Recent Circuit Cases

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 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 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.