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In U.S. v. Glover, the defendant pled guilty to two bank robbery counts. In exchange for his plea the remaining counts were dismissed and the government agreed to recommend a sentence at the low end of the sentencing guideline range. At sentencing the district court determined the range to be 78-98 months. Though the government stuck to its agreement to recommend the low end, the district judge sentenced the defendant to 210 months in prison. The 11th Circuit applies a deferential abuse of discretion standard to this sentence. The court held that a district court making an upward departure must have a justification compelling enough to support the degree of the variance and complete enough to allow meaningful appellate review. The 11th Circuit will vacate the sentence only if “we are left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case.”

The 11th Circuit reviewed facts of the case and reasons given by the federal criminal court for imposing the sentence. Early went on a bank robbery “spree” robbing 3 banks in 11 days, each time threatening the teller with a fake bomb. He was arrested on his 4th attempt. He has spent nearly his entire adult life in prison for a long list of offenses. Many offenses were committed while he was on probation. The bank robberies were committed while he was on bond pending sentencing in an unrelated case. The district court rejected the government’s recommendation for a low end sentence stating the guidelines did not adequately account for Early’s criminal history and that the range did not adequately account for the number of bank robberies he had committed. The range for one was 57-71 and only increased to 79-97 as a result of three robberies. The district court also found the use of fake bombs was extremely serious because it created terror in the tellers, customers and induced the use of bomb squads and caused commerce to shut down. Finally, the sentencing court found that Early by his own conduct demonstrated that the public needs to be protected from him and the only way he is deterred is when he is in custody.

The 11th Circuit found the sentence imposed was not substantively unreasonable. It was still well below the maximum 900 months he could have received under the statute. Many of the §3553(a) factors support an upward departure: Early has shown an inability to conform his conduct to the requirements of the law, when he is out of prison he commits more crimes, he shows disrespect for the law, he is a recidivist, society needs protection from him, and there is a need to promote respect for the law. Absent a clear error of judgment, the 11th Circuit will not substitute its judgment for that of the district court in weighing the relevant sentencing factors. The district court did not abuse its discretion in fashioning a sentence that was warranted in view of all the relevant sentencing factors.

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In U.S. v. Glover the defendant moved to reduce his sentence under 18 U.S.C. §3582(c)(2) based on a retroactive amendment to the sentencing guidelines that lowered base offense levels for certain crack cocaine crimes. Glover pled guilty to 50 grams or more of crack cocaine violation 18 U.S.C. §841, but his relevant conduct involved two kilograms of crack cocaine. With his criminal history category of II, his guideline range would normally have been 188 to 235 months, except that he faced a mandatory life sentence under the sentencing enhancement provision of 21 U.S.C. §841(b)(1)(A) because he had at least two prior convictions for felony drug offenses. For this reason the statutory mandatory life sentence became his guideline sentence. The PSI recommended life and the sentencing judge adopted this recommendation. However, the government filed a §5K1.1 motion based on his substantial assistance to the government and the district court departed downward from the life sentence reducing his sentence to 208 months.

Amendment 750 lowered the crack cocaine penalties. The Sentencing Commission also made the amendment retroactive. In Glover’s case, the two kilogram quantity dropped from level 38 to 34. This would have given Glover an offense level 31 and a range of 121 to 151 for his criminal history category of II. Like many federal criminal lawyers in Miami that have applied for sentence reductions under this amendment, so did Glover. Unfortunately for Glover, the 11th Circuit held that §3582 does not allow for a reduction in his case. While the amendment normally applies where a sentencing range has been subsequently lowered by the Commission, the original guidelines were dictated by the statutory minimum. The amendment only applies if the amended guideline range is not affected by the operation of another other statute or guidelines. Here, Glover’s original guideline sentence was the statutory minimum of life, according to section 841(b)(1)(A). The statutory minimum was not affected by the Amendment.

The 11th Circuit held that the statute does not permit the defendant to receive a lower sentence than any sentence he would have receive if the amendment had been in effect at the time of his sentencing. The goal is to treat a defendant sentenced before the amendment the same as those sentenced after the amendment. Therefore, because the original sentence was based on a mandatory minimum sentence, the court lacks jurisdiction to consider a 3582(c)(2) motion even when an amendment would lower an otherwise applicable guidelines sentence.

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In U.S. v. Daniels the 11th Circuit took up the issue of whether a conviction under 18 U.S.C. 2422(b) requires the government to prove that the defendant knew the victim was a minor. The statute makes it a crime for someone to use any interstate of foreign commerce to knowingly induce, entice, or coerce any individual who has not reached the age of 18 to engage in prostitution or any illegal sexual activity. Daniel was charge with persuading, inducing, enticing, or coercing a girl under the age of 18 to engage in prostitution in violation of section 2422(b) and with knowingly transporting the girl across state lines to engage in prostitution. Daniels, a pimp, drove to Miami with a woman named Head, to engage in prostitution. After arriving in Miami they met a girl (A.W.) on the street who was then 14 years old. They convince her to work as a prostitute for Daniels. Head explained the details of working for Daniels what to charge for certain services how to act with a trick. There was no mention about her age. When trouble began between the two prostitutes, Daniels decided to sell A.W. to another pimp for $200. He took her to a bus station in Miami where she boarded a bus bound for Memphis, Tennessee, where she worked truck stops for the pimp who bought her.

Sending A.W. to another pimp was enough proof Daniels induced her.

Daniels’ federal criminal defense attorney argued the evidence was insufficient to convict of a violation of 18 U.S.C. § 2422 because no reasonable jury could have found that he persuaded induced enticed or coerced A.W. to engage in prostitution because she was already a prostitute in Miami. The fact that she was already working as a prostitute when she came to work for him is not sufficient evidence to conclude that he persuaded her to be a prostitute. The 11th Circuit found that Daniel’s actions in arranging to sell her to another pimp and putting her on a bus so she could reach him falls within the definition of induce.

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In U.S. v. Haile defendants Haile and Beckford were convicted of conspiracy to distribute more than five kilograms of cocaine, possession of five firearms, including a machine gun, in furtherance of a drug-trafficking offense, possession of an unregistered machine gun, and with possession of a firearm with obliterated serial number. The charges arose out of a reverse-sting operation where a Drug Enforcement Agent posing as a marijuana supplier met with Beckford who the undercover agent believed was looking to purchase marijuana. They discussed delivering 1,000 pounds to Beckford. The agent introduced Beckford to another undercover agent posing as a gun seller, and they discussed exchanging guns for marijuana. After the marijuana was delivered, the defendants were arrested. Haile had a Glock pistol. Beckford had cash, a loaded handgun, two rifles with obliterated serial numbers, and an M-11 machine gun.

The defendants’ lawyers challenged the conviction for knowing possession of a firearm in furtherance of a drug trafficking crime, claiming the indictment conflated the two elements of 18 U.S.C. § 924(c) that trigger the statute’s application. This is a penalty that federal criminal defense lawyers in Miami and across the county commonly face. The enhance penalty of statute is triggered two ways: (1) during and in relation to any crime of violence or drug trafficking crime…uses or carries a firearm, or (2) who in furtherance of any such crime, possesses a firearm. Both of these clauses were written in the indictment and defendants claimed that by conflating the elements it violated their 6th Amendment right to be informed of the nature of the accusations against them. The 11th Circuit rejected this claim, finding the indictment referred to the correct statute and place the defendants on notice of the two elements that trigger the enhancement.

Jury instruction for machine gun possession was correct.

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In U.S. v. Merrill, the defendant was convicted in federal court in Miami of the federal crime of knowingly selling ammunition made by a Communist Chinese military company to the U.S. Army. Here are the facts. AEY, a munitions dealership based in Miami Beach, Florida, placed a bid with U.S. Army for a contract to supply the Afghanistan Security Forces with various types of military munitions including 500 million rounds of AK-47 ammunition. The contract called for AEY to supply certain ammunition to the Afghan National Police and the Afghan National Army over a two year period. As an investor in AEY, Merrill advised AEY how to prepare the bid, and used his contacts in the arms business to find prices for ammunition. When the army requested details about the financial viability of AEY, Merrill provided letters from two of his companies promising a loan of $36 million to support the contract. Merrill and codefendant agreed to split the profits. Their bid price of $298 million was accepted by the U.S. Army. AEY acquired its munitions from a munitions supplied called MEICO located in Albania. When one of the AEY representatives went to Albania to oversee shipping, he discovered Chinese characters on the wooden crates containing the ammunition and contacted the other principles of AEY. One of the coconspirators sent an email to the Directorate of Defense Trade Controls Response Team at the State Department asking about the legality of brokering Chinese ammunition to the Army if it had been sitting for about 20 years with a company in Albania that acquired it before the U.S. enacted the arms embargo against China purchasing military equipment manufactured by the Communist Chinese military companies. The response given by the State Department was that the transaction could not be authorized. The coconspirators went ahead with it anyway by removing the Chinese characters form the crates and packaging. As the ammunition was shipped, the coconspirators sent about 30 certificates of conformance containing false statements that MEICO was the manufacturer of the ammunition and not the Communist Chinese military company that actually made it. Merrill was charged federal crimes of making false statements to the Army; defrauding the Army by making false statements, wire fraud against the Army, and defrauding the government in the procurement of property.

1. The court rejected Merrill’s motion to dismiss indictment.

Merrill challenged the indictment on the grounds that MEICO had acquired the ammunition from Communist China forty years before AEY acquired it from MEICO. It also argued that AEY had no contract with the Chinese military company. The 11th Circuit held that the charges were valid, finding that the ban on any sales of ammunition made by Communist Chinese military company does not include any exception for munitions that left China before the regulation was enacted. Merrill’s interpretation would leave a “gaping” loophole that the Department of Defense could not have intended.

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In U.S. v Pena the defendant was charged with a federal crime of conspiracy to knowingly fail to maintain an accurate oil record book on board the vessel, in violation of 33 U.S.C. §1908; for failing to conduct a complete survey of the vessel Island Express in violation of 33 U.S.C. 1908; and for making a materially false statement to the Coast Guard, in violation of 18 U.S.C. 1001. Under an multinational maritime treaty called MARPOL, these federal criminal statutes were enacted to prohibit ships from dumping bilge water into the ocean unless the oil content has been reduced to less than 15 parts per million. The law required a ships over 400 tons to have a functional oily water separator to filter bilge water before discharging it. If the water is not filtered through a separator, then it must me collected and retained in tanks and discharged at a proper facility on shore.

The Coast Guard conducted an inspection of the Island Express, docked in Ft. Lauderdale, Florida, and examined the certificate of compliance which showed that the ship was properly outfitted with a functioning oily water separator to filter bilge water and reduce its oily content before discharging it into the ocean. A surveyor is the person who is qualified to inspect and issue the certificate of compliance. Hugo Pena was the surveyor who issued a Certificate for the Island Express stating that he inspected the vessel and that it was in compliance with the statute. The Coast Guard discovered that the oily water separator did not operate, and the ship did not had a bilge holding tank for storing bilge water for later discharge.

Pena challenged the Miami federal court’s jurisdiction over a MARPOL violation on a ship flying a foreign flag. The Island Express was registered in Panama. The 11th Circuit held that relevant statutes do give the federal courts jurisdiction over violations of MARPOL committed on foreign flagged ships in U.S ports and Congress has not surrendered jurisdiction to the flagged ship.

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In U.S. v. Jimenez, the 11th Circuit addressed a federal sentencing guidelines issue involving grouping counts. The district court grouped Jimenez’s conviction for illegal reentry after deportation and his conviction for firearm possession by an illegal alien, giving him more jail time. The 11th Circuit denied Jimenez’s challenge and held that the district court was correct in not grouping these two counts. Jimenez, a citizen of Mexico, was convicted of reentering the U.S. after having been deported. He was arrested after a Gwinnett County, Georgia police officer found him in a parked car in possession of a firearm. He was charged and convicted of possessing a firearm as an illegal alien. He was also charged with reentry after deportation. Prior to his deportation he had a felony drug conviction that resulted in a substantial 16 level increase in his offense level. The Presentence Investigation Report calculated Jimenez’s offense level separately for each count of conviction and then determined the combined offense level under USSG §3D1.4 resulted in a higher offense level giving him a guideline range of 57 to 71 months. Jimenez objected, arguing that his guidelines range should have been calculated by grouping the two counts of conviction together. This would avoid the 2-level increase giving him a guideline range of 46 to 57 months.

The 11th Circuit held the district court correctly calculated the sentence of grouping the counts separately. Under section 3D1.2, the counts are grouped together if they “involve substantially the same harm.” The counts must show any of the following:

1. They involve the same victim and the same act or transaction 2. They involve the same victim and two or more acts or transaction that are connected by a common criminal objective or par of a common scheme or plan 3. One of the counts embodies conduct that is treated as a specific offense characteristic in the guidelines applicable to another of the counts 4. The offense level for each count is determined largely on the basis of the total amount of harm or loss.

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In U.S. v. House the defendant was charged with the federal crimes of depriving a person of the constitutional right to be free from unreasonable seizure by a law enforcement officer, in violation of 18 U.S.C. §242, and with making false statements within the a matter within the jurisdiction of the Federal Protective Service, in violation of 18 U.S.C. §1001. House was a law enforcement officer for the Federal Protective Services, a federal law enforcement agency whose jurisdiction is limited to properties owned by the General Services Administration (GSA). He wore a uniform with a badge, and carried a police officer type utility belt with gun, radio, and handcuffs. He drove a vehicle with markings, siren, emergency lights on the roof similar to a police car. He looked like a police officer. House had an ugly habit of stopping motorists who did not violate any traffic laws, but he accused them of driving carelessly or recklessly. Essentially, he was charged with making unlawful traffic stops of about seven different individuals and submitting false information about each of the incidents to his agency. In some cases he would call the local police and give false information about what the driver had done. He gave false information in the reports he was required to give his agency about any incident where he used his emergency lights. The motorists where recounted their feeling of intimidation by his siren and uniform, believing he was a police officer with full authority to stop and detain. In fact, his agency gave him no authority to pull over a driver outside of GSA property. In addition to this charge, he was charged with making false statements to the Federal Protective Service.

Sufficiency of the Evidence.

House argued the evidence was insufficient to establish that he seized motorists. The 11th Circuit recounted the evidence given by various motorists pulled over by House who described how he pulled them over with emergency lights activated and walked up to them wearing what appeared to be a police uniform. The motorists said they pulled over because that is what law abiding citizens must do. They described House’s tone as “scary” and felt intimidated. The jury was entitled to find that House seized the defendant by detaining them or forcing them to stop. The evidence was sufficient to show that the seizures were unreasonable. The jury was also able to find from the testimony that there was no probable cause to seize them because of a lack ofprobable cause or reasonable suspicion they broke any motor vehicle laws. Evidence was sufficient to establish that House acted willfully given the sheer number of persons he seized and his behavior during the encounters.

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In U.S. v Woods the defendant was charged with violating federal child pornography laws. In his defense he raised Constitutional challenges under the Fifth Amendment and Sixth Amendments for failure to advise him pursuant to Miranda v. Arizona and he challenged the law the under the Due Process Clause for being vague and overbroad.

Woods was a Navy serviceman when his ex-wife found child pornography on his computer that she took when she moved out. As any ex-wife would do, she turned it over to law enforcement. In this case it went to the Naval Criminal Investigative Services, who sent investigators to his workplace at Ft. Gordon to speak to him. He was escorted by his chief to a room where the investigators were waiting but he was not arrested nor did they tell him he was in custody. Before questioning he was given a military waiver of rights (Fifth and Sixth Amendments) form which he signed. Woods did not ask for an attorney. After signing he admitted to viewing child pornography on his desktop at home but received it inadvertently. He was interviewed a second time. Prior to signing a waiver, he was not told he was under arrest nor was he restrained. He gave a statement that he has searched for and downloaded hundreds of images of child pornography, that he used it for arousal, and admitted incidents of molesting his niece.

1. Motion to Suppress denied.

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In U.S. v. Cochran the issue before the jury was whether drugs and drug related materials inside of a house belonged to a defendant or someone else who could have had access to the house. Though this happened in the Middle District of Florida, it is a common issue seen in federal drug cases in Miami as well. To prove the case the government offered a modification to the constructive possession jury instruction given in a drug possession case. The 11th Circuit disapproved of the modification; however it did not amount to reversible error. The facts leading to the Defendants arrest are this.

1. Agents executed a search warrant at house where they suspected he was staying.

2. Inside they found a small quantity of cocaine and a digital scale drugs along with forks and a measuring cup bearing drug residue in various parts of the house.

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