Thursday, December 16, 2010

California First-Degree Burglary is COV Under 18 U.S.C. § 16(b), and Therefore Aggravated Felony

United States v. Echeverria-Gomez, No. 09-50261 (5th Cir. Dec. 8, 2010) (per curiam) (Jolly, Higginbotham, Smith)

We know that burglary under Cal. Penal  Code § 459 is not generic "burglary" because it does not require that the entry be unlawful or unprivileged.  And for that reason, it does not trigger a 16-level COV enhancement under the illegal reentry guideline, §2L1.2.  But we also know that there's more than one way to skin a cat COV definition applicable to illegal reentry cases: 18 U.S.C. § 16, which is incorporated in the definition of "aggravated felony."  Does California burglary fit that one?

Yes and no.  It's not a COV under § 16(a) because it lacks a force element.  But it does qualify under § 16(b), which includes felony offenses "that, by [their] nature, involve[ ] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense[?]"  First-degree burglary does:

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Wednesday, December 15, 2010

Cert Grant: Are Pre-Existing Identity-Related Governmental Documents, Such as Motor Vehicle Records, Obtained as the Direct Result of Police Action Violative of the Fourth Amendment, Subject to the Exclusionary Rule?

Last month the Supreme Court granted cert to answer that question—a question that has divided courts 'round the land—in Tolentino v. United States, No. 09-11556.

The evidence at issue is Tolentino's driving record, which police obtained by running a computer records check during an allegedly illegal traffic stop.  That record revealed that Tolentino's license was suspended (as it had been on 10 separate occasions), and led to his arrest for "aggravated unlicensed operation of a motor vehicle in the first degree."  The Court of Appeals of New York held, in a divided opinion, that Tolentino's driving record was not suppressible:
The officers learned defendant's identity when they stopped his car; that knowledge permitted the police to run a computer check that led to the retrieval of defendant's DMV records. Under the rationale of Lopez-Mendoza and the above federal circuit court decisions, defendant's DMV records were therefore not suppressible as the fruit of the purportedly illegal stop. In short, "there is no sanction . . . when an illegal arrest only leads to discovery of the man's identity and that merely leads to the official file or other independent evidence[.]"
(citation omitted).
Notably, those "federal circuit court decisions"—including one from our very own Fifth Circuit—are all 1326 cases in which the courts held that an alien's A-file is not a suppressible fruit of a Fourth Amendment violation.  And 1326 cases make up the bulk of the cases Tolentino's cert petition cites when discussing the division of authority over this question.  So you may want to consider dusting off those motions to suppress things like A-files and fingerprint exemplars, as the Court's decision will likely apply to more than just DMV records, outstanding warrants, and the like.
As usual, head over to SCOTUSblog for comprehensive coverage of the case, which will be argued later this term.

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Tuesday, December 14, 2010

Cert Grant: May a District Court Give a Defendant a Longer Sentence to Promote Rehabilitation?

Such is the question presented in Tapia v. United States, No. 10-5400, in which the Supreme Court granted cert last Friday.  You may be familiar with the scenario presented in Tapia: the district court imposed a 51-month, top-of-the-guidelines sentence in part to ensure that Tapia would remain in prison long enough to be able to participate in BOP's 500-hour drug treatment program.

According to the petition, the Eighth and Ninth Circuits "allow rehabilitation to be used as a factor in deciding the length of a defendant's prison sentence, once the court decides that a prison sentence is appropriate."  The Second, Third, Eleventh, and D.C. circuits have held otherwise.  To my knowledge, there is no published Fifth Circuit decision addressing this question.

The answer lies in the interplay between two provisions of the Sentencing Reform Act.  Section 3553(a)(2)(D) requires the sentencing court to consider the need "to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner[.]"  Section 3582(a) then instructs the court that, both when determining whether to impose a sentence of imprisonment and when determining the length of an imprisonment term, it "shall consider the factors set forth in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation." (emphasis added).

Information about the case, including links to the pleadings, is available at SCOTUSblog.  And you should check out the cert petition itself.  It's very good: clear, concise, and (as we now know) effective.  Not a bad model to follow.

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