Recent Circuit Cases

The Fourth Circuit affirmed a defendant’s wire fraud conviction where the defendant had orchestrated a fraudulent multimillion dollar investment scheme from Israel. The Court held that the wire fraud statute does not apply extraterritorially but that the defendant was properly charged because she used American wires to further her scheme. While affirming her conviction, the Court vacated the restitution order since it went beyond domestic victims of the defendant’s wire fraud.

The Sixth Circuit vacated a defendant’s sentence for bank robbery, holding that the district court erred in applying an enhancement for using physical restraint. The Court held that ordering tellers to the ground, and their accompanying compliance, without more, was insufficient to constitute “physical restraint.”

The First Circuit reversed the convictions of two drug trafficking defendants based on prosecutorial misconduct. Among other things, the prosecutor had improperly appealed to the jury’s emotions regarding drug addiction in the community, improperly invited the jury to find the defendants guilty “by association,” and improperly vouched for the credibility of the prosecution and law enforcement. The Court concluded that the fourth prong of plain error review was met and that the district court erred in holding the strength of the evidence negated the error’s effect on the fairness, integrity, or reputation of judicial proceedings.

The Eleventh Circuit vacated a defendant’s sentence that had been enhanced under the ACCA after the district court held that the defendant’s prior conviction was a “serious drug offense.” However, the statute under which the defendant was previously convicted under state law also prohibited ioflupane, which was not a controlled substance at the time of the defendant’s federal prosecution. Citing fair notice and due process concerns, the Court concluded that sentencing courts must “apply the version of the Controlled Substance Act Schedules in place when the defendant committed the federal firearm-possession offense for which he is being sentenced,” as opposed to the schedules in effect when the defendant is convicted of his predicate state offenses.

The Ninth Circuit affirmed a defendant’s conviction for employing, using, persuading, inducing, enticing, or coercing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct under 18 USC 2251(a) where the defendant had placed hidden cameras in a bedroom to capture footage of a minor masturbating. The Court held that the “use” element of 2251(a) is satisfied whenever a defendant causes a minor victim to be the subject of child pornography.

In a 7-2 decision, the Supreme Court held that attempted Hobbs Act robbery does not qualify as a “crime of violence” under 924(c) “because no element of the offense requires proof that the defendant used, attempted to use, or threatened to use force.” Applying the categorical approach, the Court held that a generic defendant could be convicted of attempted Hobbs Act robbery without using or threatening force based simply on their “intent” and their taking a non-forceful “substantial step.”

The Tenth Circuit remanded a defendant for re-sentencing after holding that the district court clearly erred in calculating the guidelines and determining a sentence. The district court had rejected the parties recommended sentence, noting it would have had to depart “10 levels” to get there, where the court only would have had to depart one level. Since the court relied on that error in sentencing the defendant substantially above the recommended sentence, the error was reversible, and the Court remanded for re-sentencing.

The Ninth Circuit affirmed petitioner’s new sentences that were imposed after petitioners won a 2255 motion based on the First Step Act’s changes to 18 USC 924(c), a statute which carries a mandatory minimum of five years, consecutive to any other sentence imposed, and previously carried a minimum of 25 years for any subsequent convictions. Congress amended 924(c) so that “subsequent convictions” would not include 924(c) counts in a single indictment, and the Ninth Circuit held that the petitioners could be re-sentenced under the new version of the law since their original sentences had previously been vacated and were thus considered void.

In a matter of first impression, the Eleventh Circuit affirmed a defendant’s sentence for illegally exporting firearms. The Court concluded that the lower offense level under USSG 2M5.2(a)(2) did not apply since the defendant’s offense involved more than 2 firearms, where the defendant had exported enough firearm parts to assemble two guns and enough spare parts to service additional firearms.

The Tenth Circuit vacated a defendant’s sentence after finding that the district court plainly erred in applying a role enhancement. The district court had enhanced the defendant’s guidelines for his money laundering offense based on relevant conduct for his drug offense, which was plainly not allowed under USSG 2S1.1 Application Note 2(C).