Thursday, November 30, 2006
Wednesday, November 29, 2006
February CLE Opportunity for CJA Panel Attorneys in Albuquerque, NM
Experienced and new panel attorneys can benefit from attending the Winning Strategies seminars. These programs offer varied presentations on topics of interest in both large and small group settings. Winning Strategies focuses on the nuts and bolts of federal criminal practice including the sentencing guidelines and sentencing mitigation. The impact of important cases such as Booker and Crawford, and Fourth, Fifth and Sixth Amendment issues are also covered, along with sessions on preparing effective opening statements, closing arguments, and cross examinations, defending methamphetamine and gang cases, and attacking wiretap evidence. In addition, there is an explanation of CJA guidelines and procedures.
Draft agenda here, registration form here, and financial assistance application here.
Tuesday, November 28, 2006
Federal Judicial Center Publications
Odd Disagreement Over Which Circuit's Precedent to Follow in Deciding Whether Colorado 3d Degree Assault Conviction is COV Under U.S.S.G. §4B1.2(a)(2)
It's crime-of-violence time again. This time the issue is whether a prior Colorado conviction for third degree assault is a COV under U.S.S.G. §4B1.2(a). The court holds that it isn't a COV under the force-element prong of the definition in §4B1.2(a)(1), but remands for findings as to whether the conviction qualifies under the "otherwise" clause in §4B1.2(a)(2). The case wouldn't be worth more than a brief mention but for an odd disagreement between the majority and the dissent as to whether the court should follow Fifth or Tenth Circuit precedent in handling the §4B1.2(a)(2) question.
Garcia prior conviction was under Colo. Rev. Stat. § 18-3-204 (1999), which read:
A person commits the crime of assault in the third degree if he knowingly or recklessly causes bodily injury to another person or with criminal negligence he causes bodily injury to another person by means of a deadly weapon.
Slip op. at 5 (quoting statute).
Both the panel majority and the dissent agree that the offense does not qualify as a COV under §4B1.2(a)(1) because it does not have "as an element the use, attempted use, or threatened use of physical force against the person of another." They both rely on a Tenth Circuit case explaining how it would be possible to cause bodily injury under the Colorado statute without actually using physical force to cause the injury. (They could also have cited Fifth Circuit cases holding that causation of injury doesn't necessarily require the use of physical force. Like this one, for example.)
The dispute centers on the other half of the COV definition, which includes several enumerated offenses as well as offenses that "otherwise involve conduct that presents a serious potential risk of physical injury to another." U.S.S.G. §4B1.2(a)(2). The commentary to that portion of the definition explains that it includes offenses in which "the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted . . . by its nature presented a serious potential risk of physical injury to another." Id., comment. (n.1).
The panel majority observes that Fifth Ciruit case law requires a court to examine the charging instrument from a prior conviction in order to determine whether the conviction qualifies under §4B1.2(a)(2)'s "otherwise" clause. Because the charging document from Garcia's assault conviction was not in the record, the panel majority holds that it cannot answer the §4B1.2(a)(2) question. It therefore remands the case with directions to the district court to order the Government to supply the charging document.
The dissent parts ways with the majority on this point. It would follow decisions of the Tenth Circuit in which that court rejected the use of charging papers in making the §4B1.2(a)(2) determination, and which held that a conviction for third degree assault under Colo. Rev. Stat. § 18-3-204 is a COV under §4B1.2(a)(2). The dissent chides the majority for "elect[ing] to be bound by this court's categorical approach methodology rather than by direct holdings of a sister circuit[,]" characterizing that as "a highly peculiar result." Slip op. at 12. The problem, according to the dissent, is that there is now a circuit split on these issues, and that the majority's holding "virtually assures that criminal defendants with precisely the same conviction records will be treated differently under the Sentencing Guidelines depending on the circuit in which they are caught." Slip op. at 12-13. (Note that the majority does not agree that its dispostion of the matter creates a circuit split. See slip op. at 9 n.7.)
I have to say I don't understand the dissent's position. A panel of the Fifth Circuit is bound by Fifth Circuit precedent; it can't simply choose to follow another circuit's contrary precedent. And it sounds like a circuit split already existed prior to this decision, insofar as the Tenth Circuit evidently takes a position contrary to the Fifth Circuit with regard to the use of charging papers in making the §4B1.2(a)(2) determination (not to mention the fact that the Tenth Circuit's position seems contrary to the plain language of the guideline's commentary). That said, I agree that a defendant's sentence shouldn't turn on the happenstance of which circuit the defendant is convicted in. Unfortunately, the Fifth Circuit sanctions at least some geographical sentencing disparities, such as those that result from varying fast-track policies from one district to another (see here and here).
Monday, November 27, 2006
Meet U.S.S.G. §2X5.2, the New Offense Guideline for Class A Misdemeanors That Aren't Listed in the Guidelines Manual's Statutory Index
But what about unlisted offenses, i.e., those in which the statute of conviction isn't listed in the Statutory Index? Up until recently, guideline §2X5.1 directed courts to use the offense guideline that is most analogous to the offense of conviction.
However, as of November 1, 2006, that's no longer the case for unlisted Class A misdemeanors. The Sentencing Commission revised guideline §2x5.1 effective November 1st so that it now applies only to unlisted felony offenses. See U.S.S.G. §2X5.1 & comment. (n.3); U.S.S.G. App. C, amend. 685. The Commission also adopted a new offense guideline for unlisted Class A misdemeanors: §2X5.2. This new guideline establishes a base offense level of 6, and has no specific offense characteristics.
So as of November 1st, use §2X5.2 to calculate the offense level for unlisted Class A misdemeanors, not the most-analogous-guideline approach. Remember that this change applies to all Class A misdemeanants sentenced on or after November 1, 2006, regardless of whether the offense was committed before that date (unless applying the new guideline would present an ex post facto problem). See U.S.S.G. §1B1.11.
Tuesday, November 21, 2006
Motion to Extend Appeal Deadline Functioned as Notice of Appeal; Questionable Meth Convictions Affirmed
A, B, and C steal some meth ingredients. They plan to take those ingredients to a meth cook, and trade the ingredients for some finished meth. Are they guilty of conspiring to manufacture meth and of aiding and abetting the manufacture of meth, both of which require an intent to manufacture meth? On the facts here the court says "yes." But the court's cursory analysis doesn't confront what seems to be the critical issue: can the form of payment in a drug transaction convert an intent to purchase into an intent to manufacture?
Cantwell, Rice, and Reagan were pulled over for speeding between Victoria and Corpus Christi, Texas. The officer arrested them when he found nearly 1,300 Actifed (pseduoephedrine) tablets and some lithium batteries in the car. The three of them had gone to Corpus Christi earlier that day and stolen the batteries and Actifed, and were on their way back to Victoria when they got pulled over. According to Rice's testimony at trial, their plan was to rebundle the Actifed and batteries, and for Reagan to take the ingredients to a meth cook to trade for some finished meth.
Cantwell was convicted at trial of one count of conspiracy to manufacture methamphetamine and one count of aiding and abetting the possession of pseudoephedrine with the intent to manufacture methamphetamine. On appeal she argued that the evidence at trial was insufficient to support her convictions.
In a cursory and conclusory analysis, the court of appeals holds otherwise. As to the conspiracy charge, the court holds that there was sufficient evidence to support a finding that Rice and Reagan had been engaged in a conspiracy to manufacture meth (their ongoing bartering arrangement with meth cooks), and that Cantwell joined that conspiracy on this occasion. As to the aiding and abetting charge, the court held that "[e]ven if Cantwell did not intend to manufacture drugs herself, evidence that she knew of and intended 'to further the goals of a manufacturing operation' is sufficient for a conviction under 21 U.S.C. § 841(c)(1)." Slip op. at 7.
It looks like there's sufficient evidence that, at a minimum, Cantwell and the others intended to possess meth and conspired to do so. But do the facts here prove BRD that Cantwell intended to manufacture meth? I don't think so.
What if Cantwell, Rice, and Reagan had pooled their cash and headed out to buy some meth? Is there evidence of an intent to manufacture in that case? No, it just looks like a simple plan to buy meth. Why is it any different when instead of paying money they barter some raw material for some finished meth? Now if they had gone to the meth cook and said, "Please use our ingredients to make a batch of meth for us, and for your trouble we'll let you have half the batch," then that looks a lot more like they intend to manufacture meth and are enlisting a cook in their conspiracy. But what if the cook already has a batch of finished meth and will sell it for cash or some raw materials or a combination of cash and raw materials? In that case the ingredients that Cantwell and the others possess aren't actually being cooked into meth for them; the ingredients are just an alternate form of payment.
Consider this analogy . . . your car's alternator fails and you go to the auto parts store to pick up a replacement. Brand-new parts can be pretty expensive, so you decide to get a remanufactured alternator. Paying for a remanufactured part usually involves both a payment and an exchange: you pay $X for the remanufactured alternator, and you also bring in the old alternator as a "core" exchange. (That core will then be remanufactured and sold to someone else. If you don't bring in a core, you'll have to pay an additional "core charge.") Now when you do that, do you intend to help remanufacture the dead alternator that you brought in? No. You just want a working alternator and part of paying for the new part is exchanging the old one.
That seems more analogous to what was going on in this case. Unfortunately, the court doesn't explore the question of exactly what Cantwell intended in any detail.
By the way, there's a procedural matter worth mentioning. Cantwell didn't file her notice of appeal until more than 40 days after the entry of judgment. The Government argued it was untimely. However, Cantwell had filed a motion to extend the appeal deadline within the initial 10-day window provided by Fed. R. App. P. 4(b)(1)(A). As the court notes, "such a filing can serve as the functional equivalent of a notice of appeal." Slip op. at 2 (citing Smith v. Barry, 502 U.S. 244, 248-49 (1992)). "To act as the functional equivalent of a notice of appeal, the motion must set forth (1) the party taking the appeal, (2) the judgment being appealed from, and (3) the court to which the party is appealing." Id. (citing Fed. R. App. P. 3(c)(1)). Cantwell's motion met that standard.
Tuesday, November 14, 2006
"Smuggling cases often hinge on migrants' stories"
They break the law when they cross the border illegally, but some undocumented immigrants making seasonal treks through South Texas are released to relatives already here and given papers they need to get what they came for in the first place — a job.
In exchange, the immigrants inform on the people who help them cross the border. When the smugglers are put on trial, their human cargo becomes the prosecutor's best friend.
There's also a surpisingly candid admission about how agents go about selecting which aliens to detain as material witnesses:
Choosing the material witnesses requires determining who will be a better witness, who saw or knows the most and who is more cooperative, said Jerry Robinette, acting special agent in charge of the San Antonio field office of U.S. Immigration and Customs Enforcement, an arm of the Department of Homeland Security.
Monday, November 13, 2006
Mere Presence of Minor Not Sufficient for §3B1.4 Use-of-a-Minor Enhancement
Molina pled guilty to various counts involving drugs and guns. He raised several challenges to his conviction and sentence on appeal, all but one of which the court rejected. There's nothing groundbreaking here, but there is a good discussion of how the mere presence of a minor at a crime scene is not sufficient, without more, to support application of the §3B1.4 use-of-a-minor enhancement.
Molina first argued that his guilty pleas on all counts were involuntary because the district court incorrectly admonished him as to the punishment range on one of the counts (the district judge advised him that the maximum penalty on that count was 20 years when in fact it was only 5 years). The court held that Molina failed to carry his burden of demonstrating that he would not have pled guity to that count (or any of the other counts) but for the error, given that the district court correctly advised him that he faced up to life imprisonment on three of the other counts to which he pled guilty.
Molina also attacked the guideline calculation, which was based on actual methamphetamine rather than the weight of the entire mixture or substance containing methamphetamine. He first argued that the 10-to-1 discrepancy between actual meth and a meth mixture is irrational. The court held otherwise, reasoning that purer meth can be cut into larger quantities, thus justifying the higher sentence for trafficking in meth of a relatively high purity. Molina also argued that the application of the actual-vs.-mixture calculation is arbitrary because it depends on how the Government charges the drug quantity in the indictment. The court held that there is no arbitrariness because the guidelines control the calculation, regardless of how the indictment reads.
In the one successful challenge to his sentence, Molina argued that the district court erred in applying a use-of-a-minor enhancement under U.S.S.G. §3B1.4. The court agreed that something more than a minor's mere presence or knowledge is required for the enhancement. Such evidence was lacking here:
In this case, there is no evidence of anything more than Molina’s girlfriend’s presence while unlawful activity occurred. The PSR indicates that Molina’s minor girlfriend and her child were present at Molina’s residence when the search warrant was executed, that Molina’s girlfriend knew about the presence of drugs and certain aspects of the drug operation, that she went with Molina a couple of times to pick up marijuana, and that one of the co-conspirators drove her back and forth to Corpus Christi. But there is no evidence, for example, that Molina’s girlfriend assisted in carrying or loading drugs, that she ever drove Molina or his co-conspirators on the drug runs, that Molina or the co-conspirators needed moral support, that Molina believed that his seventeen-year-old girlfriend’s presence in the vehicle during a drug run would assist in avoiding detection, or that Molina ever asked or encouraged his girlfriend to assist or become involved in the drug operation in any way. Moreover, contrary to the government’s assertion that there is no other plausible explanation for her presence on the trips between Austin and Corpus Christi, the PSR indicates that Molina’s girlfriend lived in Corpus Christi. It is just as logical an inference, if not more so, that Molina’s girlfriend used Molina and his co-conspirators to transport her between her residence in Corpus Christi and Molina’s residence in Austin.
Slip op. at 13-14.
Finally, the court held that the district court's consideration of relevant conduct presented no Sixth Amendment problem, an issue Molina raised for preservation purposes.
Wednesday, November 08, 2006
Court Holds Watts Lives and Preponderance Standard Still Governs Guideline Findings; Rejects Other Challenges to Drug Convictions and Sentences
Farias addresses a cornucopia of issues raised by brothers Jorge and Adrian Farias following their convictions of participating in a drug conspiracy. The opinion contains several holdings you should be aware of:
- no-prosecution clause in Jorge's earlier plea agreement to illegal reentry did not bar his prosecution for a drug conspiracy that commenced prior to the agreement
- the evidence was sufficient to support the jury's finding that Jorge and Adrian were involved in a single conspiracy, rather than separate conspiracies with a common co-conspirator
- Watts survives Booker, so Jorge could receive a 2-level gun enhancement under U.S.S.G. §2D1.1(b)(1) notwithstanding the fact that the jury found Jorge not guilty of an actual § 924(c)(1) charge; also knowledge of the gun is not required for the enhancement
- despite Jorge's argument that he went to trial solely to preserve the plea agreement issue, he never actually admitted factual guilt and therefore wasn't entitled to an acceptance of responsbility adjustment
- because Adrian was convicted under 21 U.S.C. § 841(b)(1)(A) he was subject to a 10-year mandatory minimum, regardless of the fact that an alternative guideline calculation based on meth purity would have produced a quantity triggering only a 5-year mandatory minimum under § 841(b)(1)(B)
That's the Cliff's Notes version. Read on if you're interested in the particulars.
Factual and Procedural Background
Jorge was arrested in September, 2002 while trying to collect a drug debt at a house in Lewisville, Texas. Police arrived at the scene after receiving a report of people "hollering in the street." They found 100 grams of methamphetamine and a gun under the seat of the car in which Jorge had been sitting outside of the house.
Jorge later pled guilty to state charges of possession with intent to distribute methamphetamine. While Jorge was in jail pending the disposition of that case, INS agents discovered that he was illegally present in the United States. That led to a federal charge of illegal reentry. Jorge pled guilty to that charge in January 2003 pursuant to a plea agreement that contained, among other things, an agreement by the Government not to "charge [him] with any other criminal violations concerning activities committed prior to the date of this agreement which the Defendant makes known to the United States and which do not involve crimes of violence or Title 26 offenses." Slip op. at 2-3 (quoting plea agreement).
As it turns out, authorities has been investigating a drug conspiracy headed by another Farias brother, Jesus. In October 2004 the Government indicted Jorge, Adrian, and others for "conspiracy to distribute amphetamine, methamphetamine, heroin, cocaine, and marijuana from 1999 through October 14, 2004. . . . [I]t also indicted Jorge under 18 U.S.C. § 924(c)(1) for using and carrying a firearm during a drug trafficking crime [based on the gun found when he was arrested in September 2002]." Slip op. at 3.
The district court denied Jorge's motion to dismiss the conspiracy count, rejecting his argument that the charge was barred by his plea agreement. A jury convicted Jorge and Adrian of the conspiracy charge, and found Jorge not guilty of the § 924(c)(1) charge. "The court sentenced Adrian to 120 months and Jorge to 121 months after denying Jorge's request for an adjustment for acceptance of responsbility and finding that he possessed a gun during the underlying conspiracy offense." Slip op. at 4.
Jorge and Adrian raised a number of arguments challenging their convictions and sentences on appeal, all of which the Fifth Circuit rejected.
Jorge's Plea Agreement Did Not Bar Drug Conspiracy Prosecution
Jorge argued that the no-prosecution clause in his plea agreement precluded the Government from prosecuting him for the drug conspiracy because the Government had to have known of his September 2002 drug arrest at the time of the January 2003 illegal reentry plea agreement. (After all, it was that arrest that led to his discovery by immigration agents and the subsequent illegal reentry charge.)
The court disagreed: "Jorge's argument fails because the plea agreement precludes prosecution only for crimes 'ma[d]e known' by Jorge, and Jorge did not 'make known' the conspiracy. The Government discovered it through independent investigation. And some of the individual acts proving the conspiracy relied on by the Government at trial occurred after the plea agreement." Slip op. at 5.
In other words, carefully scrutinize the language of no-prosecution agreements to make sure you're not buying a pig in a poke.
There Was Sufficient Evidence to Support Jorge's and Adrian's Convictions
Jorge and Adrian argued principally that "a bunch of drug dealers with the same desire operating in the same area are not, without more, co-conspirators, even if they sell to or buy from the same people - in the vernacular, it is a rimless conspiracy." Slip op. at 7. (Not a bad argument, by the way.) They also cited Tenth Circuit law requiring some level of "interdependence" among co-conspirators.
The court held that there was sufficient evidence that Jorge and Adrian participated in a common conspiracy, based on the testimony of Jorge's acquaintances and taped jail conversations among Jorge, Adrian, and Chuy evidencing a common endeavor. "Furthermore, although we do not explicitly require 'interdependence' in this circuit, there was plenty of 'interdependence' here." Slip op. at 7.
There's an additional twist with regard to Adrian, because he was under 18 at the time of the inception of the conspiracy in 1999. The court, however, found sufficient evidence that he participated in conspiratorial activities after his 18th birthday in 2000, and well into 2003.
Preponderance-of-the-Evidence Standard Still Governs Guideline Findings, and Acquitted Conduct May Still Serve as the Basis for Guideline Enhancements
Jorge argued that Booker implicitly overruled Watts, and that the district court erred by hitting him with a §2D1.1(b)(1) gun enhancement based on a preponderance rather than a BRD finding following the jury's verdict on the § 924(c)(1) count. He also argued that, under either standard, there was insufficient evidence to support the enhancement.
The court disagreed: "Watts survives Booker, and district courts must still determine sentencing facts by a preponderance of the evidence, even facts contradicting jury findings." Slip op. at 10. As for the factual basis for the enhancement, it was not clearly improbable that the gun was connected with the offense given the presence of the gun underneath the seat in a car containing drugs at the scene of an attempt to collect a drug debt. The court also held that it's the defendant's burden to rebut the inference arising from those facts; it's not the Government's burden to prove that it isn't clearly improbable that the gun was connected with the offense. Also, it does not matter whether Jorge had any personal knowledge of the gun. (The court doesn't explain this last point, but presumably it's because of a relevant conduct theory.)
This probably won't be the final word on these issues, seeing as how the Supreme Court has agreed to take up the issues of reasonableness review and the post-Booker status of the guidelines (presumptively reasonable or no?).
Jorge Never Admitted His Factual Guilt, So He Was Not Entitled to Acceptance
Jorge argued that he qualified for a §3E1.1 acceptance of responsibility adjustment because 1) he went to trial solely to preserve the issue of whether the plea agreement barred his prosecution, and 2) he effectively admitted his guilt when he pled guilty in state court to the meth charges arising out of his September 2002 arrest.
The court held otherwise. It concluded that 1) he did challenge his factual guilt at trial, 2) his guilty plea in state court was to a more easily proven offense with different elements than the federal conspiracy charge, and 3) if he wanted to preserve the plea agreement issue he could have requested permission to enter a conditional guilty plea to the conspiracy charge rather than go to trial.
Because Adrian Was Charged and Convicted Under § 841(b)(1)(A) Court Was Bound by 10-Year Mandatory Minimum, Even Though Alternative Guideline Calculation Based on Meth Purity Would Produce Quantity Triggering Only § 841(b)(1)(B) 5-Year Mandatory Minimum
Adrian argued that the district court mistakenly believed it lacked discretion to apply the 5-year mandatory minimum under 21 U.S.C. § 841(b)(1)(B) rather than the 10-year mandatory minimum in (b)(1)(A). The jury found him responsible for an 897.67 gram methamphetamine mixture, which is above the 500 gram threshold required for the (b)(1)(A) 10-year minimum.
Adrian argues that the mixture, because it was 5% pure, contained only 44 grams of actual methamphetamine; under § 841(b)(1)(B), this actual amount yields only a 5-year minimum. Conceding that a note to the Guidelines directs courts to use the greater offense level resulting from either the actual or mixture amounts when calculating the Guidelines sentence, he argues that the post-Booker advisory Guidelines now allow a court to choose either mandatory minimum, since the statute itself provides no direction and the Guidelines are advisory.Slip op. at 13. The court disagreed:
Adrian does not argue that a judge has discretion under Booker to sentence below a mandatory minimum, a proposition this and other courts have rejected; rather, he argues that which mandatory minimum applies is unclear, since § 841 itself does not specify which measure to use — actual amount or mixture amount — when more than one apply, and only the Guidelines, now advisory, provide direction. Yet which minimum applies is not in dispute - the indictment charged, and the jury found Adrian guilty of, § 841(b)(1)(A), not § 841 in general, triggering the ten-year minimum. Adrian’s Booker argument confuses the mandatory minimums with the Guidelines - while a sentencing judge has no discretion to choose which minimum applies when a defendant is convicted of a certain § 841 offense, he does have “discretion” to predicate the Guidelines base offense level for that conviction on either of two different measures of drugs, pure or mixture, regardless of which § 841 offense the defendant was convicted or what measure the Government proved to get that conviction. But whatever result the Guidelines yield, the sentence cannot be less than the mandatory minimum. Because Adrian received the mandatory minimum, he has no argument on appeal.
Slip op. at 14-15.
Supreme Court Hears Argument on Whether Attempted Burglary is a "Violent Felony" for ACCA Purposes
You can read SCOTUSblog's preview of the case here, the oral argument transcript here, and some post-argument observations from Professor Berman here.
UPDATE: SCOTUSblog has a great (if worrying) post-game wrap-up here.
A Peek at the Government's Booker Playbook
Tuesday, November 07, 2006
Sunday, November 05, 2006
Court Holds That Robbery Under Tex. Penal Code § 29.02(a)(1) is a 16-Level COV Under §2L1.2
As you know from the title of this post, the court holds in this case that Santiesteban's prior conviction for robbery under Tex. Penal Code § 29.02(a)(1) is the equivalent of generic burglary and therefore a 16-level crime of violence under U.S.S.G. §2L1.2(b)(1)(A)(ii). Let's see why:
Subsection (a)(1) of the Texas § 29.02 defines robbery in terms of causing bodily injury to another in the course of committing a theft. As the court points out, that is a minority position among the states: "The majority of states require property to be taken from a person or person's presence by means of force or putting in fear. Texas, the Model Penal Code, and ten other states differ somewhat in that they define the immediate danger in terms of bodily injury." Slip op. at 8 (citations omitted). Under the Taylor categorical approach, that should mean that the Texas statute is not the equivalent of generic robbery because it criminalizes some conduct that would not be a crime under the robbery definition followed by the large majority of states.
But that's not how the court resolves the question. Instead of comparing the different conduct encompassed by the two different approaches, the court measures the Texas statute against a more abstract description of robbery drawn from commentary in La Fave's Substantive Criminal Law and the Model Penal Code. Both of those sources refer to robbery as a theft which presents some immediate danger to another person. The court then concludes that "force or fear" and "bodily injury" are "two sides of the same coin[,]" that coin being "immediate danger." Slip op. at 9-10.
Thursday, November 02, 2006
Link to New Guidelines Manual
Wednesday, November 01, 2006
Concealing Aliens Under Luggage and Boxes in Van's Cargo Area Constituted Reckless Endangerment Under U.S.S.G. §2L1.1(b)(5)
Zuniga-Amezquita finds the court again addressing whether the U.S.S.G. §2L1.1(b)(5) reckless endangerment enhancement applies to the particular facts of an alien smuggling offense. After canvassing recent case law on the subject, the court concludes that riding in the cargo area of a vehicle is not sufficient in and of itself to support application of the enhancement. Instead, there must be some additional aggravating factors to warrant a finding of reckless endangerment. The court identifies five of those factors, and concludes that two of them supported the district court's application of the enhancement to Zuniga.
Zuniga was caught at a border patrol checkpoint transporting five illegal aliens in a van. The aliens were lying down in the cargo area of the van. There were boxes and luggage stacked on top of them all the way to the van's ceiling, although they still had enough room to lay side-by-side and breathe freely. The district court applied the enhancement, "concluding that if the van had to stop suddenly the boxes and luggage could fly around and injure the aliens[,]" and that "[i]f an accident occurred the boxes could conceal the aliens such that emergency personnel might not search for them . . . ." Slip op. at 2. It also found that the weight of the boxes and luggage might prevent the aliens from being able to get out of the van on their own.
Because the application of the enhancment is so case-specific, the court of appeals began by surveying four relatively recent decisions to establish a framework for its analysis. Those cases involved aliens riding 1) in the back of a pickup on the highway (yes, enhancement applies); 2) in the cargo area of a hatchback under an easily removable cover (no); 3) on the floor of a minivan partially concealed under a console (yes); and 4) lying side-by-side in the cargo area of a minivan (no). This case law survey shows that riding in the cargo area of a vehicle is not sufficient to support a finding of reckless endangerment unless there are additional aggravating factors present. The court identified five of those factors that had been important in the other cases: "the availability of oxygen, exposure to extreme temperatures, the aliens' ability to communicate with the driver of the vehicle, their ability to exit the vehicle quickly, and the danger to them if an accident occurs." Slip op. at 4.
The court held that the last two factors supported application of the enhancement in Zuniga's case. First, the luggage and boxes were heavy and arranged in such a way that the aliens could not easily extricate themselves from the van. "Transporting aliens in a manner that significantly hinders their ability to exit the vehicle quickly creates a substantial risk of death or serious bodily injury." Slip op. at 4. Second, as the district court found, there was a danger that the boxes could fly around in the event of an accident and injure the aliens, particularly because some of boxes contained glass bottles of beer.
Being struck by a flying box, piece of luggage, bottle of beer, or glass could cause serious bodily injury. Zuniga-Amezquita’s transportation method placed the aliens in danger of incurring such an injury in the event of an accident. The risk of injury was greater than that faced by an ordinary passenger, without a seatbelt, who is not surrounded by boxes and luggage piled to the ceiling of a vehicle.Slip op. at 5.
There are a couple of points to take away from this opinion. First, the court repeatedly emphasizes the fact-specific nature of the enhancement. That allows counsel lots of room to argue against the enhancement in any given case, and plenty of opportunties to distinguish other cases on the facts. Second, to the extent that there's any bright line at all, it's this: "The application of § 2L1.1(b)(5) is warranted if a method of transportation exposes aliens to a substantial risk, in the event of an accident, of death or serious bodily injury. The risk must, however, be greater than that of an ordinary passenger not wearing a seatbelt in a moving vehicle." Slip op. at 5.
Fives Again Hold that Causing Bodily Injury Doesn't Necessarily Involve "Use of Force" for Purposes of Various COV Definitions
If you think you're hearing an echo, don't be alarmed. This is not the first time that the Fifth Circuit has held that an offense which is defined in terms of causing bodily injury does not necessarily require the type of violent, destructive physical force sufficient to satisfy the use-of-force prongs of various crime-of-violence definitions. See, e.g., United States v. Vargas-Duran, 356 F.3d 598 (5th Cir. 2004) (en banc).
In this 1326 case, Villegas had a prior Texas conviction for simple assault under Tex. Penal Code §22.01(a)(1), which prohibits intentionally, knowingly, or recklessly causing bodily injury to another person. The probation officer recommended an 8-level aggravated felony enhancement under §2L1.2(b)(1)(C), apparently believing that the assault conviction satisfied the crime-of-violence definition found in 18 U.S.C. § 16 (and incorporated by reference in 8 U.S.C. § 1101(a)(43)(F)). The district court adopted that recommendation, over Villegas's objection, and sentenced Villegas within the range incorporating the 8-level enhancement.
The Fifth Circuit vacated the sentence. In an exhaustively detailed 22-page opinion, the court again explains that the "use of force" language found in various crime-of-violence definitions (here 18 U.S.C. § 16(a) and U.S.S.G. §2L1.2, comment. (n.1(B)(iii)) requires destructive or violent physical force, and that causing bodily injury to another person does not necessarily require the use of any physical force at all.