Thursday, June 28, 2007

If Defendant Requests Notice of Appeal, It's Ineffective Assistance Not to File It, Even if Defendant Waived Appeal

United States v. Tapp, No. 05-30222 (5th Cir. June 28, 2007) (Reavley, Garza, Dennis)

In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Supreme Court held that the failure to file a requested [notice of appeal] is per se ineffective assistance of counsel, with or without a showing that the appeal would have merit. Id. at 483-86. When an attorney fails to file a NOA when requested to do so, then, the defendant need not demonstrate that he would have been able to raise meritorious issues on appeal. Id. at 477-78. The Court indicated that it would be unfair to require a litigant to argue in a § 2255 proceeding that his appeal would have had merit. Id. at 486. Instead, the defendant must only demonstrate that there is a reasonable probability that, but for counsel’s failure, he would have timely appealed. Id. at 484, 486.

But what if the defendant waived appeal? Is it still ineffective assistance to fail to file a notice of appeal upon the defendant's request? The Fifth Circuit hadn't yet addressed this in a published opinion, but it does so here:

Today, we join our sister circuits in holding that the rule of Flores-Ortega applies even where a defendant has waived his right to direct appeal and collateral review. In such circumstances, if the petitioner is able to demonstrate by a preponderance of the evidence that he requested an appeal, prejudice will be presumed and the petitioner will be entitled to file an out-of-time appeal, regardless of whether he is able to identify any arguably meritorious grounds for appeal that would not be precluded by the terms of his appeal waiver. Because the record in the instant case does not conclusively show whether Tapp requested that his counsel file an appeal, we vacate the district court’s judgment denying Tapp’s § 2255 petition and remand for an evidentiary hearing on this issue.


Wednesday, June 27, 2007

Chief Justice Roberts to Review Supreme Court Term This Saturday Live on C-Span

It's that time of year again, when you can't turn on the TV or open the newspaper without finding a review of the past Supreme Court term. This time around you can get it straight from the horse's mouth. As the Wall Street Journal Law Blog reports,
[Chief Justice Roberts] will offer his own take, broadcast live on Saturday. Tune in to C-Span to see John Roberts review the major decisions of October Term, 2006, as it’s formally known. C-Span will air the chief justice’s remarks from the Fourth Circuit Judicial Conference at 9:30 a.m. EST, followed by a panel of guests offering their commentary. Pundits set to appear include Duke Law’s Walter Dellinger and Akin Gump’s Tom Goldstein.
(Link via How Appealing.)

To Be Generic Burglary, the Entry or Remaining-In Must Be Unlawful, and Intent to Commit Other Crime Must Exist at Time of Entry or Remaining-In

United States v. Herrera-Montes, No. 06-41426 (5th Cir. June 25, 2007) (Higginbotham, Davis, Wiener)

United States v. Ortega-Gonzaga, No. 06-40493 (5th Cir. June 25, 2007) (Higginbotham, Davis, Wiener)

You're getting a two-for-one post on these opinions because they cover the same basic ground and cite each other in the process (thereby forming something of a jurisprudential Möbius strip). The issue in both cases was whether a prior state conviction qualified as generic "burglary of a dwelling" for purposes of the 16-level crime of violence enhancement in U.S.S.G. §2L1.2(b)(1)(A)(ii). Because there was no dispute that the prior offenses involved structures that would constitute "dwellings," the focus was on the "burglary" half of "burglary of a dwelling." The court held that definition of generic burglary divined in Taylor v. United States controls that question, and that the statutes at issue in these cases were broader than Taylor burglary.

Let's start with Ortega-Gonzaga. The defendant had a prior conviction for burglary under Cal. Penal Code § 459, which prohibits entering a building with the intent to commit larceny or any other felony. Section 459 does not require that the entry be unlawful or unprivileged. The court held:
Because we see no reason to create a separate, parallel federal common-law definition for “burglary,” Taylor’s definition of “burglary” controls when defining the “burglary” part of “burglary of a dwelling” under the Guidelines.

At that point, the answer to the question was simple. The Taylor burglary definition requires an "unlawful or unprivileged entry into, or remaining in" the structure. Section 459 does not, so it's not generic burglary. The court helpfully provided a couple of examples to illustrate the point:
For example, a cable repairman may enter a house with intent to rape, but because he enters lawfully and with privilege, there is no “burglary.” Likewise, a shoplifter who lawfully enters a store with the intent to steal may later commit theft, but not burglary.

The court also notes that the "result avoids a split with the Ninth Circuit, which has held that Cal. Penal Code § 459 does not proscribe 'burglary of a dwelling' because it does not require proof that the entry be 'unlawful or unprivileged.'"

Moving on to Herrera-Montes . . . Herrera had a prior Tennessee conviction for aggravated battery. Tennessee's burglary definition contains four alternative methods of committing burglary. Herrera's conviction was under Tenn. Code Ann. § 39-14-402(a)(3), which provides that "[a] person commits burglary who, without the effective consent of the property owner[,] . . . [e]nters a building and commits or attempts to commit a felony, theft, or assault[.]" The plain text of (a)(3), as Tennessee courts have recognized, does not require that the perptrator intend to commit the other offense at the time of the entry. Generic burglary? Nope:
Taylor requires that the defendant intend to commit a crime at the time of unlawful entry or remaining in, as do the Model Penal Code § 221.1 and Blacks' Law Dictionary 197-98 (6th ed. 1990). Consequently, under the categorical approach, Herrera's prior conviction was not “burglary of a dwelling,” thus not a crime of violence, because his statute of conviction did not require such intent. For example, teenagers who unlawfully enter a house only to party, and only later decide to commit a crime, are not common burglars.

As the court notes, this holding isn't limited to the Tennesee statute. Texas has a nearly identical enter-then-commit-crime provision in its burglary definition (Tex. Penal Code § 30.02(a)(3)), so the holding in Herrera-Montez would apply with equal force to anyone convicted under that provision (or in any situation where Taylor-Shepard-sanctioned documents can't eliminate the possbility that the conviction could have rested on § 30.02(a)(3)).

Also note that these cases aren't limited to just the §2L1.2 COV definition. It's clear from the reasoning of Ortega-Gonzaga that the Taylor federal common-law definition of "burglary" applies to other statutes and guidelines that use the term "burglary" or "burglary . . . ." For example, the aggravated felony definition includes "burglary" offenses in § 1101(a)(43)(G). Also, the COV definition in guideline §4B1.2(a) (which applies to career offender and ACCA enhancements, among other guideline provisions) includes "burglary of a dwelling." The Taylor definition should apply to those provisions, as well.

Finally, don't assume that Cal. Penal Code § 459 and the Tennessee and Texas burglary definitions are the only ones that are broader than Taylor burglary. If you've got a client with a prior burglary conviction that might trigger a statutory or guideline enhancement, take a close look at the state statute. For example, some states have "breaking and entering" offenses that may look like burglary at first glace, but may only prohibit unprivileged entries without any intent to commit some other crime.

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Tuesday, June 26, 2007

Proposed Amendments to Fifth Circuit Local Rules

The clerk's office has posted this notice of proposed amendments to the Fifth Circuit local rules. The amendments would:
  • Eliminate portions of Local Rule 28 that impose requirements beyond those contained in FRAP 28 (pertaining to the "Summary of Argument," "Statement of Jurisdiction," and "Standard of Review" sections of briefs).
  • Require appellant's counsel to file an electronic copy of the record exceprts, in addition to the paper copy.
  • Permit electronic copies of briefs and record excepts to be filed on a "'CD,' in addition to a 'computer diskette' given the changing nature of technology."
  • Lower the maximum taxable rate for copies of briefs, etc., under Local Rule 39.1.
The notice also advises that "[t]he court is . . . considering proposed amendments to 5th CIR. R. 27.3, concerning Emergency Motions. However, a final version has not yet been approved. If and when it is, a separate notice and opportunity for public comment will be distributed."

Written comments, if you wish to submit any, are due by August 10th.

Monday, June 25, 2007

Defense's Failure to Subpoena Witness Or to Ask Court to Order Her Back for Second Day of Trial Was Not Diligent Effort to Secure Her Presence

United States v. Hickerson, No. 05-20888 (5th Cir. June 19, 2007) (Smith, Barksdale, Dennis)

This is a fairly brief opinion rejecting three arguments that Hickerson raised on appeal from his conviction of two counts of being a felon in possession of a firearm.

First, the court held that the district court did not abuse its discretion in refusing to grant an additional defense request for a continuance to locate a witness on the second day of trial, after the defense had already failed to do so during two other continuances that day. Specifically, the defense failed to demonstrate due diligence in obtaining the witness, as required by the first of the four conjunctive Olaniye-Oke factors. Defense counsel had produced the witness at a suppression hearing on the first day of trial, had spoken to her that night, and had tried unsucessfully to contact her by telephone eight or nine times on the morning the defense presented its case. But because the defense did not subpoena her, and did not ask the district court to order her to return for the second day of trial after she finished testifying at the suppression hearing on the first day, the defense failed to exercise due diligence to obtain her presence.

Second, Hickerson argued that the district court erred by refusing to sever the two counts, which arose out of entirely separate incidents. Hickerson presented witnesses as to the first count, but was unable to do so as to the second count (as recounted above). According to Hickerson, "his defense as to the first count was prejudiced because the second count was not rebutted." The court found no abuse of discretion because the district court instructed the jury to consider the counts separately, "[p]rejudice from a failure to sever counts can be cured by proper jury instructions, and juries are generally presumed to follow their instructions."

Third, Hickerson argued, solely for purposes of preserving it for further review, that his § 924(e) enhancement was unconstitutional in light of Apprendi because the jury did not find his prior convictions and he did not admit them. This argument is foreclosed by Fifth Circuit precedent.

Delay While Court Considered Co-Defendan'ts Guilty Plea, and While Severance Motion Was Pending, Did Not Toll Speedy Trial Act Deadline

United States v. Stephens, Nos. 04-30185, 05-30668 (5th Cir. June 14, 2007) (King, Garza, Owen)

Take care not to read this opinion while driving or operating heavy machinery. As is perhaps inevitable for a case dealing with periods of excludable delay under the Speedy Trial Act, the procedural history is INVOLVED, to say the least. Fortunately, you don't need to keep track of the exact dates and time periods in order to understand the case, so feel free to put away your calendar, slide rule, and giant Thermos of coffee. On second thought, you might want to keep one cup o' joe at hand as you read this post. We are talking about the STA after all.

Stephens was indicted in November of 2000, along with his co-defendant Turner, for conspiracy to commit bank robbery, armed bank robbery, and using a firearm in a bank robbery. The case dragged on for some time, due in large part to lengthy competency proceedings involving Turner. In April 2002, one day after the court determined that he was competent to stand trial, Turner pled guilty. The court took the plea under consideration, instead of accepting it at that time. Seven weeks later, in May 2002, a superseding indictment was returned against Stephens. He finally went to trial in October 2003.

Three weeks before his trial Stephens filed a motion to dismiss the indictment due to a failure to bring him to trial within 70 days, as required by the Speedy Trial Act. The district court denied the motion, finding that, "after factoring in all excludable delays, only sixty-nine days had elapsed on the Speedy trial clock." Stephens was found guilty at trial, and the district court sentenced him to a total of 50 years and 10 months' imprisonment.

Stephens pressed his STA claim on appeal, and won himself a reversal of his conviction. The court of appeals agreed that the seven weeks that elapsed in-between Turner's guilty plea and the return of the superseding indictment were not excludable from the STA's 70-day indictment-to-trial deadline. The court observed that under § 3161(h)(7), “the excludable delay of one codefendant may be attributable to all codefendants.” But the attribution is not automatic; it must be reasonable. And it was unreasonable here for three reasons. First, the purpose of § 3161(h)(7) is to facilitate joint trials, and that consideration falls by the wayside when one of two co-defendants pleads guilty. Second, even though a co-defendant's guilty plea doesn't automatically eliminate the possibility of a joint trial, there was little likelihood of a joint trial here. That's because Turner had agreed to testify against against Stephens, and the Government wanted Turner's sentencing put off until after the trial so that the court would be able to determine whether Turner complied with the plea agreement before accepting his plea. Third, Stephens had been detained without bond for three years, he had been asserting his speedy trial rights one way or another during much of that time, and Stephens' trial had already been postponed for 15 months during the pendency of Turner's competency proceedings.

The court also rejected the Government's argument that the seven weeks were excludable for reasons other than the district court's delay in accepting Turner's guilty plea. The Government argued that Stephens' STA clock was tolled from the time he filed a severance motion in January 2001 until the superseding indictment in May 2002. The court acknowledged that the STA clock stops running while pretrial motions are pending or under advisement. But the "under advisement" period lasts for no longer than 30 days, after which the STA clock starts running again even if the district court hasn't ruled on the motion. For reasons which you can read if you're interested, the court held that the advisement period began in May 2001, and that it expired thirty days later in June 2001. Consequently, the un-ruled-upon severance motion did not toll the STA clock during the seven-week period in 2002.

Accordingly, the court reversed Stephens' conviction, dismissed the indictment, and remanded for the district court to determine whether the dismissal would be with or without prejudice.


Friday, June 22, 2007

"The Guidelines Are Dead, Long Live the Guidelines, Part II," or "Breyer Gets the Last Laugh (For the Time Being)"

Yesterday the Supreme Court issued its long-anticipated decision in Rita v. United States, No. 06-5754 (U.S. June 21, 2007). It held that courts of appeals may afford a presumption of reasonableness to guideline sentences. The court made clear, however, that the presumption does not operate in the district court. Just how much latitude that grants district judges to sentence outside the guidelines is unclear, but we'll get additional guidance on that point sometime next term when the Supreme Court decides Gall v. United States and Kimbrough v. United States.

We'll hopefully have some commentary here in the near future about just what Rita means for sentencing practice in the Fifth Circuit. But for the time being, there's plenty of commentary elsewhere to slake your thirst for all things Rita. SCOTUSblog collects analysis from the professoriate (Doug Berman, Mark Osler, Michael O'Hear, Davis Stras, Kate Stith, Jeff Fisher, and a couple of Hessicks). And as usual, Doug Berman's own blog, Sentencing Law and Policy, is chock-full of ruminations and prognostications. Finally, Steve Kalar discusses some of the practical implications of Rita just down the street from us at the Ninth Circuit Blog. Enjoy.

Tuesday, June 19, 2007

Unlawful Transport Under Tex. Penal Code § 20.05 Is a "Crime Involving Moral Turpitude"

Fuentes-Cruz v. Gonzales, No. 06-60456 (5th Cir. June 18, 2007) (per curiam) (Higginbotham, Davis, Wiener)

This one's not directly applicable to the cases that we handle in federal court. But those of you who represent alien defendants in state court, and who therefore need to be mindful of the possible immigration consequences of state convictions, need to be aware of it.

As you likely know, a conviction for "crime involving moral turpitude" renders an alien deportable under 8 U.S.C. § 1227(a)(2)(A)(i)(I). So what about the offense of "unlawful transport" under Tex. Penal Code § 20.05? Is it a CIMT?

For those of you (like me) who've never heard of this offense, "Sec. 20.05 states that a person commits an unlawful transport if for pecuniary benefit he transports an individual in a manner that:

(1) is designed to conceal the individual from local, state, or federal law enforcement authorities; and
(2) creates a substantial likelihood that the individual will suffer serious bodily injury or death. (emphasis added)

Fuentes argued that an offense cannot be a CIMT "absent a mental state such as evil intent, fraudulent intent, vicious motive, or corrupt mind . . . ." Assuming, for the sake of argument, that there is such a requirement, the court found it in the designed-to-conceal-from-law-enforcement element of § 20.05, which necessarily requires fraudulent intent. That intent makes unlawful transport a CIMT because the Fifth Circuit "has repeatedly held that crimes including an element of intentional deception are crimes involving moral turpitude."


District Court May Dismiss 2255 Petition Sua Sponte Without Determining Whether Gov't Will Seek Enforcement of Post-Conviction Relief Waiver

United States v. Del Toro-Alejandre, No. 05-41214 (5th Cir. June 18, 2007) (Higginbotham, Davis, Wiener)

Here's one for all you habeas-heads out there. The quesion in the case "is whether the district court may dismiss a section 2255 motion without first determining whether the government will insist that a defendant’s waiver of post-conviction relief be enforced."

The context: Del Toro pled guilty to a drug offense pursuant to a plea agreement in which he waived his right to appeal as well as his right to collaterally attack the conviction in any post-conviction proceeding. (The opinion doesn't contain the actual text of the waiver provisions in the plea agreement.) He was sentenced to 60 months (a mandatory minimum?)
Del Toro-Alejandre did not appeal, but later filed a timely petition under 28 U.S.C. § 2255, arguing that counsel was ineffective for failing to argue that Del Toro-Alejandre was entitled to be sentenced under the safety valve provision of U.S.S.G. § 5C1.2. He argued that he had truthfully provided the Government with all the information he had concerning his offense and that his attorney was ineffective for failing to challenge the Government's assertion to the contrary.

The district court dismissed the petition sua sponte, citing the post-conviction relief waiver in the plea agreement.

Del Toro appealed, citing the general rule that the government must seek enforcement of contractual provisions, otherwise they will be waived. He argued that because the Government didn't seek enforcement of his waiver, the district court shouldn't have enforced it. The Government responded that
it waives its contractual rights only when it fails to invoke a waiver in its brief or expressly declines to rely on a waiver; that a motion seeking relief under 28 U.S.C. § 2255 may, by the terms of the statute, be dismissed without serving the Government where “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.”

The court agreed with the Government, "but with a word of caution." Relying on the Supreme Court's recent decision in Jones v. Bock (involving the Prison Litigation Reform Act), the court drew a distinction between enforcement of a waiver and a defense of failure to exhaust. Because the Government bargained for the waiver in the first place, it is assumed that it will seek enforcement of the waiver unless the Government says otherwise. But under Bock, a court does "not assume that the Government will insist upon a defense of failure to exhaust."

Some of you may be wondering why the waiver provision applied here, given Del Toro's claim of ineffective assistance. It's because Del Toro's petition did not claim that the ineffective assistance affected the validity of the waiver or the plea agreement itself:
Del Toro-Alejandre did not argue in the district court that his plea agreement was not entered knowingly or voluntarily. Yet he now argues that he pleaded guilty because counsel told him that he qualified for sentencing under the safety valve and therefore his plea was not entered knowingly or voluntarily. Del Toro-Alejandre raised the issue of the voluntariness of his guilty plea for the first time in his COA application, and the district court has not had an opportunity to address it. Therefore, this court did not address this claim in its order granting a COA.


Monday, June 18, 2007

SCOTUS: Passengers are Seized When Officer Makes Traffic Stop

Today the Supreme Court decided Brendlin v. California (previewed here), holding unanimously:
When a police officer makes a traffic stop, the driver of the car is seized within the meaning of the Fourth Amendment. The question in this case is whether the same is true of a passenger. We hold that a passenger is seized as well, and so may challenge the constitutionality of the stop.

This has been the law in the Fifth Circuit for some time. You'll still want to keep Brendlin in mind, though, because it's a handy primer on the law governing the test for when a seizure occurs.

Those who can't get enough of Brendlin can find additional commentary at the Volokh Conspiracy, SCOTUSblog, Prawfsblawg, and probably elsewhere.


Upward Variance Based on Defendant's Arrest Record Plain Error, But Not So Bad That It Requires Reversal

United States v. Jones, No. 06-30855 (5th Cir. June 15, 2007) (Smith, Benavides, Dennis)

Just a week after being placed on probation in Louisiana state court for attempted possession of crack with intent to distribute, a felony, Jones was caught with a gun. He pled guilty in federal court to a felon-in-possession charge, and was looking at a guideline range of 30 to 37 months (17, III). At sentencing the district court advised the parties that it was considering an above-guideline sentence, and granted a continuance for the parties to submit memos on the matter. "In its memo, the government did not argue for a sentence outside the range." When the sentencing hearing resumed, the district court imposed a non-guideline sentence of 60 months on the grounds that Jones's "extensive arrest record indicates to me that his criminal history category probably or clearly understates the significance of his past criminal conduct" and was evidence that Jones had "some kind of fascination with guns."

Jones appealed his sentence, naturally "arguing that the court erred in considering his arrest record at sentencing." Unfortunately, Jones didn't object in the district court and therefore failed to preserve the issue. So the court of appeals reviewed for plain error.

The court had no trouble concluding that there was error and that it was plain. After all, guideline 4A1.3(a)(3) flat out says that "[a] prior arrest record itself shall not be considered for purposes of an upward departure," and the record clearly showed that the district court based the above-guideline sentence on Jones's arrest record. The court assumed for the sake of argument that the error affected Jones's substantial rights,* but concluded, unconvincingly, that the error did not affect the fairness, integrity, or public reputation of judicial proceedings:
Neither party disputed that Jones had a history with guns, and the court was “particularly disturbed” by Jones’s possession of a gun little more than a week after a state court felony conviction. The court engaged in a lengthy discussion of the defendant’s criminal history and the offense characteristics, and it addressed the arguments raised by defense counsel. Finally, the court sought to align Jones’s sentence with similarly situated defendants, and it sentenced Jones in line with United States v. Smith, 440 F.3d 704 (5th Cir. 2006), in which we upheld a larger departure to sixty months for a felon-in-possession charge. Our respect for the district court’s diligent effort at the sentencing hearing is not undermined by its unnecessary discussion of Jones’s arrest record.

*(The court "noted that this circuit has applied two different tests to determine whether an error in sentencing affected substantial rights." The "objective" test says "that error affects substantial rights only if the district court cannot impose the same sentence on remand." The "subjective" test, on the other hand, "states that error affects substantial rights where there is a reasonable probability that, but for the error, the court would have imposed a lesser sentence." The court didn't pick a horse in this dispute, because of the way it handled the fourth prong of plain-error review here.)

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On Direct Appeal, Denial of Evidentiary Hearing Regarding Ineffective Assistance Claim is Reviewed for Abuse of Discretion

United States v. Demik, No. 05-11215 (5th Cir. June 14, 2007) (per curiam) (Smith, Benavides, Dennis)

After being convicted at trial, Demik fired his attorney and filed a motion for new trial in which he alleged that his attorney was ineffective at trial. The court appointed the Federal Public Defender to represent Demik, and the FPD filed both a supplemental motion for new trial that went into greater detail on the ineffective assistance claim, as well as a motion for an evidentiary hearing on the matter. The district court denied the supplemental motion for new trial as untimely. It also denied Demik's original motion for new trial on the ground that it contained nothing but conclusory allegations, and refused to grant the requested evidentiary hearing.

On appeal, Demik challenged the distict court's denial of the evidentiary hearing. The court of appeals rejected Demik's arguments, in a two-part holding. First, the court said,
We have not previously articulated what standard of review to use, on direct appeal, to evaluate the denial of an evidentiary hearing regarding a claim of ineffective assistance of counsel. In cases involving petitions for writs of habeas corpus under 28 U.S.C. § 2255, we review the denial of an evidentiary hearing for abuse of discretion. We now apply that standard on direct appeal.

Second, the court declined to take a position on Demik's contention "that a district court must hold an evidentiary hearing on a claim of ineffective assistance of counsel unless the record conclusively shows the defendant is entitled to no relief." The court held that it "need not decide whether that standard applies here in a case on direct appeal, because conclusional allegations are insufficient to require an evidentiary hearing." The court pointed to the failures in the various motions filed (conclusory allegations, no explanation of what trial counsel should have done or how it would have affected the trial, no allegation of harm from trial counsel's omissions), and refused to consider the apparently more thorough allegations in the supplemental motion for new trial because it was untimely "and the district court was within its discretion not to consider it."

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Thursday, June 14, 2007

Cool Research Tips

Having trouble separating the wheat from the chaff when doing electronic research? Then check out this post at the Volokh Conspiracy: Reducing False Positives in Lexis/Westlaw Searches.

More broadly, as a commenter to a related post reminds us, consider enlisting the aid of your friendly neighborhood law librarian. They're the legal research experts, and can probably save you some time, to boot.


Friday, June 08, 2007

Above-Guideline Sentence Affirmed, Notwithstanding Erroneous Guideline Calculation

United States v. Antuna-Moran, No. 06-40103 (5th Cir. May 17, 2007) (per curiam) (Davis, Barksdale, Benavides)

The court's analysis here is so brief that rather than summarize the opinion, I'll just let you read the relevant portion for yourself:

Jose Cruz Antuna-Moran appeals his guilty-plea conviction and 46-month sentence for illegally reentering the United States after having been deported previously. Antuna-Moran argues that the district court erred by enhancing his base offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) based upon a determination that his Texas conviction for aggravated assault of a peace officer was a crime of violence. He also argues that the district court’s statement that it would have sentenced him to 46 months of imprisonment, even if its guidelines calculations were incorrect, does not render the alleged sentencing error by the district court harmless.

Given our decision in United States v. Fierro-Reyna, 466 F.3d 324, 326, 329-30 (5th Cir. 2006), the district court erred in enhancing Antuna-Moran’s offense level under § 2L1.2(b)(1)(A)(ii) based upon his prior Texas conviction for aggravated assault on a peace officer. When a district court misapplies the Guidelines, remand is appropriate unless this court concludes, “on the record as a whole, that the error was harmless, i.e., that the error did not affect the district court’s selection of the sentence imposed.” United States v. Davis, 478 F.3d 266, 273 (5th Cir. 2007).

Here, Antuna-Moran’s sentence was not the result of the district court’s incorrect application of the Guidelines because the district court stated that, even if it had miscalculated the Guidelines, the resulting guidelines range would be unreasonably low and that it would impose the same 46-month sentence. See United States v. Tzep-Mejia, 461 F.3d 522, 525-26 (5th Cir. 2006). Moreover, the alternate non-guidelines sentence imposed by the district court is reasonable considering the case-specific factors cited by the district court. See id. at 527-28.

If you're thinking, "That reads a lot like an unpublished decision," you're right. The court designated this opinion as unpublished when it was originally issued on May 17th (link here). For whatever reason, it's now published.


Thursday, June 07, 2007

Government Under No Obligation To Provide All Possible Factual Bases for Sentence Reduction In Rule 35 Motion

United States v. Grant, No. 06-40915 (5th Cir. June 1, 2007) (Jones, Benavides, Stewart)

UPDATE: On July 11, 2007, the panel granted a petition for rehearing in part, withdrew its original opinion, and substituted a new one. The link above has been changed to the new opinion, which doesn't appear to contain any substantive changes.

Grant was sentenced to 151 months' imprisonment for possessing marijuna with intent to distribute. While serving his sentence, Grant began cooperating with the DEA in Investigation A. The Government filed a Rule 35 motion to reduce his sentence on that basis. At the time of the Rule 35 hearing, Grant was also cooperating in Investigation B. However, neither the Government nor Grant's counsel mentioned his cooperation in Investigation B (and Grant wasn't present at the hearing). The district court granted the motion and reduced Grant's sentence to 120 months.

Several months later Grant filed a "Motion for Further Reduction of Sentence" on the ground that the Government failed to advise the district court of his cooperation in Investigation B at the time of the Rule 35 hearing. The Government admitted that Grant had been providing information in Investigation B, but argued that his assistance did not warrant any further sentence reduction because the information ultimately wasn't useful. The district court declined to reduce Grant's sentence any further, concluding that it lacked the authority to do so absent a new Rule 35 motion by the Government.

Grant appealed, raising two issues. First, he argued that "the government’s failure to apprise the district court of his continuing assistance with [Investigation B] requires the court to reconsider the extent of relief given." The court of appeals disagreed. It acknowledged that once the Government makes the motion, it's up to the district court to decide whether and how much to reduce a sentence. Nevertheless,

[w]hile the government may have been required to give the court accurate information as to the individuals on which it based its Rule 35 motion, Grant is incorrect that the government also had to apprise the court of his assistance in other investigations. Because the government was not moving for a reduction of sentence as to [Investigation B], a decision which is not reviewable by this court absent a showing by Grant of illicit motive, it was under no duty to supply the court with information regarding that case.

Grant's second argument was that his motion should have been treated as a § 2255 petition. The court held that even if the motion could have been so construed, there was no basis for relief.


TX Aggravated Assault with Deadly Weapon is Generic "Aggravated Assault"; Triggers 16-Level COV Bump Under U.S.S.G. §2L1.2

United States v. Guillen-Alvarez, No. 05-41787 (5th Cir. June 6, 2007) (Jolly, Stewart, Prado)

Another case for all you COV junkies out there. Although there's really nothing new in this one, beyond the specific holding. At issue was whether assault with a deadly weapon under Tex. Penal Code § 22.02(a)(2) constitutes generic aggravated assault for purposes of the 16-level COV enhancement in U.S.S.G. §2L1.2(b)(1)(A)(ii). The court said "yes," considering itself bound by the recent decision in United States v. Mungia-Portillo. That case held that the Tennessee aggravated assault statute squared with the generic definition of aggravated assault (albeit wrongly, for reasons explained here). Guillen-Alvarez says that because there are "only minor differences" between the relevant versions of the Texas and Tennessee statutes, the Texas offense qualifies as generic aggravated assault, as well.

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Monday, June 04, 2007

Texas Bar Journal Profiles a Day in the Life of a Federal Public Defender

The June 2007 issue of the Texas Bar Journal has a collection of articles headlined "A Day in the Life of Government Lawyers." And one of those lawyers happens to be Liz Rogers, Supervisory Assistant Federal Public Defender in Alpine, TX. Here's a snippet:
As Liz Rogers and the members of the Alpine federal public defender’s office arrive at the office on a Monday morning, they inquire about each other’s weekends and plan the workweek ahead. The session evolves into a sort of “show and tell.” One of the lawyers displays a blue candle that features an image of a police officer and is emblazoned with the words “Law Stay Away.” Whether the candle works is debatable, but it seems a fitting image for the public defender’s office. The office can’t keep the law away, of course, but it ensures that defendants receive adequate legal representation.

The article's on page 520 of the bar journal, or you can read it online here. You'll have to contact the Alpine office to find out how to get one of those candles.

Restitution Order Vacated in Concealment of Bankruptcy Assets Case

United States v. Maturin, No. 05-30756 (5th Cir. Jun. 1, 2007) (Jolly, Higginbotham, Dennis)

This isn't the most exciting opinion you'll ever read, but at least it's not another crime-of-violence case, right? Plus, it's got some good language on plain error.

Maturin set up an account to conceal assets from creditors and the trustee in a bankruptcy proceeding. All told, he deposited over $160,000 worth of funds that belonged to the bankruptcy estate into the account. After a creditor got wise to this, Maturin was indicted on 28 counts of unlawful concealment of assets (18 U.S.C. § 152(1)) and one count of making a false statement under oath (18 U.S.C. § 152(2)).

Maturin reached a plea agreement with the government in which he agreed to plead guilty to a single count charging him with fraudulently depositing $54,384.43 into the concealed account, in exchange for dismissal of the remaining charges. The plea agreement was silent on restitution. Maturin stated, in the factual basis for his guilty plea, "that he believed that he had deposited a total of roughly $130,000 in the concealed account, but that he was not sure of the exact amount." At sentencing, the district court adopted the PSR's recommendation and ordered Maturin to pay restitution in the amount of $164,988.98, the total amount that Maturin had deposited in the concealed account.

On appeal, Maturin challenged the restitution order as excessive on the ground that it was "based on charges and conduct for which [he] was not convicted." Because he did not object at the time of sentencing, the court reviewed for plain error.

The court began with an extensive discussion of when restitution is required or permitted under the Mandatory Victims Restitution Act of 1996 and the Victim and Witness Protection Act. (It also reiterated that Hughey v. United States remains good law, notwithstanding statutory changes since the Supreme Court's decision in that case. Hughey, as you'll recall, held that as a general rule the MVRA limits restitution awards to "those losses that resulted directly from the offense for which the defendant was convicted.") You can read the discussion of the stautory ins-and-outs if you're interested, but the question ultimately boiled down to this:
[T]o determine the propriety of the district court’s restitution order, this court must consider whether the offense for which Maturin was convicted includes as an element a scheme, conspiracy, or pattern of activity, and/or whether the parties agreed in Maturin’s plea agreement that he would be subject to restitution for losses based on the dismissed counts of the indictment.

The court held that the restitution order was not supported on either ground. First, the court concluded, based on the text of the statute and the Fifth Circuit pattern jury instruction on the offense, that 18 U.S.C. § 152(1) plainly lacks "as an element proof of a scheme, conspiracy, or pattern of criminal activity, and, accordingly, Maturin’s conviction under that section cannot, without more, support the district court’s restitution order." Second, the court held that the record did not show an agreement by the parties that Maturin would be liable for the full $160+ grand, with an interesting observation about Maturin's failure to object at sentencing:
We do not read [United States v. Arnold] to hold that a defendant’s failure to object to the pre-sentence investigation report or the district court’s restitution order is sufficient to establish that the defendant agreed to pay the full amount of restitution that was ultimately ordered where, as here, the record is otherwise devoid of evidence of any agreement between the government and the defendant concerning restitution.
But what about plain error? "While this court has never expressly determined that the crime of concealing assets in a bankruptcy proceeding does not have a scheme, conspiracy, or pattern of criminal activity as an element, as we discussed above, it is indisputably clear from a reading of the plain statutory language, as well as this court’s pattern jury instructions, that the statute contains no such element. We therefore find that the district court’s error was plain." And the error affected Maturin's substantial rights, insofar as it put him on the hook for three times as much restitution as the district court actually had the authority to award. Result: restitution award vacated with a remand for the district court to have another go at it.