Circuit Court Opinions

The Fourth Circuit reversed a district court’s denial of defendant’s suppression motion. The officers had conducted a stop and frisk of the defendant at a store, and found drugs, after receiving information from an informant, witnessing the defendant during two suspected drug interactions, and seeing the defendant meet another person outside the store and engage in two handshakes, which the officers believed was a hand-to-hand drug deal despite not seeing drugs or money change hands. The Court held this was not enough to establish reasonable suspicion because the information from the informant was generalized, there was little testimony regarding the informant’s reliability, the officers had not seen any drugs or found any drugs relating to the two interactions they previously witnessed the defendant in, and the two handshakes were not suspicious where the defendant was outside a store in broad daylight and otherwise not acting suspiciously. The Court warned that “the Fourth Amendment does not allow the Government to label a person as a drug dealer and then view all of their actions through that lens.”

The Fifth, Ninth, and Tenth Circuits have issued opinions over the past few weeks holding that district courts have broad, independent discretion in determining whether an inmate has established “extraordinary and compelling reasons” warranting a sentence reduction under 18 USC 3582(c)(1)(A). The courts join the Second, Fourth, Sixth, and Seventh Circuits in recognizing the broad discretion of district courts, creating a substantial majority of the circuits. The other circuits have not yet addressed this issue.

The Ninth Circuit reversed a defendant’s conviction under the Clean Water Act based on the trial court’s failure to instruct the jury that the defendant had to have knowledge that he was discharging pollutants “into water.” The error was not harmless because it was unclear whether the defendant knew that the area in question was inundated with water when he discharged the pollutants. The Court also held that waters being “of the United States” is a jurisdictional element, that “waters of the United States” is not unconstitutionally vague, and that revised regulatory definitions of the phrase are not retroactive unless explicitly made so.

The Ninth Circuit affirmed a defendant’s sentence after the defendant challenged the district court’s application of an enhancement based on the defendant’s prior conviction under 924(c), which the sentencing court considered a “controlled substance offense” warranting an enhancement. The Court held that a sentencing court may apply the modified categorical approach to determine whether a defendant’s underlying “drug trafficking crime” under 924(c) was a “controlled substance offense” under 4B1.2.

The Seventh Circuit reversed a district court’s revocation of the defendant’s supervised release and 6-month sentence. Reviewing the district court’s decision under the Court’s “supervisory power,” the Court held that the district court did not adequately address the defendant’s explanation for his non-criminal, unintentional violations, and it did not properly explain its sentencing decision in accordance with the 3553(a) factors.

The Eleventh Circuit affirmed a doctor-defendant’s conviction for healthcare fraud and dispensing controlled substances unlawfully. The Court held that there was sufficient evidence tying him to the conspiracy based in part on his allowing a medically non-trained co-conspirator to mandate testing requirements, and the Court also found sufficient evidence of unlawful dispensation based on the government expert’s testimony. The Court also held that the district court did not err in using the intended loss amount at sentencing, despite using the lower actual loss amount for the defendant’s co-conspirators, since there was no “unwarranted” disparity given that the co-conspirators had been sentenced according to a plea agreement, and the defendant had not.

The Eleventh Circuit affirmed a defendant’s conviction under 18 USC 1546(a) for using a fraudulent order of supervision from ICE to get a Florida driver’s license. The Court held that the order of supervision was an “other document” under 1546(a) and that the government’s arguments during closing, while misleading, did not constitute plain error.

Ruling on a matter of first impression, the Eleventh Circuit held that an order of supervision from ICE can constitute a document “prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States” under 18 USC 1546(a). The defendant had attempted to use a fraudulent order of supervision to get a driver’s license from Florida.

The Seventh Circuit remanded a defendant’s 2255 motion for an evidentiary hearing, holding that the defendant had made a sufficient showing that he may have received ineffective assistance of counsel based on his lawyer’s failure to argue that his Hobbs Act robbery was not a crime of violence under the career offender provision of the sentencing guidelines. While the Seventh Circuit had not yet decided whether Hobbs Act robbery was a crime of violence at the time of the defendant’s sentencing, other circuits had, the categorical approach under the Guidelines was well-known, and this was enough to warrant at least a hearing to determine whether the defendant’s counsel failed to reasonably investigate the issue before the defendant’s sentencing.

The Eleventh Circuit reversed the convictions of four defendant-corrections officers who helped a government informant transport narcotics while wearing their corrections uniforms to deter police officers from pulling them over. The Court held that there was sufficient evidence of government inducement to warrant jury instructions on entrapment where the informant made efforts to persuade some of the defendants to do business with him. The Court also held that the district court erred in failing to define “official act” for Hobbs Act extortion and, while it agreed that the definition of “official act” from SCOTUS’s opinion in McDonnell did not fit the facts of the case, the Court remanded for the trial court to provide an alternative definition and allow the jury to determine if the officers wearing their uniforms was an “official act.”