Friday, August 17, 2007

Memo Outlining Changes in Supreme Court Rules Taking Effect October 1, 2007

How Appealing hips us to this this handy memo from the Clerk of the Supreme Court outlining some of the more important changes to the Supreme Court Rules taking effect on October 1, 2007. (Prior coverage here.) And it also brings this groovy news: electronically filed briefs will be made available on the Court's website the next business day after filing. No word on cameras, though.


Friday, August 10, 2007

Unpublished Opinion Holds TX Delivery of Controlled Substance Is Not Categorically An Aggravated Felony

United States v. Fuentes, No. 06-20325 (5th Cir. Aug. 8, 2007) (unpublished) (per curiam) (Higginbotham, Garza, Benavides)

Under United States v. Gonzales, the Texas offense of delivery of a controlled substance is not categorically a "drug trafficking offense" for purposes of the 12- or 16-level enhancements in guideline §2L1.2(b)(1)(A)(i) and (b)(1)(B). But what about the 8-level "aggravated felony" enhancement under (b)(1)(C)? The aggravated felony definition is broader than the §2L1.2 drug-trafficking definition.

Fuentes holds that Texas delivery is not categorically aggravated felony. Unfortunately, the court doesn't lay out its reasoning as clearly as it could (it is an unpublished case, after all). So to understand the basis for the holding you have to look up a Ninth Circuit case cited in footnote 2: United States v. Rivera-Sanchez, 247 F.3d 905, 908-09 (9th Cir. 2001) (en banc). Once you do that, the reasoning emerges:
  1. An offense is an aggravated felony if it would be punishable as a felony under the federal Controlled Substances Act.
  2. As the Ninth Circuit held in Rivera-Sanchez, a mere offer to sell drugs is not punishable under the CSA and is therefore not an aggravated felony.
  3. The Texas delivery definition includes offers to sell, so it's not categorically an aggravated felony.
The Government hadn't argued otherwise. Instead, it made a convoluted argument that Fuentes was convicted of what would constitute an offer to sell drug paraphernalia (an offense under 21 U.S.C. § 863(a)(1)), because the charging papers alleged that he offered to sell adulterants and dilutants, which count as drug paraphernalia under the CSA. The court rejected that argument on the ground that the adulterant-and-dilutant allegation
does not mean that there necessarily were adulterants and dilutants; rather, it only means that if there were adulterants and dilutants, they were counted toward the total aggregate weight of the cocaine. Therefore, Fuentes’s conviction and the criminal information do not necessitate a finding that Fuentes offered to sell drug paraphernalia, and the district court erred in applying a sentencing enhancement for a prior conviction of an “aggravated felony” under U.S.S.G. § 2L1.2(b)(1)(C).

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Must Look to Law of Convicting Jurisdiction to Determine Whether Guilty Plea Admits All or Only Some of Conjunctive Allegations In Charging Instrument

United States v. Morales-Martinez, No. 06-40467 (5th Cir. Aug. 8, 2007) (Higginbotham, Garza, Benavides)

An offense can be committed in multiple ways, some of which would qualify for an enhancement (such as a "drug trafficking" or "crime of violence" enhancement), and some of which would not. Charging instrument alleges qualifying and non-qualifying means conjunctively. Defendant pleads guilty to the charging instrument. Does his guilty plea admit all of the allegations in the charging instrument, thus qualifying him for the enhancement?

Answer: you have to look to the law of the convicting jurisdiction to see whether a guilty plea to conjunctive allegations admits all of them or only some of them. If only some, then you have to apply the Taylor/Shepard approach to see if there are judicial documents establishing the particular statutory alterntive underlying the conviction. Let's see how that played out here.

Morales, who pled guilty to illegal reentry, had a prior Texas conviction for delivery of cocaine. Under United States v. Gonzales, the offense may or may not be a drug-trafficking offense under guideline 2L1.2. Specifically, the Texas "delivery" definition includes offers to sell, which aren't §2L1.2 drug trafficking. In the state case, Morales had pled guilty to an indictment which alleged all three means of delivery conjunctively: actual transfer, constructive transfer, and offer to sell. The Government argued that his guilty plea admitted all three means of delivery, thus qualifying him for a drug-trafficking enhancement under guideline §2L1.2.

The Court disagreed. It recognized that "[t]here is some caselaw supporting the Government's argument that a guilty plea admits all of the facts in the charging document." But as the court pointed out, "not all courts apply this rule; other jurisdictions apply a narrower rule that treats a guilty plea as admitting only those material facts needed to support the conviction." Thus, a court must determine the effect of a guilty plea in the convicting jurisdiction. In this case, that's Texas.

"Texas takes the narrower approach, treating a guilty plea as an admission of only those facts needed to support the conviction." And under Texas law governing the procedure for establishing the factual basis for a guilty plea, "the State is only required to present evidence sufficient to support the conviction[; it] need not present evidence that the defendant committed the offense according to each of the means alleged in the indictment." In this case, the Government did not present "any evidence, such as the plea colloquy or other admissions by Morales-Martinez, indicating what evidence the State presented in Morales-Martinez’s 1993 conviction or what evidence the Texas court relied on to support the conviction." Under the Taylor/Shepard approach, that's not enough to establish that Morales's conviction was for a DTO:
In this case, having nothing more than the fact of conviction and the charging document, we know only that the State offered some evidence sufficient to support conviction. The conviction, though, could have been supported if the State offered evidence that Morales-Martinez actually transferred, constructively transferred, or offered to sell cocaine. Therefore, we cannot determine, on the sole basis of Morales-Martinez’s guilty plea and the abovedescribed charging document, whether Morales-Martinez transferred cocaine or merely offered to sell cocaine.

It was therefore error for the district court to have applied the DTO enhancement in Morales's case. So sentence vacated and case remanded for resentencing.

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Circuit Split On Whether Possession of Sawed-Off Shotgun Is An ACCA Predicate

As you're likely aware, the Armed Career Criminal Act requires a 15-year mandatory minimum prison sentence for those convicted of being a felon-in-possession and who have three prior convictions for a "violent felony" or a "serious drug offense." The ACCA defines "violent felony" to include, among other things, felonies that "involve[] conduct that presents a serious potential risk of physical injury to another." (The so-called "otherwise clause" found in 18 U.S.C. § 924(e)(2)(B)(ii).) Until recently, according to the Sixth Circuit's decision in United States v. Amos, every circuit to have considered the question, including the Fifth Circuit, has held that possession of a sawed-off shotgun qualifies as a violent felony under the ACCA's otherwise clause.

The harmony, like a clay pigeon, has been shattered. With its 2-1 decision in Amos, the Sixth Circuit creates a circuit split by holding that possession of a sawed-off shotgun is not an ACCA violent felony. The court reasons that simply possessing a firearm, even a sawed-off shotgun, is not itself conduct that presents a serious potential risk of physical injury to another. A concurrence adds that the Supreme Court's decision in Leocal v. Ashcroft, which considered the slightly narrower language found in 18 U.S.C. § 16(b)'s crime-of-violence definition, also supports the court's holding. The dissent essentially argues that the only reason to possession a sawed-off shotgun (described colorfully as a "gangster-type" "weapon of war") is for criminal purposes, thus presenting the requisite serious potential risk of physical injury to another.

Now that we've got a circuit split on the issue, you may want to consider preserving it should it arise in any of your cases. Note that the issue isn't confined to ACCA cases. The guideline definition of "crime of violence" in §4B1.2(a) is nearly identical to the ACCA's "violent felony" definition, including the otherwise clause. So it's an issue there, as well. (In fact, that's the context in which the Fifth Circuit first addressed the issue: United States v. Serna, 309 F.3d 859 (5th Cir. 2002).)

For further discussion of Amos, head on over to the Volokh Conspiracy.

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Thursday, August 02, 2007

GA Meth "Trafficking" Is a §2L1.2 DTO

United States v. Gutierrez-Bautista, No. 06-40486 (5th Cir. July 27, 2007) (Smith, Wiener, Owen)

Issue: is a Georgia conviction for methamphetamine "trafficking" under Ga. Code Ann. §16-13-31(e) a "drug trafficking offense" for purposes of U.S.S.G. §2L1.2? Before you answer, consider that although the statute is captioned "trafficking," it prohibits, among other things, the mere possession of 28 grams or more of meth. So you're guilty of "trafficking" if you possess more than the threshold quantity of drugs, regardless of whether you actually intend to distribute the meth or are simply possessing it for personal use.

Gutierrez-Bautista holds that the offense is a DTO because 1) §2L1.2 defines a DTO by reference to the conduct prohibited by a statute, rather than the elements of the offense, 2) the Georgia stautory scheme "necessarily infers an intent to distribute once a defendant possesses a certain amount of drugs," and 3) possession with intent to distribute is a DTO. The court also added that under federal law the intent to distribute can be inferred from the amount of drugs possessed, although it's hard to see what difference that makes since the parallel federal drug statute (18 U.S.C. § 841), unlike the Georgia statute at issue, makes intent to distribute an element.

The obvious flaw in this opinion is that the plain text of the trafficking statute reaches some conduct that doesn't constitute a DTO, i.e., simple possession of more than the specified quantity of drugs. It shouldn't matter that the Georgia legislature has essentially chosen to equate drug quantity with intent to distribute. Under the Fifth Circuit's approach in these cases, as long as the statute is broader than the DTO definition, and the Georgia statute is, then it doesn't qualify for the enhancement. Gutierrez-Bautista doesn't mention those cases, instead choosing to follow an Eleventh Circuit case which clearly takes a contrary approach to the question.

Be aware that Georgia isn't the only state with drug crimes labelled "trafficking" simply by virtue of the quantity of drug involved. Florida and North Carolina have similar statutes. (In fact, the Fifth Circuit has held in at least three unpublished opinions that the North Carolina trafficking offenses aren't DTO's. Of course, those decisions aren't binding precedent, but it's odd that Gutierrez-Bautista doesn't even mention them, especially when deciding to follow the conflicting law of another circuit.)

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