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.


Friday, March 13, 2015

Texas Aggravated Assault with Deadly Weapon Conviction Is Generic “Aggravated Assault” even though Judgment of Conviction Had No Affirmative Weapon Finding

This case involved the reliability of a judgment of conviction to determine that Sanchez-Sanchez’s prior state conviction constituted “aggravated assault” in the generic sense to support the 16-level enhancement under § 2L1.2. 

The parties agreed that Sanchez-Sanchez was convicted under the Texas aggravated assault statute, Tex. Penal Code § 22.02(a).  Section 22.02(a) contains offenses that are COVs (such as assault with a deadly weapon) and ones that are not (such as simple assault on a peace officer). Under the modified categorical approach, the panel can rely on Shepard documents to narrow Sanchez-Sanchez’s conviction to a specific offense under § 22.02(a). 

Sanchez-Sanchez pled guilty in Texas to aggravated assault with a deadly weapon, and the indictment alone would establish a conviction for aggravated assault with a deadly weapon.  Sanchez-Sanchez argues, however, that the judgment casts doubt on whether he was convicted under that subsection because the judgment does not make an affirmative finding as to the use of a deadly weapon.

The panel concludes that the judgment is not inconsistent with the indictment because, in Texas, an “affirmative finding” that a deadly weapon was used is significant only for the determination of whether probation or parole can be granted.  “In other words, the failure to make such an affirmative finding relates to sentencing, not to the underlying offense conduct.”  The panel discusses competing interpretations by lower Texas appellate courts about the trial court’s discretion to decline to enter the affirmative finding in the judgment, but concludes that this disagreement does not change the holdings by the Texas Court of Criminal Appeals on which the panel relies.  “The absence of an affirmative finding does not amount to a finding that the offense did not involve a deadly weapon.”  The sentence is affirmed.

The updated § 2L1.2 Crime of Violence list is available on

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Thursday, March 12, 2015

Florida Manslaughter Not § 2L1.2 COV Because Requires Less than Recklessness as to Death

The Fifth Circuit reminds us again that the name of a state conviction is not dispositive as to whether it is a crime of violence (COV).  In this case, Garcia-Perez was convicted of illegal reentry, and the district court assessed a 16-level enhancement for his conviction of manslaughter in Florida. 

Florida manslaughter, at the time of the offense, encompassed the “killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification….”  Fla. Stat. § 782.07(1) (1995).  Proof of manslaughter does not require proof of force, so the conviction does not meet the § 2L1.2 COV elements program.

“Manslaughter” is one of the enumerated § 2L1.2 COV offenses, however.  The generic definition of manslaughter requires a mental state of either intent to kill or recklessness, a “conscious disregard of perceived homicidal risk.”  United States v. Bonilla, 524 F.3d 647, 654 (5th Cir. 2008).  The panel reviewed Florida case law and determined that Florida manslaughter does not require intent to kill and that a long line of cases held that “unexpected deaths caused by intended acts can be enough to prove manslaughter.”  Indeed, the fact that a defendant could not have reasonably believed that death was a probable result of an intentional act does not defeat a manslaughter conviction in Florida. 

Because Florida manslaughter is not limited to acts committed with conscious disregard of a perceived risk of death, it is broader than the definition of generic contemporary manslaughter.  The district court erred by enhancing Garcia-Perez’s offense level, and the error was not harmless.  The panel vacates the sentence and remands for resentencing.

The updated § 2L1.2 Crime of Violence list is available on

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Wednesday, March 11, 2015

Presumed Intent to Distribute due to Quantity of Drug Does Not Make Florida Trafficking in Meth a § 2L1.2 Drug Trafficking Offense

How can an offense called trafficking in methamphetamine not be a drug trafficking offense?  Well, Florida Statute § 893.135(1)(f) includes mere possession as a form of “trafficking” provided the defendant possesses at least 14 grams of methamphetamine.  Under the U.S. Sentencing Guidelines, though, presumption of intent to distribute due to the possession of a certain quantity of the drugs does not create a drug trafficking offense.  United States v. Lopez-Salas, 513 F.3d 174, 179-80 (5th Cir. 2008).

So, Florida trafficking in methamphetamine is not categorically a drug trafficking offense.  No Shepard documents narrowed Sarabia-Martinez’s conviction to a form of trafficking other than mere possession, and the district court plainly erred by relying on facts contained in the Presentence Investigation Report to conclude that the conviction was for drug distribution.  The panel rejected the Government’s argument, based on non-Shepard documents, that the error did not work an injustice and that remand would be improper.  The panel reasoned the “facts asserted in the ‘arrest report’ now provided by the government were never confirmed by Sarabia-Martinez” and declined drawing “any conclusions from documents the district court would not be permitted to consider.”  The erroneous enhancement resulted in a notable sentencing disparity, and Sarabia-Martinez had no other significant convictions or prior reentry convictions.  The sentence was vacated and remanded for resentencing.

Updated § 2L1.2 Crime of Violence list, which includes some drug trafficking offenses, is available on

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Friday, March 06, 2015

USAO Discovery Policies

Pursuant to a FOIA request, USA Today obtained the discovery policies for U.S. Attorney Offices.  The policies for many offices are available at this link.


Wednesday, December 31, 2014

Giving Away Drugs Is Not A § 2L1.2 Drug Trafficking Offense

At long last, the Fifth Circuit finally had to address whether a § 2L1.2 drug trafficking offense (DTO) includes giving away drugs without remuneration.  After rejecting similar arguments raised by defendants on plain error review, the panel resolved this question in Martinez-Lugo’s favor, albeit by a split panel. 
Martinez-Lugo’s conviction was under Georgia Code Annotated section 16-13-30(j)(1), the same statute at issue in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013).  In Moncrieffe, the Supreme Court held that the conviction was not an aggravated felony—illicit trafficking in a controlled substance, defined in part as a felony under the Controlled Substance Act (CSA)—because the CSA treats distribution of a small amount of marijuana for no remuneration as a misdemeanor.  
Section 2L1.2 does not define a DTO other than in the Application Notes, and the Application Note definition does not refer to the CSA.  So, the holding of Moncrieffe does not control.  Nevertheless, the majority relies on Moncrieffe’s language that “the everyday understanding of ‘trafficking[]’ ordinarily . . . means some sort of commercial dealing.”  Since the Application Note definition of DTO, which includes “possession . . . with intent to distribute” would conflict with the common understanding of the term “trafficking” if distribution did not require remuneration, the panel only applies the language of the § 2L1.2 guideline and finds that Martinez-Lugo’s conviction for an offense that could include giving away marijuana cannot support the 16-level enhancement.
Judge Costa dissents, urging the “straightforward result” that flows from the § 2L1.2 Application Note definition of a DTO.  Since Martinez-Lugo was convicted of possession with intent to distribute, Judge Costa maintains the 16-level enhancement applies.

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Export Statute, 18 U.S.C. § 554, Is Divisible; Modified Categorical Approach Applies to Statutes that Refer to Other Statutes and Regulations

Franco-Casasola was convicted under the export violation statute, 18 U.S.C. § 554(a), for buying, receiving, or concealing “merchandise, articles and object”—to wit: five semi-automatic pistols—knowing they were intended for export contrary to the Arms Export Control Act, 22 U.S.C. § 2778(b)(2), and the International Trafficking in Arms Regulations, 22 C.F.R. §§ 121.3, 123.1, and 127.1.  The question is whether § 554(a) is divisible such that a court can look to the elements of those arms export and trafficking statutes and regulations to determine whether Franco-Casosola’s conviction is an aggravated felony.  If § 554(a) is indivisible, the conviction would not be an aggravated felony.

A divided panel finds that § 554 is divisible and that, under the modified categorical approach, Franco-Casasola’s conviction is the aggravated felony of illicit trafficking in firearms.  Section 554, in part, makes it unlawful to fraudulently or knowingly buy, receive, conceal, or facilitate the transportation, concealment or sale of  “any merchandise, article, or object” from the United States “contrary to any law or regulation of the United States.” 

The panel substitutes this published decision for an unpublished one, attempting to explain Descamps in a manner that supports its finding that § 554 is divisible.  The majority essentially finds that the elements of Franco-Casasola’s conviction included unlawful exportation of defense articles, which the majority finds to be illicit trafficking in firearms.  The majority recognizes that it has “gone one step further than the Supreme Court has had to so far” in terms of the modified categorical approach but attests that it has “not strayed from the path it has marked.”

Judge Graves, in dissent, criticizes the majority’s analysis and casts its “one step” as a giant leap.  Simply put, Judge Graves finds that the phrase “any law or regulation of the United States” is not an “explicitly finite list” as required by Descamps to apply the modified categorical approach.  Further, since § 554(a) prohibits buying, selling, and other activities regarding “merchandise, article[s], or object[s],” the conviction cannot be narrowed to illicit trafficking in firearms.  He also disagrees with the majority’s conclusion that the elements of the “law or regulation of the United States” cited in the indictment would necessarily be elements of the § 554(a) offense. 

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Friday, December 26, 2014

Absent Proof to the Contrary, Government Does Not Have to Prove No Other Charging Document Exists to Narrow Conviction Under Modified Categorical Approach

Castellon-Aragon challenged the 12-level enhancement for his drug conviction, arguing that the Government presented insufficient evidence that his conviction under the broad statute, California Health and Safety Code section 11378, was for possession of methamphetamine for sale.  The panel rejects this argument largely due to the plain-error stature of the case and the absence of any evidence that Castellon-Aragon did not plea to the criminal complaint.  The criminal complaint refers to methamphetamine as the basis for his conviction.  The district court did not plainly err by “failing to require the Government to prove a negative: that no superseding charging instrument was filed such that Castellon-Aragon might have pled guilty to an offense that didn’t specify methamphetamine[.]”

This decision leaves undisturbed the analysis of the unpublished decision upon which Castellon-Aragon relied: United States v. Lopez-Cano, 516 F. App’x 350 (5th Cir. 2013) (unpublished).  In Lopez-Cano, the error was preserved.  The panel held that certain California court documents were not proper Shephard documents because they were prepared by the court and not by a judge.  The panel also held that the complaint was not a Shephard-approved document because Lopez-Cano ultimately pled to a subsequently issued information that did not specify the drug was methamphetamine.

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