Tuesday, June 30, 2015

Louisiana Aggravated Battery Is Not a § 2L1.2 Crime of Violence



This case involved determining whether the least culpable means of committing aggravated battery under Louisiana law involves conduct within the scope of the generic, contemporary meaning of “aggravated assault.” This classification determines whether the district court’s application of a sixteen-level enhancement for a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii) is valid. The panel considers both the force clause and the enumerated offence clause for COV classification.

The Louisiana statue under which Hernandez-Rodriguez was convicted defines aggravated battery as “a battery committed with a dangerous weapon.” La. Rev. Stat. § 14:34. Louisiana’s criminal code then defines battery as either (1) “the intentional use of force or violence upon the person of another” or (2) “the intentional administration of a poison or other noxious liquid or substance to another.” Under state law, the term “dangerous weapon” includes any liquid, gas, substance or instrument that “in the manner used, is calculated or likely to produce death or great bodily harm.” § 14:2(A)(3).

This does not qualify under the force prong of § 2L1.2 because there are no Shepard-compliant documents identifying the subpart of the statute that forms the basis of his conviction.  Since the administration of poison alternative cannot be excluded, the least culpable act did not necessarily involve destructive or violent force.  United States v. Herrera-Alvarez, 753 F.3d 132 (5th Cir. 2014).

Nor does it qualify as a generic aggravated assault.  Under the Model Penal Code, a person is guilty of aggravated assault if he/she “attempts to cause serious bodily injury to another” or causes such injury “purposely, knowingly, or recklessly” or if he/she “attempts to cause” or “purposely or knowingly causes bodily injury to another with a deadly weapon.” Thus, the generic definition of aggravated assault requires a showing of specific intent, while the Louisiana offense of aggravated battery is a general intent offense.  Moreover, the requisite intent for Louisiana aggravated battery relates only to the defendant’s conduct, not to the infliction of serious bodily harm or the intent to inflict serious injury as in the Model Penal Code.  The panel provides a detailed example from Louisiana case law of how it is broader than generic aggravated assault and vacates the sentence and remands for resentencing.

Thanks to FPD Intern Samantha Canava for this blog post.

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Monday, June 29, 2015

Judge’s Admonishments about Possible Deportation Did Not Foreclose Ineffective Assistance of Counsel Claim



Defendant Innocent Rutahagara Batamula pleaded guilty to making false statements right after a judge’s plea colloquy that the felonies committed were “likely” to result in deportation. However, prior to the Batamula’s plea, he was never advised by counsel that conviction would result in deportation. Had the Batamula known of deportation or the possibility thereof, he would have “‘refused to make the plea,’ would have pleaded not guilty, and would have insisted on going to trial.”

The panel reversed the district court’s denial of Batamula’s claim of ineffective assistance of counsel under the Sixth Amendment and remanded.  The district court held that when a judge informs the defendant of possible deportation in the plea colloquy, counsel’s failure to advise on immigration consequences is thereby “cured,” with defendant’s relevant constitutional claim forfeited or waived, estopping the defendant from showing prejudice. The panel disagreed since “forfeiture of certain constitutional claims,” like effective counsel, occur only when “the plea is entered knowingly and voluntarily and with competent assistance and advice by defense counsel.” The defendant did not have the latter.

The risk of deportation, per the Supreme Court, is akin to “banishment or exile” and warrants the need for counsel to inform the defendant of the consequences. The Court in Padilla v. Kentucky, 559 S. Ct. 356 (2010), recognized that “preserving the client’s right to remain in the United States may be more important to the client than any potential jail sentence.” Additionally, defense counsel has certain, basic obligations to the defendant in complying with the Sixth Amendment. These include “effectively investigating and advising the client regarding immigration consequences before the client decides whether to plead guilty.”

The panel reasoned that a judge’s admonishments “during a plea colloquy are not a substitute for effective assistance of counsel,” nor do they “supersede errors by the defense counsel.” These admonishments also do not “foreclose” the defendant from demonstrating prejudice when counsel is ineffective. Further, even if counsel is ineffective and a defendant accepts his plea intelligently, voluntarily, and knowingly, the Supreme Court has rejected arguments that the defendant was “not deprived of any legal benefit to which he was entitled.” Missouri v. Frye, 132 S. Ct. 1399, 1407-08 (2012). In a similar decision, the Court in Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012), took the right to counsel further, asserting that even if the trial was fair and the defendant was guilty, the defendant was still entitled to effective assistance of counsel and can bring a claim of prejudice if counsel was otherwise.

Thanks to FPD Intern Adam Pena for this post.

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Friday, June 26, 2015

Sentencing Court’s Discretion Not Limited for Career Offenders; Must Consider § 3553

United States v. Clay, No. 14-60283 (5th Cir. May 22, 2015) (Jolly, Higginson, Costa) (per curiam)
 
The district court sentenced Clay, who was classified as a “career-offender” under the Guidelines, within the guideline sentencing range of 151-188 months of imprisonment.  Without such classification, the advisory range would have been 30-37 months.  Despite the district court being “troubled” that the Defendant’s career-offender status led to an increased sentence, the district court refused to vary downward because of no “Fifth Circuit guidance” on the matter. On appeal, the panel vacated the sentence and, on remand, ordered the district court to recognize its own discretion to vary from the Guidelines’ advisory range.

The panel reasoned that the Guidelines are relevant but not dispositive in determining the appropriate sentence. The Guidelines serve only an “advisory” role, which, per the Supreme Court, a district court may defer to for a within-Guidelines sentence only “after considering the factors in 18 U.S.C. § 3553(a).” District courts must “consider the nature and circumstances of the offense and the history and characteristics of the defendant.” Further, district courts must consider “other broad concerns…, in an individualized manner, before imposing its sentence.” If the district court finds that a within-Guidelines sentence is “greater than necessary to serve the objective of sentencing,” then the district court can vary. A district court’s sentencing discretion does not depend on whether the defendant is classified as a career-offender under § 4B1.1.

The district court erred by not applying an “individualized assessment” under § 3553(a) factors. This procedural error was not harmless. The record shows that the district court had misgivings about the within-Guidelines sentence; it was not only “troubled” by it, but also admitted that had there been “Fifth Circuit guidance to vary,” which, as we know now is not necessary, “the outcome [likely] would have been different.” This would also show that perhaps the within-Guidelines sentence was in fact “greater than necessary to serve the objective of sentencing,” thus the need for district courts to exercise sentencing variation.

Thanks to FPD Intern Adam Pena for this post.

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ACCA Residual Clause Unconstitutional


 
From the opinion:
 
"In Taylor v. United States, 495 U. S. 575, 600 (1990), this Court held that the Armed Career Criminal Act requires courts to use a framework known as the categorical approach when deciding whether an offense "is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." Under the categorical approach, a court assesses whether a crime qualifies as a violent felony "in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion." Begay, supra, at 141.
 
Deciding whether the residual clause covers a crime thus requires a court to picture the kind of conduct that the crime involves in "the ordinary case," and to judge whether that abstraction presents a serious potential risk of physical injury. James, supra, at 208. The court’s task goes beyond deciding whether creation of risk is an element of the crime. That is so because, unlike the part of the definition of a violent felony that asks whether the crime "has as an element the use . . . of physical force," the residual clause asks whether the crime "involves conduct" that presents too much risk of physical injury. What is more, the inclusion of burglary and extortion among thee numerated offenses preceding the residual clause confirms that the court’s task also goes beyond evaluating the chances that the physical acts that make up the crime will injure someone. The act of making an extortionate demand or breaking and entering into someone’s home does not, in and of itself, normally cause physical injury. Rather, risk of injury arises because the extortionist might engage in violence after making his demand or because the burglar might confront a resident in the home after breaking and entering.

We are convinced that the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant’s sentence under the clause denies due process of law."
 

See analysis at scotusblog.com.

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Friday, April 03, 2015

Georgia Possession With Intent to Distribute Is § 2L1.2 DTO Even Though Not an Aggravated Felony Per Moncrieffe; No Remuneration Required



The Fifth Circuit giveth and then taketh away.  For 3 months, giving away drugs was not a § 2L1.2 drug trafficking offense (DTO) thanks to the now superseded United States v. Martinez-Lugo, 773 F.3d 678 (5th Cir. Dec. 11, 2014) (Davis, Dennis, Costa).  Last week, the panel sua sponte withdrew its prior opinion and substituted an opinion that finds a conviction for Georgia conviction for possession with intent to distribute (PWID) marijuana is a § 2L1.2 DTO even though the Supreme Court held it was not an aggravated felony in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013).  Lack of remuneration does not prevent Georgia PWID from being a § 2L1.2 DTO. 

In the withdrawn opinion, the majority focused on the common sense definition of “drug trafficking offense.”  The Moncrieffe court reiterated the Supreme Court’s previous recognition that “the everyday understanding of ‘trafficking’ . . . ordinarily means some sort of commercial dealing.”  Since the Georgia PWID statute does not require remuneration, the Martinez-Lugo majority in the withdrawn opinion found that it was not categorically a DTO.

In the new opinion, the majority focuses on the elements of a federal drug trafficking offense and compares them, rather than the Moncrieffe definition of “trafficking,” to the Georgia PWID statute.  Moncrieffe recognized that the elements of Georgia PWID and PWID under the Controlled Substances Act (CSA) are the same.  The only reason Georgia PWID is not an aggravated felony is that the distribution of a small amount of marijuana for no remuneration is a misdemeanor under the CSA, and only CSA felonies would be an aggravated felony.  In contrast, § 2L1.2 does not require that an offense be a CSA felony in order to be a DTO. 

The new Martinez-Lugo majority opinion claims Martinez-Lugo never argued that the elements of Georgia PWID differ from the elements of the generic, contemporary PWID offense but instead argued that Moncrieffe controls.  The majority “decline[s] to extend Moncrieffe to the different scheme embodied in the Guidelines absent clear direction to do so. . . . Under a straightforward application of the categorical approach, the Georgia offense under which Martinez-Lugo was convicted has the same elements as the generic possession with intent to distribute offense.” 

Judge Dennis dissents.  He interprets Moncrieffe as making clear that the generic definition of a “trafficking” does not include sharing a small amount of marijuana for no remuneration.  The CSA recognizes this by treating such an offense as a misdemeanor simple possession.  Since the categorical approach requires a court to examine the least culpable act punishable under a statute, which would include sharing a small amount of marijuana for no remuneration, Georgia PWID is not a § 2L1.2 DTO.  Judge Dennis also criticizes the “ironic and illogical inconsistency” that, under the majority’s decision, Martinez-Lugo receives a 16-level enhancement for a DTO but would not be subject to the 8-level enhancement for an aggravated felony.

Note:  This is the second time in three years that a Fifth Circuit panel initially resolved a § 2L1.2 DTO issue in favor of the defendant and then withdrew the opinion and entered an opinion affirming the enhancement.  See United States v. Rodriguez-Escareno, 700 F.3d 751, 753 (5th Cir. 2012) (superseding prior opinion that held conspiracy to distribute meth was not a DTO).

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Wednesday, April 01, 2015

180+ Day Incarceration, Regardless of Nature of Offense, Negates “Good Moral Character” for Non-LPR Cancellation of Removal; GMC Period Ends Upon Final Administrative Decision



This case involves the statutory interpretation of the good moral character (GMC) requirement, 8 U.S.C. § 1101(f)(7), for non-LPR cancellation of removal, 8 U.S.C. § 1229b(b)(1).  Rodriguez-Avalos is a Mexican citizen who entered the United States without being admitted or paroled in April 1999.  He was living in Nebraska when he was interviewed by a Department of Homeland Security (DHS) agent in connection with an identity theft investigation of the grocery store where Rodriguez-Avalos worked.  He admitted to having no documentation enter or work in the United States, and he was arrested that day and served with a Notice to Appear (NTA)—May 3, 2011.   

Criminal Case: Following the arrest, Rodriguez-Avalos was indicted with falsely and willfully representing himself to be a U.S. citizen in violation of 18 U.S.C. § 911.  He pled guilty and, on January 18, 2012, he was sentenced to 14 months of imprisonment and served approximately 7 months before being released.

Immigration Case: Rodriguez-Avalos was “formally” served with the NTA on November 28, 2012.  He subsequently appeared in immigration court and conceded his removability but applied for cancellation of removal.  Section 1229b(b)(1), or non-LPR cancellation require 10 years of physical presence “immediately preceding the date of such application”; “good moral character during such period”; no convictions for a crime involving moral turpitude (CIMT), controlled substance offense, or aggravated felony; and a showing that removal would result in exceptional and extremely unusual hardship to U.S. citizen (USC) or lawful permanent resident (LPR) spouse, parent, or child.  See § 1229b(b)(1).  Section 1101(f)(7) defines “good moral character” in part as requiring no confinement, as a result of conviction, to a penal institution for an aggregate period of 180 days or more during the GMC period. 

Is Rodriguez-Avalos still eligible for non-LPR cancellation if he was confined for 7 months due to a § 911 conviction within the 10 years prior to applying for cancellation?  Not according to the immigration judge, the Board of Immigration Appeals, or the Fifth Circuit panel.

Rodriguez-Avalos presented two arguments:

1)      His § 911 conviction is not a CIMT and, thus, his incarceration should not preclude him from establishing GMC.

2)      His prison term fell outside of the relevant time period because of the stop-time rule, 8 U.S.C § 1229b(d)(1), which ends the 10-year period when an NTA is served upon the petitioner

The panel rejected both arguments:

“[A]pplying the Skidmore standard, the BIA did not err in concluding that a petitioner cannot establish good moral character if he has been incarcerated for 180 days or more, regardless of the nature of the underlying crime of conviction.”  The BIA’s conclusion was a plain reading of the text, and such a reading is consistent with Fifth Circuit precedent. 

“[T]he BIA’s interpretation of Section 1229b(b)(1) as requiring a petitioner to establish good moral character during the ten-years immediately preceding the final administrative decision regarding the petitioner’s application for cancellation of removal is entitled to deference under Chevron.”  See Inre Ortega-Cabrera, 23 I & N Dec. 793, 798 (BIA 2005).  The panel rejects Rodriguez-Avalos’ argument that the 10-year GMC period must mirror the 10-year physical presence period which stops upon the service of the NTA.  The BIA determined that extending the GMC period to the final administrative decision best comported with congressional intent because it would allow for consideration of any false testimony during the proceeding, see § 1101(f)(6), and allow the immigration judge to determine the petitioner’s most recent behavior.

How does this affect criminal defense attorneys?  It’s one more immigration consequence to add to your checklist. If your client is otherwise eligible for non-LPR cancellation of removal (10-year physical presence in US, GMC, no disqualifying convictions, and has USC/LPR qualifying relatives for whom your client’s removal could arguably result in extreme and unusual hardship), be aware that confinement of 180 days or more after a conviction—regardless the nature of the offense—will make him or her ineligible.  Fight for pretrial release, a sentence less than 180 days, and definitely advise your client of the consequences of the conviction and a 180+ day sentence.

Other consequences?  The panel’s interpretation of § 1101(f)(7) is in the context of § 1229b(b)(1).  Nevertheless, this opinion could impact the analysis of the 180-day incarceration analysis in any other GMC context, such as naturalization and VAWA relief.  Also, note the panel did not decide the issue by finding § 911 to be a CIMT.

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Tuesday, March 31, 2015

Government Breached Plea Agreement by Using Information from Proffer to Argue for Higher Sentence



The PSR alleged 3 alleged drug transactions.  Chavful plead guilty to the third: 5kg of cocaine and 200lb of marijuana.  The first, negotiations for 10kg of cocaine and 1000lb of marijuana, Chavez argued in his objection and at sentencing was merely the negotiation that culminated in the third transaction.  By holding him accountable for 15kg of cocaine and 1,200lb of marijuana, Chavez argued Probation was double counting the same transaction because they were fact-related.  Probation, and then the Government, argued the first was a separate transaction because of the intervening, second sale of 30kg of marijuana.  Chavful disclosed the second sale during the proffer interview and objected when the Government relied on the second sale to argue the first transaction was a separate transaction from the third.  Neither Probation nor the Government added the 30kg of marijuana to Chavful’s relevant conduct.

The plea agreement included the Government’s promise that “[a]ny information provided by Chavful, other than that charged in the pending indictment, in connection with Chavful’s assistance to the United States, including debriefing and testimony, will not be used to increase Chavful’s Sentencing level.”  The plea agreement specifically incorporates U.S.S.G. § 1B1.8, which prohibits the use of information obtained by the Government as part of a cooperation agreement from being used to determine the applicable guideline range.

The panel adopts Chavful’s interpretation that the Government cannot rely on protected information to advocate for a greater sentence.  The Government breached the plea agreement by using protected information to advocate for a greater sentence.  The sentence was vacated and remanded for re-sentencing.

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Monday, March 30, 2015

Government Cannot Refuse to Move for Third Point of Acceptance Due to Sentencing Litigation



Castillo pled guilty to bank robbery of over $1,000.  The PSR held her accountable for stealing $690,000 and added 14 levels to the base offense level.  Castillo filed written objections, denying that she confessed to stealing $690,000 and arguing that the evidence showed an amount between $70,000 and $120,000, justifying only an 8-level increase.  The district court held a hearing, heard testimony, and adopted the loss amount in the PSR.  The Government then refused to move for the third point of acceptance, despite the representation in the PSR that it would so move at the time of sentencing.  The Government argued that it had been essentially taken to the task of trial and had not saved any resources.

The panel reviewed the language of U.S.S.G. § 3E1.1(b), Amendment 775 (Government cannot refuse to move for the third point if the defendant does not waive appeal), and sister circuits’ decisions.  The panel found that the Government can refuse to file a § 3E1.1(b) motion based on any interest identified in § 3E1.1(a) or (b).  Those interests, however, do not include preparing for a sentencing hearing.

Despite those clear findings, the majority went on to limit this holding only to good faith disputes: “[I]f the defendant has a good faith dispute as to the accuracy of the factual findings in the PSR, it is impermissible for the government to refuse to move for a reduction under § 3E1.1(a) simply because the defendant requests a hearing to litigate the issue.”  Since the district court did not find that Castillo litigated the issue in good faith, the panel vacated the sentence and remanded for determination of that fact issue.

Judge Graves concurred in part and dissented in part.  He reasoned that Castillo was entitled to a resentencing regardless of a finding of good faith because the plain language of § 3E1.1 focuses on trial, not sentencing, preparation as a reason to withhold a motion for the third point.  Given the plain language of the guideline, Judge Graves argued it is unnecessary to reach the constitutional issue of a defendant’s due process right to challenge PSR findings, which is the context in which the Second Circuit discussed the good faith requirement.

So, continue to litigate sentencing issues (in good faith) without fear of losing the third point of acceptance of responsibility.

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