U.S. Eleventh Circuit - The FindLaw 11th Circuit Court of Appeals Opinion Summaries Blog

October 2013 Archives

Does the 11th Circuit Bench Have a Diversity Problem?

Last month, Sen. Marco Rubio, in a move some say was motivated by politics and the candidate's sexual orientation, used his blue slip privileges to reverse course on a district court judicial nominee that he previously approved. The move, unsurprisingly, was criticized by many.

In a reaction piece, Leslie Proll, the director of the D.C. Office of the NAACP Legal Defense Fund criticized the move before shifting her focus to a different, albeit related issue: diversity on the Court of Appeals bench. She argues that the bench, which has only a single African-American judge, has a problem with diversity, especially considering the member states' demographics (25 percent African-American).

Let's take a look, shall we?

Youthful Offender Adjudication Counts as Prior for Fed Sentencing

When does a crime not count as a conviction, yet counts as a prior felony? When the Feds get involved, of course!

Omari Elliot was convicted of two counts of robbery, plus a count of brandishing a firearm during the crime. What was his sentence? Life, thanks to a pair of prior felony convictions under the career offender enhancement. One of those convictions, however, was a sealed youthful offender adjudication.

Man May Get 5 Months Off Sentence; Missed FSA Cutoff by Weeks

We get it: crack sentencing was a bit draconian. In order to address this disparity between crack and powder cocaine sentences, which disproportionately affected black men, two major remedies were employed: the Fair Sentencing Act and Amendment 750 to the Sentencing Guidelines.

Nathaniel Hargrove argues that both apply here. He faced a mandatory minimum of 120 months, and a sentence of 120 to 125 months based on the drug tables and his prior felony conviction, but the court chose to depart upward, under U.S.S.G. § 4A1.3 to 240 months. Will he be the beneficiary of the twin sentencing reforms?

Fla. Lawmakers Can't Write Laws; 11th Asks State Court for Help

Florida Virtual School is an online charter high school authorized by statute. It has been around for more than a decade. A few years back, apparently unsatisfied with FLVS's performance, the state opened up the door to private competitors, including K12 Inc., which calls itself Florida Virtual Academy. 

FLVA, which after its pilot program got picked up, also adopted the alternative moniker Florida Virtual Program (FLVP), and which purchased a sponsored listing on FLVS.com (a seemingly cyber-squatted alternative to FLVS's .net address), also maintains a website which has a similar design and color scheme to the elder FLVS program.

FLVS predictably sued FLVA in 2011 for trademark infringement under the Lanham Act and Florida common law, but ran into one tiny issue: incompetent Florida lawmakers.

Unite Here v. Mulhall: Will SCOTUS End Top-Down Unionization?

Ah, the perils of collective bargaining.

In a truly impressive deal, Unite Here managed to bargain away the rights of workers of the Mardi Gras Casino before it actually represented them. How so?

Seeking to represent the rights of the workers, Unite Here entered into a deal with the management of Mardi Gras Gaming: they would pay for ads supporting gambling and the union would promise to forego its rights to picket, boycott, or otherwise put pressure on the business in exchange for an open invitation onto company property, no opposition to unionizing the company's workers, and the company would even provide the contact information for the employees.

Kaley v. United States: Landmark Asset Forfeiture Case?

Facing federal charges for reselling used medical equipment that may have belonged to Kerri Kaley's employer, Kerri and her husband, Brian Kaley, took out a home equity loan worth $500,000 in order to cover their legal defense costs. The money was then seized under asset forfeiture laws, with the district court refusing to grant so much as a hearing.

That was certainly a mistake, and the Eleventh Circuit agreed, reversing and remanding to the district court in Kaley I. Instead of a full hearing, where the Kaleys could challenge the indictment, the district court limited the issue to only whether the assets seized could be traced to the alleged offenses. The Kaleys presented no evidence (their defense isn't that they didn't do it -- it's that it wasn't illegal), and later appealed, arguing that a full hearing on the validity of the indictment was required.

The Eleventh Circuit disagreed in Kaley II, stating that the Due Process Clause does not "require the district court to try the case twice."

Is Robin Rosenbaum, a 2012 Dist. Court Appointee, Headed to 11th?

With her seat on the United States District Court for the Southern District of Florida barely warm, rumor has it that the Honorable Robin Stacey Rosenbaum is being vetted for a promotion. The Southern District of Florida Blog reports that Rosenbaum is being considered for the vacancy left by Judge Rosemary Barkett, whose last day on the court was yesterday. Barkett is heading to Europe to sit on the Iran-United States Claims Tribunal in The Hague.

Barkett's departure leaves three vacancies on the court, with one more coming as soon as former-Chief Judge Joel Dubina steps into senior status (he's waiting until the vacancies are filled). And nominating the recently-appointed, yet uncontroversial Judge Rosenbaum might be exactly what's needed to break the log-jam of judicial appointments in the Eleventh Circuit.