Being Detained at Gunpoint, Handcuffed and Placed in Police Car Is Not a Full Arrest if Reasonable Suspicion Armed and Dangerous

United States v. Abdo, No. 12-50836 (Aug. 19, 2013) (Reavley, Elrod, Graves)

Being detained at gunpoint, forced to the ground, and then placed in a police car in handcuffs for fifteen minutes is not a full arrest—at least not when you’re suspected of planning a terrorist attack at Fort Hood. The panel decided this was simply an investigatory stop and that, since the officers had reasonable suspicion to believe that Abdo was armed and dangerous, the officers simply used force commensurate with the risk to officer and public safety. Accordingly, the panel affirmed the district court’s denial of his suppression motion.

Abdo also argued that one of his convictions for possession of a firearm in furtherance of a crime of violence must be vacated since 18 U.S.C. § 924(c)(1) does not permit multiple convictions for a single use of a firearm based on multiple predicate offenses. The panel agreed with this statement of law but disagreed with its application to these facts—on plain error review—since Abdo possessed the firearm for the purpose of shooting soldiers (in furtherance of the offense of attempted murder) and also possessed a firearm on the previous day when he purchased items for the explosive device (in furtherance of attempted use of a weapon of mass destruction). Thus, he separately used or possessed firearms in conjunction with distinct offenses.

Finally, Abdo argued that he was denied his right to present a defense because the district court denied his request for funds for an expert witness. The panel found that Abdo waived this argument, however, by not articulating the argument in his appellate brief and that the issue would fail on its merits because the expert’s testimony would not have materially assisted the defense. The testimony would have been that the device Abdo was capable of making would not have caused much damage. The panel concluded that since Abdo was charged with an attempt offense, evidence was sufficient that an explosive device could have been constructed, regardless of its destructive force.

Recap of Recent Supreme Court Decisions

Categorical Approach Wins: No Modified Categorical Approach for “Missing” Element

 

Descamps v. United States, No. 11-9540 (June 20, 2013) (Kagan, Roberts, Scalia Kennedy, Ginsburg, Breyer, Sotomayor, majority; Kennedy, concurrence; Thomas, concurrence in judgment; Alito, dissent)

 

The Supreme Court once again reiterates its support of the categorical approach, rejecting the Ninth Circuit’s attempt to allow judges to look beyond the statute when a statute has a single, indivisible set of elements.  The statute at issue in this case is California’s burglary statute, California Penal Code section 459, which does not have as an element unlawful entry, an element of the generic definition of burglary.  The majority holds firmly that the modified categorical approach is a tool that only applies to divisible statutes to permit a court to determine which statutory phrase was the basis for the conviction.  The modified categorical approach does not provide an excuse to look at underlying facts for indivisible statutes that are broader than the corresponding generic offense.  Under the categorical approach, the key is elements, not facts.  Since section 459 is indivisible and broader than generic burglary, it categorically is not a “violent felony” under the Armed Career Criminal Act.

 

Justice Thomas concurs in judgment, arguing that, pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), any judicial fact-finding that increases the statutory maximum violates the Sixth Amendment.

 

Justice Alito dissents, opting for “a more practical reading” that would allow a sentencing enhancement “[w]hen it is clear that a defendant necessarily admitted or the jury necessarily found that the defendant committed the elements of” the generic offense.  How it becomes “clear” to the district court that the defendant committed acts that are not elements of the charged offense is a little fuzzy, but, then again, that’s the majority’s point.

 

For more analysis, see the Steve Sady’s post on the Ninth Circuit Blog: http://circuit9.blogspot.com/2013/07/q-on-descamps-and-categorical-approach.html.

 

 

Statutory Elements that Increase Mandatory Minimum Must Be Submitted to Jury

 

Alleyne v. United States, No. 11-9335 (Thomas, Ginsburg, Breyer, Sotomayor, Kagan, majority for Parts I, III-B, III-C, and IV; Sotomayor, Ginsburg, Kagan, concurrence; Breyer, concurrence in part; Roberts, Scalia, Kennedy, dissent)

Pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), any fact—other than a conviction per Almendares-Torres, which the Court did not address—that increases the mandatory minimum is an “element” that must be submitted to the jury and found beyond a reasonable doubt.  In a 5-4 split, the Supreme Court extends the Sixth Amendment to findings triggering mandatory minimums, thereby reversing Harris v. United States, 536 U.S. 545 (2002).  This case dealt with 18 U.S.C. § 924(c), carrying a firearm in relation to a crime of violence.  The jury did not find that Alleyne brandished the firearm, but the district court did, resulting in an increase of the mandatory minimum from five years to seven years.  The Supreme Court disagreed.  So, now, brandishing and other “elements” that result in an increased penalty range must be submitted to the jury.

 

Justice Sotomayor’s concurrence explains why overturning such recent precedent is permissible under the Court’s stare decisis precedent.  Justice Breyer concurs and states that he still disagrees with Apprendi but can no longer abide the incongruity of Harris given Apprendi.  Justice Roberts dissents, reiterating the reasoning of Harris—that Alleyne could have gotten seven years and that findings relating to mandatory minimums infringe on the judge’s discretion, not on the jury trial right, so the Sixth Amendment does not apply.

 

 

Eroding the Fourth Amendment: DNA Testing of Arrestees OK

 

Maryland v. King, No. 12-207 (June 3, 2013) (Kennedy, Roberts, Breyer, Alito, majority; Scalia, Ginsburg, Sotomayor, Kagan, dissent)

 

Anyone who does not like the idea of his DNA being taken for a simple arrest should just skip to Justice Scalia’s dissent, delight in his sharp criticism of the majority’s tortured reasoning, and then complain that the majority won out.  As Justice Scalia points out, the DNA collection permitted by the Maryland DNA Collection Act does not aid in identification but is specifically designed to aid in the investigation of crimes, for which suspicionless searches are prohibited.  Thanks to the majority, however, the Act is declared constitutional even though—since all parties concede that Maryland could have constitutionally taken King’s DNA after his conviction—it “manages to burden uniquely the sole group for whom the Fourth Amendment’s protections ought to be most jealously guarded: people who are innocent of the State’s accusations,” those who are arrested and not convicted.

 

How does the majority justify such an intrusion for someone who is only arrested, not convicted, of a crime? First, the majority places great weight on the benefits to the criminal justice system and police investigative practices.  Then, the majority characterizes the cotton-swab intrusion in the arrestee’s mouth as minimal—“a light touch on the inside of the cheek.”  Plus, since the arrestee had the misfortune to be arrested, he has diminished expectations of privacy.  Next, the majority states that the search was a tool, like fingerprints, to confirm the identity of the arrestee.  (Nevermind that King’s DNA was not tested until months after his arrest and that the Act itself prohibits the DNA to be examined until after the first scheduled arraignment date.)  Finally, the majority believes that the requirement in the Act that “[o]nly DNA records that directly relate to the identification of individuals shall be collected and stored” adequately safeguards against using the DNA to find non-identity information.  This places a lot of trust in statutory protections against invasion of privacy. 

 

 

Applying SORNA to Pre-SORNA Military Offender Is Necessary and Proper

 

United States v. Kebodeaux, No. 12-418 (June 24, 2013) (Breyer, Kennedy, Ginsburg, Sotomayor, Kagan, majority; Roberts, concurrence; Alito, concurrence; Scalia, dissent; Thomas, dissent with Scalia joining as to Parts I, II, and III-B)

 

The short story is that SORNA applies to someone convicted of a sex offense by court martial pre-SORNA even though he never travelled interstate and was not on supervised release at the time of SORNA’s enactment in 2006.  The majority reasons that this is a proper use of the Necessary and Proper Clause since Kebodeaux was subject to a federal registration requirement prior to 2006 pursuant to the Wetterling Act.  The majority characterizes SORNA as merely modifying Kebodeaux’s duties under the Wetterling Act.

 

Chief Justice Roberts concurs separately to clarify that the Constitution does not grant the federal government police powers (since the majority gets very close to suggesting that it does), and that applying SORNA to someone like Kebodeaux was a reasonable and necessary to execute Congress’s power to regulate the conduct of members of the military.

 

Justice Scalia’s dissent challenges whether the Wetterling Act’s registration requirement was itself a valid exercise of any federal power and whether SORNA was actually designed to carry the Wetterling Act into execution.  He concludes that the federal power for the Wetterling Act was doubtful and that SORNA obviously was not designed to carry the Wetterling Act into execution.

 

Justice Thomas’s dissent emphasizes the limited powers that the Constitution bestows on the federal government and criticizes the majority’s failure to identify an enumerated power that SORNA carries into execution.  He concludes that Congress’s power to make rules and regulations for the armed forces does not include sex offender registration under SORNA.

 

 

Federal Sentencing Guidelines Are Subject to the Ex Post Facto Clause

 

Peugh v. United States, No. 12-62 (June 10, 2013) (Sotomayor, Ginsburg, Breyer, Kagan, Kennedy [except for Part III-C], majority; Thomas, dissent joined by Roberts, Scalia, Alito as to Parts I and II-C; Alito, dissent joined by Scalia)

 

The majority concludes that, even though the Federal Sentencing Guidelines are no longer mandatory, the Ex Post Facto Clause applies to them.  A district court must apply the Guidelines in effect on the date the defendant is sentenced unless the Guidelines on the sentencing date violate the Ex Post Facto Clause.  If that’s the case, then the district court must use the Guidelines in effect on the date the offense was committed. 

 

Here, Peugh was charged with nine counts of bank fraud.  Under the 1998 version of the Federal Sentencing Guidelines, when the acts occurred, his guideline sentencing range was 30 to 37 months.  Under the 2009 Guidelines, his advisory guideline range was 70 to 87 months.  Since he was sentenced under the 2009 Guidelines in violation of the Ex Post Facto Clause, the case was remanded.

 

Justice Thomas argues in his dissent that the retroactive application of the 2009 Guidelines to Peugh did not alter his punishment or violate the Ex Post Facto Clause since the Guidelines are not mandatory and sentencing remains subject to the district court’s discretion.  Fortunately for us defenders, he loses that argument.

§ 924(c) Conviction a "Felony Drug Offense" for Controlled Substance Act Enhancement Purposes If Record Shows It Involved Drug-Trafficking Crime

United States v. Rains, No. 09-50724 (5th Cir. Aug. 23, 2010) (King, Higginbotham, Garza)

Rains confronts what is surprisingly a question of first impression for the court. In fact, only one other circuit has addressed it in a published opinion. That question is whether a § 924(c) conviction is a "felony drug offense" for purposes of the enhanced penalties in 21 U.S.C. § 841. Which means we'll have to look at statutory language.

"Felony drug offense" is defined, for purposes of the Controlled Substances Act, in 21 U.S.C. § 802(44). It is

an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.

And § 924(c) provides that

any person who, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime [be subject to additional penalties for violation of this section].

(alterations in Rains). "The issue is whether § 924(c) qualifies as a 'law . . . that prohibits or restricts conduct relating to [drugs].'"

In a split decision, the Fourth Circuit "held that § 924(c) could be the basis for the enhancement, at least when the record made clear the conviction involved a drug trafficking crime rather than a crime of violence." The dissent in that case "focused on § 802(44)’s use of the word 'law,' and concluded that an examination of the documents of conviction was inappropriate: a law either does or does not prohibit drug related conduct, and § 924(c), at least in some circumstances, does not." For that reason, the dissent argued, § 924(c) is not a "felony drug offense."

Rains concludes that the answer is controlled by an earlier Fifth Circuit decision, United States v. Curry, which applied the Taylor/Shepard approach to determine whether a state conviction for possessing of contraband in a state prison was a "felony drug offense." The state statute covered a variety of contraband, including drugs. "Curry establishes that it is permissible to apply the enhancement even when the statute of conviction covers non-drug related conduct so long as the record makes clear the actual violation involved drugs." And so it is with § 924(c):

In conclusion, we join the Fourth Circuit in holding that § 924(c) can be the basis for an enhancement under § 841(b)(1) when the record makes clear that the conviction involved a drug trafficking crime rather than a crime of violence.

Recoginizing one potentially deleterious implication of this holding, the court ended the discussion with this important footnote:

We are concerned that this decision could be read to support a double enhancement when the same underlying conduct gives rise to both a substantive drug offense and a § 924(c) conviction for possession of a firearm in furtherance of a drug trafficking crime. At oral argument, the government indicated it would not pursue a double enhancement under these circumstances. Although we take the government at its word, we also want to be clear that it is not our intention to authorize such a double enhancement.

Keep that in mind.

Fives Reiterate That District Court May Not Impose Sentence Below Statutory Minimum, Absent Substantial Assistance Motion or Safety Valve

United States v. Montes, No. 08-10932 (5th Cir. Mar. 26, 2010) (Reavley, Davis, Stewart)

That's what the court held in United States v. Krumnow, and that's what it holds here:

In United States v. Krumnow, 476 F.3d 294, 295-98 (5th Cir. 2007), we held that district courts could impose a sentence of imprisonment below a statutory minimum only if: (1) the government so moves pursuant to 18 U.S.C. § 3553(e), asserting the defendant’s substantial assistance to the government; or (2) the defendant meets the “safety valve” criteria set forth in 18 U.S.C. § 3553(f). Otherwise, post-Booker sentencing courts lack discretion to depart below relevant statutory minimums. Id. at 297.

Montes does not contend otherwise. Instead, he argues that United States v. James, 468 F.3d 245 (5th Cir. 2007) gave the district court the discretion to depart below the mandatory minimum sentence. In James, this court opined that “[t]here is . . . no statutory provision or jurisprudential holding that would prohibit a court from departing below the section 924(c)(1) minimum if the court felt that such a sentence was appropriate.” Id. at 248. This court’s holding in Krumnow, however, forecloses any interpretation of James’s language that would imbue district courts with discretion to depart below the mandatory minimum absent a substantial assistance motion under 18 U.S.C. § 3553(e) or application of the 18 U.S.C. § 3553(f) safety valve, both of which are not present in the instance case. In Krumnow, this court clarified its ruling in James and expressly held that the language upon which Montes now relies was “simply either subsumed in the analysis for why the § 924(c) sentence may be reduced if the Government requests it or is dictum. Restated, this statement [the one upon which Montes now relies] in James is not its holding.” Krumnow, 476 F.3d at 297-98 (emphasis in original and some citations omitted). Thus, the district court could not depart below the sentences it actually imposed for the section 924(c)convictions.

Montes's sentence, in case you're wondering, was 4,705 months' imprisonment.

No Error In Letting Government Amend Indictment to Conform Serial Number of Gun Alleged to Gun Introduced at Trial

United States v. Midkiff, No. 07-30981 (5th Cir. Feb. 3, 2010) (Garza, DeMoss, Clement)

Although not otherwise breaking any new ground, this opinion does address one question that the Fifth Circuit hasn't previously addressed directly: is it a mistake of form or substance if an indictment alleging a gun crime alleges a serial number different from the one on the gun introduced at trial? (Hint: it's not substance.)

Midkiff also argues that his convictions for possession of a firearm in furtherance of a drug trafficking crime and possession of a firearm by a convicted felon should be reversed because the serial number provided in the indictment for the firearm at issue was not the same as the serial number for the firearm introduced as evidence at trial. He argues that the district court erred by permitting an amendment to the indictment after the close of all evidence, particularly when the government had knowledge of the discrepancy early in the trial, if not earlier, and failed to move to amend until evidence was closed.

Generally, indictments can only be amended by a grand jury. But, “[t]he form of an indictment may be amended without return to the grand jury so long as its substance remains the same,” such as by correcting a “misnomer” or mistake of form. Thus, the issue is whether the amendment to the serial number constituted a change in form akin to correcting a typographical error or a change in substance that impermissibly altered the indictment.

Although we have never addressed this question directly, precedent from this circuit and others suggests that the particular attributes of a firearm are not actual elements of the offense. . . .

We also have noted that “[a]n amendment will be allowed if a defendant’s rights are not affected and he is adequately apprised of the charges against him so that he is protected against surprise at trial . . . .” In this case, Midkiff has not contended that he was prejudiced either by the amendment itself, or by the district court’s decision to permit the amendment after the government had rested. He does not claim that he was surprised by the trial evidence, or that his ability to defend the charges was impaired in any way. Given that Midkiff has neither alleged nor shown prejudice, we find no abuse of discretion in the district court’s decision to allow the government to reopen its case to amend the indictment.

(cites omitted). Another way to say it would be: We find no error in permitting the Government to amend the indictment to conform to the evidence it actually introduced at trial.

Snark aside, it's hard to say how far this holding would extend, since the opinion doesn't explain the exact difference between the two serial numbers. If it's a matter of one digit (as in one of the cases from another circuit), then the holding makes sense. At the other extreme, a serial number from an entirely different gun (different type, manufacturer, etc.) would seem to be more than just a misnomer. Lots of hypos in between.

Discharge of Firearm Need Not Be Intentional to Trigger 10-Year Mandatory Minimum Under 18 U.S.C. § 924(c)*

Dean v. United States, No. 08-5274 (U.S. Apr. 29, 2009)

Title 18 U.S.C. § 924(c)(1)(A)(iii) requires a mandatory minimum sentence of 10 years if the firearm was "discharged." The question presented, which had divided the circuits, was whether the 10-year mandatory minimum requires that the defendant discharge the firearm intentionally.

Chief Justice Roberts, writing for a seven-Justice majority, answers that question "no." Even an accidential discharge suffices. The analysis, which I'll not summarize, relies entirely on the text and structure of the statute.

Justice Stevens dissented. Relying on both the structure and the legislative history of the statute, he concluded that "Congress intended §924(c)(1)(A)(iii) to apply only to intentional discharges."

Justice Breyer also dissented. Conceding the "strong arguments" in favor of the majority's holding, Justice Breyer nevertheless concluded that the rule of lenity weighed against it. Intriguingly, he argued that the rule of lentity has "special force in the context of mandatory minimum provisions[,]" in light of the "interpretive assymetries" that arise. That is, if lenity is applied and intentional discharge is required, a sentencing judge could still impose a sentence of 10 years or more. But if lenity is not applied, and even accidential discharges trigger a 10-year mandatory minimum, then a sentencing judge is bound to impose a sentence harsher than Congress would have intended.

Of course, Justice Breyer's take on the rule of lenity did not carry the day. But the rule did not escape the majority's mention. Although not directly addressing Justice Breyer's dissent, the majority opinion reminds that not just any ambiguity suffices to trigger the rule of lenity. Instead, lenity only kicks in when there is a "grievous ambiguity or uncertainty" in the statute.

*(Post title edited to correct mistaken reference to the ACCA.)

Panel Holds, Contrary to Prior Panel and Supreme Court Precedent, That TX Burglary of a Habitation Is Still a §2L1.2 16-Level COV

United States v. Cardenas-Cardenas, No. 08-40210 (5th Cir. Sept. 25, 2008) (per curiam) (Jolly, Benavides, Haynes)

The panel really should reconsider this decision, because it conflicts with prior panel precedent, treats binding Supreme Court predecent as dictum, and relies on state case law that is not on point for a critical issue in this case.

First, a little background. Recall that in United States v. Garcia-Mendez, the Fifth Circuit held that burglary of a habitation, in violation of Tex. Penal Code § 30.02(a)(1), is equivalent to "burglary of a dwelling," and thus a 16-level COV for purposes of guideline §2L1.2(b)(1)(A)(ii). Garcia had argued that the Texas offense is broader than the generic offense, because the Texas definition of "habitation" includes not just the habitation itself, but also structures "appurtenant to" the habitation. Without really addressing that argument, the court in Garcia-Mendez simply pointed to its earlier decision in United States v. Hornsby, which declared, without analysis, that "burglary of a habitation is considered a crime of violence" under the COV definition found in guideline §4B1.2.

Fast-forward to the Supreme Court's decision in James v. United States, which held that an offense under Florida's burglary statute constitutes a "violent felony" under the ACCA. Specifically, the Court held that the Florida offense qualifies under "residual clause" portion of the "violent felony" definition found in 18 U.S.C. § 924(e)(2)(B)(ii), which includes a crime that "is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]" (emphasis added). But on the way there, the Court also held that the offense is not equivalent to generic "burglary," because the Flordia statute reaches entries into a home's curtilage:

We agree that the inclusion of curtilage takes Florida’s underlying offense of burglary outside the definition of "generic burglary" set forth in Taylor, which requires an unlawful entry into, or remaining in, "a building or other structure." 495 U. S., at 598 (emphasis added). But that conclusion is not dispositive, because the Government does not argue that James’ conviction for attempted burglary constitutes "burglary" under § 924(e)(2)(B)(ii). Rather, it relies on the residual provision of that clause, which—as the Court has recognized—can cover conduct that is outside the strict definition of, but nevertheless similar to, generic burglary. Id., at 600, n. 9.

Which brings us to Cardenas-Cardenas, in which Mr. Cardenas argued that James effectively overruled Garcia-Mendez (which would mean the district court erred in assigning a 16-level COV enhancement on the basis of his prior Texas conviction for burglary of a habitation when calculating his Guidelines range). The court disagreed.

As for the curtilage question, the court said that,

In James, the Supreme Court noted in dicta that because the Florida burglary statute at issue in that case criminalized the mere unlawful entry onto the curtilage of a structure, rather than entry into the structure itself, the statute contemplates conduct beyond generic burglary. Id. at 1599. This, however, was not the holding of James, which did not present the issue whether burglary in Florida constitutes an enumerated offense that could be used to impose a guidelines sentencing adjustment under 2L1.2. Rather, James raised the question whether a Florida burglary conviction was a violent felony for purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(e). Id. at 1590; see also United States v. Gomez-Guerra, 485 F.3d 301, 303 (5th Cir.), cert. denied, 128 S. Ct. 156 (2007).

This is contrary to prior panel precedent, which has treated James's discussion of curtilage and burglary as a holding, not dictum, and as binding on the interpretation of "burglary of a dwelling" under guideline §2L1.2(b)(1)(A)(ii).

In United States v. Gomez-Guerra, a Fifth Circuit panel held that Florida's burglary statute is broader than generic burglary of a dwelling, and therefore not categorically a 16-level COV under §2L1.2, because it encompasses unauthorized entry into the curtilage around a dwelling, not just entry into the dwelling itself. Gomez-Guerra cited James as authority for that holding, quoting James's statement "that the inclusion of curtilage takes Florida’s underlying offense of burglary outside the definition of ‘generic burglary’ set forth in Taylor, which requires an unlawful entry into, or remaining in, ‘a building or other structure.’” By refusing to follow Gomez-Guerra's lead on that point, Cardenas-Cardenas violates the prior-panel-precedent rule. (It is also curious that Cardenas-Cardenas would reject this portion of James as dictum, when the Fifth Circuit has previously treated a James footnote as a reaffirmance of Almendarez-Torres, even though Almendarez-Torres's ongoing vitality was not at issue in James.)

Also, Gomez-Guerra is not the first opinion from the Fifth Circuit to treat the Supreme Court's interpretation of "burglary" in the ACCA's "violent felony" definition as binding for purposes of §2L1.2. Remember that the "generic burglary" definition James considered comes from the Supreme Court's decision in Taylor v. United States. In United States v. Murillo-Lopez, a §2L1.2 case, the Fifth Circuit held that "'burglary of a dwelling' includes the elements of generic burglary as stated in Taylor but it also includes, at a minimum, tents or vessels used for human habitation." Later, in United States v. Ortega-Gonzaga, also a §2L1.2 case, the Fifth Circuit reiterated that "[b]ecause we see no reason to create a separate, parallel federal common-law definition for 'burglary,' Taylor’s definition of 'burglary' controls when defining the 'burglary' part of 'burglary of a dwelling' under the Guidelines.'" Thus, if Taylor's definition of generic burglary is binding on §2L1.2, then so is James's. (Not to mention the fact that it's strange for Cardenas-Cardenas to reject James on the ground that it involved the ACCA's "violent felony" definition rather than §2L1.2's COV definition, when the case that Cardenas-Cardenas treats as binding relied on a case interpreting §4B1.2's COV definition, which is nearly identical to the ACCA's "violent felony" definition.)

But these aren't the only flaws in Cardenas-Cardenas. The panel goes on to say that

Cardenas-Cardenas’s argument is unavailing even under the James dicta. In contrast to Florida’s burglary statute, “habitation” under § 30.02(a)(1) does not include the curtilage surrounding the habitable structure. See § 30.01(1); St. Julian v. State, 874 S.W.2d 669, 671 (Tex. Crim. App. 1994). Consequently, James does not undermine our conclusions in Garcia-Mendez that a violation of § 30.02(a)(1) constitutes “burglary of a dwelling” as that phrase is generically used and, concomitantly, that a conviction under that statute will support a sentencing adjustment under § 2L1.2(b)(1)(A)(ii).

This, too, is wrong, because St. Julian involved the definition of a "building" for purpose of the Texas burglary statute, not the term "habitation." The two are distinct, as footnote 3 of St. Julian explains (with emphasis added):

Appellant also urges us to follow Swain v. State, 583 S.W.2d 775 (Tex. Crim. App. 1979). However, Swain dealt with burglary of a habitation and for that reason is not applicable to the instant case. Brief analysis demonstrates why. The definitions provided in the Penal Code indicate that the “portion of a building” language at issue in the instant case is only meant to apply in the context of burglary of a building as opposed to burglary of a habitation. The Penal Code defines “habitation” to include “structure[s] appurtenant to or connected with,” but does not require the structure to be “enclosed.” Tex.Penal Code Ann. § 30.01(1)(B) (Vernon 1989). By contrast, the definition of “building” includes the requirement of enclosure without making reference to any structures “appurtenant to or connected with.” Id. at § 30.01(2). Therefore, Swain, a burglary of a habitation case which held that the burglary statute was not intended to encompass “an entry upon an unenclosed and unsecured stairway attached to a residence”, does not help us resolve the issue in the instant case.

(Cardenas-Cardenas's reliance on St. Julian can perhaps be blamed on Gomez-Guerra, which cited it as well (albeit for a background point that wasn't essential to the holding). But it's hard to ignore that foonote.)

So we know St. Julian isn't on point, but what about Swain? Well, it doesn't mean that the Cardenas-Cardenas panel is right about curtilage under the Texas statute. After all, the statutory definition of "habitation" includes structures "appurtenant to" a dwelling. And there are cases holding that outlying structures, such as an unattached garage, are appurtenant to a dwelling and therefore covered by the "habitation" definition. See, e.g., Jones v. State, 690 S.W.2d 318, 319-20 (Tex. App.–Dallas 1985, pet. ref’d). Reading the statute and the case law together, it appears that "open" curtilage is beyond the definition of a "habitation," but structures within the curtilage are considered a "habitation." And it's even possible that a structure outside the curtilage could be considered "appurtenant to" a dwelling. In any event, the court is wrong to say that the Texas burglary statute's "habitation" excludes all curtilage.

For these reasons, the panel really should reconsider this case. At a minimum, it should more clearly explain why its view is consistent with prior panel precedent, and why its understanding of the scope of the Texas burglary statute is correct.

Border Patrol Agents' Convictions Affirmed on Some Counts, Reversed on Others; 924(c)'s With Ten-Year Mandatory Minimums Stand

United States v. Ramos, No. 06-51489 (5th Cir. July 28, 2008) (Jolly, Higginbotham, Prado)

As you are probably already aware, Border Patrol agents Ignacio Ramos and Jose Compean were convicted of a variety of offenses after covering up and failing to report their shooting of an unarmed, fleeing drug smuggler. But in contrast to all the controversy and publicity surrounding the case, the legal issues resolved by the appeal are pretty ho-hum. That's partly because of the nature of the issues raised (challenges to evidentiary rulings and jury instructions, and whether 924(c) applies to law enforcement officers who commit crimes while on armed duty), but also because, as the court put it at one point, "[o]nce at trial, this case was hardly more than a dispute between . . . two sets of facts. The jury was the fact-finder. The jury heard all of the evidence. The jury returned the verdict. The jury did not believe the Border Patrol agents. It convicted them. The government’s evidence, if believed, is sufficient to uphold the convictions. And that is pretty close to the bottom line on [the] guilt or innocence of these agents."

In the end, the court affirmed Ramos and Compean's convictions for assault with a dangerous weapon, assault with serious bodily injury, use of a firearm in the commission of a crime of violence, and deprivation of rights under color of law. But the court reversed the agents' convictions on several counts of tampering with an official proceeding. Of course, as the court notes, the vacation of the sentences won't have a whole lot of practical effect on the remand for resentencing, because the 924(c)'s accounted for ten years of the eleven- and twelve-year sentences that the agents received.

Nevertheless, there's a couple of things in the opinion worth highlighting. First is the court's extensive discussion of the ins-and-outs of immunity agreements and the tension that can arise between a defendant's Sixth Amendment right to call and cross-examine witness, and a witness's right to invoke his Fifth Amendment right not to provide testimony against himself. Keep it in mind if you need a primer on the basics of immunity agreements.

Second, the court held that the term "official proceeding," for purposes of 18 U.S.C. § 1512, "does not apply to routine agency investigations of employee misconduct." (Hence the reversal of the obstruction convictions.) Instead, "'official proceeding' is consistently used throughout § 1512 in a manner that contemplates a formal environment in which persons are called to appear or produce documents. Thus, in all the instances in which the term 'official proceeding' is actually used in § 1512, its sense is that of a hearing rather than simply any investigatory step taken by an agency." (cites omitted). Now you know.

Fives Affirm 548-Month Sentence for First-Time Offender, But Criticize Government for Jacking Sentence So High By Stacking 924(c)'s

United States v. Looney, No. 06-10605 (5th Cir. June 23, 2008) (per curiam) (Reavley, Jolly, Garza)

Five-hundred forty-eight months. That's the sentence fifty-three year-old, first-time offender Mary Beth Looney received after a jury found her guilty of conspiracy and substantive meth crimes, as well as a couple of 924(c)'s. Why so high? As the court explains,

[b]ecause of the way the indictment was stacked by the prosecutor, Ms. Looney was subject to mandatory minimum terms of imprisonment for forty years (ten years for the drug conspiracy and possession with intent to distribute counts, five consecutive years for the first gun count, and twenty-five consecutive years for the second gun count). Although thirty years of her sentence can be attributed to possessing guns in furtherance of her methamphetamine dealing, there is no evidence that Ms. Looney brought a gun with her to any drug deal, that she ever used one of the guns, or that the guns ever left the house.

(The extra sixty-eight months were evidently the result of various Guidelines calculations, as the court refers to this as a within-Guidelines sentence.)

Looney appealed her sentence, raising three arguments. First, she argued that the sentence was procedurally unreasonable, because the district court treated the Guidelines as mandatory and failed to provide an adequate statement of reasons for the sentence. The court of appeals disagreed. It pointed to the written statement of reasons, which recited "that the Guidelines were 'advisory only.'" It also found the district court's apparently minimal statement of reasons sufficient, citing the passage from Rita opining that little explanation is required for a within-Guidelines sentence. "And since Ms. Looney did not make any argument [that hers was an atypical case warranting a below-Guidelines sentence], the district court did not need to explain why it did not find a non-Guideline sentence necessary."

Second, Looney argued that her sentence violated the Eighth Amendment because it was grossly disproportionate to her crimes. The court rejected this argument as well, which is not surprising given the Supreme Court's Eighth Amendment jurisprudence. The court nevertheless added that "although we consider Ms. Looney’s sentence to be unduly harsh for someone who has no previous conviction of any sort, [i]t is for Congress to ameliorate the result of application of[statutory mandatory minimum sentences] if it deems it too harsh." (quotation marks and citation omitted).

Third, Looney argued that one of the 924(c)'s should have been dismissed. One count was based on possession of two guns in furtherance of the conspiracy to PWID meth, and the other was based on possession of the same two guns in furtherance of the PWID. Looney argued that "she cannot be sentenced for two § 924(c) gun offenses when one of the predicate offenses is conspiracy to commit crime X and the other offense is just crime X." Unfortunately, the Fifth Circuit held otherwise in United States v. Privette, 947 F.2d 1259 (1991).

Having decided to affirm Looney's sentence, the court took the opportunity to editorialize on a particularly heavy-handed exercise of prosecutorial discretion:

We have carefully considered all of Ms. Looney’s challenges to her sentence and can find no basis upon which to vacate any portion of it. As we have noted, Ms. Looney was subject to a mandatory minimum sentence of forty years -- essentially determined by Congress. Although Congress established the mandatory minimum terms of imprisonment, and further provided that the firearms counts must be served consecutively, it is the prosecutor’s charging decision that is largely responsible for Ms. Looney’s ultimate sentence. Instead of charging Ms. Looney with two separate § 924(c) offenses, the prosecutor might well have charged her with only one, which would have avoided triggering the twenty-five-year mandatory, consecutive sentence for the second firearm count. The prosecutors also could have chosen to charge Ms. Looney with the drug offenses and requested a two-level enhancement under the Sentencing Guidelines based on the involvement of firearms with the offenses. Instead, the prosecutor exercised his discretion -- rather poorly we think -- to charge her with counts that would provide for what is, in effect, a life sentence for Ms. Looney.

We do not question the authority -- or the wisdom -- of Congress’s decision to punish severely individuals who possess weapons in furtherance of drug dealing. Nor do we in any way minimize the seriousness of Ms. Looney’s offenses. Moreover, there is nothing legally improper about the prosecutors’ charging decisions with respect to Ms. Looney, nor about the practice of confecting an indictment that would provide for the largest mandatory sentence. Nevertheless, we must observe that the power to use § 924(c) offenses, with their mandatory minimum consecutive sentences, is a potent weapon in the hands of the prosecutors, not only to impose extended sentences; it is also a powerful weapon that can be abused to force guilty pleas under the threat of an astonishingly long sentence. For example, a defendant who sincerely and fervently believes in his innocence, and who has witnesses and other evidence that support his claim of innocence, could easily be pressured into pleading guilty under a plea agreement that eliminates the threat -- rather than face the possibility of life imprisonment based on a prosecutor’s design of an indictment that charges and stacks mandatory minimum consecutive sentences. We merely observe that the possibility of abuse is present whenever prosecutors have virtually unlimited charging discretion and Congress has authorized mandatory, consecutive sentences. We trust that the prosecutors in this Circuit are aware of the potency of this weapon and its potential for abuse, and that they exercise extreme caution in their use of it, all in the interests of justice and fairness.

The opinion also includes the court's rejection of Mr. Looney's appeal of the denial of his suppression motion. That discussion doesn't break any new ground, so I won't summarize it here. But keep it in mind if you're looking for a quick summary on the law concerning challenges to search warrants based on false statements in the supporting affidavits.

Possession of Even Large Amount of Controlled Substance Isn't §2L1.2 "Drug Trafficking" If Statute Has No Intent-to-Distribute Element

United States v. Lopez-Salas, No. 06-41637 (5th Cir. Jan. 3, 2008; revised Jan. 30, 2008) (per curiam) (King, Barksdale, Dennis)

Lopez-Salas picks up where Arce-Vences v. Mukasey left off. Arce-Vences, as you'll recall, is the case from last month holding that simple possession of even a large quantity of a controlled substance is not an aggravated felony under Lopez v. Gonzales. The court essentially rejected the idea that the amount of drugs can be used as a proxy for an intent to distribute if the statute of conviction lacks such an element. Although Arce-Vences involved the "drug trafficking" portion of the "aggravated felony" definition, its holding looked to be equally applicable to various and sundry drug offense definitions scattered about the Sentencing Guidelines and the U.S. Code. But we no longer have to rely on Arce-Vences when it comes to the "drug trafficking" definition applicable to the 12- and 16-level enhancements in guideline §2L1.2, because now we have Lopez-Salas for that.

At issue here was Lopez's prior North Carolina conviction for conspiring to transport between 100 and 2000 pounds of marijuana under N.C. Gen. Stat. § 90-95(h). The statute, like similar statutes from other states, does not include an intent-to-distribute element; instead, it imposes progressively higher penalties based on the amount of the drug possessed or transported, effectively presuming an intent to distribute from the large drug quantity.

The Government argued that because the state statute presumes an intent to distribute, it's a §2L1.2 drug trafficking offense. The court disagreed, joining the majority side of a circuit split on this issue.

The Eleventh Circuit agrees with the Government. It has held that a court isn't limited to examining the elements of the prior offense when making the "drug trafficking" determination, so an effective presumption of an intent to distribute, like the one created by the North Carolina statute, makes the offense "drug trafficking." Otherwise, say the Elevens, the guideline would produce anomalous results.

Three other circuits---the Sixth, Ninth, and Tenth---have held otherwise. Like the Fifth Circuit, those courts use the Taylor categorical approach and refer only to the elements of a prior conviction when determining whether the offense constitutes §2L1.2 drug trafficking. And if there's no intent-to-distribute element, then the offense doesn't fit within the drug trafficking definition. The potentially anomalous results from this approach cannot "justify a departure from the ordinary standard of review." (Lopez-Salas found Judge McConnell's opinion for the Tenth Circuit in United States v. Herrera-Roldan "particularly persuasive" on this question.)

So the court agrees with the majority and holds that Lopez's conviction under § 90-95(h) isn't a §2L1.2 drug trafficking offense. But then the court goes out of its way to point out that the Guidelines are only advisory, and that Booker and Gall give a district court latitude to impose a non-Guidelines sentence when the circumstances warrant it. And hint-hint:

We have previously held that “[a] defendant’s criminal history is one of the factors that a court may consider in imposing a non-Guideline[s] sentence.” Smith, 440 F.3d at 709. Indeed, in United States v. Tzep-Mejia, 461 F.3d 522, 526-28 (5th Cir. 2006), we upheld an upward variance in a non-Guidelines sentence for a past conviction without regard to whether the prior offense “technically” qualified as a crime of violence under § 2L1.2(b)(1)(A)(ii).

True enough (although the sentence in Tzep-Mejia was arguably a downward variance). But don't forget that sauce for the goose is sauce for the gander. A sentencing court can also consider the relatively minor nature of a prior conviction that "technically" qualifies as drug trafficking---as in the case of an addict who sells to support his own habit and picks up a distribution conviction for selling a tiny quantity to an undercover cop---and vary downward on that basis.

Simple Possession of Even Large Quantitites of Drugs Is Not an Aggravated Felony (or a Drug Trafficking or Controlled Substance Offense)

Arce-Vences v. Mukasey, No. 06-60033 (5th Cir. Dec. 21, 2007) (Jolly, Higginbotham, Prado)

First, some background for those of you who aren't familiar with the Texas controlled substance scheme: Texas has no statute that include the elements of possession of marihuana with the intent to distribute it. It does for other controlled substances, but not for marihuana. Instead, there's a statute prohibiting delivery of marihuana, and a separate one criminalizing simple possession of marihuana, with penalties increasing in tandem with the amount of marihuana delivered or possessed.

Arce had a prior Texas conviction for possession of between 50 and 2000 pounds of marihuana. The question here is whether that's an "aggravated felony" under our old friend 8 U.S.C. § 1101(a)(43).

The answer: no. The court observed that under the Supreme Court's decision in Lopez v. Gonzales, "to constitute an aggravated felony . . . a prior state offense must either involve some sort of commercial dealing or be punishable as a federal felony under the Controlled Substances Act." Arce's prior conviction for simple possession, even of 50 to 2000 pounds of marihuana, doesn't pass either test. Simple possession doesn't involve commerical dealing, and "[e]ven though possession of a large amount of drugs may support a conviction for the federal felony of possession with intent to distribute, simple possession is only a misdemeanor under federal law." And although the opinion doesn't mention it, that's exactly what the Supreme Court suggested in Lopez (see 127 S. Ct. 625 nn.4, 10 & accompanying text).

But don't make the mistake of thinking that Arce-Vences is limited to the § 1101(a)(43) aggravated felony definition. Its holding---that simple possession of a large quantity of a drug is still just simple possession---should also apply to other drug offense definitions that exclude simple possession: §2L1.2 ("drug trafficking offense"), §4B1.2 ("controlled substance offense"), and 18 U.S.C. §924(c)(2) ("drug trafficking crime"). Arce-Vences should also put to rest any lingering concerns about the reasoning in the since-withdrawn panel opinion in United States v. Gutierrez-Bautista, which held that a state drug statute encompassing simple possession of more than 28 grams of methamphetamine, and incongruously captioned "trafficking," was categorically a §2L1.2 DTO because the statute essentially treated drug quantity as a proxy for an intent to distribute. The replacement opinion in Gutierrez-Bautista relied on entirely different reasoning to support the enhancement in that case, so Arce-Vences is the controlling authority on this issue.

Entrapment Burdens, 924(c) Carrying-In-Relation-To Sufficiency, and Chain of Custody

United States v. Smith, No. 06-40809 (5th Cir. Mar. 9, 2007) (Davis, Stewart, Godbey)

Smith was convicted of possession of methamphetamine with intent to distribute, and carrying a firearm during and in relation to a drug trafficking crime. He raised several issues on appeal, all of which the court rejected.

Entrapment
Smith attempted to pursue an entrapment defense at trial. In support of that defense, he proffered the testimony of two witnesses who would apparently have described some of the government's investigatory tactics in the case (although the exact nature of the proffered testimony is not clear from the opinion). The district court excluded the testimony on relevancy grounds, and refused Smith's requested jury instruction on entrapment.

The court of appeals found no abuse of discretion on either point, because Smith never made a prima facie showing of entrapment. To properly raise an entrapment defense, the defendant bears the burden of "showing that he lacked the predisposition to commit the crime . . . ." "Once this showing is made, 'the burden shifts to the government to prove beyond a reasonable doubt that the defendant was disposed to commit the offense prior to first being approached by government agents.'" Slip op. at 3 (citation omitted). The proffered testimony went only to the government's conduct, rather than Smith's predisposition, so he wasn't entitled to present the testimony or to have the jury instructed on entrapment.

Sufficiency on the 924(c) Count
Smith's 924(c) convcition for using or carrying a firearm during and in relation to a drug trafficking offense was based on a gun that was underneath the passenger seat of the car Smith was driving at the time of the drug transaction that formed the basis of the PWID count. "Smith [argued] that the weapon must have been both transported in a vehicle and readily accessible in order for 'carry' liability to be sufficiently proven." Slip op. at 4.

The court disagreed, holding that carry liability can be based on either transportation or accessibility during and in relation to the drug crime. It went on to conclude that even if accessibility was required, the gun was at least as accessible as it was in other cases in which the court has sustained carry liability. Finally, the court held that Smith carried the weapon "in relation to" the drug offense because 1) "[t]he gun at issue here obviously could have been used for protection if Smith felt it necessary[,]" and 2) the CI testified that he'd seen Smith carry the gun during other drug transactions, "indicating that Smith regularly carried a firearm for protection." Slip op. at 7.

Chain of Custody
Smith argued that the district court erred by admitting a DEA lab report without first requiring the government to establish the chain of custody (i.e., that the substance tested was the same one seized from his car).

The court found no error in the admission of the evidence. It pointed out that when a defendant challenges the authenticity of the government's evidence, all that the government must do is present prima facie evidence of authenticiy. Once the government does that, it's in the jury's hands. And "[a]ny break in the chain of custody goes to the weight of the evidence, not it's admissibility." Slip op. at 7. Because the government presented enough evidence to make the preliminary showing of authenticity (testimony of officer who seized drugs, officer who took drugs to chemist, and the chemist), the district court did not abuse its discretion in admitting the drugs or the lab report.

Indictment Failed to Charge a 924(c), But Court Declines to Correct Plain Error

United States v. McGilberry, No. 04-60701 (5th Cir. Feb. 21, 2007) (Smith, Benavides, Prado)

McGilberry was initially charged just with being a felon in possession of a firearm. A week before trial, the Government hit him with a superseding indictment that added an 18 U.S.C. § 924(c)(1) count alleging McGilberry "knowingly possess[ed] a firearm . . . during and in relation to a drug trafficking crime." Slip op. at 2. "The instructions allowed the jury to convict on this second charge only if it found that McGilberry 'knowingly carried a firearm during and in relation to [his] alleged commission of the crime of possession of cocaine base with intent to distribute.' The jury convicted McGilberry on both counts." Id. at 3.

McGilberry appealed, arguing that the indictment failed to charge a 924(c) offense. Because McGilberry failed to challenge the indictment in the distirct court, the court of appeals reviewed for plain error. The court held that there was indeed error that was plain because the Government had played mix-and-match with the elements of two different offenses in 924(c), resulting in an indictment that charged a combination of elements that don't constitute any offense:

Section 924 refers to someone who either “uses or carries a firearm . . . during and in relation to any . . . drug trafficking crime,” or someone “who, in furtherance of any such crime, possesses a firearm.” 18 U.S.C. § 924(c)(1)(A). When the conduct charged is possession of a firearm, the appropriate standard of participation is “in furtherance of” a crime. However, if the defendant uses or carries a firearm, the participation standard is “during and in relation to” a crime. Here, the indictment erroneously combined the “possession” prong of the statute with the “during and in relation to” prong, thereby failing to list the essential elements of any criminal conduct.

Slip op. at 4 (citation omitted). However, the court also held that the plain error did not affect the fairness, integrity, or public reputation of the proceedings, for two reasons. First, "the evidence that McGilberry used or carried the firearm in question was 'essentially uncontroverted.'" Id. at 8 (citation omitted). Second, the district court correctly instructed the jury on the elements of carrying a firearm during and in relation to a drug trafficking crime.

Which brings up the second issue raised by McGilberry, namely his argument that the district court constructively amended the indictment with its instruction to the jury that it must find that he carried the firearm in order to find him guilty. The court reviewed this issue, too, for plain error. It held that even if there was error, any error did not seriously affect the fairness, integrity or public reputation of the proceedings because the court's instruction narrowed the grounds for conviction by requiring a finding of carrying the firearm rather than merely possessing it, and the instruction was otherwise a correct statement of the elements of a 924(c) offense.