat of a car with a female driver and female front passenger when the car was pulled over by law enforcement.
The officers had body cameras and were assigned to this area which was a high crime area.
The officer smelled marijuana and observed open containers.
The officer also noticed that the occupants had slurred speech and were acting nervous.
The officer asked if there were any weapons in the vehicle and the driver responded in the negative.
Mr. James, speaking to one of the officers, was showing his hands and then moved them to his lap and reached towards his pocket.
When asked if Mr. James had any weapons, he hesitated.
The officer again asked if there were any weapons and Mr. James turned over a pocketknife.
When asked again about weapons or narcotics, the driver admitted that there was an open container in the car and Mr. James asked the officer if they had probable cause to search.
At that point, the officers asked all occupants to get out of the car.
Mr. James was acting nervous and was wearing baggy clothes.
An officer conducted a patdown search of Mr. James. As he was getting patted down, he stated that he got a ride to “take this back, somebody left it in the car.”
The officer located a pistol on Mr. James.
Mr. James was placed in the back of the patrol car and he told the officer that his cousin left the pistol in Mr. Jame’s girlfriend’s car. Because the girlfriend has two children, he was walking it back to his cousin when he was picked up by the female occupants.
Mr. James said he didn’t tell the officers about the gun because he knew he wasn’t supposed to be around them and would go to jail if he was found with a gun.
Mr. James was Mirandized and he stated that the firearm belonged to his cousin and Mr. James admitted to having a prior felony conviction and that he did not have a permit.
No marijuana was found in the car.
Mr. James filed a motion to suppress the firearm and his statements.
The government agreed not to use Mr. James’ pre-Miranda statement that he didn’t have a permit and that he didn’t know.
The district court denied the motion.
Mr. James entered a plea of guilty reserving his right to appeal.
On appeal, Mr. James had two claims. First, that the officers didn’t have reasonable suspicion that Mr. James was armed and dangerous and therefore the Terry frisk was unlawful, and Second, that his statements were fruits of an illegal search and violated the 5th Amendment protection against self incrimination.
The Court first addressed the reasonableness of the patdown search.
- Under the exclusionary rule, any evidence obtained through unconstitutional searches and seizures is inadmissible.
- The exclusionary rule extends to fruits of the poisonous tree – evidence that became available only through the exploitation of the police misconduct, rather than through an independent, legitimate search.
- In Terry v. Ohio, the Supreme Court held that an officer may frisk a legally stopped individual for weapons if he reasonably believes that the person is armed and dangerous.
- The officer does not have to be absolutely certain the person is armed.
- The question is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.
- The Court extended the Terry frisk to lawful traffic stops in Arizona v. Johnson.
- In determining whether a frisk is reasonable, the courts will consider the number of officers at the scene and the person’s nervousness and whether the person is argumentative or evasive.
- Officers can draw on their own experience and specialized training to make inferences.
- Here, the district court found that the officers observed that Mr. James had slurred speech, did not answer some questions, answered others evasively, produced one weapon, was wearing baggy clothes and the officers were outnumbered and smelled marijuana.
- And even if there was somewhat inconsistent testimony at the suppression hearing, that does not render the district court’s finding clearly erroneous.
- The Court noted in a footnote that marijuana alone may provide a basis for reasonable suspicion of possible criminal activity.
- Therefore, the search was legal and any evidence or statements made thereafter were not obtained as fruits of poisonous tree.
The Court next turned to Mr. James’ argument that his pre-Miranda statements were obtained in violation of the 5th Amendment.
- Specifically, he sought to suppress his statements that he did not tell them about the firearm because he was a felon and knew he was not supposed to have a firearm.
- Under Miranda, statements made during custodial interrogation are not admissible unless the defendant was first advised of his rights, including against self incrimination.
- A person is subject to “interrogation” when they face express questioning or its functional equivalent.
  - This can be any words or actions by police other than those normally attendant to arrest and custody that the officer should have known was reasonably likely to elicit an incriminating response.
  - A defendant’s volunteered statements are not barred by the 5th Amendment.
  - A simple failure to read Miranda does not taint a subsequent voluntary and informed waiver.
  - Ordinarily, giving proper Miranda warnings will remove the effect of any conditions requiring suppression from pre-Miranda statements.
- Here, the Court held that assuming there was error, it was harmless.
  - Mr. James made the same admission post-Miranda as he did pre-Miranda.
  - Because his post-Miranda statements are admissible, the admission of the same or similar pre-Miranda statements was harmless.
- Case Affirmed.

Case #6 – United States v. Mack, No. 22-10234 (11th Cir. Unpub. Dec.)(November 3, 2022)

Mack is a procedural and substantive reasonableness of the sentence case.
Ms. Mack applied for a CARES Act loan for $150,000.
In the application, she submitted financial misrepresentations and fraudulent information.
She gave money to her boyfriend and spent some of the money on a personal trip to Miami.
Ms. Mack pled guilty to wire fraud and the government filed a 5K motion for downward departure.
However, the district court denied the motion, varied upward and sentenced Ms. Mack to 48 months.
On appeal, Ms. Mack first attacked the procedural reasonableness of her sentence.
- An upward variance is procedurally reasonable when the district court expressly notes that the Guideline sentence range is insufficient in light of the 3553(a) factors.
- Here, the district court specifically stated that it considered the PSR and the 3553(a) factors.
- Nothing in the record indicated that the Court relied on clearly erroneous facts.
- Therefore, the sentence was procedurally reasonable.
Ms. Mack next attacked the substantive reasonableness of the sentence.
- A sentence must be substantively reasonable under the totality of the circumstances and in light of the 3553(a) factors.
- A well-below the statutory maximum sentence indicates reasonableness.
- A sentence may be substantively unreasonable if it is grounded solely on one factor and ignores relevant factors or balances the relevant factors in an unreasonable manner.
- The 11th Circuit will rarely find that a sentence is substantively unreasonable.
- Here, the guideline range was 12-18 months and the Court varied upward to 48 months.
- The 11th had no problem with this sentence noting that it was well below the statutory maximum of 20 years, Ms. Mack attempted to defraud the government, covered up her efforts, the money could not be recovered, and the stealing funds from taxpayers was reprehensible.
- The district court also considered the 3553(a) factors and determined that a guideline sentence was inappropriate.
Case Affirmed.

Case #7 – United States v. Moise, No. 21-13424 (11th Cir. Unpub. Dec.)(November 1, 2022)

Moise is an improper prosecutor comment in closing argument case.
Mr. Moise was charged with filing fraudulent tax returns as an owner and operator of two tax return preparation companies.
Mr. Moise’s trial lasted 8 days.
During closing arguments, Mr. Moise’s attorney argued that the Department of Justice had told the investigating IRS agents to revise their tax calculations using a more conservative method and therefore the IRS work was so bad that it could not be trusted.
The prosecutor in rebuttal brought up the South Park episode with a shyster attorney who holds up a picture of a Wookie from Star Wars, which had nothing to do with the case.
The defense attorney objected, arguing that the prosecutor was implying that he was a shyster lawyer.
The district court gave an instruction for the jury to disregard the statements.
The defense attorney did not request any other relief.
The district court also instructed the jury three times that what the attorneys say in closing is not evidence.
The jury came back guilty on 17 of 23 counts.
On appeal, Mr. Moise argued that the shyster lawyer comment denied him a fair trial.
As an initial matter, the 11th Circuit found that because Mr. Moise did not request any further relief once the curative instruction was read, he did not preserve the issue, and plain error review applies.
But, it didn’t really matter, because the Court concluded that under either standard of review, Mr. Moise’s challenge fails.
Prosecutorial misconduct requires a new trial only if the Court finds the remarks were 1) improper and 2) prejudiced the defendant’s substantive rights.
A defendant’s substantive rights are prejudiced when a reasonable probability arises that, but for the remarks, the outcome of the trial would have been different.
The Court will consider the misconduct in the context of the entire trial along with any curative instruction.
Reversal on the basis of prosecutorial misconduct requires that the misconduct be so pronounced and persistent that it permeates the entire atmosphere of the trial.
If the district court takes a curative measure, the appellate court will reverse only if the evidence is so prejudicial as to be incurable by that measure.
Both parties and the 11th Circuit agreed that the comment was improper.
However, the 11th Circuit held that the comment did not prejudice Mr. Moise.
It was a single isolated remark during an 8 day trial so it didn’t permeate the entire trial.
The comment was in rebuttal and in response to an argument that was not directly relevant to guilt or innocence.
The district court found that the jury would have understood that the comment was in response to the narrow issue of initial tax calculations.
The district court gave a curative instruction and the district court presumes the jury follows curative instructions.
And the jury found Mr. Moise not guilty on several counts suggesting that the jury was able to follow the court’s instructions and make judgments based solely on the evidence.
Case Affirmed.

Case #8 – United States v. Richiez, No. 21-13629 (11th Cir. Unpub. Dec.)(November 1, 2022)

Richiez is a substantive reasonableness of the sentence case.
Mr. Richiez was sentenced to 151 months for conspiracy to import 5 or more kilos of cocaine.
His sentence was at the high end of the guideline range and he argues on appeal that the district court put too much weight on his flight from the United States and failed to credit his mitigation.
The 11th Circuit noted that the district court acknowledged the 3553(a) factors several times and determined that a sentence at the bottom of the guidelines would be unreasonable.
The district court relied on Mr. Richiez’s conduct in a drug trafficking organization, his flight from the U.S., the nature and circumstances of the offense, and the sentencing commission’s intent to punish people who traffic certain amounts of drugs and obstruct justice.
The sentence was within guidelines.
Mr. Richiez failed to establish that there was an unwarranted sentence disparity because he must show that he is similarly situated to the defendants to whom he compares himself and he failed to do that because the co-defendants didn’t flee.
And although the district court mistakenly referred to his prior conviction for possession of burglary tools as actual burglary, the district court stated that it wasn’t relying on that conviction to vary upward, so Mr. Richiez was unable to show that the district court gave significant weight to an improper factor.
Case Affirmed.

Compassionate Release Cases

United States v. Cannon, No. 21-13570 (11th Cir. Unpub. Dec.)(November 1, 2022)