Circuit Court Opinions

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.

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.