Circuit Court Opinions

The Federal Docket

United States v. Cozad (10th Cir. January 2022)

The Tenth Circuit vacated a defendant’s sentence and remanded for re-sentencing after the district court imposed a higher sentence based on the defendant’s decision to plead guilty without a plea agreement with the Government. The Court concluded that a defendant’s decision whether to enter an “open plea” does not fall under one of the factors listed in 18 USC 3553, and it was therefore procedurally unreasonable for the judge to consider that fact in imposing a higher sentence.

United States v. Brandon Fleury (11th Cir. December 2021)

The Eleventh Circuit affirmed the defendant’s convictions for transmitting interstate threats under 18 USC 875(c) and cyberstalking under 18 USC 2261A(2)(B) after the defendant had created various social media accounts with aliases such as Ted Bundy and Nikolas Cruz (the school shooter from Parkland, Florida) and sent harassing and threatening messages to members of the victims’ families. The Court rejected the defendant’s First Amendment challenges, holding the cyberstalking statute was not overbroad since the elements were generally aimed at unprotected conduct with criminal intent and the statute was not unconstitutional as applied since the defendant’s speech included “true threats.”

United States v. Freeman (2nd Cir. November 2021)

The Second Circuit affirmed a district court’s order denying the defendant’s motion to withdraw his plea. The defendant had argued that the district court misstated the applicable mandatory minimum term of supervised release. The Second Circuit affirmed but noted the parties had incorrectly stated that the defendant bore the burden of persuasion to show the Rule 11 error had affected his substantial rights. Rather, it was the Government’s burden to show such an error was harmless.

United States v. Nasir (3rd Cir. November 2021)

After bouncing between the Third Circuit and the Supreme Court, including after an en banc decision, the Third Circuit affirmed the defendant’s conviction but remanded for resentencing, reaffirming its holding that the defendant was not a career offender based on his prior state law convictions, since “the plain language of the guidelines does not include inchoate “attempt” drug crimes like the one that was used as one of Nasir’s predicate offenses.”

Flores-Rivera v. United States (1st Cir. October 2021)

The First Circuit reversed a district court’s order denying defendant’s motion to vacate sentence and conviction under 28 USC 2255. The defendant’s appellate attorney had been ineffective for failure to raise a Brady claim, raised by all of her co-defendants on appeal, based on the government’s failure to disclose material that would have undermined the government witnesses’ credibility. The First Circuit held that “any reasonable attorney would have known of the availability of the Brady claim since the co-defendants all raised it and since trial counsel had preserved the issue by raising it in his motion for new trial.”

United States v. Sincleair (5th Cir. October 2021)

The Fifth Circuit vacated a defendant’s sentence and remanded for resentencing based on the district court’s erroneous application of the firearm enhancement under USSG 2D1.1(b)(1). The PSR did not include sufficient facts to establish a temporal and spatial relationship between the defendant, the gun, and the drug trafficking activity. The defendant was not shown to have any connection to or knowledge of the gun, and the district court failed to make a record of what its rationale may have been supporting the enhancement.

Wilber v. Hepp (7th Cir. October 2021)

The Seventh Circuit affirmed the district court’s order vacating the defendant’s conviction after the defendant argued that his due process rights were violated when he was visibly shackled and restrained in a wheelchair with a stun bracelet on his arm during his state trial. The Court held that, even if the restraints were necessary, there was no finding on the record that it was necessary for them to be visible, especially since the defendant’s alleged misconduct mostly took place outside the courtroom and involved “disrespectful” words and gestures outside the presence of the jury. The error was not harmless.

SCOTUS Denies Certiorari, Leaves Circuit Split Intact Regarding Standard for Compassionate Release

Earlier this week, SCOTUS denied certiorari in Bryant v. U.S. In Bryant, the Eleventh Circuit created a circuit split by holding district courts considering motions for compassionate release or sentence reductions are bound by the narrow criteria under USSG 1B1.13. As a result of the Supreme Court’s decision, inmates will continue facing dramatically different, and more difficult, standards based on where they were convicted.

United States v. McClain (7th Cir. October 2021)

The Seventh Circuit reversed a trial court’s order under Rule 36 of the Federal Rules of Criminal Procedure, which had directed an inmate to return to prison after he had finished his sentence in a separate case. While the court had initially sentenced the defendant in two cases, and had ordered that he serve 18 months after finishing his first sentence, the court was inconsistent in its oral pronouncement and its written judgment. Errors by the court itself are not “clerical errors” under Rule 36, so Rule 36 was not applicable.

United States v. Wilks (7th Cir. October 2021)

The Seventh Circuit reversed a trial court’s bond revocation. The Court held, for the first time, that the standard of review for a revocation decision is an independent review with due deference to a trial court’s findings of fact. The Court held that the trial court here failed to make explicit findings by clear and convincing evidence or sufficiently state why detention was necessary under the circumstances.

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