In United States v. Hernandez, the Eleventh Circuit entered the fray of a circuit split. The split concerns the application of the First Step Act at a resentencing hearing. The Eleventh Circuit decided that the First Step Act does not apply at a resentencing hearing if the original sentence was imposed prior to its passage in December 2018. At issue was § 403(b) of the First Step Act and its reduced penalties for multiple § 924(c) counts alleged in a single indictment. When Hernandez was sentenced in 1999, he received a 20-year consecutive bump for his second § 924(c) count (Hernandez committed the crimes before Congress increased the penalty to 25 years). He later won a Johnson/Davis habeas appeal, and on remand, at the 2022 resentencing hearing, he argued that current law (§ 403(b)) required a lower sentence on the second § 924(c) count. He lost and appealed. The Eleventh Circuit held that § 403(b) excluded Hernandez and only applies to cases whose sentence “has not been imposed” at all. In broad terms, a sentence is “imposed” when the judge “orally delivers remarks that constitute the criminal sentence” for the very first time, even if the sentence is later vacated and repackaged. But keep those objections coming; the Supreme Court recently granted two petitions for writ of certiorari on this very question. [By Alejandro Fernandez].
At a drug conspiracy trial, the court admitted as intrinsic evidence drugs and weapons that (A) were recovered in a different jurisdiction 29 months after the conspiracy ended, and (B) had no connection to the conspiracy or co-conspirators. Moreover, the district court said that even if the evidence were not intrinsic to the conspiracy, it would still be admissible as extrinsic Rule 404(b) evidence—plus the court refused to give a limiting instruction advising the jury of the permissible uses of Rule 404(b) evidence. In United States v. Harding, the Eleventh Circuit told the government (and the district court): “No, you may not claim that any and everything is intrinsic evidence.” The panel rejected the government’s argument that Harding’s involvement in “the same types of transactions” made the later-recovered drugs and guns intrinsic to the conspiracy. The panel was unimpressed that beyond a couple of “highly questionable” witnesses who testified in the hopes of getting sentence reductions, there was no evidence connecting the drugs and guns to the conspiracy. In the end, the panel found that the drugs and guns were indeed admissible under Rule 404(b), but because the district court did not provide a limiting instruction to the jury, and because the government encouraged the jury to consider this extrinsic evidence as proof that Harding committed the charged crime, this opened the door for the jury to improperly view the evidence. The panel vacated Harding’s conviction and 960-month sentence. [By Ashley Martin].
Gretchen Buselli believed her estranged husband was sexually abusing their daughter, but investigators found no evidence of such abuse. So, Buselli enlisted a friend to kill the husband—she expressed frustration that nobody was intervening to stop the abuse. The friend called the FBI and connected Buselli an undercover agent, who then had some not-so-great conversations with Buselli about killing the husband. The government indicted Buselli under 18 U.S.C. § 1958(a), the murder-for-hire statute, for intending to murder the husband under “the law of the State of Florida.” At trial, Buselli asked the court for a handful of Florida jury instructions related to justification of murder (e.g., defense of others, manslaughter). The district court refused because: (1) The text of § 1958(a) does not require that a murder actually happened—only that Buselli intended for a murder to be done, and (2) Buselli did not present facts or testimony showing justifiable use of deadly force. Though Buselli testified about the husband’s abuse, the district court surmised there was no evidence of imminent abuse. In United States v. Buselli, the Eleventh Circuit panel affirmed for all these reasons and repeated the district court’s quip that applying a jury charge on justification “would be an invitation to absolute lawlessness to say you could murder a child molester because the government wasn’t taking adequate steps to investigate and/or arrest the perpetrator.” Pro tip: When requesting justification jury instructions in a murder-for-hire case, try your best to present evidence of imminent threats of harm. [By Joe Blum].