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

Tag: constitutional

United States v. Hall, No. 11-14698: Eleventh Circuit Reverses 4-Level Enhancment For Fraudulent Use of Identifying Information to Obtain Credit Cards

I had to do a double-take when I read the opening paragraph of United States v. Erica Hall, No. 11-14698:

Hall pled guilty to conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349 (Count 1); conspiracy to commit identity theft and access device fraud, in violation of 18 U.S.C. § 371 (Count 2); wrongfully obtaining and transferring individually identifiable health information for personal gain, in violation of 42 U.S.C. § 1320d-6(a)(2) (Count 3).  When imposing Hall’s sentence, the district court applied a four-level enhancement under U.S.S.G. § 2B1.1(b)(2)(B) because it found that the offense involved more than 50 but less than 250 victims.  In objecting to the enhancement, Hall argued that the mere transfer or sale of identifying information unlawfully or without authority does not equate to the actual use of identifying information for a fraudulent purpose.  Therefore, because the conspirators actually used only identifying information for 12 out of 141 individuals to obtain fraudulent credit cards, Hall argued that the two-level enhancement under U.S.S.G. § 2B1.1(b)(2)(A) was more appropriate because it applies to more than 10, but less than 50, victims.  The district court rejected Hall’s argument, but we do not.  Accordingly, we vacate Hall’s sentence and remand for resentencing.

Wow.  Those are words not often found in an Eleventh Circuit opinion.  No doubt that Hall’s appellate counsel and other criminal defense lawyers practicing in the Southern District of Florida will be pleased.

In another case, Norman Mearle Grim, Jr.  v. Fla. Sec’y, Dept. of Corrs., No. 11-11890, the Eleventh Circuit reverted to its usual self and denied a death-row inmate’s habeas petition.  In the opinion, the Court again rejected a constitutional claim based on Ring v. Arizona, 536 U.S. 584 (2002).  In support, the Court pointed to a recently issued decision, Evans v. Sec’y, Fla. Dep’t of Corrs., 699 F.3d 1249, 1264 (11th Cir. 2012), where the Court held that Florida’s death penalty statute is constitutional.  For my previous post on the Evans case, click here.

Eleventh Circuit Finds Florida’s Death Penalty Statute Constitutional: What Now? Rehearing in Eleventh Circuit, or Petition for Writ of Certiorari to Supremes?

You may have read my previous post wherein I mentioned that the Eleventh Circuit has finally ruled that Florida’s death penalty statute is constitutional.  See Evans v. Sec‘y, Dept. of Corrections, No. 11-14498 (opinion issued October 23, 2012).  Well, now what can Evans do?

Only Evans and his criminal appeals lawyers know for certain what will happen next, but any appellate attorney knows that Evans generally has 3 options: (1) do nothing; (2) seek rehearing in the court of appeals; or, (3) seek discretionary review in the United States Supreme Court.  If he is going to try to seek rehearing in the Eleventh Circuit or discretionary review in the United States Supreme Court, he’ll have to act quickly.

A motion for rehearing in the Eleventh Circuit (“Petition for Panel Rehearing”) will have to be filed within 14 days after the entry of judgment.  See Fed. R. App. P. 40.  The Federal Rules of Appellate procedure can be found on the website for the Eleventh Circuit by clicking here.

If Evans decides to seek review in the United States Supreme Court, United States Supreme Court Rule 13 provides that a party seeking to file a petition for writ of certiorari will have to file the petition within 90 days after the entry of judgment.   Rule 13.3 further provides that the 90 days begins to run from the date of the entry of the judgment, not the date mandate issues.  If rehearing is sought in the lower appellate court, the 90 days begins to run from the date of the denial of rehearing or, if rehearing is granted, the subsequent entry of judgment.  The Rules of the United States Supreme Court may be viewed here.

Put simply, seeking discretionary review in the United States Supreme Court is a long shot.  For an interesting article on seeking review in the Supreme Court, view an article posted on the Mayer Brown website by clicking here.

And now the next round of waiting begins . . .

Evans v. Sec’y, Dept. of Corrections, No. 11-14498: Eleventh Circuit Holds Florida’s Death Penalty Statute Constitutional

Florida’s criminal defense and criminal appeals attorneys who follow death penalty jurisprudence may be interested to know that the Eleventh Circuit has finally issued an opinion in Evans v. Sec’y, Dept. of Corrections, No. 11-14498, a case where the United States District Court for the Southern District of Florida found that Florida’s death penalty statute violated Ring v. Arizona,  536 U.S. 584 (2002).  Not surprisingly, the Eleventh Circuit disagreed with the District Court, and reversed the grant of habeas relief on such basis.

In support of its holding that Florida’s death penalty statute does not violate Ring, the Court first noted that the United States Supreme Court has repeatedly held that Florida’s judge-based sentencing system does not violate either the 6th or 8th Amendments.  See Evans, slip op. at pgs. 11-16 (citing Proffitt v. Florida, 428 U.S. 242 (1976); Spaziano v. Florida, 468 U.S. 447 (1984); Hildwin v. Florida, 490 U.S. 638 (1989); and, Porter v. McCollum, 558 U.S. 30, —, 130 S.Ct. 447, 453 (2009).

Second, the Court reasoned that the Florida death penalty statute differs from the Arizona death penalty statute at issue in Ring because a Florida jury renders an advisory verdict addressing the existence of aggravating circumstances, and because, inter alia, the sentencing judge must give the jury’s sentencing verdict “great weight” pursuant to Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975).  In discussing the differences between the Florida and Arizona death penalty statutes, the Eleventh Circuit also noted that in Ring and several other opinions, the United States Supreme Court has hinted that Florida’s death penalty scheme might pass constitutional muster.  Evans, slip op. at pgs. 17-25 (citing Walton v. Arizona, 497 U.S. 639 (1990); Jones v. United States, 526 U.S. 227, 250–51 (1999); and Hildwin, 490 U.S. 638).

Finally, the Eleventh Circuit noted that although some United States Supreme Court jurisprudence may cast doubt on the constitutionality of Florida’s death penalty scheme, only the United States Supreme Court has the authority overrule its own decisions.  See Evans, slip op., at pgs. 26-27 (collecting cases).  In short, because Hildwin, 490 U.S. 638, is directly on point, and has never been overruled, the Eleventh Circuit stated that it is obligated to follow Hildwin.  See Evans, slip op., pg. 30 (citing Hildwin, 490 U.S. at 640–41) (considering the procedures prescribed by Fla. Stat. § 921.141 (Supp. 1988) and holding that “the Sixth Amendment does not require that the specific findings authorizing the imposition of the sentence of death be made by the jury.”)


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