Tuesday, April 19, 2016

Sentencing Commission Adopts New Guideline Amendments

The U.S. Sentencing Commission voted on April 15 to amend the U.S. Sentencing Guidelines, including significant changes to 2L1.2, 2G2.2, and conditions of supervision.

A "reader-friendly" version of the adopted amendments is available online.

These amendments will be submitted to Congress and go into effect on November 1, 2016, absent congressional action.

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Friday, March 04, 2016

Rehearing En Banc on Whether 18 U.S.C. § 16(b) Is Unconstitutionally Vague

United States v. Gonzalez-Longoria, No. 15-40041, 2016 WL 537612, at *1 (5th Cir. Feb. 10, 2016) (Jolly, Costa; Higginson dissenting)

A divided panel held that 18 U.S.C. § 16(b) is unconstitutionally vague.  After examining the Johnson factors, the majority determined:  

Section 16's standard is imprecise in all the ways that the ACCA's standard was imprecise; in each case, however, it is arguably at least slightly less imprecise. The ACCA's standard referenced a confusing list of examples; § 16's text references no examples at all. The ACCA's standard encompasRehses a broad scope, as it considers post-offense conduct; so does § 16's standard, though its scope may be at least slightly limited by Leocal. The ACCA had occasioned judicial disagreement; so has § 16, though less. Comparing § 16's standard to the ACCA's standard, all we can say with confidence is that § 16's standard is imprecise, although not quite as imprecise as the ACCA's standard. 

Our course forward is clear, however, upon considering that Johnson was not a case at the very margins of vagueness and non-vagueness. Johnson did not hold that the ACCA's standard represents a minimum bar for precision; that is, Johnson did not hold that any standard slightly more precise than the ACCA's is acceptably precise. To the contrary, Johnson held that the ACCA's standard was so imprecise that the Court was justified in departing from stare decisis. Presumably, therefore, a marginally more precise standard could be problematically vague. Section 16's standard is that marginally more precise—yet still imprecise—standard.

Thus, considering each of the arguments and nuances brought to our attention, we hold that § 16 is unconstitutionally vague because, at bottom, § 16 requires courts both to imagine an ordinary/archetypical case and then to judge that imagined case against imprecise standard. Under Johnson, this means that § 16 is unconstitutionally vague, and we so hold.

On the Court’s own motion, a majority of the circuit judges voted to rehear this case en banc.  Oral argument is tentatively scheduled for the week of May 23, 2016.  Stay tuned.

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Thursday, March 03, 2016

Public Comment Sought for Sentencing Commission Proposed Amendments

The U.S. Sentencing Commission released proposed amendments to the Sentencing Guidelines at the beginning of January.  USSC Press Release.

Here is a link to the amendment related to the 4B1.2 crime of violence definition.  In light of Johnson v. United States, 135 S. Ct. 2551 (2015), the amendment deletes the residual clause from 4B1.2(a)(2).

The Commission is also recommending amendments to 2L1.2, alien smuggling, child porn distribution with file sharing programs, age and vulnerable victim enhancements, conditions of probation and supervised release, animal fighting, compassionate release, and other miscellaneous amendments.

The closing date for public comment is March 21, 2016.

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Wednesday, September 16, 2015

NACDL Report on Federal Indigent Defense: The Independence Imperative

Last week, the National Association of Criminal Defense Lawyers released its report on Federal Indigent Defense calling for greater independence from the judiciary.

The report raises many concerns about the system and identifies Seven Fundamentals of a Robust Federal Indigent Defense System:

1. Control over federal indigent defense services must be insulated from judicial interference.

2. The federal indigent defense system must be adequately funded.

3.  Indigent defense counsel must have the requisite expertise to provide representation    consistent with the best practices in the legal profession.

4.  Training for indigent defense counsel must be comprehensive, ongoing and readily available.

5.  Decisions regarding vouchers must be made promptly by an entity outside of judicial control.

6.  The federal indigent defense system must include greater transparency.

7.  A comprehensive, independent review of the CJA program must address the serious concerns discussed in this report.

For NPR coverage of the report, click here.

Thursday, July 23, 2015

No Equitable Vacatur of Supervised Release for Deported 1326 Defendant

Heredia-Holguin was sentenced to one year in prison and a three-year term of supervised release for illegal reentry. He did not object to his sentence or term of supervised release. While Heredia-Holguin’s appeal was pending, he served his one-year prison term and was deported with supervised release. After his deportation, his counsel filed a brief conceding the deportation rendered the appeal moot, and he requested that his remaining term of supervised release be vacated.  
The panel ordered supplemental briefing on three issues: 1) what error had Heredia-Holguin complained of on appeal, 2) whether the appeal had become moot, and 3) if the appeal was moot, “whether the court should vacate the conviction, sentence, or term of supervised release under the doctrine of equitable vacatur.”  
First, Heredia-Holguin emphasized in his supplemental briefing that he was not pursuing the sentencing appeal.  Rather, he “requested only that the panel vacate the remaining term of his supervised release.”
As to mootness, the panel discussed United States v. Lares-Meraz and United States v. Rosenbaum-Alanis, which arrived at opposite conclusions regarding mootness of a sentencing appeal after the defendant is deported. In Lares-Meraz, the “alleged sentencing error,” was not moot “because the defendant remained the subject to a term of supervised release, an element of the overall sentence.” The error, however, was harmless. In Rosenbaum-Alanis, the defendant’s sentencing appeal was moot because the defendant could not reenter the U.S. for resentencing purposes, and no waiver was on record allowing for his absence. The panel perceived inconsistences between Lares-Meraz and Rosenbaum-Alanis but opted not to resolve them.
Assuming Heredia-Holguin’s appeal was moot, the panel denied his request to vacate his supervised release under the doctrine of equitable vacatur. “[V]acatur is in order when mootness occurs through happenstance or unilateral action of the party who prevailed in the lower court.”  Heredia-Holguin’s deportation, however, cannot be attributed to happenstance or the unilateral action of the Government since it was the natural consequence of Heredia-Holguin reentering the United States illegally. Furthermore, the district court “imposed the term of supervised release to deter Heredia-Holguin from illegally returning to the U.S.”  In light of the deterrent effect and his failure to object to the imposition of supervised release before the district court, the panel did not exercise its equitable discretion to vacate Heredia-Holguin’s term of supervised release. 
Since it denied Heredia-Holguin’s request, the panel did not address “the Government’s argument that equitable vacatur is a civil doctrine that is not available in a criminal case as a matter of law.”
Thanks to FPD Intern Adam Pena for this post.

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Friday, July 17, 2015

Counsel’s Stipulation to Testimonial Evidence Waived Client’s Confrontation Right Even Absent Evidence that Client Agreed to Stipulation

Ceballos appealed her conviction for “transporting, attempting to transport, and engaging in a conspiracy to transport an alien within the United States” by alleging a violation of her Sixth Amendment right, improper admission of evidence, and that cumulative error deprived her of a fair trial.  The panel rejected each of her claims, affirming the conviction. 

First, Ceballos challenged the admission of a material witness’s sworn statement as a violation of her Sixth Amendment right of confrontation.  Her defense attorney did not object to its admission.  The Fifth Circuit has upheld waivers of the right of confrontation without evidence that the defendant [herself] expressed agreement with the stipulation.  See United States v. Reveles, 190 F.3d 678, 683 (5th Cir. 1999); United States v. Stephens, 609 F.2d 230, 232-33 (5th Cir. 1980).  Since Ceballos did not dissent from the attorney’s failure to object and the stipulation could have been a legitimate trial strategy according to the panel, her counsel’s waiver of her right was valid.  The panel found Crawford did not overrule this precedent and declined Ceballos’ invitation to revisit Stephens.

This holding is of particular concern given how the “stipulation” occurred in this case.  The defense attorney never said, “We stipulate to the admission of the alien’s sworn testimony and waive the right to confront the alien.”  Rather, the district court asked if the parties had agreed on exhibits to be admitted.  Aside from an objection to the notebook described below, defense counsel responded affirmatively to the court’s question if he was “‘in agreement as to the admissibility of the government’s exhibits under those exhibit numbers?’”  In other words, the only way Ceballos could have preserved her right to confront the alien is if she knew the alien’s sworn affidavit was Exhibit 8 and during this oblique exchange with the court said that she disagreed with the admissibility of that exhibit.  The court never asked Ceballos if she was willing to waive her confrontation right, and Fifth Circuit precedent does not require the court to do so.

Ceballos’ allegations that the notebook, identified by the government as a smuggling ledger, was not properly authenticated and was inadmissible under Federal Rule of Evidence 404(b) were denied.  While a “close” issue, the panel found that the district court did not abuse its discretion by finding the notebook properly authenticated even though the Government did not present a handwriting expert.  The notebook was found in Ceballos’ purse, and the contents of the notebook provided some corroboration of the illegal activity.  The panel affirmed the admission of the notebook, on plain error review, because there was a strong basis to determine it was intrinsic evidence and, alternatively, it would have served a permissible evidentiary purpose under Rule 404(b).

The final claim, that there was cumulative error in inappropriate government witness testimony commenting on Ceballos’ invocation of her right to counsel and silence coupled with improper closing arguments deprived her of a fair trial, was also rejected for failure to demonstrate plain error. 

Thanks to FPD Intern Samantha Canava for her contributions to this post.

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Tuesday, July 14, 2015

AK-47 Magazines Are “Components” for Purposes of Firearm Exportation Laws

Gone are the days of the Civil War musket, when one’s life depended on quickly loading the gun, only to fire a single, anti-climactic shot at the enemy. Fast-forward a couple wars later, and the AK-47, a high-powered, automatic rifle (“automatic” being the “A” in AK-47), made its debut. Used since WWII, the detachable magazine of an AK-47 derives its “use” from the gun itself. That is the issue the panel takes up in this case: whether a magazine of the AK-47 is a “component” of the gun under laws that prohibit the unlicensed exportation of firearms and their items. The panel affirmed the district court’s ruling that the magazine of the AK-47 is a “component.”

The Defendant, Arturo Gonzalez, was convicted of unlawfully exporting hundreds of AK-47 magazines to the henchmen of Mexican drug cartels. Gonzalez, whose shop was four blocks from the border, received $30,000 cash for the magazines in a “no-questions-asked” sale t a man named “El Gordo.” The man told Gonzalez that he “was going to take the magazines to Mexico.” Gonzalez argued that exporting empty magazines, however, was not prohibited under the smuggling statute of which he was convicted.       

The Arms Control Export Act “criminalizes the unlicensed export of items ‘designated by the President’ as ‘defense articles’.” These designated items are set forth in the U.S. Munitions List, compiled by the State Department’s Directorate of Defense Trade Controls, which includes certain firearms and their “components, parts, accessories, and attachments.” 

The panel looked at the State Department’s regulatory scheme, where it defined an “end-item” as a “system, equipment, or an assembled article ready for intended use,” and a “component” as an “item that is useful only when used in conjunction with an ‘end-item’.”

The AK-47 was the “end-item” and the panel found that the magazine was in fact the “component” to that item. The magazine’s purpose is “increasing the firearm’s ammunition capacity and rate of fire.” Thus the magazine is only “useful” with the AK-47. Also, the State Department confirmed that the Munitions List “covers magazines,” foreclosing Gonzalez’s argument. The panel found that even when viewed generally, the magazine fit the “component” meaning, as it served “the larger whole,” the gun. Also, on the issue of the magazines being unloaded, the panel reasoned that the Munitions List “covers articles not loaded at time of export” because otherwise offenders could easily export magazines and cartridges, later to be combined, separately, defeating the purpose of illegal exportation laws.

The panel also affirmed the district court’s sentence of 63 months, which was within the advisory Guidelines range using base offense level 26.  Gonzalez argued level 14, which applies to offenses involving non-fully automatic small arms or less than 500 rounds, was the proper base offense level because magazines should be considered “small arms” for the Guideline.  The district court held that the magazines support level 26 precisely because they are not “small arms.”  Additionally, Gonzalez did not challenge the factual finding that his export scheme involved selling thousands of rounds of ammunition, which would independently support the higher offense level.

Thanks to FPD Intern Adam Pena for this post.

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