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)
United States v. Garcia, No. 05-41030 (5th Cir. Nov. 22, 2006) (Reavley, Prado; Jones, dissenting)
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:
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).
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).
posted by Brad Bogan at 10:43 AM
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