Happy Thanksgiving

Some things I’m thankful for:

1.  United States v. Booker.
2.  Judges who downward vary and don’t have trial penalties.
3.  Brady v. Maryland.
4.  Prosecutors who have open files and turn over witness statements.
5.  Judges who order prosecutors to turn over witness statements and exhibit lists before well in advance of trial.
6.  Self-surrender for initial appearances and for serving sentences.
7.  Magistrate judges who issue reasonable bonds.
8.  Appellate judges who are not afraid to reverse.
9.  Defense lawyers who fight and the wonderful criminal defense bar in SDFLA.
10.  Clients who have the guts to fight.

Keep up the list in the comments.

“The Case of the Polite Bank Robber.”

The introduction to this per curiam opinion (clearly written by Judge Rosenbaum), United States v. Roberto Perez, is entertaining:

If this were an Encyclopedia Brown mystery, it might be called The Case of the Polite Bank Robber.1 Without any weapons, Defendant-Appellant Roberto Arturo Perez calmly walked into two different banks. He handed a teller at each bank a note with instructions using words like “please” and “thank you,” made no reference to any type of weapon, bargained pleasantly with one teller for $5,000, and allowed another teller to leave the teller’s post and report the robbery while it was ongoing.
Of course, there’s no such thing as a good bank robbery. But from the perspective of the Sentencing Guidelines, there are certainly less bad ones. All bank robberies charged under 18 U.S.C. § 2113(a) necessarily involve implicit or explicit threats of some type, since they must all occur by “force and violence” or “intimidation” to qualify as bank robberies under that statute.2 But the Guidelines more harshly punish defendants who use implicit or explicit threats of death to accomplish bank robberies than those who employ lesser threats in their crimes.
Here, we decide whether the district court clearly erred in concluding that Perez’s conduct and choice of language would have instilled in a reasonable person a fear of death, justifying application of the Guidelines’ threat-of-death enhancement. In other words, we must evaluate whether Perez’s bank robberies were of the less bad variety, by Guidelines standards. After careful consideration and with the benefit of oral argument, we hold that they were. We therefore vacate Perez’s sentence and remand for resentencing.

1. For the uninitiated, the Encyclopedia Brown children’s book series, written by Donald J. Sobel, follows the adventures of Leroy Brown (not the Leroy Brown of Jim Croce notoriety). Brown was a fictional, highly intelligent, boy sleuth who solved mysteries.

Congrats to Tracy Dreispul of the FPD's office and to UM Law Professor Ricardo Bascuas for the win.

Judge Roy Altman does the right thing and sentences Yujing Zhang to time served

The prosecutors asked for 18 months on this trespass case even though the guidelines were 0-6. From the Miami Herald:

On a spring afternoon, a Chinese businesswoman wearing a gray evening gown was so determined to meet President Donald Trump that she bluffed her way into his private Palm Beach club, saying at first she wanted to go to the pool, but later insisted she was on a mission to attend a gala event at Mar-a-Lago.

Yujing Zhang was let in by the Secret Service and club security staff after they confused her last name with that of a member, but was arrested soon after her mysterious arrival on March 30.

On Monday, the 33-year-old Chinese woman appeared in a Fort Lauderdale federal courtroom, where she was sentenced to eight months behind bars — essentially time served. She had been found guilty in September of entering a restricted area and lying to federal agents about it.

In handing down the sentence, U.S. District Judge Roy Altman rejected a request by the U.S. attorney’s office that he sentence her to 18 months.

The sentence, likely to be followed by Zhang’s deportation to China, writes an end to a bizarre court case in which the defendant, a woman with limited English skills and no legal training, represented herself — clumsily and ineffectively, for the most part.

She had fired the public defender’s office, though was still receiving advice on the side.

There is a lot of pressure on new judges to give guideline sentences even though the experiences judges rarely give guideline sentences anymore. And the government has a new strategy with the new judges to ask for high-end sentences or above-guideline sentences to dissuade them from giving downward variances. Credit to Judge Altman for rejecting the government's request.

President Trump officially nominates Andrew Brasher to the 11th Circuit

It's hard to imagine a court going through more change than the 11th Circuit. Here's the link to the WH press release. Brasher will fill Ed Carnes' seat if he is confirmed. He will have a tougher time than Luck and Lagoa, who were easily confirmed.

Judge Barbara Lagoa confirmed to the 11th Circuit

The vote was 80-15

Congratulations Judge Lagoa!

The 11th Circuit has now technically “flipped.” But both Luck and Lagoa are much more down the middle than their predecessors.