Federal 11th Circuit Criminal Case Law Update (November 14, 2022 – November 18, 2022)

The “Cite” of the Crime Podcast

Federal 11th Circuit Criminal Case Law Update
(November 14, 2022 – November 18, 2022)

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


  • 13 cases
  • 0 published decisions
  • 5 unpublished decisions
  • 5 compassionate release cases
  • 1 substantive reasonableness of the sentence case
  • 2 miscellaneous cases

Bonus Case – Somers v. State, No. SC21-1407 (Fla. Sup. Ct.)(November 17, 2022)

  • Somers is an important case involving the mens rea requirement for assault that affects state and federal criminal practitioners, and immigration practitioners.
  • In Somers, the 11th Circuit certified a question to the Florida Supreme Court to clarify whether Florida’s assault statute requires more than mere recklessness.  
  • If assault requires more than mere recklessness, then an aggravated assault will continue to be a qualifying predicate offense for the Armed Career Criminal Act (or ACCA, for short).
  • If assault only requires a reckless mens rea, then Florida’s aggravated assault and other assault based felonies cannot serve as predicate offenses for Armed Career Criminal status. 
  • Likewise, if assault requires more than mere recklessness, it can serve as the basis for an aggravated felony in the immigration context, but if it requires only mere recklessness, then Florida’s aggravated assault with a year or more of incarceration would not be an aggravated felony.
  • So, did I say that this was an important case?
  • So, the Eleventh Circuit certified two questions to the Florida Supreme Court
    • 1) Does the first element of assault as defined in Fla. Stat. §784.011(1) – “an intentional, unlawful threat by word or act to do violence to the person of another” – require specific intent?
    • 2) If not, what is the mens rea required to prove that element of the statute?
  • The Florida Supreme Court wanted to rephrase the questions a little focusing on what the Eleventh Circuit was really trying to discern from Florida’s assault statute in the ACCA context.
    • The Court looked to the Borden case which held that the ACCA elements clause sets out a mens rea requirement of purposeful or knowing conduct. 
    • The perpetrator must also direct his action at, or target, another individual. 
    •  And a crime that can be committed by mere recklessness cannot be a crime of violence under the elements clause because reckless conduct is not aimed in a prescribed manner. 
    • So, the Florida Supreme Court determined that the Eleventh Circuit wasn’t really interested in whether Florida’s assault is a specific intent or general intent crime, but rather whether it required more than mere recklessness.  
    • So the Florida Supreme Court rephrased the question, asking instead:
      • Does the first element of the assault statute, §784.011(1) require not just the general intent to volitionally take the action of threatening to do violence, but also that the actor direct the threat at a target, namely another person? 
    • And the answer is yes. Florida’s assault statute requires that the actor direct the threat at another person and therefore requires more than mere recklessness. 
    • § 784.011(1) defines assault as an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.  
    • Therefore, there are three elements:
      • 1) an intentional, unlawful threat by word or act to do violence to the person of another
      • 2) an apparent ability to carry out the threat, and 
      • 3) creation of a well-founded fear that the violence is imminent.
    • The Florida Supreme Court contained its analysis to the first element.  
      • The words “threat” and “violence” are not defined by the statute, so the Court looked to the ordinary dictionary definitions. 
      • A threat is an expression of an intent or communicated intent to do violence to another.
      • Violence is the use of physical force to cause harm. 
      • Putting them together, §784.011(1) prohibits an intentional expression of an intent to use physical force to harm another’s person.  
      • Therefore, the statute cannot be violated without directing action at or targeting another person.
      • Assault cannot be accomplished by a reckless act and therefore requires at least knowing conduct. 
      • Florida’s assault statute requires not just the general intent to volitionally take the action of threatening to do violence, but also directing the threat at another person.  
      • So, from a state criminal practitioner’s point of view, get those motions to dismiss ready where a defendant is charged with waiving a gun around in a reckless manner, rather than knowingly 

                   directing a threat at an individual person.

And for those federal criminal practitioners and immigration practitioners, aggravated assault convictions will continue to be predicate ACCA offenses and aggravated felonies. 

Certified Question answered in the affirmative. 

Case # 1 – United States v. Annamalai, No. 20-10543 (11th Cir. Unpub. Dec.)(November 16, 2022)

  • Anamalai is a Hyde Amendment attorneys fee case. 
  • Attorney’s fees – I bet a bunch of your ears perked up out there. 
  • Apparently, there is a path to recover attorneys fees in federal criminal cases.  But the path is almost completely obstructed, so don’t get too excited. 
  • Mr. Annamalai was convicted at trial of 34 offenses stemming from bank fraud and bankruptcy fraud related charges. 
  • On direct appeal, several of the counts were reversed, but many more were affirmed. 
  • Mr. Annamalai filed a pro se motion for attorney’s fees under the Hyde Amendment for the counts that were reversed. 
  • He argued that the government’s prosecution on those counts was frivolous, vexatious, or in bad faith.
  • He also filed a Federal Rule of Civil Procedure 36 request for admissions and motion for summary judgment.
  • The trial court denied all three motions. 
  • On appeal, Mr. Annamalai argues that the district court abused its discretion by denying the motions. 
  • The Hyde Amendment provides that the court in any criminal case other than where counsel is appointed may award to the defendant a reasonable attorney’s fee and other litigation expenses, where the court finds that the position of the United States was vexatious, frivolous, or in bad faith, unless the court finds that special circumstances make such an award unjust. 
  • The defendant has the burden of proving by a preponderance of the evidence that he is entitled to the award. 
  • The defendant must show more than that he prevailed at the pretrial, trial, or appellate stages of prosecution.
  • This government’s position must amount to prosecutorial misconduct where the prosecution was brought vexatiously, in bad faith, or so utterly without foundation in law or fact as to be frivolous.  A high standard indeed.
  • Vexatious means without reasonable or probable cause or excuse.
  • A frivolous action is one that is groundless with little prospect of success; often brought to embarrass or annoy the defendant.
  • Bad faith is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity; it contemplates a state of mind affirmatively operating with furtive design or ill will. 
  • Here, the 11th Circuit determined that just because it reversed some of the convictions, Mr. Annamalai has not shown that the government’s position was legally frivolous. 
  • The convictions were reversed because the bankruptcy trustee came to an incorrect opinion about whether property was part of the bankruptcy estate and the government incorrectly believed that an old business and new business were essentially alter egos.  
  • An incorrect interpretation of the law or a misunderstanding of the law does not make a prosecution legally frivolous. 
  • Because the government legitimately believed in their erroneous position, the prosecution was not vexatious, in bad faith or legally frivolous. 
  • Therefore, the district court had no discretion to award attorneys fees under the Hyde Amendment. 
  • The 11th Circuit also found that the district court did not apply an improper legal standard by mentioning the fact that Mr. Annamalai was convicted by the jury on those counts that were later overturned, because the court did not apply that fact to its determination.  
  • Mr. Annamalai also argued that because the government failed to respond to his Rule 36 request for admissions, the government essentially admitted that it acted in bad faith, vexatiously and frivolously. 
  • But the 11th Circuit rejected this argument because a party cannot use Rule 36 to request admissions to legal conclusions. 
  • So, no attorney’s fees for pro se Mr. Annamalai. 
  • It would be interesting to know if any attorney has been successful on a Hyde Amendment motion for attorneys fees based on the almost unachievable standard. 
  • Case Affirmed. 

Case #2 – United States v. Cannon, No. 22-11492 (11th Cir. Unpub. Dec.)(November 17, 2022)

  • Cannon is a §2G2.1(b)(2)(B) commission of sexual act by threats or force sentencing enhancement case. 
  • Mr. Cannon was driving a Chevy Impala when he almost hit an officer who was parked on the side of the road. 
  • The officer attempted to pull Mr. Cannon over but Mr. Cannon fled on foot, leaving his cell phone inside the car. 
  • Law enforcement conducted a forensic examination on the phone and found a video of Mr. Cannon having sex inside the car with his 14 year old stepdaughter. 
  • After the sexual encounter, the video showed Mr. Cannon threaten to kill and stab the minor if she said anything to her mother. 
  • Mr. Cannon was charged with production of child pornography under 18 USC §2251(a) and (e). 
  • The PSR applied, among other enhancements and reductions, a 4 level enhancement under §2G2.1(b)(2)(B) for the commission of asexual act and “conduct described in 18 USC §2241(a) or (b). 
  • Mr. Cannon’s attorney did not object to this enhancement. 
  • Mr. Cannon’s guideline range was 324-360 and he was sentenced to 336 months. 
  • Mr. Cannon’s attorney did not object to the sentence.
  • On appeal, Mr. Cannon argued that the district court erred in applying the §2G2.1(b)(2)(B) enhancement which applies only when threats are used to coerce a sexual act, because, as he argues, the threats were made after the sexual act was completed to coerce the victim’s silence, not to coerce the sexual act.
  • The application note to §2G2.1(b)(2)(B) defines “conduct described in 18 USC §2241(a) or (b) as
    • i) using force against the minor
    • ii) threatening or placing the minor in fear that any person will be subject to death, serious bodily injury, or kidnapping,
    • iii) rendering the minor unconscious; or 
    • iv) administering by force or threat of force, or without the knowledge or permission of the minor, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of the minor to appraise or control conduct. 
  •  Here, the undisputed facts showed that Mr. Cannon had sex with a minor, told her how to engage in the sex acts, called her a bitch, and counted down as if to a child in time out.  
  • Under these facts, the 11th Circuit determined that force and threats were used against the minor. 
  • Therefore, the Court didn’t even have to address the threats that were made after the sexual act was completed. 
  • So, it looks like the 11th Circuit has left open the question whether the §2G2.1(b)(2)(B) enhancement applies when the only force or threats are made after the sexual act is concluded to force silence, rather than to force the sexual act itself. 
  • Case Affirmed. 

Case #3 – United States v. Fernando Crawford, No. 22-11632 (11th Cir. Unpub. Dec.)(November 16 , 2022)

  • We have two Crawford cases today.  Fernando Crawford is a sentence appeal waiver case.
  • Mr. Fernando Crawford entered a plea agreement  on a wire fraud case where we waived his right to appeal the sentence except for limited circumstances. 
  • Before the sentencing hearing, Mr. Fernando Crawford moved for a continuance on the basis that his wife, who he intended to call as a witness to support a minor role reduction request, was unavailable because she was picked up by ICE and in immigration custody. 
  • The district court denied the motion, went forward with the sentencing hearing and sentenced Mr. Fernando Crawford to 37 months. 
  • Mr. Fernando Crawford appealed arguing that the district court denied his 5th Amendment right to compulsory process and to a fair hearing. 
  • The government moved to dismiss based on the sentence appeal waiver. 
  • Mr. Fernando Crawford responded that a sentence appeal waiver does not apply to due process and fair hearing claims. 
  • Mr. Fernando Crawford’s sentence appeal waiver waived his right to appeal any sentencing issue other than an upward departure or variance from the guidelines as calculated by the district court, ineffective assistance of counsel or if the government appealed. 
  • The 11th Circuit rejected Mr. Fernando Crawford’s argument finding that a defendant can waive just about any appellate rights during the bargaining process.
  • An appeal waiver includes a waiver or the right to appeal difficult or debatable legal issues or even blatant errors. 
  • A defendant is free to bargain away his right to raise constitutional issues on appeal, and even a vigorous dispute about an issue during the sentencing proceedings does not preserve that issue for appeal when the terms of the appeal waiver do not except it from the waiver. 
  • There are a narrow category of exceptions which include a sentence at the whim of the district court, a sentence in excess of the statutory maximum, a sentence based on a constitutionally impermissible factor such as race, or perhaps a public flogging. But other than that, the appeal waiver will prevent the appellate court from considering any other issues. 
  • Here, the 11th Circuit held that Mr. Fernando Crawford’s claim fell within the garden variety constitutional challenges that are barred by sentence appeal waivers. 
  • Appeal Dismissed. 

Case #4 – United States v. Kent Crawford, No. 20-12309 (11th Cir. Unpub. Dec.)(November 17, 2022)

  • Our second Crawford case is Kent Crawford, a career offender case involving crimes of violence.
  • Mr. Kent Crawford was sentenced to 120 months as a career offender for mailing a threatening communication in violation of 18 USC §876(c).
  •  On appeal, he argues that his predicate offenses were not crimes of violence and therefore, he should not have been deemed a career offender. 
  • Unfortunately, even though Mr. Kent Crawford’s attorney did object to those predicate offenses at the trial court level, he did not do so on the specific grounds relied upon in the appellate argument. 
  • So, the dreaded plain error standard applies and the Court really didn’t address the divisibility of any of the statutes discussed. 
  • This is a good reminder to really think out your objections well before the sentencing hearing and to take the time to lay them out to the district judge, so the 11th Circuit deems that the district court as put on notice of the potential error. 
  • §4B1.1 of the guidelines states that a defendant is a career offender if 
    • 1) the defendant was at least 18 years old at the time he committed the instant offense;
    • 2) the instant offense is a felony that is either a crime of violence or a controlled substance offense, and 
    • 3) the defendant has at least two prior felony convictions for either a crime of violence or a controlled substance offense.  
  • §4B1.2(a) defines a crime of violence as any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that 
    • 1) has na element the use, attempted use, or threatened use of physical force against the person of another (this is known as the elements clause); or 
    • 2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of  a firearm or explosive material. 
    • The career offender definition of “crime of violence” is nearly identical to the Armed Career Criminal definition of “violent felony” and so the case law related to one instructs us on the other.
    • A crime of violence requires a mens rea higher than accidental, negligent or reckless conduct. 
    • Mr. Kent Crawford’s first predicate offense used to make him a career offender was under 18 USC §844(e), which makes it illegal to use the mail, telephone, telegraph, or other instrument of interstate commerce to willfully make any threat to kill, injure or intimidate any individual or unlawfully damage or destroy any building, vehicle or other real or personal property by means of fire or an explosive. 
      • Mr. Kent Crawford argued that the modified categorical approach applied and that he only threatened a building, not individuals and therefore it could not serve as a crime of violence predicate offense. 
      • However, the 11th Circuit looked at the record and determined that the PSI, which was not objected to, showed that MR. Crawford threatened to kill everyone in the building, and therefore, the district court did not plainly err in finding this prior conviction qualified as a crime of violence for career offender purposes. 
      • The second predicate offense relied on for Mr. Kent Crawford’s career offender status was an 18 USC §115(a) conviction.
        • §115(a) makes it illegal to threaten to assault, kidnap, or murder a United States official, judge or law enforcement officer with the intent to impede, intimidate, or interfere with such official, judge or law enforcement officer while engaged in the performance of official duties, or with intent to retaliate against such official, judge of law enforcement officer, on account of the performance of official duties.    
        • Here again, the Court looked to the PSI and determined that the record of conviction contained evidence of several telephone calls threatening to kill a federal probation officer, an FBI agent and an Assistant United States Attorney. 
        • Because Mr. Kent Crawford did not object to these PSI facts, they are deemed true and under these facts in the record of conviction, the elements clause is satisfied. 
  • Mr. Kent Crawford also argued that the instant conviction of mailing a threatening communication under 18 USC §876(c) is not a crime of violence.
    • However, the 11th Circuit looked at the facts that Mr. Crawford pled to and determined that they fall well within the crime of violence definition. 
    • Case Affirmed.  

Case #5 – United States v. Posey, No. 21-11253 (11th Cir. Unpub. Dec.)(November 17, 2022)

  • Posey is a Possession of a Firearm by a Convicted Felon case involving several guideline enhancements.
  • Mr. Posey pled guilty without a plea agreement and was sentenced to 60 months. 
  • On appeal, Mr. Posey had three arguments. 
  • First, Mr. Posey argued that the district court erred in calculating his base offense level at 20 based on a prior “controlled substance offense” stemming from an Alabama conviction for possessing marijuana for other than personal use. 
    • §2K2.1(a)(4)(A) provides that a defendant’s base offense level is 20 if the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense.  
    • A controlled substance offense is an offense under federal or state law punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance or the possession of a controlled substance with intent to manufacture, import, export, distribute, or dispense. 
    • At the time of Mr. Posey’s prior conviction both federal and Alabama law included hemp.
    • At the time of his sentencing, both federal and state law changed to exclude hemp.
    • Mr. Posey now argues that his Alabama conviction based on a statute that included hemp cannot serve as a  controlled substance offense under §2K2.1(a)(4)(A).
    •  However, the 11th Circuit found that Mr. Posey failed to preserve the issue by not making this specific argument to the district court. 
    • Although he did object to the offense level, he neither informed the district court that hemp’s decriminalization was the particular ground upon which appellate relief was sought, nor did he provide the district court with an opportunity to avoid or correct any error. 
    • As the 11th Circuit noted, quite simply, he never mentioned the word hemp. 
    • Therefore, the plain error standard applies. 
    • And because neither the Supreme Court nor the 11th Circuit has ever addressed whether a state marijuana conviction continues to qualify as a predicate controlled substance offense under §2K2.1(a)(4)(A) when hemp has been delisted from both the State and federal drug schedules before the defendants sentencing, no plain error occurred.  
  • Mr. Posey’s second argument was that the district court erred in applying a two level enhancement under §2K2.1(b)(1)(A) for possession of three firearms.
    • Possession of a firearm may be either actual or constructive.
    • Constructive possession exists when a defendant does not have actual possession but instead knowingly has the power or right, and intention to exercise dominion and control over the firearm. 
    • As long as the government proves, through either direct or circumstantial evidence that the defendant
      • 1) was aware or knew of the firearm’s presence and 
      • 2) had the ability and intent to later exercise dominion and control over that firearm, 

                     the defendant’s constructive possession of that firearm is shown. 

  • However, a defendant’s mere presence in the area of the firearm or awareness of its location is not sufficient to establish possession. 
  • Here, there were three firearms found in a car where Mr. Posey appeared for a drug deal with a confidential informant. 
  • The detective testified that the confidential informant did not have any firearms before the deal and he maintained visual contact on her and the car throughout the drug deal.
  • One firearm was visible and accessible from where Mr. Posey sat in the vehicle. 
  • There was evidence that Mr. Posey shot another drug dealer the day before 
  • Based on the evidence presented, there was sufficient evidence to establish that Mr. Posey possessed three firearms that were found in the confidential informant’s car. 
  • Finally, Mr. Posey argued that the district court erred by applying a four level enhancement for possessing firearms in connection with another felony offense under §2K2.1(b)(6)(B).
    • The district court found that the firearms were possessed in furtherance of a drug offense.  
    • Here, the 11th Circuit agreed, noting that the evidence showed that Mr. Posey’s firearms had the potential of facilitating his conspiracy and attempt to traffic heroin because he brought them to a drug deal. 
    • And the confidential informants hearsay statements were corroborated by the officer’s testimony, security video, the guns, and a digital scale found in the car.  
    • And even though no drugs were found at the scene, Mr. Posey could have disposed of them before they arrested him.
    • And regardless, conspiracy and attempt to sell heroin doesn’t require drugs to be found for those offenses to be complete.  §2K2.1(b)(6)(B) only requires the firearms to have had the potential of facilitating Mr. Posey’s other felony offenses. 
      • Case Affirmed.  

Compassionate Release Cases

United States v. Borrego, No. 21-13923 (11th Cir. Unpub. Dec.)(November 17, 2022)

United States v. Caudle, No. 21-12643 (11th Cir. Unpub. Dec.)(November 15, 2022)

United States v. Garza, No. 22-10312 (11th Cir. Unpub. Dec.)(November 16, 2022)

United States v. Oviedo, No. 21-13046 (11th Cir. Unpub. Dec.)(November 17, 2022)

United States v. Rolon, No. 22-10970 (11th Cir. Unpub. Dec.)(November 16, 2022)

Substantive Reasonableness Cases

United States v. Anderson, No. 22-10761 (11th Cir. Unpub. Dec.)(November 15, 2022)


United States v. Vernon, No. 22-11555(11th Cir. Unpub. Dec.)(November 16, 2022)

United States v. Washington, No. 21-14039 (11th Cir. Unpub. Dec.)(November 17, 2022)

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