Tuesday, June 30, 2015

Louisiana Aggravated Battery Is Not a § 2L1.2 Crime of Violence

This case involved determining whether the least culpable means of committing aggravated battery under Louisiana law involves conduct within the scope of the generic, contemporary meaning of “aggravated assault.” This classification determines whether the district court’s application of a sixteen-level enhancement for a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii) is valid. The panel considers both the force clause and the enumerated offence clause for COV classification.

The Louisiana statue under which Hernandez-Rodriguez was convicted defines aggravated battery as “a battery committed with a dangerous weapon.” La. Rev. Stat. § 14:34. Louisiana’s criminal code then defines battery as either (1) “the intentional use of force or violence upon the person of another” or (2) “the intentional administration of a poison or other noxious liquid or substance to another.” Under state law, the term “dangerous weapon” includes any liquid, gas, substance or instrument that “in the manner used, is calculated or likely to produce death or great bodily harm.” § 14:2(A)(3).

This does not qualify under the force prong of § 2L1.2 because there are no Shepard-compliant documents identifying the subpart of the statute that forms the basis of his conviction.  Since the administration of poison alternative cannot be excluded, the least culpable act did not necessarily involve destructive or violent force.  United States v. Herrera-Alvarez, 753 F.3d 132 (5th Cir. 2014).

Nor does it qualify as a generic aggravated assault.  Under the Model Penal Code, a person is guilty of aggravated assault if he/she “attempts to cause serious bodily injury to another” or causes such injury “purposely, knowingly, or recklessly” or if he/she “attempts to cause” or “purposely or knowingly causes bodily injury to another with a deadly weapon.” Thus, the generic definition of aggravated assault requires a showing of specific intent, while the Louisiana offense of aggravated battery is a general intent offense.  Moreover, the requisite intent for Louisiana aggravated battery relates only to the defendant’s conduct, not to the infliction of serious bodily harm or the intent to inflict serious injury as in the Model Penal Code.  The panel provides a detailed example from Louisiana case law of how it is broader than generic aggravated assault and vacates the sentence and remands for resentencing.

Thanks to FPD Intern Samantha Canava for this blog post.

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Monday, June 29, 2015

Judge’s Admonishments about Possible Deportation Did Not Foreclose Ineffective Assistance of Counsel Claim

Defendant Innocent Rutahagara Batamula pleaded guilty to making false statements right after a judge’s plea colloquy that the felonies committed were “likely” to result in deportation. However, prior to the Batamula’s plea, he was never advised by counsel that conviction would result in deportation. Had the Batamula known of deportation or the possibility thereof, he would have “‘refused to make the plea,’ would have pleaded not guilty, and would have insisted on going to trial.”

The panel reversed the district court’s denial of Batamula’s claim of ineffective assistance of counsel under the Sixth Amendment and remanded.  The district court held that when a judge informs the defendant of possible deportation in the plea colloquy, counsel’s failure to advise on immigration consequences is thereby “cured,” with defendant’s relevant constitutional claim forfeited or waived, estopping the defendant from showing prejudice. The panel disagreed since “forfeiture of certain constitutional claims,” like effective counsel, occur only when “the plea is entered knowingly and voluntarily and with competent assistance and advice by defense counsel.” The defendant did not have the latter.

The risk of deportation, per the Supreme Court, is akin to “banishment or exile” and warrants the need for counsel to inform the defendant of the consequences. The Court in Padilla v. Kentucky, 559 S. Ct. 356 (2010), recognized that “preserving the client’s right to remain in the United States may be more important to the client than any potential jail sentence.” Additionally, defense counsel has certain, basic obligations to the defendant in complying with the Sixth Amendment. These include “effectively investigating and advising the client regarding immigration consequences before the client decides whether to plead guilty.”

The panel reasoned that a judge’s admonishments “during a plea colloquy are not a substitute for effective assistance of counsel,” nor do they “supersede errors by the defense counsel.” These admonishments also do not “foreclose” the defendant from demonstrating prejudice when counsel is ineffective. Further, even if counsel is ineffective and a defendant accepts his plea intelligently, voluntarily, and knowingly, the Supreme Court has rejected arguments that the defendant was “not deprived of any legal benefit to which he was entitled.” Missouri v. Frye, 132 S. Ct. 1399, 1407-08 (2012). In a similar decision, the Court in Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012), took the right to counsel further, asserting that even if the trial was fair and the defendant was guilty, the defendant was still entitled to effective assistance of counsel and can bring a claim of prejudice if counsel was otherwise.

Thanks to FPD Intern Adam Pena for this post.

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Friday, June 26, 2015

Sentencing Court’s Discretion Not Limited for Career Offenders; Must Consider § 3553

United States v. Clay, No. 14-60283 (5th Cir. May 22, 2015) (Jolly, Higginson, Costa) (per curiam)
The district court sentenced Clay, who was classified as a “career-offender” under the Guidelines, within the guideline sentencing range of 151-188 months of imprisonment.  Without such classification, the advisory range would have been 30-37 months.  Despite the district court being “troubled” that the Defendant’s career-offender status led to an increased sentence, the district court refused to vary downward because of no “Fifth Circuit guidance” on the matter. On appeal, the panel vacated the sentence and, on remand, ordered the district court to recognize its own discretion to vary from the Guidelines’ advisory range.

The panel reasoned that the Guidelines are relevant but not dispositive in determining the appropriate sentence. The Guidelines serve only an “advisory” role, which, per the Supreme Court, a district court may defer to for a within-Guidelines sentence only “after considering the factors in 18 U.S.C. § 3553(a).” District courts must “consider the nature and circumstances of the offense and the history and characteristics of the defendant.” Further, district courts must consider “other broad concerns…, in an individualized manner, before imposing its sentence.” If the district court finds that a within-Guidelines sentence is “greater than necessary to serve the objective of sentencing,” then the district court can vary. A district court’s sentencing discretion does not depend on whether the defendant is classified as a career-offender under § 4B1.1.

The district court erred by not applying an “individualized assessment” under § 3553(a) factors. This procedural error was not harmless. The record shows that the district court had misgivings about the within-Guidelines sentence; it was not only “troubled” by it, but also admitted that had there been “Fifth Circuit guidance to vary,” which, as we know now is not necessary, “the outcome [likely] would have been different.” This would also show that perhaps the within-Guidelines sentence was in fact “greater than necessary to serve the objective of sentencing,” thus the need for district courts to exercise sentencing variation.

Thanks to FPD Intern Adam Pena for this post.

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ACCA Residual Clause Unconstitutional

From the opinion:
"In Taylor v. United States, 495 U. S. 575, 600 (1990), this Court held that the Armed Career Criminal Act requires courts to use a framework known as the categorical approach when deciding whether an offense "is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." Under the categorical approach, a court assesses whether a crime qualifies as a violent felony "in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion." Begay, supra, at 141.
Deciding whether the residual clause covers a crime thus requires a court to picture the kind of conduct that the crime involves in "the ordinary case," and to judge whether that abstraction presents a serious potential risk of physical injury. James, supra, at 208. The court’s task goes beyond deciding whether creation of risk is an element of the crime. That is so because, unlike the part of the definition of a violent felony that asks whether the crime "has as an element the use . . . of physical force," the residual clause asks whether the crime "involves conduct" that presents too much risk of physical injury. What is more, the inclusion of burglary and extortion among thee numerated offenses preceding the residual clause confirms that the court’s task also goes beyond evaluating the chances that the physical acts that make up the crime will injure someone. The act of making an extortionate demand or breaking and entering into someone’s home does not, in and of itself, normally cause physical injury. Rather, risk of injury arises because the extortionist might engage in violence after making his demand or because the burglar might confront a resident in the home after breaking and entering.

We are convinced that the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant’s sentence under the clause denies due process of law."

See analysis at scotusblog.com.

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