September 30, 2014 CJS: Around the Circuit

U.S. Court of Appeals for the Eleventh Circuit

A quarterly case summary digest of recent federal circuit court opinions

by Erick Marroquin

United States v. Therve, No. 13-11879 (11th Cir. August 20, 2014) 764 F.3d 1293

Defendant was convicted of bribing of an Immigration and Customs Enforcement (ICE) deportation officer to release him from detention.  During Defendant’s first trial the district court declared a mistrial after the jury was unable to agree on a unanimous verdict.  The judge disclosed to the parties that the jury was hung 11-1 in favor of Defendant.  Prior to declaring a mistrial the judge asked the prosecutor and defense attorney for their input.  On retrial, the jury returned a verdict of guilty.

Defendant appeals and argues that the district court abused its discretion in declaring a mistrial at his first trial, especially when he disclosed to the parties the numerical division of the jurors and how they voted.

Held: The court did not abuse its discretion in declaring a mistrial.  District courts are permitted to declare a mistrial and discharge a jury only where, “taking all circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.”  United States v. Perez, 22 U.S. 579 (1824).  The trial court is in the best position to assess all the factors, which must be considered in declaring a mistrial.  However, the court must exercise “sound discretion” in declaring a mistral and it cannot be irrational or irresponsible.  The fact that the judge disclosed the numerical division was irrelevant because (1) the jury had deliberated to deadlock on separate periods of deliberation, (2) the judge believed the jury to be truthful in its assessment, and (3) the judge believed that making the jury continue to deliberate was coercive.  Most significantly, the jury made it clear to the judge that it would not be able to come to a unanimous verdict.  Finally, directing the jury to continue deliberations risked obtaining a verdict that was not the product of the juror’s true judgment.                                                                                            

United States v. Green, No. 12-12952 (11th Cir. September 4, 2014) 764 F.3d 1352

Defendant was convicted of possession with the intent to distribute cocaine.  During sentencing the district court calculated about 35 kilograms of crack cocaine in connection to his conviction.  The quantity possessed led to a sentence of 480 months of imprisonment.  On appeal Defendant argued that the appeals court cannot defer to the findings of fact by the district court because it violates the Sixth Amendment of the U.S. Constitution since the jury should have found the drug quantity.  During sentencing, Defendant also argued for a reduced sentence after an amendment to the Sentencing Guidelines Manual.  However, the district court ruled that the amendments did not result in a change to the guideline range.

Held: The error did not affect his substantial rights since the district court was consistent in their findings.  A district court may modify a term of imprisonment if an amendment to the Guidelines lowers the guideline range and it is consistent with policy statements issued by the Sentencing Guidelines.  To lower his guideline range, Defendant had to prove that the court held him accountable for less than 2.8 kilograms of cocaine base.  However, the district court found that the quantity was well beyond 10 kilograms.  Defendant argues that the appeals court cannot defer to the findings of fact by the district court at his original sentencing hearing.  However, as long as the district court is not inconsistent with any finding it made in the original sentence then the court is allowed use that finding to calculate a new guidelines range.

United States v. Haynes, No. 12-12689 (11th Cir. August 22, 2014) 764 F.3d 1304

Defendant was sentenced as a career offender under the advisory United States Sentencing Guidelines based on qualifying prior convictions—resisting arrest with violence, carried a concealed firearm, and possession with intent to distribute cocaine base.  Defendant failed to object to the career-offender enhancement at sentencing. Defendant was ultimately convicted and sentenced to 322 months of imprisonment.  During his resentencing hearing, Defendant asserted an objection that he was erroneously sentenced as a career offender.  On appeal, Defendant argues that his sentence exceeded the statutory maximum because he was not an armed career criminal.

Held: Court refused to consider Defendant’s sentence as a career offender.  The court reviews any alleged error for plain error when a defendant raises a sentencing argument for the first time on appeal.  That standard requires an error that is plain, which affects substantial rights, and seriously affects the fairness, integrity, or public reputation of judicial proceedings.  However, a court is precluded from invoking plain-error review to reverse an error when a defendant invites an error.  Furthermore, during Defendant’s resentencing, he stated that “obviously” the resentencing court would not touch the issue of determining his sentence as a career offender.

United States v. Kirk, No. 13-150103 (11th Cir. September 16, 2014) 2014 WL 4548743

Defendant was convicted as a felon in possession of a firearm and received a fifteen-year sentence.  Defendant appealed contending that the district court erred in applying the fifteen-year mandatory minimum sentence under the Armed Career Criminal Act (“ACCA”) because (1) his prior burglary offenses do not qualify as “violent felonies” and (2) the government failed to show that the burglaries were committed on occasions different from one another.

Held: Defendant is subject to the fifteen-year mandatory minimum sentence since his prior convictions are violent felonies and the burglaries occurred on separate occasions.

First, Defendant argues that his prior burglary offenses do not qualify as violent felonies under the ACCA. When a defendant has three previous convictions for violent felonies committed on different occasions from one another, he is considered an armed career criminal.  A violent felony is any crime, including burglary, punishable by imprisonment for a term exceeding one year.  Defendant argues that the language of the burglary offense that he was convicted of is unclear since his conviction was based on his “entering” or “remaining in” a dwelling.  The court found that a conviction of either element gave rise to the risks of physical injury associated with burglary, and therefore it falls under the violent felony language of the ACCA.

Second, Defendant argues that the government did not prove that his prior convictions were committed on occasions different from one another, as required by the ACCA.  This requirement means that the prior convictions must result in crimes that are “temporally distinct” and arise out of “separate and distinct criminal episodes.”  The government showed that Defendant pled guilty to burglarizing seven different dwellings, located at seven different addresses.  This satisfied the requirement that the convictions occur at separate and distinct time periods.

Malu vs. U.S. Attorney General, No. 13-10409 (11th Cir. August 19, 2014) 764 F.3d 1282

Petitioner was born in the Democratic Republic of Congo.  Before fleeing to the United States, she suffered several extreme hardships, including being sold to her uncle and subsequently being raped by him.  At the age of 12, she had already experienced several miscarriages. She finally escaped the Congo in 2000 and ultimately settled in Georgia.  While in the U.S., she committed two crimes in violation of Georgia law including a conviction for simple battery.  The Department of Homeland Security (“DHS”) classified this conviction as an aggravated felony and initiated expedited removal proceedings.  Petitioner was served with a notice of intent to issue a removal order and responded to the notice by checking a box requesting withholding of removal because she feared persecution.  However, she failed to contest the classification of her crime as an aggravated felony.

Both the Immigration Court and Board of Immigration Appeals (“BIA”) dismissed her application.  On appeal, Petitioner argues that DHS incorrectly classified her conviction for battery as an aggravated felony.

Held: The Board committed no error since Petitioner failed to exhaust her argument that she did not commit an aggravated felony.  Under the statute that governs the petition—the REAL ID Act—Petitioner was required to exhaust all administrative remedies available to her as a right.  Petitioner failed to do so.  Petitioner could have contested her charge as an aggravated felony but she failed to raise the issue. The REAL ID Act is clear in that a court may review a final order of removal only if the alien has exhausted all administrative remedies.  Petitioner failed to respond to her aggravated felony charge and also failed to submit documents rebutting the decision of DHS to remove her.

Erick Marroquin is a recent law graduate from Touro Law School located in Long Island, New York.  Mr. Marroquin is the Founding Director of Touro’s Iraqi Refugee Assistance Project (IRAP) Chapter, and is currently an Associate at the Law Offices of Eric Horn, practicing immigration law.  


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