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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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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