Wednesday, October 29, 2008

Fives Reject Supervised Release Condition Prohibiting Defendant From Living With Anyone Other Than a Spouse or Blood Relative

United States v. Woods, No. 07-51491 (5th Cir. Oct. 28, 2008) (per curiam) (King, Higginbotham, Wiener)

Woods was convicted of crack and retaliation offenses. In addition to a prison sentence, the district court also imposed a five-year term of supervised release. The conditions of supervised release included a prohibition on associating with felons, criminals, and several specific individuals who were involved in Woods's criminal activity. Additionally, a "residency condition" prohibited Woods "from residing 'with anyone that [she is] not ceremonially married to or related to by blood during the term of [her] supervised release[.]'" The district court "justified the residency condition on the ground that Woods needs stability in her home[,]" citing "a number of destabilizing factors in Woods’s life that ostensibly led to her criminal behavior[.]"

Woods challenged the residency condition on appeal. Finding the condition a greater deprivation of liberty than is necessary to meet the statutory goals of supervised release, the court of appeals vacated the condition as an abuse of discretion.

Supervised release necessarily involves some deprivation of liberty, and "courts of appeals have affirmed discretionary conditions restricting a defendant’s intimate associations where the district court appropriately defined the prohibited association and articulated a direct connection between the condition and a sentencing goal." But "the few courts to consider a supervised release condition that broadly restricts the defendant’s right to reside with classes of people (as distinguished from individuals or groups with whom the defendant has a relevant history) have concluded that it violated the defendant’s rights."

Such was the case here. Although "the district court may impose limitations on a convict’s living arrangements to ensure that she avoids recidivism[,]" the residency restriction here was greater than necessary. The restriction forbade her from living with "potentially stabilizing individuals such as a close friend or a permanent roommate who could help her to bear the costs of her living arrangements and to care for her children." There were also less intrusive alternatives available, such as the other restrictions the district court imposed on associating with criminals, and the fact that the probation officer could petition the court for modification of the terms of release in response to particular concerns that may arise in the future. The blanket residency restriction was therefore an abuse of discretion.

Although the court of appeals vacated the residency restriction, the scope of the remand permits the district court "to fashion an alternative supervised release condition, if it chooses, not inconsistent with this opinion."


Burglary for Texas, Burglary for Tennessee (But Not for ACCA)

United States v. Constante, No. 07-41004 (5th Cir. Oct. 6, 2008; revised Oct. 28, 2008) (per curiam) (King, Higginbotham, Wiener)

COV fans will recall that the Fifth Circuit held, in United States v. Herrera-Montes, that a burglary committed under subsection (a)(3) of Tennessee's burglary statute is not generic "burglary" for purposes of guideline §2L1.2's 16-level COV definition. That's because the Taylor burglary definition, among others, requires the specific intent to commit another crime at the time of the entry, whereas Tennessee's (a)(3) burglary does not require the perpetrator to intend to commit the other offense at the time of the entry. Herrera-Montes noted that the same would hold true for subsection (a)(3) of Texas's burglary statute (Penal Code § 30.02), which is nearly identical to Tennessee's.

Leading to the obvious question: whether burglary under Texas Penal Code § 30.02(a)(3) constitutes generic "burglary" for purposes of the ACCA (18 U.S.C. § 924(e)), the statute at issue in Taylor. The Fives have twice said "yes," albeit in unpublished opinions. So Constante goes ahead and makes it official.

More important, though, is what the court said about the burden of establishing that a particular crime qualifies as an ACCA predicate. The Government argued that it wasn't clear whether Constante's burglary conviction was under § 30.02(a)(1)---which does require intent to commit another crime at the time of entry---or under § 30.02(a)(3)---which does not. As the court pointed out, for what seems like the 976th time, the Government bears the burden of proving that a prior conviction qualifies for the sentencing enhancement. Thus, any ambiguity as to which portion of § 30.02 underlay Constante's conviction means the Government failed to carry its burden.

The Government also argued "that after it established the prior convictions, Constante had the burden of proving the invalidity of those convictions by a preponderance of the evidence[,]" citing some cases. Not so, said the court. The cases the Government cited "relate to the constitutional validity of a guilty plea and not to establishing the precise statute under which the defendant was convicted."

There's one final point worth mentioning, in case it pops up in any of your cases. Constante's burglary indictment alleged that he “intentionally or knowingly enter[ed] a habitation, without the effective consent of . . . the owner . . . and attempted to commit or committed theft of property.” The court explained that the
“intentionally or knowingly” language in the indictment refers to a general criminal intent requirement, but not the specific intent element contained in § 30.02(a)(1) and the Taylor definition of generic burglary. See Beasley v. McCotter, 798 F.2d 116, 120 (5th Cir. 1986) (noting that § 30.02(a)(1) requires “specific intent to commit a felony or theft in the building” and § 30.02(a)(3) requires only the more general culpable mental state such as intentionally or knowingly). In other words, under § 30.02(a)(3) a defendant must intentionally or knowingly enter the building, but he would not have to intend to commit a felony, theft, or assault at that time. Only this latter type of specific intent is relevant to the Taylor definition of generic burglary.

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Monday, October 27, 2008

Defendant's Stipulation to Offense Elements In Bench Trial Renders Harmless Any Error In Denial of Suppression Motion

United States v. Garcia-Ruiz, No. 07-51269 (5th Cir. Oct. 27, 2008) (Jones, Garwood, Smith)

Although nominally about harmless error in the appeal of a denied suppression motion, this case is really more about sentencing. More specifically, how do you preserve a suppression issue for appeal and still get credit for acceptance of responsibility at sentencing? Although it doesn't guarantee acceptance, a conditional plea is the obvious option. But what if the Government or the court won't agree to proceed that way, forcing you to go to trial?

Here Garcia, who was charged with illegal reentry, sought to suppress all evidence obtained as a result of his warrantless detention and arrest. After the district court denied the motion, Garcia proceeded with a bench trial at which he stipulated to facts sufficient to establish all of the elements of illegal reentry, including facts supported by the evidence that he tried to suppress. The district court found the stipulation sufficient to prove the offense, and found Garcia guilty.

Garcia appealed the denial of his suppression motion, but the court didn't address the merits, instead holding that "even if, arguendo, the district court erred in its ruling, the error is rendered harmless by the fact that Garcia-Ruiz stipulated to facts that easily established his conviction beyond a reasonable doubt, as the district court found." As the court explained,
To convict Garcia-Ruiz under § 1326(1), the government needed to prove beyond a reasonable doubt that he was an alien at the time of the indictment, that he had previously been removed from the United States, that he was found in the United States after his removal, and that he had not received the consent of the Attorney General or Secretary of Homeland Security. Garcia-Ruiz stipulated to all those facts, and he and his attorney signed the stipulations and a waiver of jury trial. With such stipulations in place, any decision by this court regarding the suppression hearing could not affect Garcia-Ruiz’s posture in the district court, because he stipulated to the elements needed for conviction. Thus, when Garcia-Ruiz and the government agreed to the stipulated facts that established all the elements of the offense, any eror on the suppression issue would have no effect on the legal soundness of the conviction. In other words, to establish Garcia-Ruiz’s guilt, the government no longer needed the evidence he claims should have been suppressed.

The court distinguished Garcia's appeal from United States v. Mendoza, 491 F.2d 534 (5th Cir. 1974), in which the court considered the merits of an appeal of a denied suppression motion after a stipulated bench trial. Garcia-Ruiz emphasized that, in Mendoza, the defendants '"sought to expressly reserve their right to appeal from the order denying the motion to suppress.'" (quoting Mendoza). A quick glance at Mendoza reveals that the defendants chose that approach for pretty much the same reason a defendant would want to in the Guidelines era: they wanted to preserve the suppression issue for appeal, but "[a]t the same time, all three defendants [did] not desire to unnecessarily prolong the proceedings." Id. at 536 (quoting signed stipulation).

You'll have to decide for yourself whether the Mendoza approach will still fly these days, as well as whether a "Mendoza stipulation" will get you acceptance. In making that decision, consider the fact that conditional guilty pleas were not allowed in the Fifth Circuit at the time of Mendoza. See id. at 536 (discussing United States v. Sepe, 486 F.2d 1044, 1045 (5th Cir. 1973) (en banc; per curiam)). Rule 11 did not expressly authorize conditional guilty pleas until 1983. See 1A Wright, Federal Practice and Procedure-Criminal § 174.

It's clear, though, that a "naked stipulation" without a reservation of appellate rights will not, as a practical matter, preserve your suppression issue. (In a footnote, the court opines, in dictum, "that Garcia-Ruiz’s decision to go to trial on stipulated facts can be viewed as waiver as an alternate ground to harmless error." The court declined, though, to characterize it as a mootness question, as an earlier unpublished Fifth Circuit opinion had done.) So you'll need to weigh that in the preservation/acceptance calculus.

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"Forcible Sex Offense" Includes Offenses Committed With Constructive Force, But Not Offenses With Freely Given Consent-In-Fact

United States v. Gomez-Gomez, No. 05-41461 (5th Cir. Oct. 21, 2008) (en banc; per Jolly and Benavides)

Both guideline §2L1.2 and §4B1.2(a) list "forcible sex offenses" as crimes of violence under their respective definitions. COV mavens are well aware that the Fifth Circuit has addressed the question of just what constitutes a "forcible sex offense" several times in the past few years, and the results haven't been entirely consistent with each other. Hence Gomez-Gomez, in which the en banc court steps in to clarify just what the term means for purposes of guideline §2L1.2's 16-level COV enhancement. Unfortunately, clarity remains elusive because 1) on November 1st, an amendment defining "forcible sex offense" under §2L1.2 takes effect, and it's different from the one Gomez-Gomez adopts, and 2) the opinion expressly declines to address whether the holding applies to §4B1.2(a)'s COV definition, which is not subject to the amendment to §2L1.2.

So how did we get here? Cases such as United States v. Houston and United States v. Sarmiento-Funes, without adopting a comprehensive definition of the term "forcible sex offense," held that it did not include offenses in which the sexaul activity was consensual in fact, even though legally non-consensual. But then last year, in United States v. Beliew, a Fifth Circuit panel held that an offense involving consent obtained by use of constructive force---in Beliew, it was an adult's use of influence over a minor to obtain factual but legally invalid consent---amounts to a forcible sex offense.

Then we had the panel opinion in United States v. Gomez-Gomez, holding that, under the Houston/Sarmiento-Funes approach, the 1991 version of a California rape statute that could apply when a defendant essentially blackmailed a person into consenting to sex was not a forcible sex offense. The panel acknowledged the tension between its holding and Beliew, but concluded that, to the extent Beliew conflicted with Houston and Sarmiento-Funes, the earlier cases controlled. Judge Jolly concurred, but urged the court to reconsider the case en banc.

That happened, and the court has essentially said that the Houston/Sarmiento-Funes and Beliew approaches are both correct. If the offense in question encompasses legally non-consensual sex in which consent was freely and voluntarily given, it is not a forcible sex offense. But if the consent was obtained by constructive force, then it is a forcible sex offense. As the court explains it:

[W]e find that sex offenses committed using constructive force that would cause a reasonable person to succumb qualify as “forcible sex offenses,” and therefore crimes of violence, under § 2L1.2. Such offenses, by definition, involve victims who have not consented in fact, even if the victim has nominally consented. As we use the phrase, “consent in fact” means consent actually and freely given. A mere word or action indicating consent that is given under duress, whether through physical or nonphysical means, and against the free will of the victim, indicates nothing about whether the victim in fact wishes to engage in sex; such nominal consent is solely a creature of the duress, and the perpetrator who has applied physical or constructive force to make the victim submit cannot reasonably interpret such a word or action as indicating that the victim actually wishes to manifest consent. See Black’s Law Dictionary 542 (8th ed. 2004) (defining duress as “a threat of harm made to compel a person to do something against his or her will or judgment”). Such “consent” is not simply null as a matter of law, as with a word or action indicating consent freely given by an underage victim in a statutory rape case, but null as a matter of fact.

Note that as of November 1, 2008, the term "forcible sex offense" will be defined in §2L1.2's 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).” As you can see, that definition includes some conduct---illegal sex in which consent is freely given---that is not a "forcible sex offense" under Gomez-Gomez's definition.

And then there's the matter of the COV definition in §4B1.2(a). The Fifth Circuit has thus far interpreted "forcible sex offense" the same way in §2L1.2 and §4B1.2(a). Will it continue to do so? Consider this cryptic footnote from the opinion:
We decline to address the implications of our interpretation in this case of the term “forcible sex offenses” under § 2L1.2 for the meaning of same phrase in § 4B1.2. Although § 4B1.2 and § 2L1.2 both list “forcible sex offenses” as crimes of violence, § 4B1.2 does not contain “statutory rape” and “sexual abuse of a minor” as separate and distinct crimes of violence. We leave the task of further specifying the meaning of “forcible sex offenses” in either section for cases that squarely present those issues.

Making things even more uncertain, the amendment defining "forcible sex offense" under §2L1.2's COV definition does not address §4B1.2(a)'s COV definition.

Finally, there's a dog that didn't bark in Gomez-Gomez. Recall that the court had asked the parties to address whether Calderon-Pena---an earlier en banc decision adopting the Taylor/Shepard categorical approach for COV questions---should be modified or overruled. Gomez-Gomez doesn't address that question at all, and in fact expressly quotes Taylor for the rule that "we consider the offense categorically by looking 'only to the fact of conviction and the statutory definition of the prior offense.'"

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Tuesday, October 21, 2008

"Circuit Split Over Elements of Generic 'Sexual Abuse of a Minor'", or "When Does 5=17 and 9=16?"

As you're aware, the question of whether a prior conviction was for "sexual abuse of a minor" can have huge immigration and sentencing consequences. Sexual abuse of a minor is an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(A). It's also an enumerated "crime of violence" for purposes of guideline §2L1.2's 16-level enhancement. But what is a "minor"?

Although the Fifth Circuit has recognized that the "the ordinary, contemporary, and common meaning of minor, or 'age of consent' for purposes of a statutory rape analysis, is sixteen[,]" it has nevertheless held that a person under age seventeen is "clearly a 'minor'" for purposes of "sexual abuse of a minor."

Turns out one of our neighbors to the west sees things differently. Yesterday, the (mini) en banc Ninth Circuit held, in Estrada-Mendoza v. Mukasey, No. 05-75850, that the elements of "sexual abuse of a minor," for purposes of the aggravated felony definition, are found in 18 U.S.C. § 2243(a). That statute effectively defines a minor as a person under age sixteen. (The Nines also pointed out that a majority of U.S. states define a minor as a person under age sixteen for purposes of sex laws, although the court considered that point irrelevant for reasons of interest only to those who have spent entirely too much time immersed in the intracacies of the Taylor/Shepard categorical approach. You know who you are.)

Given the current state of Fifth Circuit case law, this circuit split matters chiefly when it comes to Texas age-related sex offenses, which don't employ the same age-of-consent as most states. Indecency with a child under Penal Code § 21.11, and sexual assault under Penal Code § 22.011(a)(2), both prohibit various kinds of sexual activity with a "child," which they define as a person under seventeen. Under the Fifth Circuit's view, those offenses are categorically "sexual abuse of a minor." But not under the Ninth Circuit's view.

So ladies and gentlemen, start your cert petitions.

UPDATE: The Ninth Circuit blog has additional analysis here.

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Monday, October 20, 2008

Cert Grant: To Be Guilty of Aggravated ID Theft, Must Defendant Know That ID Actually Belonged to a Real Person?

Today the Supreme Court granted cert in Flores-Figueroa v. United States. As SCOTUSblog summarizes the case,
[t]he issue is whether the law enhancing the sentence for identity theft[, 18 U.S.C. § 1028A(a)(1),] requries proof that an individual knew that the identity card or number he had used belonged to another, actual person — that is, a knowledge requirement. The Circuit Courts have split 3-3 on the issue. The dispute centers on the meaning of the word “knowingly” in the 2004 statute.

You'll definitely want to keep an eye on this one. The Fifth Circuit has not yet weighed in on the question, but the feds are pursuing more and more of these cases so it's bound to come up in your neck of the woods, if it hasn't already.

The cert-stage filings are available at this link. And for additional discussion of the issue, check out this paper by Massachusetts AFPD Martin Richey.

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