Government Breached Plea Agreement by Using Information from Proffer to Argue for Higher Sentence

United States v. Chavful, No. 13-11173 (5th Cir. Mar. 20, 2015) (Smith, Prado, Owen)

The PSR alleged 3 alleged drug transactions.  Chavful plead guilty to the third: 5kg of cocaine and 200lb of marijuana.  The first, negotiations for 10kg of cocaine and 1000lb of marijuana, Chavez argued in his objection and at sentencing was merely the negotiation that culminated in the third transaction.  By holding him accountable for 15kg of cocaine and 1,200lb of marijuana, Chavez argued Probation was double counting the same transaction because they were fact-related.  Probation, and then the Government, argued the first was a separate transaction because of the intervening, second sale of 30kg of marijuana.  Chavful disclosed the second sale during the proffer interview and objected when the Government relied on the second sale to argue the first transaction was a separate transaction from the third.  Neither Probation nor the Government added the 30kg of marijuana to Chavful’s relevant conduct.

The plea agreement included the Government’s promise that “[a]ny information provided by Chavful, other than that charged in the pending indictment, in connection with Chavful’s assistance to the United States, including debriefing and testimony, will not be used to increase Chavful’s Sentencing level.”  The plea agreement specifically incorporates U.S.S.G. § 1B1.8, which prohibits the use of information obtained by the Government as part of a cooperation agreement from being used to determine the applicable guideline range.

The panel adopts Chavful’s interpretation that the Government cannot rely on protected information to advocate for a greater sentence.  The Government breached the plea agreement by using protected information to advocate for a greater sentence.  The sentence was vacated and remanded for re-sentencing.

Government Cannot Refuse to Move for Third Point of Acceptance Due to Sentencing Litigation

United States v. Castillo, 779 F.3d 318 (5th Cir. Feb. 26, 2015) (Benavides, Prado, Graves)

Castillo pled guilty to bank robbery of over $1,000.  The PSR held her accountable for stealing $690,000 and added 14 levels to the base offense level.  Castillo filed written objections, denying that she confessed to stealing $690,000 and arguing that the evidence showed an amount between $70,000 and $120,000, justifying only an 8-level increase.  The district court held a hearing, heard testimony, and adopted the loss amount in the PSR.  The Government then refused to move for the third point of acceptance, despite the representation in the PSR that it would so move at the time of sentencing.  The Government argued that it had been essentially taken to the task of trial and had not saved any resources.

The panel reviewed the language of U.S.S.G. § 3E1.1(b), Amendment 775 (Government cannot refuse to move for the third point if the defendant does not waive appeal), and sister circuits’ decisions.  The panel found that the Government can refuse to file a § 3E1.1(b) motion based on any interest identified in § 3E1.1(a) or (b).  Those interests, however, do not include preparing for a sentencing hearing.

Despite those clear findings, the majority went on to limit this holding only to good faith disputes: “[I]f the defendant has a good faith dispute as to the accuracy of the factual findings in the PSR, it is impermissible for the government to refuse to move for a reduction under § 3E1.1(a) simply because the defendant requests a hearing to litigate the issue.”  Since the district court did not find that Castillo litigated the issue in good faith, the panel vacated the sentence and remanded for determination of that fact issue.

Judge Graves concurred in part and dissented in part.  He reasoned that Castillo was entitled to a resentencing regardless of a finding of good faith because the plain language of § 3E1.1 focuses on trial, not sentencing, preparation as a reason to withhold a motion for the third point.  Given the plain language of the guideline, Judge Graves argued it is unnecessary to reach the constitutional issue of a defendant’s due process right to challenge PSR findings, which is the context in which the Second Circuit discussed the good faith requirement.

So, continue to litigate sentencing issues (in good faith) without fear of losing the third point of acceptance of responsibility.

Texas Aggravated Assault with Deadly Weapon Conviction Is Generic “Aggravated Assault” even though Judgment of Conviction Had No Affirmative Weapon Finding

United States v. Sanchez-Sanchez, No. 14-10305 (5th Cir. Feb. 24, 2015) (Higginbotham, Smith, Graves)

This case involved the reliability of a judgment of conviction to determine that Sanchez-Sanchez’s prior state conviction constituted “aggravated assault” in the generic sense to support the 16-level enhancement under § 2L1.2. 

The parties agreed that Sanchez-Sanchez was convicted under the Texas aggravated assault statute, Tex. Penal Code § 22.02(a).  Section 22.02(a) contains offenses that are COVs (such as assault with a deadly weapon) and ones that are not (such as simple assault on a peace officer). Under the modified categorical approach, the panel can rely on Shepard documents to narrow Sanchez-Sanchez’s conviction to a specific offense under § 22.02(a). 

Sanchez-Sanchez pled guilty in Texas to aggravated assault with a deadly weapon, and the indictment alone would establish a conviction for aggravated assault with a deadly weapon.  Sanchez-Sanchez argues, however, that the judgment casts doubt on whether he was convicted under that subsection because the judgment does not make an affirmative finding as to the use of a deadly weapon.

The panel concludes that the judgment is not inconsistent with the indictment because, in Texas, an “affirmative finding” that a deadly weapon was used is significant only for the determination of whether probation or parole can be granted.  “In other words, the failure to make such an affirmative finding relates to sentencing, not to the underlying offense conduct.”  The panel discusses competing interpretations by lower Texas appellate courts about the trial court’s discretion to decline to enter the affirmative finding in the judgment, but concludes that this disagreement does not change the holdings by the Texas Court of Criminal Appeals on which the panel relies.  “The absence of an affirmative finding does not amount to a finding that the offense did not involve a deadly weapon.”  The sentence is affirmed.

The updated § 2L1.2 Crime of Violence list is available on fd.org.

Florida Manslaughter Not § 2L1.2 COV Because Requires Less than Recklessness as to Death

United States v. Garcia-Perez, No. 13-20482 (5th Cir. Feb. 23, 2015) (Jolly, Higginbotham, Owen)

The Fifth Circuit reminds us again that the name of a state conviction is not dispositive as to whether it is a crime of violence (COV).  In this case, Garcia-Perez was convicted of illegal reentry, and the district court assessed a 16-level enhancement for his conviction of manslaughter in Florida. 

Florida manslaughter, at the time of the offense, encompassed the “killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification….”  Fla. Stat. § 782.07(1) (1995).  Proof of manslaughter does not require proof of force, so the conviction does not meet the § 2L1.2 COV elements program.

“Manslaughter” is one of the enumerated § 2L1.2 COV offenses, however.  The generic definition of manslaughter requires a mental state of either intent to kill or recklessness, a “conscious disregard of perceived homicidal risk.”  United States v. Bonilla, 524 F.3d 647, 654 (5th Cir. 2008).  The panel reviewed Florida case law and determined that Florida manslaughter does not require intent to kill and that a long line of cases held that “unexpected deaths caused by intended acts can be enough to prove manslaughter.”  Indeed, the fact that a defendant could not have reasonably believed that death was a probable result of an intentional act does not defeat a manslaughter conviction in Florida. 

Because Florida manslaughter is not limited to acts committed with conscious disregard of a perceived risk of death, it is broader than the definition of generic contemporary manslaughter.  The district court erred by enhancing Garcia-Perez’s offense level, and the error was not harmless.  The panel vacates the sentence and remands for resentencing.

The updated § 2L1.2 Crime of Violence list is available on fd.org.

Presumed Intent to Distribute due to Quantity of Drug Does Not Make Florida Trafficking in Meth a § 2L1.2 Drug Trafficking Offense

United States v. Sarabia-Martinez, No. 14-50064 (5th Cir. Feb. 20, 2015) (Reavley, Jones, Elrod)

How can an offense called trafficking in methamphetamine not be a drug trafficking offense?  Well, Florida Statute § 893.135(1)(f) includes mere possession as a form of “trafficking” provided the defendant possesses at least 14 grams of methamphetamine.  Under the U.S. Sentencing Guidelines, though, presumption of intent to distribute due to the possession of a certain quantity of the drugs does not create a drug trafficking offense.  United States v. Lopez-Salas, 513 F.3d 174, 179-80 (5th Cir. 2008).

So, Florida trafficking in methamphetamine is not categorically a drug trafficking offense.  No Shepard documents narrowed Sarabia-Martinez’s conviction to a form of trafficking other than mere possession, and the district court plainly erred by relying on facts contained in the Presentence Investigation Report to conclude that the conviction was for drug distribution.  The panel rejected the Government’s argument, based on non-Shepard documents, that the error did not work an injustice and that remand would be improper.  The panel reasoned the “facts asserted in the ‘arrest report’ now provided by the government were never confirmed by Sarabia-Martinez” and declined drawing “any conclusions from documents the district court would not be permitted to consider.”  The erroneous enhancement resulted in a notable sentencing disparity, and Sarabia-Martinez had no other significant convictions or prior reentry convictions.  The sentence was vacated and remanded for resentencing.

Updated § 2L1.2 Crime of Violence list, which includes some drug trafficking offenses, is available on fd.org.

USAO Discovery Policies

Pursuant to a FOIA request, USA Today obtained the discovery policies for U.S. Attorney Offices.  The policies for many offices are available at this link.