Second or Subsequent Simple Possession Conviction Not An Aggravated Felony If Committed Before First One Became Final

United States v. Andrade-Aguilar, No. 07-41132 (5th Cir. May 27, 2009) (Barksdale, Dennis, Elrod)

As you know, our circuit has held that a second or subsequent conviction for simple possession of a controlled substance can be an aggravated felony. (Other circuits disagree.) But the key word is "can." The second or subsequent possession conviction is only an aggravated felony if it was committed after the conviction for the first one became final. And—perhaps more importantly—not only does the Government have the burden of showing finality when it seeks application of an "aggravated felony" sentencing enhancement, but a record that is simply silent as to whether an appeal was taken will not carry that burden if the two priors are sufficiently close in time.

How do we get there? The term "aggravated felony" includes "drug trafficking crimes." In Lopez v. Gonzales, the Supreme Court held that the term "drug trafficking crime" means an offense punishable as a felony under the federal Controlled Substances Act (21 U.S.C. § 801 et seq.). Under 21 U.S.C. § 844(a), simple possession is generally only a misdemeanor. But it can be punished as a felony if committed after a prior conviction [for a controlled substance offense] has become final[.]" A conviction is "final," for purposes of § 844(a), when it is no longer subject to direct review or to discretionary review by any court. And the Government, as the party seeking application of a sentencing enhancement, bears the burden of showing finality.

In this case, illegal reentrant Andrade had two prior Texas simple possession convictions. Andrade committed the second one 115 days after the sentence for the first one was imposed. The second judgment was stamped "appeal waived," but the first one was apparently silent on that point.

In claiming that the [first] conviction was final, the Government cites: (1) the judgment of conviction itself, (2) the district court’s mistaken initial conclusion that that appeal had been stamped “Appeal waived,” and (3) Texas Rule of Appellate Procedure 26.2(a). The Government also complains generally of the difficulty of proving a negative (a defendant’s failure to appeal). We find none of these arguments persuasive.

First, . . . the judgment of conviction is not clear enough on the controlling question to be probative (much less dispositive): indeed, it contains no suggestion of waiver or finality whatsoever. Second, as noted above and ultimately conceded by the Government at oral argument, the relevant conviction was not stamped “Appeal waived.” Third, Texas Rule of Appellate Procedure 26.2(a) provides merely that the defendant has 30 days from the date of sentencing to file a direct appeal. Unclear from the record, however, is whether the period for both direct and discretionary review had expired. . . . [T]o show finality, the Government was required to show by a preponderance of the evidence both that (1) Andrade’s [first] conviction was “no longer subject to examination on direct appeal” . . . , and (2) that it was not subject to discretionary review by any court. However, the Government failed to establish either of these two facts. Accordingly, the Government failed to prove by a “preponderance of the relevant and sufficiently reliable evidence” that Andrade’s [first] conviction was final and thus that his [second] conviction . . . qualified for the enhancement imposed.

The court notes that "[i]n some cases, the passage of a substantial period of time may itself satisfy these requirements." But it goes on to say that in this case,

the gap between the prior . . . conviction, at which sentence was imposed, and the subsequent . . . offense was 115 days. If Andrade timely filed a direct appeal of his [first] conviction, that conviction may not have been final at the time of his [second] offense. Even if any direct appeal was unsuccessful, a petition for discretionary review filed before the [second] offense with the state court—or with the U.S. Supreme Court, if denied by the state court—may have been timely.

What this boils down to, it seems, is that a record that is simply silent as to whether a defendant pursued a direct or discretionary appeal of the first conviction is not enough to show there was in fact no appeal taken.

Some more goodness from the opinion: the district court's erroneous treatment of Andrade's second simple possession conviction as an aggravated felony was not harmless. The wrong range was 33 to 41 months, the correct range (at least on the record developed below) was 24 to 30 months, and Andrade got 34 months. He "therefore received at least four months more than the longest sentence under the harshest Guidelines range for which he may have been eligible. The district court did not indicate any departure or basis for departure from a Guidelines sentence." Hence harm.