Monday, June 30, 2014
Jones was convicted of possession of a firearm by a felon, and the presentencing officer recommended a base offense level of 20 after concluding that Jones’ prior felony was a “crime of violence” as defined in § 4B1.2(a). Jones prior felony was a conviction under 18 U.S.C. § 751(a) for leaving a halfway house. He argues on appeal that his conviction is not a COV under the residual clause of § 4B1.2(a) because it does not “otherwise involves conduct that presents a serious potential risk of physical injury to another.”
The panel refers to Chambers v. United States, 555 U.S. 122 (2009), an Armed Career Criminal Act case in which the Supreme Court held that failing to report for imprisonment was not a violent felony under the ACCA. In Chambers, the Supreme Court relied on a report that showed that none of the 160 failures to report in 2006 and 2007 resulted in the use or threat of force only five (3.1%) involved a dangerous weapon. That same report showed that only three (1.7%) of the 177 instances of “leaving nonsecure custody” involved the use or threat of force, and only four (2.3%) involved a dangerous weapon.
The panel agrees with other circuit courts that “‘[e]scaping’ from a halfway house does not typically ‘present a serious potential risk of physical injury’ to others.” Jones’ sentence is vacated and remanded.
The panel also addresses the Government’s arguments that finding Jones’ conviction to not be a COV would be inconsistent with Fifth Circuit precedent. The panel emphasizes that precedent allows looking to the charging document to determine whether the offense is a § 4B1.2 COV since the commentary to § 4B1.2 specifically directs the court to look at the conduct charged whereas the ACCA looks to the statutory offense, not the charged offense. The panel does not disturb precedent finding that escape from a prison camp can present a “powder keg” situation and be a § 4B1.2 COV (United States v. Ruiz, 180 F.3d 675 (5th Cir. 1999)) and that escape from an institution is typically a COV under the ACCA regardless of the conduct charged in the indictment (United States v. Hughes, 602 F.3d 669 (5th Cir. 2010)).
Wednesday, June 18, 2014
Sufficient Evidence of Coercion from Sexually Explicit Message and Other Texts to Juvenile
Rounds challenges the sufficiency of the evidence for his conviction of using a facility of interstate commerce to persuade, induce, entice, or coerce a juvenile to engage in sexual activity in violation of 18 U.S.C. § 2422(b). He argues that the juvenile begged him to come to Odessa rather than him coercing her to engage in criminal sexual activity. The panel notes, however, that the juvenile’s intent is not at issue. The question of whether inducement, persuasion, or enticement exists is a question for the trier of fact, and, here, there was a sexually-explicit message and other text messages designed to have the juvenile return to him. That was sufficient evidence of the charged offense.
Rounds also challenged venue in the Western District of Texas. The panel found that the Government established venue because the phone calls and text messages that were part of the § 2422(b) offense were sent to a juvenile located in the Western District of Texas even though Rounds was elsewhere.
The panel rejected Rounds’ other arguments regarding a late-disclosed witness and exhibit (counsel was given a brief continuance and said he was ready to proceed), a Brady violation (no showing that the evidence was exculpatory), and the warrantless search of his cell phone (the district court concluded that he consented to the search).
Tuesday, June 17, 2014
Boiler Plate Judicial Admission Sufficient to Narrow Conviction Under Modified Categorical Approach to Texas Penal Code § 30.02(a)(1), a COV
In prior decisions, the Fifth Circuit has held that a conviction for burglary under Texas Penal Code § 30.02(a)(1) is a § 2L1.2 crime of violence (COV), United States v. Garcia-Mendez, 420 F.3d 454 (5th Cir. 2005), while a conviction for burglary under § 30.02(a)(3) is not, United States v. Constante, 544 F.3d 584 (5th Cir. 2008). The Fifth Circuit has also held in an unpublished decision that a general conviction under § 30.02 that cannot be narrowed to (a)(1) through the modified categorical approach is not a COV because § 30.02 is broader than the generic definition of burglary. United States v. Morales-Ramirez, 540 F. App’x 368 (5th Cir. Sept. 25, 2013) (unpublished).
In Conde-Castaneda, the panel first decides that it can apply the modified categorical approach, since § 30.02(a) is divisible, to look at documents outside of the judgment (Shepard documents) to determine which of the three alternatives of § 30.02(a) form the basis of Conde-Castenada’s conviction. Then the panel looks to the following documents:
- Judgment, which establishes that Conde-Castaneda under § 30.02(a) but not a specific subsection;
- Indictment, which charges Conde-Castaneda with violating § 30.02(a)(1) and § 30.02(a)(3), “but obviously cannot by itself establish the ultimate basis for his conviction”;
- Written judicial confession, which states “I have read the Indictment . . . and I committed each and every act alleged therein . . . .”
The panel holds that the confession, “a pre-printed template under which Conde-Castaneda signed his name” sufficiently establishes that he was convicted of § 30.02(a)(1). Conde-Castaneda argues that the template confession is insufficient based on United States v. Espinoza, 733 F.3d 568 (5th Cir. 2013), which held that the adoption of a boiler plate judicial confession admitting that Espinoza committed the assault with every listed category of mental culpability did not conclusively prove mens rea. The panel rejects the argument because of an earlier decision, United States v. Garcia-Arellano, 522 F.3d 477 (5th Cir. 2008), which held that “a template confession sufficed to establish which offenses a conviction indicated.” “Espinoza cannot overturn the earlier decided case of Garcia-Arrellano. To the extent that the holding of Espinoza is inconsistent with Garcia-Arellano, Garcia-Arellano controls.”
Thus, relying on Garcia-Arellano, the panel finds that Conde-Castaneda was convicted of burglary under § 30.02(a)(1) and receives the 16-level COV enhancement under § 2L1.2. Given Espinoza, though, it might be worth preserving that objection—particularly for alternative elements in a statute that are mutually exclusive, thereby casting doubt as to the actual admission of guilt as to each one of them.
Monday, June 16, 2014
Voluntary Departure Constitutes Prior Deportation for § 2L2.2(b)(1) Enhancement
United States v. Murillo-Acosta, No. 13-50637 (5th Cir. May 16, 2014) (Reavley, Jones, Graves) (per curiam)
Prior to his criminal case, Murillo-Acosta received a voluntary departure from an immigration judge in 2013. A voluntary departure provides a deadline by which the immigrant must leave the United States. If the person does not depart by that time, the voluntary departure, a warrant of removal issues. Murillo-Acosta complied with the voluntary departure deadline. Later in 2013, Murillo-Acosta pled guilty to using a fraudulent visa as proof of permission to enter the United States. At sentencing, the court applied—over Murillo-Acosta’s objection—a 2-level enhancement pursuant to U.S.S.G. § 2L2.2(b)(1) for being an “unlawful alien who has been deported (voluntarily or involuntarily) on one or more occasions prior to the instant offense[.]”
Murillo-Acosta argues that the voluntary departure issued against him does not make him an “alien who has been deported” since he did not receive a final deportation order. The panel rejects this argument in light of § 2L2.2(b)(1)’s specification that the deportation could be voluntary or involuntary.
Keep in mind that this decision is limited to § 2L2.2(b)(1) which mentions both voluntarily and involuntary deportations. This does not apply to, for example, the § 1326 element of a prior deportation or removal. Voluntary departures are a form of immigration relief that an immigration judge can grant in lieu of deportation or removal. 8 U.S.C. § 1229c(a)(1). A person who complies with the voluntary departure has not received a final order of deportation. The panel’s brief decision—which mentions the district court’s reliance on decisions from other circuits addressing persons subject to deportation orders not those granted voluntary departures—can mistakenly give the impression that a voluntary departure is a deportation order, but the panel’s holding is solely based on the language of § 2L2.2(b)(1).
Tuesday, May 20, 2014
Court’s Comparison of Defendant's Plea Offer to Other Defendants' Post-Trial Sentences Constituted Improper Judicial Coercion in Plea Negotiations
The panel vacated Hemphill’s conviction and remanded for further proceedings before a different judge because the district court improperly engaged in the plea negotiations. Rule 11, of course, prohibits a court’s participation in plea negotiations. The Fifth Circuit has held that this prohibition is a bright-line rule that (1) diminishes the possibility of judicial coercion of a guilty plea and (2) protects the court’s impartiality.
At a pre-trial docket call, just prior to trial, the court wanted to confirm that Hemphill discussed with his attorney the downside of going to trial. The court asked the prosecutor about the statutory minimum and maximum sentences, and the prosecutor informed the court that Hemphill faced a minimum of ten years and a maximum of life in prison. In response to the court’s inquiry, the prosecutor informed the court that the Government offered Hemphill a plea agreement with an agreed-to sentence of seven years. Defense counsel confirmed that he had discussed the offer with Hemphill. (The panel implies that discussion up to that point was proper.) The court then proceeded to tell Hemphill about other defendants who rejected an offer of seven years, proceeded to trial, were found guilty, and were sentenced to 35 years in prison. At that point, Hemphill questioned the court’s impartiality, and the court assured Hemphill that he was not biased. Trial was set to continue the following Monday.
On Monday, after disclosure of newly discovered evidence, the district court stated that Hemphill needed additional time to consider the new plea offer of an agreed-to sentence of five years. Defense counsel stated that he would appreciate the additional time to review the evidence, and the court responded that the evidence could also be to the defense’s detriment. After the defense counsel and prosecutor finished addressing other pre-trial issues, the court reminded Hemphill about the story of the other defendants who are now doing 35 years. The court recounted the story of yet another defendant, Mouton, who was facing a 35- or 40-year sentence but eventually “got with the program” and accepted a ten-year offer. The court then gave Hemphill a newspaper article about Mouton, referring to Mouton as a “success story,” and told Hemphill that he should “think about his life.” At the next trial date, Hemphill pled guilty. The court commented during the plea colloquy about how good of a deal Hemphill received. (The panel found that these comments, after Hemphill had agreed to accept the offer, were permissible.)
Two months later, Hemphill filed a pro se motion to withdraw the plea. Through new counsel, Hemphill argued that he construed the court’s comments about other defendants who had not accepted plea agreements as a threat designed to coerce him into accepting the plea and that he did not believe he would receive a fair trial. The court denied his motion to withdraw his plea, but the Fifth Circuit vacated the conviction and remanded to a different judge.
“Our main concern is with the district court’s repeated description of similarly situated defendants and the consequences that befell them when they did not accept plea offers. . . . In context, and read in their entirety, . . . the comments were coercive.” These comments “went much farther than documenting the plea offer or informing Hemphill of its terms, as contemplated in Frye. The district court clearly implied that a plea would be preferred, and it twice specifically stated that it would approve the Government’s plea deal.” Given Hemphill’s hesitance to accept the plea and his readiness for trial, the panel concludes that a reasonable probability exists that Hemphill would not have entered a guilty plea absent the court’s comments that went beyond merely evaluating a properly disclosed plea agreement.
Friday, May 16, 2014
Even if Defendant Admits Guilt on Stand, the Jury—Not the Judge—Decides Guilt
Against his attorney’s advice, Salazar took the stand during his trial on multiple drug and gun violations and confessed to all of the crimes charged. Due to the confession, the trial judge believed no factual issue remained for the jury and instructed the jury “to go back and find the Defendant guilty.” The panel finds that Salazar’s confession did not change his plea of not guilty and that the court’s instruction deprived Salazar of his Sixth Amendment right for a jury to decide his guilt or innocence.
“[T]he Sixth Amendment prohibits the court from directing a guilty verdict,” even for “obviously guilty” defendants. “A defendant’s confession merely amounts to more, albeit compelling, evidence against him. But no amount of compelling evidence can override the right to have a jury determine his guilt.”
The attorney’s theory of defense was that Salazar withdrew from the conspiracy before certain overt acts were committed. Salazar’s testimony, however, contradicted that theory. On appeal, Salazar also challenges the judge’s denial of his request to instruct the jury on withdrawal. The panel finds that the district court did not err in this regard since, per his own testimony, Salazar did not attempt to withdraw until after several overt acts in furtherance of the conspiracies had occurred.
The judgment of conviction is vacated and remanded for further proceedings.
Tuesday, April 29, 2014
§ 2L1.2 COV Enhancement Applies to Conspiracy to Commit Murder Without Overt Act Element
The panel concludes “that conspiracy to commit murder, within the meaning of Application Note 5 of § 2L1.2, does not require an overt act as an element of the offense.”
Pascacio-Rodriguez pleaded guilty to illegal reentry after being convicted in Nevada for conspiracy to commit murder in 2003. He appealed the application of the 16-level enhancement for a crime of violence conviction under U.S.S.G. § 2L1.2, arguing that the Guidelines refer to the generic definition of “conspiracy” which requires an overt act and that the Nevada murder conspiracy is broader than the generic definition because it does not require proof of an overt act.
As a preliminary matter, the panel recognizes that, under Descamps, it does not matter that Pascacio was actually charged with and pleaded guilty to overt acts since the Nevada statute does not require proof of an overt act. Accordingly, the panel cannot resort to the modified categorical approach and must determine whether or not conspiracy to commit murder for purposes of § 2L1.2 requires an overt act.
“Neither ‘conspiracy’ nor ‘murder’ is defined by the Guidelines.” Nonetheless, the panel concludes that “[t]he language and context of § 2L1.2 indicate that an overt act is not required for a conspiracy to commit murder.”
Alternatively, the panel concludes “that the generic, contemporary meaning of ‘conspiracy to commit murder’ does not require an overt act.” Since conspiracy to commit murder was defined at common law, the panel employs a common sense approach based on the generic, contemporary meaning of the terms in the Guidelines. “At common law, it was not necessary to allege or prove an act in furtherance of a conspiracy.” The panel surveys federal conspiracy laws and determines that a majority do not require an overt act. The Model Panel Code does not require an overt act for first- or second-degree felonies such as murder, but a majority of states require an overt act as an element of all criminal conspiracies. “After surveying the various sources typically consulted in applying the categorical approach, it appears to us that, albeit slight, the weight of authority indicates that conspiracy to commit murder does not require an overt act as an element.”
Note: This decision does not mean that an overt act is unnecessary for every conspiracy analyzed under § 2L1.2. The analysis throughout the decision was contingent on conspiracy to commit murder. Conspiracy to commit other offenses would need to be analyzed separately.