Friday, September 26, 2008

Panel Holds, Contrary to Prior Panel and Supreme Court Precedent, That TX Burglary of a Habitation Is Still a §2L1.2 16-Level COV

United States v. Cardenas-Cardenas, No. 08-40210 (5th Cir. Sept. 25, 2008) (per curiam) (Jolly, Benavides, Haynes)

The panel really should reconsider this decision, because it conflicts with prior panel precedent, treats binding Supreme Court predecent as dictum, and relies on state case law that is not on point for a critical issue in this case.

First, a little background. Recall that in United States v. Garcia-Mendez, the Fifth Circuit held that burglary of a habitation, in violation of Tex. Penal Code § 30.02(a)(1), is equivalent to "burglary of a dwelling," and thus a 16-level COV for purposes of guideline §2L1.2(b)(1)(A)(ii). Garcia had argued that the Texas offense is broader than the generic offense, because the Texas definition of "habitation" includes not just the habitation itself, but also structures "appurtenant to" the habitation. Without really addressing that argument, the court in Garcia-Mendez simply pointed to its earlier decision in United States v. Hornsby, which declared, without analysis, that "burglary of a habitation is considered a crime of violence" under the COV definition found in guideline §4B1.2.

Fast-forward to the Supreme Court's decision in James v. United States, which held that an offense under Florida's burglary statute constitutes a "violent felony" under the ACCA. Specifically, the Court held that the Florida offense qualifies under "residual clause" portion of the "violent felony" definition found in 18 U.S.C. § 924(e)(2)(B)(ii), which includes a crime that "is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]" (emphasis added). But on the way there, the Court also held that the offense is not equivalent to generic "burglary," because the Flordia statute reaches entries into a home's curtilage:
We agree that the inclusion of curtilage takes Florida’s underlying offense of burglary outside the definition of "generic burglary" set forth in Taylor, which requires an unlawful entry into, or remaining in, "a building or other structure." 495 U. S., at 598 (emphasis added). But that conclusion is not dispositive, because the Government does not argue that James’ conviction for attempted burglary constitutes "burglary" under § 924(e)(2)(B)(ii). Rather, it relies on the residual provision of that clause, which—as the Court has recognized—can cover conduct that is outside the strict definition of, but nevertheless similar to, generic burglary. Id., at 600, n. 9.

Which brings us to Cardenas-Cardenas, in which Mr. Cardenas argued that James effectively overruled Garcia-Mendez (which would mean the district court erred in assigning a 16-level COV enhancement on the basis of his prior Texas conviction for burglary of a habitation when calculating his Guidelines range). The court disagreed.

As for the curtilage question, the court said that,
In James, the Supreme Court noted in dicta that because the Florida burglary statute at issue in that case criminalized the mere unlawful entry onto the curtilage of a structure, rather than entry into the structure itself, the statute contemplates conduct beyond generic burglary. Id. at 1599. This, however, was not the holding of James, which did not present the issue whether burglary in Florida constitutes an enumerated offense that could be used to impose a guidelines sentencing adjustment under 2L1.2. Rather, James raised the question whether a Florida burglary conviction was a violent felony for purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(e). Id. at 1590; see also United States v. Gomez-Guerra, 485 F.3d 301, 303 (5th Cir.), cert. denied, 128 S. Ct. 156 (2007).

This is contrary to prior panel precedent, which has treated James's discussion of curtilage and burglary as a holding, not dictum, and as binding on the interpretation of "burglary of a dwelling" under guideline §2L1.2(b)(1)(A)(ii).

In United States v. Gomez-Guerra, a Fifth Circuit panel held that Florida's burglary statute is broader than generic burglary of a dwelling, and therefore not categorically a 16-level COV under §2L1.2, because it encompasses unauthorized entry into the curtilage around a dwelling, not just entry into the dwelling itself. Gomez-Guerra cited James as authority for that holding, quoting James's statement "that the inclusion of curtilage takes Florida’s underlying offense of burglary outside the definition of ‘generic burglary’ set forth in Taylor, which requires an unlawful entry into, or remaining in, ‘a building or other structure.’” By refusing to follow Gomez-Guerra's lead on that point, Cardenas-Cardenas violates the prior-panel-precedent rule. (It is also curious that Cardenas-Cardenas would reject this portion of James as dictum, when the Fifth Circuit has previously treated a James footnote as a reaffirmance of Almendarez-Torres, even though Almendarez-Torres's ongoing vitality was not at issue in James.)

Also, Gomez-Guerra is not the first opinion from the Fifth Circuit to treat the Supreme Court's interpretation of "burglary" in the ACCA's "violent felony" definition as binding for purposes of §2L1.2. Remember that the "generic burglary" definition James considered comes from the Supreme Court's decision in Taylor v. United States. In United States v. Murillo-Lopez, a §2L1.2 case, the Fifth Circuit held that "'burglary of a dwelling' includes the elements of generic burglary as stated in Taylor but it also includes, at a minimum, tents or vessels used for human habitation." Later, in United States v. Ortega-Gonzaga, also a §2L1.2 case, the Fifth Circuit reiterated that "[b]ecause 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.'" Thus, if Taylor's definition of generic burglary is binding on §2L1.2, then so is James's. (Not to mention the fact that it's strange for Cardenas-Cardenas to reject James on the ground that it involved the ACCA's "violent felony" definition rather than §2L1.2's COV definition, when the case that Cardenas-Cardenas treats as binding relied on a case interpreting §4B1.2's COV definition, which is nearly identical to the ACCA's "violent felony" definition.)

But these aren't the only flaws in Cardenas-Cardenas. The panel goes on to say that
Cardenas-Cardenas’s argument is unavailing even under the James dicta. In contrast to Florida’s burglary statute, “habitation” under § 30.02(a)(1) does not include the curtilage surrounding the habitable structure. See § 30.01(1); St. Julian v. State, 874 S.W.2d 669, 671 (Tex. Crim. App. 1994). Consequently, James does not undermine our conclusions in Garcia-Mendez that a violation of § 30.02(a)(1) constitutes “burglary of a dwelling” as that phrase is generically used and, concomitantly, that a conviction under that statute will support a sentencing adjustment under § 2L1.2(b)(1)(A)(ii).
This, too, is wrong, because St. Julian involved the definition of a "building" for purpose of the Texas burglary statute, not the term "habitation." The two are distinct, as footnote 3 of St. Julian explains (with emphasis added):
Appellant also urges us to follow Swain v. State, 583 S.W.2d 775 (Tex. Crim. App. 1979). However, Swain dealt with burglary of a habitation and for that reason is not applicable to the instant case. Brief analysis demonstrates why. The definitions provided in the Penal Code indicate that the “portion of a building” language at issue in the instant case is only meant to apply in the context of burglary of a building as opposed to burglary of a habitation. The Penal Code defines “habitation” to include “structure[s] appurtenant to or connected with,” but does not require the structure to be “enclosed.” Tex.Penal Code Ann. § 30.01(1)(B) (Vernon 1989). By contrast, the definition of “building” includes the requirement of enclosure without making reference to any structures “appurtenant to or connected with.” Id. at § 30.01(2). Therefore, Swain, a burglary of a habitation case which held that the burglary statute was not intended to encompass “an entry upon an unenclosed and unsecured stairway attached to a residence”, does not help us resolve the issue in the instant case.

(Cardenas-Cardenas's reliance on St. Julian can perhaps be blamed on Gomez-Guerra, which cited it as well (albeit for a background point that wasn't essential to the holding). But it's hard to ignore that foonote.)

So we know St. Julian isn't on point, but what about Swain? Well, it doesn't mean that the Cardenas-Cardenas panel is right about curtilage under the Texas statute. After all, the statutory definition of "habitation" includes structures "appurtenant to" a dwelling. And there are cases holding that outlying structures, such as an unattached garage, are appurtenant to a dwelling and therefore covered by the "habitation" definition. See, e.g., Jones v. State, 690 S.W.2d 318, 319-20 (Tex. App.–Dallas 1985, pet. ref’d). Reading the statute and the case law together, it appears that "open" curtilage is beyond the definition of a "habitation," but structures within the curtilage are considered a "habitation." And it's even possible that a structure outside the curtilage could be considered "appurtenant to" a dwelling. In any event, the court is wrong to say that the Texas burglary statute's "habitation" excludes all curtilage.

For these reasons, the panel really should reconsider this case. At a minimum, it should more clearly explain why its view is consistent with prior panel precedent, and why its understanding of the scope of the Texas burglary statute is correct.

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Another Set of Eyeballs: Justice Alito Opts Out of Cert Pool

So reports Adam Liptak in the New York Times. Beyond that scoop, the rest of the article rehashes the pros and cons of the cert pool, and the pool's effect, or lack thereof, on the number of cert grants.

UPDATE: Tony Mauro at The BLT adds some scuttlebut on the reasons behind Justice Alito's switch.

Links via How Appealing.

Thursday, September 18, 2008

21 U.S.C. § 843(b) Conviction Is a §2L1.2 DTO If the Underlying Offense Committed, Caused, or Facilitated Is a DTO

United States v. Pillado-Chaparro, No. 08-30192 (5th Cir. Sept. 17, 2008) (per curiam) (Davis, Garza, Prado)

Four circuits have held that use of a communications facility in committing or causing or facilitating a felony drug trafficking offense, in violation of 21 U.S.C. § 843(b), is a "drug trafficking offense" for purposes of the 12- and 16-level enhancements in guideline §2L1.2(b)(1)(A)(i) and (b)(1)(B). Pillardo-Chaparro brings the count to five.

The court relied primarily on the Eleventh Circuit's decision in United States v. Orihuela, which reasoned:
  1. §2L1.2's DTO definition is substantively identical to guideline §4B1.2(b)'s "controlled substance offense" definition,
  2. §4B1.2's commentary declares that an § 843(b) offense is a CSO if the "the underlying offense (the offense committed, caused, or facilitated) was a 'controlled substance offense'", and
  3. facilitation of a CSO is the same thing as aiding and abetting a CSO.
Because the indictment charging Pillardo with the § 843(b) alleged that he used a telephone to facilitate a conspiracy to distribute marijuana and cocaine, and because that underlying offense is a DTO, Pillardo's § 843(b) conviction is likewise a DTO.

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Thursday, September 11, 2008

Circuit Split Over Whether "Abuse of Trust" Determination Under USSG §3B1.3 Is Reviewed De Novo or Only for Clear Error

United States v. Dial, No. 07-30696 (5th Cir. Sept. 11, 2008) (per curiam) (Jones, Garwood, Smith)

The court's discussion of the issue is brief, so let's just cut-n-paste:

We review for clear error the district court’s application of § 3B1.3 to the facts, including its factual determination that Dial held a position of trust. See United States v. Smith, 203 F.3d 884, 893 (5th Cir. 2000); United States v. Ehrlich, 902 F.2d 327, 330 (5th Cir. 1990). This court recently applied de novo review to whether the defendant held a position of trust. See United States v. Kay, 513 F.3d 432, 460 (5th Cir. 2007), petition for cert. filed (Apr. 9, 2008) (No. 07-1281). The panel in Kay, 513 F.3d at 460 & n.125, relied on United States v. Sudeen, 434 F.3d 384, 391 n.19 (5th Cir. 2005), which based its statement on United States v. Hussey, 254 F.3d 428, 431 (2d Cir. 2001), after observing that the standard of review would not affect its decision.

De novo review appears foreclosed, however, by this circuit’s earlier ruling that a “district court’s application of § 3B1.3 is a sophisticated factual determination that will be affirmed unless clearly erroneous.” Despite whatever persuasiveness Kay and Sudeen may have, our rule of orderliness directs that “‘one panel of this court cannot overrule the decision of another panel.’”

The court went on to find no clear error in the application of the enhancement in Dial's case. It's unclear whether the result would have been any different under de novo review, as the opinion doesn't recount the facts of the case in great detail. In any event, it now looks like we clearly have a circuit split over the issue.

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Fives Grant Pro Se Appellant's Request for Appointed Counsel in Crack Reduction Appeal

United States v. Robinson, No. 08-10424 (5th Cir. Sept. 10, 2008) (Reavley, Stewart, Owen*)

Back in 1994, Robinson received a 180-month sentence for possession of crack with the intent to distribute it. After the Sentencing Commission retroactively reduced the crack guidleines earlier this year, Robinson filed a pro se motion requesting a reduction in his sentence under 18 U.S.C. § 3582(c)(2). His motion included a BOP report detailing his generally positive conduct while in prison, as well as a letter from the local Federal Public Defender's office stating that it did not represent him. The district court treated the latter as a request for appointed counsel.

The Government responded with a 25-page sentencing memo making several arguments: Robinson wasn't entitled to and didn't need an attorney because the issues were "straightforward"; if the court were to reduce Robinson's sentence, it should only cut it down to 175 months, which would have been the top of the reduced Guidelines range, because of Robinson's criminal history and three disciplinary actions while he was in prison; and Booker doesn't apply to a § 3582(c)(2) proceeding.

"The district court immediately issued a one-page order giving Robinson a new sentence of 175 months without providing him an attorney. The court did not explain why it was not providing Robinson an attorney, what effect (if any) Booker might have on the sentencing process, or why it selected a 175-month sentence." A couple of weeks later Robinson filed a motion for reconsideration, explaining the context of the disciplinary actions, and disputing two factual matters in the Government's sentencing memo. "Three days later the court denied Robinson’s motion for re-consideration in a one-sentence order."

Robinson appealed, and also moved for appointment of counsel for his appeal. (The Government did not respond.) The court of appeals identified three possible constitutional or statutory bases for appointing counsel for Robinson: the fundamental fairness required by the Fifth Amendment's Due Process clause, the Sixth Amendment right to counsel in every stage of criminal proceedings, and the CJA's allowance for counsel in matters "ancillary" to direct appeal. In 1995 the Fifth Circuit held in United States v. Whitebird that none of those provisions entitle a defendant to counsel in a § 3582(c)(2) proceeding. But the court here noted that the sentence procedure for § 3582(c)(2) proceedings---which is found in guideline §1B1.10---is different than it was at the time Whitebird was decided, due to a 2008 amendment:
While previous courts had to determine what sentence they would have given the defendant in light of the facts as they existed at the time of the original sentencing, the new process requires district courts when answering this question to consider, in every case, “the nature and seriousness of the danger to any person or the community that may be posed by a reduction in the defendant’s term of imprisonment” and allows district courts to consider “post-sentencing conduct of the defendant that occurred after imposition of the original term of imprisonment.”

Nevertheless, the court declined to decide whether Whitebird remains good law, since neither party had briefed the matter and no other court of appeals has yet addressed whether the 2008 amendment to guideline § 1B1.10 had altered the appointed counsel calculus. Instead, the court exercised its discretion to appoint counsel for Robinson "in the interest of justice."

Robinson’s appeal could raise a number of issues, and we would be more likely to reach the correct resolution of those issues (and therefore serve the interest of justice) if we had attorneys on both sides arguing their respective positions. Those issues may include whether Robinson was entitled to an attorney as a matter of right in the district court, whether Booker applies to § 3582(c)(2) proceedings (as the Ninth Circuit has held), rendering the process set out in USSG § 1B1.10(b) advisory and granting the district court more discretion in crafting a new sentence, whether the district court erred by not holding an evidentiary hearing once he contested the factual basis of some of the Government’s contentions, and whether the district court abused its discretion in not giving him a larger sentence reduction.

As for the Booker question, the court pointed out that the Ninth Circuit has held that Booker applies to § 3583(c)(2) proceedings. The Fourth Circuit, by contrast, has held "in an unpublished one-paragraph opinion, that the district court did not abuse its discretion nor commit reversible error by concluding that Booker does not apply to § 3582(c)(2) proceedings." Looks like we'll have an answer from our own circuit before too long.

*The opinion also contains an historical discussion of the whole crack issue. Judge Owen did not join that portion of the opinion, or the portion recounting the procedural history of this case. She did, however, join the majority's analysis of the appointed-counsel issue in full.

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Wednesday, September 10, 2008

Kidnapping Under Cal. Penal Code § 207(a) Isn't Categorically a 16-Level COV Under §2L1.2

United States v. Moreno-Florean, No. 07-50833 (5th Cir. Sept. 8, 2008) (King, DeMoss, Prado)

This opinion packs a lot into seventeen pages, and is probably more important for the satellite issues it resolves (details of the categorical approach, effect of guideline calculation error in appeal of sentence) than for the ultimate COV issue.

Our facts, in brief: Moreno pleaded guilty to illegal reentry. He had a prior conviction for kidnapping under Cal. Penal Code § 207(a), which provides that “[e]very person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping.” The PSR treated that conviction as a 16-level COV under guideline §2L1.2(b)(1)(A)(ii). Moreno objected to the PSR's criminal history calculation, but not to the application of the 16-level bump. The district court imposed a 57-month, within-Guidelines sentence. Moreno then appealed his sentence, arguing that the California conviction wasn't a COV. The court of appeals agreed and vacated Moreno's sentence, confronting several interesting issues along the way.

1. California Abstracts of Judgment May Be Used to Identify the Fact of a Prior Conviction, and Possibly the Statute of Conviction, But Not to Pare Down Disjunctive Elements: We know that a California abstract of judgment is not a Taylor/Shepard-approved document that may be used under the categorical approach to identify which of a series of disjunctive elements underlay a conviction. We've also seen the Fives hint that the abstract may be used for other purposes. Here the court expressly identifies one such purpose, while leaving another one uncertain.

In Gonzales-Terrazas, the court initially suggested that an abstract of judgment from a revocation proceeding may be sufficient to establish the fact of the conviction for which the defendant was placed on probation, and maybe even to identify the statute of conviction, although the court later omitted that discussion when it substituted a new opinion in the case after the Government filed a petition for panel rehearing. Also, in Neri-Hernandez, the court held that a New York "certificate of disposition"---a document similar to a California abstract of judgment---could be used to establish the fact of a prior conviction. Here, the court cites Neri-Hernandez as support for its holding that "California abstracts of judgment have sufficient indicia of reliability to support their probable accuracy such that the documents can be used as evidence of a prior conviction."

But what about the statute of conviction, rather than just the fact of conviction? That remains unclear, because the parties in Moreno-Florean agreed that his "kidnapping conviction occurred pursuant to CAL. PENAL CODE § 207(a) as reflected in the indictment and abstract of judgment pertaining to the conviction." The court also explained that "[o]ur consideration of Moreno-Florean’s abstract of judgment is limited to proving the existence of his prior kidnapping conviction; it does not function to narrow the statute of conviction based on the facts underlying the offense."

2. A California Charging Instrument That Alleges Alternative Elements Conjunctively Does Not, By Itself, Establish the Elements of Conviction: Abstracts of judgment may be of limited use in the COV-determination arena, but charging instruments are Taylor/Shepard-approved (provided that the defendant was actually convicted of the specific charge in the instrument). What if the charging instrument alleges multiple disjunctive elements conjunctively ("defendant did X and Y and Z," only one of which is legally necessary for the offense), and there is no other document, such as a transcript of a plea colloquy, to identify which elements actually formed the basis of the conviction?

It depends on state law, of course. Under Georgia law, for example, a guilty plea admits all of the factual allegations in a charging instrument. Thus, in Gutierrez-Bautista, the Fives held that a plea to a Georgia indictment alleging that a defendant sold and possessed a controlled substance constituted an admission that the defendant did both of those acts.

But California law is different, as Moreno-Florean acknowledges. California law actually requires conjunctive pleading of alternative elements, and "if the indictment alleges elements in the conjunctive, the defendant can be convicted if the evidence establishes any set of disjunctive elements that together constitute the criminal offense." Thus, a guilty plea, by itself, does not admit all of the allegations in a California charging instrument. It also doesn't identify which of the alternative elements the defendant was convicted of. Just like Texas.

3. When a Defendant Pleads Guilty to Two Offenses in the Same Charging Instrument, the Elements Admitted By the Plea to One of the Counts Cannot Necessarily Be Used to Identify Which Disjunctive Elements Were Admitted by the Plea to the Other Count: Okay, that's a little abstract. Let's talk about the fact of this case. You can see from the offense definition---"forcibly, or by any other means of instilling fear"---that § 207(a) doesn't necessarily require force. But Moreno didn't just plead guilty to kidnapping. He also pleaded guilty to another count contained in the same charging instrument: willfully inflicting corporal injury, in violation of Cal. Penal Code § 273.5(a). "The Government argue[d] that the use of physical force is a necessary element of § 273.5(a), such that the record of conviction establishes that Moreno-Florean used physical force with respect to his kidnapping conviction." The court disagreed:
While the indictment reflects that the kidnapping and corporal injury offenses were committed on the same day with Jane Doe as the victim, it does not establish that the conduct involved in the corporal injury offense was necessarily involved in the kidnapping offense. According to the language found in the indictment, Moreno-Florean could have kidnapped Jane Doe “by other means of instilling fear,” and then later used physical force to inflict corporal injury upon her. Because we do not have a written plea agreement, transcript of the plea colloquy, or explicit factual findings by the trial judge to which the defendant assented, we cannot narrow the statute of conviction to determine which disjunctive elements of § 207(a) formed the basis of Moreno-Florean’s conviction.

What's more, because California law allows disjunctive pleading and conjunctive proof (see discussion of point 2 above), "Moreno-Florean’s guilty plea to the kidnapping count in his indictment, standing alone, does not compel a finding that he used physical force to perpetrate that crime."

4. Kidnapping Under Cal. Penal Code § 207(a) is Broader than the Generic, Contemporary Definition of "Kidnapping": This is the fourth published decision addressing whether a state offense constitutes generic "kidnapping." I've summarized the others (see here, here, and here), but I'm just going to give you the holding on this one: "Because the least culpable act constituting a violation of § 207(a) only requires proof of two elements discussed in Gonzalez-Ramirez, we conclude that § 207(a) sweeps more broadly than the generic, contemporary meaning of 'kidnapping.'" To find out why, you'll have to read the court's thorough explanation at pages eight through sixteen of the slip.

5. Guideline Calculation Error Will Require Vacation of a Sentence Resulting from Such Error, Even If the District Court Gives Detailed, Fact-Specific Reasons Tied to the § 3553(a) Factors: The Government made an argument you may have seen if you've been handling any sentencing appeals lately. It argued "that the district court provided detailed, fact specific reasons for its sentence based on the factors under 18 U.S.C. § 3553(a), such that the district court provided an alternative basis for its sentence." The court of appeals rejected the idea that a statement of reasons tied to § 3553(a) constitutes an "alternative sentence." Pointing out that "[b]efore the district court imposes a non-guideline sentence, it must first properly calculate the applicable guideline range[,]" the court ultimately concluded that "[b]ecause we cannot say that Moreno-Florean’s sentence did not 'result' from an incorrect application of the guidelines, we cannot affirm his sentence on the basis of the Government’s 'alternative sentence' theory." And that's on plain-error review, no less.

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Monday, September 08, 2008

Court Must Aggregate All Revocation Imprisonment Terms When Calculating Maximum Supervised Release Term Available Under § 3583(h)

United States v. Vera, No. 07-20516 (5th Cir. Sept. 8, 2008) (Garza, Dennis, Minaldi)

When a district court revokes a defendant's supervised release and imposes a term of imprisonment, 18 U.S.C. § 3583(h) permits the court to impose an additional term of supervised release to be served following imprisonment. Subsection (h) also limits the permissible term of supervised release to that "authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release." (emphasis added).

Which leads to the question presented in Vera: if a defendant has been revoked multiple times, does the italicized language refer only to the length of the term of imprisonment imposed on the instant revocation, or to the aggregate length of all of the revocation imprisonment terms?

The court holds that § 3583(h) requires aggregation. In so holding, it aligned itself with the Fourth, Eighth, and Eleventh Circuits. Those courts relied on the dictionary definition of "any," which means "all." They also pointed to the legislative history of the 1994 amendments to § 3583, in which the bill's sponsor stated that “under [the amendments], a defendant would always be credited for incarceration time against both the cap on re-imprisonment and the maximum authorized period of supervised release.” According to Vera, no other court has held otherwise.

So what did that mean for Vera, who had originally been convicted of a Class C felony? He got 6 months on his first revocation, and 11 months on his second. Under the court's construction of § 3583(h), that meant that the maximum supervised release term he could have received on the second revocation was 19 months (36 months less 17 months). The district court had given him 25 months' supervised release on the second revocation, so Vera got a remand for resentencing.

The Government had argued that a 2003 PROTECT Act change to § 3583(h) eliminated any aggregation requirement. Prior to the change, subsection (h) only allowed an additional term of supervised release if the defendant received less than the maximum revocation imprisonment term. The 2003 amendment eliminated the "less-than" requirement, so now a defendant who gets a maximum revocation imprisonment term can also receive an additional term of supervised release (provided that the original offense occurred prior to the effective date of the PROTECT Act, for obvious ex post facto reasons). Vera rejected the Government's argument, pointing out that "[t]he amendment . . . addressed when the district court could impose supervised release upon revocation, but did not alter the formula for calculating how much supervised release the district court could impose."

So far, so good. But counsel should also be aware of a scary footnote in the opinion noting, but not resolving, a separate question created by the PROTECT Act. Both the pre- and post-PROTECT Act versions of § 3583(e)(3) set forth the maximum imprisonment term a defendant may receive upon revocation of supervised release. "Interpreting the pre-2003 version of subsection (e)(3), courts have held that in multiple revocation cases, the maximum term of imprisonment that may be imposed upon revocation is determined on a cumulative basis and not separately each time supervised release is revoked[,]" an aggregation requirement similar to that in subsection (h). The PROTECT Act changed (e)(3) "to state that the maximum term of imprisonment upon revocation applies 'on any such revocation.'" According to Vera, "[c]ourts reviewing this amended language have concluded that the maximum term of imprisonment that can be imposed upon revocation now applies on a per revocation basis, without regard to any term of imprisonment imposed in previous revocations." (citing an Eighth Circuit case collecting other cases). The court declined to resolve that question here, because it wasn't at issue. But it did observe that the lack of a similar change to subsection (h) bolstered its reading of the statute.

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Wednesday, September 03, 2008

Another Resource for Acquired and Derivative Citizenship Claims and Defenses

Last month United States Citizenship and Immigration Services issued this press release announcing the establishment of the agency's new Geneology Program.

USCIS maintains historical records documenting the arrival and naturalization of millions of immigrants who arrived in the United States since the late 1800s . . . and naturalized between 1906 and 1956. Until today, the process to request these records was handled through a Freedom of Information Act / Privacy Act (FOIA) request.

"In many cases USCIS is the only government agency that has certain historical records that provide the missing link which genealogists or family historians need," said Jonathan "Jock" Scharfen, USCIS’ Acting Director.

Or defense counsel. Anyone who's ever tried to do the investigation and research involved in exploring acquired and derivative citizenship claims knows just how difficult it is to dig up the necessary information. Perhaps the USCIS Geneology Program can be a useful tool for that.

So how does one take advantage of the program? Per the press release,
Individuals may submit genealogy records requests by using the new forms, G-1041 - Genealogy Index Search Request, and G-1041A - Genealogy Records Request. Both forms are available on the new USCIS Genealogy Program page at:

Fees range from $20 to $35, depending on the services requested. (Don't forget to keep in mind FRE Articles 8, 9, and 10 if you're requesting documents to use at trial.)

Hat tip: Bender's Immigration Daily.


Latest Hurricane Gustav Update

The Fifth Circuit's web site is now advising that the court "will remain closed through Friday, September 5th. Court will reopen September 8, 2008, and court employees will report for work that day." Additionally, "[a]ll filing dates falling within the time the court was closed due to Hurricane Gustav are automatically extended until September 10, 2008."

Monday, September 01, 2008

Court Closure and Deadline Extensions Due to Hurricane Gustav

The Fifth Circuit Clerk's Office posted the following notice on the court's website on Friday:
The Clerk's Office tentatively will re-open for business Thursday, September 4, 2008. Deadlines falling on or between September 1, 2008 and September 4, 2008 are automatically extended until Monday, September 8, 2008. For true emergency matters, eg. cases which require a ruling while the Clerk's office is closed, death penalty, deportation matters with imminent and confirmed deportation dates see below: Death Penalty: contact Bill Zapalac at William-underscore-Zapalac-at-ca5-dot-uscourts-dote-gov. Other: contact Tim Phares at Timothy-underscore-Phares-at-ca5-dot-uscourts-dot-gov. Court staff are instructed to check their email for updates if possible. Otherwise they should phone their manager for instructions or call the ARMA number. Updates will appear on this site as necessary.
(e-mail addresses altered to foil spambots). The court also announced an alternative website, in the event that the main website becomes unavailable:

Finally, "[t]he court's September oral argument sessions scheduled for New Orleans have been moved to cities in Texas because of Hurricane Gustav. Counsel are being notified of the changes." You can see the revised oral argument calendars here.