Circuit Court Opinions

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.”

In a fraud case involving wiretap evidence, the Eleventh Circuit affirmed the defendants’ convictions. The Court rejected the defendant’s arguments and held that 1) the evidence supporting probable cause in the wiretap affidavit was not stale because there was evidence the phone in question was still in use and the conspiracy was ongoing, and 2) the wiretap affidavit established necessity because, even though the Government already had enough evidence to convict the defendants, the stated goal of the wiretap was to discover the full scope of the conspiracy and identity of all co-conspirators.

The Eleventh Circuit affirmed a pair of Hobbs Act robbery convictions, holding that 1) erroneous jury instructions regarding two predicate offenses under 924(c) were harmless where the offenses were inextricably entwined and one was properly instructed as a predicate offense; 2) defendant’s could not show entrapment or outrageous government conduct when the government set up a fake safe house and had an informant suggest to the defendant that they should rob the safe house; and 3) the defendants were not entitled to discovery for selective prosecution based on a showing that a racial group was disproportionately prosecuted unless they could show evidence of prosecution of similarly situated members of another racial group.

The Eleventh Circuit affirmed a defendant’s conviction after he challenged a search warrant that led to his arrest and conviction for marijuana distribution and unlawful possession of a firearm. The Court held that, even if the search warrant was not supported by probable cause based on officers finding small quantities of marijuana in the defendant’s trash, the good faith exception applied. The Court also reiterated that a failure to allege the knowledge element for a 922(g) charge under Rehaif does not deprive the district court of subject matter jurisdiction.

The Eleventh Circuit affirmed the district court’s denial of the defendant’s 2255 motion based on Johnson where the defendant argued that the caselaw at the time of his sentencing indicated he was more than likely sentenced under the residual clause of the ACCA. The Court disagreed, holding that the legal landscape was ambiguous and that the defendant failed to meet his burden of proving the sentencing court’s reliance on the residual clause.

The Sixth Circuit reversed a defendant’s conviction for conspiracy to distribute where the defendant had only contacted the leader of a DTO and given him a sample of heroin. The Court held that “the mere transfer of drugs,” including a buyer-seller transaction, was standing alone insufficient to establish an agreement to further distribute drugs.

The Sixth Circuit reversed a defendant’s sentence for possession of unauthorized access devices because the loss amount had been based on Guidelines commentary mandating that a minimum loss amount of $500 had to be added for every unauthorized access device. The Court held that the commentary improperly expanded the text of 2B1.1, not merely interpreting it.

The Fifth Circuit held that an inmate was eligible for a sentence reduction under 18 USC 3582(c)(2) because his initial applicable Guidelines range would have been lower based on a subsequent amendment to the Guidelines and the Guidelines played a “relevant part” in his sentencing.

While denying a defendant’s appeal from a 2255 motion, the Ninth Circuit suggested the Sixth Amendment right to counsel can apply in certain cases before there has been an indictment filed. Here, the Court rejected claims by a defendant who alleged his lawyer had not communicated a pre-indictment offer to him after he received a target letter.