Is SCOTUS Poised to Reconsider Almendarez-Torres?

That the question posed in this post at SCOTUSblog.  What prompted this speculation?

As noted here, the Court called for a response with respect to two petitions that ask the Court to reconsider Almendarez-Torres: Ayala-Segoviano v. United States, 10-5296, and Vazquez v. United States, 10-6117. Since the government filed briefs in opposition, the Court has relisted those cases three times, at the January 7, 14, and (apparently) 21 Conferences.

The post goes on to caution that "[i]t is impossible to know with any certainty what the repeated relists mean[,]" and adds that it may mean one or more of the Justices is preparing a dissent from a denial of cert.  In any event, the attention the Court is giving these two cases suggests that the panel majority in Pineda-Arrellano was wrong when it opined (in dicta) that challenges to Almendarez-Torres are frivolous.

(Incidentally, Ayala-Segoviano is a 1326 case, while Vazquez raises the issue with regard to the ACCA.)

Proposed Guidelines Amendments and Requests for Comment

As Professor Berman highlighted last week, the Sentencing Commission has published for public comment a raft of proposed amendments to the Guidelines.  A few of these proposals could be quite significant for those of us in border districts, as well as anyone who represents alien defendants (which is pretty much everyone these days).  There are also some requests for comment on matters perennial (mitigating role for drug mules) and emerging (cross-border gun smuggling).  I'll highlight a few of the bigger ones.

Supervised Release
The Guidelines currently recommend that a court include a term of supervised release whenever a defendant is sentenced to more than one year's imprisonment (and, of course, whenever required by statute). Turns out that, according to a recent Commission study, "supervised release is imposed in almost every case, including in more than 99 percent of cases where the guidelines require imposition of a term of supervised release but there is no statutory requirement to do so."  What's more, "[s]upervised release is imposed in more than 91 percent of cases in which the defendant is a non-citizen[,]" and non-citizens account for nearly half of all federal offenders.

The Commission wants to know whether this is a good idea.  (Although it puts it more bureaucratically: "The Commission is considering whether revisions to the supervised release guidelines would help courts and probation offices focus limited supervision resources on offenders who need supervision.")  To that end, it is floating a few ideas: raising or even eliminating the threshold term of imprisonment that would trigger a recommended term of supervised release, reducing the recommended terms of supervised release, and even doing away with the recommendation entirely unless an applicable statute requires a term of supervised release in the case.  Along with these changes, courts would be encouraged to take a defendant's criminal history into account when making the supervised release determination, recognizing (in accord with that study) that the less serious a defendant's criminal history, the more likely it is that he will successfully complete supervision.

Perhaps the most significant proposed change to the supervised release guidelines is to recommend against imposing a term of supervised release on an alien defendant who is likely to be deported and unlikely to be allowed to return to the United States legally.  The proposal recognizes that a term of supervised release is absurd unnecessary in such cases, because the prospect of an illegal reentry charge provides adequate deterrance to an alien's possible unlawful return.

More proposed amendments and requests for comment after the jump . . .
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Bare Offer to Sell Drugs Is Now Drug-Trafficking Offense Under Illegal Reentry Guideline; Still Not Plain Error to Apply Higher Guidelines In Effect at Time of Sentencing

United States v. Marban-Calderon, No. 09-40207 (5th Cir. Jan. 18, 2011) (Higginbotham, Smith, Elrod)

As you'll recall, the Fifth Circuit has in the past held that a Texas conviction for delivery of a controlled substance was not categorcially a "drug trafficking offense" under guideline §2L1.2, because the offense can be committed by a bare offer to sell drugs.  You'll also recall that the Sentencing Commission amended §2L1.2's "drug trafficking" definition in November 2008 to include offers to sell:

"Drug trafficking offense" means an offense under federal, state, or local law that prohibits the manufacture, import, export, distribution, or dispensing of, or offer to sell a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.

Marban-Calderon thus holds:

Following this change, a Texas conviction for delivery of a controlled substance—whether by active transfer, by constructive transfer, or by offer to sell—necessarily qualifies as a drug trafficking offense under the Sentencing Guidelines.

But wait, there's more: an ex post facto issue on which there's a circuit split, and an intriguing question raised by that 2008 amendment.
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Cert Grant: Under ACCA, Is Maximum Punishment for Prior Offense Determined By Current Law or By Law In Effect at the Time of That Offense?

Under the ACCA, a "serious drug offense" is one carrying a maximum term of imprisonment of at least 10 years.  In determining whether a prior offense is a serious drug offense, does the court look at the maximum punishment authorized at the time the defendant committed the offense, or at the time of sentencing for the new federal offense?

That is the question on which the Supreme Court granted certiorari last week in McNeill v. United States, 10-5258.  And no, the case does not involve the situation where the maximum punishment for an offense was increased after the defendant committed the offense; in McNeill, the maximum punishment was actually reduced.  As you can see, opinions on the correct answer to the question presented could depend on whose defendant is being gored.

The question has produced a 2-2 circuit split.  The Fifth Circuit has held—in a situation in which the maximum was reduced and the reduced penalty was not made retroactive—that the court must look at the law in effect at the time of the prior offense, not at the current law.  United States v. Hinojosa, 349 F.3d 200 (2003).

Pleadings, etc. available at SCOTUSblog.

Revocation Aggregation

United States v. Shabazz, No. 10-10553 (5th Cir. Jan. 6, 2011; rev. Jan. 12, 2011) (King, Stewart, Owen)

United States v. Hampton, No. 10-10035 (5th Cir. Jan. 6, 2011) (King, Stewart, Owen)

In these cases, the court addresses an issue concerning revocation imprisonment terms that has been lurking since the passage of the PROTECT Act in 2003.  Namely, is there an aggregate limit on the amount of imprisonment that a defendant can receive over the course of multiple supervised release revocations?  As the answer to this question necessarily involves tedious forays into the text, structure, and amendment history of 18 U.SC. § 3583, I'll spare you the "why" and just stick with the bottom line.  And the answer: yes, albeit indirectly, but not if a defendant was convicted of an offense carrying a maximum supervised release term of life.  Details after the jump . . .

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TX Fleeing by Vehicle Is Aggravated Felony, for Largely the Same Reason It's an ACCA Violent Felony

United States v. Sanchez-Ledezma, No. 10-40451 (5th Cir. Jan. 7, 2011) (Garza, Stewart, Haynes)

Recall that, in United States v. Harrimon, the Fifth Circuit found that evading arrest or detention by use of a vehicle, in violation of Texas Penal Code § 38.04(a), is a "violent felony" under the ACCA.  Specifically, Harrimon held that the Texas offense falls within the violent felony definition's residual clause, which reaches offenses that "involve[ ] conduct that presents a serious potential risk of physical injury to another[.]"  To satisfy that standard, an offense must be purposeful, violent, and aggressive, and present a degree of risk similar to that of the enumerated violent felonies (like arson).  Fleeing-by-vehicle fits the bill, so Harrimon held, because it involves an intentional act, flouting lawful authority is aggressive, and "the use of a vehicle . . . to evade arrest or detention typically involves violent force which the arresting officer must in some way overcome."

Which brings us to Sanchez-Ledezma, in which the court holds that Texas fleeing-by-vehicle is also an aggravated felony.  Specifically, it's a "crime of violence" under 18 U.S.C. § 16(b)—a definition incorporated in the aggravated felony definition—which reaches felonies that "involve[ ] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."  As you'll note, this definition is different from the ACCA's violent felony residual clause, focusing on the risk of force rather than the risk of injury.  Doesn't matter:

Sanchez-Ledezma argues that Harrimon does not expressly evaluate the risk that an actor would intentionally employ force in the course of committing a violation of section 38.04(b)(1)and focuses on the incidental risk of injury to bystanders rather than the risk of the intentional use of force. As the passage quoted above makes quite clear, that argument fails. We explained in Harrimon that the crime at issue in both that case and this “typically involves violent force which the arresting officer must in some way overcome” and “will typically lead to a confrontation with the officer being disobeyed, a confrontation fraught with risk of violence.” Our ultimate conclusion was that evading arrest with a vehicle met the standard for aggressiveness” under Begay, which we characterized as involving “offensive and forceful [behavior] . . . characterized by initiating hostilities or attacks.” These conclusions bear directly on the question of the risk of the use of physical force against a person in the course of committing the offense.

Evading arrest with a motor vehicle is, by the logic of Harrimon, a “crime of violence” for purposes of § 16(b), and therefore an “aggravated felony” for purposes of § 1101(a)(43)(F).

(cites to Harrimon omitted).
 
Note that the issue of whether fleeing-by-vehicle qualifies as an ACCA violent felony is currently before the Supreme Court in Sykes v. United States, which is being argued today.

Legally Non-Consensual Sex Offenses, Even If Involving Consent In Fact, are "Forcible Sex Offenses" Under §2L1.2's COV Definition

United States v. Rodriguez-Juarez, No. 09-41001 (5th Cir. Jan. 10, 2011) (per curiam) (Higginbotham, Smith, Haynes)

Remember the Fifth Circuit cases, such as Luciano-Rodriguez and Sarmiento-Funes, which held that sex offenses that are factually consensual but legally non-consensual (such as when the victim is too intoxicated to legally consent) are not "forcible sex offenses" for purposes of the crime-of-violence definition applicable to guideline §2L1.2's 16-level enhancement?  Those cases are no longer good law in light of a 2008 amendment to the COV definition:

In 2008, after the above decisions, . . . the Guidelines were amended. The new Guidelines specify that the definition of “crime of violence” includes sexual offenses “where consent to the conduct . . . is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced.” U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii). In its reasons for the amendment, the Sentencing Commission explained that “[a]pplication of the amendment . . . would result in an outcome that is contrary to cases excluding crimes in which ‘there may be assent in fact but no legally valid consent’ from the scope of ‘forcible sex offenses’” and cited examples of such cases, including Luciano-Rodriguez and Sarmiento-Funes. U.S.S.G. app. C, amend. 722.

This court has not yet addressed what effect the amended crime of violence definition has upon its previous rulings addressing whether a conviction for a sexual offense involving a person whose consent was legally invalid constitutes a forcible sexual offense. . . .

Because we have not previously addressed this issue in a published opinion, we do so here and conclude that the effect of the revisions to the Sentencing Guidelines is to make our prior precedent inapplicable to sentences calculated under the revised version of U.S.S.G. § 2L1.2(b)(1)(A)(ii). . . .

Fives Clarify Harmlessness Analysis of Guidelines Calculation Error

United States v. Ibarra-Luna, No. 09-40768 (5th Cir. Dec. 22, 2010) (Higginbotham, Clement, Owen)

Been wondering just when an error in calculating the advisory Guidelines range requires reversal?  Today is your lucky day:

Today we address whether a sentence may be upheld if an error in the calculation is shown to be harmless. We hold that under the discretionary sentencing regime of Booker and progeny, the harmless error doctrine applies only if the proponent of the sentence convincingly demonstrates both (1) that the district court would have imposed the same sentence had it not made the error, and (2) that it would have done so for the same reasons it gave at the prior sentencing. On the facts before us, we conclude that this high hurdle has not been cleared and remand for resentencing.

Guess we better look at the facts here, then.
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