Monday, June 30, 2014

Escape from Halfway House Is Not a § 4B1.2(a) COV

Jones was convicted of possession of a firearm by a felon, and the presentencing officer recommended a base offense level of 20 after concluding that Jones’ prior felony was a “crime of violence” as defined in § 4B1.2(a).  Jones prior felony was a conviction under 18 U.S.C. § 751(a) for leaving a halfway house.  He argues on appeal that his conviction is not a COV under the residual clause of § 4B1.2(a) because it does not “otherwise involves conduct that presents a serious potential risk of physical injury to another.”
The panel refers to Chambers v. United States, 555 U.S. 122 (2009), an Armed Career Criminal Act case in which the Supreme Court held that failing to report for imprisonment was not a violent felony under the ACCA.  In Chambers, the Supreme Court relied on a report that showed that none of the 160 failures to report in 2006 and 2007 resulted in the use or threat of force only five (3.1%) involved a dangerous weapon.  That same report showed that only three (1.7%) of the 177 instances of “leaving nonsecure custody” involved the use or threat of force, and only four (2.3%) involved a dangerous weapon. 
The panel agrees with other circuit courts that “‘[e]scaping’ from a halfway house does not typically ‘present a serious potential risk of physical injury’ to others.”  Jones’ sentence is vacated and remanded.
The panel also addresses the Government’s arguments that finding Jones’ conviction to not be a COV would be inconsistent with Fifth Circuit precedent.  The panel emphasizes that precedent allows looking to the charging document to determine whether the offense is a § 4B1.2 COV since the commentary to § 4B1.2 specifically directs the court to look at the conduct charged whereas the ACCA looks to the statutory offense, not the charged offense.   The panel does not disturb precedent finding that escape from a prison camp can present a “powder keg” situation and be a § 4B1.2 COV (United States v. Ruiz, 180 F.3d 675 (5th Cir. 1999)) and that escape from an institution is typically a COV under the ACCA regardless of the conduct charged in the indictment (United States v. Hughes, 602 F.3d 669 (5th Cir. 2010)).

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Wednesday, June 18, 2014

Sufficient Evidence of Coercion from Sexually Explicit Message and Other Texts to Juvenile

Rounds challenges the sufficiency of the evidence for his conviction of using a facility of interstate commerce to persuade, induce, entice, or coerce a juvenile to engage in sexual activity in violation of 18 U.S.C. § 2422(b).  He argues that the juvenile begged him to come to Odessa rather than him coercing her to engage in criminal sexual activity.  The panel notes, however, that the juvenile’s intent is not at issue.  The question of whether inducement, persuasion, or enticement exists is a question for the trier of fact, and, here, there was a sexually-explicit message and other text messages designed to have the juvenile return to him.  That was sufficient evidence of the charged offense.
Rounds also challenged venue in the Western District of Texas.  The panel found that the Government established venue because the phone calls and text messages that were part of the § 2422(b) offense were sent to a juvenile located in the Western District of Texas even though Rounds was elsewhere. 
The panel rejected Rounds’ other arguments regarding a late-disclosed witness and exhibit (counsel was given a brief continuance and said he was ready to proceed), a Brady violation (no showing that the evidence was exculpatory), and the warrantless search of his cell phone (the district court concluded that he consented to the search).


Tuesday, June 17, 2014

Boiler Plate Judicial Admission Sufficient to Narrow Conviction Under Modified Categorical Approach to Texas Penal Code § 30.02(a)(1), a COV

In prior decisions, the Fifth Circuit has held that a conviction for burglary under Texas Penal Code § 30.02(a)(1) is a § 2L1.2 crime of violence (COV), United States v. Garcia-Mendez, 420 F.3d 454 (5th Cir. 2005), while a conviction for burglary under § 30.02(a)(3) is not, United States v. Constante, 544 F.3d 584 (5th Cir. 2008).  The Fifth Circuit has also held in an unpublished decision that a general conviction under § 30.02 that cannot be narrowed to (a)(1) through the modified categorical approach is not a COV because § 30.02 is broader than the generic definition of burglary.  United States v. Morales-Ramirez, 540 F. App’x 368 (5th Cir. Sept. 25, 2013) (unpublished).
In Conde-Castaneda, the panel first decides that it can apply the modified categorical approach, since § 30.02(a) is divisible, to look at documents outside of the judgment (Shepard documents) to determine which of the three alternatives of § 30.02(a) form the basis of Conde-Castenada’s conviction.  Then the panel looks to the following documents:
-          Judgment, which establishes that Conde-Castaneda under § 30.02(a) but not a specific subsection;
-          Indictment, which charges Conde-Castaneda with violating § 30.02(a)(1) and § 30.02(a)(3), “but obviously cannot by itself establish the ultimate basis for his conviction”;
-          Written judicial confession, which states “I have read the Indictment . . . and I committed each and every act alleged therein . . . .”
The panel holds that the confession, “a pre-printed template under which Conde-Castaneda signed his name” sufficiently establishes that he was convicted of § 30.02(a)(1).  Conde-Castaneda argues that the template confession is insufficient based on United States v. Espinoza, 733 F.3d 568 (5th Cir. 2013), which held that the adoption of a boiler plate judicial confession admitting that Espinoza committed the assault with every listed category of mental culpability did not conclusively prove mens rea.  The panel rejects the argument because of an earlier decision, United States v. Garcia-Arellano, 522 F.3d 477 (5th Cir. 2008), which held that “a template confession sufficed to establish which offenses a conviction indicated.”  Espinoza cannot overturn the earlier decided case of Garcia-Arrellano.  To the extent that the holding of Espinoza is inconsistent with Garcia-Arellano, Garcia-Arellano controls.”
Thus, relying on Garcia-Arellano, the panel finds that Conde-Castaneda was convicted of burglary under § 30.02(a)(1) and receives the 16-level COV enhancement under § 2L1.2.  Given Espinoza, though, it might be worth preserving that objection—particularly for alternative elements in a statute that are mutually exclusive, thereby casting doubt as to the actual admission of guilt as to each one of them.

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Monday, June 16, 2014

Voluntary Departure Constitutes Prior Deportation for § 2L2.2(b)(1) Enhancement

Prior to his criminal case, Murillo-Acosta received a voluntary departure from an immigration judge in 2013.  A voluntary departure provides a deadline by which the immigrant must leave the United States.  If the person does not depart by that time, the voluntary departure, a warrant of removal issues.  Murillo-Acosta complied with the voluntary departure deadline.  Later in 2013, Murillo-Acosta pled guilty to using a fraudulent visa as proof of permission to enter the United States.  At sentencing, the court applied—over Murillo-Acosta’s objection—a 2-level enhancement pursuant to U.S.S.G. § 2L2.2(b)(1) for being an “unlawful alien who has been deported (voluntarily or involuntarily) on one or more occasions prior to the instant offense[.]” 

Murillo-Acosta argues that the voluntary departure issued against him does not make him an “alien who has been deported” since he did not receive a final deportation order.  The panel rejects this argument in light of § 2L2.2(b)(1)’s specification that the deportation could be voluntary or involuntary.

Keep in mind that this decision is limited to § 2L2.2(b)(1)  which mentions both voluntarily and involuntary deportations.  This does not apply to, for example, the § 1326 element of a prior deportation or removal.  Voluntary departures are a form of immigration relief that an immigration judge can grant in lieu of deportation or removal.  8 U.S.C. § 1229c(a)(1).  A person who complies with the voluntary departure has not received a final order of deportation.  The panel’s brief decision—which mentions the district court’s reliance on decisions from other circuits addressing persons subject to deportation orders not those granted voluntary departures—can mistakenly give the impression that a voluntary departure is a deportation order, but the panel’s holding is solely based on the language of § 2L2.2(b)(1).