Rehearing En Banc on Whether 18 U.S.C. § 16(b) Is Unconstitutionally Vague

United States v. Gonzalez-Longoria, No. 15-40041, 2016 WL 537612, at *1 (5th Cir. Feb. 10, 2016) (Jolly, Costa; Higginson dissenting)

A divided panel held that 18 U.S.C. § 16(b) is unconstitutionally vague.  After examining the Johnson factors, the majority determined:  

Section 16's standard is imprecise in all the ways that the ACCA's standard was imprecise; in each case, however, it is arguably at least slightly less imprecise. The ACCA's standard referenced a confusing list of examples; § 16's text references no examples at all. The ACCA's standard encompasRehses a broad scope, as it considers post-offense conduct; so does § 16's standard, though its scope may be at least slightly limited by Leocal. The ACCA had occasioned judicial disagreement; so has § 16, though less. Comparing § 16's standard to the ACCA's standard, all we can say with confidence is that § 16's standard is imprecise, although not quite as imprecise as the ACCA's standard. 

Our course forward is clear, however, upon considering that Johnson was not a case at the very margins of vagueness and non-vagueness. Johnson did not hold that the ACCA's standard represents a minimum bar for precision; that is, Johnson did not hold that any standard slightly more precise than the ACCA's is acceptably precise. To the contrary, Johnson held that the ACCA's standard was so imprecise that the Court was justified in departing from stare decisis. Presumably, therefore, a marginally more precise standard could be problematically vague. Section 16's standard is that marginally more precise—yet still imprecise—standard.

Thus, considering each of the arguments and nuances brought to our attention, we hold that § 16 is unconstitutionally vague because, at bottom, § 16 requires courts both to imagine an ordinary/archetypical case and then to judge that imagined case against imprecise standard. Under Johnson, this means that § 16 is unconstitutionally vague, and we so hold.

On the Court’s own motion, a majority of the circuit judges voted to rehear this case en banc.  Oral argument is tentatively scheduled for the week of May 23, 2016.  Stay tuned.

Export Statute, 18 U.S.C. § 554, Is Divisible; Modified Categorical Approach Applies to Statutes that Refer to Other Statutes and Regulations

US v. Franco-Casasola, No. 12-60977 (5th Cir. Oct. 23, 2014) (Owen, Southwick, Graves)

Franco-Casasola was convicted under the export violation statute, 18 U.S.C. § 554(a), for buying, receiving, or concealing “merchandise, articles and object”—to wit: five semi-automatic pistols—knowing they were intended for export contrary to the Arms Export Control Act, 22 U.S.C. § 2778(b)(2), and the International Trafficking in Arms Regulations, 22 C.F.R. §§ 121.3, 123.1, and 127.1.  The question is whether § 554(a) is divisible such that a court can look to the elements of those arms export and trafficking statutes and regulations to determine whether Franco-Casosola’s conviction is an aggravated felony.  If § 554(a) is indivisible, the conviction would not be an aggravated felony.

A divided panel finds that § 554 is divisible and that, under the modified categorical approach, Franco-Casasola’s conviction is the aggravated felony of illicit trafficking in firearms.  Section 554, in part, makes it unlawful to fraudulently or knowingly buy, receive, conceal, or facilitate the transportation, concealment or sale of  “any merchandise, article, or object” from the United States “contrary to any law or regulation of the United States.” 

The panel substitutes this published decision for an unpublished one, attempting to explain Descamps in a manner that supports its finding that § 554 is divisible.  The majority essentially finds that the elements of Franco-Casasola’s conviction included unlawful exportation of defense articles, which the majority finds to be illicit trafficking in firearms.  The majority recognizes that it has “gone one step further than the Supreme Court has had to so far” in terms of the modified categorical approach but attests that it has “not strayed from the path it has marked.”

Judge Graves, in dissent, criticizes the majority’s analysis and casts its “one step” as a giant leap.  Simply put, Judge Graves finds that the phrase “any law or regulation of the United States” is not an “explicitly finite list” as required by Descamps to apply the modified categorical approach.  Further, since § 554(a) prohibits buying, selling, and other activities regarding “merchandise, article[s], or object[s],” the conviction cannot be narrowed to illicit trafficking in firearms.  He also disagrees with the majority’s conclusion that the elements of the “law or regulation of the United States” cited in the indictment would necessarily be elements of the § 554(a) offense. 

No Realistic Possibility that Texas Possession With Intent to Distribute Was Not an Aggravated Felony or § 2L1.2 DTO

United States v. Teran-Salas, No. 13-40884 (5th Cir. Sept. 15, 2014) (Davis, Smith, Clement)

The panel acknowledges that a defendant can be convicted under the Texas possession with intent to distribute (“PWID”) statute, Texas Health and Safety Code section 481.112(a), for conduct that would not qualify as a federal drug trafficking offense (“DTO”).  In other words, Texas PWID is broader than a federal DTO.  Texas PWID includes possession with intent to dispense, which includes administering a controlled substance in the presence of a practitioner.  This is different than the administering encompassed by the federal DTO definition of dispensing, which applies only to the administration of a controlled substance pursuant to a practitioner’s lawful order.  See 21 U.S.C. § 802(10).

Even though Texas PWID does not have as an element the administration of a controlled substance pursuant to a practitioner’s lawful order, the panel applies the modified categorical approach to narrow Teran-Salas’ offense to possession of more than four grams of cocaine with intent to deliver.  (The panel does not explain how this is consistent with Descamps.) 

Applying a “common-sense approach,” the panel holds that, “based on the elements of his conviction, Teran-Salas does not establish a realistic probability that Texas would prosecute his crime under an ‘administering’ theory in a way that does not also constitute either ‘dispensing’ or ‘distributing’ under the federal sentencing guidelines.”  Instead, the panel believes Teran-Salas only establishes “a theoretical possibility that the Texas statute criminalizes conduct that would not qualify as a [DTO, since] there is not a realistic probability that Teran-Salas was prosecuted for engaging in medical care or research that involved administering cocaine in amounts greater than four grams.”

The panel affirms the 16-level enhancement and also favorably cites unpublished decisions that made similar decisions with regard to an Illinois drug trafficking statute (United States v. Ruiz Sanchez, No. 12-40199, 2014 WL 2925157, at *1 (5th Cir. June 30, 2014) (per curiam) (unpublished)) and a Washington statute (United States v. Villeda-Mejia, 559 F. App’x 387, 389 (5th Cir. 2014) (per curiam).

Reckless NY Aggravated Criminal Contempt Conviction is Aggravated Felony

United States v. Sanchez-Espinal, No. 13-40714 (5th Cir. Aug. 6, 2014) (Stewart, Wiener, Costa)

Sanchez-Espinal challenged the 8-level enhancement imposed on his illegal reentry conviction.  The district court found that his conviction in New York for Aggravated Criminal Contempt, N.Y. Penal Law § 215.52(1), was a crime of violence under 18 U.S.C. § 16(b) and therefore an aggravated felony pursuant to 8 U.S.C. § 1101(a)(43)(F).  Section 16(b) provides that a felony conviction is a crime of violence if, “by its nature, [it] involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

“A person is guilty of aggravated criminal contempt when . . . in violation of a duly served order of protection . . . he or she intentionally or recklessly causes physical injury or serious physical injury to a person for whose protection such order was issued.”  N.Y. Penal Law § 215.52(1).  Sanchez-Espinal’s charging document charged his mens rea as both intentionally and recklessly.

The panel sets the stage by emphasizing that a § 16(b) crime of violence does not require the risk of the use of physical force to arise in every instance; it just requires a strong probability that the application of physical force during the commission of the crime will occur.  The panel reasons that, even if committed recklessly, the defendant must have “knowingly flout[ed] a court order to violate § 215.52(1)” thereby “increas[ing] the likelihood of force in the commission of aggravated criminal contempt.”  A protective order is issued in New York after a victim’s complaint or the commission of a “family offense,” which refers to many offenses including harassment and strangulation.  Therefore, this offense “naturally involve[s] a person acting in disregard of the risk that physical force might be used against another in committing [the] offense.”  See Leocal v. Ashcroft, 543 U.S. 1, 10 (2004).  (Although, one can easily imagine a decision reaching the opposite result and stating that “[i]n no ‘ordinary or natural’ sense can it be said that a person risks having to ‘use’ physical force against another person in the course of [violating a protective order] and causing [serious physical] injury.”)

Sanchez-Espinal also argued on appeal that he was actually convicted of Criminal Contempt, N.Y. Penal Law § 215.51, and that the Government had not presented sufficient evidence to prove that he was convicted of § 215.52 or to narrow his conviction to § 215.52(1).  Since he did not preserve these issues below, the panel addresses these arguments on plain error review.  The panel finds that the state court felony complaint, the state court information, and the state court Uniform Sentence & Commitment supported a finding that he was convicted of § 215.52.  Since the language of the information closely tracked the language of § 215.52(1), the panel finds the district court did not err in finding that he was charged and convicted of violating § 215.52(1). 

Florida Delivery of Cocaine Categorically Not an Aggravated Felony Because Mens Rea Is Affirmative Defense Instead of Element

Sarmientos v. Holder, No. 13-60086 (5th Cir. Feb. 12, 2014) (Reavley, Prado, Owen)

Sarmientos is the Fifth Circuit’s Valentine’s Day gift to immigration and criminal defense attorneys.  It’s also a nice reminder to check all of the elements of a conviction when using the categorical approach and that the categorical analysis applies to the “least of the acts criminalized.” 

Florida delivery of cocaine, Florida Statute § 893.13(1)(a)(1), did not require that the prosecution prove beyond a reasonable doubt that the defendant knowingly delivered cocaine.  Rather, the defendant could raise an affirmative defense that he lacked knowledge of the illicit nature of the controlled substance. 

Sarmientos argued before the immigration judge that, since the Florida statute lacked the federal mens rea requirement, his conviction was not categorically an aggravated felony.  The IJ rejected that argument and found that Sarmientos was ineligible for cancellation of removal.  Sarmientos appealed to the Board of Immigration Appeals, and the BIA affirmed the IJ’s decision.  On appeal to the Fifth Circuit, the panel reverses, citing the recent Supreme Court decisions of Moncrieffe and Descamps.

So, when undertaking the categorical analysis, keep an eye out for elements that a state statute turns into an affirmative defense.  The panel clearly rejects the Government’s argument that an affirmative defense is sufficient for a federal/generic element that must be found beyond a reasonable doubt.

NY Misdemeanor Sexual Abuse of a Minor is an “Aggravated Felony” for § 2L1.2

United States v. Ramirez, No. 13-10473 (Sept. 23, 2013) (Stewart, King, Prado)

In sentencing Ramirez for his illegal reentry, the district court applied an 8-level increase pursuant to U.S.S.G. § 2L1.2 after determining that Ramirez’s 2004 misdemeanor conviction for third-degree sexual abuse of a fifteen-year-old girl, which carried a maximum penalty of three months’ imprisonment, was an aggravated felony.  The court sentenced him to 22 months, which was within the advisory guideline range of 21-27 months.  Without the 8-level enhancement, his range would have been 2-8 months.  Ramirez appealed.

First, the panel found that the statute of conviction—New York third-degree sexual abuse—is divisible because lack of consent in New York can be based on several different predicates, including incapacity to consent because the victim is less than 17.  Next, the panel concluded that the criminal information establishes that Ramirez’s conviction was for sexual abuse of a minor.  Then the panel analyzed whether his conviction merited an 8-level enhancement as an aggravated felony under § 2L1.2.

Section 2L1.2 defines “felony” as any offense punishable by imprisonment for a term exceeding a year but adopts for “aggravated felony” the definition provided in 8 U.S.C. § 1101(a)(43) without any durational limitation.  An aggravated felony includes “murder, rape, or sexual abuse of a minor.”  § 1101(a)(43)(A).  Subsection A does not have a durational limitation, unlike subsections F (crime of violence) or G (theft or burglary offense), which both require a term of imprisonment of at least one year.  Thus, the panel holds that misdemeanor sexual abuse of a minor for which a defendant is sentenced to less than a year of imprisonment is still an aggravated felony.

The panel, along with every circuit to have considered this issue, rejected Ramirez’s argument that a prior conviction must actually be a felony in order to be an aggravated felony.  It maintained that “aggravated felony” is a term of art that can include certain misdemeanors if those convictions otherwise meet one of the definitions listed in § 1101(a)(43).  Ramirez’s argument that such a result is inconsistent with the graduated structure of the Guidelines—“the Sentencing Commission could not have intended to assign a one-time misdemeanant, such as [Ramirez], more offense-level points than would be assigned to a three-time misdemeanant under § 2L1.2(b)(1)(E)—prompted the panel’s response that “[i]t appears as if this is precisely what the Sentencing Commission intended” since it incorporated the § 1101(a)(43) definition of aggravated felony into the § 2L1.2 guideline.

In short, the result doesn’t make common sense.  An aggravated felony does not have to be a felony at all, and Ramirez is now serving at least 14 more months on his illegal reentry conviction because of his prior conviction that carried no more than 3 months of imprisonment.  The panel assumes that Congress and the Sentencing Commission intended this result because of the nature of the offense: sexual abuse of a minor.  Whether they intended this result or not, the remedy for future defendants seems to lie with them—either redefining “aggravated felony” or delinking § 2L1.2 enhancements from § 1101(a)(43)—given the weight of case law against Ramirez’s arguments.

State Conviction for Possession with Intent to Distribute for No Remuneration Is Not Aggravated Felony

Moncrieffe v. Holder, No. 11-702 (Apr. 23, 2013) (Justice Sotomayor, majority)

Applying (and celebrating) the categorical approach, the Supreme Court held that a state conviction for possession with intent to distribute (for no remuneration) a small amount of marijuana does not constitute "illicit trafficking in a controlled substance" under section 1101(a)(43) of the Immigration and Nationality Act, and is thus not an aggravated felony subjecting a noncitizen to mandatory deportation and ineligibility for certain forms of discretionary relief.

The Court concluded:

This is the third time in seven years that we have considered whether the Government has properly characterized a low-level drug offense as "illicit trafficking in a controlled substance," and thus an "aggravated felony." Once again we hold that the Government’s approach defies "the ‘commonsense conception’" of these terms. Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 9) (quoting Lopez, 549 U. S., at 53). Sharing a small amount of marijuana for no remuneration, let alone possession with intent to do so, "does not fit easily into the ‘everyday understanding’" of "trafficking," which "‘ordinarily . . . means some sort of commercial dealing.’" Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 9) (quoting Lopez, 549 U. S., at 53–54). Nor is it sensible that a state statute that criminalizes conduct that the [Controlled Substances Act] treats as a misdemeanor should be designated an "aggravated felony." We hold that it may not be. If a noncitizen’s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, the conviction is not for an aggravated felony under the INA.
 

Here, Adrian Moncrieffe possessed 1.3 grams of marijuana, which was accepted as a "small amount." Because the meaning of "small amount" was not at issue, the Court did not define the term "small amount."

Justice Thomas, joined by Justice Alito, dissented.

Thanks to Jennifer Niles Coffin, Research & Writing Attorney for the FPD Sentencing Resource Counsel Project, for the summary. See the case page on scotusblog for more info.

Two Bites at the Apple: When Can the Government Rely on a Different Conviction for an Enhancement on Appeal?

United States v. Medina-Torres, No. 11-40656 (5th Cir. Dec. 21, 2012) (per curiam) (Davis, Smith, Dennis)

United States v. Vargas-Soto, No. 11-10835, 700 F.3d 180 (5th Cir. Oct. 24, 2012) (Benavides, Owen, Southwick)

These cases provide a glimpse into when the Fifth Circuit will allow the government to substitute a conviction that neither the PSR nor the district court relied upon in order to justify the sentencing range. In Vargas-Soto the panel permitted the government to supplement the record after oral argument so that it could rely on a different conviction to justify the § 1326(b) enhancement without deciding whether a Texas manslaughter conviction is an aggravated felony.

In light of Vargas-Soto (issued 10/25/12), the government petitioned for a panel rehearing in Medina-Torres (first opinion issued 11/1/12). In Medina-Torres, the panel held that the record lacked documents narrowing the theft conviction to be an aggravated felony. The panel remanded so that the district court could determine whether Medina-Torres’s forgery conviction would also count as an aggravated felony.  In its petition for rehearing, the government asked the panel to analyze the forgery conviction instead of remanding.

Distinguishing Medina-Torres from Vargas-Soto, the panel explains in the second opinion (issued 12/26/12) that the forgery argument 

is unsuitable to be addressed for the first time on appeal for two reasons: first, Medina-Torres’ former conviction was poorly documented in the appellate record, and, second, the government was relying on a novel theory of sentence enhancement, namely, that a defendant's prior conviction should qualify as an aggravated felony with a term of imprisonment of "at least one year" even if he or she was never sentenced to a full year in prison.

So, the lesson seems to be that the alternate conviction can be sufficient if the appellate record has Shepard documents and the alternate conviction does not raise any questions of first impression. Otherwise, like in Medina-Torres, the government can still have its second bite at the apple, but it will have to be on remand before the district court first.

One side note. The Vargas-Soto opinion purportedly relied on established law to substitute another prior conviction - evading arrest by use of a motor vehicle - for the enhancement. Fifth Circuit precedent establishes that evading arrest by use of a motor vehicle is a crime of violence under 18 U.S.C. § 16(b), which makes it an aggravated felony (+8). United States v. Sanchez-Ledezma, 630 F.3d 447, 451 (5th Cir. 2011), cert. denied, 131 S. Ct. 3024 (2011). So, Vargas-Soto would have been subject to the 20-year maximum even if his manslaughter conviction was not an aggravated felony. The Vargas-Soto opinion, though, seems to conflate the two definitions of "crime of violence," stating that his evading arrest conviction "would have been sufficient to support the same 16-level enhancement." Maybe Vargas-Soto gets the 16-level enhancement for some other reason, but it would not be because of the aggravated felony of evading arrest with a motor vehicle, which is not necessarily a "crime of violence" as defined in U.S.S.G. § 2L1.2.

Cert Grant: Is Filing a False Statement on a Corporate Tax Return an Aggravated Felony?

Today the Supreme Court granted certiorari in Kawashima v. Holder, No. 10-577, which presents this question:

Whether, in direct conflict with the Third Circuit, the Ninth Circuit erred in holding that Petitioners’ convictions of filing, and aiding and abetting in filing, a false statement on a corporate tax return in violation of 26 U.S.C. §§ 7206(1) and (2) were aggravated felonies involving fraud and deceit under 8 U.S.C. § 1101(a)(43)(M)(i), and Petitioners were therefore removable.

TX Fleeing by Vehicle Is Aggravated Felony, for Largely the Same Reason It's an ACCA Violent Felony

United States v. Sanchez-Ledezma, No. 10-40451 (5th Cir. Jan. 7, 2011) (Garza, Stewart, Haynes)

Recall that, in United States v. Harrimon, the Fifth Circuit found that evading arrest or detention by use of a vehicle, in violation of Texas Penal Code § 38.04(a), is a "violent felony" under the ACCA.  Specifically, Harrimon held that the Texas offense falls within the violent felony definition's residual clause, which reaches offenses that "involve[ ] conduct that presents a serious potential risk of physical injury to another[.]"  To satisfy that standard, an offense must be purposeful, violent, and aggressive, and present a degree of risk similar to that of the enumerated violent felonies (like arson).  Fleeing-by-vehicle fits the bill, so Harrimon held, because it involves an intentional act, flouting lawful authority is aggressive, and "the use of a vehicle . . . to evade arrest or detention typically involves violent force which the arresting officer must in some way overcome."

Which brings us to Sanchez-Ledezma, in which the court holds that Texas fleeing-by-vehicle is also an aggravated felony.  Specifically, it's a "crime of violence" under 18 U.S.C. § 16(b)—a definition incorporated in the aggravated felony definition—which reaches felonies that "involve[ ] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."  As you'll note, this definition is different from the ACCA's violent felony residual clause, focusing on the risk of force rather than the risk of injury.  Doesn't matter:

Sanchez-Ledezma argues that Harrimon does not expressly evaluate the risk that an actor would intentionally employ force in the course of committing a violation of section 38.04(b)(1)and focuses on the incidental risk of injury to bystanders rather than the risk of the intentional use of force. As the passage quoted above makes quite clear, that argument fails. We explained in Harrimon that the crime at issue in both that case and this “typically involves violent force which the arresting officer must in some way overcome” and “will typically lead to a confrontation with the officer being disobeyed, a confrontation fraught with risk of violence.” Our ultimate conclusion was that evading arrest with a vehicle met the standard for aggressiveness” under Begay, which we characterized as involving “offensive and forceful [behavior] . . . characterized by initiating hostilities or attacks.” These conclusions bear directly on the question of the risk of the use of physical force against a person in the course of committing the offense.

Evading arrest with a motor vehicle is, by the logic of Harrimon, a “crime of violence” for purposes of § 16(b), and therefore an “aggravated felony” for purposes of § 1101(a)(43)(F).

(cites to Harrimon omitted).
 
Note that the issue of whether fleeing-by-vehicle qualifies as an ACCA violent felony is currently before the Supreme Court in Sykes v. United States, which is being argued today.

California First-Degree Burglary is COV Under 18 U.S.C. § 16(b), and Therefore Aggravated Felony

United States v. Echeverria-Gomez, No. 09-50261 (5th Cir. Dec. 8, 2010) (per curiam) (Jolly, Higginbotham, Smith)

We know that burglary under Cal. Penal  Code § 459 is not generic "burglary" because it does not require that the entry be unlawful or unprivileged.  And for that reason, it does not trigger a 16-level COV enhancement under the illegal reentry guideline, §2L1.2.  But we also know that there's more than one way to skin a cat COV definition applicable to illegal reentry cases: 18 U.S.C. § 16, which is incorporated in the definition of "aggravated felony."  Does California burglary fit that one?

Yes and no.  It's not a COV under § 16(a) because it lacks a force element.  But it does qualify under § 16(b), which includes felony offenses "that, by [their] nature, involve[ ] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense[?]"  First-degree burglary does:

Read more »

Prior Illegal Reentry Was Aggravated Felony Where Judgment Listed § 1326(b)(2) as Statute of Conviction

United States v. Gamboa-Garcia, No. 09-50513 (5th Cir. Sept. 21, 2010) (Jones, Prado, Ozerden, D.J.)

One part of the "aggravated felony" definition doesn't get a lot of attention, perhaps because it seems superfluous. We're talking, of course, about 8 U.S.C. § 1101(a)(43)(O), which includes as an aggravated felony "an offense described in section 1325(a) or 1326 of this title committed by an alien who was previously deported on the basis of a conviction for an offense described in another" part of the aggravated felony definition. Superfluous or not, § 1101(a)(43)(O) gets its day in the sun in Gamboa-Garcia.

Gamboa pleaded guilty to illegal reentry. She had two prior convictions:

• 2001: accessory to murder in Montana;
• 2004: illegal reentry, with an enhancement for having been deported after committing an aggravated felony (the accessory to murder).

The PSR urged that the 2004 illegal reentry conviction triggered an 8-level aggravated-felony enhancement under U.S.S.G. §2L1.2(b)(1)(C). Gamboa ultimately received a sentence within the resulting advisory Guidelines range.

Gamboa appealed. She argued that her accessory-to-murder conviction was not an aggravated felony, meaning that her 2004 illegal reentry conviction was also not an aggravated felony under § 1101(a)(43)(O). Instead, Gamboa argued, she should have received only a 4-level "any other felony" enhancement under §2L1.2(b)(1)(D).

The court of appeals disagreed, holding that both of Gamboa's priors were aggravated felonies. Along the way, the court threw in some troubling dicta concerning a defendant's ability to challenge an enhancement that had also been applied in a prior, unrelated proceeding.

First, the troubling dicta. In response to Gamboa's argument, the government

note[d] that courts are generally not required to reconsider prior convictions. See, e.g., Talbott v. Indiana, 226 F.3d 866, 870 (7th Cir. 2000) (“When enhancing the sentences of repeat offenders, federal courts are entitled to treat prior convictions as what they are, rather than what defendants say they should have been”). Allowing such attacks would render § 1101(a)(43)(O) essentially meaningless by undermining the finality of such convictions, requiring courts repeatedly to reconsider arcane issues regarding prior convictions. Gamboa’s proffered interpretation makes no sense, because defendants had a right to counsel in the prior convictions and could avail themselves of professional advice and the appellate process to correct any infirmities. The government’s argument is essentially that sentencing under the guidelines is complicated, but it has not become a variation on the movie GROUNDHOG DAY (Columbia Pictures 1993).

Since Gamboa's argument didn't involve a collateral attack on either of her priors—only an argument as to the proper classification of those priors in a new, unrelated proceeding—it is hard to see how her challenge to a guideline enhancement would affect the finality of the prior convictions.  Nor is it clear what basis there would be for applying some sort of preclusion doctrine in this situation.  Let's hope that this part of the opinion is just a recitation of the Government's position, rather than an expression of the court's view.

Fortunately, the court found it unnecessary to take sides on that matter. Unfortunately for Gamboa, that was because her

inherent premise—that her Arizona conviction was not for an aggravated felony—is wrong on its face. The [Arizona] judgment states that she pled guilty to “violating Title 8, U.S.C. § 1326(a), Illegal Re-Entry after Deportation, with sentencing enhancement pursuant to Title 8, U.S.C. § 1326(b)(2), a Class C Felony offense, as charged in the Information.” Gamboa thus admitted that she had been removed “subsequent to a conviction for commission of an aggravated felony.” Her guilty plea expressly eliminates the interpretive question she raises here.  The district court did not err in relying on the District Court of Arizona’s determination that Gamboa’s 2001 conviction was an aggravated felony, and it properly characterized her 2004 illegal re-entry conviction based on the earlier conviction.

The court went on to address Gamboa's other prior:

Even if we assume, arguendo, that the district court should have reconsidered Gamboa’s 2001 conviction underlying her 2004 aggravated felony conviction, the error is harmless because Gamboa’s accessory to first degree murder conviction also qualifies as an aggravated felony under 8 U.S.C. § 1101(a)(43)(S).

And what does § 1101(a)(43)(S) include? "[A]n offense relating to obstruction of justice . . . for which the term of imprisonment [imposed] is at least one year."  And what does "obstruction of justice" mean?  The court deferred to the BIA's decision in In re Espinoza-Gonzalez, which held that an accessory-after-the-fact conviction under 18 U.S.C. § 3 constitutes obstruction.  "The elements of accessory after the fact under 18 U.S.C. § 3 are essentially the same as those of the Idaho accessory statute Gamboa was convicted of violating[,]" so her conviction was for an aggravated felony.

TX Injury to Child by Act Not 2L1.2 16-Level COV; No Invited Error Where Counsel Misunderstood Relevant Precedent

United States v. Andino-Ortega, No. 09-40498 (5th Cir. June 8, 2010) (Barksdale, Garza, Dennis)

Two important holdings in this appeal of an illegal reentry sentence. But first, the facts:

Andino had a prior Texas conviction for injury to a child (Tex. Penal Code § 22.04), for which the PSR hit him with a 16-level crime-of-violence enhancement. At sentencing, he asked for a downward variance on the basis that he thought he was only facing a 4-level any-other-felony enhancement for that offense. Defense counsel stated:

The predicate offense in this case was injury to a child. . . . There is case law that says that injury to a child by omission is not a crime of violence and would only garner a 4-level enhancement.

However, there is case law—[p]articularly, I’m looking here at Perez-Munoz v. Keisler, 507 F.3d 357 [5th Cir. 2007], which finds that if there—the injury to a child stems from an intentional act, then it definitely is a crime of violence. Your Honor, . . . my client’s position throughout has been that [the injury] was the result of an accident.

Now, the fact remains that he pled to the offense as charged in the indictment which charged an intentional offense. . . .

Andino got a 60-month within-Guidelines sentence, and challenged the 16-level enhancement on appeal.

Which brings us to the First Important Thing: The Government argued that defense counsel's statements at sentencing concerning the enhancement constituted waiver of the issue. In United States v. Fernandez-Cusco, the Fifth Circuit "concluded that [similar] statements did not rise to the level of waiver, but 'arguably' constituted invited error. In an abundance of caution, the court nonetheless reviewed for plain error." Which is what the court did here, too.

Although we recognize the factual similarity here—Andino-Ortega’s counsel acknowledged that the 16-level enhancement was proper—he did so on the basis of a misunderstanding of this court’s precedent. The statements regarding the propriety of the crime-of-violence enhancement do not constitute a waiver because they do not evidence an intentional and knowing relinquishment of a right. Counsel’s failure to object below because he did not recognize the argument now being made on appeal is not a waiver. Accordingly, we review for plain error.

(citations omitted).

And plain error it was, which is Important Thing 2d. Defense counsel was mistaken about Perez-Munoz because that case involved the COV definition in 18 U.S.C. § 16(b), which is different from the definition applicable to guideline §2L1.2's 16-level enhancement. Section 16(b) reaches felony offenses that involve a "substantial risk that physical force against the person or property of another may be used in the course of committing the offense." Guideline §2L1.2's COV definition, by contrast, asks whether force is an element of the offense. Not the same question, so Perez-Munoz isn't controlling. (Yes, the §2L1.2 definition also lists specific offenses that are crimes of violence regardless of whether they have a force element, but injury to a child isn't one of them.)

Also not controlling is United States v. Gracia-Cantu, which held that Texas injury to a child by omission is not a COV under 18 U.S.C. § 16(a). Although § 16(a) is identical to the force clause of §2L1.2's COV definition, Andino was convicted of injury by act, not omission.

So what is controlling? United States v. Vargas-Duran and United States v. Calderon-Pena. They held that an offense must necessarily require physical force to fall within the force clause, and that if any set of facts would support a conviction without proof of force, then force isn't an element of the offense. "For instance, an offense under [the Texas injury-to-a-child statute] can be committed by intentional act without the use of physical force by putting poison or another harmful substance in a child’s food or drink." So it's not a 16-level COV.

Birth In Philippines During Territorial Period Does Not Confer U.S. Citizenship

Nolos v. Holder, No. 08-60786 (5th Cir. July 9, 2010) (per curiam) (Jolly, Dennis, Jordan, D.J.)

Deriviative citizenship and a categorical approach/aggravated felony issue in the same opinion? You'll want to pay attention to this one.

Nolos asserts that he derives United States citizenship from his parents, who he claims became United States citizens at birth because they were born in the Philippines when the country was a United States territory. We have not previously decided this question. However, the Second, Third and Ninth Circuits have held that birth in the Philippines at a time when the country was a territory of the United States does not constitute birth “in the United States” under the Citizenship Clause, and thus did not give rise to United States citizenship. The courts of appeals explained that the term “United States” as it is used in the Citizenship Clause of the Fourteenth Amendment did not, without more, include “United States territories simply because the territories [were] ‘subject to the jurisdiction’ or ‘within the dominion’ of the United States.” In reaching their holdings, the courts found guidance from the Supreme Court’s Insular Cases jurisprudence on the territorial scope of the term “the United States” as used in the Citizenship Clause of the Fourteenth Amendment. The Insular Cases were a series of Supreme Court decisions that dealt with various challenges to duties on shipments from Puerto Rico to the United States mainland.

(cites omitted). Against this case law, Nolos,

relying on United States v. Wong Kim Ark, argue[d] that the Fourteenth Amendment codified the principles of the English common law that birth within a sovereign’s territory confers citizenship. On that basis, Nolos urges that his parents acquired United States citizenship at birth because the Philippines were under the dominion and control of the United States at the time of their births. But as have the Ninth and the Second Circuits before us, we decline to give Wong Kim Ark such an expansive interpretation. As the Second Circuit explained, the question of the territorial scope of the Citizenship Clause of the Fourteenth Amendment was not before the Court in Wong Kim Ark[, which addressed whether a child born in San Francisco to alien parents was a U.S. citizen.]

(cites omitted). The court concluded:

[W]e find the reasoning of our sister circuits persuasive and hold that “persons born in the Philippines during its status as a United States territory were not ‘born . . . in the United States’ under the Fourteenth Amendment.” Accordingly, given that Nolos’s parents did not acquire United States citizenship by virtue of their birth in the Philippines when it was a United States territory, Nolos could not have derived United States citizenship from them and is therefore removable if he is found to have been convicted of an aggravated felony.

As for the aggravated felony, Nolos had been convicted of theft under a divisible Nevada statute that reached both generic and non-generic theft. His information alleged one of the alternatives that was generic theft.

Nolos appears to suggest that the guilty plea agreement fails to indicate the prong of the statute to which he had pleaded guilty. But it states that Nolos pleaded guilty to theft under Nevada Revised Statutes § 205.0832, “as more fully alleged in the charging document.” Therefore, it incorporates by reference the more specific description of Nolos’s offense in the information . . . .

Second or Subsequent Simple Possession Not Aggravated Felony Unless Record of Conviction Shows It Was Based on Fact of Prior Drug Conviction

Carachuri-Rosendo v. Holder, No. 09-60 (U.S. June 14, 2010)

As with so many other common issues in our neck of the woods, you're no doubt familiar with this one if you regularly handle illegal reentry cases. Today the Supreme Court held, reversing a decision from the Fifth Circuit, "that second or subsequent simple possession offenses are not aggravated felonies under [8 U.S.C.] § 1101(a)(43) when . . . the state conviction is not based on the fact of a prior conviction."

How did we get here? You'll recall that the Supreme Court held a few years ago, in Lopez v. Gonzalez, that a state drug offense is not an aggravated felony unless it proscribes conduct that is punishable as a felony under the federal Controlled Substances Act. Simple possession is generally only a misdemeanor under 21 U.S.C. § 844(a), so it's not an aggravated felony. But § 844(a) also provides that a second or subsequent conviction is punishable as a felony, provided that the procedural requirements of § 851 are satisfied. So is a second or subsequent state simple possession conviction an aggravated felony? Some dicta in a Lopez footnote seemed to say so, and a circuit split propagated.

The Fifth Circuit below answered "yes," applying what it understood to be the "hypothetical" approach of Lopez.

Under this approach, as the Court of Appeals understood it,courts "g[o] beyond the state statute’s elements to look at the hypothetical conduct a state statute proscribes." Accordingly, any "conduct" that "hypothetically" "could have been punished as a felony" "had [it] been prosecuted in federal court" is an "aggravated felony" for federal immigration law purposes. In applying this hypothetical approach, the Court of Appeals did not discuss the §851 procedural requirements. Instead, it concluded that because Carachuri-Rosendo’s "conduct" could have been prosecuted as simple possession with a recidivist enhancement under state law—even though it was not—it could have also been punished as a felony under federal law. Thus, in the Court of Appeals’ view, his conviction for simple possession under state law, without a recidivist enhancement, was an "aggravated felony" for immigration law purposes.

So why was that wrong? It "ignores the text of the INA, which limits the Attorney General’s cancellation power only when, inter alia, a noncitizen 'has . . . been convicted of a[n] aggravated felony.' 8 U. S. C. §1229b(a)(3) (emphasis added). The text thus indicates that we are to look to the conviction itself as our starting place, not to what might have or could have been charged." And that means the inquiry is limited to the record of conviction; a court "cannot, ex post, enhance the state offense of record just because facts known to it would have authorized a greater penalty under either state or federal law."

But what about that "hypothetical" approach?

We never used the term "hypothetical" to describe our analysis in [Lopez]. We did look to the "proscribe[d] conduct" of a state offense to determine whether it is "punishable as a felony under that federal law." But the "hypothetical approach" employed by the Court of Appeals introduces a level of conjecture at the outset of this inquiry that has no basis in Lopez. It ignores both the conviction (the relevant statutory hook), and the conduct actually punished by the state offense. Instead, it focuses on facts known to the immigration court that could have but did not serve as the basis for the state conviction and punishment. As the Sixth Circuit has explained, this approach is really a "‘hypothetical to a hypothetical.’" Not only does the Government wish us to consider a fictional federal felony—whether the crime for which Carachuri-Rosendo was actually convicted would be a felony under the Controlled Substances Act—but the Government also wants us to consider facts not at issue in the crime of conviction (i.e., the existence of a prior conviction) to determine whether Carachuri-Rosendo could have been charged with a federal felony. This methodology is far removed from the more focused, categorical inquiry employed in Lopez.

There's other reasons for the Court's holding, as well:

• The "procedural requirements [of § 851] have great practical significance with respect to the conviction itself and are integral to the structure and design of our drug laws." They allow prosecutors a measure of discretion, and many states have similar enhancement provisions that can only be invoked at the prosecutor's insistence. "Were we to permit a federal immigration judge to apply his own recidivist enhancement after the fact so as to make the noncitizen's offense 'punishable' as a felony for immigration law purposes, we would denigrate the independent judgment of state prosecutors to execute the laws of those sovereigns."
• "[I]t seems clear that the Government's argument is inconsistent with common practice in the federal courts. It is quite unlikely that the 'conduct' that gave rise to Carachuri-Rosendo's conviction would have been punished as a felony in federal court."
• Lenity: "[A]mbiguities in criminal statutes referenced in immigration laws should be construed in the noncitizen's favor. And here the critical language appears in a criminal statute."

But what about that Lopez footnote?

Our decision today is not in conflict with this footnote; it is still true that recidivist simple possession offenses charged and prosecuted as such "clearly fall" within the definition of an aggravated felony. What we had no occasion to decide in Lopez, and what we now address, is what it means to be convicted of an aggravated felony. Lopez teaches us that it is necessary that the conduct punished under state law correspond to a felony punishable under the Controlled Substances Act to be an aggravated felony under §1101(a)(43)(B). But it does not instruct as to whether the mere possibility that conduct could be—but is not—charged as an offense punishable as a felony under federal law is sufficient.

While the opinion is pretty clear—to be an aggravated felony, the alien must have been convicted of recidivist possession, as shown by the record of conviction—it did leave open a significant question:

Indisputably, Carachuri-Rosendo’s record of conviction contains no finding of the fact of his prior drug offense. Carachuri-Rosendo argues that even such a finding would be insufficient, and that a prosecutorial charge of recidivism and an opportunity to defend against that charge also would be required before he could be deemed "convicted" of a felony punishable under the Controlled Substances Act. In the absence of any finding of recidivism, we need not, and do not, decide whether these additional procedures would be necessary.

So that's still out there.

One last point: you may have noticed that Carachuri-Rosendo was an immigration case. But it should apply equally to criminal cases. The Supreme Court has noted that terms that apply in both immigration and criminal cases should be interpreted the same way in both contexts. And the Fifth Circuit readily agreed that Lopez—also an immigration case—applied to the illegal reentry statute and sentencing guideline. Carachuri-Rosendo should be no different.

State Felon-In-Possession Offense is Aggravated Felony, Despite Lack of Interstate Commerce Element

Nieto Hernandez v. Holder, No. 09-60261 (5th Cir. Dec. 30, 2009) (King, Davis, Haynes)

In short:

Nieto argues that the BIA erred in finding that his firearms conviction under [Texas Penal Code] § 46.04(a) was an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(E)(ii), which defines “aggravated felony” as including an offense “described in” 18 U.S.C. § 922(g)(1). Nieto argues that his firearms conviction was not an offense described in 18 U.S.C. § 922(g)(1) because TPC § 46.04(a) does not contain an interstate commerce element. We hold that state felon-in-possession offenses, such as TPC § 46.04(a), need not have an interstate commerce element in order for the offense to be an offense “described in” 18 U.S.C. § 922(g)(1).

In long:

Section 1101(a)(43)’s “penultimate sentence” supports the BIA’s interpretation that jurisdictional elements, such as § 922(g)(1)’s interstate commerce element, are not necessary for an offense to be an “aggravated felony” as “described in” § 922(g)(1). In its “penultimate sentence,” § 1101(a)(43) states that “[t]he term [aggravated felony] applies to an offense described in this paragraph whether in violation of Federal or State law.” Section 1101(a)(43)’s penultimate sentence plainly evidences Congress’s intent that an offense constitute an aggravated felony under § 1101(a)(43)(E) regardless of whether the offense falls within the jurisdiction of the states or the federal government. Because § 922(g)(1)’s interstate commerce element is simply an element that ensures federal jurisdiction, finding that such an element is necessary for a state offense to be one that is “described in” § 922(g)(1) would undermine Congress’s evident intent that jurisdiction be disregarded in applying this definition of “aggravated felony.”

The text of § 1101(a)(43) also shows that Congress intended more than a negligible number of state firearm offenses to be encompassed within § 1101(a)(43)(E)(ii)’s definition of “aggravated felony,” and “interpreting the jurisdictional element of § 922(g) as essential for a state offense to qualify as an aggravated felony would” undermine that intent. Section 1101(a)(43)’s “penultimate sentence” shows that “Congress clearly intended state crimes to serve as predicate offenses for aggravated felonies,” and the fact that Congress “used the looser standard ‘described in’ for [§ 1101(a)(43)(E)], rather than the more precise phrase ‘defined in’ used elsewhere in [§1101(a)(43), demonstrates] that Congress ‘wanted more than a negligible number of state [firearms] offenses to count as aggravated felonies.’” Interpreting § 922(g)(1)’s interstate commerce element “as essential for a state offense to qualify as an aggravated felony” would violate Congress’s intent to include more than a “negligible number” of state offenses under § 1101(a)(43)(E)(ii), “because state firearms[statutes] would ‘rarely, if ever’ [contain an interstate commerce element and convictions under such statutes would rarely, if ever] specify whether the commerce element was met.”

(cites omitted). Because the elements of the Texas FIP offense are identical to the federal FIP offense, sans interstate commerce, the Texas offense is an aggravated felony.

Indicidentally, in addition to relying on cases from other circuits, the opinion adopts the reasoning of an earlier unpublished Fifth Circuit decision that confronted the issue in the criminal context: United States v. Garza, 250 F. App'x 67, No. 06-20922 (5th Cir. 2007) (per curiam).

A Practice Guide to Aggravated Felony Issues in the Wake of Nijhawan

The Immigrant Defense Project and National Immigration Project of the National Lawyer's Guild have prepared a paper that you may find useful: The Impact of Nijhawan v. Holder on Application of the Categorical Approach to Aggravated Felony Determinations (June 24, 2009). In it you'll find:

• a discussion of the background, reasoning, and holding of Nijhawan,
• strategies for defending aliens facing fraud charges,
• ways to use Nijhawan to limit the reach of other aggravated felony categories (intriguingly, the paper argues that the Fifth Circuit's position on the subsequent-simple-possession-as-aggravated-felony issue is inconsistent with Nijwahan), and
  
• a handy appendix setting out the likely analytical approach (categorical vs. circumstance-specific) for each aggravated felony listed in 8 U.S.C. § 1101(a)(43).

Link via Bender's Immigration Daily.

Taylor/Shepard Categorical Approach Not Applicable to All Aggravated Felonies, Some Require "Circumstance-Specific" Approach

Nijhawan v. Holder, No. 08-495 (U.S. June 15, 2009)

Remember that circuit split over whether the Taylor/Shepard categorical approach applies to 8 U.S.C. § 1101(a)(43)(M)(i), which includes as an "aggravated felony" "an offense that . . . involves fraud or deceit in which the loss to the victim or victims exceeds $10,000[?]" The split is no more, having been resolved by the Supreme Court in Nijhawan v. Holder.

The question, as the Court framed it, was whether the phrase "loss to the victim or victims exceeds $10,000" refers to a generic crime (the categorical reading), or to "the specific way in which an offender committed the crime on a specific occasion" (the circumstance-specific reading). "If the first, we must look to the statute defining the offense to determine whether it has an appropriate monetary threshold; if the second, we must look to the facts and circumstances underlying an offender's conviction."

Justice Breyer, writing for a unanimous Court, began by noting that one of the rationales for the Taylor categorical approach is a practical one: by limiting the inquiry to the offense elements and certain judicial documents, the approach avoids the difficultly in trying to determine the exact factual basis for a conviction in a later proceeding.

The Court then compared the ACCA's "violent felony" definition—the statute at issue in Taylor—to the "aggravated felony" definition as a whole. The language in the ACCA—element of force, specific offenses, conduct presenting a risk of injury—all refer to generic crimes. And so do some portions of 1101(a)(43): murder, rape, sexual abuse of a minor, illicit trafficking in a controlled substance, illicit trafficking in firearms or destructive devices, and offenses described in particular statutes. "More importantly, however, the 'aggravated felony' statute differs from ACCA in that it lists certain other 'offenses' using language that almost certainly does not refer to generic crimes but refers to specific circumstances." For example:

• 1101(a)(43)(N) and (P) refer to generic offenses, but contain exceptions when certain circumstances are present, circumstances that aren't elements of the generic crimes. "Thus if the provision is to have any meaning at all, the exception must refer to the particular circumstances in which an offender committed the crime on a particular occasion."
• 1101(a)(43)(K) also refers to specific statutory offenses, but they are only aggravated felonies "if committed for commercial advantage." Only one of the listed statutes refers to "commerical advantage." "Thus, unless the 'commerical advantage' language calls for circumstance-specific application, the statute's explicit references to [other statutes] would be pointless."
• 1101(a)(43)(M)(ii) includes offenses "described in" 26 U.S.C. § 7201, but only if "the revenue loss to the Government exceeds $10,000." As § 7201 does not have a loss-amount element, this provision would be pointless "unless the 'revenue loss' language calls for circumstance-specific application.

So which one is (a)(43)(M)(i): a reference to a generic crime, or to "specific circumstances in which the offense was committed[?]" The latter. Why?

• The language: "In which" can refer to the circumstances in which the offense was committed, rather than just the elements. And the parallel structure to (M)(ii) suggests it should be read the same way as that provision.
• Anti-superfluity: Most federal fraud statutes have no loss-amount element, and those that do have thresholds other than $10,000. And even if Congress intended (M)(i) to apply almost exclusively to state offenses, there are only eight of those in which the $10,000 would have effect under a categorical approach.

Nijwahan argued alternatively that, even if the categorical approach doesn't apply to (M)(i), the Court "should nevertheless borrow from Taylor what that case called a 'modified categorical approach[,]'" which would limit the immigration court to examining the jury findings and judicial documents sanctioned by Taylor and Shepard. "To authorize any broader examination of the prior proceedings, petitioner says, would impose an unreasonable administrative burden on immigration judges and would unfairly permit him to be deported on the basis of circumstances that were not before judicially determined to have been present and which he may not have had an opportunity, prior to conviction, to dispute."

Close, but no cigar, said the Court. The modified categorical approach was developed for a different purpose: to determine which elements underlay a conviction when the offense could have been committed in both generic and non-generic ways. [Not sure why that cuts against Nijhawan's argument.] Also, unlike Taylor et al., we're dealing here with an immigration case, where the evidentiary standard is "clear and convincing," rather than "beyond a reasonable doubt."

These considerations, [together with a few other features of immigration proceedings], mean that petitioner and those in similar circumstances have at least one and possibly two opportunities to contest the amount of loss, the first at the earlier sentencing and the second at the deportation hearing itself. They also mean that, since the Government must show the amount of loss by clear and convincing evidence, uncertainties caused by the passage of time are likely to count in the alien's favor.

Okay, I can sense some nervousness in the crowd. We know that statutes which have both immigration and criminal application should generally be interpreted the same way in both cases. "So, what about 1326's?", you ask. "Can the 20-year maximum in § 1326(b)(2) be triggered by a loss-amount finding made for the first time at the illegal reentry sentencing, on a clear-and-convincing standard?" Yes and no. The Court addressed this matter:

[Nijhawan] says that a circumstance-specific approach to subparagraph (M)(i) could create potential constitutional problems in a subsequent criminal prosecution [under § 1326(b)(2)], because the loss amount would not have been found beyond a reasonable doubt in the prior criminal proceeding. The Government, however, stated in its brief and at oral argument that the later jury, during the illegal reentry trial, would have to find loss amount beyond a reasonable doubt, . . . eliminating any constitutional concern.

Now this brings up an intriguing question: does Nijhawan offer additional support for a narrow reading of the Almendarez-Torres prior-conviction exception to the rule of Apprendi? Given the quoted paragraph, as well as the constitutional concerns identified in Taylor and Shepard, can we say that the prior-conviction exception is limited to the fact of conviction itself, and that any facts about the conviction that would be necessary to trigger a recidivist enhancement—such as those bringing it within the "aggravated felony" defintion—must be proven to a jury beyond a reasonable doubt or admitted by the defendant, either in the prior proceedings or in the proceeding in which the Government seeks to apply the enhancement? Or is that just a wordy way of stating the law as it already is? Discuss.

Second or Subsequent Simple Possession Conviction Not An Aggravated Felony If Committed Before First One Became Final

United States v. Andrade-Aguilar, No. 07-41132 (5th Cir. May 27, 2009) (Barksdale, Dennis, Elrod)

As you know, our circuit has held that a second or subsequent conviction for simple possession of a controlled substance can be an aggravated felony. (Other circuits disagree.) But the key word is "can." The second or subsequent possession conviction is only an aggravated felony if it was committed after the conviction for the first one became final. And—perhaps more importantly—not only does the Government have the burden of showing finality when it seeks application of an "aggravated felony" sentencing enhancement, but a record that is simply silent as to whether an appeal was taken will not carry that burden if the two priors are sufficiently close in time.

How do we get there? The term "aggravated felony" includes "drug trafficking crimes." In Lopez v. Gonzales, the Supreme Court held that the term "drug trafficking crime" means an offense punishable as a felony under the federal Controlled Substances Act (21 U.S.C. § 801 et seq.). Under 21 U.S.C. § 844(a), simple possession is generally only a misdemeanor. But it can be punished as a felony if committed after a prior conviction [for a controlled substance offense] has become final[.]" A conviction is "final," for purposes of § 844(a), when it is no longer subject to direct review or to discretionary review by any court. And the Government, as the party seeking application of a sentencing enhancement, bears the burden of showing finality.

In this case, illegal reentrant Andrade had two prior Texas simple possession convictions. Andrade committed the second one 115 days after the sentence for the first one was imposed. The second judgment was stamped "appeal waived," but the first one was apparently silent on that point.

In claiming that the [first] conviction was final, the Government cites: (1) the judgment of conviction itself, (2) the district court’s mistaken initial conclusion that that appeal had been stamped “Appeal waived,” and (3) Texas Rule of Appellate Procedure 26.2(a). The Government also complains generally of the difficulty of proving a negative (a defendant’s failure to appeal). We find none of these arguments persuasive.

First, . . . the judgment of conviction is not clear enough on the controlling question to be probative (much less dispositive): indeed, it contains no suggestion of waiver or finality whatsoever. Second, as noted above and ultimately conceded by the Government at oral argument, the relevant conviction was not stamped “Appeal waived.” Third, Texas Rule of Appellate Procedure 26.2(a) provides merely that the defendant has 30 days from the date of sentencing to file a direct appeal. Unclear from the record, however, is whether the period for both direct and discretionary review had expired. . . . [T]o show finality, the Government was required to show by a preponderance of the evidence both that (1) Andrade’s [first] conviction was “no longer subject to examination on direct appeal” . . . , and (2) that it was not subject to discretionary review by any court. However, the Government failed to establish either of these two facts. Accordingly, the Government failed to prove by a “preponderance of the relevant and sufficiently reliable evidence” that Andrade’s [first] conviction was final and thus that his [second] conviction . . . qualified for the enhancement imposed.

The court notes that "[i]n some cases, the passage of a substantial period of time may itself satisfy these requirements." But it goes on to say that in this case,

the gap between the prior . . . conviction, at which sentence was imposed, and the subsequent . . . offense was 115 days. If Andrade timely filed a direct appeal of his [first] conviction, that conviction may not have been final at the time of his [second] offense. Even if any direct appeal was unsuccessful, a petition for discretionary review filed before the [second] offense with the state court—or with the U.S. Supreme Court, if denied by the state court—may have been timely.

What this boils down to, it seems, is that a record that is simply silent as to whether a defendant pursued a direct or discretionary appeal of the first conviction is not enough to show there was in fact no appeal taken.

Some more goodness from the opinion: the district court's erroneous treatment of Andrade's second simple possession conviction as an aggravated felony was not harmless. The wrong range was 33 to 41 months, the correct range (at least on the record developed below) was 24 to 30 months, and Andrade got 34 months. He "therefore received at least four months more than the longest sentence under the harshest Guidelines range for which he may have been eligible. The district court did not indicate any departure or basis for departure from a Guidelines sentence." Hence harm.

The Next SCOTUS ACCA Case? Fives Hold TX Fleeing-By-Vehicle Is ACCA Violent Felony, Deepening Circuit Split On Issue

United States v. Harrimon, No. 08-10690 (5th Cir. May 14, 2009) (Jones, Wiener, Benavides)

James, Begay, Chambers, Johnson, . . . Harrimon? Looks like we got us a convoy, as Harrimon contributes to yet another circuit split over whether a particular offense falls within the Armed Career Criminal Act's "violent felony" definition.

The felony offense in question: evading arrest or detention by use of a vehicle ("fleeing by vehicle" to its friends), in violation of Texas Penal Code § 38.04(a). The elements: "'(1) a person, (2) intentionally flees, (3) from a peace officer, (4) with knowledge he or she is a peace officer, (5) the peace officer is attempting to arrest or detain the person, (6) the attempted arrest or detention is lawful, and (7) the person uses a vehicle while . . . in flight.'"

The Government conceded that the offense lacks a force element; that it isn't burglary, arson, or extortion; and that it doesn't necessarily involve the use of explosives. Leaving the question: "whether it 'otherwise involves conduct that presents a serious potential risk of physical injury to another' under the 'residual' provision of clause (ii) of § 924(e)(2)(B)." Per Begay and Chambers, that's actually a two-part question that asks whether the offense in question is roughly similar to the enumerated violent felonies—burglary, arson, and extortion—"both (1) in kind [meaning purposeful, violent, and aggressive], and (2) in degree of risk posed (which must be at least a serious potential risk of physical injury to another)." Harrimon answers "yes" on both counts.

As for the in-kind similarity, the court

conclude[d] that fleeing by vehicle is purposeful, violent, and aggressive. First, it is purposeful: unlike the DUI statute at issue in Begay, fleeing by vehicle requires intentional conduct. Further, it is aggressive. “As commonly understood, aggressive behavior is offensive and forceful and characterized by initiating hostilities or attacks.” Fleeing by vehicle requires disregarding an officer’s lawful order, which is a clear challenge to the officer’s authority and typically initiates pursuit. This active defiance of an attempted stop or arrest is similar to the behavior underlying an escape from custody, which, as the Supreme Court noted in Chambers, is “less passive” and “more aggressive” than that likely underlying failure to report. Fleeing by vehicle is also violent: the use of a vehicle, usually a car, to evade arrest or detention typically involves violent force which the arresting officer must in some way overcome. As the Seventh Circuit observed in Spells, not only the arresting officer or officers, but also pedestrians and other motorists are subject to this force. Further, fleeing by vehicle “will typically lead to a confrontation with the officer being disobeyed,” a confrontation fraught with risk of violence.

(cites fled). As the court notes, this analysis is in line with that of the Fourth, Seventh, and Tenth Circuits, but contrary to an Eleventh Circuit decision—United States v. Harrison—involving a Florida statute similar to Texas's. Harrison "held that 'disobeying a police officer’s signal and continuing to drive on, without high speed or reckless conduct, is not sufficiently aggressive and violent enough to be like the enumerated ACCA crimes,' and that '[i]t is not the deliberate kind of behavior associated with violent criminal use of firearms.'" Harrimon declined to follow Harrison's lead, because "[t]o our minds, an offender’s willingness to use a vehicle to flout an officer’s lawful order to stop shows 'an increased likelihood' that the offender would, if armed and faced with capture, 'deliberately point the gun and pull the trigger.'" (quoting Begay)

Which brings us to the risk question. Noting James's proviso “that [not] every conceivable factual offense covered by a statute must necessarily present a serious potential risk of injury before the offense can be deemed a violent felony[,]" the court

ha[d] no difficulty concluding that, in the ordinary case, fleeing by vehicle poses a serious risk of injury to others. While Harrimon argues that fleeing by vehicle does not become dangerous until law enforcement interrupts the perpetrator, fleeing by vehicle, by definition, can only occur after an initial attempt by an officer to arrest or detain the perpetrator. “This disobedience poses the threat of a direct confrontation between the police officer and the occupants of the vehicle, which, in turn, creates a potential for serious physical injury to the officer, other occupants of the vehicle, and even bystanders.”

Moreover, while it is possible, as Harrimon argues, to be guilty of fleeing by vehicle despite obeying all traffic laws and later surrendering quietly, we think that, in the typical case, an offender fleeing from an attempted stop or arrest will not hesitate to endanger others to make good his or her escape. [citing James and the Tenth Circuit]

(some more cites fled). But wait, there's also data. The court cites a DOJ-funded study that found an incidence of .04 injuries per police pursuit. Which should weigh against a holding that flight-by-vehicle presents a serious potential risk of physical injury, right? Wrong. The court also cites a study by the U.S. Fire Administration finding that there are "roughly .009 injuries per arson." Thus, according to the court, the risk of injury presented by flight-by-vehicle is roughly similar to that presented by arson.

Assuming the court's understanding and use of those studies is correct—and I'm no statistician; haven't even played one on TV—then isn't the court effectively saying that by "serious potential risk of physical injury" Congress meant "even a vanishingly small risk of physical injury?" After all, .04 injuries-per-chase is practially zero, and that's an order of magnitude greater than the .009 injuries-per-arson. And if that's true, then there's really only one question to answer under the Begay/Chambers analysis isn't there? Because an offense is similar in kind to burglary, arson, or extortion—that is, a purposeful, violent, and aggressive offense—will always present a risk of injury at least as great as the virtually zero risk of injury posed by arson, won't it?

I suppose we'll just have to see how things play out in light of Harrimon. It'll also be interesting to see whether this case winds up as the next chapter in the Supreme Court's repeated efforts to explain how to apply the residual clause, a distinct possibility given the circuit split. (I'd like to see a cert grant if for no other reason than the "Who's-on-first?" comedy sure to arise at oral argument from having Harrison and Harrimon on opposite sides of the split.)

Finally, what effect will Harrimon have on the Fifth Circuit's upcoming revisitation of the UUV-as-aggravated-felony issue? Recall that the Supreme Court remanded three cases presenting that issue for reconsideration in light of Chambers, that the U.S. Attorney in the Southern District of Texas has taken the position in those cases that UUV is not an aggravated felony in light of Begay and Chambers, and that the Solicitor General has asked for a GVR in yet another case in light of that concession. Note also that Harrimon's similar-in-kind analysis is a lot like the reasoning underlying the Fifth Circuit's holdings in the UUV cases. Then again, the issue in those cases is whether UUV presents a substantial risk that force will be used, as opposed to a serious potential risk that injury will occur. Apples and oranges, or two peas in a pod? When it comes to waiting for the answer, you'll pay for the whole seat, but you'll only need the edge.