Florida Criminal Appeals Attorney Law

Appellate Law, Criminal Defense and Appeals and Post Conviction Relief in Florida Courts, Federal District Courts and the 11th Circuit

Category: U.S. 11th Circuit

Donawa v. United States Attorney General, No. 12-13526: Eleventh Circuit Holds that Possession of Cannabis With Intent to Sell or Deliver Under Florida Statute 893.13(1)(a)(2) is Not Aggravated Felony For Immigration Purposes

My commitments to local voluntary bar associations have been keeping me busy, but I wanted to take a moment to pass along an opinion that the Eleventh Circuit issued on November 7, 2013.  In Donawa v. Attorney General, No. 12-13526, Donawa appealed an order rendered by the Board of Immigration Appeals which determined that Donawa was not eligible for cancellation of his removal (ie, deportation) because he committed an aggravated felony.  On appeal to the Eleventh Circuit, the Court agreed with Donawa and reversed.  Slip. op., pg. 2.

Obviously, if you defend federal criminal charges, then this 14-page opinion is a must read because of the potential impact on enhancements and penalties under other federal criminal statutes.  However, even if you only practice in State court, you should read it as well, if only for use as possible persuasive authority in other contexts.

The issue addressed by the Court was narrowly framed: whether Donawa’s conviction under section 893.13(1)(a)(2), as amended by section 893.101, is an aggravated felony as a matter of law.  In its analysis, the Court restated the issue as two distinct questions for purposes of the Immigration and Nationality Act, 8 U.S.C. section 1101(a)(43)(B): (1) whether a violation of section 893.13(1)(a)(2) constitutes a “drug trafficking crime” under 18 U.S.C. section 924(c); and, (2) whether a violation of section 893.13(1)(a)(2) falls into the broader category of “illicit trafficking in a controlled substance.”  Slip. op., pgs. 4-5.

In answering the first question in the negative, the Court reasoned that the Florida statute has no mens rea element.  Slip op., pgs. 9-11 (citing State v. Adkins, 96 So. 3d 412 (Fla. 2012)).  The Court declined to answer the second question, whether a violation of section 893.13(1)(a)(2) falls into the broader category of “illicit trafficking in a controlled substance,” because the Board of Immigration Appeals never considered that issue.  Slip op., pg. 13.

The Donawa opinion wraps up with some great language that criminal appeals and criminal defense lawyers will love:

“The BIA erred in finding that, as a matter of law, a violation of Fla. Stat. 893.13(1)(a)(2), as amended by Fla. Stat. 893.101, qualifies as a drug trafficking aggravated felony.  Mr. Donawa and others convicted under this statute may still be able to meet their burden to demonstrate eligibility for cancellation of removal, and should be given a chance to shoulder that burden.  See 8 U.S.C. section 1229a(c)(4)(A) (placing the burden to establish eligibility from relief from removal on the deportable alien.)  Mr. Donawa’s Petition is GRANTED, and we VACATE AND REMAND for further proceedings consistent with this opinion.”

Changes at the Eleventh Circuit and 4th DCA

A big change has been announced for the Eleventh Circuit: Judge Rosemary Barkett will be leaving the Court.  According to a press release issued by the Department of State on August 23, 2013, Judge Barkett has been appointed to the Iran-United States Claims Tribunal in The Hague.  She will begin her new position on October 1, 2013.  Although she will no doubt excel in her new position, she will be sorely missed by the federal criminal defense and criminal appeals attorneys throughout the State of Florida and the rest of the Eleventh Circuit.

At least Justice Ruth Bader Ginsburg has no intention of leaving her position at the nation’s highest court.  At the age of 80, she is still running full steam ahead, and sees herself as the leader of the liberal opposition on one of the most activist courts in history.  For the article published in the Washington Post, click here.

Meanwhile, on a more local note, Governor Scott has appointed 2 new Judges to the 4th DCA in the last 5 months.  Judges Forst and Klingensmith were appointed in March and August of this year.  Since I’ve already seen their names in several opinions, they both seem to have hit the ground running.  You can see the official profiles of Judges Forst and Klingensmith here.  Best of luck to them in their new positions.

Eleventh Circuit Circuit Reverses After Appellate Counsel Initially Files Anders Brief

Since the Eleventh Circuit has a new Chief Judge now (Judge Dubina passed the gavel to Judge Carnes as of August 1), I thought I’d take a few minutes to mention two interesting opinions issued by the Eleventh.

(1) United States v. Fries, No. 11-15724.  If you handle federal or state criminal appeals, you’re probably familiar with filing Anders briefs (Anders v. California, 386 U.S. 738 (1967)) when you’ve searched the record, but are unable to discover any appealable issues.  Often, the courts accept Anders briefs without question.  However, in Fries, the Eleventh Circuit declined to accept appellate counsel’s Anders brief, and instead directed counsel to brief two specific issues:

(1) whether the district court effectively removed the burden of proof regarding an element of the 18 U.S.C. § 922(a)(5) offense by instructing the jury that the sale of a firearm to a licensed dealer was an exception to the prohibition on sales to non residents that did not apply in the case; and

(2) whether the evidence was insufficient to convict when no evidence was presented as to whether the buyer of the firearm was a licensed dealer.
In a revised brief, appellate counsel argued that Fries’ conviction for transferring a firearm to an out-of-state resident should be reversed for insufficient evidence because (1) the evidence at trial failed to show that he sold a firearm to a person who was not a licensed firearms dealer; and, (2) in the alternative, he should be granted a new trial because the court’s jury instructions shifted the burden of proof.
The Eleventh Circuit agreed, and reversed for a simple reason:  at trial, the prosecutor failed to establish an essential element required by section 922(a)(5)–that the individual to whom Fries sold the firearm lacked a federal firearms license (“FFL”).  After a bit of help from the Court by declining to accept the Anders brief, this is a good win for the defense.  It’s not very often that the Government commits such an error.  As noted by Judge Carnes in his concurrence, all the prosecutor had to do during the Government’s case in chief was ask a simple question as to whether the ATF agent who purchased the gun from Fries at the Tallahassee Gun and Knife Show had a federal firearms license.
(2) In United States v. Curbelo, No. 10-14665, the Court affirmed Curbelo’s conviction for a count of conspiracy to manufacture and possess marijuana with intent to distribute, and a second count of manufacturing and possessing marijuana with intent to distribute.  According to the opinion, it seems that Mr. Curbelo was employed as a carpenter for a Mr. Diaz, and that when the carpentry work was no longer lucrative enough, Mr. Curbelo decided to join in Mr.  Diaz’s grow-house operations.  Although the case is a fairly routine opinion affirming a conviction, it’s worth a read, if you have time.  Although I won’t discuss each of the five points analyze by the Court, I will note four of them for you here.
  • First, the case illustrates a rule often invoked in criminal (and civil, for that matter) appeals: if you don’t object or make a specific argument below, you’re generally going to be precluded from raising that argument on appeal.  In his brief, Curbelo argued that the DEA obtained GPS tracking data from vehicles driven by Mr. Diaz and another individual named Herman Torres in violation of the Fourth Amendment, as held in United States v. Jones, 132 S.Ct. 945, 948 (2013).  However, the Court refused to entertain such argument because defense counsel never moved to suppress the DEA’s GPS tracking evidence.
  • Second, the Court addressed another topic that often arises in criminal appeals: ineffective assistance of counsel.  Although Curbelo argued that his attorney was ineffective for failing to move to suppress the DEA GPS tracking evidence, the Court refused to consider the claim on the merits because the record was not sufficiently developed.
  • Third, the Court addressed Curbelo’s argument that the evidence was insufficient to support the sentencing enhancement for a conspiracy involving more than 1,000 marijuana plants.  The Court quickly disagreed.  In so doing, the Court noted that because the number of plants was determined by a jury, Alleyne v. United States,133 S.Ct. 2151 (2013), which was decided after the case was briefed and oral argument was held, required affirmance of the sentencing enhancement.
  • Finally, the Court rejected Curbelo’s Confrontation clause argument as to the Government’s use of English-translation transcripts of recorded conversations at trial.  In it’s analysis, the Court focused on Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011) and Crawford v. Washington, 541 U.S. 36 (2004).

United States v. Davila: No. 12-167: Although Judge’s Statements Made During In Camera Plea Conference Violated Rule 11, Error Does Note Require Plea to Be Vacated

Things have been busy in these last couple of weeks leading up to the Fourth of July holiday, so I’ll keep this short.  Federal criminal defense and federal criminal appeals lawyers, especially those practicing in the Southern District of Florida or the Eleventh Circuit, will be interested to know that the US Supreme Court has reversed the Eleventh Circuit on an important issue: the consequences of a judge’s violation of Fed. R. Crim. P. 11 regarding guilty pleas.  In United States v. Davila, No. 12-167, the Court held that even though the Magistrate Judge who presided over an in camera plea conference made statements which violated Rule 11′s ban on judicial participation in plea discussions, Davila was not entitled to have his guilty plea vacated because he failed to show that he was prejudiced by the judge’s statements.

Is it just me, or does anyone else notice the irony of this decision?  This is a rare case where the Eleventh Circuit actually sided with the criminal  defendant, and afforded him relief.  Yet, on certiorari review, the US Supreme Court took the position most often taken by the Eleventh Circuit–and denied the criminal defendant relief.

Eleventh Circuit Reverses Two Cases on Sentencing Issues: United States v. Washington, No. 11-14177, and United States v. Hamilton, No. 12-10899

If you handle Federal criminal defense cases or criminal appeals in the Eleventh Circuit, you’re well aware that the Government almost always wins in criminal appeals.  But today, I wanted to pass along two recent opinions where the Government lost on different sentencing issues.

In United States v. Washington, No. 11-14177, the Eleventh Circuit reversed a sentence because the Government failed to adduce any evidence that there were 250 or more victims as required by the section 2B1.1(b)(2)(C) enhancement of the Sentencing Guidelines.  Since the opinion is a mere 10 pages, you should take a moment to read it.  But if you don’t have time, here’s the Cliff’s Notes version: the best part of the slip opinion comes on page 9, where Judge Jordan, writing for the Court, declined the Government’s request to allow the Government the chance to prove, on remand, that there were 250 or more victims.  In so doing, Judge Jordan emphasized that despite the fact that the Government was aware that Washington specifically objected to the number of  victims charged, the Government made no effort whatsoever to prove up the number of victims.  See Washington, No. 11-14177, slip op., pg. 9.  Because the Government failed to meet its burden of proof on the contested sentencing issue, the Eleventh remanded the case to the District Court with directions for the District Court to resentence Washington to the 2-level enhancement based on his concession on appeal that the offense involved only 10 or more victims.

Next, in United States v. Hamilton, No. 12-10899, the Court reversed two District Court orders denying Hamilton’s Motions for Modification or Reduction of Sentence filed pursuant to 18 U.S.C. § 3582 (c)(2) because the District Court’s findings as to drug quantity were insufficient.  Although the opinion is a bit longer at 25 pages, it’s still a fairly quick read, as most of the opinion is devoted to a statement of the facts and procedural history.  The slip opinion’s analysis starts at page 16.  After quickly discussing the principles which govern section 3582(c)(2) motions and two of its prior decisions addressing drug quantity, the Court pointedly noted the flaws of the District Court’s previous orders, and explained the District Court’s task on remand.

Maybe it’s just me, but based on some of the opinions I’ve read over the last few months, it seems as though the Eleventh Circuit is becoming less of a rubber stamp for the Government.  Only time will tell, but I sure hope the trend continues.

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