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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Wednesday, December 24, 2014

Previously Deported Noncitizen Apprehended at Port of Entry While Leaving the United States is “Found In” Under § 1326

Quezada Rojas was on a bus headed into Mexico when the bus was stopped by U.S. Border Patrol agents conducting inspections of outbound traffic.  Upon questioning, Quezada Rojas admitted that he was previously deported.  

In his Rule 29 motion and on appeal, Quezada Rojas argued that he was neither “found” nor “in” the United States at the time of arrest.  He argued that “found,” as used in § 1326, requires an alien to be discovered, and he was not discovered or found by immigration authorities since he voluntarily approached the port of entry. See United States v. Angeles-Mascote, 206 F.3d 529, 531 (5th Cir. 2000).  The panel rejected that argument, limiting the voluntariness precedent to aliens seeking to enter not exit the United States.  Quezada Rojas also argued that he was not “in” the United States because he was not free from official restraint.  The panel disagreed, stating that the Fifth Circuit has never explicitly adopted the doctrine of official restraint and that, even if it did, Quezada Rojas would not fall within the “official restraint” parameters since he was leaving the United States after having worked in Colorado free from restraint.

So, noncitizens with prior removal orders who are apprehended at the border while trying to return to their home countries will first have to spend months or years in a BOP facility, at least so long as prosecutors think such prosecutions are a good use of resources.

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Friday, November 21, 2014

Resources for Understanding New Executive Actions on Immigration

President Obama made his announcement yesterday expanding Deferred Action for Childhood Arrivals and creating Deferred Action for Parents as well as detailing other initiatives. 

Here are some links to information available online to help you understand the knew programs and how they can help your clients.  Keep in mind defense attorneys' duty to advise immigrant clients of the immigration consequences of their pleas and convictions. 

USCIS Website on the Actions Announced 11/20/14 (pretty reader-friendly):

USCIS Website for DACA (pre-changes, includes criminal history that renders someone ineligible):

DHS Website on Executive Action (collects the memos related to the 11/20 announcement):

DHS Memo on Prosecutorial Discretion (DACA & DAP) (describes the changes to DACA and the eligibility requirements for DAP):

DHS Memo on the New Removal Priorities (details what would make someone ineligible for DAP):

DHS Memo on Discontinuing Secure Communities:

White House on Fixing the Immigration System:

Applications for the expanded DACA should be accepted within 90 days.  Applications for the new DAP should be accepted within 180 days.  Typically, the USCIS website is a great resource for the most up-to-date information regarding programs such as these - the eligibility requirements and application procedure.


Monday, November 17, 2014

Is the Supreme Court Too Smart for Our Own Good?

Interesting article in the New Republic by Dahlia Lithwick explaining that she believes the rightward shift of the high court is based in more than just ideology:

"But having covered the Court for 15 years, I’ve come to believe that what we’re seeing goes beyond ideology. Because ideology alone would not propel the justices to effect such massive shifts upon the constitutional landscape, inventing rights for corporations while gutting protections for women, minorities, and workers. No, the real problem, I think, is that the Court as a whole has gotten too smart for our own good."


Friday, October 17, 2014

AUSAs Will Not Ask for Waiver in Plea Agreement of Ineffective Assistance of Counsel Claims

Attorney General Eric Holder announced a new policy that "the Department of Justice will no longer ask criminal defendants who plead guilty to waive their right to bring future claims of ineffective assistance of counsel."  Deputy Attorney General James Cole authored the memo instructing assistant U.S. attorneys to follow this new policy.  Prior to this policy, "35 of the department's 94 U.S. Attorney’s Offices sought waivers of future claims that included claims of ineffective assistance of counsel."

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Wednesday, October 15, 2014

Driver on Cross-Country Trip Did Not Have Authority to Consent to Search Passengers’ Luggage in Trunk

The panel affirms suppression of drugs found during a traffic stop in Louisiana.  The car with a California license plate was occupied by three people on a cross-country trip from California to Miami.  Out of the hearing of the other two occupants, the officers asked Iraheta for consent to search the car, and he consented.  Based on this consent, the officers searched the luggage in the truck and found drugs in one of the bags.
Typically, consent to search a vehicle applies to any unlocked containers within it.  However, “[t]he sole fact that luggage is located in a car’s trunk is insufficient to show joint control over those items.”  “Iraheta clearly did not have actual authority to consent to the search of multiple pieces of luggage in the trunk of a vehicle occupied by him and two passengers.”  The officers were on notice of this because the car was occupied by three people on a cross-country roadtrip and there were multiple unmarked bags in the trunk. 
While the defendants did not object to the search or assert ownership of the bags, the panel found this not to be determinative, particularly since the other defendants did not hear Iraheta consent and were not informed about it.  Furthermore, the defendants had standing to challenge the search because they did not abandon the bag prior to the search.

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