21 U.S.C. § 851 Does Not Bar Defendant From Challenging 5+ Year-Old Conviction on Identity Grounds

United States v. Gonzalez, No. 09-40125 (5th Cir. Nov. 2, 2010) (per curiam) (King, Garwood, Davis)

Sometimes it seems like sentencing in federal court has more to do with what the defendant did in the past than what he did this time.  Which brings us to Gonzalez and 21 U.S.C. § 851.  The case presents two questions:

First, although § 851 precludes a defendant from challenging the validity of a prior conviction that is more than five years old, may he nevertheless do so on the ground that he is not the person who was convicted?

Answer: Yes.  A defendant raising an identity challenge is not "challenging 'the validity' of the [prior] conviction, but only that it is not a conviction of him; and, if it is not a conviction of him, he likely had no notice of it or reason to sooner challenge it."

That was easy enough.  On to the second question presented: was the Government's evidence sufficient to establish that Gonzalez was the same person convicted of one of the two priors alleged in the enhancement information?  And for that, we need some background.
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Career Offenders Ineligible for Mitigating Role Adjustment

United States v. Cashaw, No. 09-51035 (5th Cir. Nov. 2, 2010) (per curiam) (King, Garwood, Davis)

As it turns out, this appears to be the first time the Fifth Circuit has held as such.  Cashaw had argued that he was eligible for the adjustment because "the career offender provision does not expressly preclude a downward adjustment for a minor participant and . . . this court has never ruled to the contrary."

The court pointed first to guideline §1B1.1, which sets out the order of operations for Guidelines calculations.  Chapter 2 first (base offense level and specific offense characteristics), Chapter 3 next (where the mitigating role adjustment is found), thence onward to Chapter 4 (home of the whopper career offender guideline).  Applying a Chapter 3 adjustment after applying the career offender guideline—which "provides an alternate offense level if the defendant qualifies as a career offender and the career offender offense level is greater than the 'otherwise applicable' offense level"—would disrupt the order mandated by §1B1.1 (sort of like saying you should have been allowed to eat your dessert before supper, upon learning that mom wouldn't let you have any dessert at all because you refused to eat your broccoli, or something like that).  "The only chapter Three adjustment explicitly permitted by Guidelines § 4B1.1(b), and thus authorized by the instructions, is the acceptance of responsibility adjustment."

As for Cashaw's argument that the career offender guideline doesn't explicitly prohibit a mitigating role adjustment,

The fact that the career offender provision authorizes an adjustment for acceptance of responsibility, but no other adjustments, demonstrates that the Sentencing Commission intended for no other adjustment to apply. As one of our sister circuits succinctly put it, “[h]ad the Sentencing Commission intended for all Chapter Three adjustments to follow a career offender adjustment, there would have been no need for the Commission to expressly indicate the permissibility of a reduction [for acceptance of responsibility].” Furthermore, implying a minor participant adjustment into the career offender provision would prevent implementation of Congress’ directive that career offenders “receive a sentence of imprisonment at or near the maximum term authorized.”

(cites omitted).

CA "Willful Infliction of Corporal Injury" a §2L1.2 16-Level COV, But CA "Making Criminal Threats" Not

United States v. Cruz-Rodriguez, No. 09-40500 (5th Cir. Nov. 2, 2010) (per curiam) (King, Benavides, Elrod)

And now for something completely different: a §2L1.2 16-level COV case.

Cruz got hooked with the enhancement on the basis of two Golden State priors:

• Cal. Penal Code § 273.5—willful infliction of corporal injury
• Cal. Penal Code § 422—making criminal threats

Neither is an enumerated COV, so the question was whether either of them "has as an element the use, attempted use, or threatened use of physical force against the person of another."

One does, one doesn't:

With respect to the willful infliction of corporal injury offense, we previously rejected this argument in an unpublished opinion, holding that California Penal Code § 237.5(a) “penalizes the intentional use of force that results in a traumatic condition.” We find this reasoning persuasive. Moreover, our previous decision is consistent with the Ninth Circuit’s analysis of § 237.5(a). Accordingly, we hold that the offense of willful infliction of corporal injury is a crime of violence for the purpose of sentence adjustments under U.S.S.G. § 2L1.2(b)(1)(A)(ii).

On the other hand, with respect to the offense of making a criminal threat, we previously held in an unpublished opinion that “the use, attempted use, or threatened use of physical force against the person of another” is not an element of California Penal Code § 2L1.2(b)(1)(A)(ii) [should be § 422] “because it is possible under [California] law for the State to obtain a conviction under . . . the terroristic threats statute without proof of the threatened use of physical force against another person . . . .” We likewise find this reasoning persuasive. In addition, this court reached the same conclusion with respect to a similar Pennsylvania statute, holding that the generic terroristic-threat offense at issue in that case is not a crime of violence. Therefore, we hold that the offense of making a criminal threat is not a crime of violence for the purpose of sentencing adjustments under U.S.S.G. § 2L1.2(b)(1)(A)(ii).

(cites omitted).