Recent Circuit Cases

The Sixth Circuit affirmed a defendant’s sentence after the Government appealed the district court’s downward variance from the parties’ binding Rule 11(c)(1)(c) plea agreement. The Court held that Rule 11 gives the defendant the right to withdraw a 11(c)(1)(C) plea if the court rejects it but does not give the Government the right to withdraw its consent in the same scenario.

The Second Circuit reversed a defendant’s conviction after holding that the district court should have granted the defendant’s motions to dismiss, which were based on the government’s violation of his right to a speedy trial. The Government caused a delay of over three and a half years, and the district court erroneously excluded time from the speedy trial calculations merely because the case was “complex,” which was insufficient.

The Third Circuit held that, in cases where a defendant is sentenced under the prior version of 924(c) but has their sentence vacated on constitutional grounds, the amended version of 924(c) is in effect at any later resentencing.

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.