Change of Law in the Eleventh Circuit: Supreme Court Holds That a Sentencing Court May Order Restitution Even After Missing 90-Day Deadline

June 28, 2010 by Kish & Lietz

Earlier this month, the Supreme Court announced its decision in Dolan v. United States, resolving a circuit court split. This decision abrogates U.S. v. Maung, a 2001 Eleventh Circuit case that held that a federal court imposing a criminal sentence lacks the authority to enter a restitution order after the 90-day deadline has expired. The Supreme Court held that, at least where the sentencing court clearly advised before the deadline that it would order restitution, that court may order the specific amount after the deadline has expired.

The majority opinion by Justice Breyer is available here, along with a dissenting opinion by Chief Justice Roberts, joined by Justices Stevens, Scalia, and Kennedy.

DOJ Implements New Federal Mortgage Fraud Initiative; Prosecutors Here in Atlanta Announce Commitment to be “Key Participants” in Program

June 25, 2010 by Kish & Lietz

Last week, the Department of Justice announced a new nationwide mortgage fraud initiative named “Operation Stolen Dreams.” Sally Quillian Yates, U.S. Attorney for the Northern District of Georgia here in Atlanta, issued an immediate press release to show local federal law enforcement’s commitment to investigating and prosecuting mortgage fraud.

So far, the U.S. Attorney’s Office in this district has brought the following types of criminal charges in mortgage fraud cases:

In relation to the collapse of banks:
· Bank fraud
· Bribery (paying and receiving)
· Securities fraud
· Structuring of Cash Deposits
· False statements
· Payment of kickbacks
· False entries in bank books, records, and statements
· Aggravated identity theft
· Bankruptcy fraud
· Conspiracy

In relation to purchase money “reverse mortgage” fraud and alteration of Multiple Listing Service (MLS) records:

· Bank fraud
· Aggravated identity theft
· Conspiracy

In relation to other recent mortgage fraud prosecutions:

· Bank fraud
· Check fraud
· Mail fraud
· Bankruptcy fraud
· Conspiracy

As you can see, a multitude of fraud charges are possible under the broad heading of “mortgage fraud.” We will continue to follow this renewed focus on such cases here in the Northern District of Georgia.

The press release is available here.

Breaking News: Supreme Court Limits Honest Services Fraud to Bribery and Kickback Schemes; Holds Skilling Was Not Denied Fair Trial

June 24, 2010 by Kish & Lietz

This morning, the United States Supreme Court issued its opinions in three honest services fraud cases: Skilling, Black, and Weyhrauch. We have previously discussed these cases here (discussion of cases and background of honest services fraud,) here (Skilling,) here (Black), and here (Weyhrauch.) In Skilling, the Court limited the federal criminal honest services fraud statute to only bribery and kickback schemes. Based upon that opinion, the Court reversed in Black and Weyhruach. The Court also held that Jeffrey Skilling of Enron fame was not denied a fair trial due to publicity and community prejudice.

We will provide analysis of these opinions next week. In the meantime, the opinion in Skilling is available here; the opinion in Black is available here; and the single-sentence per curium opinion in Weyhrauch is available here.

Gilbert: Eleventh Circuit Corrects “Complete Miscarriage of Justice” in Federal Criminal Sentencing Under Career Offender Enhancement

June 23, 2010 by Kish & Lietz

This Monday, the Eleventh Circuit held in Gilbert v. United States that, for federal sentencing purposes, the act of being a U.S.S.G. § 4B1.1 career offender is essentially a separate offense. Based upon the Supreme Court’s retroactive decision in Begay and the Eleventh Circuit’s implementation of that decision in Archer, Gilbert is actually innocent of committing two violent felonies, the basis for that offense. Because circuit law squarely foreclosed his claim when he raised it at sentencing, on appeal, and in his first 28 U.S.C. § 2255 motion, Gilbert was entitled to relief under 28 U.S.C. § 2241. He may now be eligible for immediate release.

The Original Sentence and Appeals
In 1997, Gilbert was convicted of a crack cocaine offense and sentenced as a career offender under § 4B1.1 based upon previous convictions for possessing crack with intent to sell and carrying a concealed firearm. Under the then-mandatory Sentencing Guidelines, the enhancement increased his Guidelines range from 151-188 months to 292-365 months. Gilbert argued that carrying a concealed firearm was not a crime of violence, but the district court judge disagreed and, stating that he thought the sentence was too high, reluctantly sentenced Gilbert to 292 months. On appeal, the Eleventh Circuit held that carrying a concealed firearm was a crime of violence for purposes of the career offender guideline. Gilbert’s pro se § 2255 motion was denied in 1999, all post-conviction options now exhausted.

Legal Developments in 2008
In 2008, the Supreme Court decided Begay v. United States, holding that under the Armed Career Criminal Act (ACCA) the term “violent felony” applies only to crimes that are similar in kind and degree of risk to those expressly listed in the statute. That same year, the Eleventh Circuit applied the Begay analysis in United States v. Archer, abrogating its holding in the 1998 Gilbert decision. The Court held that “the crime of carrying a concealed firearm may no longer be considered a crime of violence under the Sentencing Guidelines.” Also in 2008, Amendment 706 provided a two-level reduction in base offense levels for crack cocaine offenses and was made retroactive.

In response to these developments, the district court sua sponte ordered the parties in Gilbert’s case to file responses regarding eligibility for a sentence reduction. The government argued that Gilbert was not entitled to any relief under Begay and Archer because a second § 2255 motion is permissible only where new evidence is discovered or the Supreme Court makes a previously unavailable constitutional law retroactive. The government also insisted that Amendment 706 could not apply because Gilbert was sentenced under the career offender guideline. The district court reluctantly agreed.

The Issue Before the Eleventh Circuit
Gilbert filed a motion to reopen his original § 2255 motion, suggesting that the court could treat it as a motion for relief under § 2241, which provides relief when a petitioner can prove actual innocence of the crime for which he was convicted. The district court denied his motion, but granted a certificate of appealability. The Eleventh Circuit held that the “savings clause” of § 2255 permitted relief under § 2241 under the authority of Wofford v. Scott and the doctrine of “actual innocence.”

The “savings clause” of § 2255 permits traditional habeas corpus relief under § 2241 where a § 2255 motion is inadequate or ineffective to test the legality of detention. In Wofford, the Eleventh Circuit held that the savings clause applies in the rare case when (1) the claim is based upon a retroactively applicable Supreme Court decision; (2) the holding of that decision establishes that the petitioner was convicted for a nonexistent offense; and (3) circuit law foreclosed the claim when it should have been raised.

The government argued that Gilbert failed to meet the second requirement: that he was convicted for a nonexistent offense because the career offender guideline was not a separate offense. The Court disagreed, applying the Supreme Court’s analysis in Sawyer v. Whitley that a sentencing enhancement based upon proof of statutory aggravating factors establishes a separate offense and raises the possibility that a defendant might be actually innocent of that offense. The Court extended Sawyer to the career offender context, commenting that, “To accept the government’s position that the law provides Gilbert no remedy for the clear wrong that has been done to him is to elevate form so far over substance as to make unrecognizable the concept of fair play and due process.”

Gilbert has served 171 months of his sentence. The maximum sentence he could have received for his underlying conviction was 188 months. He is likely entitled to an amended Guideline range of 130-162 months under Amendment 706, so “he is, in a very real sense, presently serving his illegal enhancement.” The Court vacated Gilbert’s sentences and remanded for resentencing. In addition, the Court issued a separate order to expedite issuance of the mandate.

The recent Eleventh Circuit opinion in Gilbert v. United States is available here.
The Supreme Court's opinion in Begay is available here.
The Eleventh Circuit's opinion in Archer is available here.

We have discussed cases applying the Begay analysis at the following posts:
Chambers (Supreme Court: failure to report to a penal institution is not violent felony)
Lee (Eleventh Circuit: walkaway escape is not violent felony)
Harris (Eleventh Circuit: fleeing from police at high speed is violent felony)
Hunter (Eleventh Circuit: possession of firearm is not violent felony under Archer, but providing no relief from illegal sentence)

Holland: Supreme Court Reverses Eleventh Circuit, Holding That Its Standard for Equitable Tolling of the Federal Habeas Corpus Statute’s Timeliness Provision is Too Rigid

June 21, 2010 by Kish & Lietz

Last Monday, the Supreme Court of the United States reversed the Eleventh Circuit’s decision in Holland v. Florida. The Court held, as have all Courts of Appeal, that the AEDPA’s statute of limitations in habeas corpus cases is subject to equitable tolling. The Court further held that the Eleventh Circuit’s per se rule regarding when such equitable tolling applies is “too rigid.” The Court reversed and remanded without explaining a precise standard for when equitable tolling should apply.

In determining that equitable tolling is available, the Court reasoned that the AEDPA’s statute of limitations is nonjurisdictional and such statutes of limitations are normally subject to a rebuttable presumption in favor of equitable tolling. In addition, equitable principles have traditionally governed the law regarding habeas corpus. The Court distinguished cases in which nonjurisdictional statutes of limitations were interpreted as not subject to equitable tolling.

The Court then explained that, for equitable tolling to be available, a petitioner must show diligence in pursuing his rights and some extraordinary circumstance that prevented timely filing. Emphasizing that equity requires decisions on a case-by-case basis, flexibility, and avoidance of mechanical rules, the Court pointed out that equity’s intent is relief from hardships resulting from “evils of archaic rigidity.”

The Court viewed the Eleventh Circuit’s per se rule as “difficult to reconcile with more general equitable principles.” The Eleventh Circuit had held that an attorney’s unprofessional conduct, even if grossly negligent, could not justify equitable tolling without bad faith, dishonesty, divided loyalty, mental impairment, or the like.

The Court admitted that a “garden variety claim of excusable neglect does not warrant equitable tolling,” but stated this case involved more serious instances of attorney misconduct, that may well qualify as extraordinary circumstances. The Court remanded to the Eleventh Circuit on this question. The Court also commented that Holland had been reasonably diligent in pursuing his rights, although that issue was not part of the question presented.

The opinion in Holland v. Florida is available here. Justice Alito issued a concurring opinion, in which he further analyzed the appropriate standard for when equitable tolling should be available. Justice Scalia issued a dissent. In Part I he explained that equitable tolling should not be available at all, then the rest of his dissent explained why Holland should not receive relief, even if equitable tolling did apply. Justice Thomas joined his dissent, except as to Part I. The concurring and dissenting opinions are also available at the link above.

Eleventh Circuit Reverses Judge Martin’s District Court Decision that a 30-Year Mandatory Minimum Sentence was Cruel and Unusual Punishment

June 8, 2010 by Kish & Lietz

Last week, a panel of the Eleventh Circuit Court of Appeals, which sits here in Atlanta, Georgia, reversed a decision by the newest member of their Court, Judge Beverly Martin. Prior to her appointment to the Eleventh Circuit, Judge Martin was a district court judge here in the Northern District of Georgia. As a member of that court, in U.S. v. Farley, she decided that a 30-year mandatory minimum sentence for a man who crossed state lines with the intent to have sex with a child under twelve was cruel and unusual punishment where the “child” did not exist and the defendant had no criminal history and was unlikely to re-offend.

The Eleventh Circuit held that such a sentence “does not surpass constitutional bounds” under Harmelin v. Michigan, a Supreme Court case that was never brought to Judge Martin’s attention in the lower court. In reversing the District Court decision that Farley’s mandatory sentence would be grossly disproportionate to his crime, the Eleventh Circuit analyzed Harmelin in detail. The Court emphasized that, under Harmelin, “outside the context of capital punishment, successful challenges to the proportionality of particular sentences are exceedingly rare” and noted that the Eleventh Circuit “has never found a term of imprisonment to violate the Eighth Amendment.” Harmelin also held that the mandatory nature of a penalty is not an Eighth Amendment issue.

The Eleventh Circuit stressed the gravity of crimes involving sexual abuse of children. Incredibly, the Court compared the fiction of the child’s existence to the seizure of drugs by police: according to the Court, in both cases, the defendant is unable to inflict harm through no fault of his own.

For more information on the details of this case, Judge Martin’s decision below, and the Eleventh Circuit opinion, this Daily Report article discusses the case at length.

The Eleventh Circuit’s 112-page opinion in U.S. v. Farley is available here. We should caution that the opinion contains a fair amount of graphic detail.

Barber v. Thomas: Supreme Court Holds That Bureau of Prisons Has Been Correctly Calculating Good Time Credits on Federal Criminal Sentences

June 7, 2010 by Kish & Lietz

This morning, the United States Supreme Court issued its opinion in Barber v. Thomas. In a 6-3 decision, the Court held that the calculation method used by the Bureau of Prisons (BOP) to determine the amount of “good time” earned on federal criminal sentences is lawful. The Court rejected two other methods for calculating good time, one proposed by federal prisoners and one suggested by the dissenting justices. As a result of this holding, the taxpayers will be forced to continue paying for prisoners longer than Congress may have wanted.

This case involved the interpretation of 18 U.S.C. § 3624(b)(1), which states:

[A] prisoner who is serving a term of imprisonment of more than 1 year other than a term of imprisonment for the duration of the prisoner’s life, may receive credit toward the service of the prisoner’s sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner’s term of imprisonment, beginning at the end of the first year of the term, subject to determination by the Bureau of Prisons that, during that year, the prisoner has displayed exemplary compliance with institutional disciplinary regulations. … [C]redit for the last year or portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence.

Two federal prisoners argued that the BOP has been interpreting the good time provision incorrectly, resulting in prisoners serving longer sentences than intended by Congress. The Court, using an example 10-year sentence with maximum good time credits earned, evaluated three distinct methods of calculating good time: the method currently used by the BOP, the method proposed by the prisoner petitioners, and a third method supported by the dissent.

The BOP’s method, which the Court upheld, interprets “term of imprisonment” in the statute to mean “entire imposed sentence” in some places, but “time actually served” when calculating good time. The BOP sets earned time aside at the end of each 365-day period. When the time remaining in a sentence minus earned time equals less than one year, the BOP applies a 54/365 ratio to prorate that last year and determine the prisoner’s release date. In the Court’s 10-year example, the prisoner receives 470 days of good time credit under this method.

The petitioners’ method is the most simple, interpreting “term of imprisonment” as “entire imposed sentence” throughout the statute. The petitioners would have BOP add 54 days of good time credit for each year in the imposed sentence. For a sentence of 10 years, the prisoner would receive 540 days of good time credit. Both the majority and dissenting justices rejected this method as irreconcilable with the statute.

The dissent’s method interprets “term of imprisonment” consistently as “the span of time that a prisoner must account for to obtain release.” This method would count each year’s good time credit toward the next year, so some “years” of a prisoner’s term may be completed in less than 365 days. In the 10-year example, this approach gives a prisoner a maximum of 533 days of good time credit.

Although the dissent’s approach is the most consistent use of the statutory text, makes the most logical sense, and would save taxpayers “untold millions of dollars,” the majority “conclude[d] that the Bureau’s method reflects the most natural reading of the statute.”

Justice Breyer delivered the opinion and Justice Kennedy issued the dissenting opinion, joined by Justices Stevens and Ginsburg. The opinion and dissent in Barber v. Thomas are available here.

New Holder Memo: Emphasizing “Individualized Assessment” in Federal Criminal Prosecutions

June 2, 2010 by Kish & Lietz

Last month Attorney General Eric Holder issued a memorandum to all federal prosecutors regarding Department of Justice policy on charging and sentencing. This memo supersedes prior memoranda on this subject issued between 2003 and 2005 by former A.G. John Ashcroft and former Deputy A.G. James Comey. The new memo encourages greater fairness in prosecution than Bush-era policies by repeatedly calling for “individualized assessment” of cases in charging, plea-bargaining, and sentencing.

The following excerpt provides an overview of the content of the memo:

[E]qual justice depends on individualized justice, and smart law enforcement demands it. Accordingly, decisions regarding charging, plea agreements, and advocacy at sentencing must be made on the merits of each case, taking into account an individualized assessment of the defendant’s conduct and criminal history and the circumstances related to the commission of the offense (including the impact of the crime on victims), the needs of the communities we serve, and federal resources and priorities. Prosecutors must always be mindful of our duty to ensure that these decisions are made without unwarranted consideration of such factors as race, gender, ethnicity, or sexual orientation.

The entire memo is available here.

Berghuis v. Thompkins: U.S. Supreme Court Holds That One Must Speak to Invoke the Right to Remain Silent

June 2, 2010 by Kish & Lietz

The United States Supreme Court decided two important federal criminal cases yesterday. We discussed the reasonable opinion in U.S. v. Carr, a SORNA case, in this post yesterday. We must now address the disappointing decision in Berghuis v. Thompkins, which we briefly explained in this post last October.

The Court divided along traditional ideological lines, with Justice Kennedy issuing the majority opinion joined by the conservative bloc and Justice Sotomayor writing a lengthy dissent for the liberal justices. The majority held, counter-intuitively, that a person must make an unambiguous statement to invoke his right to remain silent.

In this case, Mr. Thompkins was in custody, awaiting transfer to another state. He was seated in a hard, straight-backed chair in a small room. With the exception of declining a peppermint and commenting on his chair’s discomfort, he remained silent for nearly three hours of interrogation, until asked whether he believed in God. He said, “Yes.” and began to cry. When asked if he prayed, he again said, “Yes.” He was then asked if he prayed to God for forgiveness “for shooting that boy down.” Again, he said, “Yes,” and looked away. He refused to sign a Miranda waiver form or make a written statement.

The Court analogized the issue to the Miranda right to counsel, which must be invoked unambiguously and unequivocally. The majority opinion noted a desire to avoid difficulties of proof and provide guidance to officers. In addition, the Court held that Thompkins waived his right to remain silent because he chose to speak and there was no basis to conclude that he did not understand his rights. Police are not required to rewarn suspects and, the Court held, nearly three hours of interrogatory monologue in a straight-backed chair did not amount to coercion.

Both the majority opinion and dissent in Berghuis v. Thompkins are available here.

SCOTUSblog rounded up comments from and links to articles regarding the controversial opinion in this post this morning.

Lall: Eleventh Circuit Court of Appeals Holds Confession Involuntary In Federal Criminal Case in Which State Police Had Told Defendant He Wouldn’t Be Charged

June 2, 2010 by Kish & Lietz

Last Friday, the Eleventh Circuit, which hears federal appeals here in Atlanta, Georgia, reversed Lance Lall’s conviction for credit card fraud related offenses. Although Lall was Mirandized and arguably not in custody, the Court held that his confessions were not voluntarily given, in violation of the Due Process Clause. The investigating officer had told Lall that he would not pursue charges against him.

The case began with an armed robbery at the home of twenty-year-old Lall, his parents, and his siblings. The robbers said they were searching for money and equipment owned by Lance Lall. The detectives interrogated Lall in his bedroom, telling him and his family that information he shared would not be used to prosecute him. Lall showed the detectives the equipment he used to commit identity theft and explained how each device worked. Within hours, a detective alerted the Secret Service to the evidence. Several days later, the detective called Lall in to the police station, telling him he would not need a lawyer and that he would not charge him with this. Lall was ultimately arrested by the Secret Service and tried in federal court.

The Court first analyzed the statement given in Lall’s bedroom. The Court held that the detective’s statement that he would not pursue charges was misleading and undermined the Miranda warnings he initially gave, but did not resolve the issue of whether Lall was in custody for that statement. Instead, the Court analyzed the case using the Due Process Clause, holding that the totality of the circumstances demonstrated that Lall’s statements were involuntarily given. Factual misrepresentations are not enough to render a confession involuntary. However, the deceptive promises made by the detectives here were so egregious as to make the subsequent statements involuntary. In addition, “[i]t is inconceivable that Lall, an uncounseled twenty-year-old, understood at the time that a promise by [the state police detective] that he was not going to pursue any charges did not preclude the use of the confession in a federal prosecution.”

The Court held that the same analysis applied to the second statement given by Lall at the police station, with discussion regarding whether that issue had been properly preserved for review. The Court also held that the physical evidence derived from the statements in Lall’s bedroom should have been suppressed. Although the items were in plain view, the detective admitted that he did not know what the credit card fraud equipment was without Lall’s explanation.

The Eleventh Circuit’s opinion in U.S. v. Lall is available here.

Carr: Federal Supreme Court Holds That Liability under 18 U.S.C. § 2250 Cannot Be Predicated on Pre-SORNA Travel

June 1, 2010 by Kish & Lietz

This morning the United States Supreme Court held that 18 U.S.C. § 2250, a part of of the Sex Offender Registration and Notification Act (SORNA), does not apply to sex offenders whose interstate travel occurred prior to SORNA’s effective date in July 2006. This case resolves a circuit court split in which the Eleventh Circuit, which hears appeals from federal cases in Georgia, Florida, and Alabama, took the opposite view.

In an opinion by Justice Sotomayor, the Court explained that the three elements of Section 2250 (requirement to register, interstate travel, and failure to register) “must be satisfied in sequence.” The interpretation that the statute does not impose liability unless a person travels and fails to register after becoming subject to SORNA’s requirements accords with the text of the statute, which sets forth the travel requirement in the present tense. The Court also noted that Section 2250 is just one of several provisions of SORNA and that SORNA’s overall structure also indicates that Section 2250 should be limited to its specific purpose, rather than expanded to tackle all of SORNA’s broader intent.

The Court noted that because Section 2250 liability could not be predicated on pre-SORNA travel, the Court needed not address whether the statute violated the Ex Post Facto Clause.

The Court’s opinion, as well as a concurring opinion by Justice Scalia and a dissent by Justice Alito and joined by Justices Thomas and Ginsburg, is available here.