Two Bites at the Apple: When Can the Government Rely on a Different Conviction for an Enhancement on Appeal?

United States v. Medina-Torres, No. 11-40656 (5th Cir. Dec. 21, 2012) (per curiam) (Davis, Smith, Dennis)

United States v. Vargas-Soto, No. 11-10835, 700 F.3d 180 (5th Cir. Oct. 24, 2012) (Benavides, Owen, Southwick)

These cases provide a glimpse into when the Fifth Circuit will allow the government to substitute a conviction that neither the PSR nor the district court relied upon in order to justify the sentencing range. In Vargas-Soto the panel permitted the government to supplement the record after oral argument so that it could rely on a different conviction to justify the § 1326(b) enhancement without deciding whether a Texas manslaughter conviction is an aggravated felony.

In light of Vargas-Soto (issued 10/25/12), the government petitioned for a panel rehearing in Medina-Torres (first opinion issued 11/1/12). In Medina-Torres, the panel held that the record lacked documents narrowing the theft conviction to be an aggravated felony. The panel remanded so that the district court could determine whether Medina-Torres’s forgery conviction would also count as an aggravated felony.  In its petition for rehearing, the government asked the panel to analyze the forgery conviction instead of remanding.

Distinguishing Medina-Torres from Vargas-Soto, the panel explains in the second opinion (issued 12/26/12) that the forgery argument 

is unsuitable to be addressed for the first time on appeal for two reasons: first, Medina-Torres’ former conviction was poorly documented in the appellate record, and, second, the government was relying on a novel theory of sentence enhancement, namely, that a defendant's prior conviction should qualify as an aggravated felony with a term of imprisonment of "at least one year" even if he or she was never sentenced to a full year in prison.

So, the lesson seems to be that the alternate conviction can be sufficient if the appellate record has Shepard documents and the alternate conviction does not raise any questions of first impression. Otherwise, like in Medina-Torres, the government can still have its second bite at the apple, but it will have to be on remand before the district court first.

One side note. The Vargas-Soto opinion purportedly relied on established law to substitute another prior conviction - evading arrest by use of a motor vehicle - for the enhancement. Fifth Circuit precedent establishes that evading arrest by use of a motor vehicle is a crime of violence under 18 U.S.C. § 16(b), which makes it an aggravated felony (+8). United States v. Sanchez-Ledezma, 630 F.3d 447, 451 (5th Cir. 2011), cert. denied, 131 S. Ct. 3024 (2011). So, Vargas-Soto would have been subject to the 20-year maximum even if his manslaughter conviction was not an aggravated felony. The Vargas-Soto opinion, though, seems to conflate the two definitions of "crime of violence," stating that his evading arrest conviction "would have been sufficient to support the same 16-level enhancement." Maybe Vargas-Soto gets the 16-level enhancement for some other reason, but it would not be because of the aggravated felony of evading arrest with a motor vehicle, which is not necessarily a "crime of violence" as defined in U.S.S.G. § 2L1.2.