NY Misdemeanor Sexual Abuse of a Minor is an “Aggravated Felony” for § 2L1.2

United States v. Ramirez, No. 13-10473 (Sept. 23, 2013) (Stewart, King, Prado)

In sentencing Ramirez for his illegal reentry, the district court applied an 8-level increase pursuant to U.S.S.G. § 2L1.2 after determining that Ramirez’s 2004 misdemeanor conviction for third-degree sexual abuse of a fifteen-year-old girl, which carried a maximum penalty of three months’ imprisonment, was an aggravated felony.  The court sentenced him to 22 months, which was within the advisory guideline range of 21-27 months.  Without the 8-level enhancement, his range would have been 2-8 months.  Ramirez appealed.

First, the panel found that the statute of conviction—New York third-degree sexual abuse—is divisible because lack of consent in New York can be based on several different predicates, including incapacity to consent because the victim is less than 17.  Next, the panel concluded that the criminal information establishes that Ramirez’s conviction was for sexual abuse of a minor.  Then the panel analyzed whether his conviction merited an 8-level enhancement as an aggravated felony under § 2L1.2.

Section 2L1.2 defines “felony” as any offense punishable by imprisonment for a term exceeding a year but adopts for “aggravated felony” the definition provided in 8 U.S.C. § 1101(a)(43) without any durational limitation.  An aggravated felony includes “murder, rape, or sexual abuse of a minor.”  § 1101(a)(43)(A).  Subsection A does not have a durational limitation, unlike subsections F (crime of violence) or G (theft or burglary offense), which both require a term of imprisonment of at least one year.  Thus, the panel holds that misdemeanor sexual abuse of a minor for which a defendant is sentenced to less than a year of imprisonment is still an aggravated felony.

The panel, along with every circuit to have considered this issue, rejected Ramirez’s argument that a prior conviction must actually be a felony in order to be an aggravated felony.  It maintained that “aggravated felony” is a term of art that can include certain misdemeanors if those convictions otherwise meet one of the definitions listed in § 1101(a)(43).  Ramirez’s argument that such a result is inconsistent with the graduated structure of the Guidelines—“the Sentencing Commission could not have intended to assign a one-time misdemeanant, such as [Ramirez], more offense-level points than would be assigned to a three-time misdemeanant under § 2L1.2(b)(1)(E)—prompted the panel’s response that “[i]t appears as if this is precisely what the Sentencing Commission intended” since it incorporated the § 1101(a)(43) definition of aggravated felony into the § 2L1.2 guideline.

In short, the result doesn’t make common sense.  An aggravated felony does not have to be a felony at all, and Ramirez is now serving at least 14 more months on his illegal reentry conviction because of his prior conviction that carried no more than 3 months of imprisonment.  The panel assumes that Congress and the Sentencing Commission intended this result because of the nature of the offense: sexual abuse of a minor.  Whether they intended this result or not, the remedy for future defendants seems to lie with them—either redefining “aggravated felony” or delinking § 2L1.2 enhancements from § 1101(a)(43)—given the weight of case law against Ramirez’s arguments.

Court Erroneously Excluded Character Evidence & Calculated Restitution to Include Loss Outside Alleged Time Period

United States v. De Leon, No. 12-40244 (Aug. 29, 2013) (Stewart, Davis, Wiener)

De Leon was convicted at trial of five counts of health-care fraud.  His attorney called his mother as a character witness.  After some background questions, the attorney asked whether De Leon was a law-abiding citizen.  The Government objected citing Federal Rule of Evidence 608(a).  The Court sustained the objection and instructed De Leon that his second character witness would be limited to testifying as to De Leon’s reputation for truthfulness.  The defense attorney did not call the second witness and then rested. 

The district court erred in excluding evidence of De Leon’s law-abiding character.  “‘[E]vidence of the defendant’s pertinent trait’ is admissible.  [Fed. R. Evid. 404(a)(2)(A).] And evidence of the defendant’s ‘character as a law-abiding citizen . . . is always relevant.’” Rule 608(a) applies only to a witness’s credibility, and De Leon was not a witness.  This erroneous ruling, however, did not affect De Leon’s substantial rights since there was “overwhelming evidence of De Leon’s knowing submission of fraudulent claims.”  The panel affirms the conviction.

The district court also plainly erred in calculating the restitution award.  The PSR calculated the loss as the $2.9 million paid by Medicare and Medicaid to De Leon, on any and all claims, from 2005 through 2011.  The temporal scope of the conduct charged in the indictment was June or July 2008 through April 2010.  “Restitution is limited to the loss actually caused by the offense of conviction . . . [and] cannot be awarded for ‘losses’ attributable to conduct outside the temporal scope of the scheme charged . . . [or] for conduct not charged as part of the scheme.”  Thus, payments to De Leon in 2005, 2006, 2007, and 2011 cannot be counted among the actual losses incurred.

The district court conducted several hearings to try to discern which of the payments were fraudulent.  Ultimately, the court concluded that “it was ‘difficult, if not impossible, to ascertain with precision the actual loss,” so the court estimated that the total loss totaled $750,000 split evenly between Medicare and Medicaid.  The panel vacates the restitution reward and remands for recalculation even though the district court did not award the full $2.9 million since the record does not suggest that the district court excluded the sums outside of the temporal scope of the Indictment.  “By calculating restitution on the basis of the PSR’s exaggerated ‘ceiling,’ the district court indisputably awarded restitution for claims outside the scope of the charged conspiracy.

The panel notes, though, that on remand the district court can assign De Leon the burden of demonstrating the amount of credit he is due if the court concludes that justice requires this burden shift:

“Even though the MVRA puts the burden on the government to demonstrate the amount of a victim’s loss, a sentencing court may shift ‘the burden of demonstrating such other matters as the court deems appropriate . . . [to] the party designated by the court as justice requires.’ . . . ‘[W]e have approved the transfer of at least a portion of the burden to a defendant to establish his entitlement to a restitution credit.’ 

United States v. Sharma, 703 F.3d 318, 325 (5th Cir. 2012).

AG Mandatory Minimum Policy Does Not Confer Benefits to Defendants Already Charged and Convicted

United States v. Barnes, No. 12-3562 (Sept. 17, 2013) (Davis, Jones, Benavides) (per curiam)

Barnes pleaded to possession with intent to distribute 50 grams of methamphetamine and was sentenced to the statutory mandatory minimum sentence of 120 months of imprisonment.  Barnes argued in his appeal that the Attorney General’s memorandum dated August 12, 2013, affords him sentencing relief.  The panel rejected that argument because the memo was issued after Barnes was charged and convicted, and because it expressly notes that the “policy set forth herein is not intended to create or confer any rights privileges, or benefits in any matter, case, or proceeding.”

The panel also rejected Barnes’ argument that the Government breached the plea agreement by failing to file a § 5K1.1 motion for downward departure.  The plea agreement left any such filing to the Government’s discretion, and Barnes agreed at the plea hearing that no promises existed outside the plea agreement.

As a side note, the Attorney General also issued a memorandum on August 29, 2013, detailing how the new mandatory minimum prosecution policy applies to pending cases.  The memo encourages prosecutors, in their discretion, to apply the policy to defendants who have pled guilty but have not been sentenced.  The memo also specifically states that the policy is not retroactive to defendants already sentenced.

Texas Assault (§ 22.01) Is ACCA Violent Felony, Even If Reckless

United States v. Espinoza, No. 11-50766 (Sept. 17, 2013) (Stewart, Davis, Wiener)

According to the panel, Texas reckless assault (Texas Penal Code § 22.01) qualifies as a violent felony under the residual clause of the Armed Career Criminal Act because it “involves conduct that presents a serious potential risk of physical injury to another,” 18 U.S.C. § 924(e)(2)(B).  The panel read the Supreme Court’s decision in Sykes to re-iterate that courts must conduct a risk analysis for the ACCA residual clause, since “the residual clause is designed to enhance punishment for offenses that involve a potential risk of physical injury similar to that presented by the offenses enumerated in the ACCA.”  The Begay “purposeful, violent and aggressive” conduct test is merely “a guide-post for analyzing the ACCA’s applicability to crimes that involve strict liability, negligence or recklessness.” 

In the instant case, “[r]eckless assault under § 22.01 requires proof that the defendant consciously disregarded a substantial and unjustifiable risk and in doing so, caused bodily injury to another.”  See Tex. Penal Code § 6.03 (defining recklessness).  So, a Texas assault conviction already incorporates the risk assessment: a substantial risk of causing bodily injury to another.  The panel analogized Texas assault to the ACCA-enumerated offense of burglary because both can end in confrontation leading to violence and “contemplate potential injury.”  “Because reckless assault creates, at a minimum, a similar degree of danger as burglary, we hold that it is a violent felony.”

Tamaulipas Birth Certificate Legitimates Child to Acquire Citizenship through USC Father

Saldana Iracheta v. Holder, No. 12-60087 (Sept. 11, 2013) (Reavley, Elrod, Graves)

Ever had trouble deciphering legitimation and acknowledgment requirements to determine whether a person born abroad and out of wedlock acquired U.S. citizenship at birth through his U.S. citizen father?  The Fifth Circuit shed some light on this issue—at least for people born in Tamaulipas, Mexico, and with a birth certificate naming the USC as the child’s father.  The Department of Homeland Security kept denying Saldana's application for acquired citizenship stating that he was not legitimated by his USC father, but the panel held that a father’s name on the birth certificate before the Civil Registry in Tamaulipas legitimates the child as required for citizenship.  Since the USC father met the other residency requirements, the panel declared that Saldana met the requirements of Immigration and Nationality Act §§ 301 and 309 and acquired U.S. citizenship from his father at birth.

Recap of Facts:

·         Saldana was born in 1964 in Tamaulipas out-of-wedlock to Mexican mother and USC father.
·         When he was 29 months old, his mother and father registered him before the Civil Registry and put their names on his birth certificate.
·         His mother and father never married.
·         His father had the required amount of US residency for Saldana to have acquired citizenship.

The only question was whether, under the applicable Mexican laws, Saldana was legitimated by his USC father by virtue of the birth certificate.

The panel found that the applicable law was the Civil Code of Tamaulipas, not the Constitution of Mexico which is cited in several Administrative Appeals Office decisions on this issue.  Under the Tamaulipas Code in existence in 1964, a child born out of wedlock could be “acknowledged” in a birth certificate before an official of the Civil Registry, but only a child born in wedlock could be “legitimated.”  The panel held that the distinction in the Tamaulipas Code between “legitimation” and “acknowledgment” does not matter since the acknowledged child acquired full filial rights, just like legitimated children.  Since the substantive rights of legitimated and acknowledged children are the same in Tamaulipas, “there is no legal or logical basis for” maintaining a distinction between them for the purposes of acquired citizenship.

RICO Sentence for Mail Fraud and Money Laundering Vacated and Remanded for Resentencing Due to Guideline Errors

United States v. Pratt, No. 11-31049 (Aug. 28, 2013) (Higginbotham, Owen, and Graves)

Pratt was found guilty at trial of conspiracy to violate RICO because of her abuse of her political influence and power to further the objectives of a criminal enterprise to illegally funnel state and federal funds and property to members of the conspiracy for their personal benefit.  She appealed her conviction and sentence.  The panel affirmed her conviction but vacated her sentence and remanded for resentencing.

The Government alleged two types of racketeering activity: mail fraud and money laundering.  The district court calculated the sentencing guidelines based on money laundering, when it should have based them on mail fraud.  Pratt did not appeal the use of the money laundering guidelines, though, so she waived that error.  In its use of the money laundering guideline, § 2S1.1, the district court erred by applying a two-level enhancement under § 2B1.1(b)(8)(A) and calculating the loss based on the value of all of the goods and services misappropriated according to § 2B1.1 instead of the value of the laundered funds according to § 2S1.1.  Section 2S1.1 refers to the table in § 2B1.1 to increase the base offense level according to the value of the laundered funds, but that does not mean the instructions and definitions of § 2B1.1 thereby apply to an offense subject to the § 2S1.1 guideline. 

Based on the district court’s miscalculations, it believed the guideline range was 78-97 months when it sentenced Pratt to 87 months.  The correct guideline range, based on the mail fraud guideline, was 70-87 months.  The panel held that the district court’s error was plain and that Pratt’s substantial rights were affected because the court “stated on the record that it was choosing a sentence within the middle of the Guidelines range as the appropriate sentence, indicating that the Guidelines range calculated by the district court was a primary factor in the selection of the 87-months’ sentence . . . .”  Under the correct guideline range, 87 months was the top instead of the middle, so the panel vacated the sentence and remanded.

As for the actual conviction, the panel found that the district court questioned the venire adequately about pretrial publicity.  The potential jurors completed an eight-page screening questionnaire, and the court questioned all potential jurors during voir dire and out of the presence of other potential jurors about their ability to be impartial.  The panel rejected Pratt’s contention that only a trial lawyer can ask sufficiently probing and nuanced questions to uncover bias.  The panel also affirmed the district court’s determination that the Government did not use its peremptory challenges to exclude jurors on the basis of race, since the Government offered other plausible reasons for striking five of the six potential jurors who were black.  Lastly, the panel found that the fourth superseding indictment sufficiently identified the pattern of racketeering activity underlying the conspiracy.

Enhancement for Violating Administrative Order/Process Applied to Future Fraud Unaddressed by Prior Agency Intervention

United States v. Nash, No. 12-30890 (Aug. 30, 2013) (Smith, Garza, Southwick)

According to the majority, an agency letter finding fraud in certain instances and requiring payment of a fine for those violations constitutes an administrative order, injunction, decree, or process that is violated by future instances of fraud since the agency warned the individual of the violations, allowed him to participate in the process in a meaningful way, and assessed a fine for the violations.  The individual’s subsequent violations despite the previous agency interaction resulted in a two-level enhancement pursuant to U.S. Sentencing Guideline § 2B1.1(b)(9)(C).

Nash became an authorized retailer for the food stamp program known as the Supplemental Nutrition Assistance Program (SNAP) through his convenience stores.  In 2008, the U.S. Department of Agriculture (USDA) sent Nash a letter notifying him of suspected food stamp violations and offering Nash an opportunity to respond.  Nash did so, but the USDA concluded that the violations had occurred and fined him nearly $15,000.  The USDA’s letter warned that failure to pay the fine would result in a six-month disqualification from SNAP and that the USDA’s decision did not preclude prosecution under applicable laws. 

Nash paid the fine but continued to commit food stamp fraud.  He later pled guilty to committing a conspiracy to defraud SNAP.  At sentencing, the district court applied the § 2B1.1(b)(9)(C) enhancement for “a violation of any prior specific . . . administrative order, injunction, decree, or process not addressed elsewhere in the guidelines.”  Nash argues that the USDA letters that resulted in him paying a fine for previous fraud do not constitute a definite agency directive with which he failed to comply.  The panel disagreed, finding that Nash had sufficient interaction with USDA and was able to participate in that administrative process in some meaningful way.  Further, the panel accepted the interpretation of the Guideline application note, which applies the enhancement if the defendant commits fraud “in contravention of a prior, official judicial or administrative warning,” and concluded that the USDA process here—administrative warning and fine—triggered the § 2B1.1(b)(9)(C) enhancement.

Judge Garza dissented, finding that the USDA’s letter did not constitute a warning or order against future food stamp fraud since the letter only threatened consequences if Nash did not pay the fine linked to those prior violations, and Nash paid that fine.