Recent Circuit Cases

The Fourth Circuit vacated a defendant’s sentence after finding that the sentencing court improperly applied the enhancement for distributing child sexual exploitation materials in exchange for valuable consideration. In doing so, the Court overruled its prior holding based on the pre-2016 Guidelines Manual and held that the enhancement only applies if there is a “two-sided exchange.”

The Fifth Circuit reversed a defendant’s conviction for carrying a firearm during a crime of violence or drug trafficking crime under 924(c). The trial court had erroneously instructedhe jury that it could find the defendants guilty of those charges if they used or carried a firearm in relation to either the “crime of violence” charged by their RICO conspiracy count or the drug trafficking crime charged, but RICO is not a “crime of violence” under Fifth Circuit precedent.

The Fifth Circuit reversed a defendant’s conviction for possession of a firearm by someone adjudicated as a mental defective or who has been committed to a mental institution. The trial court erroneously instructed the jury that it could find the defendant guilty based on finding he was either adjudicated a mental defective OR had previously been committed, though the indictment only alleged the former and not the latter.

The Sixth Circuit affirmed a defendant’s conviction for having sex with a minor while living or traveling abroad. While the Court held that the statute at issue (18 USC 2423(c)) was not authorized under the Foreign Commerce Clause of the Constitution, Congress had the authority to criminalize having sex with minors abroad based on an international treaty and Congress’s authority to enact laws that are “necessary and proper” to enforce the treaty.

The Third Circuit vacated a defendant’s sentence after holding the district court improperly enhanced the defendant’s offense level under the Guidelines based on the defendant’s prior conviction for conspiracy to commit second degree murder. The plain text of the relevant Guidelines provision does not include “conspiracy” under the definition of “crime of violence,” and courts may not rely on commentary to increase a defendant’s Guidelines range when the commentary goes beyond the plain text of the Guidelines.

The Tenth Circuit reversed a district court’s dismissal of attempted bank robbery charges under 18 USC 2113 where the district court found that the defendant’s attempt to hold up two victims at gunpoint and force them to withdraw money from an ATM did not amount to an attempted “bank robbery” since the defendant would be robbing them, not the bank. Deepening a circuit split between the Fifth Circuit and Seventh Circuit, the Tenth Circuit reversed, concluding that “using force to induce a bank customer to withdraw money from an ATM is federal bank robbery.”

In an immigration appeal that likely affects federal criminal cases, the Eleventh Circuit held that a petitioner’s prior state law conviction for possession of marijuana did not constitute an offense involving a “controlled substance” as defined under federal law. The Court noted that the definition of marijuana under federal law, while still classifying marijuana as a controlled substance, excludes cannabis that falls under the definition of “hemp.” The petitioner’s conviction was under a Florida law that did not make that distinction and thus would ostensibly allow for a conviction based on possession of hemp. Accordingly, the petitioner’s prior offense was not a categorical match with the federal definition of a controlled substance offense.

The Eleventh Circuit reversed the district court’s denial of a defendant’s motion to vacate their sentence under 28 USC 2255. The Court held that the district court erred in instructing the jury on aiding and abetting in an unlawful possession of a firearm case where the government did not present any evidence that the defendant knew his co-defendant was prohibited from possessing firearms. The Court also held that Rehaif is retroactive to cases on collateral review and discussed the standard for procedural default under 2255 at length.

The Third Circuit reversed a defendant’s conviction for distributing drugs within 1,000 feet of a playground under 21 USC 841, where the trial court did not instruct the jury in how to define a “playground” as defined under 21 USC 861(e)(1). The Court concluded that whether the facility is a playground is an element of the offense that must be proven beyond a reasonable doubt, joining the Fourth, Fifth, Sixth, Ninth, and Eleventh Circuits.

The Eighth Circuit reversed some, but not all, of a defendant’s convictions for multiple counts of wire fraud where, after depositing embezzled funds from his church, the defendant-priest made several payments from that account using those funds. The Court upheld the defendant’s convictions based on the deposits since they furthered the scheme but reversed those based on the payments, since those payments did not help further or conceal the offense.