Court’s Consideration of Rehabilitation Needs as a Secondary Factor Permissible under Tapia

United States v. Walker, No. 12-40748 (5th Cir. Feb. 7, 2014) (Davis, Barksdale, Elrod)

The panel affirms a 24-month imprisonment followed by a 24-month order of supervised release for Walker, who violated conditions of an earlier sentence of supervised release, in spite of Walker’s appeal claiming that the sentencing court improperly considered his rehabilitative needs in violation of 18 U.S.C. § 3582(a). See United States v. Garza, 706 F.3d 655 (5th Cir. 2013).

Since Walker did not object to the district court’s reliance on rehabilitation as a sentencing factor, the panel applies the “plain error” standard of review and affirms the sentencing court’s order. The panel upholds its previous interpretation of Tapia, where a consideration of the need for rehabilitation as a “secondary concern” or “additional justification” for a sentence is permissible, unless a defendant’s rehabilitative needs are a “dominant factor” informing the district court’s sentencing decision.

The panel distinguishes the instant case from Garza, where the district court focused “almost exclusively on rehabilitation in crafting” the defendant’s sentence of 24-months imprisonment so that the defendant could enter an appropriate treatment program. There the court stated that defendant should at least be afforded an opportunity to engage in a residential institution drug treatment program after discussing on the record various drug treatment programs available under different sentences. The court made no additional justifications for the sentence imposed.

In the instant case, while the district court took rehabilitation into account (“I think if you have a longer period of time in prison to think about [sic] and perhaps get some counseling...”), that concern was not a dominant factor. Instead, the court only referred to rehabilitation after detailing factors under 18 U.S.C. § 3553(a) that took into account Walker’s multiple violations of supervised release after being given a relatively lenient sentence.

Thanks to FPD intern Linda Corchado for this post.

NM Aggravated Assault with Deadly Weapon Is § 2L1.2 COV because No Realistic Probability of Prosecution for Least Culpable Act Argued on Appeal

United States v. Carrasco-Tercero, No. 12-51243 (5th Cir. Mar. 13, 2014) (Jones, Smith, Owen)

Carrasco-Tercero loses his argument that his 1985 New Mexico Aggravated Assault with Deadly Weapon conviction is not a U.S.S.G. § 2L1.2 crime of violence because the panel finds no realistic probability that New Mexico would prosecute someone of the least culpable act criminalized under NMSA § 30-3-2.  The statute defines assault as attempting to commit a battery upon a person; “any unlawful act, threat or menacing conduct which causes another person to reasonably believe that he is in danger of receiving an immediate battery”; or “use of insulting language toward another.”  Carrasco-Tercero argues that the least culpable act under § 30-3-2 would be using insulting language toward another while holding a deadly weapon and that such a crime would not be a crime of violence under the elements clause (because no element of use of force) or under the enumerated offense of aggravated assault (because broader than the generic definition of aggravated assault).

The panel acknowledges that the statute allows for such prosecution, but declines to reach Carrasco-Tercero’s conclusion—and the conclusion reached by the Sixth Circuit in United States v. Rede-Mendez, 680 F.3d 552 (6th Cir. 2012)—that § 30-3-2 is not categorically a crime of violence since the panel finds there is no “realistic probability” that someone would be prosecuted for that least culpable act.  Carrasco-Tercero did not point to any examples of someone being prosecuted in New Mexico for aggravated assault with a deadly weapon because he was yelling insults while holding a deadly weapon, and the New Mexico’s uniform jury instructions do not provide instructions for the charge of aggravated assault based on using insulting language. 

Since Carrasco-Tercero’s sole contention on appeal concerns the “insulting language” arguments, the panel affirms the judgment.  The panel does not consider whether the alternate means of committing aggravated assault under § 30-3-2 would constitute a crime of violence.  So, there may still be valid arguments against § 30-3-2 being a crime of violence under different theories. 

AG Holder Supports Proposed 2-Level Decrease to Drug Offense Guidelines

Start incorporating the proposed 2-level decrease into your variance arguments now.  If that proposed amendment becomes official (which it looks like it will), it won’t be official until November 2014.  However, Attorney General Eric Holder voiced his support for the proposed decrease today in his testimony before the U.S. Sentencing Commission, and he also indicated that assistant U.S. attorneys will not oppose variance requests that ask the Court to vary downward in light of the proposed change.

The Commission is accepting comment until March 18, 2014, on its proposed amendments to the Guidelines.

Here are some resources from the U.S. Sentencing Commission:

-          U.S. Sentencing Comm’n, Proposed Amendments to the Sentencing Guidelines 45 (Jan. 17, 2014), http://www.ussc.gov/Legal/Amendments/Reader-Friendly/20140114_RFP_Amendments.pdf.

-          U.S. Sentencing Comm’n, News Release, “U.S. Sentencing Commission Seeks Comment on Potential Reduction to Drug Trafficking Sentences” 1 (Jan. 9, 2014), http://www.ussc.gov/Legislative_and_Public_Affairs/Newsroom/Press_Releases/20140109_Press_Release.pdf.

 

Some resources regarding the Department of Justice’s position:

-          Horwitz, Sari, Holder Will Call for Reduced Sentences for Low-Level Drug Offenders, Wash. Post (Mar. 13, 2014), http://www.washingtonpost.com/world/national-security/holder-will-call-for-reduced-sentences-for-low-level-drug-offenders/2014/03/12/625ed9e6-aa12-11e3-8599-ce7295b6851c_story.html

-          Dep’t of Justice, Office of Public Affairs, Attorney General Holder Urges Changes in Federal Sentencing Guidelines to Reserve Harshest Penalties for Most Serious Drug Traffickers (Mar. 13, 2014), http://www.justice.gov/opa/pr/2014/March/14-ag-263.html.

Some related resources regarding changes to mandatory minimums:

-          The Smarter Sentencing Act, S. 1410.

-          Letter from Former Judges and Prosecutors to Senators Durbin and Lee regarding Smarter Sentencing Act (Dec. 9, 2013), http://www.constitutionproject.org/wp-content/uploads/2013/12/Letter-re-Smarter-Sentencing-Act-12-9-13.pdf?utm_source=PR%3A+Release+-+TCP+Letter+from+Judges+%26+Prosecutors+on+Sentencing+Reform&utm_campaign=Release+-+Smarter+Sentencing+Act+ltr&utm_medium=email.

-          U.S. Sentencing Comm’n, News Advisory, “Comment of Judge Patti B. Saris on the Senate Judiciary Committee’s Bipartisan Vote to Report the Smarter Sentencing Act” (Jan. 30, 2014), http://www.ussc.gov/Legislative_and_Public_Affairs/Newsroom/Press_Releases/20140130_News_Advisory.pdf.

-          Memorandum from U.S. Att’y Gen. Eric Holder to U.S. Att’ys & Asst. Att’y Gen. for the Crim. Div., Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases (Aug. 12, 2013), available at http://big.assets.huffingtonpost.com/HolderMandatoryMinimumsMemo.pdf.

No Knowledge that Meth Was Imported Necessary to Get +2 Pursuant to § 2D1.1(b)(5) for Offense that “Involved the Importation of” Meth

United States v. Foulks, No. 13-10399 (5th Cir. Mar. 11, 2014) (King, Southwick, Graves) (per curiam)

In a two-page opinion, the panel holds the two-level enhancement for an offense that involved the importation of meth, U.S.S.G. § 2D1.1(b)(5), applies under a strict liability theory.  Even if the defendant did not know the meth was imported or was not personally involved in the importation, the enhancement applies as long as meth in question was imported.

Here, it was sufficient that “the methamphetamine Foulks possessed was imported from Mexico.”  In United States v. Serfass, “the enhancement applied to a defendant who possessed and distributed imported methamphetamine, even absent any showing that he knew it was imported” and even though he was at least one transaction removed from the importation.   684 F.3d 548, 550 (5th Cir.), cert. denied, 133 S. Ct. 623 (2012).  In United States v. Rodriguez, the Fifth Circuit concluded that the enhancement applied because of the defendant’s “proximity, familiarity, and repeated business with the importers justifie[d] the enhancement.  666 F.3d 944, 946-47 (5th Cir. 2012).  The Foulks panel clarifies that Rodriguez did not hold that those factors were required, and that the enhancement applies even where proximity, familiarity, and repeated business do not justify the enhancement.

So, for now, the enhancement will apply whenever the Government can prove the meth in question was imported.  Of course, that does not mean that the application results in a reasonable sentence or that the enhancement itself is sound. 

Unreasonable Supervised Release Condition for SORNA Offender Vacated

United States v. Salazar, No. 12-50695 (5th Cir. Feb. 24, 2014) (Higginbotham, Clement, Prado)

Salazar violated the terms of his supervised release for a suspended sentence for his conviction of third-degree sexual abuse when he failed to register as a sex offender, and he was sentenced to a prison term and an additional period of supervised release with numerous special conditions.  The panel holds that “the district court abused its discretion by imposing the challenged condition”—to refrain from purchasing, possessing, or using any sexually stimulating or sexually oriented materials—“on Salazar without demonstrating that it is reasonably related to the statutory factors.” 

At the sentencing, the district court added new conditions to Salazar’s supervised release.  The defense counsel objected to the new conditions because “they’re overly burdensome and . . . .”  Before the defense counsel could finish her sentence, the court overruled the objection.  Again, defense counsel attempted to elaborate on her objection, and the court cut her off with another “Overruled.”  The panel holds that Salazar properly preserved his objection and applies abuse of discretion review because Salazar’s attempts to object with specificity “were futile because the court failed to give his counsel a reasonable opportunity to explain her objections or ask for the rationale behind the court’s refusal to sustain them.”

As to the merits, the panel agrees with Salazar that the challenged condition is not reasonably related to the statutory supervised release factors since there is no indication that sexually-stimulating or sexually-oriented materials contributed either to his sexual abuse or SORNA offense.  The panel vacates and remands for the district court to either remove the condition or attempt to explain its applicability.  The panel does not reach Salazar’s argument that the condition was overbroad and violates his First Amendment rights.

So, keep on objecting to unreasonable terms of supervised release.  You might just end up getting them vacated!