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  For 3 months, giving away drugs was not a § 2L1.2 drug trafficking offense (DTO) thanks to the now superseded United States v. Martinez-Lugo, 773 F.3d 678 (5th Cir. Dec. 11, 2014) (Davis, Dennis, Costa).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In the withdrawn opinion, the majority focused on the common sense definition of “drug trafficking offense.”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  Since the Georgia PWID statute does not require remuneration, the Martinez-Lugo majority in the withdrawn opinion found that it was not categorically a DTO.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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Wednesday, April 01, 2015

180+ Day Incarceration, Regardless of Nature of Offense, Negates “Good Moral Character” for Non-LPR Cancellation of Removal; GMC Period Ends Upon Final Administrative Decision

This case involves the statutory interpretation of the good moral character (GMC) requirement, 8 U.S.C. § 1101(f)(7), for non-LPR cancellation of removal, 8 U.S.C. § 1229b(b)(1).  Rodriguez-Avalos is a Mexican citizen who entered the United States without being admitted or paroled in April 1999.  He was living in Nebraska when he was interviewed by a Department of Homeland Security (DHS) agent in connection with an identity theft investigation of the grocery store where Rodriguez-Avalos worked.  He admitted to having no documentation enter or work in the United States, and he was arrested that day and served with a Notice to Appear (NTA)—May 3, 2011.   

Criminal Case: Following the arrest, Rodriguez-Avalos was indicted with falsely and willfully representing himself to be a U.S. citizen in violation of 18 U.S.C. § 911.  He pled guilty and, on January 18, 2012, he was sentenced to 14 months of imprisonment and served approximately 7 months before being released.

Immigration Case: Rodriguez-Avalos was “formally” served with the NTA on November 28, 2012.  He subsequently appeared in immigration court and conceded his removability but applied for cancellation of removal.  Section 1229b(b)(1), or non-LPR cancellation require 10 years of physical presence “immediately preceding the date of such application”; “good moral character during such period”; no convictions for a crime involving moral turpitude (CIMT), controlled substance offense, or aggravated felony; and a showing that removal would result in exceptional and extremely unusual hardship to U.S. citizen (USC) or lawful permanent resident (LPR) spouse, parent, or child.  See § 1229b(b)(1).  Section 1101(f)(7) defines “good moral character” in part as requiring no confinement, as a result of conviction, to a penal institution for an aggregate period of 180 days or more during the GMC period. 

Is Rodriguez-Avalos still eligible for non-LPR cancellation if he was confined for 7 months due to a § 911 conviction within the 10 years prior to applying for cancellation?  Not according to the immigration judge, the Board of Immigration Appeals, or the Fifth Circuit panel.

Rodriguez-Avalos presented two arguments:

1)      His § 911 conviction is not a CIMT and, thus, his incarceration should not preclude him from establishing GMC.

2)      His prison term fell outside of the relevant time period because of the stop-time rule, 8 U.S.C § 1229b(d)(1), which ends the 10-year period when an NTA is served upon the petitioner

The panel rejected both arguments:

“[A]pplying the Skidmore standard, the BIA did not err in concluding that a petitioner cannot establish good moral character if he has been incarcerated for 180 days or more, regardless of the nature of the underlying crime of conviction.”  The BIA’s conclusion was a plain reading of the text, and such a reading is consistent with Fifth Circuit precedent. 

“[T]he BIA’s interpretation of Section 1229b(b)(1) as requiring a petitioner to establish good moral character during the ten-years immediately preceding the final administrative decision regarding the petitioner’s application for cancellation of removal is entitled to deference under Chevron.”  See Inre Ortega-Cabrera, 23 I & N Dec. 793, 798 (BIA 2005).  The panel rejects Rodriguez-Avalos’ argument that the 10-year GMC period must mirror the 10-year physical presence period which stops upon the service of the NTA.  The BIA determined that extending the GMC period to the final administrative decision best comported with congressional intent because it would allow for consideration of any false testimony during the proceeding, see § 1101(f)(6), and allow the immigration judge to determine the petitioner’s most recent behavior.

How does this affect criminal defense attorneys?  It’s one more immigration consequence to add to your checklist. If your client is otherwise eligible for non-LPR cancellation of removal (10-year physical presence in US, GMC, no disqualifying convictions, and has USC/LPR qualifying relatives for whom your client’s removal could arguably result in extreme and unusual hardship), be aware that confinement of 180 days or more after a conviction—regardless the nature of the offense—will make him or her ineligible.  Fight for pretrial release, a sentence less than 180 days, and definitely advise your client of the consequences of the conviction and a 180+ day sentence.

Other consequences?  The panel’s interpretation of § 1101(f)(7) is in the context of § 1229b(b)(1).  Nevertheless, this opinion could impact the analysis of the 180-day incarceration analysis in any other GMC context, such as naturalization and VAWA relief.  Also, note the panel did not decide the issue by finding § 911 to be a CIMT.


Tuesday, March 31, 2015

Government Breached Plea Agreement by Using Information from Proffer to Argue for Higher Sentence

The PSR alleged 3 alleged drug transactions.  Chavful plead guilty to the third: 5kg of cocaine and 200lb of marijuana.  The first, negotiations for 10kg of cocaine and 1000lb of marijuana, Chavez argued in his objection and at sentencing was merely the negotiation that culminated in the third transaction.  By holding him accountable for 15kg of cocaine and 1,200lb of marijuana, Chavez argued Probation was double counting the same transaction because they were fact-related.  Probation, and then the Government, argued the first was a separate transaction because of the intervening, second sale of 30kg of marijuana.  Chavful disclosed the second sale during the proffer interview and objected when the Government relied on the second sale to argue the first transaction was a separate transaction from the third.  Neither Probation nor the Government added the 30kg of marijuana to Chavful’s relevant conduct.

The plea agreement included the Government’s promise that “[a]ny information provided by Chavful, other than that charged in the pending indictment, in connection with Chavful’s assistance to the United States, including debriefing and testimony, will not be used to increase Chavful’s Sentencing level.”  The plea agreement specifically incorporates U.S.S.G. § 1B1.8, which prohibits the use of information obtained by the Government as part of a cooperation agreement from being used to determine the applicable guideline range.

The panel adopts Chavful’s interpretation that the Government cannot rely on protected information to advocate for a greater sentence.  The Government breached the plea agreement by using protected information to advocate for a greater sentence.  The sentence was vacated and remanded for re-sentencing.

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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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