Judge Ungaro hears sentencing arguments in Matthew Greer's case

It's Michael Sherwin and Michael Berger for the government.  And for Greer, it's Roy Black, Hy Shapiro, and Jackie Perczek.  Really great lawyering all around.  Jay Weaver from the Herald is covering the sentencing:

The 38-year-old former CEO of Carlisle Development Group apologized on Wednesday to a federal judge for his wrongdoing and for “casting a cloud” over an affordable-housing industry whose mission is to build homes for society’s most needy.

“It pains me very deeply,” Greer, 38, said, choking up during his statement to the judge.

Yet his high-profile defense attorney, Roy Black, argued that Greer deserved no prison time because he pleaded guilty, cooperated with authorities, paid back the stolen money and has devoted his life to charity — including his latest effort to help a nonprofit group develop an Overtown housing complex for homeless mothers and their children.

Black touted the South Florida housing projects built by Carlisle with tax credits issued by the U.S. government, while downplaying that Greer and others involved in his partnerships inflated the constructions costs so they could split millions in illegal profits.

“I think the public got what they paid for,” Black told U.S. District Judge Ursula Ungaro. “They were not cheated.”

***

Prosecutor Michael Sherwin hammered that point, saying Greer was driven by “greed,” not charity, and that he “lost his way.”

“This was a lie for money,” Sherwin said.

The federal sentencing guidelines for Greer’s offense range from eight to ten years in the $34 million housing fraud probe that disgraced the one-time CEO and his Miami-based company, Carlisle, which was started by his father, lawyer Bruce Greer, two decades ago. Bruce Greer and his wife, Evelyn, a lawyer who once served as mayor of Pinecrest and on the Miami-Dade school board, attended the hearing.

On Wednesday, the prosecutor recommended that the judge start at eight years and then reduce it by 40 percent for Greer’s assistance in the long-running FBI and IRS investigation — for a total sentence of about five years.

Ungaro said she would issue her decision on Greer’s sentence along with punishment for five other co-defendants on Monday, after hearing arguments from defense attorneys and prosecutors.

Argument transcript in Beckles...

...is here.

And the Supreme Court decided a double jeopardy case this morning, Bravo-Fernandez:

The issue-preclusion component of the Double Jeopardy Clause does not bar the Government from retrying defendants, like petitioners, after a jury has returned irreconcilably inconsistent verdicts of conviction and acquittal and the convictions are later vacated for legal error unrelated to the inconsistency.

Welcome back

The Supreme Court is back in full swing, and AFPD Janice Bergman has a big argument this morning in Beckles v. United States.  From SCOTUSblog:

Issue: (1) Whether Johnson v. United States applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause in United States Sentencing Guidelines (U.S.S.G.) § 4B1.2(a)(2) (defining “crime of violence”); (2) whether Johnson's constitutional holding applies to the residual clause in U.S.S.G. § 4B1.2(a)(2), thereby rendering challenges to sentences enhanced under it cognizable on collateral review; and (3) whether mere possession of a sawed-off shotgun, an offense listed as a “crime of violence” only in commentary to U.S.S.G. § 4B1.2, remains a “crime of violence” after Johnson.

Argument preview: Court to tackle constitutionality of residual clause in sentencing guidelines

This will be interesting for 11th Circuit watchers because this issue has deeply divided the court.  Good luck Janice!

Have a great Thanksgiving!

If felony-battery in Florida a crime of violence under 2L1.2 of the Sentencing Guidelines?

That's the question the en banc 11th Circuit will take up in U.S. v. Vail-Bailon.  Here's the panel decision by Judge Rosenbaum saying it is not a crime of violence:

When I was growing up, my parents told me not to judge a book by its
cover. The Supreme Court has expressed an analogous concern about concluding
that a crime qualifies as a violent crime under the Armed Career Criminal Act
(“ACCA”), based solely on the name of the crime. See Johnson v. United States,
___ U.S. ___, 135 S. Ct. 2551, 2560 (2015) (discussing whether Connecticut’s
offense of “rioting at a correctional institution,” a crime that the Supreme Court
characterized as “certainly sound[ing] like a violent felony,” qualifies as a violent
felony under the residual clause of the ACCA).1
This case raises the question of whether the Florida crime of felony
battery—a crime that, from its name, may sound like a crime of violence—actually
satisfies the definition of “crime of violence” under §2L1.2 of the Sentencing
Guidelines when it is committed by mere touching. Heeding the Supreme Court’s
warning, we have carefully compared the elements of felony battery under Florida
law to the “elements clause” of § 2L1.2’s definition of “crime of violence.” Based
on our review, we now hold that felony battery under Fla. Stat. § 784.041 does not
qualify as a “crime of violence” under § 2L1.2 when it is committed by mere
touching. For this reason, we vacate Vail-Bailon’s sentence and remand for resentencing.

Judge Jordan concurred, and visiting Judge Siler dissented.

The en banc order is here.

Will it be Justice Pryor?

It was the big Federalist Society meeting this weekend in which Justice Scalia was remembered and celebrated.  One of the takeaways is that 11th Circuit Judge William Pyror is quietly the favorite to get Scalia's seat. (Here's a short interview with him from the weekend.) He would be the first 11th Circuit judge to get the nod... 

It's hard to know exactly what PE Trump is thinking here though as he was busy this weekend tweeting about Hamilton.

In the meantime, I repost Judge Milton Hirsch's Constitutional Calendar today, which is really interesting:

On Nov. 21, 1864, in response to a request from Massachusetts Governor John A. Andrew asking him to express his condolences, President Lincoln wrote to Mrs. Lydia Bixby, a widow who was believed to have lost five sons during the Civil War.  Lincoln's letter was later printed in the Boston Evening Transcript.  Later still, it was revealed that two, not all five, of Mrs. Bixby's sons died in battle; one deserted, one was honorably discharged, and another either deserted or died a prisoner of war.

 

The authorship of the letter has been debated by scholars, some of whom believe it was written by John Hay, one of Lincoln's secretaries.  The original of the letter was destroyed by Mrs. Bixby, who was a Confederate sympathizer and disliked Lincoln.  Copies of an early forgery circulated for years, causing many people to believe that they had the original letter.

 

None of which matters.  The letter is the finest piece of epistolary prose ever written on this continent, and if Lincoln didn't write it, he meant to.  It serves to remind us that the highest function of political leadership in America's democracy is to inspire us with a regard for those principles that set this country apart.

 

As I do every year on the anniversary of its writing, I take pleasure in sharing this remarkable letter with my friends:

 

"Dear Madam,

 

"I have been shown in the files of the War Department a statement of the Adjutant General of Massachusetts that you are the mother of five sons who have died gloriously on the field of battle.  I feel how weak and fruitless must be any word of mine which should attempt to beguile you from the grief of a loss so overwhelming.  But I cannot refrain from tendering you the consolation that may be found in the thanks of the republic they died to save.  I pray that our Heavenly Father may assuage the anguish of your bereavement, and leave you only the cherished memory of the loved and lost, and the solemn pride that must be yours to have laid so costly a sacrifice upon the altar of freedom.

 

"Yours very sincerely and respectfully,

 

"A. Lincoln"

Bad cheese!

Yikes, this dude was selling cheese that had lysteria.  Judge Scola gave him 15 months:

Officials in Virginia took a sample of Oasis’ “Lacteos Santa Martha Quesito Casero Fresh Curd” in 2014 and found that it was contaminated with listeria.
The U.S. Food and Drug Administration conducted an inspection of Oasis’ Miami facility and reported finding more products contaminated with listeria and numerous unsanitary conditions, court documents said.
Inspectors reported finding black mold on the ceiling and a door frame and condensation dripping onto raw cheese-making materials, cheese in production and the finished product.
Rivas agreed to recall the cheese and stop production until the sanitary issues were fixed, court documents said.
He also told FDA inspectors that Oasis would not ship out any finished product that it had in its inventory, officials said.
During a follow-up inspection six weeks later, FDA officials found that Rivas had shipped 133 cases of contaminated cheese which they believe sickened several people, investigators said.
Rivas pleaded guilty to charges stemming from the case.

 

RIP Minnette Massey

She was the fierce civil procedure professor who taught scores of Florida lawyers to "READ THE RULE!"  In many ways though, she was a rule-breaker, shattering old restrictions for women lawyers. She passed away at the age of 89 (via UM Law):

M. Minnette Massey, an original glass ceiling shatterer and leading advocate for diversity, decades before the word entered the popular vernacular, died Sunday at the age of 89. 

M. Minnette Massey

The fair-haired, green-eyed spitfire was one of the “First Wave,” of fourteen woman pioneers who elbowed their way into the male-dominated world of American law school professors. (Miami Law supplied two others – Soia Mentschikoff and Jeanette Ozanne Smith.) Massey began teaching legal research as an assistant law librarian but rapidly asserted her dominance in the machinations of Florida civil procedure.
Massey would catch the attention of U.S. Supreme Court Justices Hugo Black and William O. Douglas, who admired her dazzling intellect and skills as a raconteur. Think Shirley MacLaine, only loads smarter. She ascended to assistant dean, then first woman dean, all the while imprinting armies of young lawyers as masters of the intricacies of litigation and the rightful leaders of their profession. She was a force to behold and used her powers to lead the law school into the integration of both the faculty and student body.
"The University of Miami Law School has lost perhaps its greatest champion," said Charlton Copeland, holder of the first M. Minnette Massey Chair in Law. "She believed in the excellence of this law school. She believed in the excellence of her students. She believed that together they might build a more excellent future.
"But she was not taken with nostalgia or bygone days. Her commitment was a commitment to a more inclusive, more relevant excellence. If that is not the mark of a great institutional and, and civic, champion, I don't know what is. I mourn Minnette's passing, but I also mourn something of the passing of Minnette's vision for Miami Law, for our law students, and for our collective civic lives," Copeland said