No Equitable Vacatur of Supervised Release for Deported 1326 Defendant

United States v. Heredia-Holguin, No. 14-10846 (5th Cir. June 16, 2015) (Reavley, Owen, Higginson)

 

Heredia-Holguin was sentenced to one year in prison and a three-year term of supervised release for illegal reentry. He did not object to his sentence or term of supervised release. While Heredia-Holguin’s appeal was pending, he served his one-year prison term and was deported with supervised release. After his deportation, his counsel filed a brief conceding the deportation rendered the appeal moot, and he requested that his remaining term of supervised release be vacated.  

 

The panel ordered supplemental briefing on three issues: 1) what error had Heredia-Holguin complained of on appeal, 2) whether the appeal had become moot, and 3) if the appeal was moot, “whether the court should vacate the conviction, sentence, or term of supervised release under the doctrine of equitable vacatur.”  

 

First, Heredia-Holguin emphasized in his supplemental briefing that he was not pursuing the sentencing appeal.  Rather, he “requested only that the panel vacate the remaining term of his supervised release.”

 

As to mootness, the panel discussed United States v. Lares-Meraz and United States v. Rosenbaum-Alanis, which arrived at opposite conclusions regarding mootness of a sentencing appeal after the defendant is deported. In Lares-Meraz, the “alleged sentencing error,” was not moot “because the defendant remained the subject to a term of supervised release, an element of the overall sentence.” The error, however, was harmless. In Rosenbaum-Alanis, the defendant’s sentencing appeal was moot because the defendant could not reenter the U.S. for resentencing purposes, and no waiver was on record allowing for his absence. The panel perceived inconsistences between Lares-Meraz and Rosenbaum-Alanis but opted not to resolve them.

 

Assuming Heredia-Holguin’s appeal was moot, the panel denied his request to vacate his supervised release under the doctrine of equitable vacatur. “[V]acatur is in order when mootness occurs through happenstance or unilateral action of the party who prevailed in the lower court.”  Heredia-Holguin’s deportation, however, cannot be attributed to happenstance or the unilateral action of the Government since it was the natural consequence of Heredia-Holguin reentering the United States illegally. Furthermore, the district court “imposed the term of supervised release to deter Heredia-Holguin from illegally returning to the U.S.”  In light of the deterrent effect and his failure to object to the imposition of supervised release before the district court, the panel did not exercise its equitable discretion to vacate Heredia-Holguin’s term of supervised release. 

 

Since it denied Heredia-Holguin’s request, the panel did not address “the Government’s argument that equitable vacatur is a civil doctrine that is not available in a criminal case as a matter of law.”

 

Thanks to FPD Intern Adam Pena for this post.

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

United States v. Hernandez-Rodriguez, No. 14-40321 (5th Cir. June 5, 2015) (Clement, Prado, Elrod)

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.

Georgia Possession With Intent to Distribute Is § 2L1.2 DTO Even Though Not an Aggravated Felony Per Moncrieffe; No Remuneration Required

United States v. Martinez-Lugo, No. 13-40924 (5th Cir. Mar. 27, 2015) (Davis, Dennis, Costa) (per curiam)

The Fifth Circuit giveth and then taketh away.  For 3 months, giving away drugs was not a § 2L1.2 drug trafficking offense (DTO) thanks to the now superseded United States v. Martinez-Lugo, 773 F.3d 678 (5th Cir. Dec. 11, 2014) (Davis, Dennis, Costa).  Last week, the panel sua sponte withdrew its prior opinion and substituted an opinion that finds a conviction for Georgia conviction for possession with intent to distribute (PWID) marijuana is a § 2L1.2 DTO even though the Supreme Court held it was not an aggravated felony in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013).  Lack of remuneration does not prevent Georgia PWID from being a § 2L1.2 DTO. 

In the withdrawn opinion, the majority focused on the common sense definition of “drug trafficking offense.”  The Moncrieffe court reiterated the Supreme Court’s previous recognition that “the everyday understanding of ‘trafficking’ . . . ordinarily means some sort of commercial dealing.”  Since the Georgia PWID statute does not require remuneration, the Martinez-Lugo majority in the withdrawn opinion found that it was not categorically a DTO.

In the new opinion, the majority focuses on the elements of a federal drug trafficking offense and compares them, rather than the Moncrieffe definition of “trafficking,” to the Georgia PWID statute.  Moncrieffe recognized that the elements of Georgia PWID and PWID under the Controlled Substances Act (CSA) are the same.  The only reason Georgia PWID is not an aggravated felony is that the distribution of a small amount of marijuana for no remuneration is a misdemeanor under the CSA, and only CSA felonies would be an aggravated felony.  In contrast, § 2L1.2 does not require that an offense be a CSA felony in order to be a DTO. 

The new Martinez-Lugo majority opinion claims Martinez-Lugo never argued that the elements of Georgia PWID differ from the elements of the generic, contemporary PWID offense but instead argued that Moncrieffe controls.  The majority “decline[s] to extend Moncrieffe to the different scheme embodied in the Guidelines absent clear direction to do so. . . . Under a straightforward application of the categorical approach, the Georgia offense under which Martinez-Lugo was convicted has the same elements as the generic possession with intent to distribute offense.” 

Judge Dennis dissents.  He interprets Moncrieffe as making clear that the generic definition of a “trafficking” does not include sharing a small amount of marijuana for no remuneration.  The CSA recognizes this by treating such an offense as a misdemeanor simple possession.  Since the categorical approach requires a court to examine the least culpable act punishable under a statute, which would include sharing a small amount of marijuana for no remuneration, Georgia PWID is not a § 2L1.2 DTO.  Judge Dennis also criticizes the “ironic and illogical inconsistency” that, under the majority’s decision, Martinez-Lugo receives a 16-level enhancement for a DTO but would not be subject to the 8-level enhancement for an aggravated felony.

Note:  This is the second time in three years that a Fifth Circuit panel initially resolved a § 2L1.2 DTO issue in favor of the defendant and then withdrew the opinion and entered an opinion affirming the enhancement.  See United States v. Rodriguez-Escareno, 700 F.3d 751, 753 (5th Cir. 2012) (superseding prior opinion that held conspiracy to distribute meth was not a DTO).

Giving Away Drugs Is Not A § 2L1.2 Drug Trafficking Offense (Opinion Withdrawn)

The Fifth Circuit sua sponte withdrew the opinion described below and replaced it with

United States v. Martinez-Lugo, No. 13-40924 (5th Cir. Mar. 27, 2015) (Davis, Dennis, Costa) (per curiam).  The new opinion holds affirms the district court and applies the 16-level enhancement after finding that Moncrieffe does not control.  See the blog post from April 3 on the new opinion for more information.

US v. Martinez-Lugo, No. 13-40924 (5th Cir. Dec. 11, 2014) (Davis, Dennis, Costa) (withdrawn on March 27, 2015)

At long last, the Fifth Circuit finally had to address whether a § 2L1.2 drug trafficking offense (DTO) includes giving away drugs without remuneration.  After rejecting similar arguments raised by defendants on plain error review, the panel resolved this question in Martinez-Lugo’s favor, albeit by a split panel. 

Martinez-Lugo’s conviction was under Georgia Code Annotated section 16-13-30(j)(1), the same statute at issue in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013).  In Moncrieffe, the Supreme Court held that the conviction was not an aggravated felony—illicit trafficking in a controlled substance, defined in part as a felony under the Controlled Substance Act (CSA)—because the CSA treats distribution of a small amount of marijuana for no remuneration as a misdemeanor.  

Section 2L1.2 does not define a DTO other than in the Application Notes, and the Application Note definition does not refer to the CSA.  So, the holding of Moncrieffe does not control.  Nevertheless, the majority relies on Moncrieffe’s language that “the everyday understanding of ‘trafficking[]’ ordinarily . . . means some sort of commercial dealing.”  Since the Application Note definition of DTO, which includes “possession . . . with intent to distribute” would conflict with the common understanding of the term “trafficking” if distribution did not require remuneration, the panel only applies the language of the § 2L1.2 guideline and finds that Martinez-Lugo’s conviction for an offense that could include giving away marijuana cannot support the 16-level enhancement.

Judge Costa dissents, urging the “straightforward result” that flows from the § 2L1.2 Application Note definition of a DTO.  Since Martinez-Lugo was convicted of possession with intent to distribute, Judge Costa maintains the 16-level enhancement applies.

Previously Deported Noncitizen Apprehended at Port of Entry While Leaving the United States is “Found In” Under § 1326

US v. Quezada Rojas, No. 13-50926 (5th Cir. Oct. 30, 2014) (Smith, Barksdale, Hayne)

Quezada Rojas was on a bus headed into Mexico when the bus was stopped by U.S. Border Patrol agents conducting inspections of outbound traffic.  Upon questioning, Quezada Rojas admitted that he was previously deported.  

In his Rule 29 motion and on appeal, Quezada Rojas argued that he was neither “found” nor “in” the United States at the time of arrest.  He argued that “found,” as used in § 1326, requires an alien to be discovered, and he was not discovered or found by immigration authorities since he voluntarily approached the port of entry. See United States v. Angeles-Mascote, 206 F.3d 529, 531 (5th Cir. 2000).  The panel rejected that argument, limiting the voluntariness precedent to aliens seeking to enter not exit the United States.  Quezada Rojas also argued that he was not “in” the United States because he was not free from official restraint.  The panel disagreed, stating that the Fifth Circuit has never explicitly adopted the doctrine of official restraint and that, even if it did, Quezada Rojas would not fall within the “official restraint” parameters since he was leaving the United States after having worked in Colorado free from restraint.

So, noncitizens with prior removal orders who are apprehended at the border while trying to return to their home countries will first have to spend months or years in a BOP facility, at least so long as prosecutors think such prosecutions are a good use of resources.

Florida Attempted Aggravated Battery on LEO with LEO’s Firearm is § 2L1.2 Crime of Violence; Alien Smuggling and Illegal Reentry Grouped Together for § 3D1.2

United States v. Garcia-Figueroa, No. 13-40114 (5th Cir. June 12, 2014) (Dennis, Prado, Brown)

Garcia-Figueroa was convicted of three counts: conspiracy to bring aliens into the United States, bringing them into the United States, and being unlawfully present in the United States following his deportation.  He challenged the 12-level enhancement for a crime of violence (“COV”) and the sentencing court’s failure to group all counts together for § 3D1.2.

Garcia-Figueroa’s prior judgment used for the COV enhancement indicates he was convicted in 1991 for attempted aggravated battery on a law enforcement officer (“LEO”) with a LEO’s firearm in violation of Florida Statute §§ 784.07 (aggravated battery), 777.04 (attempt), and 775.0875 (third degree felony to take a firearm from a LEO lawfully engaged in law enforcement duties).  Garcia-Figueroa’s argument focuses on the divisible Florida aggravated battery statute, 784.045(1)(a), arguing that the Shepard documents do not specify that Garcia-Figueroa committed aggravated battery with a deadly weapon.  The panel disagrees and finds that the judgment establishes that Garcia-Figueroa used a deadly weapon, which would render the conviction a COV pursuant to United States v. Dominguez, 479 F.3d 345 (5th Cir. 2007).  The panel also analyzes the elements of taking a firearm from a LEO lawfully engaged in law enforcement duties and finds that such an offense creates a sufficient threatened use of force to qualify as a § 2L1.2 COV under the elements clause.

Garcia-Figueroa also argues that Florida attempt is broader than the generic definition of attempt and that his conviction therefore does not qualify as a § 2L1.2 COV.  Generic attempt follows the Model Penal Code’s substantial step test, which requires the substantial step to be “strongly corroborative of the actor’s criminal purpose.”  MPC § 5.01(2).  In contrast, Florida attempt includes “any act toward the commission” of an offense.  Fla. Stat. §77.04(1) (1991).  Nevertheless, the panel finds that Garcia-Figueroa failed to point to specific instances where Florida attempt was applied to conduct outside the ordinary meaning of attempt.  He cited two Florida cases, but the panel finds that they would be covered by generic attempt.  Thus, the panel affirms the 12-level enhancement. 

However, the panel finds that the district court erred in its grouping calculations.  Since the “victim” of both the alien smuggling and illegal reentry offenses is the societal interest protected by immigration laws, the immigration offenses should have been grouped together.  See U.S.S.G. § 3D1.2 cmt. n.2.  By grouping the alien smuggling counts together separate from the illegal reentry offense, the court applied an erroneous 2-level increase that resulted in a higher guideline range.  Garcia-Figueroa was sentenced within the higher, incorrect range, and the transcript revealed that the sentence “was strongly grounded in the erroneously calculated Guidelines range.”  The panel vacates Garcia-Figueroa’s sentence and remands for resentencing.

Louisiana Aggravated Battery Not Categorically § 2L1.2 COV Because It Includes Administering Poison

United States v. Herrera-Alvarez, No. 12-41425 (5th Cir. May 22, 2014) (Davis, Garza, Dennis)

Herrera-Alvarez was convicted of illegal reentry and had a prior Louisiana conviction for aggravated battery under Louisiana Revised Statutes section 14:34.  The panel determines that section 14:34 as a whole is not categorically a § 2L1.2 crime of violence (“COV”) because it “criminalizes aggravated batteries committed by administering poison, which does not necessarily entail the use of destructive or violent physical force.” 

However, under the modified categorical approach, Herrera-Alvarez’s aggravated battery conviction is a COV.  Under Louisiana law, “[b]attery is the intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another.”  Herrera-Alvarez’s charging document specifically said that he committed aggravated battery with a dangerous weapon, to wit: a knife, thereby excluding the possibility that the aggravated battery was committed by means of poisoning. 

The panel reasons that the touching of an individual with a deadly weapon is a sufficient threat of force to qualify as a COV.  Thus, Herrera-Alvarez’s conviction is a COV because it necessarily contains, as an element, the use, attempted use, or threatened use of force by requiring both physical contact and the use of a dangerous weapon used in a manner calculated or likely to produce death or great bodily harm.  The panel affirmed the 16-level enhancement and rejected Herrera-Alvarez’s arguments that the statute only requires offensive touching and that the offense can be committed while merely possessing the dangerous weapon, not touching an individual with it.

As a side note, the panel also explains why the instant case was not controlled by decisions finding that Louisiana aggravated battery is a COV under § 4B1.2(a) and a “serious violent felony” for purposes of 18 U.S.C. § 3559(c).  The panel explains that there is a “salient statutory distinction among the statutes and Guidelines provisions at issue,” so the other precedent does not control the § 2L1.2 determination.  For example, Louisiana aggravated battery is a COV under the residual clause of § 4B1.2(a) because it involves conduct that presents “a serious potential risk of physical injury to another’ and is “purposeful, violent, and aggressive.”  Section 2L1.2, however, does not have a comparable residual clause.  This is an important reminder to be sure to address the correct COV definition when analyzing and researching a COV issue because it can make a difference.

§ 2L1.2 COV Enhancement Applies to Conspiracy to Commit Murder Without Overt Act Element

United States v. Pascacio-Rodriguez, No. 12-40264 (5th Cir. Apr. 11, 2014) (Wiener, Dennis, Owen)

The panel concludes “that conspiracy to commit murder, within the meaning of Application Note 5 of § 2L1.2, does not require an overt act as an element of the offense.”

Pascacio-Rodriguez pleaded guilty to illegal reentry after being convicted in Nevada for conspiracy to commit murder in 2003.  He appealed the application of the 16-level enhancement for a crime of violence conviction under U.S.S.G. § 2L1.2, arguing that the Guidelines refer to the generic definition of “conspiracy” which requires an overt act and that the Nevada murder conspiracy is broader than the generic definition because it does not require proof of an overt act.

As a preliminary matter, the panel recognizes that, under Descamps, it does not matter that Pascacio was actually charged with and pleaded guilty to overt acts since the Nevada statute does not require proof of an overt act.  Accordingly, the panel cannot resort to the modified categorical approach and must determine whether or not conspiracy to commit murder for purposes of § 2L1.2 requires an overt act.

“Neither ‘conspiracy’ nor ‘murder’ is defined by the Guidelines.”  Nonetheless, the panel concludes that “[t]he language and context of § 2L1.2 indicate that an overt act is not required for a conspiracy to commit murder.” 

Alternatively, the panel concludes “that the generic, contemporary meaning of ‘conspiracy to commit murder’ does not require an overt act.”  Since conspiracy to commit murder was defined at common law, the panel employs a common sense approach based on the generic, contemporary meaning of the terms in the Guidelines.  “At common law, it was not necessary to allege or prove an act in furtherance of a conspiracy.”  The panel surveys federal conspiracy laws and determines that a majority do not require an overt act.  The Model Panel Code does not require an overt act for first- or second-degree felonies such as murder, but a majority of states require an overt act as an element of all criminal conspiracies.  “After surveying the various sources typically consulted in applying the categorical approach, it appears to us that, albeit slight, the weight of authority indicates that conspiracy to commit murder does not require an overt act as an element.”

Note: This decision does not mean that an overt act is unnecessary for every conspiracy analyzed under § 2L1.2.  The analysis throughout the decision was contingent on conspiracy to commit murder.  Conspiracy to commit other offenses would need to be analyzed separately. 

Washington Residential Burglary Is § 2L1.2 Crime of Violence

United States v. Guerrero-Navarro, No. 12-40802 (5th Cir. Dec. 16, 2013) (King, Benavides, Dennis)

Guerrero pled guilty to illegal reentry in violation of 8 U.S.C. § 1326 and possessing a firearm as a prohibited person in violation of 18 U.S.C. §§ 922(g)(5)(A).  Over Guerrero’s objection, the district court determined that his prior conviction for residential burglary in Washington, Wash. Rev. Code § 9A.52.025, is a “crime of violence” both under § 2L1.2 and § 4B1.2(a).  The court applied the enhancements and sentenced Guerrero accordingly.

Guerrero argues that the Washington statute was broader than the generic definition of burglary because it includes fenced areas.  Washington defines a dwelling as “any building or structure . . . which is used or ordinarily used by a person for lodging” and “building” as “any dwelling, fenced area, vehicle, railway car, cargo container, or any other structure used for lodging of persons or for carrying on business therein . . . .”  The panel rejects this argument, finding “there is little or no ‘realistic probability’ that a Washington court would apply the statute to anything other than the structures permitted by” Supreme Court and Fifth Circuit precedent.  See, e.g., United States v. Castillo-Morales, 507 F.3d 873, 875 (5th Cir. 2007) (defining burglary of a dwelling as the unlawful entry into or remaining within, with the intent to commit a crime, a “structure, tent, or vessel where someone lives”).  The panel recognizes that the Ninth Circuit reached the opposite conclusion in United States v. Wenner, 351 F.3d 969 (9th Cir. 2003), finding that Washington has a broader definition of dwelling.  The panel, however, justified its different conclusion because of “the benefit of an additional decade of jurisprudence in which Washington’s courts have consistently interpreted the term such that it denotes and connotes traditional structures, and only those used for human habitation.”  Thus, Washington residential burglary is a crime of violence for purposes of § 2L1.2(b)(1)(A).

Note: The opinion makes a few confusing misstatements that do not affect the ultimate analysis.  Don’t let those confuse you.  For instance, it applies the U.S.S.G. § 4B1.2 definition of a “crime of violence” instead of the definition in § 2L1.2.  Both § 4B1.2 and § 2L1.2 state that “burglary of a dwelling” is a crime of violence, and the § 4B1.2 definition also applies to this case because the guideline for his firearm conviction, U.S.S.G. § 2K2.1, refers to the crime of violence definition at § 4B1.2.  Also, the opinion states that Guerrero pled guilty to “knowing unlawful presence in the United States, in violation of 6 U.S.C. §§ 202(3) & 202(4).”  He really pled guilty to illegal reentry in violation of 8 U.S.C. § 1326.  Being present in the United States is not a crime unless it satisfies the criteria of “found in” described in 8 U.S.C. §1326.  Section 202 of Title 6 of the U.S.C. merely enunciates the responsibilities of the Under Secretary for Border and Transportation Security.

Admitting 40-Year-Old Affidavit of Deceased Grandmother Violated Confrontation Clause

United States v. Duron-Caldera, No. 12-50738 (Dec. 16, 2013) (Higginbotham, Owen, Higginson)

The panel vacates Duron’s conviction and remands after finding that the district court’s admission of his deceased grandmother’s affidavit violated his Confrontation Clause rights.  Duron went to trial on an illegal reentry charge with the defense that the Government could not prove beyond a reasonable doubt that he did not derive citizenship through his U.S. citizen mother. 

At trial, the Government introduced over Duron’s objection a 40-year-old affidavit signed under oath by his now deceased grandmother in connection with an investigation into document fraud.  In that affidavit, the grandmother accuses others of falsely registering her daughter’s (Duron’s mother) birth in Texas.  The district court overruled the objection finding that the affidavit is nontestimonial because it was not created to accuse Duron in his illegal reentry trial.

On appeal, the panel finds that the district court erred by admitting the affidavit because the Government did not meet its burden of establishing that the affidavit was nontestimonial.  First, the Government argued that the affidavit was nontestimonial because it was created primarily for providing evidence for immigration, not criminal, proceedings.  The panel finds, however, that the Government did not provide conclusive evidence that the affidavit was not created for the primary purpose of providing evidence for a later criminal trial. 

Second, the Government argued that the affidavit is nontestimonial because it was not prepared for that particular prosecution of Duron.  After reviewing Williams v. Illinois, 132 S. Ct. 2221 (2012), the Confrontation Clause, and other precedent, the panel concludes that the Government’s proposed “accusation test” construes the Confrontation Clause too narrowly because it does not address the witness-related reliability concerns. 

Given the circumstances of the affidavit and the jury’s initial deadlock (suggesting it seriously considered Duron’s derivative-citizenship defense), the panel concludes that the Government did not prove that the district court’s error was harmless beyond a reasonable doubt.

Immigration Prosecutions Estimated to Increase 7.7% Nationwide in FY 2013; 32.4% Increase Since 2008

Five years ago, the Government brought 27,428 immigration prosecutions nationwide.  A November 13, 2013, TRAC-Immigration report estimates that FY 2013 will see 99,061 immigration prosecutions, an increase of 32.4% since 2008 and a 7.7% increase over FY 2012.  “Overall, the data show that prosecutions of this type are up 468 percent from the level of 6,398 reported in 2003 and up 1518 percent from the level of 2,244 reported in 1993.”

Prosecutions in the District of New Mexico increased the most since FY 2012 (45.7%).  The second highest increase was in the Western District of Texas (32%) and then the Southern District of Texas (24%).  Immigration prosecutions in the other judicial districts bordering Mexico decreased, District of Arizona by 21.6% and Southern District of California by 13.3%.

The three lead charges filed in the first eleven months of FY 2013 were illegal entry (50,683), illegal reentry (34,365), and bringing in and harboring certain aliens (3,239).  Illegal entry, 8 U.S.C. § 1325, also had the largest increase (15.2%) compared to one year ago.

In the first eleven months of FY 2013, the Southern District of Texas had the most immigration prosecutions (30,810), then the Western District of Texas (22,970), then the District of Arizona (21,163), followed by the District of New Mexico at a distant fourth (5,999).

New Jersey Third Degree Aggravated Assault Not a § 2L1.2 Crime of Violence

United States v. Martinez-Flores, No. 11-41375 (June 19, 2013) (Stewart, Benavides, Higginson) (per curiam)

The difference between New Jersey Third Degree Assault, N.J. Stat. Ann. § 2C:12-1b(7), and aggravated assault under the Model Penal Code is the injury. The New Jersey statute only requires "significant bodily injury," something that does not arise to serious bodily injury and could include an eye injury only lasting a few days. In contrast, the MPC requires "serious bodily injury," defining that as "bodily injury which creates a substantial risk of death or causing serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." The panel determined that the New Jersey statute was broader than the MPC definition of aggravated assault because the New Jersey statute included injuries that did not meet the MPC definition of "serious bodily injury." Thus, the conviction was not categorically a crime of violence under § 2L1.2, and the panel vacated the judgment and remanded for sentencing.

Other things to note:

The Fifth Circuit previously held, in a published decision, that it was not plain error for the district court to determine that New Jersey Third Degree Assault was a crime of violence under § 2L1.2. United States v. Ramirez, 557 F.3d 200 (5th Cir. 2009). Nevertheless, Martinez-Flores’ attorney objected to the sentencing enhancement and won on de novo review before the Fifth Circuit. So, be sure to distinguish between plain error and de novo review decisions when deciding whether an issue is foreclosed by precedent.

Also, the panel stated in a footnote that the new plain-meaning approach announced in United States v. Rodriguez, 711 F.3d 541 (5th Cir. 2013) (en banc), does not apply to determining whether an aggravated assault conviction is an enumerated offense. To support this proposition, the panel cites footnote 17 of the Rodriguez opinion. While that footnote states that precedent regarding "aggravated assault" remains intact, the premise is that offense categories defined at common law remain intact. Whether or not aggravated assault is an offense defined at common law may be a trickier question than the Fifth Circuit opinions have led us to believe thus far, so feel free to keep that line of argument open as well.

Special Concurrence Casts Doubt on Precedent that Identity Evidence Is Never Suppressible

United States v. Hernandez-Mandujano, No. 12-30793 (June 27, 2013) (Reavley, Jolly, Smith) (per curiam)

Two U.S. Border Patrol Agents "clearly violated the Fourth Amendment in stopping Hernandez" 450 miles from the nearest international border. The agents "felt convinced that Hernandez was transporting illegal aliens," but the panel found that the agents’ reasons for stopping Hernandez—because he had both hands on the wheel, was focused on the road ahead of him, stopped talking to the passenger when the patrol car passed him, slowed down after passing the agents, and was driving an SUV registered to a woman—did not rise to reasonable suspicion. After being illegally stopped, Hernandez admitted to being a Mexican national present in the United States without permission.

So, what’s the remedy? Hernandez requested that all evidence from the warrantless stop be suppressed. The district court denied this request, and the panel affirmed based on Fifth Circuit precedent that an immigrant’s identity and his alien file ("A-file") cannot be suppressed. See United States v. Roque-Villanueva, 175 F.3d 345, 346 (5th Cir. 1999).

Judge Jolly wrote a special concurrence criticizing this binding precedent. He lays out how the denial of such suppression motions is based on a misapplication of the Supreme Court’s holding in I.N.S. v. Lopez-Menodoza, 468 U.S. 1032 (1984), and how—while all "Circuits seem to agree that if a defendant sought only to suppress his identity itself, he would fail"—the "Fourth, Eighth, and Tenth Circuits . . . correctly distinguish between such a broad attempt to suppress one’s identity itself and an attempt to suppress evidence relating to one’s identity, such as statements made during an unlawful arrest."

But for the binding precedent of Roque-Villanueva, Judge Jolly concludes the proper disposition of the case would be to remand for further development of the record to determine whether Hernandez made any statements that are potentially suppressible. 

[A]llowing our erroneous interpretation of Lopez-Mendoza to persist essentially affords law enforcement officers staggering authority to detain anyone they suspect of being an illegal alien, for so long as they retrieve only evidence related to that person’s identity, they will escape any ramifications for even grossly unconstitutional behavior. Thus, while precedent requires me to concur with the majority, I hope I have made clear that our precedent is an incomplete and erroneous reflection of the propositions for which Lopez-Mendoza stands.

So, file those suppression motions even if the remedy seems precluded by Roque-Villanueva, and read Judge Jolly’s special concurrence.

Immigration Cases Strain Justice System and Threaten Rights

Human Rights Watch released a report today entitled Turning Migrants Into Criminals: The Harmful Impact of US Border Prosecutions. This 82-page report captures in detail the rise of illegal entry and illegal reentry prosecutions, the cost on our judicial system, and the resulting toll on human rights.

As the Human Rights Watch news release states:

The US government claims these prosecutions are necessary to keep dangerous criminals from entering the United States and to deter illegal immigration. But the immigration prosecutions are not meeting their purported goals.

Instead, many of those targeted for prosecution are non-citizens with minor or no criminal histories. In 2011, 27 percent of those prosecuted for entry crimes had no prior felony convictions, and only 27 percent had criminal convictions considered "most serious" by the US Sentencing Commission, such as a conviction for a crime of violence or a firearms offense. A decade earlier, in 2002, 42 percent had criminal histories considered "most serious" and 17 percent had no prior felony convictions.

Texas Magistrate Judge Felix Recio told Human Rights Watch that the US government has created a "felony class" of non-citizens: "Where there’s no criminal history, no immigration history, the criminalization of these defendants is something that’s very difficult [for me]." Defense attorneys noted that even among people with more serious records, many have very old convictions and have lived law-abiding lives for years.

Moreover, many of those who enter or reenter the US unlawfully do so for reasons completely unrelated to conventional notions of criminal activity, such as the desire to reunite with family or because they are fleeing violence and persecution abroad. US District Judge Robert Brack, who estimated he has sentenced over 11,000 people for illegal reentry, stated, "For 10 years now, I’ve been presiding over a process that destroys families every day and several times each day."

Yet rather than evaluating whether these prosecutions are meeting their intended goals, the US government seems intent on doing more of the same. Recent data from the US Department of Justice indicates that in the first six months of fiscal year 2013, immigration prosecutions were up 10 percent.

Meanwhile, an increase in immigration prosecutions seems to be necessary ingredient to any comprehensive immigration reform in an attempt to achieve that elusive "secure" border. As U.S. District Judge Royal Furgeson Jr. pointed out on his editorial, Immigration reform must adequately fund the federal courts, in the Fort Worth Star-Telegram, the "U.S. Senate bill sets aside $6.5 billion for immigration enforcement agents and new prosecutors—potentially tripling federal immigration cases in some Southwest border areas. But none of that money is for the courts," which includes the federal defenders and probation and pre-trial officers. 

　

Florida Conviction of Sexual Battery is § 2L1.2 Crime of Violence

United States v. Garza-Guijan, No. 11-20508 (Apr. 29, 2013) (Jones, Dennis, Higginson)

The panel found that Garza’s prior Florida state court conviction for sexual battery was a "forcible sex offense" as defined in the U.S. Sentencing Guidelines for a sixteen-level enhancement under § 2L1.2. The Florida statute prohibited committing sexual battery upon a person 12 years of age or older "without that person’s consent" and with the use of "physical force and violence not likely to cause serious personal injury." The panel dismissed Garza’s argument that the "contours of non-consent under Florida law are somehow broader than the Guidelines category."

The Government agreed on appeal that the district court erred in finding that Garza’s prior Florida burglary conviction was a crime of violence. See United States v. Gomez-Garza, 485 F.3d 301 (5th Cir. 2006). Of course, that did not help decrease Garza’s sentence given his sexual battery conviction.

To Be “Found” Under § 1326, Immigration Authorities—Not Other Officials—Must Discover Alien

United States v. Compian-Torres, No. 11-10921 (Mar. 19, 2013) (Reavley, Prado, Elrod)

To be "found" under § 1326,

(1) immigration authorities must have specifically discovered and noted the alien’s physical presence, and (2) knowledge of the illegality of the alien’s presence must be reasonably attributable to immigration authorities.

Compian-Torres argued that he was "found" when he was arrested for assault in 2004 and that, therefore, the five-year statute of limitations had run on his illegal reentry charge. The panel rejected the Compian-Torres’ argument, even under the de novo standard, finding that he was not found until 2010 when he was transferred to immigration custody after a subsequent arrest for assault. The panel was unwilling to attribute knowledge to ICE of an alien’s physical presence simply because he’d been arrested by local authorities in 2004 and sentenced to the custody of the Bureau of Prisons for violating supervised release in 2006. Yes, that’s right. He was revoked for violating the supervised release from his previous illegal reentry conviction (but not charged with another illegal reentry), sentenced to a few months in BOP custody, and no one told ICE (supposedly).

The panel did not address which standard of review applied (plain error or de novo) since it found that Compian-Torres did not even survive de novo review. In its first unpublished decision in this case issued on October 24, 2012, the panel applied plain error because the appeal was couched in terms of sufficiency but presented a purely legal question that was not preserved in the district court. Compian-Torres filed a petition for rehearing arguing that de novo review applied and citing cases that used a de novo review for a sufficiency claim dependant on a question of legal interpretation. The panel granted the rehearing and addressed the legal question of "found" but did not resolve the  question of which standard of review should apply.

Error, if Any, in Relying on Non-Shepard Document to Assess 12-Level Enhancement Did Not Affect Fairness, Integrity, or Public Reputation of Judicial Proceedings

United States v. Duque-Hernandez, No. 11-40642 (Smith, Prado, Higginson)

Duque-Hernandez pled guilty to illegal reentry and was sentenced to 51 months of imprisonment, which was the low end of the guidelines range after the court applied a 12-level enhancement. The court determined that his conviction under Utah Criminal Code § 58-37-8(1)(a)(ii) was a drug trafficking offense (DTO) by relying on a probable cause statement attached to the information. Duque-Hernandez did not object. On appeal, Duque-Hernandez argued that the statute of conviction was broader than a DTO and that the court erred in relying on a non-Shepard document to apply the enhancement.

The panel avoided the issues raised, however, finding that any error did "not seriously affect the fairness, integrity, or public reputation of judicial proceedings, [and] we decline to exercise our discretion to correct it." In sum: it’s not worth re-sentencing this defendant because we think he really did commit a drug trafficking offense (even if the Shepard documents don’t support that conclusion), he did not object even though he previously appealed on this same issue for a prior illegal reentry charge (and won!), and his sentence "has strong foundation" because he "has persistently disregarded the immigration [and drug] laws of the United States."

The one issue that the panel decided: it could rely on the probable cause statement, even if it was not a Shepard document, to determine whether the application of the DTO adjustment seriously affected the fairness, integrity, or public reputation of the proceedings. Since that statement indicates that Duque-Hernandez offered to sell cocaine, the panel allowed it to influence its determination of whether or not to vacate and remand for sentencing.

The lesson: preserve, preserve, preserve. Also, look up prior cases for repeat illegal reentry clients to find out how the courts have treated their priors. You might find arguments - or even decisions - that will help them out on their subsequent cases.

Imposition of 3-Years Supervised Release for Illegal Reentry Affirmed Despite District Court’s Erroneous Belief that Supervised Release Was Mandatory (Plain Error)

United States v. Cancino-Trinidad, No. 11-41344 (Stewart, Smith, Weiner)

Cancino-Trinidad pled guilty to illegal reentry and was sentenced to 32 months’ imprisonment and three years’ supervised release. He had a lengthy criminal history (28 convictions) and was re-arrested less than 3 months after his deportation.

The PSR included language from the pre-November 1, 2011 version of the Guidelines that the guideline range for a term of supervised release is at least two years but not more than three years. The amended USSG § 5D1.1, which was effective at the time of sentencing, provided that a "court ordinarily should not impose a term of supervised release in a case in which supervised release is not required by statute and the defendant is a deportable alien . . . ."

At sentencing, the PSR was not modified to reflect the new range, and neither the court nor the government noted that the amended guideline rendered the imposition of supervised release discretionary. The panel found that it was plain error for the court to adopt a PSR with an incorrect supervised release range. The panel was not convinced, however, that this error affected his substantial rights since the court implied that supervised release would have a deterrent effect by resulting in greater criminal penalties should Cancino-Trinidad return. While Cancino-Trinidad raised the possibility that the court may have reached a different result had it realized that the imposition of supervised release was discretionary and even discouraged in such circumstances, the panel found that this did not rise to the requisite "probability." The panel even noted that had Cancino-Trinidad made such a showing, this was not an instance meriting the panel’s discretion to remand for resentencing. Lastly, the panel found that since the three years of supervised release was within the Guideline range, it was accorded the presumption of reasonableness, and was reasonable.

Failure to Give Notice of Upward Departure Did Not Affect Substantial Rights

United States v. Zelaya-Rosales, No. 12-31021 (Reavley, Prado, Elrod) (per curiam)

Zelaya-Rosales pled guilty to illegal reentry with an advisory guideline range of 0 to 6 months. At sentencing, without prior notice, the district court imposed a 6-month upward departure based on Zelaya-Rosales’s 5 previous immigration encounters and 4 prior removals. Zelaya-Rosales objected to the reasonableness of the sentence but did not object to the lack of notice.

On appeal, the panel held that the district court’s error of not giving notice did not affect Zelaya-Rosales’ substantial rights because he could not show a reasonable probability that the district court would have imposed a lesser sentence if it had given him notice. The panel emphasized that Zelaya-Rosales did not dispute the accuracy of his immigration encounters and prior removals, which were facts included in his PSR. The panel also found the 6-month upward departure was not an abuse of discretion given the district court’s individualized assessment of § 3553(a) factors and the need for deterrence.

MPI Study on Immigration Enforcement

The nonpartisan research group Migration Policy Institute released a new report, Immigration Enforcement in the United States: The Rise of a Formidable Machinery, detailing the Obama administration's increased spending on immigration enforcement. As reported by the New York Times:

The Obama administration spent nearly $18 billion on immigration enforcement last year, significantly more than its spending on all the other major federal law enforcement agencies combined . . . . 

In recent years, it found, the two main immigration enforcement agencies under the Department of Homeland Security have referred more cases to the courts for prosecution than all of the Justice Department’s law enforcement agencies combined, including the F.B.I., the Drug Enforcement Administration and the Bureau of Alcohol, Tobacco, Firearms and Explosives.

The report has a chapter on the intersection of immigration enforcement and the criminal justice system. Some interesting (but not surprising) figures—particularly given that apprehensions of illegal border crossers have plunged by 53% since 2008—from pages 93-94:

• Illegal entry and illegal reentry comprise more than 90% of immigration-related prosecutions;
• Between FY 2000 and FY 2010, the number of noncitizens prosecuted for illegal entry rose more than tenfold, from 3900 to 43,700;
• Between FY 2000 and FY 2010, the number of noncitizens prosecuted for illegal reentry tripled from 7900 to 35,800;
• Between FY 2000-03, prosecutions for immigration offenses accounted for 17-21% of the total number of federal prosecutions;
• Between FY 2008-11, prosecutions for immigration offenses accounted for more than 50% of federal prosecutions; and
• Nearly 20% of "criminal aliens" removed in 2010 were convicted of immigration-related crimes only.

According to the report,

CBP now refers more cases to US Attorneys for criminal prosecution than does the FBI. Together, CBP and ICE refer more cases for criminal prosecution than do all DOJ law enforcement agencies combined. Partly as a result of the new trends in immigration prosecutions, the five federal judicial districts along the US-Mexico border, which are home to less than 10 percent of Americans, now account for nearly half of all federal felony prosecutions in the United States.