Friday, May 23, 2008

Judge Owen Calls for En Banc Consideration of Fifth Circuit's Understanding of Taylor/Shepard Categorical Approach

United States v. Gonzalez-Terrazas, No. 07-50375 (5th Cir. May 22, 2008) (Garza, Stewart; Owen, concurring)

"Wait a minute," you're asking, "didn't the Fifth Circuit already decide this case a few months ago?" Yes, it did. But the court granted the Government's petition for panel rehearing, withdrew the prior opinion, and substituted a new one in its stead. The new opinion is largely the same, except that it omits the discussion of one sub-issue. Also, Judge Owen writes a separate concurring opinion urging the court to reconsider en banc one particular aspect of the Taylor/Shepard categorical approach.

To recap, the issue in the case was whether Gonzalez's prior California burglary conviction triggered a 16-level crime-of-violence enhancement under the illegal reentry guideline. As it did the first time around, the court held that the prior conviction did not so qualify, under the Fifth Circuit's decision in United States v. Ortega-Gonzaga. California's burglary statute is broader than generic burglary because it does not require that the entry or remaining-in be unlawful. It did not matter that a state charging document alleged that Gonzalez entered a house "willfully and unlawfully." The Taylor/Shepard modified categorical approach permits a court look to the charging papers and so forth only to identify which statutory subsection or which disjunctive elements the conviction satisfied. In the case of the California statute, there is no separate subsection or disjunctive element pertaining to "unlawful" entry, so a court cannot use the modified categorical approach to pare down the indivisible "entry" element of the offense.

The original opinion also held that, even if the court could go beyond the elements of the offense, the Government would have still failed to carry its burden of showing that the enhancement applied. The only document the Government offered, apart from the charging instrument, was an abstract of judgement from a subsequent revocation proceeding that mentioned the earlier burglary conviction. The court stated that, because California abstracts of judgment are of questionable reliability, the abstract may be sufficient to establish the fact of the burglary conviction, but not the specific facts underlying that conviction or that Gonzalez pleaded guilty to any particular charging instrument. The new opinion omits this discussion.

Judge Owen concurred, agreeing that this analysis is compelled by Ortega-Gonzaga. But she urged the court to reconsider this case en banc because, in her view, Ortega-Gonzaga "is at odds with Congressional intent in establishing the Sentencing Guidelines and the intent of the Guidelines with regard to what courts have termed 'enumerated offenses.'"
The case before us presents an important question: in determining if a prior conviction was for an enumerated “generic” offense within the meaning of the Guidelines, may we examine the underlying conviction to determine if it contained all the elements of the generic offense even though the statute of conviction did not? We have often examined records of a prior conviction when the statute of conviction could be violated in ways that constituted a generic enumerated offense and in ways that did not to determine if a defendant was convicted of a generic offense. However, it was not until Ortega-Gonzaga that we considered whether a prior conviction could be for a generic offense even if the statute of conviction was lacking one or more elements of the generic offense. I respectfully submit that if a defendant was charged with and a jury found all elements of a generic offense, or the defendant was charged with and pled guilty to such an offense, there has been a prior “conviction for” the generic offense even if the statute under which the defendant was prosecuted lacks all the requisite elements.

Judge Owen agreed that the Sentencing Commission intended for Taylor's generic burglary definition to control the meaning of "burglary of a dwelling" in guideline §2L1.2 (with the added "dwelling" qualification, of course). But she also pointed to Congress' statement
in the statute creating the Sentencing Commission that the intent of the Guidelines was, among other things, to “avoid[] unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct.” I submit that if a defendant was charged with and a jury found all the elements of generic burglary of a dwelling, or if a defendant so charged admitted to all elements of burglary of a dwelling, that defendant has a prior “conviction for” burglary of a dwelling within the meaning of U.S.S.G. § 2L1.2(b)(1)(A), even though the statute under which the defendant was prosecuted does not have all the elements of generic burglary of a building. Defendants charged with the elements of generic burglary and who have either been found guilty or who have pled guilty to the elements of generic burglary are defendants “with similar records who have been found guilty of similar criminal conduct” regardless of whether the statutes under which they have been convicted have all the elements of generic burglary. In other words, a “conviction for” an enumerated offense can be narrower than the statute of conviction, and the purpose of the Sentencing Guidelines is to treat “conviction[s] for” an enumerated offense the same. In Ortega-Gonzaga, our court refused, in an alternative ruling, to look beyond the underlying statute of conviction to determine whether the actual conviction had been for the generic offense of burglary of a dwelling. In doing so, our court did not give effect to the statutory purpose of the Guidelines or the meaning of the Guidelines themselves.

That's the approach the Seventh and Ninth Circuits take, as Judge Owen notes. She also argues that neither Taylor nor Shepard clearly resolve the issue.

I think Judge Owen is wrong, as the statute she cites doesn't really address this issue, and the approach she advocates runs contrary to Taylor's and Shepard's concerns about the Sixth Amendment doubts such an approach would raise. But I suppose the ball is in the Government's court now, so we'll have to wait and see what happens.

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Sentence Vacated: Evidence Insufficient to Support 3C1.2 Reckless Endangerment Enhancement

United States v. Gould, No. 06-11058 (5th Cir. May 21, 2008) (Davis, Southwick, Clark, D.J.)

Gould was at a house when a SWAT team showed up to execute a search warrant for drugs. Presumably not wanting to make the officers' acquaintance, Gould fled out foot out the back door past an officer who pointed a gun at him and ordered him to stop. Other officers quickly captured him. The search turned up guns, ammo, and various drugs in the house, in Gould's car, and on his person.

Gould later pleaded guilty to gun and drug charges. His PSR recommended a two-level enhancement under guideline §3C1.2 for reckless endangerment during flight, based on this rationale: "At the time of [Gould’s] arrest, he attempted to evade arrest by running from officers, which had ordered him to stop and had their weapons drawn. The defendant was apprehended after a foot chase ensued with officers." That, along with other calculations, put Gould at a Guidelines range of 168 to 210 months on the drug count. The district court overruled Gould's objection to the reckless endangerment enhancement, and sentenced him to 270 months' imprisonment (210 months for the drug count, plus 60 consecutive months on the gun count).

Gould appealed, arguing that 1) there was insufficient evidence to support the reckless endangerment enhancement, 2) his sentence was unreasonable, and 3) the district court "failed adequately to justify his sentence." The court of appeals declined to address the reasonableness arguments, as it agreed with Gould on the enhancement.

The Government argued that
the facts surrounding Gould’s arrest support the adjustment because Gould’s flight created a more dangerous situation than usually occurs when a suspect evades arrest. For example, both the Wichita Police Department and a SWAT team were involved in execution of the search warrant at a known crack-house – making the situation more chaotic and potentially dangerous when Gould fled. In addition, Gould’s continued flight after officers pulled their weapons and ordered him to stop caused the officers to pursue him with their weapons drawn, increasing the risk of death or serious injury to the officers or others in the area.

The court disagreed, pointing out the lack of any evidence beyond the rationale the PSR offered to support the enhancement:

For example, the record is unclear on how far Gould ran, although the Government stipulated that it was a “short” chase. There is also no description of the area where the chase occurred – although the area was described as a “grass field.”

We reject the Government’s argument that Gould’s fleeing despite the fact that armed officers were instructing him to stop justifies an inference that Gould was acting recklessly. There was no evidence presented that Gould heard the officers order him to stop or that he reacted in a threatening way or made any threatening actions toward the officers as he ran. In fact, there is no evidence that Gould did anything other than run from the house after the officers entered.

(internal cite snipped). The court also pointed to a decision from another circuit in which simply running from police, even when it resulted in armed pursuit, did not justify the enhancement.

The court thus concluded that
[t]he record is too sparse for us to determine whether Gould was reckless. Gould fled for an undefined but admittedly short distance from the officers executing the search warrant. He may have run into a field. We cannot say, considering the record as a whole, that Gould acted recklessly and in a manner that created a substantial risk of injury. The kind of detail missing here can be contrasted with a case in which we sustained use of the enhancement when there was evidence that the fleeing defendant led pursuing officers across four lanes of a busy interstate highway.
(cite banished). Unfortunately, in vacating and remanding for a new sentencing hearing, the court states that "[a]dditional relevant evidence of the flight is admissible on resentencing if the Government has any to offer." There really ought to be a rule against the Government getting a second bite at the apple when it fails to present enough evidence to support an enhancement, especially when it saw fit to rely on such a plainly insufficient basis on the first chomp.

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Thursday, May 22, 2008

Interesting Discussion of Inconsistent Verdict In Importation/PWID Case

United States v. Igbinosun, No. 07-20075 (5th Cir. May 15, 2008) (Davis, Southwick, Clark D.J.)

Here's an interesting paragraph in a decision upholding a conviction in a bench trial in which the judge found the defendant guilty of importation of heroin, but not guilty of possession with intent to deliver that same heroin. (Igbinosun was arrested at Intercontinental Airport in Houston after returning from Nigeria having swallowed fifty-eight pellets of heroin.)
A court is permitted to draw an inference of intent to distribute from the amount of drugs present, but this court has never held that it is required to do so. The government neither elicited testimony regarding the amount of heroin typically held for personal consumption, nor argued that the amount of heroin found supported an inference of intent to distribute. In contrast, Igbinosun testified at trial that while she did not know what kind of drugs she had swallowed, she knew that what she swallowed was, in fact, drugs. Under these facts, the district court could have found that the United States proved intent as to the importation, but not the distribution, count.

Don't know how useful that might be in another case, but maybe you can tease an argument out of it.

Court Declines to Decide Whether General Appeal Waiver Bars Review of Restitution Order

United States v. Smith, No. 07-60385 (5th Cir. May 16, 2008) (King, DeMoss, Benavides)

Smith pleaded guilty pursuant to a plea agreement providing that she "expressly waives her rights to appeal the conviction or sentence imposed in this case, and the manner in which the sentence was imposed, on any ground whatsoever." She nonetheless appealed, arguing that there was insufficient evidence to support the district court's restitution order.

The court began by noting that, "[i]n two unpublished cases, we have held that an appeal waiver barred review of a restitution order, but both of those cases involved plea agreements that explicitly stated that the defendant agreed to pay restitution in an amount determined by the district court." Unlike those cases, Smith's plea agreement did not address restitution. The district court also failed to tell Smith that any restitution order would be convered by the appeal waiver, although the matter came up briefly at the plea colloquy.

Nevertheless, the court "decline[d] to address the issue of whether a general appeal waiver bars review of a restitution order when the plea agreement does not discuss restitution"---although it cited several circuits that have held such a waiver does not bar the appeal---because it found that there was adequate evidence to support the restitution order: the PSR's loss amount calculation was based on an interview with an employee of the victim, and although Smith offered a different calculation, she offered no evidence to explain her calculation or to rebut the PSR's calculation. Thus, the court affirmed the restitution order, citing the familiar---and questionable---precedents holding that "[t]he district court may adopt the facts contained in a presentence report without further inquiry if those facts have an adequate evidentiary basis with sufficient indicia of reliability and the defendant does not present rebuttal evidence or otherwise demonstrate that the information in the PSR is unreliable," and that "[t]he defendant bears the burden of showing that the information in the PSR relied on by the district court is materially untrue."

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Wednesday, May 21, 2008

Under 18 U.S.C. § 844(h)(2), Carrying of Explosives Need Only Be "During," Not "In Relation To," Underlying Felony

United States v. Ressam, No. 07-455 (U.S. May 19, 2008)

Title 18 U.S.C. § 844(h)(2) makes it a crime to "carry an explosive during the commission of any [federal] felony." Ressam was convicted of that offense, and a § 1001 false statements count, for carrying explosives in his car trunk when he provided false identity information on a customs declaration form at a port of entry in Washington. The Ninth Circuit reversed Ressam's § 844 conviction, holding that the "during" element requires that the explosives be carried "in relation to" the other felony. Other circuits, including our very own Fifth Circuit, had interpreted § 844 to require only that the carrying be during the other felony. Hence cert.

The Supreme Court held, in a brief opinion authored by Justice Stevens, that "during" means "during" and only "during":
The term "during" denotes a temporal link; that is surely the most natural reading of the word as used in the statute. Because repondent's carrying of explosives was contemporaneous with his violation of § 1001, he carried them "during" that violation.

The Court also found this reading compelled by legislative history. As originally enacted, both § 844(h)(2) and § 924(c)(2) prohibited "unlawful" carrying of an explosive or firearm "during" another federal felony. Section 924(c)(2) was later amended to remove the requirment that the firearm-carrying be "unlawful," and to add that it must be "in relation to" the underlying felony. A few years later, Congress amended § 844(h)(2) to remove the term "unlawful," but it did not add an "in relation to" element as it did when it amended § 924(c)(2). The Court concluded that this history demonstrated Congress' intent not to require that explosives-carrying be in relation to the underlying felony.

(Justices Scalia and Thomas did not join the legislative history portion of the opinion, which is a little strange. Their usual objection is to the use of committee reports and such. But the Court here simply compares the evolution of two initially identical statutory provisions over time, which would seem to fall outside the typical objections to consideration of legislative history.)

But this is one of those cases in which the dissent is the more interesting part of the case. Justice Breyer, writing only for himself, pointed to some potentially absurd results produced by the majority's interpretation, since the statutory definition of "explosives" includes items such as kerosene, gasoline, or fertilizer:
Consequently the Court’s opinion brings within the statute’s scope (and would impose an additional mandatory 10-year prison term upon), for example, a farmer lawfully transporting a load of fertilizer who intentionally mails an unauthorized lottery ticket to a friend, a hunter lawfully carrying gunpowder for shotgun shells who buys snacks with a counterfeit $20 bill, a truckdriver lawfully transporting diesel fuel who lies to a customs official about the value of presents he bought in Canada for his family, or an accountant who engaged in a 6-year-long conspiracy to commit tax evasion and who, one day during that conspiracy, bought gas for his lawnmower. In such instances the lawful carrying of an "explosive" has nothing whatsoever to do with the unlawful felonies. I cannot imagine why Congress would have wanted the presence of totally irrelevant, lawful behavior to trigger an additional 10-yearmandatory prison term.
One might question whether Justice Breyer's parade of absurdities is consistent with his opinion for the Court in Gonzales v. Duenas-Alvarez, which held that, for purposes of the Taylor categorical approach,
to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute's language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.

Snark aside, Justice Breyer's main argument is a very good one (and one that arguably commanded a majority of the Court in Begay): "Context matters. And if judges are to give meaningful effect to the intent of the enacting legislature, they must interpret statutory text with reference to the statute's purpose and history."
The Court, with its decision today, makes possible the strange results I describe above precisely because it resolves the statutory interpretation question by examining the meaning of just one word in isolation. In context, however, the language excludes from the statute’s scope instances in which there is no significant relation between the explosives-carrying and the felony. A contextual interpretation furthers Congress’ original purpose, is less likely to encourage random punishment, and is consistent with the statute’s overall history. As a result, like the Ninth Circuit, I would read the statute as insisting upon some (other than merely temporal) relationship between explosives carrying and "felony."
Which is not to say that Justice Breyer "agree[d] with the Ninth Circuit that the statute restricts the requisite relationship to one in which the carrying of explosives 'facilitated' (or 'aided') the felony."
In my view, the statute must also cover a felony committed to facilitate the carrying of explosives. Why should it matter in which direction the facilitating flows? Either way, there is a relation between the carrying of explosives and the other felony. Either way, one might reasonably conclude that the presence of the explosives will elevate the risks of harm that otherwise would ordinarily arise out of the felony’s commission. Either way, one might consider the explosives "misused." Thus, I believe the statute applies if the felony, here, the making of a false statement to a customs officer, facilitated or aided the carrying of explosives.

Despite the fact that Justice Breyer's opinion didn't carry the day (or garner any other votes) here, you should keep the "context matters" argument in mind. Sometimes it works.

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Tuesday, May 20, 2008

Applicable Recidivist Enhancements Determine "Maximum Term of Imprisonment" for ACCA "Serious Drug Offense" Predicate

United States v. Rodriquez, No. 06-1646 (U.S. May 19, 2008)

The Court has been struggling recently with the interpretation of the Armed Career Criminal Act. What's striking about these recent decisions is that they don't seem to apply any predictable or consistent framework for interpreting the poorly-drafted provisions of the ACCA, and that you're about as likely to predict the voting lineup by pulling the justices names out of a hat as you are by tracking their votes and reading their opinions in these cases. (see, e.g., Professor Anita Krishnakumar's ruminations on Begay and Rodriquez at Concurring Opinions). If anything, yesterday's decision in Rodriquez is the most perplexing of them all, as it includes a holding that doesn't seem at all reconcilable with the Court's recent explication of the rule of Apprendi (with the agreement of two Apprendi stalwarts, no less). But on the up side, it recognizes an important procedural limitation on the application of the ACCA, so you'll want to put the case on your to-read-soon list.

The ACCA, as you know, provides for an enhanced punishment for gun-possessing felons who have at least three prior convictions for a "violent felony" or "serious drug offense." An SDO is a drug offense "for which a maximum term of imprisonment of ten years or more is prescribed by law." The question is Rodriquez is whether the "maximum term of imprisonment" takes recidivist enhancements into account.

The question arose in Rodriquez's case because of his three prior Washington state convictions for delivery of a controlled substance (he also had two prior California residential burglary convictions). The relevant state statutes established a maximum sentence of five years for that basic offense, but also authorized a sentence of up to ten years for "[a]ny person convicted of a second or subsequent offense." The state judgment listed the maximum sentence as "ten years," but Rodriquez was sentenced to only 48 months on each count, which was apparently the maximum term authorized by the Washington sentencing guidelines.

The Court held---in an opinion written by Justice Alito for a six-robe majority---that the plain meaning of the terms "offense," "law," and "maximum term" mean that the "the maximum term prescribed by Washington law for at least two of respondent's state drug offenses was 10 years." In so holding, the Court reversed the Ninth Circuit's decision below, which had held that the "maximum term of imprisonment" under the ACCA is determined without regard to recidivist enhancements. The Court concluded that the Ninth Circuit's approach would lead to absurd results; for example, if Rodriquez had been sentenced to six years on the drug charges, the Ninth Circuit's approach would still treat those offenses as being subject only to a five-year maximum for ACCA purposes. The Court also found "[t]he Ninth Circuit's interpretation . . . inconsistent with the way in which the concept of the 'maximum term of imprisonment" is customarily understood by participants in the criminal justice process."

Rodriquez made a laundry list of arguments, all of which the Court rejected. (I'll only discuss a few of the more significant ones here.) He argued that the term "offense" typically refers only to the elements of a crime, and that because prior convictions are not typically treated as offense elements, they are not part of the "offense" for ACCA purposes. The Court, begging the question, simply responded that
[Rodriquez's] argument is not faithful to the statutory text. [He] reads ACCA as referring to "the maximum term of imprisonment prescribed by law" for a defendant with no prior convictions that trigger a recidivist enhancement, but that is not what ACCA says. ACCA instead refers to "the maximum term of imprisonment prescribed by law" for "an offense," and, as previously explained, in this case, the maximum term prescribed by Washington law for each of respondent’s two relevant offenses was 10 years.
Rodriquez also argued that it'll be a huge headache for district courts to determine whether a defendant faced a recidivist enhancement for a prior offense. The Court---in a very important paragraph that reveals a significant procedural limitation on the ACCA enhancement---was more sanguine:
First, in some cases, a defendant will have received a recidivist enhancement, and this will necessarily be evident from the length of the sentence imposed. Second, as the present case illustrates, the judgment of conviction will sometimes list the maximum possible sentence even where the sentence that was imposed did not exceed the top sentence allowed without any recidivist enhancement. Third, as respondent himself notes, some jurisdictions require that the prosecution submit a formal charging document in order to obtain a recidivist enhancement. Such documents fall within the limited list of generally available documents that courts already consult for the purpose of determining if a past conviction qualifies as an ACCA predicate. See Shepard v. United States, 544 U. S. 13, 20 (2005). Fourth, in those cases in which the defendant pleaded guilty to the state drug charges, the plea colloquy will very often include a statement by the trial judge regarding the maximum penalty. This is mandated by Federal Rule of Criminal Procedure 11(b)(1)(H), and many States have similar requirements. Finally, in those cases in which the records that may properly be consulted do not show that the defendant faced the possibility of a recidivist enhancement, it may well be that the Government will be precluded from establishing that a conviction was for a qualifying offense. The mere possibility that some future cases might present difficulties cannot justify a reading of ACCA that disregards the clear meaning of the statutory language.

(record cites omitted). This paragraph is critical, because it reveals that the Government must establish that the defendant actually faced a recidivist enhancement in the prior proceedings, not simply that a recidivist enhancement was possible. So, for example, it would not be enough to show that a defendant was convicted of a drug offense under a statute providing for a recidivist enhancement, and that he had previously been convicted of a qualifying predicate. If that was the case, then the Court would have just said that. Instead, the Court's examples demonstrate the Government must show---based on the sentence imposed, Shepard-type documents, or maybe a transcript of a plea colloquy---that the enhanced penalty was actually in play in the state case. And if the Government can't do that, then the ACCA enhancement would not apply.

The Court saved the most controversial holding for last. And by "controversial" I mean that it completely ignores recent Supreme Court holdings from the Apprendi line of cases. It also involves a question that Rodriquez conceded, in his brief in opposition, that he'd waived, so there's good reason to question why the Court addresses the issue in the first place.

Rodriquez argued that, in a state where mandatory sentencing guidelines cap a sentence below the theoretically applicable statutory maximum, the guidelines maximum is the "maximum term of imprisonment" for ACCA purposes. For example, even though the relevant statutes authorized a sentence of up to ten years' imprisonment for at least two of Rodriquez's drug convictions, it appears that the Washington sentencing guidelines authorized a sentence of no more than 48 months.

But the Court held that Congress intended for the "maximum term of imprisonment" to be the highest sentence authorized by statute, not the highest sentence available under sentencing guidelines. First, the Court said, "the top sentence in a guidelines range is generally not really the 'maximum term . . . prescribed by law' for the 'offense' because guidelines systems typically allow a sentencing judge to impose a sentence that exceeds the top of the guidelines range under appropriate circumstances."

Astonishingly, the Court doesn't attempt to reconcile this conclusion with its recent holdings in Blakely or Cunningham. The effect of those decisions is that the highest possible maximum sentence is not authorized in every case; that is, for some defendants in Washington, California, and other states that have Blakely-ized their guidelines, a sentence in excess of the guidelines maximum (or California's DSL default middle-term) would violate the Fifth and Sixth Amendment rights to proof beyond a reasonable doubt and to trial by jury. But not only is the Court completely silent on this glaring conflict, it actually cites the availability of upward departures under the current post-Booker advisory federal Sentencing Guidelines, and under the pre-Blakely Washington sentencing guidelines, as evidence that "essentially the same characteristic was shared by all of the mandatory guidelines systems in existence at the time of the enactment of the ACCA provision at issue in this case."

And that appears to be the lynchpin of the Court's holding, because it adds that "the concept of the 'maximum' term of imprisonment or sentence prescribed by law was used in many statutes that predated the enactment of ACCA and the federal Sentencing Reform Act of 1984, and in all those statutes the concept necessarily referred to the maximum term prescribed by the relevant criminal statute, not the top of the sentencing guideline range." Thus, "[i]n light of this established pattern and the relative newness of sentencing guidelines systems when the ACCA provision at issue here was added, we conclude that Congress meant the concept of the 'maximum term of imprisonment' prescribed by law for an 'offense' to have [the] same meaning in ACCA.

Recognizing that this result also seems inconsistent with the Court's construction of the Federal Juvenile Delinquency Act in United States v. R.L.C., the Court had this to say:
The statutory provision there, 18 U. S. C. §5037(c), set out the term of official detention for a juvenile found to be a delinquent. This provision was amended by the Sentencing Reform Act, and then amended again two years later. As thus amended, the provision did not refer to the "maximum term of imprisonment" prescribed for an "offense." Rather, the provision focused on the particular juvenile being sentenced. It provided that, "‘in the case of a juvenile who is less than eighteen years old,’" official detention could not extend beyond the earlier of two dates: the juvenile’s 21st birthday or "‘the maximum term of imprisonment that would be authorized if the juvenile had been tried and convicted as an adult.’" Because this provision clearly focuses on the circumstances of the particular juvenile and not on the offense, it is not analogous to the ACCA provision that is before us in this case.

(most citation clutter omitted).

All this brings up a couple of questions. First, the Court is likely correct about circa ACCA/SRA-era understanding of the interaction between guidelines and statutory maximums. But that's no answer to the question of why that understanding should remain controlling more than twenty years later after the Court has repeatedly addressed that very issue and held that, depending on the operation of the state sentencing scheme, a sentence in excess of the guidelines maximum may be constitutionally prohibited. It also calls into question the so-called remedy in Booker, which rested on the notion that Congress originally intended for the federal Guidelines to be mandatory, but would not have wanted them to be mandatory if that would implicate constitutional procedural protections concerning pleading, the burden of proof, and the identity of the fact-finder for Guidelines calculations. If the Court could revise the Sentencing Reform Act to take into account what it believed Congress' intent would have been in light of the Booker merits holding, then why can't it reevaluate Congressional understanding of the term "maximum term of imprisonment" in light of Blakely, Booker, and Cunningham?

A second question is whether the same would hold true for a defendant whose relevant state convictions, in a mandatory-guidelines state, occurred after Blakely, especially a state that formally "Blakely-ized" its guidelines by judicial decision or legislative action. We know that, by that time, the understanding of a guidelines maximum was different than it was twenty-odd years ago. And we know that, at least as of 2004, Congress is well aware that in some states the guidelines maximum "trumps" a higher statutory maximum. It's hard to say for sure whether the Court would view that situation differently, but the majority opinion does provide some support for an argument that in such a situation the guidelines maximum is the controlling one for ACCA purposes:
The United States Sentencing Guidelines, for example, permit "upward departures," see United States Sentencing Commission, Guidelines Manual §5K2.0 (Nov. 2007), and essentially the same characteristic was shared by all of the mandatory guidelines system in existence at the time of the enactment of the ACCA provision at issue in this case. (Following this pattern, Washington law likewise provided at the time of respondent’s state convictions that a sentencing judge could "impose a sentence outsidethe standard sentence range" upon a finding "that there [were] substantial and compelling reasons justifying an exceptional sentence." Wash. Rev. Code §9.94A.120(2) (1994).)

(emphasis added). That's hardly conclusive, I know, but it's hard not to ask the question when it might provide some explanation for the Court's otherwise inexplicable silence on Blakely and kin.

You might read this portion of the case as a refusal on the part of some justices to accept the entire Apprendi line of cases, similar to Justice Breyer's position in Harris. But that doesn't explain why both Justices Scalia and Thomas join the majority here. They've both been staunch proponents of the rule of Apprendi (with Justice Thomas being arguably the staunchest), and Justice Scalia wrote Blakely. Why they joined this opinion is a mystery, as neither one of them wrote a separate opinion in the case. And their two votes were critical for the six-justice majority.

In fact, you might have expected them to join Justice Souter's outstanding dissent, as Justices Stevens and Ginsburg did. Justice Souter's major disagreement is elegantly simple: the statute is ambiguous on the question presented because the Government's and defendant's competing interpretations are at least equally plausible, thus triggering the rule of lenity. That rule prohibits reading the statute "so as to increase the penalty that it places on an individual when such an intepretation can be based on no more than a guess as to what Congress intended." As applied here, that would mean that the "maximum term of imprisonment" be read to refer to the maximum for the base offense, without reference to any recidivist enhancements.

Apart from that, Justice Souter catalogues a number of problems with the majority's interpretation of the statute, including the wide variation in the mechanics and severity of states' recidivist schemes, and the practical problems in determining exactly what the maximum sentence might have been for a particular recidivist, as opposed to the maximum for a basic offense. He also takes issue with the majority's resolution of the guidelines-vs.-statutory maximum question, although (strangely) without mentioning Blakely, Booker, and Cunningham. Instead, Justice Souter points out the arbitrariness of relying on one particular offender characteristic (recidivism) to the exclusion of other offender characteristics that are typically taken into account in guidelines calculations, as they are both "prescribed by law":
The Court tries to deflect the implication of its position by denying that state sentencing guidelines really do set maximum penalties, since typically they allow a judge to depart from them, up or down, when specified conditions are met. But while this is true, the objection stands. However a particular mandatory guideline scheme works, it sets a maximum somewhere; if it includes conditions affecting what would otherwise be a guideline maximum, the top of the range as affected should be the relevant maximum on the Court’s reading of the statute. Indeed, the factual conditions involved are usually offender characteristics, and if the ACCA is going to count them under offense-defining statutes or freestanding recidivism laws, those same facts ought to count under a guideline rule (whether setting, or authorizing a departure from, a particular limit). There is no practical difference whether maximums are adjusted by a statute, a statutorily mandated guideline, or a guideline-specified departure; wherever a "prescri[ption] by law" resides, itought to be honored by the ACCA court.
I encourage you to read the whole thing.

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New Issue of "The Liberty Legend"

The Spring 2008 issue of "The Liberty Legend," the newsletter of the National Association of Federal Defenders, is hot off the presses. Lots of good stuff, as usual, including an impressive list of FPD victories from around the country.

One issue not enough for you? Then check out back issues at this link.

Friday, May 16, 2008

Practitioner's Guide to the Fifth Circuit

Stymied by the mystery that is the Fifth Circuit? Luckily, Raymond Ward of "the (new) legal writer" hips us to the Practitioner’s Guide to the U.S. Court of Appeals for the Fifth Circuit, which gives a soup-to-nuts explanation of how the appeals process works in New Orleans. And while you're in the neighborhood, you should also drop by the Fifth Circuit library, which is chock full of handy information and links.


Thursday, May 15, 2008

NY 2d Degree Manslaughter Is Non-Generic, Doesn't Necessarily Constitute 16-Level COV Under U.S.S.G. §2L1.2

United States v. Bonilla, No. 06-40894 (5th Cir. Apr. 10, 2008) (Jones, Davis; Garza, dissenting)

This is the first of two posts on this case. I'm addressing the two issues resolved by the opinion separately, because they both merit their own discussion, and considering them both at the same time would make for too long a post. In Episode One, we'll look at how the court resolved a crime-of-violence issue. There's nothing new or remarkable in the court's analysis, but it's good to go through it because it so clearly illustrates some fundamentals of the Taylor/Shepard categorical approach.

Bonilla pleaded guilty to illegal reentry. He had a prior New York conviction for attempted second-degree manslaughter, which according to the probation officer triggered a 16-level crime-of-violence enhancement under guideline §2L1.2(b)(1)(A)(ii). In support, the probation officer offered two documents: 1) a copy of the criminal information charging Bonilla with actual second-degree manslaughter, rather than an attempt, and 2) a "Certificate of Disposition" identifying the statute of conviction, but not the particular subsection of the statute.

Bonilla objected to the enhancement, arguing that the state court documents failed to establish that he was convicted of an offense constituting a crime of violence because they did not identify the specific staututory subsection under which he was convicted, and at least some of the alternative ways of committing attempted second degree manslaughter don't satisfy guideline §2L1.2's 16-level COV definition.

The district court overruled Bonilla's objection, and sentenced him at the bottom of the resulting 41- to 51-month Guidelines range. Bonilla challenged that determination on appeal.

New York's second degree manslaughter statute, N.Y. Penal Law § 125.15, has three separate subsections each defining a separate way in which the offense can be committed: 1) recklessly causing another's death, 2) committing an unauthorized abortional act that causes the woman's death, or 3) intentionally causing or aiding a suicide. The court of appeals agreed with Bonilla that the two documents from his prior conviction did not pare down the statute to a particular subsection. Although the criminal information charged him with a reckless killing under subsection (1) of the statute, that document could not be used to pare down the statute because he was not convicted of that charge. Instead, Bonilla was convicted of attempted manslaughter. The COD could be used to identify N.Y. Penal Law § 125.15 as the statute of conviction (see United States v. Neri-Hernandez), but since it did not specify a particular statutory subsection, it did not pare down the statute.

Consequently, the court had to determine whether there was any conduct encompassed by N.Y. Penal Law § 125.15 that falls outside the generic definition of manslaughter. And it turns out that there is some. Both subsections (1) and (2) require a mens rea less than intent, so they fall outside the generic definition of voluntary manslaughter, which requires an intentional homicide. Involuntary manslaughter, as we know from United States v. Dominguez-Ochoa, requires a mens rea of at least recklessness, so § 125.15(1) meets that standard. But § 125.15(2)---performing an unauthorized abortional act resulting in the woman's death---does not. Under New York law, subsection (2) requires that the abortional act be taken "with intent to cause a miscarriage, but the death element is strict liability. "This suggests that if an act intended to cause a miscarriage results in a female’s death, a defendant could be prosecuted under subsection (2) irrespective of the defendant’s mental state towards the risk of death posed by his behavior. Therefore, subsection (2) makes § 125.15 broader than the generic, contemporary meaning of involuntary manslaughter."

The Government argued that there was no evidence that Bonilla had in fact been convicted under § 125.15(2). But as the court pointed out, the Government bears the burden of establishing the factual predicate necessary for the enhancement. Consequently, the lack of evidence identifying which subsection of § 125.15 formed the basis for Bonilla's conviction means the Government failed to carry its burden of proof. "Had the government produced useable evidence indicating that Bonilla was convicted under subsection (1), then his conviction certainly would qualify under the contemporary, generic definition of involuntary manslaughter. However, the government cannot rely on a lack of evidence to foreclose the possibility that Bonilla’s conviction fell under another subsection."

But as you'll see in the next post on this case, the district court's error didn't result in vacation of the sentence. Tune in next time to find out why.

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Wednesday, May 14, 2008

Failure to Pay Child Support Obligation is a Continuing Offense

United States v. Edelkind, No. 06-30777 (5th Cir. Apr. 15, 2008) (Reavley, Smith, Dennis)

Title 18 U.S.C. § 228(a)(3) makes is a crime to "willfully fail[] to pay a support obligation with respect to a child who resides in another State, if such obligation has remained unpaid for a period longer than two years, or is greater than $10,000[.]" The statute of limitations for this offense is five years. When does the SOL begin to run?

Edelkind, who was convicted of this offense, argued that the crime is complete as soon as the arrearage reaches two years or $10,000, and that the SOL begins running at that point. He made this argument because his unpaid child support obligation reached $10,000 in October 1999, at the latest, meaning that under his interpretation of the offense the SOL expired in October 2004. He wasn't indicted until October 2005.

The Government argued that § 228(a)(3) is a continuing offense and does not terminate until the obligation is paid or the person is indicted. The court agreed, for several reasons. First, other federal courts of appeals, as well of a majority of state courts that have addressed this issue, treat failure-to-pay as a continuing offense. "A strong majority of the state courts is significant in this context because Congress’s driving concern when enacting 18 U.S.C. § 228(a) was to strengthen the enforcement of state crimes of wilful failure to pay child support when a parent crosses state lines."

Second, statutory language and legislative history indicate that Congress intended this to be a continuing offense. "The nature of a continuing offense is that 'each day's acts bring a renewed threat of the substantive evil Congress sought to prevent.'" The statute's reference to a period "longer than" two years and to an amount "greater than" $10,000 demonstrates that "Congress . . . imagined the criminalized conduct to last continuously beyond a 2-year period or the accumulation over $10,000." Also, statements in legislative history show that Congress sought to target parents who shirk their legal and financial obligations to their children, as well as the burden on custodial parents who have to constantly seek to have support orders enforced.

Finally, the court pointed out that under Edelkind's proposed interpretation of the statute, what Congress intended to be a single crime could potentially become a number of crimes.
[I]f a defendant owes, for example, $11,000 a month in support, and refuses to pay, the crime [would be] complete every single month. In one year, the defendant could conceivably be responsible for twelve separate crimes of $11,000, each carrying with it a potential sentence of up to 24 months for a total of a 264 months maximum. Under a “continuous offense” approach, however, the defendant would only be accountable for one continuous crime involving losses of $132,000, and would be subject to just a 24 month maximum sentence. Congress clearly did not intend to attach lengthy jail-times for this crime, but merely wanted to use the threat of a two-year maximum to create an incentive for “deadbeat” parents to fulfill their ongoing obligations to their children.


Tuesday, May 13, 2008

When No Guideline Yet Exists for Offense, and Sentencing Commission Has Proposed One, It's Plain Error Not to Consider It at Sentencing

United States v. Sanchez, No. 07-30578 (5th Cir. May 13, 2008) (Jones, Barksdale, Stewart)

Lots of Sentencing Guidelines amendments are bad. But every now and then the Commission proposes an amendment that would actually result in reduced sentences. Wouldn't you like to be able to take advantage of those proposed amendments before they actually go into effect? Well here's some support for an argument that the district court has to at least consider the nascent guidelines.

Our facts: Sanchez was convicted of failing to register as a sex offender, in violation of 18 U.S.C. § 2250. At the time of his sentencing, there was no specific guideline applicable to that crime, and the court concluded that there was no sufficiently analogous guideline to apply. The district court noted that the statutory maximum was 10 years, stated it had considered the 3553(a) factors, and sentenced Sanchez to 60 months' imprisonment.

"However, unbeknownst to the district court or the parties, prior to Sanchez’s sentencing on June 11, 2007, the Sentencing Commission had promulgated and submitted to Congress a proposed guideline for violations of § 2250." And that guideline would have resulted in an advisory range much lower than the 60 months Sanchez received (either 15 to 21 or 21 to 27, depending on which party's calculation is correct).

Sanchez appealed, arguing that the district court erred by not considering the proposed guideline when imposing sentence. Since he didn't raise this argument in the district court, the court of appeals reviewed for plain error.

The court first concluded that there was error, and that it was plain. Under Gall, it is "signficant procedural error" to miscalculate or to fail to calculate the applicable Guidelines range. When there is no applicable guideline for a felony offense, guideline §2X1.5 directs a court to "apply the most analogous offense guideline." If there's not one of those, then "the provisions of 18 U.S.C. § 3553 shall control, except that any guidelines and policy statements that can be applied meaningfully in the absence of a Chapter Two offense guideline shall remain applicable.” In United States v. Armstead, the Fifth Circuit stated that, "'[w]hen dealing with a new statutory crime, we believe the courts should defer to the authority of the Sentencing Commission to define, by amending the guidelines, which particular guideline will be applicable to the new crime.'" Furthermore, where "'evidence of the [Sentencing] Commission’s policies and goals are publicly available to the courts, we should utilize those proposed new amendments in making determinations as to ‘analogous guidelines’ for sentencing purposes under § 2X5.1.'" Thus,
although Armstead arose in a different context, the Court’s statements regarding the propriety of considering proposed guidelines are relevant to the case at hand. Here, although there was no applicable guideline at the time of sentencing, “evidence of the [Sentencing] Commission’s policies and goals” was publicly available to the district court in the form of the proposed amendments to the guidelines. Id. Therefore, the district court should have “defer[red] to the authority of the Sentencing Commission” and utilized the proposed new amendments in determining Sanchez’s sentencing range. The district court’s failure to do so constituted plain error.

And that failure affected Sanchez's substantial rights under the United States v. Villegas standard. The fact that his sentence was more than twice as long as the high end of even the Government's calculations under the proposed guideline was enough to show that, absent the error, Sanchez would have received a different sentence. For the same reason, "this plain error also affects the fairness of the judicial proceedings and warrants the exercise of our discretion to correct the error."

But lest defense attorneys get any wise ideas, the opinion concludes with this admonition:
Finally, we must emphasize the narrowness of our holding. We hold only that, where, at the time of sentencing there is no guideline in effect for the particular offense of conviction, and the Sentencing Commission has promulgated a proposed guideline applicable to the offense of conviction, the district court’s failure to consider the proposed guideline when sentencing the defendant may result in reversible plain error.

Nevertheless, the rationale for considering new offense guidelines would surely seem to apply any time there's a proposed amendment waiting to take effect, even amendments to existing guidelines. That's especially so now that the Guidelines are merely advisory, rather than mandatory. So you might not want to wait until November 1st to haul out the good part of these proposed amendments.

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Panel Divides Over Aggravated Felony Definition and Categorical Approach, Deepens Circuit Split On Those Questions

Arguelles-Olivares v. Mukasey, No. 05-60914 (5th Cir. Apr. 22, 2008) (Garwood, Owen; Dennis, dissenting)

This case presents two very interesting questions---both of which divide the panel---concerning one of the more obscure backwaters of the aggravated felony definition: 8 U.S.C. § 1101(a)(43)(M). That provision incluces as an aggravated felony “an offense that (i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or (ii) is described in section 7201 of Title 26 (relating to tax evasion) in which the revenue loss to the government exceeds $10,000.” The questions are 1) whether tax offenses other than tax evasion can be aggravated felonies under (a)(43)(M) (in this case the offense in question was the failure to file a tax return in violation of 26 U.S.C. § 7206(1)), and 2) whether a court is limited to the Taylor/Shepard categorical approach when determining whether a tax offense involved a loss in excess of $10,000. As you might imagine, the panel resolves these questions---particularly the second one---in a way that raises even more questions for the application of this provision in criminal cases.

The first question has generated a circuit split. The Third Circuit, over a dissent by then-Judge Alito, held in Lee v. Ashcroft that tax evasion is the only tax offense that can fall within the ambit of (a)(43)(M). Lee reasoned that
subsection (M)(ii) would be “mere surplusage” if subsection (M)(i) included tax offenses because “the government has not identified, and we are unable to envision” “a case where a conviction for tax evasion would not involve fraud or deceit,” and that “the principle that the specific governs the general also favors the interpretation that subsection (M)(ii) identifies the only removable tax offense, tax evasion, while subsection (M)(i) does not apply to tax offenses.” The Third Circuit also reasoned that “for Congress to select tax evasion as the [only] ‘aggravated’ tax felony, justifying removal of an alien who committed it, while sparing lesser tax felons, is thoroughly consistent with the history and structure of criminal tax offenses.”

Finally, Lee concluded that, to the extent that (a)(43)(M) is ambiguous on this point, the ambiguity must be construed in favor of the alien.

The Ninth Circuit, on the other hand, and Judge Alito's dissent in Lee, concluded that (a)(43)(M) isn't ambiguous at all. The majority here agreed, holding that "Congress did not intend to single out tax evasion under 26 U.S.C. § 7201 for inclusion among aggravated felonies to the exclusion of all other tax felonies."

Congress may well have seen subsection 43(M)(ii) as a necessary addition to subsection 43(M) since neither fraud nor deceit is a specific element of the crime of tax evasion under 26 U.S.C. § 7201,15 as both the dissent in Lee and the Ninth Circuit recognized. Moreover, it is difficult to discern why Congress would want only a violation of 26 U.S.C. § 7201 involving $10,000 or more to constitute an aggravated felony, but not tax felonies involving fraud and deceit and the same amount of loss to the Government fisc.

Having concluded that failure to file a tax return can be an aggravated felony under (a)(43)(M), the majority confronted Arguelles's argument that "there is no evidence that his tax offense involved $10,000 or more because the judgment of conviction does not mention the actual loss," and that the Taylor/Shepard categorical approach precludes a court from relying on a PSR to determine the loss amount.

The majority disagreed, for a couple of reasons. First, relying on the Fifth Circuit's opaque decision in James v. Gonzales, it held that Congress did not intend for the categorical approach to apply to the loss-amount determination under (a)(43)(M) because loss amount is not an element of many tax and fraud offenses.

As a matter of statutory construction, its seems thatCongress intended for the inquiry under 8 U.S.C. § 1227(a)(2)(A)(iii) and § 1101(a)(43)(M) to be whether, as a categorical matter, the alien was convicted of “an offense . . . that involves fraud or deceit” as an element of the offense or that the offense necessarily entails fraud or deceit. The requirement that the offense was one “in which the loss to the victim or victims exceeds $10,000” is a factual matter to be determined from the record of conviction, but the amount of loss is not required to be an element of the conviction itself.

The majority acknowledged that it has applied the categorical approach in the immigration context in the past. But it asserted that the Fifth Circuit has done so only for purposes of determining whether an alien was convicted of a generic offense, not for determining loss amount. It also added that the rationale for employing the categorical approach doesn't apply when loss amount is in question, beacuse the INA simply requires the Government to establish an alien's deportability by clear and convincing evidence. As long as a PSR meets that standard, it can be used to determine loss amount. (And as it turns out, there's a circuit split on this question, too. The Second and Ninth Circuits respectively require the loss amount to have been pleaded and either found by the trier of fact or admitted by the alien in the prior proceedings.)

Now all that's bad enough, but here's the most troubling part:

An addendum to the PSR reflects that Arguelles-Olivares had no objections to the PSR. The PSR additionallly states that a probation officer interviewed Arguelles-Olivares regarding the report and that Arguelles-Olivares agreed with the chart in the report showing the tax losses by year, including a loss of $75,982 for 1999. The district court adopted the PSR’s factual findings. Arguelles-Olivares does not dispute that he agreed to the facts set forth in the PSR including, specifically, the fact that the amounts of loss for each year were part of the plea agreement and that they totaled in excess of $10,000 for each year. Arguelles-Olivares’s failure to object to these facts in the PSR, his admission that they were correct, and the district court’s adoption of these facts is clear and convincing evidence that the loss to the government was in excess of $10,000.

Now we've seen this sort of reasoning before, in United States v. Martinez-Vega. (Interestingly, in Martinez-Vega Judge Owen---who writes for the majority here---expressed skepticism that a defendant's admission that "everything in the PSR is correct" actually constitutes an admission that everything in the PSR is true, rather than simply an admission that the PSR accurately represents what other people or documents say.)

But as Judge Dennis points out in his excellent dissent,

the majority’s characterization of Arguelles as having agreed to certain facts relating to the loss amount for the 1999 tax year is supported only by self-serving references to the probation officer’s statements in the PSR and its addendum. The majority does not – because it cannot – point to any statement in the record of conviction by which Arguelles admitted to or failed to object to the factual statements contained in the PSR, as the Government did not include a transcript of the plea colloquy or the sentencing hearing in the immigration record, in addition to not including the Factual Basis and Plea Agreement.

(He also faults DHS for not introducing the plea agreement into evidence in the removal proceedings: "If the written Plea Agreement discloses clearly that Arguelles underpaid his 1999 taxes by more than $10,000, the DHS’s failure to file it has caused this court to expend time and effort unnecessarily on the appeal, the oral argument and the opinion writing on this issue. If the Plea Agreement does not contain clear evidence to this effect, then a serious question is raised as to whether the DHS has dealt fairly with Arguelles and honorably with this court.")

Dennis also disagrees with the rest of the majority opinion. He would hold that the only tax offense covered by (a)(43)(M) is tax evasion, and that there's no reason to abandon the categorical approach here.

Of course, this case opens up some other interesting questions. Would the majority's holding that (a)(43)(M) can include any tax offense apply in a criminal case when a prior tax conviction is being offered to support an aggravated felony sentence enhancement? Presumably so, since the Supreme Court has observed that statutes with criminal and immigration applications should be construed consistently in both contexts. But what about the holding concerning the application vel non of the categorical approach and the use of the PSR to determine loss amount? The majority's holding on that point expressly relies on the INA's burden of proof requirement in civil removal proceedings. So would that approach carry over to the criminal context, as well? Arguably not. After all, Judge Owen---who writes for the majority here---questioned such an approach in United States v. Martinez-Vega. Plus, considering a PSR in a criminal case in this manner would raise a much thornier problem in light of the rationale underlying Taylor and Shepard.

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Friday, May 02, 2008

More Guidelines Amendments On the Horizon

Yesterday, in addition to promulgating some Guidelines amendments effective immediately, the Sentencing Commission submitted a new slate of amendments to Congress (official version, and redline). This group of amendments will take effect on November 1, 2008, absent Congressional action. Most of these amendments address matters that don't come up all that often (false liens, official corruption, animal fighting, and some technical issues). But there are a couple of amendments that you'll want to take a close look at.

First, the Commission has finally acknowledged the Booker line of cases in the Guidelines introduction found at the beginning of Chapter One, and put quite an interesting spin on them. According to the Commission, those cases emphasize the "continuing importance of the guidelines in the sentencing determination." There's also a paragraph that all but invites Congress to "exercise its authority through specific directives to the Commission with respect to the guidelines," noting that line in Kimbrough about how Congress knows how to do so if it wants to. (Even though several paragraphs earlier there's a paean to Mistretta.)

Second, there's some good and bad changes to guideline §2L1.2. The amendment effectively overrules the Sarmiento-Funes line of cases by defining "forcible sex offense" in the 16-level COV definition to include offenses "where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced." The synopsis of the amendment specifically mentions that this change "would result in an outcome that is contrary to cases" such as Gomez-Gomez, Luciano-Rodriguez, and Sarmiento-Funes. (Making one wonder whether the Fives will go forward with en banc review in Gomez-Gomez.)

The amendment also effectively overrules United States v. Gonzales by adding an "offer to sell" a controlled substance as one of the acts constituting a DTO for purposes of the 12- and 16-level enhancements.

Finally, the amendment adds an application note suggesting that "a departure may be warranted" in "cases in which the applicable offense level substantially overstates or understates the seriousness of a prior conviction[,]" and gives a couple of examples. Such as when a defendant isn't hit with a 12- or 16-level DTO enhancement for a drug offense involving a quantity inconsistent with personal use (effectively codifying the dicta in Lopez-Salas, which held that possession of even a large quantity of a controlled substance isn't a DTO if the offense lacks an intent-to-distribute element, but also suggested that an upward departure might be warranted in that instance). On the other hand (and here's the good part I mentioned earlier), the note also says that "[i]n a case in which subsection (b)(1)(A) [the 16-level bump] applies, and the prior conviction does not meet the definition of aggravated felony at 8 U.S.C. § 1101(a)(43), a downward departure may be warranted." Such as a burglary-of-a-dwelling conviction for which the guy got a sentence of less than one year.

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Thursday, May 01, 2008

New Guidelines Effective March 1, 2008

Not only is today Law Day, but it's also the date on which some emergency Sentencing Guidelines amendments take effect. They include:
  • a temporary emergency amendment to guideline §2B1.1 to increase penalties for disaster and emergency relief fraud
  • correction of the "bad math" problem that cropped up when the Commission revised the crack guidelines
  • revision of policy statement §1B1.10 to "clarify[] when, and to what extent, a sentencing reduction is considered consistent with the policy statement and therefore authorized under 18 U.S.C. § 3582(c)(2)," and designating the "bad math" corrective amendment as one that may be applied retroactively
Take a gander at official version of these amendments or a reader-friendly redline.


Circuit Split Over Whether Court Must Consider Mistried Counts in Collateral Estoppel Analysis?

United States v. Yeager, No. 06-20321 (5th Cir. Mar. 17, 2008) (Higginbotham, Garza, Benavides)

Tired of reading about one crime-of-violence case after another? Well here's some legal sorbet to cleanse your palate: a discussion of a (possible) circuit split over whether a court must consider mistried counts along with acquitted counts when determining whether collateral estoppel bars a retrial.

Yeager was indicted on a number of charges arising out of the Enron debacle. The jury found him not guilty of some counts, but hung on the others. The Government then obtained a new indictment, recharging some of the mistried counts. Yeager moved to dismiss the indictment, arguing that his "previous acquittals collaterally estopped the Government from pursuing these charges." The district court denied the motion, and Yeager appealed.

Our legal landscape:

The Fifth Amendment’s guarantee against double jeopardy incorporates the collateral estoppel doctrine. Collateral estoppel “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” As traditionally understood, the Double Jeopardy Clause precludes multiple prosecutions and multiple punishments for the same offense. Ashe [v. Swenson], however, limits successive prosecution of defendants, not for the same offenses but for different offenses. After an acquittal, Ashe bars the government from prosecuting defendants on a different charge “if one of the facts necessarily determined in the former trial is an essential element of the subsequent prosecution.” Defendants asserting collateral estoppel carry the burden to make this showing.

To determine whether collateral estoppel bars a subsequent criminal prosecution, courts must conduct a two-step analysis. “Initially, we must decide which facts necessarily were decided in the first proceeding. Then we must consider whether the facts necessarily decided in the first trial constitute essential elements of the offense in the second trial.”

(cites omitted).

The court held that, if it considered the acquitted counts by themselves, collateral estoppel would bar retrial. But the Fifth Circuit case of United States v. Larkin "requires that we consider mistried counts in our collateral estoppel analysis; and, in particular, under Larkin, the presence of mistried counts diminishes the likelihood that, in acquitting defendants on related counts, the jury made a factual determination that bars a retrial."

Viewed through that lens, the court held that Yeager failed to carry his burden. Without going into the tedious details here, just understand that the court concluded that there were four possible explanations for the jury's decision. Two of those scenarios necessarily involved findings that would collaterally estop the Government from pursuing the new charges, and two of those scenarios would not. Because it was impossible to tell which one of those scenarios happened in this case, the court found that collateral estoppel did not bar retrial on the new charges.

In sticking to Larkin, the court rejected the Government's argument for an extension of the Supreme Court's decision in United States v. Powell, which bars the application of collateral estoppel when there are inconsistent verdicts. A number of other circuits have held that Powell doesn't apply in this situation: because there could be a number of reasons why a jury acquitted on some counts and hung on others, there is not necessarily any inconsistency present.

And that's where the circuit split comes in. The court says it agrees with these other circuits to the extent that "it is impossible to discern definitively why a jury hung. Therefore, we also reject the Government's argument because it requires us to necessarily find an inconsistency where one may not exist." But those courts apparently, for whatever reasons, "ignored the mistried counts after they determined that Powell does not apply. Because our precedent dictates that we weigh mistried counts, however, we cannot do the same."

This sure looks like a circuit split, but it's hard to say for sure. The opinion notes that "[w]e can only speculate as to why our sister circuits did not also consider the mistried counts in its analysis under Ashe. While our precedent requires us to weigh mistried counts in determining whether collateral estoppel applies under the Ashe framework, the other circuits may not be similarly bound by their precedent."

Nevertheless, this case looks like a likely candidate for a cert petition. In fact, without having read those other circuits' decisions, I'll go out on a limb and say this is a likely candidate for a cert grant. Not only because of the apparent circuit split, but also because it's an interesting question and because the Government hasn't fared well on appeal with its Enron/Arthur Andersen prosecutions. Just remember, you heard it here first. (Unless someone else has already predicted this, which wouldn't surprise me.)

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Summary Denial of Unequivocal Request to Proceed Pro Se is Error & Requires Remand for Faretta Hearing

United States v. Cano, No. 06-10940 (5th Cir. Mar. 10, 2008) (Higginbotham, Davis, Smith)

A familiar factual scenario: traffic stop, cocaine, federal charges. After Cano's attorney filed a motion to suppress the cocaine, Cano filed a motion of his own seeking to act as lead counsel, with his retained attorney serving as co-counsel. The district court denied the motion for hybrid representation because Cano lacked access to a law library. After a jury convicted Cano of the cocaine charges, and before sentencing, Cano filed a pro se notice of appeal (which the court of appeals dismissed as premature). Cano then filed a motion asking for a judgment of acquittal, and "to proceed pro se at sentencing and on appeal." The district court summarily denied the motion.

Cano raised two issues on appeal. First, he challenged the denial of his suppression motion:
Cano concedes that the initial stop of the vehicle was legal but urges that the officers had no justification to detain him beyond that initial stop. On appeal, he argues that that illegal detention rendered his consent to search involuntary. At the suppression hearing, however, he did not challenge the effectiveness of his consent, but its scope. Those are separate arguments, so the issue is waived, and the judgment of conviction stands.
The opinion also mentions that "[a]t the hearing, Cano framed his suppression argument as follows: 'We are not disputing the lawfulness of the stop. We are not disputing the fact that Mr. Cano, in fact, gave the officers consent initial to search the vehicle. The issue before the Court is whether or not these officers went beyond the scope of his consent.'" So this holding shouldn't be taken to mean that a defendant has to raise consent issues as an initial matter. After all, once a defendant shows that he was subjected to a warrantless search or seizure, the Government bears the burden of establishing that the search or seizure (or both) were permitted by one of the countless exceptions to the Fourth Amendment's warrant requirement. So if the Government wants to rely on consent, it has to bring up the issue and show that the consent was valid and that the search didn't exceed the scope of the consent. But once that happens, a defendant can't concede the voluntariness of the consent in the district court and then argue on appeal that the consent was involuntary. That's really all the court is saying here.

Second, Cano argued that the district court erred by denying his motion to proceed pro se at sentencing. The court of appeals agreed.

Faretta extends to sentencing hearings, and "assertion of the right proceeds in two steps. First, the defendant must unequivocally inform the court of the desire to represent himself. Second, the court must hold a Faretta hearing to determine whether the defendant is 'knowingly and intelligently' forgoing his right to appointed counsel and whether, by post-invocation action, he has waived the request."

Cano met the first requirement. Although the district court properly denied Cano's first motion, because there's no constitutional right to hybrid representation, Cano's second motion clearly and unequivocally expressed his desire to represent himself at sentencing. Leading to "an issue of first impression in our circuit[:]" "whether, in light of the new request, the district court was obligated to hold a hearing on Cano's motion."

The court answered the question "yes," because 1) that's the answer suggested by "the general tenor of our jurisprudence," 2) the factors that a district court must consider at a Faretta hearing "indicate that the district court must conduct a meaningful investigation into a defendant’s constitutionally protected request to represent himself; summary dismissal is insufficient[,]" and 3) "'Where a fundamental constitutional right, such as the right to counsel, is concerned, courts indulge every reasonable presumption against waiver.'"

So Cano gets a new sentencing after a Faretta hearing.

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