In United States v. Joseph Lander, the Eleventh Circuit reversed twelve of the defendant’s convictions for fraud and money laundering because the facts proved at trial materially varied from those alleged by the Government in the superseding indictment.
In this case, the defendant was convicted of mail fraud and money laundering charges related to two separate fraudulent schemes. The Eleventh Circuit upheld the convictions regarding one of the fraudulent schemes (misrepresenting expected returns on an investment in a vitamin company) but reversed the defendant’s mail fraud and money laundering convictions in the second scheme (involving the conversion of developers’ funds).
With regard to the latter scheme, the Eleventh Circuit held that the facts proved at the defendant’s trial for fraud materially varied from those alleged in the superseding indictment. The indictment itself alleged that Lander, a county attorney, misrepresented to developers that they were required to pay a performance bond to the county. At the trial, two developers stated that Lander either never instructed them about a performance bond or could not recall if he instructed them about a performance bond. Following this testimony, the Government adjusted its theory of the case and argued, in closing, that Lander misrepresented to the developers that he could make sure their project moved through the regulatory process. The court of appeals held that the misrepresentation that the Government ultimately relied on did not match the scheme to defraud which was set forth in the indictment, and was an essential element to the mail fraud charge. The court held that this material variance from the indictment substantially prejudiced Lander—by failing to “apprise the defendant of what he must be prepared to meet” and Lander’s mail fraud conviction was reversed.
Because the government based Lander’s money laundering charges on the aforementioned mail fraud charge—using the mail fraud to satisfy the “specified unlawful activity” element of money laundering—the court reversed Lander’s convictions on the money laundering charges as well.
Showing posts with label Eleventh Circuit. Show all posts
Showing posts with label Eleventh Circuit. Show all posts
Thursday, March 1, 2012
Sunday, January 29, 2012
Eleventh Circuit: Autopsy Reports Are Testimonial Evidence, Subject to Confrontation Clause
In United States v. Ignasiak, the Eleventh Circuit reversed the defendant’s convictions for health care fraud and unlawful dispensing of controlled substances, holding that the district court violated the Confrontation Clause by admitting autopsy reports into evidence without requiring in-court testimony by the medical examiners who performed the autopsies.
In this case, a jury convicted Dr. Robert Ignasiak of health care fraud and dispensing controlled substances in violation of 18 U.S.C. § 1347 and 21 U.S.C. § 841(a)(1)-(2), respectively. As evidence of fraud and improperly prescribing medications, the Government called two medical examiners to testify about autopsies they had performed, allegedly as a result of Dr. Ignasiak’s practices. During this testimony, the Government admitted (over the defendant’s objections) charts and autopsy reports of other patients whom the testifying doctors did not examine and questioned the doctors about those reports.
On appeal, the defendant argued that the admission of these reports/charts into evidence with no indication as to the availability of the doctors who actually performed the autopsies and authored the reports violated the Confrontation Clause and the rules of evidence. The Eleventh Circuit agreed.
The court of appeals, citing Crawford v. Washington, held that autopsy reports are testimonial evidence and, therefore, subject to the Confrontation Clause. The court also noted that there was no evidence that the individuals who performed the exams and authored the reports were unavailable or that the defendant had an opportunity to cross examine them. The defendant’s convictions were reversed and the case was remanded.
In this case, a jury convicted Dr. Robert Ignasiak of health care fraud and dispensing controlled substances in violation of 18 U.S.C. § 1347 and 21 U.S.C. § 841(a)(1)-(2), respectively. As evidence of fraud and improperly prescribing medications, the Government called two medical examiners to testify about autopsies they had performed, allegedly as a result of Dr. Ignasiak’s practices. During this testimony, the Government admitted (over the defendant’s objections) charts and autopsy reports of other patients whom the testifying doctors did not examine and questioned the doctors about those reports.
On appeal, the defendant argued that the admission of these reports/charts into evidence with no indication as to the availability of the doctors who actually performed the autopsies and authored the reports violated the Confrontation Clause and the rules of evidence. The Eleventh Circuit agreed.
The court of appeals, citing Crawford v. Washington, held that autopsy reports are testimonial evidence and, therefore, subject to the Confrontation Clause. The court also noted that there was no evidence that the individuals who performed the exams and authored the reports were unavailable or that the defendant had an opportunity to cross examine them. The defendant’s convictions were reversed and the case was remanded.
Eleventh Circuit: Use of File Sharing Software to Download Child Porn Not Sufficient to Trigger Five-Level Sentencing Enhancement
In two cases in January, the Eleventh Circuit addressed whether the use of peer to peer file-sharing software to obtain child pornography from other users in a way that permitted other users to obtain child porn from their respective shared folders supports the application of a five-level sentencing enhancement for distribution for receipt of a thing of value.
In United States v. Vadnais and United States v. Spriggs, the Eleventh Circuit held that the use of peer-to-peer file sharing software to download pornography was insufficient to warrant a five-level sentencing enhancement pursuant to U.S.S.G. § 2G2.2(b)(3)(B)—which applies to the “distribution of illicit images for the receipt, or expectation of receipt, of a non-pecuniary thing of value.”
The court of appeals reasoned that there had to be some evidence that the defendants knew or expected to receive something of value in return for sharing files to warrant the five-level enhancement pursuant to U.S.S.G. § 2G2.2(b)(3)(B). The defendants’ failure to turn off the file-sharing component of the software was not enough to prove that they expected to receive something in return for sharing the files. The court of appeals held that the defendants were subject to a two-level sentencing enhancement for distributing the illicit material, pursuant to U.S.S.G. § 2G2.2(b)(3)(F).
In United States v. Vadnais and United States v. Spriggs, the Eleventh Circuit held that the use of peer-to-peer file sharing software to download pornography was insufficient to warrant a five-level sentencing enhancement pursuant to U.S.S.G. § 2G2.2(b)(3)(B)—which applies to the “distribution of illicit images for the receipt, or expectation of receipt, of a non-pecuniary thing of value.”
The court of appeals reasoned that there had to be some evidence that the defendants knew or expected to receive something of value in return for sharing files to warrant the five-level enhancement pursuant to U.S.S.G. § 2G2.2(b)(3)(B). The defendants’ failure to turn off the file-sharing component of the software was not enough to prove that they expected to receive something in return for sharing the files. The court of appeals held that the defendants were subject to a two-level sentencing enhancement for distributing the illicit material, pursuant to U.S.S.G. § 2G2.2(b)(3)(F).
Monday, January 2, 2012
Convicted sex offenders may be required to register as condition of release for later unrelated crimes
In United States v. W.B.H. the Eleventh Circuit held that defendants convicted of non-sexual offenses who have past sex offense convictions may be required to register as sex offenders as a condition of supervised release—even if the prior sex offense conviction occurred before the registration requirement passed by Congress in 2006.
In 2006, Congress passed the Sex Offender Registration and Notification Act (SORNA), which requires criminals convicted of a sex offense to register as sex offenders.
In this case, the defendant was convicted of first degree rape in 1987 when he was 18 years old, before SORNA was passed. In 2009, post-SORNA, the defendant was convicted of conspiracy to distribute drugs. As a condition of supervised release, the district court held that the defendant was required to register as a sex offender for the 1987 conviction. The defendant appealed arguing that this requirement violated the Ex Post Facto Clause. The Eleventh Circuit rejected this argument on grounds that Ex Post Facto relief applies only to criminal laws, not civil regulatory schemes and that SORNA was a civil regulatory scheme.
The Eleventh Circuit applied the two-part test set forth by the Supreme Court in Smith v. Doe, concluding that (1) Congress intended the sex offense registry to be a civil regulatory scheme rather than a criminal law and (2) the civil regulatory scheme is not so punitive in its effect to negate Congress’ intent.
The court reasoned that the registry’s predominant purpose is public safety, rather than the punishment of offenders. The court also reasoned, less persuasively, that the sex offense registry is not viewed as punishment or shaming by the public because it does not stage a direct confrontation between the offender and the public. Further, the court reasoned that the registry is not predominantly punitive in effect because it does not impose affirmative disabilities or restraints on the registrants—that the punitive effects of the registry are only indirect.
In 2006, Congress passed the Sex Offender Registration and Notification Act (SORNA), which requires criminals convicted of a sex offense to register as sex offenders.
In this case, the defendant was convicted of first degree rape in 1987 when he was 18 years old, before SORNA was passed. In 2009, post-SORNA, the defendant was convicted of conspiracy to distribute drugs. As a condition of supervised release, the district court held that the defendant was required to register as a sex offender for the 1987 conviction. The defendant appealed arguing that this requirement violated the Ex Post Facto Clause. The Eleventh Circuit rejected this argument on grounds that Ex Post Facto relief applies only to criminal laws, not civil regulatory schemes and that SORNA was a civil regulatory scheme.
The Eleventh Circuit applied the two-part test set forth by the Supreme Court in Smith v. Doe, concluding that (1) Congress intended the sex offense registry to be a civil regulatory scheme rather than a criminal law and (2) the civil regulatory scheme is not so punitive in its effect to negate Congress’ intent.
The court reasoned that the registry’s predominant purpose is public safety, rather than the punishment of offenders. The court also reasoned, less persuasively, that the sex offense registry is not viewed as punishment or shaming by the public because it does not stage a direct confrontation between the offender and the public. Further, the court reasoned that the registry is not predominantly punitive in effect because it does not impose affirmative disabilities or restraints on the registrants—that the punitive effects of the registry are only indirect.
Friday, December 30, 2011
Eleventh Circuit: magistrate judge disqualified for participating in plea negotiations
In United States v. Davila, the defendant pled guilty to conspiracy to defraud the United States by obtaining false tax refunds. Prior to his plea, the defendant requested that the magistrate judge discharge his court-appointed attorney for failing to discuss any strategies aside from pleading guilty. At this hearing, the magistrate judge instructed the defendant as follows:
"The only thing at your disposal that is entirely up to you is the two or three level reduction for acceptance of responsibility. That means that you’ve got to go to the cross. You’ve got to tell the probation officer everything you did in this case regardless of how bad it makes you appear to be because that is the way you get that three-level reduction for acceptance, and . . . someone with your criminal history needs a three-level reduction for acceptance."
On appeal, the Eleventh Circuit held that the magistrate judge’s comments violated Federal Rule of Criminal Procedure 11(c)(1), which prohibits “the participation of the judge in plea negotiations under any circumstances.” Even though the defendant failed to raise a Rule 11 violation on appeal, the Eleventh Circuit held that a violation of this rule is plain error and the defendant was not required to show actual prejudice. Although other circuits recognize harmless error in this context, the Eleventh Circuit made clear that it does not, explaining that even if judicial participation is well-intentioned it will result in convictions being vacated, remanded, and reassigned to another judge.
"The only thing at your disposal that is entirely up to you is the two or three level reduction for acceptance of responsibility. That means that you’ve got to go to the cross. You’ve got to tell the probation officer everything you did in this case regardless of how bad it makes you appear to be because that is the way you get that three-level reduction for acceptance, and . . . someone with your criminal history needs a three-level reduction for acceptance."
On appeal, the Eleventh Circuit held that the magistrate judge’s comments violated Federal Rule of Criminal Procedure 11(c)(1), which prohibits “the participation of the judge in plea negotiations under any circumstances.” Even though the defendant failed to raise a Rule 11 violation on appeal, the Eleventh Circuit held that a violation of this rule is plain error and the defendant was not required to show actual prejudice. Although other circuits recognize harmless error in this context, the Eleventh Circuit made clear that it does not, explaining that even if judicial participation is well-intentioned it will result in convictions being vacated, remanded, and reassigned to another judge.
Eleventh Circuit: value of interstate transport of forged securities determined by face value not actual worth
In United States v. James Brown, the defendant was convicted of mail fraud and transporting forged securities in violation of 18 U.S.C. § 2314, which makes it illegal to knowingly transport in interstate commerce stolen/fraudulent securities or money “of the value of $5,000 or more.”
As a matter of first impression, the Eleventh Circuit addressed whether the “value” element of 18 U.S.C. § 2314 is satisfied by the amount payable as written on the face of the instrument even if the instrument itself was cancelled and, therefore, worthless before it was transported. The court of appeals rejected Brown’s argument that value should be interpreted to mean “actual worth,” holding that the meaning of value under the statute was the value listed on the face of the instrument, whether or not the instrument itself had any actual value or worth.
In its reasoning, the Eleventh Circuit turned to 18 U.S.C. § 2311, which defines value as “face, par, or market value, whichever is greatest.” Although “face” is not expressly defined in the statute, the court turned to its plain meaning: the value listed on the face of the instrument. The court relied on the Fifth Circuit’s interpretation of this statute in United States v. Onyiego (holding that forged airplane tickets with a face value of over $5000 satisfied the value element of 18 U.S.C. § 2314 even though the tickets themselves were “made up” and actually worth nothing).
As a matter of first impression, the Eleventh Circuit addressed whether the “value” element of 18 U.S.C. § 2314 is satisfied by the amount payable as written on the face of the instrument even if the instrument itself was cancelled and, therefore, worthless before it was transported. The court of appeals rejected Brown’s argument that value should be interpreted to mean “actual worth,” holding that the meaning of value under the statute was the value listed on the face of the instrument, whether or not the instrument itself had any actual value or worth.
In its reasoning, the Eleventh Circuit turned to 18 U.S.C. § 2311, which defines value as “face, par, or market value, whichever is greatest.” Although “face” is not expressly defined in the statute, the court turned to its plain meaning: the value listed on the face of the instrument. The court relied on the Fifth Circuit’s interpretation of this statute in United States v. Onyiego (holding that forged airplane tickets with a face value of over $5000 satisfied the value element of 18 U.S.C. § 2314 even though the tickets themselves were “made up” and actually worth nothing).
Sunday, November 27, 2011
Georgia's Requirement of Proof of Mental Retardation Beyond a Reasonable Doubt Constitutional
On November 22, 2011 the Eleventh Circuit held that Georgia’s requirement that criminal defendants prove their mental retardation beyond a reasonable doubt constitutional in Hill v. Humphrey.
Georgia was the first state to enact a prohibition against the execution of the mentally retarded. Years later, and after a national consensus adopting this policy was formed, the United States Supreme Court held in Atkins v. Virginia that imposing the death penalty on the mentally retarded is unconstitutional in violation of the 8th amendment.
In Hill, the sole question before the en banc Court was “whether the Georgia Supreme Court’s decision in Hill III—holding that Georgia’s reasonable doubt standard does not violate the Eighth Amendment— is contrary to clearly established federal law, as announced in Atkins.” As noted above, the Eleventh Circuit held that it was not.
Atkins appears to be straightforward—the government can’t execute the mentally retarded. However, the Supreme Court did not provide guidelines for how to determine who is mentally retarded nor did it address how to allocate the burden of proving mental retardation. The Eleventh Circuit in Hill relied primarily on the fact that the Supreme Court left these decisions to the states.
The Eleventh Circuit determined that the state standards regarding mental retardation that Georgia did adopt are within reason. Georgia’s definition of “mentally retarded” means (1) having “significantly sub average general intellectual functioning,” (2) “resulting in or associated with impairments in adaptive behavior,” and (3) “which manifested during the developmental period.” The court opined that Georgia’s definition essentially tracks the AARM and APA definitions of mentally retarded, which were mentioned in Atkins.
The court then noted that Georgia’s reasonable doubt standard, to be ruled unconstitutional, would have had to have been contrary to clearly established federal law. The court noted that this is a difficult requirement to meet “because the purpose of AEDPA is to ensure that federal habeas relief functions as a ‘guard against extreme malfunctions in the state criminal justice systems,’ and not as a means of error correction.” The majority did not address the merits of the beyond-a-reasonable-doubt standard at any length, only noting that it was not discussed in Atkins.
Finally, the court noted that Georgia has sufficient procedural protections in place by allowing a criminal defendant to assert mental retardation and allowing the jury to find the defendant guilty, but mentally retarded.
Justices Martin, Barkett, Marcus, and Wilson dissented. Unlike the majority, the dissent primarily focused on this burden of proof itself and the effects of imposing such a high burden. The dissent opined that the effect of the beyond-a-reasonable-doubt standard would be contrary to the purpose of the Supreme Court’s decision in Atkins—that Georgia’s beyond-a-reasonable-doubt standard would result in the execution of the mentally retarded.
Georgia was the first state to enact a prohibition against the execution of the mentally retarded. Years later, and after a national consensus adopting this policy was formed, the United States Supreme Court held in Atkins v. Virginia that imposing the death penalty on the mentally retarded is unconstitutional in violation of the 8th amendment.
In Hill, the sole question before the en banc Court was “whether the Georgia Supreme Court’s decision in Hill III—holding that Georgia’s reasonable doubt standard does not violate the Eighth Amendment— is contrary to clearly established federal law, as announced in Atkins.” As noted above, the Eleventh Circuit held that it was not.
Atkins appears to be straightforward—the government can’t execute the mentally retarded. However, the Supreme Court did not provide guidelines for how to determine who is mentally retarded nor did it address how to allocate the burden of proving mental retardation. The Eleventh Circuit in Hill relied primarily on the fact that the Supreme Court left these decisions to the states.
The Eleventh Circuit determined that the state standards regarding mental retardation that Georgia did adopt are within reason. Georgia’s definition of “mentally retarded” means (1) having “significantly sub average general intellectual functioning,” (2) “resulting in or associated with impairments in adaptive behavior,” and (3) “which manifested during the developmental period.” The court opined that Georgia’s definition essentially tracks the AARM and APA definitions of mentally retarded, which were mentioned in Atkins.
The court then noted that Georgia’s reasonable doubt standard, to be ruled unconstitutional, would have had to have been contrary to clearly established federal law. The court noted that this is a difficult requirement to meet “because the purpose of AEDPA is to ensure that federal habeas relief functions as a ‘guard against extreme malfunctions in the state criminal justice systems,’ and not as a means of error correction.” The majority did not address the merits of the beyond-a-reasonable-doubt standard at any length, only noting that it was not discussed in Atkins.
Finally, the court noted that Georgia has sufficient procedural protections in place by allowing a criminal defendant to assert mental retardation and allowing the jury to find the defendant guilty, but mentally retarded.
Justices Martin, Barkett, Marcus, and Wilson dissented. Unlike the majority, the dissent primarily focused on this burden of proof itself and the effects of imposing such a high burden. The dissent opined that the effect of the beyond-a-reasonable-doubt standard would be contrary to the purpose of the Supreme Court’s decision in Atkins—that Georgia’s beyond-a-reasonable-doubt standard would result in the execution of the mentally retarded.
Saturday, August 13, 2011
Eleventh Circuit Finds Healthcare Law Unconstitutional--Breaks From Sixth Circuit
Both the White House and the Justice Department have released statements saying they are confident that the law is constitutional. Now with split decisions from the Sixth and Eleventh Circuits the law is ripe for review by the Supreme Court.
Michael Cooper reports in the New York Times today about the opinion.
STATE OF FLORIDA, by and through Attorney General, STATE OF SOUTH CAROLINA, by and through Attorney General, STATE OF NEBRASKA, by and through Attorney General, STATE OF TEXAS, by and through Attorney General, STATE OF UTAH, by and through Attorney General, et. al., Plaintiffs - Appellees - Cross-Appellants, versus UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (case link)
Thursday, March 17, 2011
18 U.S.C. § 1446A(a)(2) not facially overbroad
The overbreadth doctrine prohibits the government from banning unprotected speech if a substantial amount of protected speech is chilled in the process. In U.S. v. Jack Furman Dean, Jr., the Eleventh Circuit held that the Defendant failed to meet his burden of proving that 18 U.S.C. § 1446A(a)(2) was substantially overbroad. The challenged statute in this case provides in relevant part:
(a) In general.—Any person who . . . knowingly produces, distributes, receives, or possesses with intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that—
. . .
(2)(A) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; and
(B) lacks serious literary, artistic, political, or scientific value; or attempts or conspires to do so, shall be subject to the penalties provided in section 2252A(b)(1) . . . .
To meet his burden, the court reasons that the Defendant would have had to identify protected materials targeted by the statute that were not child pornography and not obscene. The court noted that only a very narrow class of materials could be identified as protected by the First Amendment and punished under the statute: materials using adult actors or computer models (not actual children) to depict older teenagers engaged in non-offensive sexual acts. Given this very narrow category of constitutionally protected materials and the “legitimate sweep” of the statute, the court held that the Defendant failed to prove any substantial overbreadth and the statute was upheld as facially valid.
Further, the Eleventh Circuit, citing the Supreme Court’s decision in U.S. v. X-Citement Video, held that 18 U.S.C. § 1446A(a)(2) was narrowly tailored, reasoning that the scienter requirement applied not only to the operative verbs (possess, receive, produce, distribute), but also to the character of the products at issue. In other words, that the statute requires not only that the Defendant knowingly have some control over the items, but that the Defendant know that the items contain child pornography as characterized in subsection (2)(A).
(a) In general.—Any person who . . . knowingly produces, distributes, receives, or possesses with intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that—
. . .
(2)(A) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; and
(B) lacks serious literary, artistic, political, or scientific value; or attempts or conspires to do so, shall be subject to the penalties provided in section 2252A(b)(1) . . . .
To meet his burden, the court reasons that the Defendant would have had to identify protected materials targeted by the statute that were not child pornography and not obscene. The court noted that only a very narrow class of materials could be identified as protected by the First Amendment and punished under the statute: materials using adult actors or computer models (not actual children) to depict older teenagers engaged in non-offensive sexual acts. Given this very narrow category of constitutionally protected materials and the “legitimate sweep” of the statute, the court held that the Defendant failed to prove any substantial overbreadth and the statute was upheld as facially valid.
Further, the Eleventh Circuit, citing the Supreme Court’s decision in U.S. v. X-Citement Video, held that 18 U.S.C. § 1446A(a)(2) was narrowly tailored, reasoning that the scienter requirement applied not only to the operative verbs (possess, receive, produce, distribute), but also to the character of the products at issue. In other words, that the statute requires not only that the Defendant knowingly have some control over the items, but that the Defendant know that the items contain child pornography as characterized in subsection (2)(A).
Tuesday, March 8, 2011
Eleventh Circuit holds Rule 35 Order Did Not Reset Clock on Statute of Limitations for Motion to Vacate Sentence
In Murphy the district court held that its Rule 35(b) order did not reset the clock and dismissed the petitioner’s § 2255 motion.
The issue before the Eleventh Circuit is whether a district court order reducing a defendant’s sentence pursuant to Federal Rule of Criminal Procedure 35(b) for the defendant’s substantial assistance is a new “judgment of conviction” that resets the one-year statute of limitations for filing a motion to vacate a conviction and sentence under 28 U.S.C. § 2255.
Previously, the Sixth Circuit has held that a Rule 35(b) modification does not constitute a new judgment of conviction that restarts § 2255’s statute of limitations clock. See, Reichert v. United States, 101 F. App’x 13, 14 (6th Cir. 2004) “Under 18 U.S.C. § 3582(b), the defendant’s original judgment of conviction remains the final judgment even if his sentence has been modified or reduced as the result of the government filing a Rule 35 motion.”
The court reasoned that because Congress has declared that a Rule 35(b) reduction of a sentence does not affect the finality of a judgment of conviction, and because a Rule 35(b) reduction does not constitute a resentencing where an old sentence is invalidated and replaced with a new one, the statute of limitations need not be reset.
Friday, February 25, 2011
Eleventh Circuit holds 18 U.S.C. § 924(j) allows for concurrent sentences
U.S. v. Julian, No. 09-13673 (February 22, 2011)
The issue before the Eleventh Circuit Court of Appeals was whether murder with a firearm in the course of a crime of violence and drug trafficking, in violation of 18 U.S.C. § 924(j), requires an imposition of consecutive, rather than concurrent, sentences?
Sentences for the use of a firearm in the course of a crime of violence, pursuant to 18 U.S.C. § 924(c), must run consecutive to any other sentences. However, 18 U.S.C. § 924(j), which applies to the use of a firearm in the course of a crime of violence causing death, does not include language requiring consecutive sentencing.
The defendant argued that 924(j) should be read separately from 924(c) because it is a separate offense, while the government argued that 924(c) applies to 924(j) as (j) is a sentencing factor rather than a separate offense. The Eleventh Circuit rejected the government’s argument, holding that concurrent sentences could be issued under 924(j).
Relying largely on the tools of statutory interpretation, the Eleventh Circuit reasoned that the plain language of 924(c) indicates that the consecutive sentence requirement applies only to a “term of imprisonment on a person under this subsection.” Also, the court held that subsection (j) is a separate offense rather than a sentencing factor, based on the pattern of construction of the statutory provisions: both subsection (c) and (j) begin with an offense, which are later followed by sentencing factors. Finally, the Eleventh Circuit reasoned that the legislature could have included mandatory language in subsection (j), but chose not to and, therefore, the legislature intended to omit the consecutive sentence requirement from 924(j).
The case was remanded to the District Court for resentencing. The Eleventh Circuit's decision was a departure from interpretations of the statute in both the Eighth and Tenth Circuits.
The issue before the Eleventh Circuit Court of Appeals was whether murder with a firearm in the course of a crime of violence and drug trafficking, in violation of 18 U.S.C. § 924(j), requires an imposition of consecutive, rather than concurrent, sentences?
Sentences for the use of a firearm in the course of a crime of violence, pursuant to 18 U.S.C. § 924(c), must run consecutive to any other sentences. However, 18 U.S.C. § 924(j), which applies to the use of a firearm in the course of a crime of violence causing death, does not include language requiring consecutive sentencing.
The defendant argued that 924(j) should be read separately from 924(c) because it is a separate offense, while the government argued that 924(c) applies to 924(j) as (j) is a sentencing factor rather than a separate offense. The Eleventh Circuit rejected the government’s argument, holding that concurrent sentences could be issued under 924(j).
Relying largely on the tools of statutory interpretation, the Eleventh Circuit reasoned that the plain language of 924(c) indicates that the consecutive sentence requirement applies only to a “term of imprisonment on a person under this subsection.” Also, the court held that subsection (j) is a separate offense rather than a sentencing factor, based on the pattern of construction of the statutory provisions: both subsection (c) and (j) begin with an offense, which are later followed by sentencing factors. Finally, the Eleventh Circuit reasoned that the legislature could have included mandatory language in subsection (j), but chose not to and, therefore, the legislature intended to omit the consecutive sentence requirement from 924(j).
The case was remanded to the District Court for resentencing. The Eleventh Circuit's decision was a departure from interpretations of the statute in both the Eighth and Tenth Circuits.
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