SCOTUS: Lab Reports Testimonial Under Crawford; Reasoning Applies Broadly to Other Documents Prepared Solely for Use at Trial

Melendez-Diaz v. Massachusetts, No. 07-591 (U.S. June 25, 2009)

Although it took the Supreme Court a long time to get this opinion out (the case was argued last November), it was worth the wait. The issue, as you'll recall, was "[w]hether a state forensic analyst's laboratory report prepared for use in a criminal prosecution is 'testimonial' evidence subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004)." The report at issue identified the substance seized from the defendant as cocaine. The Court, in an opinion by Justice Scalia for a 5-Justice majority, held that such reports are testimonial. But the case isn't just about lab reports; as you'll see, its reasoning applies to a broad range of documents that are prepared to establish facts at trial.

The question, according to the majority, was an easy one "involv[ing] little more than the application of our holding in Crawford[.]" The question was so easy, in fact, that the analysis covers less than three full pages. Crawford described a "core class of testimonial statements":

ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

Lab reports fit that description to a "T":

There is little doubt that the documents at issue in this case fall within the “core class of testimonial statements” thus described. Our description of that category mentions affidavits twice. The documents at issue here, while denominated by Massachusetts law “certificates,” are quite plainly affidavits: “declaration[s] of facts written down and sworn to by the declarant before an officer authorized to administer oaths.” They are incontrovertibly a “‘solemn declaration or affirmation made for the purpose of establishing or proving some fact.’” The fact in question is that the substance found in the possession of Melendez-Diaz and his codefendants was, as the prosecution claimed, cocaine—the precise testimony the analysts would be expected to provide if called at trial. The “certificates” are functionally identical to live, in-court testimony, doing “precisely what a witness does on direct examination.”

Here, moreover, not only were the affidavits “‘made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,’” but under Massachusetts law the sole purpose of the affidavits was to provide “prima facie evidence of the composition, quality, and the net weight” of the analyzed substance. We can safely assume that the analysts were aware of the affidavits’ evidentiary purpose, since that purpose—as stated in the relevant state-law provision—was reprinted on the affidavits themselves.

(cites omitted). Thus, "under our decision in Crawford the analysts’ affidavits were testimonial statements, and the analysts were 'witnesses' for purposes of the Sixth Amendment."

The bulk of the opinion is devoted to refuting numerous arguments raised by the state and the dissenters (Justice Kennedy, joined by the Chief, Breyer, and Alito). The majority said:

• Lab techs aren't exempt from cross-examination simply because their testimony is the result of supposedly neutral, scientific testing. As the recent report from the National Academy of Sciences reveals, forensic labs are subject to pressure from law enforcement, and there are serious reliability problems with many types of forensic evidence. "[T]here is little reason to believe that confrontation will be useless in testing analysts' honesty, proficiency, and methodology—the features that are commonly the focus in the cross-examination of experts."
• Lab reports are not business or public records—categories of documents Crawford suggested might not be testimonial—because they are produced for trial. "Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because—having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial."
• The fact that the defendant can subpoena the lab tech does not vitiate the violation in introducing the lab report. "Converting the prosecution's duty under the Confrontation Clause into the defendant's privilege under state law or the Compulsory Process Clause shifts the consequence of adverse-witness no-shows from the State to the accused. More fundamentally, the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court. Its value to the defendant is not replaced by a system in which the prosecution presents its evidence via ex parte affidavits and waits for the defendant to subpoena the affiants if he chooses."
• The possibility that this ruling will create more hassles for the Government is not sufficient reason to hold otherwise. "The Confrontation Clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination. The Confrontation Clause—like those other constitutional provisions—is binding, and we may not disregard it at our convenience."

Although the majority handily disposed of the dissent's protests, the dissenter's attitude towards the issue remains troubling. To them, requiring live-witness testimony rather than lab reports will impose a monumental burden on prosecutors, resulting in many defendants walking on a "technicality" when the witness, for whatever reason, is unable to testify in court, leaving the Government without sufficient proof on an element of an offense. That's right: four Justices of the Supreme Court see the Government's failure to prove its case—due to its failure to marshal and present its witnesses at trial—as a "technicality."

Underlying this attitude seems to be the view that that lab techs and forensic tests are by and large neutral and reliable, such that cross-examination is largely useless. But what about that NAS report demonstrating otherwise?

That report is not directed to this Court, but rather to the elected representatives in Congress and the state legislatures, who, unlike Members of this Court, have the power and competence to determine whether scientific tests are unreliable and, if so, whether testimony is the proper solution to the problem.

Of course, if courts lack such power and competence, then why we have Daubert and Rule 702?

There's more to criticize in the dissent—including its strident tone—but I can already sense some folks in the audience are saying, "The dissent's troubling, but so what? It is the dissent, after all." Well, consider that the day after it issued the opinion in Melendez-Diaz, the Court granted cert in a case presenting this question:

If a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness?

"Whoa, hold on!", you say. "Didn't the Melendez-Diaz majority address this issue and explain that the Compulsory Process Clause doesn't relieve the Government of its burden under the Confrontation Clause?" Why, yes. It did. But keep in mind that Justice Souter, who was in the majority, has retired from the Court. His replacement may not share his views on this issue. And given the dissenters' strong views on the subject, you have to wonder, as does a post at SCOTUSblog, "Is Melendez-Diaz already endangered?"

But, hey, we're not there yet. So let's end things on a cheerful note: in a future post I'll explain how Melendez-Diaz has abrogated Fifth Circuit case law permitting the Government to rely on certificates of non-existence of record to prove the no-permission-to-reapply-for-admission element in illegal reentry cases.

A Practice Guide to Aggravated Felony Issues in the Wake of Nijhawan

The Immigrant Defense Project and National Immigration Project of the National Lawyer's Guild have prepared a paper that you may find useful: The Impact of Nijhawan v. Holder on Application of the Categorical Approach to Aggravated Felony Determinations (June 24, 2009). In it you'll find:

• a discussion of the background, reasoning, and holding of Nijhawan,
• strategies for defending aliens facing fraud charges,
• ways to use Nijhawan to limit the reach of other aggravated felony categories (intriguingly, the paper argues that the Fifth Circuit's position on the subsequent-simple-possession-as-aggravated-felony issue is inconsistent with Nijwahan), and
  
• a handy appendix setting out the likely analytical approach (categorical vs. circumstance-specific) for each aggravated felony listed in 8 U.S.C. § 1101(a)(43).

Link via Bender's Immigration Daily.

Why the Departure/Variance Distinction Matters

In a recent case, the Fifth Circuit noted that it continues to draw a distinction between variances based on 3553(a) factors, and Guidelines departures. I suggested at the time that this "may be little more than a formal distinction, given the Fives' deferential approach to substantive reasonable review."

Turns out I hadn't thought through the issue thoroughly enough, as demonstrated by this post by Sumter Camp at the Sixth Circuit Blog. I had forgotten that, pre-Booker, a district court's discretionary refusal to depart was unreviewable on appeal. And if a court of appeals continues to observe a distinction between departures and variances, then the district court's rejection of a defendant's request for a lower sentence based solely on departure grounds would not be reviewable. That's the conclusion the Sixth Circuit reached in United States v. Blue. And though I haven't found a published, post-Booker Fifth Circuit opinion reaching the same conclusion, there are some unpublished opinions that have so held (like this one, for example).

How to avoid this appellate trap? As Sumter notes:

[You can] present mitigation as grounds for both a Guidelines departure and a downward variance under § 3553(a). Given that the district courts must still consider the Guidelines, the failure to address a ground for departure under the Guidelines may very well be unreasonable on appeal. And any ground that is limited by some Guidelines factor (e.g. the §5K1.1 requirement that the government, not the defendant, must file the §5K1.1 motion), can still be considered under § 3553(a) as relevant to what sentence is sufficient, but not greater than necessary, to achieve the aims of sentencing. Even a ground that is prohibited by the Guidelines can now be considered under the § 3553(a) factors as relevant to sentencing.

One exception, at least in our circuit, is when it comes to arguing for a 3553(a) variance based on unwarranted fast-track disparities (or maybe not). In any event, you can still preserve that argument in the district court for further review in light of the circuit split.

District Court May Not Impose Sentence Below Revised Guidleines Range In 3582(c)(2) Resentencings

United States v. Doublin, No. 08-30775 (5th Cir. June 22, 2009) (per curiam) (Barksdale, Dennis, Elrod)

A couple of years ago the Sentencing Commission revised the drug guidelines to reduce, but not eliminate, the disparity between crack and powder cocaine sentences. The Commission also made the change retroactive, allowing defendants whose Guidelines ranges would have been lower under the revised guidelines to be resentenced under those new guidelines.

Of course, this all happened after Booker, leading to the question whether these "3582(c)(2)" resentencings were to be full "Booker resentencings"—in which case the district court could impose a sentence below the newly-lowered range—or whether the low end of the new range was a mandatory floor. As you might imagine, the circuits divided over this question—a complicated one involving the interaction of a statute, a Guidelines policy statement, and the Supreme Court's judicial revision of the Guidelines scheme in Booker. In the meantime, the Sentencing Commission amended policy statement §1B1.10 in 2008 to prohibit a reduction below the revised Guidelines range.

Doublin finds the Fifth Circuit joining the eight others that have held the 2008 amendment bars any reduction below the revised Guidelines range. The Ninth Circuit is the only one to have held otherwise, and it weighed in before the 2008 amendment (although the amendment would not have had any effect on the Ninth Circuit's analysis, which reasoned that no guidelines are mandatory after Booker). So why does Doublin pick the side it does?

Booker mandates the guidelines are advisory in full sentencings (and, hence, in full resentencings); but, it is undisputed that a reduction under 18 U.S.C. § 3582 does not constitute a full resentencing. Guideline § 1B1.10(a)(3) provides that “proceedings under 18 U.S.C. § 3582(c)(2) . . . do not constitute a full resentencing of the defendant”. As the Tenth Circuit noted in Rhodes, “there are clear and significant differences between original sentencing proceedings and sentence modification proceedings”. These differences explain why Booker does not affect Guideline § 1B1.10.

As an initial matter, the concerns at issue in Booker do not apply in an 18 U.S.C. § 3582(c)(2) proceeding. Quoting Apprendi v. New Jersey, Booker noted that any “fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt”. Section 3582(c)(2) proceedings do not, of course, involve sentence increases. “[T]he limits § 3582(c)(2) and U.S.S.G. § 1B1.10 impose on the extent of reductions are, at most, the equivalent of mandatory minimum sentences, which the Sixth Amendment permits within an otherwise-authorized sentencing range”.

Furthermore, reductions under 18 U.S.C. § 3582(c)(2) are not mandatory; this section merely gives the district court discretion to reduce a sentence under limited circumstances. By referencing the guidelines, the Sentencing Commission has not reimposed a mandatory guidelines regime; rather, the guidelines serve merely as a limit on the extent to which a sentence may be reduced subsequent to its having been imposed previously. (Of course, in the absence of 18 U.S.C. § 3582(c)(2), a sentence based on a subsequentlyamended guideline could not be reduced to any extent.)

As the Eighth Circuit noted in Starks, “[i]n § 3582(c), Congress sought to limit the authority of a district court to modify a term of imprisonment”, by requiring any reduction to be consistent with policy statements issued by the Sentencing Commission. Accordingly, “[a]lthough the guidelines must be treated as advisory in an original sentencing proceeding, neither the Sixth Amendment nor Booker prevents Congress from incorporating a guideline provision as a means of defining and limiting a district court’s authority to reduce a sentence under § 3582(c)”.

(some citation clutter omitted). Shorter, glib version: the Guidelines are advisory, except when they're not.

So, will the Supreme Court grant cert to resolve the circuit split on this question? I don't see why not. Every one of the geographic circuits save one (D.C.) have now weighed in, the Ninth Circuit is unlikely to change its mind, and the question affects a large number of prisoners. Seems primed for cert, whether it be Doublin or some other case.

Taylor/Shepard Categorical Approach Not Applicable to All Aggravated Felonies, Some Require "Circumstance-Specific" Approach

Nijhawan v. Holder, No. 08-495 (U.S. June 15, 2009)

Remember that circuit split over whether the Taylor/Shepard categorical approach applies to 8 U.S.C. § 1101(a)(43)(M)(i), which includes as an "aggravated felony" "an offense that . . . involves fraud or deceit in which the loss to the victim or victims exceeds $10,000[?]" The split is no more, having been resolved by the Supreme Court in Nijhawan v. Holder.

The question, as the Court framed it, was whether the phrase "loss to the victim or victims exceeds $10,000" refers to a generic crime (the categorical reading), or to "the specific way in which an offender committed the crime on a specific occasion" (the circumstance-specific reading). "If the first, we must look to the statute defining the offense to determine whether it has an appropriate monetary threshold; if the second, we must look to the facts and circumstances underlying an offender's conviction."

Justice Breyer, writing for a unanimous Court, began by noting that one of the rationales for the Taylor categorical approach is a practical one: by limiting the inquiry to the offense elements and certain judicial documents, the approach avoids the difficultly in trying to determine the exact factual basis for a conviction in a later proceeding.

The Court then compared the ACCA's "violent felony" definition—the statute at issue in Taylor—to the "aggravated felony" definition as a whole. The language in the ACCA—element of force, specific offenses, conduct presenting a risk of injury—all refer to generic crimes. And so do some portions of 1101(a)(43): murder, rape, sexual abuse of a minor, illicit trafficking in a controlled substance, illicit trafficking in firearms or destructive devices, and offenses described in particular statutes. "More importantly, however, the 'aggravated felony' statute differs from ACCA in that it lists certain other 'offenses' using language that almost certainly does not refer to generic crimes but refers to specific circumstances." For example:

• 1101(a)(43)(N) and (P) refer to generic offenses, but contain exceptions when certain circumstances are present, circumstances that aren't elements of the generic crimes. "Thus if the provision is to have any meaning at all, the exception must refer to the particular circumstances in which an offender committed the crime on a particular occasion."
• 1101(a)(43)(K) also refers to specific statutory offenses, but they are only aggravated felonies "if committed for commercial advantage." Only one of the listed statutes refers to "commerical advantage." "Thus, unless the 'commerical advantage' language calls for circumstance-specific application, the statute's explicit references to [other statutes] would be pointless."
• 1101(a)(43)(M)(ii) includes offenses "described in" 26 U.S.C. § 7201, but only if "the revenue loss to the Government exceeds $10,000." As § 7201 does not have a loss-amount element, this provision would be pointless "unless the 'revenue loss' language calls for circumstance-specific application.

So which one is (a)(43)(M)(i): a reference to a generic crime, or to "specific circumstances in which the offense was committed[?]" The latter. Why?

• The language: "In which" can refer to the circumstances in which the offense was committed, rather than just the elements. And the parallel structure to (M)(ii) suggests it should be read the same way as that provision.
• Anti-superfluity: Most federal fraud statutes have no loss-amount element, and those that do have thresholds other than $10,000. And even if Congress intended (M)(i) to apply almost exclusively to state offenses, there are only eight of those in which the $10,000 would have effect under a categorical approach.

Nijwahan argued alternatively that, even if the categorical approach doesn't apply to (M)(i), the Court "should nevertheless borrow from Taylor what that case called a 'modified categorical approach[,]'" which would limit the immigration court to examining the jury findings and judicial documents sanctioned by Taylor and Shepard. "To authorize any broader examination of the prior proceedings, petitioner says, would impose an unreasonable administrative burden on immigration judges and would unfairly permit him to be deported on the basis of circumstances that were not before judicially determined to have been present and which he may not have had an opportunity, prior to conviction, to dispute."

Close, but no cigar, said the Court. The modified categorical approach was developed for a different purpose: to determine which elements underlay a conviction when the offense could have been committed in both generic and non-generic ways. [Not sure why that cuts against Nijhawan's argument.] Also, unlike Taylor et al., we're dealing here with an immigration case, where the evidentiary standard is "clear and convincing," rather than "beyond a reasonable doubt."

These considerations, [together with a few other features of immigration proceedings], mean that petitioner and those in similar circumstances have at least one and possibly two opportunities to contest the amount of loss, the first at the earlier sentencing and the second at the deportation hearing itself. They also mean that, since the Government must show the amount of loss by clear and convincing evidence, uncertainties caused by the passage of time are likely to count in the alien's favor.

Okay, I can sense some nervousness in the crowd. We know that statutes which have both immigration and criminal application should generally be interpreted the same way in both cases. "So, what about 1326's?", you ask. "Can the 20-year maximum in § 1326(b)(2) be triggered by a loss-amount finding made for the first time at the illegal reentry sentencing, on a clear-and-convincing standard?" Yes and no. The Court addressed this matter:

[Nijhawan] says that a circumstance-specific approach to subparagraph (M)(i) could create potential constitutional problems in a subsequent criminal prosecution [under § 1326(b)(2)], because the loss amount would not have been found beyond a reasonable doubt in the prior criminal proceeding. The Government, however, stated in its brief and at oral argument that the later jury, during the illegal reentry trial, would have to find loss amount beyond a reasonable doubt, . . . eliminating any constitutional concern.

Now this brings up an intriguing question: does Nijhawan offer additional support for a narrow reading of the Almendarez-Torres prior-conviction exception to the rule of Apprendi? Given the quoted paragraph, as well as the constitutional concerns identified in Taylor and Shepard, can we say that the prior-conviction exception is limited to the fact of conviction itself, and that any facts about the conviction that would be necessary to trigger a recidivist enhancement—such as those bringing it within the "aggravated felony" defintion—must be proven to a jury beyond a reasonable doubt or admitted by the defendant, either in the prior proceedings or in the proceeding in which the Government seeks to apply the enhancement? Or is that just a wordy way of stating the law as it already is? Discuss.

Fives Reverse Course on UUV, Hold It's Not an Aggravated Felony

United States v. Armendariz-Moreno, No. 07-40225 (5th Cir. June 15, 2009) (per curiam) (Reavley, Barksdale, Garza)

The UUV saga is at an end. In a tersely-worded opinion, the Fifth Circuit has ditched Galvan-Rodriguez:

On December 12, 2007 this court affirmed the sentence of Armando Armendariz-Moreno (Armendariz) and rejected the objection to the 8 level enhancement of his offense level because of his prior conviction of unauthorized use of a motor vehicle in violation of Texas Penal Code § 31.07(a). As Armendariz conceded, the judgment was foreclosed by previous rulings of this circuit. See United States v. Galvan-Rodriguez, 169 F.3d 217 (5th Cir. 1999).

The Supreme Court has now granted certiorari and remanded for consideration in the light of Begay v. United States, 128 S.Ct. 1581 (2008) and Chambers v. United States, 129 S.Ct. 687 (2009). Those opinions hold that the generic crime of violence or aggravated felony must itself involve purposeful, violent and aggressive conduct. The risk of physical force may exist where the defendant commits the offense of unauthorized use of a vehicle, but the crime itself has no essential element of violent and aggressive conduct. It follows that the Armendariz sentence rests on a procedural error. The government agrees that the sentence must be vacated and the case remanded for resentencing.

Sentence Vacated. Case Remanded.

This is the correct result, but the reasoning is a little hard to follow, for a couple of reasons. First, this line—"The risk of physical force may exist where the defendant commits the offense of unauthorized use of a vehicle, but the crime itself has no essential element of violent and aggressive conduct."—is essentially the holding of Galvan-Rodriguez, which the court necessarily concludes was wrongly decided.

Second, Begay and Chambers involved a slightly different definition than the one relevant here. The Begay/Chambers purposeful-violent-and-aggressive requirement is part of the "otherwise clause" in the ACCA's "violent felony" definition, which reaches felonies that "present[] a serious potential risk of physical injury to another[.]" In the UUV-as-aggravated-felony cases, on the other hand, the question is whether the felony "involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense[,]" under 18 U.S.C. § 16(b). Nevertheless, the Supreme Court evidently took the view that Begay/Chambers apply to the 16(b) risk clause, and Armendariz-Moreno confirms that. This also means that UUV is neither an ACCA "violent felony," nor a §4B1.2 COV.

For Purposes of Supervised-Release Tolling Provision, "Imprisonment" Includes Pretrial Detention

United States v. Molina-Gazca, Nos. 08-50619, 08-50620 (5th Cir. June 11, 2009) (Jones, Elrod, Guirola, D.J.)

Prefatory disclosure: I did some work on this case.

Under 18 U.S.C. § 3583(i), a district court does not have jurisdiction to revoke a term of supervised release after it expires, unless a warrant or summons issued before the expiration of the term. A separate statute, § 3624(e), provides that "[a] term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days." Given those provisions, and the following sequence of events, did the district court have jurisdiction to revoke Molina's terms of supervised release?

• November 3, 2003: Molina commences serving two concurrent three-year terms of supervised release.
• July 8, 2005: Molina is arrested in New Mexico and charged with several felonies. He is detained pending trial.
• November 2, 2006: Molina's supervised release terms expire.
• November 15, 2006: Molina is convicted of the state charges.
• May 3, 2007: A revocation warrant issues, evidently in response to the United States' motion to revoke Molina's TSR. The motion relied on Molina's new conviction as the basis for revocation.
• September 24, 2007: Molina is sentenced to 39 years' imprisonment, with credit for the time he served in pretrial custody.
• At some point after that, the district court revoked both of Molina's terms of supervised release, and sentenced him to two concurrent terms of 15 months' imprisonment, to run consecutive to his state sentence.
  

Molina argued that "a conviction within the period of supervised release is necessary to trigger the tolling provision under § 3624(e)." The court disagreed, relying on the "unambiguous" text of the statute:

Congress could have elected to restrict the application of § 3624(e) in the manner Molina-Gazca suggests. For example, Congress could have limited tolling to periods of imprisonment in connection with a conviction that “occurs during supervised release.” However, § 3624(e) makes no distinction between pre-trial or postconviction periods of imprisonment, but instead requires that “any period” of imprisonment be “in connection with a conviction” for tolling to apply. The phrase “imprisoned in connection with a conviction” plainly lacks any temporal limitation.

This construction, Molina noted, could "leave[] a defendant in a state of 'jurisdictional limbo' while the district court waits to see if a conviction will actually occur." Despite acknowledging this possibility, the court nevertheless concluded that "[t]o the extent that Congress’s omission of a causal or temporal term results in uncertainty as to a defendant’s status, our role is not to imply those limits when Congress could have done so in the first instance."

Finally, Molina argued that detention and imprisonment are understood to be two different things, and that by using the term "imprisonment," § 3624(e) does not reach back to include a period of pretrial detention once a defendant is convicted and sentenced. The Ninth Circuit has so held, meaning that periods of pretrial detention are excluded from § 3624(e). The Sixth Circuit has held otherwise, concluding that the Ninth Circuit's interpretation would render the "in connection with" clause superfluous. The court here chose to follow the Sixth Circuit, pointing also to one statute, 18 U.S.C. § 3041, that "would seem to reject an imprisonment-detention distinction by providing that offenders may be 'arrested and imprisoned or released as provided in chapter 207 of this title ['Release and Detention of a Defendant Pending Judicial Proceedings'], as the case may be, for trial before such court of the United States as by law has cognizance of the offense.'"

Ultimately, the court held that "[p]retrial detention falls within 'any period in which the person is imprisoned' and tolls the period of supervised release, provided a conviction ultimately occurs. This plain meaning interpretation of § 3624(e) gives effect to all of its terms."

Carr Factors: "Close Assistance of Counsel" Not the Same Thing as "Ineffective Assistance of Counsel"

United States v. McKnight, No. 08-30229 (5th Cir. June 5, 2009) (O'Connor, Wiener, Stewart)

This case involves the appeal of a district court's denial of a motion to withdraw a guilty plea. Given the fact-intensive nature of the issue, a case like this ordinarily wouldn't be worth discussing here. But two aspects of the case merit mention: 1) the eyebrow-raising circumstances of the offense, and 2) the court's clarification of one of the factors relevant to the analysis.

What's eyebrow-raising about the case? DEA agents used a confidential informant to set up a man undergoing treatment for severe mental illness:

Before the arrest that led to the proceedings below, McKnight was diagnosed with and treated for paranoid schizophrenia, delusions, and major depression at the East Jefferson Mental Health Center (“Center”) in New Orleans, Louisiana. On June 1, 2005, while McKnight was undergoing treatment at the Center, agents with the Drug Enforcement Administration (“DEA”) arranged a purchase of two and one-fourth ounces of cocaine base from McKnight through cooperation with a confidential source (“CS”). On June 2, 2005, McKnight met the CS and an undercover agent in a parking lot located at a Walgreens. McKnight handed the undercover agent a package containing 61.6 grams of cocaine base and the agent handed McKnight $1,500.

McKnight was charged with, and pleaded guilty to, possessing more than 50 grams of crack with the intent to distribute it. "In exchange for McKnight’s guilty plea, the Government promised not to file a 21 U.S.C. § 851 recidivist bill and McKnight waived certain rights to appeal." The day after his rearraignment, "McKnight sent a letter to the district court where he expressed doubts regarding his decision to plead guilty." To make the rest of a long and troubling story short,

• McKnight was found incompetent by two doctors.
• The district court appointed new counsel for McKnight.
• McKnight was sent to Butner for restoration of competency, where doctors concluded he was malingering.
• McKnight "moved to withdraw his guilty plea based on lack of competency at the time he pled guilty and ineffective assistance of counsel."
• McKnight was sent back to Butner, where doctors again concluded he was malingering, and that he was competent at the time of his plea.
• The district court held a hearing on the ineffective assistance claim, denied McKnight's motion to withdraw his guilty plea, and sentenced him to 292 months' imprisonment.

McKnight appealed the district court's denial of his motion to withdraw his guilty plea. In determining whether the district court abused its discretion in doing so, the court of appeals considers the seven "Carr factors." And therein lies the second reason for discussing this case. One of the Carr factors is whether the defendant received "close assistance of counsel." Both in the district court and on appeal, "McKnight framed his argument that he lacked close assistance of counsel as a 'claim' of 'ineffective assistance of counsel.'" Incorrect, said the court:

Close assistance of counsel under Federal Rule of Criminal Procedure (“Rule”) 11(d)(2)(B) and constitutionally ineffective assistance of counsel under the Sixth Amendment are distinct issues. The former is to be considered by a district court in the exercise of its discretion to allow or to disallow a defendant to withdraw his guilty plea. The latter presents a basis for invalidating a conviction (or sentence) secured in violation of a defendant’s fundamental right to counsel. McKnight moved to withdraw his guilty plea under Rule 11(d)(2)(B). He has not sought to invalidate his conviction under the Sixth Amendment or any other provision of law. Thus, McKnight erred in framing his close assistance of counsel claim before the district court and this Court as a Sixth Amendment inquiry.

The court went on to consider the facts under correct standard at length, and concluded that McKnight received close assistance of counsel. On another Carr factor—whether the guilty plea was knowing and voluntary—the court held in conclusory fashion that the district court did not clearly err in relying on the Butner doctors' reports declaring McKnight a malingerer. Most of the rest of the Carr factors weighed against an abuse of discretion, so the court of appeals ultimately affirmed McKnight's conviction.

Proposed Fifth Circuit Rules Changes

The clerk's office has posted this notice of proposed amendments to the Fifth Circuit Rules. On tap this time:

1. Amendments to time deadlines to comply with the proposed December 1, 2009 amendments to the FED. R. APP. P.

2. Replacing the word “shall” with “will” to be consistent with the previous linguistic preference in the FED. R. APP. P.

3. Modifications to our attorney admissions requirements, (Rule 46.1); and an updated reference to the May 2008, 5th Circuit Judicial Misconduct Rules, in Rule 47.9.

4. Addition of rules governing electronic case filing.

The first one is probably the most significant of the bunch. The notice explains:

In December 2009, the federal rules will change the way certain time deadlines are calculated and will adopt the “days are days” approach. This means all deadlines will be measured in calendar days, rather than the current system where deadlines of less than 11 days do not count intermediate Saturdays, Sundays and holidays. As a practical matter currently a 7 day deadline provides a party at least 10 days to act. With the change in counting methodology, many deadlines have been extended in the federal rules.

The fourth change would not actually implement mandatory electro-filing. The proposed rules instead set up the framework, and direct the clerk to fill in some of the details.

Want to see how the proposed amendments would operate on the existing rules? The notice contains a handy redline.

Want to comment on the proposed amendments? You may do so in writing or electronically. The deadline is August 10, 2009.

En Banc Court Splits Evenly in Seale, Thereby Affirming District Court's Rejection of SOL Challenge

This past Friday, the Fifth Circuit issued the following two-sentence order in United States v. Seale:

By reason of an equally divided en banc court, the decision of the district court on the sole issue of its denying dismissal of the indictment because of the running of the statute of limitations is AFFIRMED.

The appeal is RETURNED to the panel for decision of the other issues raised on appeal.

Judge DeMoss, the author of the panel decision, dissented. He also said that the order's "use of the term 'affirmed' is somewhat misleading." While the effect of an equally divided vote is to let the decision of the court below stand, "the use of the term 'affirmed' should not be construed to mean that the en banc court approves of the reasoning of the district court." Sort of like a cert denial, in other words.

(Link to the order courtesy of the Jackson (Miss.) Clarion-Ledger, by way of How Appealing.)

Remorse Not Requried for Acceptance of Responsibility, But Lack of Remorse a Valid Basis for Upward Variance

United States v. Douglas, No. 07-11007 (5th Cir. May 29, 2009) (O'Connor,* Wiener, Stewart)

Can a defendant receive an acceptance-of-responsibility adjustment under guideline §3E1.1, even if he is not remorseful for having committed the offense? Yes. That's the good news in Douglas. The bad? A district court may impose an above-Guidelines sentence based on that lack of remorse.

Our facts:

Chuck Lavon Douglas pled guilty . . . to a single count of possession of ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The charge arose after a minor who was at Douglas’s home at the time accidentally shot himself in the hand with a loaded handgun that Douglas had handed to him. After the child was taken to the hospital, police obtained a search warrant and searched Douglas’s residence. Douglas cooperated in the search and led police to the handgun and several rounds of ammunition. Although these events took place in late August 2003, Douglas was not charged until February 27, 2007, in part because he had been living in Mexico in an attempt to avoid arrest on other state charges.

Douglas's Guidelines range worked out to 18 to 24 months, which included the full 3-level adjustment for acceptance of responsibility. When asked by the district court at sentencing if he had learned anything from his offense, Douglas said that he "should have stayed in Mexico" with his wife and child. Pressed by the court as to whether he was remorseful, Douglas responded that the minor had shot himself. Ultimately, "[t]he district court determined that a non-Guidelines sentence [of 36 months' imprisonment] was appropriate based on the Guidelines range and the § 3553(a) factors, citing Douglas’s lack of remorse, that a child was injured as a result of his offense, and that he had repeatedly indicated that he should have stayed in Mexico."

On appeal, "Douglas argue[d] that the district court committed procedural error when it did not first consider [his] lack of remorse in calculating the applicable Guidelines range before using that factor to justify a higher, non-Guidelines sentence[,] . . . contend[ing] that 'lack of remorse' is essentially the same basis on which [the court] contrarily granted him a three-point reduction from his offense level pursuant U.S.S.G. § 3E1.1 for 'acceptance of responsibility.'" He relied primarily on the Fifth Circuit's 2004 decision in United States v. Andrews, which held that the "district court committed reversible error by granting the defendant an offense level reduction for acceptance of responsibility, but then finding his lack of acceptance of responsibility to justify an upward departure from the Guidelines."

Apples and oranges, the court replied:

We hold that “lack of remorse” and “acceptance of responsibility” can be separate factors and that a district court may consider each independently of the other. The district court in Andrews used contrary findings on the very same factor to grant a downward enhancement and then upwardly depart, while here the court based its upward variance on “lack of remorse,” an independent factor. Because lack of remorse is a different consideration from finding acceptance of responsibility pursuant to § 3E1.1, it need not be addressed during the Guidelines calculation. . . . Acceptance of responsibility accounts for the defendant’s guilty plea, which relieves the government of the burden of being put to its proof. See § 3E1.1(b), cmt. 2, 3. It is not inconsistent for the district court to have determined that Douglas accepted and admitted his culpability for the crime but at the same time demonstrated a lack of remorse for his conduct.

Moreover, "[u]nder the advisory Sentencing Guidelines, the district court . . . is free to give more or less weight to factors already accounted for in that advisory range."

A couple of other things to note:

1) Preservation of claimed procedural error. Unlike in many recent cases, the court found that Douglas had properly preserved the issue below. Here's how:

In response to a question from defense counsel, the district court stated that the sentence was “a non-Guidelines sentence.” Defense counsel then objected to the court’s non-Guidelines sentence based on the minor’s injury. The district court clarified that the reasons for the upward departure were Douglas’s lack of remorse and his statements that he should not have returned from Mexico, not the injury to the minor. It further explained that a twenty-four month sentence was not adequate to address the § 3553(a) concerns of promoting respect for the law and just punishment. Defense counsel maintained the objection to the upward departure, on grounds that it deprived Douglas of his credit for acceptance of responsibility and that lack of remorse was not taken into account by the court in determining the Guidelines range.

Whether this much objecting is necessary the opinion doesn't say. But it does illustrate what would be sufficient to avoid plain error review on this particular issue.

2) The Fifth Circuit continues to draw a distinction between Guidelines and non-Guidelines sentences for purposes of reasonableness review.

This court’s post-Booker case law recognizes three types of sentences: (1) one within a properly calculated Guideline range; (2) one that is an upward or downward departure as allowed by the Guidelines, which is also a Guideline sentence; or (3) a non-Guideline sentence which is either higher or lower than the relevant Guideline sentence. United States v. Tzep-Mejia, 461 F.3d 522, 525 (5th Cir. 2006).

This ostensibly matters because only Guidelines sentences get a presumption of reasonableness on appeal. But it may be little more than a formal distinction, given the Fives' deferential approach to substantive reasonable review.

*Yes, that's retired Supreme Court Justice Sandra Day O'Connor, sitting by designation.

Generic "Arson" Is Willful and Malicious Burning of Property; Doesn't Require Threat of Harm to a Person

United States v. Velez-Alderete, No. 08-20557 (5th Cir. June 2, 2009) (per curiam) (King, Garwood, Davis)

Various COV definitions include "arson" as an enumerated offense. Ever wondered what generic arson is? Wonder no longer. Velez-Alderete holds, as have other circuits, that "the generic, contemporary definition of arson involves a willful and malicious burning of property[,]" without any requirement that the burning threaten harm to a person. Velez-Alderete further holds that Texas's arson falls within that defintion:

Texas proscribes starting a fire “with intent to destroy or damage” various types of property ranging from structures and vegetation on open-space land to vehicles when the perpetrator knows that the vehicle is insured or when he is reckless concerning the safety of the property of another. All of these variations involve a willful and malicious burning of property.

At least 35 other states' arson statutes fit the bill, as well. Refer to the string cite in footnote 4 if you'd like to know which ones those are.

Ninth Circuit Finds Illegal Reentry Sentence Substantively Unreasonable

In United States v. Amezcua-Vasquez, No. 07-50239 (9th Cir. June 1, 2009). Check out the Ninth Circuit Blog's summary of the case here.

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.