Circuit Court Opinions

The First Circuit held that the district court did not err in enforcing a DEA subpoena to New Hampshire’s Prescription Drug Monitoring Program (PDMP), holding that 1) a subpoena does not amount to a lawsuit against a state and thus does not violate its sovereignty, and 2) people do not have a reasonable expectation of privacy in their prescription drug records given the closely regulated industry doctrine.

The Sixth Circuit vacated a defendant’s sentence and remanded for new trial on the limited issue of whether he was within the “chain of distribution” of the drugs that resulted in the victims’ deaths.

The Eleventh Circuit affirmed a defendant’s conviction and life sentence for federal child sex crimes and rejected his Fourth Amendment challenges. At issue was whether undisputed negligence by the FBI in its investigation, which involved the FBI waiting over six months to execute a warrant, well after the warrant’s deadline for the search, warranted suppression. The Court held that the violation of that deadline was akin to a violation of Rule 41 of the Federal Rules of Criminal Procedure, not a violation of the Fourth Amendment, so the defendant would have to show prejudice and a deliberate disregard of the rule by law enforcement, which the Court held the defendant did not do here. The Court emphasized that the good faith exception also applied to another search because the exclusionary rule was intended to apply only to “deliberate, reckless, or gross negligent disregard for Fourth Amendment rights,” and the FBI’s negligence in this case did not rise to that level.

In an en banc opinion, the Eleventh Circuit held that the Government’s failure to raise the good faith exception did not foreclose the appellate panel from affirming the district court’s denial of a motion to suppress on those grounds. The Court concluded that the government’s silence on the good faith exception in a direct appeal is a forfeiture, not a waiver, and thus an appellate panel can consider the issue sua sponte in extraordinary circumstances. The opinion includes a notable concurrence by Judge W. Pryor suggesting a willingness to overrule the exclusionary rule as an act of judicial intervention.

The Second Circuit held that a district court considering a motion for compassionate release can reduce a defendant’s sentence or release them notwithstanding that the defendant was sentenced to a mandatory minimum term of imprisonment. The Court affirmed denial of the defendant’s motion, however, since the district court did not base its denial on the defendant’s mandatory minimum sentence and otherwise did not abuse its discretion.

The First Circuit held, as a matter of first impression, that a district court considering a motion for compassionate release is not bound by U.S.S.G. 1B1.13. In doing so, the Court joined every other circuit to consider the issue, except the 11th Circuit, in recognizing that district courts have broad discretion to determine whether an inmate presents “extraordinary and compelling reasons” warranting relief. Here, the defendant was serving a mandatory life sentence, and the Court added that district courts are free to consider “non-retroactive changes in sentencing law on an individual basis, grounded in a defendant’s particular circumstances…” Even among the circuits that agree 1B1.13 is not binding, there is a split regarding whether non-retroactive changes in sentencing laws may be considered towards an inmate’s release.

The Fourth Circuit vacated a defendant’s sentence for possession of a firearm by a convicted felon after the district court improperly enhanced the defendant’s sentence under the ACCA. The district court did so based on finding that Hope’s prior South Carolina convictions for felony marijuana offenses were for a “controlled substance offense.” The Fourth Circuit reversed, holding that the South Carolina marijuana offenses did not meet the federal definition of “controlled substance offenses” because South Carolina’s definition of marijuana included hemp at the time, and hemp is not a “controlled substance offense” under federal law. Judge Thacker dissented based on his view that the error did not amount to “plain error.”

Sitting en banc, the Fourth Circuit held that defendant received ineffective assistance of counsel at sentencing when her attorney failed to lodge meritorious objections to the PSR and in fact waived any objections at sentencing over the defendant’s concerns. The decision was notable since the Court held there was ineffective assistance and prejudice on direct appeal, without an intervening evidentiary hearing, based on the face of the record.

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.

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.”