Wednesday, September 17, 2014

No Realistic Possibility that Texas Possession With Intent to Distribute Was Not an Aggravated Felony or § 2L1.2 DTO

The panel acknowledges that a defendant can be convicted under the Texas possession with intent to distribute (“PWID”) statute, Texas Health and Safety Code section 481.112(a), for conduct that would not qualify as a federal drug trafficking offense (“DTO”).  In other words, Texas PWID is broader than a federal DTO.  Texas PWID includes possession with intent to dispense, which includes administering a controlled substance in the presence of a practitioner.  This is different than the administering encompassed by the federal DTO definition of dispensing, which applies only to the administration of a controlled substance pursuant to a practitioner’s lawful order.  See 21 U.S.C. § 802(10).
Even though Texas PWID does not have as an element the administration of a controlled substance pursuant to a practitioner’s lawful order, the panel applies the modified categorical approach to narrow Teran-Salas’ offense to possession of more than four grams of cocaine with intent to deliver.  (The panel does not explain how this is consistent with Descamps.) 
Applying a “common-sense approach,” the panel holds that, “based on the elements of his conviction, Teran-Salas does not establish a realistic probability that Texas would prosecute his crime under an ‘administering’ theory in a way that does not also constitute either ‘dispensing’ or ‘distributing’ under the federal sentencing guidelines.”  Instead, the panel believes Teran-Salas only establishes “a theoretical possibility that the Texas statute criminalizes conduct that would not qualify as a [DTO, since] there is not a realistic probability that Teran-Salas was prosecuted for engaging in medical care or research that involved administering cocaine in amounts greater than four grams.”
The panel affirms the 16-level enhancement and also favorably cites unpublished decisions that made similar decisions with regard to an Illinois drug trafficking statute (United States v. Ruiz Sanchez, No. 12-40199, 2014 WL 2925157, at *1 (5th Cir. June 30, 2014) (per curiam) (unpublished)) and a Washington statute (United States v. Villeda-Mejia, 559 F. App’x 387, 389 (5th Cir. 2014) (per curiam).

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Monday, September 15, 2014

Use-of-Computer Enhancement in Sex Trafficking Case Correct; Disregard Application Note 4 as Inconsistent with § 2G1.3(b)(3)(B)

Pringler was convicted at trial of aiding and abetting sex trafficking of a minor in violation of 18 U.S.C. § 1591(a).  The panel affirmed the conviction, finding the evidence was sufficient (he took the money the minor earned from prostitution, paid for hotel rooms where she met johns, bought the laptop she used to advertise, and drove her to appointments) and that his counsel was not ineffective by failing to move for acquittal at the close of the Government’s case.

With regard to sentencing, Pringler challenges the application of a 2-level increase to his base offense level pursuant to U.S.S.G. § 2G1.3(b)(3), which provides:

If the offense involved the use of a computer or an interactive computer service to (A) persuade, induce, entice, coerce, or facilitate the travel of, the minor to engage in prohibited sexual conduct; or (B) entice, encourage, offer, or solicit a person to engage in prohibited sexual conduct with the minor, increase by 2 levels.

The Commentary to the Sentencing Guideline says that § 2G1.3(b)(3) “is intended to apply only to the use of a computer or an interactive computer service to communicate directly with a minor” or the minor’s guardian.  § 2G1.3 cmt. n.4. 

Pringler never used a computer to communicate with the minor or her guardian.  So, the panel acknowledges that, if it applies Note 4 of the Guideline Commentary, Pringler would not get the enhancement.  The panel rejects the Government’s argument that Note 4 would be satisfied here because when a pimp communicates with a third party via computer to solicit/advertise sex with a minor, that third party might think the pimp has custody or control over the minor.  Under that scenario, the panel believes the third party could merit the enhancement under Note 4, but not the pimp.

Thus, the panel must decide whether it can avoid giving effect to Note 4 because “it is inconsistent with, or a plainly erroneous reading” of the Guideline.  This is a question of first impression in the Fifth Circuit, and the subject of a circuit split.  The Fourth and Eleventh Circuits have found Note 4 inapplicable and applied the enhancement based on the plain language of the Guideline. The Third and Seventh Circuits have applied Note 4 with different results: in the Third, the enhancement applied despite Note 4’s language because of the third-party argument outlined (and rejected) above; in the Seventh, the enhancement did not apply.

The panel sides with the Fourth and Eleventh Circuits because “under § 1591, there is no factual scenario for which an individual could receive the computer use enhancement, were [the panel] to apply application note 4.”  Applying Note 4, § 2G1.3(b)(3)(B) would only apply to convictions under 18 U.S.C. § 2422(b) for knowingly persuading, inducing, enticing, or coercing a minor to engage in prostitution.  This narrow application of § 2G1.3(b)(3)(B) leads the panel to conclude that Note 4 “can’t mean what it says.”  The panel also analyzes the drafting history of § 2G1.3(b)(3) and concludes that Note 4’s reference to subsection (3) in general—both (3)(A) and (3)(B)—was a drafting error since, prior to 2004, that language only applied to the equivalent of subsection (3)(A), not (3)(B).

In sum, “we hold that the commentary in application note 4 is ‘inconsistent with’ Guideline § 2G1.3(b)(3)(B), and we therefore follow the plain language of the Guideline alone.”  Under the plain language, the 2-level enhancement was correctly applied to Pringler since he bought the computer, showed his partner how to use the webcam, knew the partner and the minor were using the webcam to record encounters with customers, and knew of his partner’s use of the computer to advertise the minor’s services.

The panel also affirms the 2-level enhancement for undue influence of a minor under § 2G1.3(b)(2)(B).  Pringler argues that the minor voluntarily engaged in prostitution, so the undue-influence enhancement should not apply. Since the minor testified about her fear of leaving Pringler, however, and there was evidence that Pringler used the physical abuse of his partner and sexual relations with the minor as control mechanisms, the panel upholds the undue-influence application.

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Friday, September 12, 2014

Mailing Credit Card Bills Satisfies Mail Fraud Jurisdiction Requirement for Ongoing Scheme

The receipt and payment of credit card bills by mail over time in this case is sufficient for federal jurisdiction because the use of the mails was part of the ongoing scheme.  Traxler made unauthorized purchases (estimated to be over $60,000) on her employer’s credit cards over the course of approximately year.  Traxler moved to dismiss the indictment, which only listed one Visa card statement being sent to her employer that included a personal charge, for lack of jurisdiction.  Traxler argued that the alleged mailing was a routine statement from the credit card company and did not satisfy the 18 U.S.C. § 1341 mailing requirement.
For the panel, the critical question was not whether the mailing of the statement was routine or not.  “[T]he critical question is whether Traxler’s fraud was completed prior to the transmission of documents through the mails, or if the use of the mails was part of an ongoing scheme.”  Traxler argues that her fraud was completed at the time of the unauthorized purchases, but the panel disagrees.  Since Traxler’s unauthorized use of the credit card occurred over the course of more than a year and involved multiple purchases, the panel finds that her “continued fraud depended on her employer receiving and paying the credit card bills through the mails.”  Unlike defendants whose fraud was completed before the use of mails (and did not depend on credit card payment), it was material to Traxler that her employer continue making payments for her ongoing scheme to continue.  So, the mailing of the credit card bills in this instance was sufficient for federal jurisdiction.


Monday, September 08, 2014

Not Plain Error to Admit Non-Testifying Co-Defendant’s Confession to Cellmate (Most Circuits Limit Bruton to Testimonial Statements)

Defendants Vasquez and Echeverria were jointly tried for conspiracy to possess methamphetamine with intent to distribute.  The first trial ended in a mistrial.  In the second trial, the Government introduced new evidence consisting of (1) Defendant Echeverria’s confession to a cellmate that both he and Defendant Vasquez participated in the conspiracy, and (2) Defendant Vasquez’s prior drug trafficking conviction.  

On plain error review, the panel found that admission of Defendant Echeverria’s jailhouse confession through the testimony of the cellmate did not violate Bruton or Crawford even though Defendant Echeverria did not testify.  The panel cited First, Third, Fourth, Sixth, Eighth, Ninth, and Tenth Circuit cases that limit Bruton to testimonial statements only, and Defendant Vasquez never disputed that Defendant Echeverria’s jailhouse confession was non-testimonial. 

Defendant Vasquez also challenged the admission of his prior conviction for possession of heroin under Federal Rule of Evidence 404(b).  The Government presented evidence of this conviction through the testimony of the California police officer who made the 1998 arrest and testified that Defendant Vasquez “look[ed] just like the pictures” of the individual convicted in California.  In other words, the officer had no personal recollection of Defendant Vasquez and was relying on the information in the file.  The panel found this to be sufficient evidence that Defendant Vasquez committed the prior bad act.

Both defendants argued on appeal that the evidence was insufficient to show that they were knowing participants in the conspiracy, but they both failed to renew their motions for judgment of acquittal at the close of trial.  So, the convictions could only be reversed if the convictions constituted “a manifest miscarriage of justice,” and the panel found that they did not.

Convictions and sentences affirmed.

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Tuesday, August 26, 2014

Florida Attempted Aggravated Battery on LEO with LEO’s Firearm is § 2L1.2 Crime of Violence; Alien Smuggling and Illegal Reentry Grouped Together for § 3D1.2

Garcia-Figueroa was convicted of three counts: conspiracy to bring aliens into the United States, bringing them into the United States, and being unlawfully present in the United States following his deportation.  He challenged the 12-level enhancement for a crime of violence (“COV”) and the sentencing court’s failure to group all counts together for § 3D1.2.

Garcia-Figueroa’s prior judgment used for the COV enhancement indicates he was convicted in 1991 for attempted aggravated battery on a law enforcement officer (“LEO”) with a LEO’s firearm in violation of Florida Statute §§ 784.07 (aggravated battery), 777.04 (attempt), and 775.0875 (third degree felony to take a firearm from a LEO lawfully engaged in law enforcement duties).  Garcia-Figueroa’s argument focuses on the divisible Florida aggravated battery statute, 784.045(1)(a), arguing that the Shepard documents do not specify that Garcia-Figueroa committed aggravated battery with a deadly weapon.  The panel disagrees and finds that the judgment establishes that Garcia-Figueroa used a deadly weapon, which would render the conviction a COV pursuant to United States v. Dominguez, 479 F.3d 345 (5th Cir. 2007).  The panel also analyzes the elements of taking a firearm from a LEO lawfully engaged in law enforcement duties and finds that such an offense creates a sufficient threatened use of force to qualify as a § 2L1.2 COV under the elements clause.

Garcia-Figueroa also argues that Florida attempt is broader than the generic definition of attempt and that his conviction therefore does not qualify as a § 2L1.2 COV.  Generic attempt follows the Model Penal Code’s substantial step test, which requires the substantial step to be “strongly corroborative of the actor’s criminal purpose.”  MPC § 5.01(2).  In contrast, Florida attempt includes “any act toward the commission” of an offense.  Fla. Stat. §77.04(1) (1991).  Nevertheless, the panel finds that Garcia-Figueroa failed to point to specific instances where Florida attempt was applied to conduct outside the ordinary meaning of attempt.  He cited two Florida cases, but the panel finds that they would be covered by generic attempt.  Thus, the panel affirms the 12-level enhancement. 

However, the panel finds that the district court erred in its grouping calculations.  Since the “victim” of both the alien smuggling and illegal reentry offenses is the societal interest protected by immigration laws, the immigration offenses should have been grouped together.  See U.S.S.G. § 3D1.2 cmt. n.2.  By grouping the alien smuggling counts together separate from the illegal reentry offense, the court applied an erroneous 2-level increase that resulted in a higher guideline range.  Garcia-Figueroa was sentenced within the higher, incorrect range, and the transcript revealed that the sentence “was strongly grounded in the erroneously calculated Guidelines range.”  The panel vacates Garcia-Figueroa’s sentence and remands for resentencing.

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Monday, August 18, 2014

Reckless NY Aggravated Criminal Contempt Conviction is Aggravated Felony

Sanchez-Espinal challenged the 8-level enhancement imposed on his illegal reentry conviction.  The district court found that his conviction in New York for Aggravated Criminal Contempt, N.Y. Penal Law § 215.52(1), was a crime of violence under 18 U.S.C. § 16(b) and therefore an aggravated felony pursuant to 8 U.S.C. § 1101(a)(43)(F).  Section 16(b) provides that a felony conviction is a crime of violence if, “by its nature, [it] involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”
“A person is guilty of aggravated criminal contempt when . . . in violation of a duly served order of protection . . . he or she intentionally or recklessly causes physical injury or serious physical injury to a person for whose protection such order was issued.”  N.Y. Penal Law § 215.52(1).  Sanchez-Espinal’s charging document charged his mens rea as both intentionally and recklessly.
The panel sets the stage by emphasizing that a § 16(b) crime of violence does not require the risk of the use of physical force to arise in every instance; it just requires a strong probability that the application of physical force during the commission of the crime will occur.  The panel reasons that, even if committed recklessly, the defendant must have “knowingly flout[ed] a court order to violate § 215.52(1)” thereby “increas[ing] the likelihood of force in the commission of aggravated criminal contempt.”  A protective order is issued in New York after a victim’s complaint or the commission of a “family offense,” which refers to many offenses including harassment and strangulation.  Therefore, this offense “naturally involve[s] a person acting in disregard of the risk that physical force might be used against another in committing [the] offense.”  See Leocal v. Ashcroft, 543 U.S. 1, 10 (2004).  (Although, one can easily imagine a decision reaching the opposite result and stating that “[i]n no ‘ordinary or natural’ sense can it be said that a person risks having to ‘use’ physical force against another person in the course of [violating a protective order] and causing [serious physical] injury.”)
Sanchez-Espinal also argued on appeal that he was actually convicted of Criminal Contempt, N.Y. Penal Law § 215.51, and that the Government had not presented sufficient evidence to prove that he was convicted of § 215.52 or to narrow his conviction to § 215.52(1).  Since he did not preserve these issues below, the panel addresses these arguments on plain error review.  The panel finds that the state court felony complaint, the state court information, and the state court Uniform Sentence & Commitment supported a finding that he was convicted of § 215.52.  Since the language of the information closely tracked the language of § 215.52(1), the panel finds the district court did not err in finding that he was charged and convicted of violating § 215.52(1). 

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Wednesday, August 06, 2014

Revised “Animal Crush Video” Statute Does Not Facially Violate First Amendment because “Obscene” Element Incorporates Miller Definition

Richards and Justice were charged with five counts of violating the revised 18 U.S.C. § 48.  In response to United States v. Stevens in which the Supreme Court struck down 18 U.S.C. § 48 (1999), “Congress revised § 48 to make it crime to knowingly create, sell, market, advertise, exchange, or distribute an “animal crush video” that (1) depicts actual conduct in which one or more non-human animals is intentionally crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury and (2) is obscene.”
Richards and Justice did not challenge the statute as overbroad, but they filed a motion to dismiss on the grounds that § 48 is facially invalid under the First Amendment because it proscribes speech that is not within an unprotected category and is not narrowly tailored to serve a compelling government interest.  The district court dismissed those five counts, and the Government timely appealed. 
Since obscenity is one of the areas in which the First Amendment permits restrictions, the first issue is whether § 48 is limited to obscene speech.  Section 48 does not define “obscene,” but courts have held that the Miller v. California, 413 U.S. 15 (1973), definition of “obscene” is incorporated into such federal statutes that use but do not define the term.  Miller provides the trier of fact the following guidelines for determining obscenity:
(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
413 U.S. at 24.
Richards and Justice argue that Congress did not intend to use the Miller definition of “obscene” because Congress did not intend § 48 obscenity to require depiction of sexual conduct.  The panel finds that the legislative history does not clearly exclude sexual conduct from the definition of obscene.  “[Section] 48 incorporates Miller obscenity and thus by its terms proscribes only unprotected speech.”  Presumably this leaves to the prosecutor to prove that the animal crush videos meet the Miller definition of obscenity by depicting sexual conduct or at least unusually deviant acts.
The panel also disagrees with Richards and Justice’s second argument that, even limited to Miller obscenity, § 48 is facially unconstitutional because it proscribes only a narrow category of obscenity based on its content.  The panel finds § 48 is content-neutral because it targets the secondary effects of speech (promotion of antisocial and violent behavior) and is reasonably and narrowly tailored.

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