Federal 11th Circuit Criminal Case Law Update (January 16, 2023 – January 20, 2023)

The “Cite” of the Crime Podcast

Federal 11th Circuit Criminal Case Law Update (January 16, 2023 – January 20, 2023 )

Listen to this week’s The “Cite” of the Crime Podcast episode here.


  • 11 cases
  • 3 published decisions
  • 8 unpublished decisions

This week we have a Guideline vs. Guideline Commentary rumble, a case about one really expensive Pokeman card, a case involving the dangers of carrying sandwich bags in one’s car, a case involving anthrax (the disease, not the band), and much more. 

Case #01 – United States v. Dupree, No. 19-13776 (11th Cir. Pub. Dec.)(January 18, 2023)

  • Dupree is a mega en banc case involving the interplay between the sentencing guidelines and the sentencing guideline commentary. 
  • Have you ever wondered what legal significance the commentary in the guidelines has related to the actual guideline provisions?  
  • Well this case answers that question. 
  • In Dupree, the 11th Circuit wrestled with the question of whether an inchoate offense qualifies as a controlled substance offense for career offender purposes under the guidelines. 
  • A person is a career offender if they have at least two prior felony convictions for either a crime of violence or a controlled substance offense and the instant offense is a felony that is either a crime of violence or a controlled substance offense.
  • Mr. Dupree was charged with conspiracy to possess with intent to distribute a controlled substance, and was sentenced as a career offender because he had two prior controlled substance convictions. 
  • But, on appeal, he argued that his conspiracy charge was not a controlled substance offense because §4B1.2(b), which defines a “controlled substance offense” doesn’t include in the plain text the word “conspiracy.” If Congress meant to include it, they would have included it. 
  •  Not so fast, says the government.  All we need to do is look to the commentary.  
    • Application Note 1 of §4B1.2 states that a “Crime of violence” and “controlled substance offense” include the offenses of aiding and abetting, conspiring, and attempting to commit such crimes. 
    • Well, which controls?  The plain language of the guideline or the added language in the application note? 
    • Initially, a panel of the 11th Circuit held that the language in application note was binding, so Mr. Dupree lost.
    • But the 11th decided to rehear the case en banc and vacated that opinion. 
    • So, here we are with a fresh slate. 
    • The 11th Circuit began with the Supreme Court’s decision in Stinson v. United States, a 1993 case where the Court held that the guideline commentary should receive the same level of deference given to an agency’s interpretation of its own rules.  
    • How a Court should view that interpretation was first laid out by the Supreme Court in a case called Seminole Rock.  In that case, the Supreme Court held that a court should first consider whether the meaning of the regulation is in doubt.  If the regulation is ambiguous, then the court can consider the agency’s interpretation of it and should give that interpretation great deference and should disturb it only if it is inconsistent with the regulation or plainly erroneous. 
    • Seminole Rock was reaffirmed in a case called Auer and the deference to an agency’s interpretation of a regulation is now referred to as Auer deference. 
    • So, how does a court determine whether there is ambiguity in the regulation? 
      • It uses traditional tools of construction.  After that, if no there is no ambiguity, then there is no Auer deference. 
      • In other words, if the regulation is not ambiguous, the courts will not look to the agency’s interpretation of that regulation. 
      • So, the question before the 11th Circuit is whether this same approach applies to the sentencing guidelines?  Or are the sentencing guidelines different from other regulations?
      • And the 11th Circuit said, “yes,” relying on another Supreme Court case, Kisor and holding that the analysis applies to the sentencing guidelines just as it does to other regulations. 
      • The dissent believes that the majority essentially overruled Stinson, the Supreme Court case that held that the commentary should be given the same weight as the guidelines, but the majority responded that its decision flows harmoniously from Stinson followed by Seminole Rock, Auer and Kisor which developed the case law to establish that there is no deference to an agency’s interpretation of its regulation unless there is ambiguity in the regulation.
    • So, this is huge news in the federal sentencing world.  From now on, in the 11th Circuit, when arguing sentencing enhancements and other guideline issues and whether that guideline applies, we must start with arguing whether the actual guideline is ambiguous.  If it is not, the court should ignore the commentary and only look at the plain language of the guideline text.  If the guideline is ambiguous, then the court can look at the guideline commentary and give it the deference required under Stinson, Auer, Seminole Rock and Kisor. 
    • This is a double edged sword.  Certainly for Mr. Dupree and any other person that has prior conspiracy convictions that previously would have made him a career offender, this is a good thing.  
    • But it cuts both ways.  If there is a provision that is not ambiguous and the guideline commentary actually helps your client, the government is going to be able to argue Dupree and that the plain text controls.  It will be interesting to see how this plays out. 
    • But, narrowing in on the outcome of this decision, from now on, in the 11th and unless or until the issue reaches the Supreme Court, aiding and abetting, conspiracy or attempt to commit a crime of violence or controlled substance offense will not serve as a predicate offense for a career offender designation. 

Case #02 – United States v. Oudomsine, No. 22-10924 (11th Cir. Pub. Dec.)(January 18, 2023)

  • Oudomsine is a procedural and substantive reasonableness of the sentence case.  
  • I don’t typically cover reasonableness of the sentence cases on the podcast because, quite frankly, they are all almost identical, but I do have links to every published and unpublished case in the show notes, so you can always take a look at any cases I don’t cover. 
  • But this was a published decision, so we’ll cover it. 
  • Mr. Oudomsine was sentenced to 36 months for wire fraud.  This was an upward variance from his guideline range of 8-14 months.  
  • His maximum sentence was 240 months. 
  • As for his procedural reasonableness claim, the district court considered the parties’ arguments, the guidelines, the guideline range, the PSR and the §3553(a) factors and determined that Mr. Oudomsine used his education, ability and background to steal money from a national benevolence fund taking $85,000 designed to save the economy during the pandemic.  
    • The district court determined that an upward variance was necessary for general deterrence. 
    • Although the district court didn’t address each §3553(a) factor, it isn’t required to do so.  
    • And Mr. Oudomsine’s argument that this was a run of the mill fraud case fell on deaf ears, as the 11th determined not only that there was no plain error, but that there was no error at all. 
  •  Turning to the substantive reasonableness claim, Mr. Oudomsine claimed that the district court varied upwards because the court didn’t like him because he spent $57,789 of the stolen money to buy one single Pokemon card.  Seriously. The guy stole Covid relief funds to buy a Pokemon card. 
  • Apparently the 11th Circuit didn’t like him either because, and I quote, “it would not be surprising, or disqualifying, if a judge did not like a person who defrauded a federal program of funds intended to promote the public good and help small businesses, particularly when he stolen funds were used for the purpose of purchasing a $57,789 Pokemon card.”  
  • So, it’s ok if the district judge doesn’t like you.  Not a basis for an appeal apparently. 
  • And here, as the 11th Circuit almost always does, the Court upheld the substantive reasonableness of the sentence noting that the 36 months, although higher than the guidelines, was far below the 240 month statutory maximum. 
  • Case affirmed. 

Case #03 –  United States v. Scott, No. 21-11467 (11th Cir. Pub. Dec.)(January 20, 2023)

  • Scott is a healthcare fraud case that ended in a conviction after a five day trial. 
  • Mr. Scott was charged with submitting fraudulent claims to Medicare for genetic cancer screening tests for beneficiaries that didn’t have cancer or a family history of cancer and were not ordered by the beneficiary’s primary care physicians. 
  • The genetic cancer screening tests would simply assess the risk of developing cancer and weren’t covered under Medicare. 
  •  On appeal, Mr. Scott challenged his healthcare fraud convictions but didn’t appeal the kickback convictions for paying people to refer patients for the screening tests. 
  • Mr. Scott claims that the indictment failed to state the charged offense and that the evidence was insufficient. 
  • Both claims rely on his argument that because Medicare does cover the genetic screening tests, he didn’t commit a crime.  But he didn’t present any evidence at trial or request a jury instruction that Medicare does generally cover the tests. 
  • As an initial matter, Mr. Scott did not file a motion to dismiss the indictment, but 11th Circuit precedent allows a defendant to challenge the indictment for the first time on appeal, but it’s under the plain error standard. 
    • So, at trial, the government presented evidence that the genetic screening tests are not listed as covered services in the Medicare regulation. 
    • Medicare provides medically necessary services for people over 65 or who have disabilities and it covers diagnostic tests or services that are reasonable and necessary for the diagnosis of illness or injury.  
    • Diagnostic tests are only covered when ordered by a physician who is treating the beneficiary for a specific medical problem and the results of the test will be used in the management of the specific medical problem. 
    • Mr. Scott’s indictment alleged that Medicare did not cover diagnostic testing that was not reasonable or necessary for the diagnosis or treatment of an illness or injury or to improve the functioning of a malformed body member. 
    • The indictment also alleged that Medicare required the test to be ordered by the treating physician, and if not, then the test is not reasonable and necessary. 
    • The indictment then alleged that Mr. Scott conspired with others to submit claims to medicare for genetic tests that were not medically necessary.  
    • Mr. Scott argues that the indictment fails to charge health care fraud because genetic testing is not diagnostic and is considered a Grade A/B preventive testing by the U.S. Preventive Services Task Force and therefore covered by Medicare. 
    • But the 11th Circuit found this argument unpersuasive because he did not demonstrate that the genetic tests are covered by Medicare. 
    • We won’t get into the weeds on Grade A/B tests, but the 11th noted that Mr. Scott did not provide any federal statutes or regulations supporting his position that the genetic tests are Grade A/B tests and not diagnostic tests.  
    • Therefore, the indictment was sufficient. 
  • Similarly, the evidence at trial was sufficient. 
    • The matter of Medicare coverage has to be resolved at trial. 
    • In other words, Mr. Scott is free to present evidence that the testing is covered by Medicare, just as the government is entitled to present evidence that the testing is not covered by Medicare, and it is up to the jury to decide. 
    • And here, Mr. Scott didn’t present any evidence, including the USPSTF’s recommendation, that the genetic tests were covered. 
    • The evidence established that Mr. Scott owned the company, a telemarketing company that marketed the genetic tests to potential customers. 
    • His employees purchased Medicare beneficiary lists from data brokers, called those beneficiaries and recruited them to accept shipment of the tests to their homes.  
    • Mr. Scott paid kickbacks to a company that provided doctor’s orders authorizing the tests, but these doctors were not the beneficiaries’ primary care physicians and never actually talked to or saw the beneficiaries. 
    • Medicare was billed for more than $3 million dollars paying a minimum of $1,500 per test.  
    • The 11th Circuit held that this was sufficient evidence to support conviction. 
    • Mr. Scott paid kickbacks and a jury could infer that he knew the doctors’ orders were illegitimate because of those kickbacks, which he admitted he knew was improper, and because he knew the telemedicine doctors had no previous relationship with the beneficiaries and they had no history of cancer or family history of cancer.  
  • So, the 11th Circuit held that both the Indictment and the evidence at trial were sufficient to support Mr. Scott’s conviction. 
  • Case Affirmed. 

Case #04 – United States v. Beiter, No. 22-12282 (11th Cir. Unpub. Dec.)(January 18, 2023)

  • Beiter is a disclosure of grand jury materials case. 
  • Mr. Beiter was charged with corruptly endeavoring to impede the due administration of the Internal Revenue laws, willful attempt to evade income taxes and security instrument fraud. 
  • He was convicted on all counts and sentenced to 120 months in prison. 
  • His direct appeal was affirmed and he made a pro se motion for a copy of all grand jury transcripts in his case alleging that the government committed perjury before the grand jury. 
  • The District Court denied the motion and Mr. Beiter appealed. The government moved for summary affirmance. 
  • On appeal, Mr. Beiter argues that the grand jury transcripts will show that he is actually innocent and he needs them for a future §2255 motion. 
  • Grand jury proceedings are secret and should only be disclosed in limited circumstances. 
  • But, under Federal Rule of Criminal Procedure 6(e)(3)((E)(i) a district court can authorize disclosure of a grand jury matter preliminarily to or in connection with a judicial proceeding if the party seeking disclosure shows a particularized need for the material.  
  • A particularized need exists when the material is needed to avoid a possible injustice in another proceeding, the need of disclosure is greater than the need for secrecy, and the request is structured to cover only material actually needed.
  • Unsubstantiated allegations do not satisfy the particularized need standard. 
  • So, you can’t just say, I need the grand jury transcripts because I know the witnesses lied.  You have to provide specifics and back those specifics up.  This is a tall task when you don’t know what exactly was said in the grand jury proceedings.  
  • Also, if a defendant is found guilty at trial, then any error in the grand jury proceedings is harmless because the jury found the defendant guilty beyond a reasonable doubt, which is a higher standard than the probable cause standard found by the grand jury. 
  • Here, the 11th Circuit granted the government’s motion for summary affirmance because Mr. Beiter only made a blanket request for all grand jury information and didn’t demonstrate any particularized need. 
  • And at any rate, he was convicted by a jury, so any error, if any, was harmless. 
  • Summary Affirmance granted. 

Case #05 – United States v. Bivins, No. 22-10820 (11th Cir. Unpub. Dec.)(January 20, 2023)

  • Bivens is a legality of a standard condition of supervised release case. 
  • Mr. Bivens was on supervised release and one of the standard conditions is that he cannot interact or communicate with known felons. 
  • But what if your boyfriend or girlfriend is a convicted felon? Surely, a trial court can’t prevent  you from interacting with your significant other. 
  • Well, that is what Mr. Bivins argued, for the first time on appeal. 
  • Mr. Biven’s boyfriend was a convicted felon.  So, Mr. Bivens couldn’t interact with him while on supervised release. 
  • Mr. Bivens was found to have violated this condition of his supervised release and he appealed to the 11th Circuit, arguing that the district court erred by not excluding his boyfriend from that standard condition. 
  • Mr. Bivens argued that the standard condition was also an improper delegation of judicial authority to the probation officer. 
  • Unfortunately for Mr. Bivens, because he didn’t object at the trial level, plain error review applies. 
  • Under §5D1.3(c), Standard Condition 8 states that the defendant shall not communicate or interact with someone the defendant knows is engaged in criminal activity.  If the defendant knows someone has been convicted of a felony, the defendant shall not knowingly communicate or interact with that person without first getting the permission of the probation officer. 
  • Here, under the plain error standard, because there is no 11th Circuit or Supreme Court decision on point holding that a district court errs by failing to exclude a person from Standard Condition 8, there is no plain error. 
  • The Court next turned to Standard Condition 12 which under §5D1.3(c) states that if a probation officer determines that the defendant poses a risk to another person (including an organization), the probation officer may require the defendant to notify the person about the risk and the defendant shall comply with that instruction.    The probation officer may contact the person and confirm that the defendant has notified the person about the risk. 
  • So, can the judge delegate the authority to decide whether a person poses a risk to a probation officer, or is that power reserved to the judge? 
  • Well, the 11th Circuit has distinguished between ministerial acts or support service that can be delegated to probation officers, and ultimate responsibility of imposing sentence that can’t be delegated. 
  • Under Article III, courts may not delegate the ultimate responsibility of judicial functions to probation officers, but they may delegate duties to support judicial functions as long as the judge retains and exercises ultimate responsibility.
  • In Nash, the 11th Circuit held that it was proper for the judge to delegate the power to notify third parties of Mr. Nash’s criminal record, as directed by the probation officer.  
    • So, Mr. Nash’s probation officer got to decide whether he or she was going to tell Mr. Nash’s employer, friends, family, etc. about his criminal conviction and this is fine according to the 11th. 
  • In Mr. Bivens case, because he didn’t object, plain error again rears its ugly head and because there is no binding precedent on point, there is no plain error.  
  • But even if this wasn’t reviewed under the plain error standard, the Court went on to find that, under the Nash decision, it was not an improper delegation of judicial authority to allow the probation officer to determine when, where and to whom notice must be given. 
  • Case Affirmed. 

Case #06 – United States v. Farrelly, No. 21-11413 (11th Cir. Unpub. Dec.)(January 17, 2023)

  • Farrelly is a motion to withdraw plea case on a sex case. 
  • Mr. Farelly lived with his girlfriend and her children, including a teen daughter. 
  • Mr. Farrelly had sex with the daughter who was 16 years old at the time.  
  • He plied her with alcohol, marijuana, money and cash.  
  • An outstanding Federal Public Defender and esteemed member of the American College of Trial Lawyers originally represented Mr. Farrelly during the change of plea hearing. 
  • During the colloquy, the magistrate judge saw a look of hesitancy on Mr. Farrelly’s face, so the proceeding was continued to give Mr. Farrelly more time to discuss the change of plea with his attorney.  
  • The case came back before the magistrate judge for a subsequent change of plea hearing and the judge went through the whole plea colloquy – nobody has threatened or coerced you, this is what you want to do, etc. etc. and found that the plea was knowing, voluntary and intelligent.
  • To his attorney’s credit, he didn’t waive the 14 day objection period, which is almost always done in a change of plea hearing, so Mr. Farrelly had 14 days to object to the magistrate’s recommendation for the district court to accept the plea. 
  • About 30 days later, the initial PSR comes out and two weeks later, his attorney moved to withdraw as counsel and conflict counsel was appointed. 
  • Before sentencing, Mr. Farrelly moved to withdraw his plea and the district court held three hearings on the issue. 
  • Mr. Farrelly argued that he entered the plea because the government threatened and coerced him and his family and friends. 
  • Both Mr. Farrelly and his original public defender testified at the hearings, but the district court denied the motion to withdraw the plea and sentenced Mr. Farrelly to 30 years in prison.  
  • In order to withdraw a guilty plea before sentencing, Federal Rule of Criminal Procedure 11(d)(2)(B) requires the defendant to show a fair and just reason. 
  • The 11th Circuit has developed four factors known as the Buckles factors to determine whether there is a fair and just reason.
    • 1) whether close assistance of counsel was available
    • 2) whether the plea was knowing and voluntary
    • 3) whether judicial resources would be conserved, and 
    • 4) whether the government would be prejudiced if the defendant were allowed to withdraw the plea. 
  • The first two factors are the most important. 
  • In this case, Mr. Farrelly didn’t want to withdraw his plea until after the PSR came out.  
  • And because he waited until after the district court accepted his plea to object, any issue with his prior attorney not explaining the 14 day objection period had no effect. 
  • The 11th Circuit also found that Mr. Farrelly’s original attorney provided close assistance of counsel. 
  • And Mr. Buckle’s own words during the plea colloquy weigh against him, because he swore under oath that his plea was not forced or coerced and was knowing, intelligent and voluntary. 
  • So, finding that the first two Buckles factors weighed against Mr. Farrelly, the 11th Circuit concluded that the district court properly denied his motion to withdraw plea. 
  • As for the substantive reasonableness of his 30 year sentence, according to the Court, it was well below the maximum sentence of life and is not one of the rare sentences resulting from an abuse of very broad discretion. 
  • Case Affirmed. 

Case #07 – United States v. Garza, No. 21-13294 (11th Cir. Unpub. Dec.)(January 17, 2023)

  • Garza is a safety valve case. 
  • Mr. Garza pled guilty to conspiracy to distribute and possess with intent to distribute 50 grams or more of methamphetamine, distributing and possession with intent to distribute 50 grams or more of methamphetamine, and possessing with intent to distribute 50 grams or more of methamphetamine. 
  • His guideline range was 87 – 108 months with a 10 year mandatory minimum, so his guidelines became 120 months. 
  • Mr. Garza requested safety valve relief under §5C1.2 of the guidelines and under 18 USC §3553(f).
  • The fifth requirement for safety valve, known as the tell all provision, requires that the defendant truthfully provide to the government all information and evidence he has about the offense before the sentencing hearing.  
  • Mr. Garza met with case agents before sentencing and he told them that he was the source of the meth and he would discuss this conspiracy.  He refused, however, to discuss any other conspiracy or any other criminal conduct. 
  • The government objected to the applying the safety valve to Mr. Garza because he refused to tell them who supplied him with the meth and refused to provide any other information about his supplier.   
  • The government listed several specific questions that Mr. Garza refused to answer.  
  • Mr. Garza’s response was that the government’s questions were outside the scope of the charged conspiracy and related to prior conspiracies. He claimed that he was the source of the meth for this conspiracy. 
  • So basically, Mr. Garza is trying to narrow the scope of the conspiracy to a time frame that begins after he received the meth from his supplier. 
  • The government argued that the supplier of the meth charged in this conspiracy is part of the conspiracy. 
  • The district court agreed with the government finding that Mr. Garza wasn’t claiming that he actually cooked up the batch of meth and that he had an obligation to tell the government where the meth came from. 
  • Under United States v. Johnson, a defendant has an affirmative duty to truthfully disclose all information and evidence that he has about the offense and all relevant conduct. 
  • This is very broad language.  
  • And the 11th Circuit held here that Mr. Garza did not meet his burden in providing the required information.  
  • He refused to disclose any information about how he obtained the meth, and the 11th Circuit has already rejected the argument in United States v. Camacho that the source of the meth for one conspiracy was part of a previous conspiracy. 
  • Camacho held that a defendant’s refusal to reveal his source of the drugs disqualifies him from safety valve relief.   
  • Case Affirmed. 

Case #08 – United States v. Lane, No. 19-13197 (11th Cir. Unpub. Dec.)(January 20, 2023)

  • Lane is a career offender case involving a mailing threatening communications and threatening to use weapons of mass destruction case. 
  • Mr. Lane was in State prison when he sent letters to a state attorney’s office that included a white substance and stated, Why don’t you inhale this powder and die.. Maybe it is anthrax who knows.  F U die, die, die, ha, ha, ha, anthrax, goodbye.  
  • The substance later tested negative for anthrax and Mr. Lane was indicted in federal court.  
  • He pled guilty and was classified in the PSR as a career offender under §4B1.1 because the instant offense was a crime of violence and he had at least two prior felony convictions for crimes of violence according to the PSR. 
  • The PSR listed three qualifying offenses which included a Florida robbery conviction, a Florida aggravated battery conviction and a federal mailing threatening letters conviction.  
  • Mr. Lane objected, arguing that only his robbery conviction was a proper predicate offense for career offender purposes. 
  • Mr. Lane conceded that Turner v. Warden Coleman held that a Florida aggravated battery conviction is a violent felony for Armed Career Criminal purposes and the definition of a crime of violence is nearly identical as it applies to both career offender and armed career criminal.  
  • But Mr. Lane argued that Turner was wrongly decided, decided under a different statute and didn’t specifically address his argument that Florida’s aggravated battery statute only required recklessness, which is an insufficient mens rea to qualify as a crime of violence. 
  • The 11th said no dice.  Turner is directly on point and under 11th Circuit case law, Florida Aggravated Battery is a crime of violence.  
  • There are two prongs to Florida’s Aggravated Battery statute. The first involves the intentional or knowing causation of great bodily harm and the other involves use of a deadly weapon.  
  • Either way, the 11th Circuit determined that both prongs has an element the use, attempted use, or threatened use of physical force against the person of another, which is the definition of a crime of violence unser §4B1.2(a)(1).
  • The Court also found that Florida’s aggravated battery statute requires more than mere recklessness; rather it requires only intentional conduct.   
  • So, with the robbery conviction and the aggravated battery conviction qualifying Mr. Lane for career offender status, the Court didn’t have to get to the mailing threatening letters conviction.    
  • Case Affirmed. 

Case #09 – United States v. Quijada-Moreno, No. 21-13788 (11th Cir. Unpub. Dec.)(January 18, 2023)

  • Quijada-Moreno is a minor role in a drug conspiracy case. 
  • Mr. Quijada-Moreno pled guilty to conspiracy to possess with intent to distribute 1 kilo or more of heroin. 
  • His guideline range was 87-108 and he was safety valve eligible so there was no 10 year mandatory minimum. 
  • He objected to the PSR arguing that he should be assessed reduction for playing a minor role in the conspiracy under §3B1.2 because he was merely a courier transporting the drugs. 
  • The government argued that he was an average participant and therefore not entitled to the minor role reduction. 
  • The record showed that Mr. Quijada-Moreno would travel from Chicago to Florida to pick up money and would bring it back to Chicago. He would also bring heroin down from Chicago.  He was directly under the main coconspirator. 
  • The district court overruled his objection finding that he was responsible for 11 kilos,  it was not a one time transaction, he was a trusted member of the conspiracy and he had authority to hold onto kilos and to transport the drugs and money. 
  • The district court did not see a tremendous distinction between Mr. Quijada-Moreno’s role and the other co-conspirators’ roles. 
  • A §3B1.2 minor role reduction requires that the defendant is substantially less culpable than the average participant in the criminal activity.    
  • The defendant has the burden of proving his role by a preponderance of the evidence. 
  • Under the guidelines, factors for the court to consider include:
    • The degree to which the defendant understood the scope and structure of the criminal activity,
    • The degree to which the defendant participated in planning or organizing the criminal activity,
    • The degree to which the defendant exercised decision-making authority or influenced the exercise of decision making authority, 
    • The nature and extent of the defendant’s participation in the commission of the criminal activity, including the acts the defendant performed and the responsibility and discretion the defendant had in performing those acts, and 
    • The degree to which the defendant stood to benefit from the criminal activity.  
  • Utilizing these factors, the 11th Circuit determined that the district court did not err in denying Mr. Quijada-Moreno’s objection.  
  • He was responsible for 11 kilos, had similar roles to the other participants, and played a critical role in the conspiracy.
  • And the 11th Circuit has previously held that the fact that a defendant is a courier alone will not determine whether a minor participant role applies in and of itself. 
  • Case Affirmed. 

Case #10 – Watson v. United States, No. 20-14698 (11th Cir. Unpub. Dec.)(January 17, 2023)

  • Watson is a 2255 motion case involving failure to file a motion to suppress. 
  • Mr. Watson pled guilty to possessing meth and marijuana with intent to distribute and to possessing a firearm in furtherance of a drug trafficking crime. 
  • He now appeals the denial of his post-conviction relief 2255 motion where he claimed that his attorney was ineffective for failing to challenge the traffic stop and evidence seized during the traffic stop.  
  • The district court summarily denied the motion finding that it was barred by his guilty plea and failed on the merits. 
  • On appeal, the 11th Circuit noted that although a defendant waives all jurisdictional challenges to the constitutionality of a conviction, a defendant doesn’t voluntarily and knowingly plead guilty if counsel was ineffective.  
  • So, the issue is whether Mr. Watson entered a voluntary and knowing plea based on effective assistance of counsel. 
  • If Mr. Watson’s claim that his 4th Amendment rights were violated is not viable, then there was no ineffective assistance of counsel.
  • And here, the 11th Circuit agreed with the district court that the search and seizure were constitutional.
  • Mr. Watson, after being stopped for a traffic violation, appeared nervous, had a suspended license, admitted that he had previously been arrested for trafficking methamphetamine, and had boxes of sandwich bags on the car floorboard.  
    • As innocent as that sounds, the 11th Circuit held that these four facts together rose to the level of reasonable suspicion to believe that Mr. Watson had contraband in the car.  
  • So, the Court held that the officer acted lawfully by placing Mr. Watson in the back of the police car and waiting 45 minutes for a k9 unit to arrive.  
  • The Court specifically noted that it doesn’t matter how long it would take to issue a citation for driving with a suspended license, the four facts that led to reasonable suspicion justified the 45 minute detention. 
  • Get those sandwich bags out of your cars. 
  • Case Affirmed.  

Case #11 –United States v. Yliniemi, No. 20-12287 (11th Cir. Unpub. Dec.)(January 18, 2023)

  • Continuing with a string of difficult to pronounce case names, Yliniemi is a case about the defendant’s decision whether to testify.
  • Mr. Yliniemi was charged with multiple child pornography offenses and he decided to proceed to trial. 
  • At the close of the government’s case, the district court addressed both the attorney and Mr. Yliniemi and stated that it was his decision and his decision alone whether or not he would testify. 
  • Mr. Yliniemi said that he was torn between testifying and not testifying and asked for more time to think about it.  He said he wanted to spend one more night with his family, but didn’t explain how that impacted his decision whether to testify. 
  • The district judge gave Mr. Yliniemi 15 minutes to discuss his decision with his attorney. 
  • About 20 minutes later, Mr. Yliniemi told the district judge that he decided to testify.  The district judge reiterated that it was a decision that only he could make. 
  • The district court then went through a colloquy with Mr. Yliniemi about his right to testify or not to testify.  
  • Mr. Yliniemi testified and denied receiving child pornography despite a taped confession that he claimed he gave only because the investigator told him he would not go to jail if he confessed. 
  • The jury convicted and Mr. Yliniemi was sentenced to 168 months. 
  • On appeal, Mr. Yliniemi claims that he was coerced by the district judge to make a quick decision on whether to testify. 
  • The 11th Circuit noted that a district court is generally not required to conduct a colloquy, but there is nothing to preclude it either. 
  • And here, the 11th Circuit found that the district court’s questions were straightforward and neutral and did not probe trial strategy issues or suggest the court’s own opinion as to what Mr. Yliniemi should do. 
  • The Court also determined that Mr. Yliniemi had enough time to make a decision.  
  • He was told before jury selection earlier in the day that the government’s case may be finished and his decision whether to testify may be later in the day, he was provided 15 minutes when he requested more time to decide, and he never asked for any additional time once the 15 minutes was over.  
  • So, based on those facts, the district court did not err 
  • Case Affirmed. 


Compassionate Release 

United States v. Belidor, No. 22-11906 (11th Cir. Unpub. Dec.)(January 18, 2023)

United States v. Bradford, No. 21-13721 (11th Cir. Unpub. Dec.)(January 20, 2023)

United States v. Castro, No. 22-12329 (11th Cir. Unpub. Dec.)(January 20, 2023)

United States v. Granados, No. 22-11762 (11th Cir. Unpub. Dec.)(January 17, 2023)


Procedural and Substantive Reasonableness 

United States v. Griffin, No. 21-12727 (11th Cir. Unpub. Dec.)(January 18, 2023)

United States v. Robinson, No. 21-10429 (11th Cir. Unpub. Dec.)(January 17, 2023)



United States v. Goins, No. 22-13090 (11th Cir. Unpub. Dec.)(January 18, 2023)

United States v. Williams, No. 22-11490 (11th Cir. Unpub. Dec.)(January 17, 2023)

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