Monday, March 26, 2007

Fifth Circuit Erroneously Holds That Unauthorized Use of a Vehicle (aka Joyriding) Is Still an Aggravated Felony post-Leocal

Brieva-Perez v. Gonzales, No. 05-60639 (5th Cir. Mar. 19, 2007) (Jones, Wiener, Barksdale)

Anyone who has dealt with the definition of "aggravated felony" found in 8 U.S.C. § 1101(a)(43) knows just how ridiculously overbroad it is. The problem is compounded when courts misinterpret the definition and find things to be aggravated felonies which aren't. One of the more notable examples is the Fifth Circuit's opinion in United States v. Galvan-Rodriguez, which held that the Texas offense of unauthorized use of a vehicle (Penal Code § 31.07), which consists of "intentionally or knowingly operat[ing] another's boat, airplace, or motor-propelled vehicle without the effective consent of the owner[,]" constitutes a "crime of violence" for aggravated felony purposes. Unfortunately, Brieva-Perez perpetuates Galvan-Rodriguez's erroneous construction of the aggravated felony definition with regard to UUV, notwithstanding the reasoning of a recent Supreme Court decision that would appear to compel the opposite result.

Galvan-Rodriguez held that UUV is an aggravated felony under 8 U.S.C. § 1101(a)(43)(F), which includes "crimes of violence" as that term is defined in 18 U.S.C. § 16. 169 F.3d 217, 219-20 (5th Cir. 1999). 18 U.S.C. § 16(b), in turn, defines the term "crime of violence" to include felony offenses that by [their] nature, involve[] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." Galvan-Rodriguez concluded that UUV satisfies the definition in § 16(b) because of the potential for the offense to result in damage to property or injury to people:
Just as burglary of a vehicle involves a substantial risk that property might be damaged or destroyed in the commission of the offense, the unauthorized use of a vehicle likewise carries a substantial risk that the vehicle might be broken into, "stripped," or vandalized, or that it might become involved in an accident, resulting not only in damage to the vehicle and other property, but in personal injuries to innocent victims as well.

Id. at 219 (citation omitted).

The Supreme Court later rejected this result-oriented interpretation of § 16(b) in Leocal v. Ashcroft, 543 U.S. 1 (2004). Leocal involved the question whether the Florida offense of DUI causing bodily injury (which "does not require proof of any particular mental state") constitutes a crime of violence under 18 U.S.C. § 16. The Court concluded that it does not, holding that
§ 16(b) plainly does not encompass all offenses which create a "substantial risk" that injury will result from a person’s conduct. The "substantial risk in § 16(b) relates to the use of force, not to the possible effect of the person’s conduct. The risk that an accident may occur when an individual drives while intoxicated is simply not the same think as the risk that the individual may "use" physical force against another in committing the DUI offense.

543 U.S. 1, 10 n.7 (2004) (citations omitted).

Because Leocal expressly rejected the result-oriented, risk-of-harm reasoning that was critical to Galvan-Rodriguez's holding, it would sure seem that UUV should no longer qualify as an aggravated felony.

Nevertheless, in a largely conclusory analysis, Brieva-Perez holds that "Leocal is fully consistent with this court's construction of the Texas UUV Statute in Galvan-Rodriguez." Slip op. at 7. Brieva-Perez reasoned that Leocal's interpretation of § 16(b) as "requir[ing] a substantial risk of intentional use of force . . . does not mean that a statute must have an element of intent to cause harm to another's person or property to be considered a crime of violence under § 16." Id.

It's true that § 16(b) doesn't require an intent to harm, but that's beside the point. The flaw of Galvan-Rodriguez is that it focuses on results rather than acts, and under Leocal the question is whether the offense entails a substantial risk of a forceful act, not whether there's a risk of a forceful result. (Not to mention the fact that even if the harms identified in Galvan-Rodriguez necessarily require the intentional use of physical force, the potential for such force is more speculative than substantial.) Hopefully Brieva-Perez won't be the last word on this issue.

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Friday, March 23, 2007

Parolee's 4th Amendment Rights As Overnight Guest In Another's Home Are Limited to Those He Could Assert In His Own Home

United States v. Taylor, No. 06-60136 (5th Cir. Mar. 15, 2007) (Reavley, Jolly, Benavides)

Taylor was released from prison in Mississippi on Earned Release Supervision (evidently a form of parole). At some point while Taylor was still on ERS, his supervision officer informed the Mississippi Department of Correction "that a complaint had been made against Taylor for malicious mischief, that Taylor was reported to have a handgun [recently purchased by his girlfriend], and that Taylor had failed to report to the county field office as directed." Various LEO's, armed with a misdemeanor arrest warrant for the malicious mischief charge, went looking for Taylor at a woman's apartment. After receiving no response to their knocking, the officers burst into the apartment and found Taylor hiding in a bedroom. They also searched for and found the pistol that they thought Taylor had.

Taylor was charged with being a felon in possession of a firearm. He moved to suppress the gun, arguing that 1) he was an overnight guest in the apartment when the police came looking for him, and so had a privacy interest in the apartment sufficient to protect him from unreasonable searches and seizures under Minnesota v. Olson, 2) the misdemeanor arrest warrant could not support a search of the apartment, and 3) the search for the gun, which was found in a bureau in another bedroom, was not a valid search incident to arrest.

The court of appeals affirmed the district court's denial of the motion, in a two-part holding. First, the court held that "under Olson, [Taylor's] Fourth Amendment rights as a guest are limited to those that he could assert with respect to his own residence." Slip op. at 5. Second, the court held that Taylor's privacy interest in his own home fell under the standard of United States v. Knights, which permitted a warrantless search of a probationer's home based on reasonable suspicion.
The question therefore, is whether there was a sufficiently high probability that criminal conduct was occurring. In this case, unlike in Knights, the police had a misdemeanor arrest warrant at the time they entered the house. They also had evidence suggesting that Taylor was in possession of a firearm and that he was in violation of the conditions of his parole. This evidence is sufficient to support a determination that the police had reasonable suspicion that Taylor may have been engaged in criminal conduct.

Slip op. at 7. The search of Taylor's girlfriend's apartment, in which he had no greater privacy interest than in his own home, therefore did not violate his Fourth Amendment right to be free from unreasonable searches and seizures.

There are a couple of issues the court didn't address. First, the court opined that the Supreme Court's recent decision in Samson v. California may have eliminated Knight's reasonable suspicion requirement as to parolees, allowing suspicionless searches of parolee's residences. But the court declined to consider this distinction between parolees and probationers because the officers had a reasonable suspicion here. Second, the court declined to decide whether the search violated the Fourth Amendment rights of Taylor's girlfriend, because "Taylor cannot . . . reasonably assert that his Fourth Amendment rights have been violated by this intrusion." Slip op. at 7. Nevertheless, the case does have troubling implications for the Fourth Amendment rights of those who share a home with a probationer or parolee.


Thursday, March 22, 2007

Fives Join Crack Chorus: Disagreement with 100:1 Powder-to-Crack Ratio Is Not a Valid Basis for Non-Guidelines Sentence

United States v. Leatch, No. 06-10526 (5th Cir. Mar. 22, 2007) (Jones, Jolly, Stewart) (per curiam)

Leatch was convicted of possession of at least 50 grams of crack with intent to distribute, and with conspiracy to do so. On the first go-round, the district court imposed a sentence of 324 months, which was the low end of a guideline range calculated using the 100-to-1 powder-to-crack drug quantity ratio. However, on a Booker remand the district court imposed a lower sentence after calculating Leatch's guideline range using the 20-to-1 ratio recommended in the Sentencing Commission's 2002 report to Congress on "Cocaine and Federal Sentencing Policy":
I’m varying in this case because I think the 100-to-1 disparity between powder cocaine and crack cocaine is inappropriate. I’ve followed with great interest the thoughtful district court decisions that address that. I am not going to attempt to restate on my own the various reasons for that. But for the reasons reflected in those decisions and also reflected in the Sentencing Commission’s determination that the 100-to-1 ratio was inappropriate . . . . [a]ccordingly, I’m going to follow what I understand to be the Sentencing Commission’s recommendation and use a 20-to-1 ratio.

Slip op. at 2. The court sentenced Leatch at the bottom of the resulting 262- to 327-month range, and the Government appealed.

The court of appeals, with little analysis of its own, decided to follow the lead of the other circuits which have held "that a sentencing court may not deviate from the 100:1 crack-powder ratio based solely upon its belief that the policies underpinning that sentencing regime are misguided or unfair." Slip op. at 3. The court reiterated, as it had in Tzep-Mejia, that non-Guideline sentences must be based on "individualized, case-specific factors" identified in 3553(a), rather than policy disagreements with the Guidelines. It therefore remanded the case for resentencing.

This decision isn't all that surprising in light of the policy/case-specific-facts dichotomy adopted by Tzep-Mejia, but it's still disappointing, for obvious reasons (how is this different from mandatory guidelines? and what about the fact that the Sentencing Commission itself has repudiated the 100:1 ratio?). For more commentary on Leatch and the powder-crack disparity (including some head-scratching as to why the Fifth Circuit didn't wait to see how Rita and Claiborne turn out before deciding Leatch), see Professor Berman's post here. (This guy's also been working on this issue a lot lately, so he might have some commentary as well, maybe even in the form of a haiku.)


Monday, March 19, 2007

Entrapment Burdens, 924(c) Carrying-In-Relation-To Sufficiency, and Chain of Custody

United States v. Smith, No. 06-40809 (5th Cir. Mar. 9, 2007) (Davis, Stewart, Godbey)

Smith was convicted of possession of methamphetamine with intent to distribute, and carrying a firearm during and in relation to a drug trafficking crime. He raised several issues on appeal, all of which the court rejected.

Smith attempted to pursue an entrapment defense at trial. In support of that defense, he proffered the testimony of two witnesses who would apparently have described some of the government's investigatory tactics in the case (although the exact nature of the proffered testimony is not clear from the opinion). The district court excluded the testimony on relevancy grounds, and refused Smith's requested jury instruction on entrapment.

The court of appeals found no abuse of discretion on either point, because Smith never made a prima facie showing of entrapment. To properly raise an entrapment defense, the defendant bears the burden of "showing that he lacked the predisposition to commit the crime . . . ." "Once this showing is made, 'the burden shifts to the government to prove beyond a reasonable doubt that the defendant was disposed to commit the offense prior to first being approached by government agents.'" Slip op. at 3 (citation omitted). The proffered testimony went only to the government's conduct, rather than Smith's predisposition, so he wasn't entitled to present the testimony or to have the jury instructed on entrapment.

Sufficiency on the 924(c) Count
Smith's 924(c) convcition for using or carrying a firearm during and in relation to a drug trafficking offense was based on a gun that was underneath the passenger seat of the car Smith was driving at the time of the drug transaction that formed the basis of the PWID count. "Smith [argued] that the weapon must have been both transported in a vehicle and readily accessible in order for 'carry' liability to be sufficiently proven." Slip op. at 4.

The court disagreed, holding that carry liability can be based on either transportation or accessibility during and in relation to the drug crime. It went on to conclude that even if accessibility was required, the gun was at least as accessible as it was in other cases in which the court has sustained carry liability. Finally, the court held that Smith carried the weapon "in relation to" the drug offense because 1) "[t]he gun at issue here obviously could have been used for protection if Smith felt it necessary[,]" and 2) the CI testified that he'd seen Smith carry the gun during other drug transactions, "indicating that Smith regularly carried a firearm for protection." Slip op. at 7.

Chain of Custody
Smith argued that the district court erred by admitting a DEA lab report without first requiring the government to establish the chain of custody (i.e., that the substance tested was the same one seized from his car).

The court found no error in the admission of the evidence. It pointed out that when a defendant challenges the authenticity of the government's evidence, all that the government must do is present prima facie evidence of authenticiy. Once the government does that, it's in the jury's hands. And "[a]ny break in the chain of custody goes to the weight of the evidence, not it's admissibility." Slip op. at 7. Because the government presented enough evidence to make the preliminary showing of authenticity (testimony of officer who seized drugs, officer who took drugs to chemist, and the chemist), the district court did not abuse its discretion in admitting the drugs or the lab report.

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Prosecutor's Use of Defendant's Post-Arrest, Pre-Miranda Silence as Substantive Evidence in Case-In-Chief Not Plain Error

United States v. Salinas, No. 05-10964 (5th Cir. Mar. 5, 2007) (Garwood, Dennis, Owen)

From the "damned-if-you-do, damned-if-you-don't" files:

A police officer pulled over Salinas for driving a vehicle with a defective tail light, and asked for his license and proof of insurance. Salinas gave the officer his driver's license, but "stated that he did not have proof of insurance because he was in the process of purchasing the vehicle." The officer arrested Salinas for not having proof of insurance. Other officers on the scene searched the vehicle and found two loaded handguns and roughly $3,500 in cash. A search of Salinas's jacket at the police station turned up another $2,168 in cash. The arresting officer never Mirandized Salinas, and Salinas evidently kept silent in the immediate aftermath of his arrest.

Salinas was eventually charged with being a felon in possession of a firearm. At trial, the prosecutor made three different references to Salinas's post-arrest silence during its case-in-chief:

First, during the prosecution’s opening argument, the prosecutor stated, “At no time, at no time, the evidence is going to show, that the defendant denied ownership of the money or guns.” Defense counsel immediately objected to that remark. The court sustained the objection and reminded the jury that it was to render its verdict only on the basis of the evidence presented, not on the arguments of counsel.

Second, during the government’s examination of Officer Fulcher, who arrested Salinas and who was with Salinas at the Carrollton police station when the firearms were discovered in the Yukon, the prosecutor asked Officer Fulcher “how, if at all” Salinas reacted when he heard that firearms had been found in the Yukon. Defense counsel objected before the witness could answer, and the court sustained the objection.

Third, later in its direct examination of Officer Fulcher, the prosecution asked Officer Fulcher whether Salinas made any statements after his arrest. Officer Fulcher answered, “No, sir.” Defense counsel again objected, and the court sustained the objection. Defense counsel also requested that the jury be instructed to disregard the statement. The trial judge stated that he would not then instruct the jury, but would consider an instruction at a later time. Defense counsel apparently never reiterated his request for an instruction. In its charge to the jury, however, the court instructed the jury that the statements and arguments of the lawyers could not be considered as evidence and that the jury was to disregard any question to which the court had sustained an objection.

Slip op. at 7-8. The jury convicted Salinas, and the district court sentenced him to 57 months' imprisonment.

On appeal, Salinas challenged the prosecution's use of his post-arrest silence. The court reviewed for plain error because, although Salinas objected each time the prosecution referred to his post-arrest silence, he never took issue with the way the district court handled the objections and never asked for a mistrial. The court went on to consider two possible rights violations: due process and the privilege against self-incrimination.

The court held that there was no due process violation in the prosecutor's use of Salinas' post-arrest, pre-Miranda silence. Because there's no Supreme Court due process precedent involving the precise scenario here, the court extrapolated from the cases involving the use of pre- and post-Miranda silence for impeachment purposes. Doyle v. Ohio held that the latter is generally verboten because the Miranda warnings implicitly assure a defendant that his silence will not be used against him. On the other hand, Fletcher v. Weir and Jenkins v. Anderson held that use of pre- or post-arrest, pre-Miranda silence doesn't implicate the same fundamental fairness concerns that motivated the Court's holding in Doyle because the defendant's silence hasn't been induced by any action on the part of the government. So according to the court, "Fletcher's emphasis on the affirmative assurances of Miranda warnings [make it] clear that, irrespective of whether the defendant testifies at trial, the rationale of Doyle applies only to post-Miranda silence." Slip op. at 15.

Plain error review allowed the court to avoid deciding the self-incrimination issue one way or the other. There's no Fifth Circuit precedent directly on point, and there's a longstanding split of authority among the circuits that have addressed the question. Consequently, "[b]ecause this circuit’s law remains unsettled and the other federal circuits have reached divergent conclusions on this issue, even assuming that the prosecutor’s comments were improper, Salinas cannot satisfy the second prong of the plain error test—that the error be clear under existing law." Slip op. at 19.

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Tuesday, March 13, 2007

Attention CJA Panel Attorneys: Law & Technology Workshop in Dallas, Texas, April 19-21, 2007

From the website of the Federal Public Defender for the Western District of Texas:

Law & Technology Workshop for CJA. The Office of Defender Services Training Branch (ODSTB) is sponsoring an upcoming and free training program that will be taking place in our region. This event is offered to panel lawyers as part of an on-going effort by ODSTB to provide continuing legal education which is specifically designed to assist the federal criminal defense practitioner. These seminars continue to receive positive reviews and are considered a valuable tool for all private attorneys who accept federal CJA appointments. The Law & Technology Workshop will be in Dallas, Texas, April 19-21, 2007. Registration form here.

And as always, you can find out about additional training opportunities here at the ODSTB website.

Monday, March 12, 2007

TX Conviction for Posession of Deadly Weapon In Penal Institution Is COV Under U.S.S.G. §4B1.2(a)(2)

United States v. Rodriguez-Jaimes, No. 06-40281 (5th Cir. Mar. 9, 2007) (Davis, Dennis, Prado)

Rodriguez was convicted of one count of conspiracy to PWID cocaine and cocaine base, and one during-and-in-relation-to 924(c) gun count. The district court sentenced him as a career offender based, in part, on his prior Texas conviction for possession of a deadly weapon in a penal institution (Tex. Penal Code § 46.10). Rodriguez challenged that determination on appeal, and also argued that the findings necessary for the career offender enhancement violated his Sixth Amendment right to trial by jury as elucidated in Booker.

The Government conceded that a conviction under § 46.10 does not qualify as a crime of violence under U.S.S.G. §4B1.2(a)(1) because it lacks an element of physical force. However, it argued that the offense "otherwise involve[d] conduct that presents a serious potential risk of physical injury to another[,]" making it a crime of violence under §4B1.2(a)(2).

The court agreed. Relying on United States v. Robles-Rodriguez, 204 F. App'x. 504 (5th Cir. 2006), the court held that "knowing possession of a handgun in violation of a Texas statute prohibiting the possession of a deadly weapon in a penal institution is a crime of violence under U.S.S.G. § 4B1.2(a)(2)." Slip op. at 9. The court rejected Rodriguez's argument that his prior offense was similar to the offense of being a felon in possession of a firearm outside of prison, which is not a crime of violence under §4B1.2(a). It concluded that the fact that "'the posession offense occurs in prison, rather than in the outside world[, . . .] creates a perpetual risk of injury and precludes any legitimate reasons that a non-incarcerated individual could have for possessing a weapon (e.g., recreation).'" Slip op. at 8 (quoting Robles-Rodriguez).

The court also rejected Rodriguez's Sixth Amendment challenge to the career offender enhancement findings, due to the Fifth Circuit's prior panel decision in United States v. Guevara, 408 F.3d 252 (5th Cir. 2005) (the career offender determination does not offend the Sixth Amendment because it involves a question of law rather than fact).

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Thursday, March 08, 2007

Various Facts Allowed Cops to Reasonably Believe Suspect Had Authority to Consent to Search of Storage Shed, Even Though He Denied Renting It

United States v. Dilley, No. 05-30869 (5th Cir. Mar. 2, 2007) (Smith, Benavides, Prado)

Officers suspected Dilley of being involved in drugs. They got a tip from a CI that Dilley had a storage shed, so they set up surveillance on Dilley. The surveillance led to a car chase, which ended when Dilley drove into a field and got stuck in the mud. After handcuffing Dilley, the officers asked him if he rented a storage shed, which he denied. The officers then confronted him with a receipt from the rental facility that they found in his wallet. Dilley said, "I don't have a unit over there. You can search any of them over there. You are not going to find anything." Slip op. at 2. Officers proceeded to search one of the storage units, using keys found in Dilley's car, and found "a gun, ammunition, plastic bags, and a personalized license plate bearing Dilley's name." Id.

Dilley moved to suppress the evidence from the shed, arguing that his consent to search was invalid. The district court denied the motion, and Dilley was convicted of possession of meth with intent to distribute, conspiracy to PWID meth, and possession of a gun.

On appeal, "Dilley [did] not primarily argue that he did not consent or that his consent was not voluntary. Instead, his claim [went] to authority: When he denied ownership of the unit, the police could not have thought he had the authority to consent to a search." Slip op. at 3. The court disagreed:
If a reasonable officer could believe that Dilley had authority to consent to a search of the storage unit, the search was reasonable under the Fourth Amendment. At the time he consented, police had received a tip that he maintained storage unit number sixteen, they had observed him driving into the storage facility, and they had found a receipt and keys for the unit in his possession. With this evidence, a reasonable officer could believe that Dilley had authority to consent to a search, despite his bald
denial of ownership.

Slip op. at 4. The court acknowledged that a person does not lose his Fourth Amendment rights simply by refusing to answer incriminating questions and by denying a privacy interest in the place searched. But that's not what happened here, according to the court: "Dilley maintained the expectation of privacy in his storage unit even after denying his ownership, then he exercised his property rights by consenting to a search of the location." Id.

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Tuesday, March 06, 2007

Officers May Open Car Door to Conduct Visual Inspection of Passenger Who Claims To Be Unable to Exit Car Because of Physical Condition

United States v. Meredith, No. 05-31071 (5th Cir. Feb. 26, 2007) (Jones, Wiener, Barksdale)

Officers on "proactive patrol" (no doubt a creature of Whren) stop a car for traffic violations (no tail lights and improper lane change). They order the driver and passenger out of the car. The driver follows the order, but the passenger explains that he can't do so because he's a paraplegic. While one officer frisks the driver at the back of the car, the other officer opens the passenger door and sees a handgun-shaped bulge in the passenger's pants. He pats down the passenger and finds a loaded .357 revolver. Officers run a background check and learn that the passenger is a convicted felon.

The passenger was Henry Meredith. He was subsequently charged with being a felon in possession of a firearm. He moved to suppress the revolver, the ammo, and statements he made at the time, arguing that the officer lacked a reasonable suspicion to open the passenger door and pat him down. The district court, sans evidentiary hearing, denied the motion, concluding that the totality of circumstances created a reasonable suspicion that Meridith was armed and dangerous. Meredith pled guilty (conditonally), and appealed.

The court pointed out that Pennsylvania v. Mimms and Maryland v. Wilson allow officers conducting a traffic stop to order the driver and passengers out of the car. If there is a reasonable suspicion that one of the vehicle occupants is armed and dangerous, an officer may frisk that person for weapons a la Terry. The court further acknowledged that opening the car door is a search, requiring reasoanable suspicion. So that means that the question here is whether the officer had the reasonable suspicion necessary to open the passenger door and take a gander at Meridith, right?

Wrong. Instead of deciding that question, the court chose to extend Mimms and Wilson thusly: "We conclude that the most reasonable way to serve the officer-safety purpose of Mimms and Wilson under circumstances like these is to extend the Court’s reasoning to include a minimally necessary visual inspection of a non-exiting occupant while he is still seated in the car." Slip op. at 9. The court offered some additional justification for this result apart from the officer-safety rationale. First, it "ensur[es] equal treatment of handicapped and non-handicapped occupants alike." Second, it's "the only practical way for an officer to confirm an occupant’s claimed handicap or expose his pretext." [Speaking of pretexts, how about this traffic stop?] Finally, "allowing an officer to open the car door and view a handicapped occupant is less intrusive than other options, such as (1) ordering the handicapped occupant to crawl out of the car or exit as best he can; (2) detaining all occupants until a warrant could be obtained; or (3) detaining all occupants until a wheelchair or other device to enable the disabled occupant’s exit could be obtained." Id. at 9-11.


Monday, March 05, 2007

Border Patrol's Cameras and Ground Sensors "Close to Useless," Government Audits Conclude

Via Bender's Immigration Daily we learn that The Denver Post is doing a series of articles on the government's enforcement efforts on the U.S.-Mexico border. Tucked away in one of those articles is some information that might be useful to anyone trying a case or litigating a suppression motion that involves evidence from the Border Patrol's cameras and ground sensors. As it turns out, the high-tech isn't highly reliable. Some excerpts:

The cameras like those at Del Rio were erected at dozens of places on both borders by a company called International Microwave Corp., part of a $257 million contract awarded in 1999 and completed over several years.

In two audits, government monitors found many of the cameras weren't installed or were replaced with cheaper, less functional versions than what the contract specified.

The failures spawned a criminal investigation and constituted what one auditor for the General Services Administration called "a major program gone awry." Even when they were in place, the cameras froze in winter and overheated in summer, the GSA audit found.

* * *

The ground sensors were less effective still.

A second audit, this one by the Homeland Security Department's inspector general, found that the sensors were often shorted out by insects or moisture. When they worked, 90 percent of alerts were caused by something other than illegal immigrants, and the deployment of agents to check on hits wasted more time than it saved.

The audit found the agency's 11,000 sensors accounted for less than 1 percent of all apprehensions at the border. Together, government investigators concluded that the $429 million investment in sensors and cameras was close to useless.

Something to keep in mind if you've got a case involving a roving Border Patrol stop based in part on a sensor hit, for example.

Thursday, March 01, 2007

Fives Take Sides On Rule 32(h) Circuit Split; Hold Notice Only Required for Sua Sponte Departures, not for Variances

United States v. Mejia-Huerta, No. 05-11391 (5th Cir. Feb. 28, 2007) (Jones, Wiener, Barksdale)

In Burns v. United States, the Supreme Court held that a court may not upwardly depart from the applicable guideline range on a ground that has not been identified in the presentence report or in a presentence submission by the Government, unless the court first gives the parties notice that it is contemplating a sua sponte departure and specifically idenfies the grounds therefor. That rule was later codified, and is found in its current form in Federal Rule of Criminal Procedure 32(h). The Rule reads:
Before the court may depart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party's prehearing submission, the court must give the parties reasonable notice that it is contemplating such a departure. The notice must specify any ground on which the court is contemplating a departure.

But does Rule 32(h) survive Booker? A well-established circuit split has developed on this question, and Mejia-Huerta joins the ranks of the naysayers. Relying on the Fifth Circuit's distinction between departures (which count as Guidelines sentences) and variances (which don't), Mejia-Huerta holds that Rule 32(h) applies only the former.

According to the court "the plain language of Rule 32(h) limits its application to departures[,]" so it "applies to departures only and not to variances from the Guidelines." Slip op. at 19. The court buttresses this hyper-literal reading of Rule 32(h) with the unconvincing claim that the rationale of Burns falls by the wayside when it comes to variances:

In addition, as Booker has rendered the Guidelines purely advisory, the concerns that precipitated the Court’s decision in Burns are no longer viable. Sentencing post-Booker is a heavily discretionary exercise. Sentencing courts need only consider the Guidelines as informative and must consult the full host of factors set forth in § 3553(a) before rendering a reasonable non-Guidelines sentence. These factors are known(or knowable) by the parties prior to sentencing, thus putting the litigants on notice that a sentencing court has discretion to consider any of these factors. This knowledge eliminates the element of unfair surprise, the concern that defense counsel will waste time with a pre-sentencing filing, the possibility that defense counsel will unwittingly provide the sentencing court with a grounds for departure, and the worry of possibly undermining the adversarial process, that permeate Burns, thus negating its application to non-Guidelines sentences.

Slip op. at 19-20.

The obvious flaw in the court's reasoning is that all of the Burns concerns are magnified in a world of non-mandatory guidelines. That's because the universe of factors which can justify a non-Guideline sentence under § 3553(a) dwarfs the restrictive Guidelines departure scheme. (Just think of all the § 3553(a) factors that are either discouraged or outright prohibited as bases for departure.) Broader sentencing discretion militates in favor of more advance notice, not less.

Some miscellaneous observations/gripes:
  • Part of the fault lies with Booker's so-called "remedial" holding, which apparently didn't anticipate all of the possible problems (like this one) created by excising a central feature of a complex body of sentencing law.
  • Also frustrating is the fact that the actual patterns of reasonableness review are far more lopsided than Mejia-Huerta's claims about the breadth of post-Booker sentencing discretion would suggest.
  • According to Mejia-Huerta, this brings the circuit split on this question to an even 4-4. I think the split is more complicated than the court makes it out to be, because I think at least one of the circuits in the "no" camp has held that Booker rendered the concept of departures meaningless. That would make for at least a 4-3-1 split on this issue. And there's no telling whether Rita and Claiborne will shed some light on this, or whether this will remain yet another conflict in need of resolution by the Supreme Court (or the Advisory Committee on the Rules).