CLICK TO READ Lee Antwan Johnson v. Secretary, Florida Department of Corrections, Docket # 23-10276

Defendant was charged with First Degree Murder, Attempted Robbery with a Firearm, and Shooting or Throwing Deadly Missiles in connection with a robbery in which the victim was shot and killed.  After the evidence was presented, the trial judge reviewed draft jury instructions with the attorneys and the lawyers asked for Second Degree Murder and Manslaughter to be submitted as lesser-included offenses.  Neither side asked for a lesser-included offense on the robbery charge or the throwing missiles charge.

During jury instructions, the court referred to the attempted robbery charge without reference with a firearm, and instructed the jury they could find the Defendant guilty even if they found that he did not carry a firearm or weapon during the course of the robbery.  The defense attorney did not object to the jury instructions.  The jury convicted Defendant of felony murder and “Attempted Robbery as charged in the Indictment.”  But the jury also found that he did not possess a firearm during the commission of the attempted robbery.  He was sentenced to life imprisonment without parole and 15 years imprisonment, to be served concurrently.  He appealed his conviction and sentence, and the Florida First District Court of Appeal held that his 15-year sentence was illegal because he was convicted of Attempted Robbery without a weapon, a Third Degree Felony punishable by only 5 years imprisonment.

Defendant later moved for post-conviction relief under Rule 3.850 of the Florida Rules of Criminal Procedure, arguing his trial attorney provided ineffective assistance of counsel for failing to object to the jury instructions and the verdict.  The motion was denied, and his appeal of the denial of post-conviction relief was rejected.

Johnson filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, again raising the ineffective assistance of counsel claim.  The District Court granted the petition, finding that counsel was ineffective for failing to object to the lesser-included offense instructions.  The State appealed.

The Eleventh Circuit reversed the order and denied habeas corpus relief.  The Court concluded that the state court did not reach an unreasonable determination of the facts when it ruled that the Defendant had agreed to the lesser-included offenses.  The Court also held that the state court determination was not unreasonable.

Habeas corpus reversed, case remanded.

CLICK TO READ United States v. Daniel Scott Crow, Docket # 22-14267

Defendant was convicted of Enticement of a Minor to Engage in Sexual Activity and Production of Child Pornography, and sentenced to 360 months.  He appealed his sentence, arguing the District Court failed to group his counts together when calculated his Guideline range because his counts involved substantially the same harm under Guideline § 3D1.2.

Offenses must be grouped together when the “involve substantially the same harm.”  There are four circumstances where counts involve substantially the same harm:

(a) When counts involve the same victim and the same act or transaction.

(b) When counts involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan.

(c) When one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts.

(d) When the offense level is determined largely on the basis of the total amount of harm or loss, the quantity of a substance involved, or some other measure of aggregate harm, or if the offense behavior is ongoing or continuous in nature and the offense

The case was remanded for resentencing to recalculate the Guidelines range and to address the Defendant’s motion for a downward variance.