Circuit Court Opinions

In a 2-1 opinion, the Seventh Circuit reversed the denial of Roderick Lewis’s 2254 motion and remanded his case for re-sentencing. The Court held that the defendant received ineffective assistance of counsel when his lawyer at sentencing only said he was “going to defer to Mr. Lewis if he has any comments. I don’t have anything to add.” The Court further held that this was one of those rare instances where prejudice is presumed pursuant to SCOTUS’s decision in U.S. v. Cronic, since trial counsel’s silence at sentencing “went beyond a failure to conduct adversarial testing; it was an announcement of abandonment.”

The First Circuit vacated a defendant’s sentence which had been enhanced based on a 2014 conviction under state law for distributing marijuana, which the sentencing court held was a “controlled substance offense” under the Guidelines. The First Circuit held that convictions under state laws that do not distinguish between marijuana and hemp, as defined and legalized under federal law, cannot serve as “controlled substance offenses” under the Guidelines.

The Eleventh Circuit and Ninth Circuit created a circuit split concerning the proper interpretation of the safety valve under 18 USC 3553(f), particularly as it was amended by the First Step Act. The courts disagreed over the proper interpretation of the word “and” in the list of requirements a defendant must meet for their criminal history to allow them to qualify for the safety valve. The Ninth Circuit’s interpretation would allow far more defendants qualify.

The Eleventh Circuit became the first, and so far the only, circuit court to hold that district courts considering sentence reductions motions under 3582(c)(1)(A) are bound by the criteria under USSG 1B1.13. To date, seven other circuits have held that district courts have discretion to determine if an inmate has presented extraordinary and compelling reasons warranting a reduction. District courts in the Eleventh Circuit now have much less discretion to reduce an inmate’s sentence.

The Sixth Circuit held that the disparity between a defendant’s actual sentence and the sentence that he or she would have received if the First Step Act’s amendments applied can, along with other factors, constitute extraordinary and compelling reasons warranting a sentence reduction.

The Eleventh Circuit affirmed the denial of a defendant’s motion under 2255. The trial court in the defendant’s case had erroneously instructed the jury that the defendant’s charge for Hobbs Act conspiracy could be a predicate offense for finding the defendant guilty of conspiracy to possess a firearm in furtherance of a crime of violence under 924(o). However, the defendant had procedurally defaulted on this claim by not bringing it up in front of the trial court or on direct appeal, and he could not show prejudice or actual innocence because the jury found him guilty of other predicate offenses that were “inextricable intertwined” with the Hobbs Act conspiracy count.

The Eleventh Circuit affirmed a defendant’s convictions for armed robbery of five businesses. Among its holdings, the Court held that the trial court did not abuse its discretion in denying a motion to continue, it did not err in declining to excuse a juror for cause who was a probation officer, admission of geo-location data that was gathered as fruit of an unlawful search was harmless, an agent’s testimony regarding out-of-court statements was not hearsay since it was helpful to describe investigative tactics, and there was sufficient evidence to convict the defendant based on a modus operandi and pattern reflected in each of the five robberies.

The Sixth Circuit affirmed a defendant’s sentence which was enhanced based on a prior felony conviction under Tennessee law involving marijuana. The Court held that the sentencing court erred in enhancing the defendant’s sentence based on that conviction because the Tennessee law at issue included hemp under the definition of marijuana, while hemp was distinguishable and legal under federal law. Therefore, the Tennessee conviction was not a “controlled substance offense” under the Guidelines. However, since the defendant had only objected generally at sentencing and did not articulate grounds for his objection, plain error review applied, and the sentencing court’s error here were not clear or obvious given the complexity of the issue.

The Ninth Circuit reversed the district court’s dismissal of an indictment charging the defendants with violating the Anti-Riot Act. The Court held that the provisions of the Anti-Riot prohibiting an “overt act” in furtherance of inciting a riot were not overbroad since it satisfied the imminence requirement under Brandenburg. While the Court held that the provisions of the Act prohibiting the “urging,” “organizing,” “promoting,” encouraging,” and “advocating” a riot were overbroad, the language prohibiting the “instigating” of a riot was not, and regardless, the Act was severable.

The Fourth Circuit vacated a drug defendant’s sentence for two reasons. First, it held that, despite there having been no hearing where sentencing counsel testified, the record was sufficient to establish that defendant received ineffective assistance when her counsel waived meritorious objections to the guidelines that would have resulted in a lower range and where he put his efforts into getting her in a drug program despite not knowing the program’s requirements for admission. The Court also held that the defendant’s 17-year sentence was substantively unreasonable where the sentencing court failed to consider her severe opioid addiction and that her sentence was significantly longer than those of similarly-situated defendants across the country.