Wednesday, February 28, 2007

Prior OK Conviction for Making Lewd Proposal to Minor Triggered 15-Year Mandatory Minimum Under 18 U.S.C. § 2252A(b)(1)

United States v. Hubbard, No. 05-10704 (5th Cir. Feb. 23, 2007) (Garza, Prado, Owen) (For unexplained reasons, Judge Garza concurred in the judgment only.)

Hubbard was convicted of distributing child pornography (18 U.S.C. § 2252A(a)(2)). He had a prior Oklahoma conviction for "attempting to make lewd or indecent proposals to a child under sixteen" under Okla. Stat. tit. 21, §§ 42(1), 1123(A)(1), (C) (2000). Although Hubbard believed the "minor" to be a 14-year-old girl, he had actually been making lewd or indecent proposals to an undercover cop.

The issue here was whether that Oklahoma conviction was "a prior conviction . . . under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor," which would subject Hubbard to a 15-year mandatory minimum under § 2252A(b)(1). The court held that it was.

It first rejected the district court's conclusion that the Oklahoma offense could not be an offense "involving a minor" because it in fact involved an adult. Relying on the Fifth Circuit's prior interpretation of a federal statute (18 U.S.C. § 2242(b)) , the court held that it doesn't matter if the offense actually involved a minor as long as the defendant acted with the requisite intent and engaged in conduct constituting a substantial step towards committing the intended offense.

The court next rejected the district court's conclusion that an offense must involve actual sexual contact in order to qualify for the enhancement. It held that Congress did not intend to impose such a requirement, pointing to the broad phrase "relating to" preceding the listed offenses.

Moving on, the court rejected Hubbard's argument that "a state-law conviction will not trigger a minimum sentence under 18 U.S.C. § 2252A(b)(1) unless that prior conviction related to 'aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor' as defined by federal law." Slip op. at 11. The court instead held that the terms should be given their "ordinary, contemporary, and common meaning."

Finally, the court rejected Hubbard's contention that "the rule of lenity should be applied because . . . 18 U.S.C. § 2252A(b)(1) is 'opaque and ambiguous' in that it does not clearly impose a fifteenyear minimum sentence when a lewd proposal was made to a person the defendant believed to be a minor but who was in fact an adult." Slip op. at 16. The court didn't find the statute ambiguous.

The court ultimately held that "Hubbard was convicted under a state law relating to sexual abuse[,]" albeit without explaining why that was so. He was therefore subject to the 15-year mandatory minimum.

Tuesday, February 27, 2007

Fives Explain How to Overcome Presumption of Reasonableness, But Will the Court's Guideline-Centric Approach Survive Rita/Claiborne?

United States v. Nikonova, No. 05-31093 (5th Cir. Feb. 26, 2007) (Smith, Benavides, Prado)

With decisions in Rita and Claiborne just a few months away, Nikonova gets out ahead of the curve with perhaps the most robust view yet of post-Booker Guideline-centricity. The issue: how to overcome the presumption of reasonableness that attaches to a within-Guideline sentence. As the court explains it,
A non-guideline sentence is unreasonable in light of the statutory sentencing factors where it “(1) does not account for a factor that should have received significant weight, (2) gives significant weight to an irrelevant or improper factor; or (3) represents a clear error of judgment in balancing the sentencing factors.” United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). Nikonova suggests that we should apply the same test to determine whether a guideline sentence is reasonable. See Alonzo, 435 F.3d at 554. To apply the test in the same manner to guideline sentences and non-guideline sentences alike, however, would ignore the presumption of reasonableness that applies to guideline sentences and would disregard the discretion appropriately afforded to a district court where it has considered all the § 3553(a) factors. Therefore, the presumption of reasonableness that attaches to a properly calculated guideline sentence is rebutted only where the sentence falls so far afoul of one of the standards in Smith as to constitute a clear error in the court’s exercise of its broad sentencing discretion.

Slip op. at 4 (emphasis added).

There's at least a couple of problems with the court's approach. First, the court never really explains this new clear-error-in-the-exercise-of-broad-discretion standard of review, apart from declaring that the standard will "rarely" be met. Nikonova was unable to meet the standard, but the court's explanation as to why doesn't shed much light on what it means.

Second, the court's rationale for the standard doesn't make any sense. How does the court of appeals properly respect the district courts' supposedly broad post-Booker sentencing discretion by adopting a standard of review that tells them, "Stick with the Guidelines and you'll rarely get reversed. But exercise your 'broad' discretion to go outside the guidelines and you'll be subject to greater scrutiny."? That's virtually indistinguishable from the pre-Booker mandatory Guidelines regime.

But those aren't the only questionable aspects of this case. There's also the matter of whether the 31-month sentence that the court was reviewing was even a within-Guideline sentence in the first place.

The background: Nikonova was convicted of possessing child pornography. The probation officer calculated a guideline range of 41 to 51 months (22, I). That calculation included a 4-level enhancement for possession of sadistic images. Nikonova objected to the enhancement, "arguing that, although the images were sadistic, the government had not adequately proved that she had intentionally ordered and received them." The court overruled the objection, denied Nikonova's motion for a downward departure, and imposed a sentence of 41 months. Later, after Nikonova filed her notice of appeal, the district court granted the Government's Rule 35 substantial assistance motion, departed downward two levels, and imposed a sentence of 33 months.

According to the opinion, the parties' "devote[d] substantial argument" on appeal to the applicability of the 4-level sadistic image enhancement. The court declined to resolve that dispute on the ground that Nikonova's 31-month sentence fell within the 27- to 33-month range (18, I) that would have applied without the enhancement. But the court apparently forgot about the 2-level substantial assistance departure. If the 4-level enhancement did not apply, then Nikonova would have been at a range of 21 to 27 months after the departure (16, I), not 27 to 33 months (18, I). That means that a 31-month sentence would have amounted to an upward departure or variance, not a within-Guideline sentence, and the presumption of reasonableness would not have attached.

Ultimately, Nikonova may have a short shelf-life. It's anybody's guess how Rita and Claiborne will turn out, but it's hard to see how the Supreme Court can endorse the Fifth Circuit's view without ditching or substantially dialing back the rule of Apprendi.

Monday, February 26, 2007

Indictment Failed to Charge a 924(c), But Court Declines to Correct Plain Error

United States v. McGilberry, No. 04-60701 (5th Cir. Feb. 21, 2007) (Smith, Benavides, Prado)

McGilberry was initially charged just with being a felon in possession of a firearm. A week before trial, the Government hit him with a superseding indictment that added an 18 U.S.C. § 924(c)(1) count alleging McGilberry "knowingly possess[ed] a firearm . . . during and in relation to a drug trafficking crime." Slip op. at 2. "The instructions allowed the jury to convict on this second charge only if it found that McGilberry 'knowingly carried a firearm during and in relation to [his] alleged commission of the crime of possession of cocaine base with intent to distribute.' The jury convicted McGilberry on both counts." Id. at 3.

McGilberry appealed, arguing that the indictment failed to charge a 924(c) offense. Because McGilberry failed to challenge the indictment in the distirct court, the court of appeals reviewed for plain error. The court held that there was indeed error that was plain because the Government had played mix-and-match with the elements of two different offenses in 924(c), resulting in an indictment that charged a combination of elements that don't constitute any offense:
Section 924 refers to someone who either “uses or carries a firearm . . . during and in relation to any . . . drug trafficking crime,” or someone “who, in furtherance of any such crime, possesses a firearm.” 18 U.S.C. § 924(c)(1)(A). When the conduct charged is possession of a firearm, the appropriate standard of participation is “in furtherance of” a crime. However, if the defendant uses or carries a firearm, the participation standard is “during and in relation to” a crime. Here, the indictment erroneously combined the “possession” prong of the statute with the “during and in relation to” prong, thereby failing to list the essential elements of any criminal conduct.

Slip op. at 4 (citation omitted). However, the court also held that the plain error did not affect the fairness, integrity, or public reputation of the proceedings, for two reasons. First, "the evidence that McGilberry used or carried the firearm in question was 'essentially uncontroverted.'" Id. at 8 (citation omitted). Second, the district court correctly instructed the jury on the elements of carrying a firearm during and in relation to a drug trafficking crime.

Which brings up the second issue raised by McGilberry, namely his argument that the district court constructively amended the indictment with its instruction to the jury that it must find that he carried the firearm in order to find him guilty. The court reviewed this issue, too, for plain error. It held that even if there was error, any error did not seriously affect the fairness, integrity or public reputation of the proceedings because the court's instruction narrowed the grounds for conviction by requiring a finding of carrying the firearm rather than merely possessing it, and the instruction was otherwise a correct statement of the elements of a 924(c) offense.


Officer's Testimony That Non-Testifying CI Identified Defendant at Crime Scene Violated Confrontation Clause, Error Not Harmless

United States v. Rodriguez-Martinez, No. 05-11384 (5th Cir. Jan. 12, 2007) (per curiam) (Garwood, Dennis, Owen)*

Officer Cedillo was running a CI. The CI made arrangements with "Jorge," over the course of several phone conversations, for delivery of 15 kilos of cocaine. "Officer Cedilo listened to some of the calls through the informant's speaker-phone." Jorge called the CI on the agreed-upon date of delivery, and told the CI that he was in a gray minivan with his girlfriend at a Denny's. The police, along with the CI, set up surveillance on the Denny's. They saw Rodriguez and three others get into the minivan and drive off. An officer pulled over the van and ultimately found 12 kilos of cocaine in hidden compartments in the van.

Rodriguez was charged with possession of more than 5 kilos of cocaine with intent to distribute (21 U.S.C. §§ 841(a)(1), (b)(1)(A)). The trial evidently centered on whether Rodriguez was "Jorge."
[Officer Cedillo] testified that he had “substantial contact and time to listen to [Jorge’s] voice” and that Rodriguez-Martinez’s voice “sound[ed] similar to the voice that belonged to Jorge on the other end of the cell phone.” Over hearsay and Confrontation Clause objections, Officer Cedillo testified that the informant pointed to Rodriguez-Martinez in the Denny’s parking lot and said, “[T]hat’s Jorge, the guy I’ve been talking to.”

Slip op. at 3.

Rodriguez pressed the Confrontation Clause issue on appeal, arguing that Officer Cedillo's testimony about the CI's out-of-court identification was testimonial hearsay barred by Crawford v. Washington. The Government conceded that point, so the more significant issue was whether the error was harmless. The court held that it was not:
The informant’s out-of-court statement was the only evidence that definitively identified Rodriguez-Martinez as the drug source. Only one other witness, Officer Cedillo, testified that Rodriguez-Martinez “sounded similar” to the drug source. Other circumstantial evidence connects Rodriguez-Martinez to the drug source, but Rodriguez-Martinez presented a “logically possible and not implausible account” for this evidence because it also points to Alberto Mendoza as the drug source. The scales simply do not tip in favor of the Government on the record before us. Since the informant’s identification of Rodriguez-Martinez as the drug source was particularly important to the Government’s case, we declineto interpret any adverse influence its admission had on the jury as harmless beyond a reasonable doubt. Accordingly, Rodriguez-Martinez is entitled to a new trial.

Slip op. at 8.

Rodriguez also argued that the evidence was insufficient to support his conviction. The court disagreed, holding that the evidence was sufficient even without the out-of-court ID. So Rodriguez gets a new trial instead of a judgment of acquittal.

*It appears that the court granted Rodriguez's motion to publish this originally unpublished opinion.


Friday, February 23, 2007

Court's Response to Jury Question Was Not "Critical Stage of the Proceedings"

United States v. Hillsman, No. 06-20087 (5th Cir. Feb. 22, 2007) (Higginbotham, Smith, DeMoss)

Hillsman was tried on charges of possession of crack and possession of a firearm in furtherance of a drug trafficking offense. The only evidence at trial linking Hillman to the crack was one Officer Oliver, who testified that he saw Hillsman drop the crack in a trash can.

After deliberating for five hours, the jury sent out a note asking, "Is there any other information about Officer Oliver? Account of the incident that we may consider?" After discussing the note with the case manager (?) "off the record and outside the presence of the judge," both the prosecutor and defense counsel agreed to suggest that the judge respond with: "No. Please refer to your jury instructions." The case manager told counsel that the jury would break for the day, and forwarded the suggested response to the judge. But before the jury left, the district court, without notifying counsel, sent a note to the jury that said, "No. I am sorry." Defense counsel did not learn of the note until after the jury had returned its guilty verdict.

Hillsman argued on appeal (as he had in a motion for new trial) that "the court's failure to disclose its response to the jury violated his client's Sixth Amendment right to counsel[,]" the issue being whether the response constituted a "critical stage of the proceedings."

The court pointed to case law from other circuits "recogniz[ing] a distinction between the primary set of instructions contained in the court’s charge and later repetition of instructions, [and] explaining that the 'rereading of identical jury' instructions is not a critical stage of a criminal trial' and that 'reading instructions to the jury is not a critical stage of the proceedings if trial counsel has previously agreed to the instructions.'" Slip op. at 4-5. The court went on to hold that the district court's response to the jury was not a critical stage of the proceedings because 1) the response "was not materially different from that sought by counsel[,]" 2) "the surplus phrase 'I'm sorry' was no more than a polite expression added to the negative response[,]" and 3) "a reasonable juror would [not] have understood the judge to be expressing his disappointment in being unable to disclose information about Officer Oliver or the incident that was not in the record." Slip op. at 5. Because the response was not a critical stage, there was no Sixth Amendment violation and the court affirmed Hillsman's conviction.

"Any Blank Permit" In Second Paragraph of 18 U.S.C. § 1546(a) Includes Both Real and Fake Documents

United States v. Uvalle-Patricio, No. 05-40309 (5th Cir. Feb. 12, 2007) (Smith, Garza, Clement)

18 U.S.C. § 1546(a) criminalizes a variety of conduct relating to immigration document fraud. "The first paragraph of § 1546(a) criminalizes possession of forged immigration documents[,]" while the second paragraph, "as a whole, criminalizes possession of materials that can be used to produce false immigration documents." Slip op. at 4-5.

Uvalle was caught at a Border Patrol checkpoint with fake blank I-551 (green card) forms. The government charged him under the portion of the second paragraph of § 1546(a) that prohibits "knowingly possess[ing] any blank permit[.]" Uvalle argued that "any blank permit" only refers to the possession of real documents, not fake ones.

The court of appeals disagreed. Relying on what it considered to be the plain language of the statute, as well as "the operation of the statute as a whole and in context with other provisions[,]" it held that "any blank permit" includes both real and fake documents.

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Wednesday, February 21, 2007

Medicare Fraud and Loss Amounts

United States v. Austin, No. 05-30602 (5th Cir. Feb. 13, 2007) (Garza, Prado, Owen)

If you enjoy reading opinions about Medicare fraud and associated loss amount calculations, then you'll love Austin. Here's the court's summary:
In this Medicare fraud case, the defendant pleaded guilty to violating 18 U.S.C. § 1347. He was sentenced to 27 months imprisonment and restitution of more than $2 million. The principal issues on appeal are (1) whether assets pledged after the offense was discovered should be credited in calculating the amount of loss; (2) the effect of payments made and assets pledged as a result of bankruptcy proceedings filed before discovery of the offense; and (3) whether $643,388 representing pension plan benefits that were funded before the loss was discovered should have been credited in determining the amount of loss. Weconclude that the district court properly construed and applied the Guidelines, except for the failure to credit $643,388 in calculating the loss. We accordingly vacate the order of restitution and remand for resentencing.

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Illegal Entry not Relevant Conduct to Drug Offense Committed One Month Later

United States v. Yerena-Magana, No. 05-40631 (5th Cir. Feb. 12, 2007) (Smith, Garza, Owen)

Yerena-Magana explores the interaction between the relevant conduct defintion found in U.S.S.G. §1B1.3, and the criminal history provisions of Chapter 4 of the Guidelines Manual. Guideline 4A1.1 assesses criminal history points for certain "prior sentences." The term "prior sentence" does not include a sentence imposed for conduct that was "part of the instant offense." Application Note 1 goes on to explain that "[c]onduct that is part of the instant offense means conduct that is relevant conduct under the provisions of §1B1.3 (Relevant Conduct)."

Which brings us to the criminal history dispute in this case, involving two offenses that Yerena committed one month apart from each other. First, Yerena illegally entered the United States. A month later, he was caught with a load of marijuana concealed inside a truckload of watermelons. Rather than charging him with the drug offense, the Government charged Yerena with illegal entry (8 U.S.C. § 1325). Yerena pled guilty, and was sentenced to 60 days in jail.

While Yerena was serving that sentence, the Government charged him with possession of marijuana with intent to distribute and with conspiring to do so. He wound up pleading guilty to just the PWID charge. In calculating Yerena's criminal history score for the PSR, the probation officer did not assess any criminal history points for the illegal entry conviction because the PO determined that it was part of the drug offense. The district court disagreed, and included 2 criminal history points for the illegal entry conviction.

Yerena appealed, arguing that the district court erred by assessing criminal history points for the illegal entry conviction, for two reasons. First, he argued that the illegal entry and drug offenses were "related cases" for purposes of §4A1.2(a)(2), which provides that "[p]rior sentences imposed in related cases are to be treated as one sentence for purposes of §4A1.1(a), (b), and (c)." The court rejected that argument, pointing out that §4A1.2(a)(2) "examines the relationship between two prior sentences," not "the relationship between a prior sentence and the offense for which the sentence is to be imposed." Slip op. at 7.

Second, Yerena argued that the illegal entry offense was not a "prior sentence" at all, because it was relevant conduct to the drug offense. He pointed to the portion of §1B1.3 which includes conduct "that occurred . . . in preparation for" the offense of conviction. The court disagreed:
There is no evidence in the record before us that Yerena-Magana intended to commit the drug offense for which he was sentenced at the time he illegally entered the United States. We will not infer that he illegally entered this country “in preparation for” the drug offense, as he requests. But even were there such evidence, the nexus between the illegal entry on May 24, 2004 and the drug offense on June 24, 2004 is too attenuated to constitute “preparation for that offense.” The illegal entry made the drug crime possible only in the most philosophic and metaphysical sense. The illegal entry was a “discrete, noncontinuing offense . . . completed prior to” the drug offense, which harmed different societal interests.

Slip op. at 9-10.

Note that this gets a lot more complicated when you're dealing with someone convicted of illegal reentry under the "found in" alternative in 8 U.S.C. § 1326, as opposed to illegal entry under § 1325. That's because the "found in" offense commences with the illegal reentry and continues until the alien is actually found, whereas an illegal entry is complete upon entry. Note also that you'll have to deal with some bad Fifth Circuit case law if you find yourself in that situation (the Vargas-Garcia case discused at pages 7-10 of the opinion).

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Tuesday, February 20, 2007

Court Overlooks Guideline Commentary Regarding Availability of Mitigating Role Adjustment, Rejects Fear-Of-Consequences Exception to Safety Valve

United States v. Washington, No. 05-30163 (5th Cir. Feb. 19, 2007) (Smith, Garza, Owen) (This is actually a consolidated appeal, but I'll address each defendant in separate posts because a single post would be way too long.)

Washington was convicted of conspiring to distribute 100 kilograms or more of marijuana (21 U.S.C. §§ 841, 846). "The factual basis for Washington's [guilty] plea established his involvement in an operation involving more than 4,000 pounds of marijuana, which were transported from Dallas to Shreveport. Washington's role was to store the marijuana at his property in Shreveport." Slip op. at 2. The district court sentenced him to 108 months' imprisonment, which was the high end of the guideline range calculated by the court.

On appeal, Washington argued that the district court erred by not applying safety-valve or minor-role adjustments when calculating his guidelines, and that his sentence was unreasonable. The court rejected all three of Washington's arguments.

Safety Valve
The district court refused to apply the 2-level safety valve adjustment under §2D1.1 because the Government claimed that Washington failed to "truthfully provide[] to the Government all information and evidence [he had] concerning the offense . . . ." Slip op. at 3 (quoting U.S.S.G. §5C1.2(a)(5)). Specifically, the Government complained that Washington refused to explain his role in the conspiracy, to tell the Government whether he used certain guns in the offense, or to reveal how much he was being paid. "Washington asserted that his lack of cooperation was based in part on his fear of reprisal[,]" and that such fear "justified his conduct, entitling him to the 2-point reduction." Slip op. at 3.

The Fifth Circuit had never confronted this issue before, but according to the court all eight courts of appeals that have addressed this argument have rejected it. The court followed the decisions of those other circuits and declined to create a "fear-of-consequences" exception to the safety valve's disclosure requirement.

Mitigating Role Adjustment
Washington argued that "he should have received a mitigating-role reduction under U.S.S.G. § 3B1.2 because his only involvement in the conspiracy was storing the drugs." Not a bad argument, given the guideline's commentary on the applicability of the adjustment:
A defendant who is accountable under §1B1.3 (Relevant Conduct) only for the conduct in which the defendant personally was involved and who performs a limited function in concerted criminal activity is not precluded from consideration for an adjustment under this guideline. For example, a defendant who is convicted of a drug trafficking offense, whose role in that offense was limited to transporting or storing drugs and who is accountable under §1B1.3 only for the quantity of drugs the defendant personally transported or stored is not precluded from consideration for an adjustment under this guideline.

U.S.S.G. §3B1.2, comment. (n.3(A)). That commentary was added to the guideline to resolve a circuit split on the issue, and became effective November 1, 2001. See U.S.S.G. App. C, amend. 635. It appears that the 2004 Guidelines applied to this case, so application note 3(A) should be controlling on the issue of Washington's mitigating-role eligibility.

Nevertheless, the court seems to have overlooked application note 3(A). It held that
[t]he district court did not err in refusing to grant the mitigating-role reduction. Washington was not charged or sentenced based on some larger conspiracy involving more drugs than he stored; he was only charged and sentenced based on the drugs stored on his property. Accordingly, he is not entitled to a mitigating-role reduction under section 3B1.2.

Slip op. at 5. In fact, the opinion doesn't mention application note 3(A) at all. It instead cites as authority United States v. Garcia, 242 F.3d 593, 598-99 (5th Cir. 2001), a case involving a pre-2001 version §3B1.2. (The court also cites three more recent unpublished cases.) However, the Sentencing Commission expressly rejected Garcia's approach to this issue when it adopted Amendment 635. Of course, there's still the factual question of exactly what Washington's role was, but the court's holding on the threshold elibility question is flatly contrary to the controlling guideline commentary.

The presumption of reasonableness carried the day.

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Friday, February 16, 2007

Evidence Sufficient to Establish that Murder Committed on Fort Hood Was Within Special Maritime and Territorial Jurisdiction of the United States

United States v. Reff, No. 06-50076 (5th Cir. Feb. 15, 2007) (per curiam) (Higginbotham, Smith, DeMoss)

Reff was convicted of first degree murder on a government reservation, an element of which is that the murder was committed "within the special maritime and territorial jurisdiction of the United States" (as defined in 18 U.S.C. § 7). The victim was found behind the wheel of her car on Hood Road, which is on Fort Hood near Killeen, Texas, with a fatal gunshot wound to the head. Hood Road is a divided four-land road that runs north-south "between U.S. Highway 190 and Fort Hood's front gate, which is just over 1,000 feet north of U.S. Highway 190." Slip op. at 2 n.1. A witness reported seeing the victim's northbound vehicle suddenly veer into the median shortly after passing another vehicle which was parked in the median.

On appeal, Reff argued that the evidence presented at trial was insufficient to prove the jurisdictional element, and that the district court erred by failing to instruct the jury on the definition of "special maritime and territorial jurisdiction of the United States."

Because Reff did not challenge the jurisdictional basis for his prosecution at trial, the court of appeals reviewed for a "miscarriage of justice." Under that standard, a conviction is set aside "only if 'the record is devoid of evidence' establishing jurisdiction[.]" Slip op. at 7-8 (citing United States v. Partida, 385 F.3d 546, 561 (5th Cir. 2004)). The court held that there was no miscarriage of justice here because it has "numerous times and without reservation . . . stated that military reservations such as Fort Hood fall within the definition of 'special maritime and territorial jurisdiction of the United States' under 18 U.S.C. § 7." Slip op. at 10 (citations omitted). Moreover, there was testimony at trial that the place where the victim was found was well inside the southern boundary of Fort Hood. The court acknowledged that the issue would be "more problematic" if the evidence showed that the road leading to the visitor's center was open to the public, but there was no so evidence presented at trial.

Reff argued that even if Fort Hood fell within the special maritime and territorial jurisdiction of the U.S., the Government had to prove that he actually shot the victim on the base, not simply that the victim died there. He then offered an alternative hypothetical scenario in which the victim could have been shot on Highway 190 and then driven onto Hood Road to seek help. The court agreed that "the proper inquiry is where the fatal injury was inflicted, not where the death occurred[,]" but held that regardless of whether Reff's alternative scenario was plausible, the record was nevertheless not devoid of evidence that the injury was inflicted on the base, as required under the miscarriage of justice standard. Slip op. at 12-14.

(An interesting side issue is whether the Government is required to prove the jurisdictional element BRD. A Fifth Circuit case from 1993 holds that the Government need only prove the element by a preponderance of evidence. United States v. Bell, 993 F.2d 427, 429. Subsequent cases have questioned Bell's holding, but the court declined to address the issue here because the evidence established jurisdiction under either standard of proof.)

As to the second issue, the district court's failure to charge the jury on the definition of "special maritime and territorial jurisdiction," the court reviewed for plain error because Reff did not object to the jury charge or request a definition of the jurisdiction element. And the court held that there was no plain error because the element went undisputed at trial and because the district court used the Fifth Circuit's pattern charge on first degree murder.


Thursday, February 15, 2007

Warrantless Entry of Home Unreasonable Because Agents Were Responsible for Creating Exigent Circumstances

United States v. Gomez-Moreno, No. 05-20921 (5th Cir. Feb. 12, 2007) (Jolly, Higginbotham, Dennis)

This is the story of a "knock and talk" that escalated, as the court put it, into a "knock down and search." You might even say it's less knock-and-talk than it is shock-and-awe.

The mise en scène: a "residence consist[ing] of two buildings: a main house in the front (the 'front house') and a second, smaller house in the back that looked like a garage but had been converted into living quarters (the 'back house')." An ICE agent set up a stakeout on the residence after receiving an anonymous tip that it was an illegal alien stash house. Ultimately, a group of ten to twelve ICE agents and police officers, accompanied by a helicopter, "decided to approach the residence to secure the exits to the front and back houses and to conduct a 'knock and talk' to ask if any illegal aliens were present."

The agents and officers, who were all identified as "Police" or "Department of Homeland Security," split into two groups. One group knocked on the front door and got no response, but they could hear people moving around inside. The officers tried to open the door, but it was locked. One officer heard a "commotion" in the backyard and headed that way.

At the same time, the second group "knocked on the door to the back house, announcing 'Police! Police! Open the door.'" (Perhaps that was the "commotion" the officer at the front house heard?) As at the front house, no one answered. One officer saw "a lot of people" through a window. The lights went out, and officers thought they heard people trying to barricade the door from the inside.

Just then a man walked out of the front house into the backyard, saw the officers, and turned around and ran back inside. The officers "drew their weapons and followed the man into the front house to protect the officers and any illegal aliens from any potential armed smugglers. They quickly secured the front house, bringing all twelve occupants out to the backyard. With their weapons drawn, the officers ordered everyone on the ground. . . . At the officers’ request, the helicopter shined its search light on the backyard to light up the area."

Gomez-Moreno fessed up to being the owner, and, after being Mirandized, offered to get the people in the back house to open the door, which they did. The officers brought thirteen more people out of the back house.

Gomez filed a motion to suppress the fruits of the warrantless search (the aliens). The district court denied the motion, finding that exigent circumstances arose when the man walked out of the front house and ran back inside upon seeing the officers. "[W]hen coupled with the anonymous tip, the activities detected during surveillance, and the people that the officers saw through the window in the back house, that created probable cause and exigent circumstances. The district court concluded that these exigent circumstances permitted the officers to secure the house to protect their safety and the safety of those inside."

"Not so fast[,]" said the court of appeals. It acknowledged the legitimacy of the "knock and talk" tactic, but held that it was improperly executed here. Instead of knocking and waiting for a response, ten to twelve officers (accompanied by a helicopter) essentially raided the home and demanded entry. That's unreasonable.
The district court erred in finding that exigent circumstances justified entry into the front house when the man exited the back door to the front house, saw the officers, and ran back into the house. According to the officers, they followed the man into the house because they needed to surprise the occupants and any potential armed smugglers to divert a possible shoot-out. This argument fails because the officers had already lost any element of surprise when they announced their presence, knocked on the doors, and demanded entry.

Because the officers' unreasonable actions were responsible for creating the exigent circumstances, those circumstances could not justify a warrantless entry into the home. The court also held that Gomez's consent was not an "independent act of free will" breaking the chain of illegality that led to the discovery of some of the aliens. Accordingly, the court reversed Gomez's conviction for conspiracy to harbor aliens (8 U.S.C. § 1324(a)(1)(A)(iii)).

Astute readers might say, "Hold on a sec. Didn't the Fifth Circuit hold that officers weren't responsible for creating the exigency in a case with similar facts just a couple of months ago?" Yep, in United States v. Newman, No. 05-20603 (5th Cir. Dec. 5, 2006). And Gomez-Moreno addressed that. It pointed out that the facts here are more similar to an even earlier case, United States v. Vega, 221 F.3d 789 (5th Cir. 2000), in which the Fifth Circuit held that officers unreasonably created the exigent circumstances. To the extent that there's any conflict between Vega and Newman, this panel was bound by the earlier decision in Vega. You might also notice that Judge Jolly, who authored this opinion, has recently expressed some discomfort with the drift of the Fifth Circuit's case law in this area. And rightly so.

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Wednesday, February 14, 2007

Illegal Reentry Proseuction Barred by Limitations

United States v. Gunera, No. 05-20544 (5th Cir. Feb. 13, 2007) (Reavley, Jolly, Benavides)

As you're probably aware, there are three ways of committing illegal reentry under 8 U.S.C. § 1326: by attempting to reenter, actually reentering, or being found in the United States after having been deported. The statute of limitations on illegal reentry is five years. The SOL on the found-in alternative commences running on the date that the alien's "physical presence is discovered and noted by the immigration authorities, and the knowledge of the illegality of his presence, through the exercise of diligence typical of law enforcement authorities, can reasonably be attributed to immigration authorities." United States v. Santana-Castellano, 74 F.3d 593, 598 (5th Cir. 1996).

The issue in this case is whether the Government blew the SOL on prosecuting Gunera for being found in the U.S. Gunera, a Honduran citizen, was deported in 1991 following his Texas state conviction for possession of a controlled substance. He was again removed in 1992.

On August 18, 1999, Gunera filed an application with the Immigration and Naturalization Service (“INS”) for Temporary Protected Status (“TPS”) with the INS’s Texas Service Center. He provided his true name, date of birth, and place of birth, all of which had been known to the INS at the time of his 1991 deportation. The application also contained Gunera’s then-current Texas address. He did not disclose that he had been previously convicted of a crime and deported, or that he had been issued an alien registration number (“A-Number”) in the past.

At the same time he submitted his TPS application, Gunera applied for an employment authorization document (“EAD”). That application was approved and an EAD issued under the same A-Number under which Gunera had been deported in 1991.

Slip op. at 2. On September 28, 1999, the Texas Service Center ran a check on Gunera's name and DOB in the National Automated Immigration Lookout System (NAILS), and learned of his prior drug conviction, his 1991 deportation, and his A-number. On October 1, 1999, the INS sent a letter to the address Gunera provided in his TPS application informing him of the agency's intent to deny the application based on his prior drug conviction, and that he had to submit fingerprints if he hadn't already done so.
[Over five years later, o]n November 23, 2004, Gunera reported to the offices of Immigration and Customs Enforcement (“ICE”) pursuant to correspondence requesting that he appear for further processing. He was arrested and held in ICE custody. Gunera moved to dismiss the illegal presence indictment of December 20, 2004 as being returned more than five years following the date he was “found” in the United States. Following an evidentiary hearing on that issue, the district court denied the motion to dismiss. Gunera was convicted following a bench trial.

Slip op. at 3. Gunera appealed, challenging the district court's denial of his limitations defense, among other things. The Government argued that the INS did not have constructive knowledge of Gunera's illegal presence in the U.S. at the time of his TPS application because he "(1) omitted the facts that he had previously been issued an A-number and convicted, and (2) failed to submit fingerprints with his TPS application, thus concealing his true identity." Slip op. at 5.

The court rejected the Government's argument, holding that the INS had actual knowledge of Gunera's status as a previously deported alien and his illegal presence as of September 28, 1999, when the Texas Service Center ran the NAILS search, and that the SOL began running on that date. The court also rejected the district court's "implicitl[] conclu[sion] that knowledge of the INS’s Texas Service Center is not knowledge of the immigration authorities for purposes of the statute of limitations." Slip op. at 6. It pointed out that in 1999, the INS was the "immigration authorities" as it was responsible for processing and investigating immigration matters. Moreover, the Government admitted that there was an investigative unit at the Texas Service Center, but that "the Center simply did not refer Gunera's file for further investigation of the NAILS inquiry results of 1999 until 2003." Id. at 7.

Because the Government did not indict Gunera until more than five years after he was found in the United States illegally on September 28, 1999, the court reversed the conviction and dismissed the indictment.

Good heads-up work by defense counsel in this case.


Court Reverses Downward Variance in Possession of Child Pornography Case

United States v. Perrin, No. 06-30115 (5th Cir. Feb. 9, 2007) (Higginbotham, Smith, DeMoss)

Perrin was convicted of receipt and possession of child pornography. He possessed thousands of images and videos, some of which were especially bad. His guideline range was 108 to 135 months (which included a one-level substantial assistance departure), and the statutory mandatory minimum was 60 months. Perrin's supervised release range was five years to life, and the guidelines recommended the maximum life term.

The district court imposed a non-guideline sentence of 60 months, to be followed by a 10-year term of supervised release. It gave four reasons for the variance: 1) Perrin was a consumer of child pornography, not a producer, and the guidelines for possession are disproportionate to those for production; 2) "Perrin was not a risk to the community and that there was no indication that he had ever 'attempted to perform anything similar to the visual depictions that he possessed[;]'" 3) "Perrin was aware of the consequences of his conduct, and the court was impressed that he had voluntarily begun counseling[;]" and 4) the ten-year term of supervised release was "onerous" and "double the typical amount of time spent under supervision." Slip op. at 2. The Government appealed.

The court held that Perrin's sentence was unreasonable under the first two factors of the Smith test for non-guideline sentences. See United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006)). First, it did not account for factors that should have received significant weight, namely the "nature and circumstances of the offense" and "the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense." Slip op. at 4 (quoting 18 U.S.C. § 3553(a)(1), (2)(A)).Here's what the court said about that:
Based on the content and numerosity of the images possessed by Perrin, this crime falls at the more severe end of possession of child pornography cases. The court did not articulate sufficiently how the severity of the crime factored into its decision to depart from the guideline range and impose the minimum sentence allowed by law, so the sentence fails to advance sufficiently the objectives stated in § 3553(a)(2)(A)-(B).

Slip op. at 5.

Second, the district court "[gave] significant weight to . . . irrelevant or improper factor[s]." The district court's reliance on the fact that Perrin was a consumer rather than a producer was improper because the guidelines also take that distinction into account by punishing production more severely than possession, and because a departure isn't warranted on the ground that a defendant didn't commit a more severe crime that he actually did. It was also improper for the district court to consider Perrin's contrition and participation in counseling: "A defendant's contrition and commencement of counseling are already accounted for, according to the guidelines manual, in the acceptance-of-responsibility reduction and thus are inappropriate as a basis for a further sentence reduction." Slip op. at 6. Finally, the ten-year supervised release term was already substantially lower than that recommended by the Guidelines, so it was "inappropriate to use such a term of supervised release as a basis for departure from the guideline range." Id.

Needless to say, the court's opinion reflects a very guidelines-centric view of sentencing. We'll see if the Supreme Court agrees with that approach in Claiborne and Rita.


Tuesday, February 13, 2007

Intended Loss, not Actual Loss, Governs Loss Amount Calculation Under U.S.S.G. §2T4.1

United States v. Phelps, No. 05-51279 (5th Cir. Feb. 12, 2007) (per curiam) (Reavley, Jolly, Benavides)

"Charles Phelps, Jr. (Appellant) managed various adult entertainment businesses for his codefendant, John Kenneth Coil. Over a period of several years, Appellant caused corporate monies to be falsely reported as wages paid to his family members." Slip op. at 1. Those actions led to his conviction of "one count of conspiracy to defraud the United States by impeding the IRS in its collection of revenue in violation of 18 U.S.C. § 371." Id. at 2.

The district court calculated Phelps's offense level under U.S.S.G. §2T4.1. At sentencing, Phelps presented an expert who put the tax loss amount at $80,463.64, but who also argued that "the excess social security taxes paid through [his] family members' fraudulent tax filings should be credited against that figure." The district court disagreed, finding that Phelps was responsible for a tax loss between $80,000 and $200,000 (good for a base offense level of 16). This appeal ensued.

The court held that losses under §2T4.1 must be calculated the same way that they are under 2T1.1 and 2T3.1, and under those guidelines it is the intended loss that matters, not the Government's actual loss. Accordingly, the loss amount that Phelps intended should not be offset by the extra social security taxes that his scheme generated for the Government, and the district court did not clearly err in its loss calculation.

The court also rejected Phelps's argument, which he raised for preservation purposes, that his sentence could not be enhanced on the basis of findings made on a preponderance standard rather than BRD. (Of course, considering that the loss amount centered on a legal dispute rather than a factual dispute, and that Phelps presented expert testimony supporting the district court's finding on loss amount, it's hard to see how the standard-of-proof would make a difference here.)

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Aggravated Battery Defined as Touching-Another-With-Deadly-Weapon Involves Threatened Use of Physical Force, Is Therefore 16-Level COV Under §2L1.2

United States v. Dominguez, No. 06-40292 (5th Cir. Feb. 12, 2007) (Davis, Stewart, Crone)

Dominguez once again finds the Fifth Circuit deciding whether a prior state conviction qualifies as a crime of violence under U.S.S.G. §2L1.2(b)(1)(A)(ii). This time the case involves a Florida conviction for aggravated battery. The documents from the prior conviction established that Dominguez had been convicted under Fla. Stat. Ann. §§ 784.03(1)(a)(1), 784.045(1)(a)(2) (1998). They provide that a person commits aggravated battery by "[u]s[ing] a deadly weapon" "in committing battery[,]" and define "battery" in relevant part as "[a]ctually and intentionally touch[ing] or strik[ing] another person against the will of the other[.]" Slip op. at 3-4 (first two alterations added).

The court didn't decide whether the Florida offense qualified as generic aggravated assault, an enumerated COV, because it held that the offense qualified under the force-element alternative of the COV defintion. The court acknowledged that the mere act of touching someone, even with a weapon, does not necessarily involve the use or attempted use of the type of violent, destructive force required by the COV definition. It held, however, that merely touching someone with a deadly weapon necessarily involves at a minimum the threatened use of violent physical force, which is sufficient to make it a COV:
Although an intentional touching with a deadly weapon under Florida law may not itself cause injury, it could lead to more violent conduct, or could at least put the victim on notice of the possibility that the weapon will be used more harshly in the future, thereby constituting a threatened use of force.
Slip op. at 9 (relying principally on United States v. Treto-Martinez, 421 F.3d 1156 (10th Cir. 2005)).

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Monday, February 05, 2007

En Banc Fireworks Over Concealment Element of Int'l Money Laundering, Lack of Sanctions for Gov't Discovery Violation

United States v. Cuellar, No. 05-10065 (5th Cir. Feb. 2, 2007) (en banc)

It's not uncommon to see courts criticized for what appears to be result-oriented decision-making, especially when it comes to the war on drugs. Rarely, however, do you see such criticism coming from judges themselves, and in terms as strong as those found in the introductory paragraphs of the dissent in this case:

This is a case of a prosecution run amok. Mike Nifong, another prosecutor apparently familiar with the “win at any cost” mantra, most surely would approve. The government set out to “get” Humberto Cuellar for something, and why not? He is apparently a “bad dude,” an accessory to what likely was a serious drug-running operation; moreover, this is, after all, the “war on drugs.” But instead of charging under a statute of which Cuellar (by his attorney’s admission) is guilty, the government used the wrong law, and the majority now has blessed the government’s missteps with a holding that makes “money laundering” out of virtually any transfer of illicit proceeds across an international border. A person steals petty cash, hides it in his shoe, and is caught crossing into Mexico: “money laundering,” according to the en banc majority’s rendering of this appeal.

The government is guilty of at least three excesses in this case. First, it stumbled by charging the wrong statute, when it easily could have used the correct one. Then, in a transparent effort to cover for its blunder, it has succeeded in making a mockery of the concept of money laundering in this court. And finally, it blatantly deprived Cuellar of his rights at trial by its knowing failure to provide adequate disclosure of the expected testimony of a key, expert witness.

Today’s zealous en banc majority aids and abets the government’s excesses. It exhibits an impressive determination to aid the “war on drugs” and the government’s boundless quest to incarcerate a foot soldier who apparently is on the wrong side of that war. Unfortunately, to achieve its end the majority ignores common sense, context, and accepted principles of statutory interpretation to reach an ultimately absurd and embarrassing result. Because I decline to rewrite the law judicially, I respectfully dissent.

Slip op. at 31-32. Let's take a look at what prompted such strong words, shall we?

Cuellar was apprehended attempting to transport $83,000 in cash to Mexico. The cash, which smelled of marijuana, was concealed inside a hidden compartment in the Volkswagen Beetle that he was driving. He was charged and convicted of international money laundering, in violation of 18 U.S.C. § 1956(a)(2)(B)(i). Cuellar appealed, arguing that the evidence was insufficient to prove two elements of the offense beyond a reasonable doubt: 1) that the transporation of the funds was designed in whole or in part to conceal or disguise the nature, location, source, control, or ownership of the proceeds, and 2) that Cuellar knew of that design.

As discussed in more detail here, a divided panel reversed Cuellar's conviction. Judge Smith, joined by Judge Dennis, held that the Government presented insufficient evidence on the concealment element, which requires transporting the money in order to conceal it's source, nature, etc., not merely concealing it in order to transport it: "The statute would prohibit taking drug money to Mexico for the purpose of concealing the fact that it is drug money. The statute does not outlaw concealing drug money from the police for the purpose of taking it to Mexico." Judge Davis dissented, arguing that physically concealing cash is enough, and that other circuits have affirmed convictions based on similar conduct.

The court granted rehearing en banc, and, with Judge Davis writing for the majority, reversed the panel's decision. The court essentially held that because Cuellar concealed the cash as part of transporting it, there was sufficient evidence to establish the concealment element of the offense. It rejected the idea that the money laundering statute only reaches "concealment that is accomplished in a certain way[,]" concluding that the meaning of the term "conceal" was plain. But the court also confusingly suggested (by way of distinguishing a case from another circuit) that something more than mere concealment is necessary. And according to the majority, its construction of the statute is consistent with that of the other circuits to have addressed the question.

The court also reached a second issue that the panel did not address, involving two separate aspects of expert testimony presented by the Government at trial. Shortly after arraignment, Cuellar filed a motion requesting expert witness disclosure from the Government under Fed. R. Crim. P. 16(a)(1)(G). The district court granted the motion, ordering disclosure by a certain date. Over three weeks after the deadline, and just two weeks before trial, the Government finally gave Cuellar notice of its intent to present an agent as an expert on methods of smuggling drugs and drug proceeds. The bare bones disclosure did not comply with the requirements of Rule 16(a)(1)(G). (Check out pages 56-57 to see exactly what the Government disclosed.) Nevertheless, the district court refused to exclude the agent's testimony or otherwise sanction the Government for its discovery violation. Compounding the error, the agent testified about drug courier profiles at trial and expressed an opinion on Cuellar's mental state in violation of Fed. R. Evid. 704(b):

Q: Does a drug smuggler give his marijuana or his money to be transported to someone who doesn’t know what they are transporting?

A: Not in my experience. The people who are driving money or who are driving dope know that they are transporting either dope or money, something of value. They may not know that - - whether they are marijuana or cocaine. They may not know how much money they have, but they know they are transporting it.

Slip op. at 27.

The en banc majority first held that although the Government's disclosure was plainly untimely and inadequate, the district court did not abuse its discretion in declining to impose discovery sanctions. It pointed out that testimony pertaining to smuggling methods "has become almost routine in drug cases," and that there was no prejudice to Cuellar's substantial rights because such testimony is not all that complex and Cuellar's attorney was able to effectively cross-examine the agent. Second, on review for plain error, the court held that the district court's admission of courier profile testimony was error and that the error was plain, but that the error did not affect Cuellar's substantial rights because of the ample evidence of Cuellar's guilty knowledge.

Judge Smith, joined by Judge DeMoss, dissented vigorously, landing solid blows against every aspect of the majority's decision. (Judge Dennis joined all but the introductory paragraphs quoted at the beginning of this post, which is strange considering the rest of the dissent reads the same way.)

As to the statutory construction issue, the dissent argues that the term "conceal" must be construed in light of the purpose of the money laundering statute, which is to attack the practice of disguising illegitimate funds to make them appear to come from a legitimate source. Accordingly, the concealment element of § 1956 should only reach "transporting money to conceal it" rather than "concealing money to transport it." The dissent cites several canons of construction in support of that interpretation, as well as the same case law relied upon by the majority:

  • The Statute's Title: A term must be read in light of the title of the statute in which it is found, which in this case is "laundering of money instruments." Money laundering is commonly understood to mean the disguising of illegitimate money to make it appear legitimate, not simply the movement of illicit funds.
  • Legislative History: The legislative history of § 1956 overwhelmingly reflects the common understanding of "money laundering" as the cleansing of dirty money. Additionally, Congress passed a statute criminalizing bulk cash smuggling (31 U.S.C. § 5332) because it didn't believe § 1956 covered the mere smuggling of illicit cash across the border.
  • Rule of Lenity: When a term is susceptible of multiple meanings, as "conceal" is here, the rule of lenity requires the court to adopt the more restrictive meaning.
  • Canon Against Absurdities: The dissent propounds a couple of hypotheticals illustrating the aburd results compelled by the majority's holding. (For example, under the majority's interpretation, Cuellar would not have been guilty of money laundering if he'd simply piled the cash in plain view on the front seat of the car, even though he would still have been trying to transport drug proceeds to Mexico.) The dissent also faults the majority for claiming that there is some difference between concealment and mere concealment, a distinction that the majority doesn't really explain.
  • Case Law: According to the dissent, none of the case law relied upon by the majority actually supports the majority's position. In fact, the majority creates a circuit split on the proper interpretation of "conceal."

The dissent also disagrees with the majority's resolution of the expert testimony issue, for obvious reasons:

[T]he government completely flouted the discovery rules to Cuellar’s detriment but offered no explanation for its action. The majority finds that, because Cuellar elicited self-evident testimony on cross-examination, he had sufficient time to prepare, so no sanction is necessary. This holding creates perverse incentives: incentives for the government to ignore well-established discovery rules because it need not fear sanctions, and incentives for the defendant to hold back from mounting an effective defense so he might have a chance to have the government sanctioned on appeal.
Slip op. at 60.

The dissent concludes by "call[ing] upon the Attorney General to confess error in this case of prosecutorial excess . . . ."

It'll be interesting to see what happens with the inevitable cert petition in this case. How will the Solicitor General respond? And will the Supreme Court agree to consider the case?

Friday, February 02, 2007

Defendant Not Responsible Under § 2D1.1 For Amounts of Drugs That He Didn't Intend OR Wasn't Capable of Delivering, But It's His Burden to Prove That

United States v. Davis, No. 05-10754 (5th Cir. Jan. 31, 2007) (Barksdale, Benavides, Owen)

Pay attention to the "and's" and "or's" in statutory language. Sometimes it makes all the difference in the world, as this case illustrates.

The relevant language here comes from application note 12 to guideline §2D1.1, which provides in pertinent part:
In an offense involving an agreement to sell a controlled substance, the agreed-upon quantity of the controlled substance shall be used to determine the offense level unless the sale is completed and the amount delivered more accurately reflects the scale of the offense. . . . If, however, the defendant establishes that the defendant did not intend to provide or purchase, or was not reasonably capable of providing or purchasing, the agreed-upon quantity of the controlled substance, the court shall exclude from the offense level determination the amount of controlled substance that the defendant establishes that the defendant did not intend to provide or purchase or was not reasonably capable of providing or purchasing.

Slip op. at 5-6 (emphasis in opinion).

Davis pled guilty to one count of distributing crack. The PSR held him responsible for a total of 156.96 grams. Three ounces (about 85 grams) of that quantity consisted of a non-controlled white substance that the DEA seized in a sting operation. Davis agreed to sell that three ounces to an undercover informant, but the DEA intercepted the package before it was actually delivered. The PSR recommended that the three ounces be included in the drug quantity for offense level purposes because Davis intended to "rip off" the informant and, based on past conduct, he was capable of producing three ounces of crack.

Davis objected to the PSR's recommendation, arguing that he never intended to deliver three ounces of crack to the informant. The district court overruled the objection on the ground that it was Davis's burden to show both that he did not intend to deliver the agreed upon quantity and that he was incapable of doing so. The district court determined the applicable guideline range to be 210 to 262 months (33, III), but departed/varied to a sentence of 293 months. Davis appealed the offense level calculation.

The court resolved two issues with respect to application note 12. First, it held under that the plain language of note 12, proof of lack of intent and lack of capability is not required. The former version of note 12 was phrased conjunctively and required proof of both, but since 1995 the note has been phrased disjunctively. So proof of either lack of intent or capability will suffice. Second, the court held that the note's use of the phrase "the defendant establishes" places the burden of production and persuasion on the defendant on this issue. In so doing, the court took the side of the majority of the circuits to have addressed the question. (According to the opinion, one circuit has held that a defendant only bears a burden of production with respect to intent or capability.)

Put together, that means that the district court erred by including the three ounces in the offense level calculation. The PSR's conclusion that Davis intended to "rip off" the informant, coupled with the district court's adoption of the PSR's findings, sufficed to carry Davis's burden on the issue: "This undisputed finding of fact establishes as a matter of law that Davis did not intend to provide the agreed amount of crack cocaine." Slip op. at 9.

The court went on to vacate Davis's sentence and remand for resentencing because it couldn't determine whether the guideline error affected the district court's choice of sentence (due party to the fact that the district court wasn't clear about whether it was departing or varying from the applicable guideline range).

Thursday, February 01, 2007

Kidnapping Under Tenn. Code § 39-13-303 Not Broader Than Generic Kidnapping; It's Therefore a COV Under U.S.S.G. §2L1.2(b)(1)(A)(ii)

United States v. Gonzalez-Ramirez, No. 04-51355 (5th Cir. Jan. 30, 2007) (Jolly, Prado, Owen)

Gonzalez pled guilty to illegal reentry (8 U.S.C. § 1326). He had a prior Tennessee conviction for attempted kidnapping. The district court found that the prior conviction was a "crime of violence" for purposes of U.S.S.G. §2L1.2(b)(1)(A)(ii), and accordingly applied a 16-level enhancement when calculating Gonzalez's offense level. Gonzalez challenged that determination on appeal.

The court applied the familiar Taylor/Shepard categorical approach and held that the entirety of the Tennessee kidnapping statute fits within the generic definition of kidnapping, an enumerated crime of violence under §2L1.2, comment. (n.1(B)(iii)). So how did the court get there?

First, the court rejected (for about the thousandth time) the Government's argument that "if the state statute of conviction is labeled 'kidnapping' or 'attempted kidnapping,' the conviction automatically qualifies as kidnapping within the meaning of the Guidelines commentary." Slip op. at 4. Relying on Taylor, the court observed that state labels are not controlling and that the statute of conviction must instead be compared to a uniform definition of kidnapping.

Next, the court had to figure out which portion of the Tennessee statute underlay Gonzalez's prior conviction. Gonzalez had initially been indicted for aggravated kidnapping under Tenn. Code § 39-13-304(3), (4), but the court could not use that document to identify the relevant statutory provision because Gonzalez was not convicted of that charge. He instead pled guilty to attempted kidnapping under § 39-13-303. However, there was nothing in the record (such as a superseding charging instrument or any other Shepard-sanctioned document) that identified the particular subsection of § 39-13-103 under which Gonzalez was convicted. The court therefore had to consider the entire range of conduct encompassed by § 39-13-303 and determine whether the least culpable conduct prohibited by the statute fit within the generic, contemporary definition of kidnapping.

Having finally gotten to the meat of the issue, the court began with the Model Penal Code, which carves kidnapping into three separate offenses of increasing severity: false imprisonment, felonious restraint, and kidnapping. Gonzalez argued that § 39-13-303 is closer to MPC felonious restraint than MPC kidnapping because MPC kidnapping requires a specified purpose for the restraint whereas the Tennessee statute does not. The court concluded that the Tennessee statute actually falls somewhere in-between MPC felonious restraint and MPC kidnapping, although "closer to the latter" "in terms of the egregiousness of the conduct required for conviction[.]" Slip op. at 14. But the court also pointed out that the MPC isn't the end-all-be-all of generic offense definitions. It therefore went on to compare § 39-13-303 to the kidnapping statutes of other states. Although state statutes vary widely, the court found that most states have rejected a "specified purpose" requirement for kidnapping. The court also concluded that the Tennessee statute is at least as restrictive, if not more so, that most states' kidnapping statutes, insofar as § 39-13-303 "requires the use of force, threat or fraud along with the additional aggravating elements of substantial risk of injury or confinement as a condition of involuntary servitude." Slip op. at 17-18. For that reason, the court held that § 39-13-303 is not broader than the generic, contemporary definition of kidnapping.

The opinion doesn't actually divine the outer boundaries of generic kidnapping, but it does include string cites galore. So if you find yourself needing to compare some other state's kidnapping statute to generic kidnapping, Gonzalez-Ramirez will give you a head start on your research.

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2007 Proposed Amendments to Sentencing Guidelines

The Sentencing Commission has posted a notice of this year's crop of proposed amendments to the Sentencing Guidelines. You can find the official Federal Register notice here, and an unofficial reader-friendly version here. Comments are due by March 30, 2007.