Circuit Split: Fourth Circuit Holds Government May Not Condition Motion for Third Acceptance Level on Appeal Waiver

United States v. Divens, No. 09-4967 (4th Cir. July 5, 2011) (Motz, Gregory, Shedd)

As you'll recall, the Fifth Circuit held in United States v. Newson that the Government may refuse to move for the third acceptance level under guideline §3E1.1(b) if a defendant refuses to enter a plea agreement containing an appeal waiver. Agreeing with the Ninth and Tenth Circuits, Newson held that the scope of the Government's discretion in this regard is the same as it is with motions for substantial assistance departures under §5K1.1.

Not so, says the Fourth Circuit in Divens. The text of §3E1.1 and its related commentary differ from that of §5K1.1.  The only discretion the Government has under §3E1.1(b) is in determining whether the defendant gave timely notification of his intention to plead guilty, such that it allowed the Government to allocate its resources efficiently and avoid having to prepare for trial. Conditioning a third-level motion on an appeal waiver is verboten.

The opinion notes that the First and Seventh Circuits share the Fifth Circuit's view, making the split at least 5 to 1.

They Say This Cat Tolentino's a Bad Mother— Shut Your Mouth! But I'm Just Talking 'Bout Tolentino! Then We Can DIG It!

As you can tell from the post title, today the Supreme Court dismissed as improvidently granted the writ of certiorari in Tolentino v. New York. As is usual with DIGs, the Court didn't explain the reason for the dismissal. But the oral argument transcript suggests a possibility: unanswered questions below.

Recall what happend here: Tolentino was pulled over by police, and arrested when the officers learned via a computer check of DMV records that his driver's license had been suspended. He sought to suppress the DMV records as a fruit of what he argued was an illegal traffic stop. The trial court denied the motion on the ground that DMV records aren't suppressible, a ruling upheld on appeal through the New York courts. The Supreme Court granted cert on this question: Whether pre-existing identity-related governmental documents, such as motor vehicle records, obtained as the direct result of police action violative of the Fourth Amendment, are subject to the exclusionary rule?

At oral argument, Justice Scalia quickly jumped in to ask counsel for Tolentino why he wanted to suppress the DMV records, rather than the officers' observations following the traffic stop.  Later, Scalia said, "What I'm saying is, you're getting at it from the wrong end. What should have been suppressed was the policeman's identification of the person who was driving the car." Justice Alito picked up on the same thing:

You want to suppress the knowledge that the police derived from the stop that Mr. Tolentino's license is suspended, and you would allow an exception to that only if there was attenuation. But why isn't the simpler solution to a case like this that you can't suppress the knowledge of matters that are in a government record, however you can suppress observations by the police on the scene that flow directly from the illegal stop?

A good question. Tolentino's counsel explained that in his motion to suppress he asked the trial court to suppress both the DMV records and the officers' observations at the scene of the traffic stop. The trial court, without holding a hearing, denied Tolentino's motion on the ground that DMV records are categorically not suppressible, and did not rule on whether the officers' observations were suppressible fruit of the traffic stop. That's apparently why the New York appeals courts didn't reach the question, either (if they were even aware of it).

Counsel for New York confirmed that account, and then argued that, under New York law, Tolentino had waived the issue of the officers' observations by pleading guilty without getting a ruling on that issue from the trial court. Of course, none of this was in the parties' briefing.  Then another bombshell: it turned out that none of the New York courts had reached the question whether the traffic stop was bad in the first place. That prompted Justice Ginsburg to ask,

May I ask you something about the practice in New York? I mean, there is an artificiality to this case because we are assuming that the stop was unlawful. . . . [T]he police said it was lawful, because the radio was blasting so loud. Why did this issue even -- the issue of "suppose it was unlawful" even come up, instead of the city or the county saying what the police stopped him for was a traffic violation, was perfectly legal? Why get to the constitutional question when the prosecutor brought into play the argument that this was a lawful stop?

Indeed, the prosecutor had argued that it was a good stop.  But remember that the trial court didn't hold a hearing on the motion, and as with the issue of the officers' observations, didn't reach the question of the stop's legality. Which Justice Alito found bewildering:

It does seem rather strange. That would have been, like, a 10-minute hearing. Why did you stop him? Well, he was playing the music too loud. Defendant testifies, I wasn't playing my music too loud. The trial judge says, Well, I believe you, or I believe you, and that's the end of the matter. It does seem really -- that's how things are done in trial court in New York City? You jump to these big constitutional issues and . . . .

(Earlier, Alito seemed taken aback by the notion, advanced by counsel for New York, that Tolentino was obligated to pester the trial court for a ruling on the suppressibility of the officers' observations in order to preserve that issue for appellate review.)

In rebuttal, Tolentino's counsel argued that he had not waived the issue of the officers' observations. Justice Sotomayor then asked, "[I]n what ways is it tied to the question presented about identity, which is the issue you sought cert on?" Counsel replied that the issue would be in play on remand.

So what do you think? DIG'ed because of a strange procedural history that didn't present the question that the justices seem to think should have been presented, and a basic question (the legality of the traffic stop) that should have been but never was passed on below?

Other oral argument highlights:

• An axe-related hypothetical: Justice Alito posing one in which police break into a house with an axe, find out that "Dagwood" lives there, and learn through a search of police databases that Dagwood "is responsible for all the drugs that come into this country, he's committed numerous acts of terrorism, he's a -- he's a serial killer, he's killed 50 people, we've been chasing him forever . . . ." Sounds like a job for John Shaft. Or James Bond.
• Another axe-related hypothetical, Lizzie Borden edition: Justice Breyer wondering what should happen if the police learn that, in addition to his driver's license being suspended, Tolentino is "wanted on 17 drug warrants and for 3 triple axe murders."
• Justice Kagan declaring: "I am Keyser Soze." (I could've sworn Kevin Spacey was Keyser Soze, but then again, I can't be sure of anything about that movie.)

Fives Take Side on Circuit Split, Hold That SORNA's Registration Requirement Did Not Become Applicable to Those with Pre-SORNA Convictions Until AG Issed Interim Rule Making SORNA Retroactive

United States v. Hoang, No. 09-30484 (5th Cir. Feb. 23, 2011) (Jones, Jolly, Garza)

So what's this case about?

Appellant Nam Van Hoang (“Hoang”) appeals from his conviction for failure to register pursuant to the Sex Offender Registration and Notification Act (“SORNA”). Hoang was convicted of a sex offense and registered as a sex offender under state law prior to the enactment of SORNA, which requires a sex offender to register in each jurisdiction where he resides and to keep his registration current. Section 2250 of Title 18 prohibits sex offenders who are required to register under SORNA from traveling in interstate commerce and knowingly failing to register. Hoang’s interstate travel took place after SORNA’s enactment but before the Attorney General issued an Interim Rule declaring SORNA applicable to all sex offenders whose underlying sex-offense convictions predate SORNA’s enactment. There is a split of authority among the courts of appeals as to whether SORNA’s registration requirements became effective to already-registered, pre-SORNA sex offenders (1) on the date SORNA was enacted, or (2) when the Attorney General issued the Interim Rule declaring SORNA retroactive. We hold that Hoang did not become subject to SORNA’s registration requirements until the Attorney General issued the Interim Rule. We reverse the judgment of the district court and remand for entry of an order of dismissal.

This is so, the court held, because of the plain text of 42 U.S.C. § 16913(d), the provision of SORNA that gave the Attorney General the discretion to make the retroactive-application decision.  The court went on to say that, to the extent that § 16913(d) is ambiguous, the rule of lenity commands the narrower interpretation.
 
Incidientally, this makes the circuit split 5-2.

Bare Offer to Sell Drugs Is Now Drug-Trafficking Offense Under Illegal Reentry Guideline; Still Not Plain Error to Apply Higher Guidelines In Effect at Time of Sentencing

United States v. Marban-Calderon, No. 09-40207 (5th Cir. Jan. 18, 2011) (Higginbotham, Smith, Elrod)

As you'll recall, the Fifth Circuit has in the past held that a Texas conviction for delivery of a controlled substance was not categorcially a "drug trafficking offense" under guideline §2L1.2, because the offense can be committed by a bare offer to sell drugs.  You'll also recall that the Sentencing Commission amended §2L1.2's "drug trafficking" definition in November 2008 to include offers to sell:

"Drug trafficking offense" means an offense under federal, state, or local law that prohibits the manufacture, import, export, distribution, or dispensing of, or offer to sell a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.

Marban-Calderon thus holds:

Following this change, a Texas conviction for delivery of a controlled substance—whether by active transfer, by constructive transfer, or by offer to sell—necessarily qualifies as a drug trafficking offense under the Sentencing Guidelines.

But wait, there's more: an ex post facto issue on which there's a circuit split, and an intriguing question raised by that 2008 amendment.
Read more »

Sixth Circuit Approves of Variances Based on Fast-Track Disparity, Bringing Circuit Split On Issue to 3-3

If you handle illegal reentry cases, you're well aware of the circuit split over whether a court in a non-fast-track district may vary from the advisory Guidelines range to temper the disparity caused by the availability of such programs elsewhere. The Fifth, Ninth, and Eleventh Circuits have said no. The First and Third have said yes. Professor Berman now reports that the Sixth Circuit, with its decision in United States v. Camacho-Arellano, No. 07-5427 (June 16, 2010), has joined the ranks of the yay-sayers, bringing the split to an even 3-3. Here's Camacho-Arellano's take:

The [Fifth, Ninth, and Eleventh] circuits distinguished Kimbrough by reading it as authorizing district courts to vary based on disagreements with Guidelines policy, not based on disagreements with congressional policy. Gomez-Herrera, 523 F.3d at 559; Gonzalez-Zotelo, 556 F.3d at 740–41; Vega-Castillo, 540 F.3d at 1239. We find this distinction unpersuasive. First, the idea that Congress believes the disparity is warranted derives from the PROTECT Act, but the Act “neither forbids nor discourages the use of a particular sentencing rationale, and it says nothing about a district court’s discretion to deviate from the guidelines based on fast-track disparity.” Rodríguez, 527 F.3d at 229; accord Arrelucea-Zamudio, 581 F.3d at 151. In effect, while Congress intended to create room for courts in fast-track jurisdictions to treat defendants in a certain manner, it did nothing to prohibit judges in non-fast-track districts from treating defendants the same way.

Second, to the extent that Congress impliedly communicated that the disparity was warranted, see, e.g., Gomez-Herrera, 523 F.3d at 562, that fact does not distinguish this case from Kimbrough. There, the government had argued that by enshrining the 100-to-1 ratio in the mandatory minimum sentences of the Anti Drug Abuse Act of 1986, Congress had implicitly endorsed the disparity in the Guidelines. The Court responded that “[t]he statute says nothing about the appropriate sentence within [the specified sentencing range], and we decline to read any implicit directive into that congressional silence.” Kimbrough, 552 U.S. at 103. The Court also rejected the contention that Congress had endorsed the Guidelines’ disparity by rebuffing a 1995 proposal by the Sentencing Commission to replace the 100-to-1 ratio with a 1-to-1 ratio. Id. at 105–06. In rejecting these arguments, “Kimbrough made pellucid that when Congress exercises its power to bar district courts from using a particular sentencing rationale, it does so by the use of unequivocal terminology.” Rodríguez, 527 F.3d at 230.

Third, even if Congress could be said to have endorsed some disparity between defendants in fast-track and non-fast-track districts, it has not endorsed the further disparity that is created by charge bargaining. In some districts, instead of (or in addition to) moving for a downward departure of up to four offense levels, prosecutors will dismiss certain charges in exchange for a guilty plea. See Arrelucea-Zamudio, 581 F.3d at 152 (describing these “alternative district-wide, early-disposition programs [that] operate outside the bounds of not only the Protect Act, but also Guidelines § 5K3.1”). Surely, judges in districts in which such charge bargaining is not routine for illegal reentry defendants would be justified in imposing reduced sentences based on the disparity created by this prosecutorial practice.

(paragraph breaks added).

The Supreme Court's gonna have to take this up soon. The split is entrenched, the arguments on both sides well-developed, and the two circuits with probably the largest volume of illegal reentry cases have weighed in (and if they're wrong, that means that—five years after Booker and three years after Kimbrough—potentially thousands of defendants aren't getting sentences that comply with 18 U.S.C. § 3553(a)).

No Categorical Rule for Deciding Whether (c)(1)(C) Sentence Was "Based On" Retroactively Reduced Guidelines Range for § 3582(c)(2) Purposes

United States v. Williams, No. 09-30778 (5th Cir. June 15, 2010) (per curiam) (Jolly, Smith, Owen)

If that post title sounds familiar to you, it's because the Fifth Circuit addressed the same issue several weeks ago in United States v. Garcia. So why another published opinion so soon? Perhaps because Williams presents a slightly different factual scenario.

Recall that in Garcia, the defendant reached a (c)(1)(C) agreement that limited the court to a sentence within a range bounded by a stipulated minimum and the high end of whatever the Guidelines range worked out to be. Noting a wooly circuit split over whether a sentence resulting from a (c)(1)(C) plea was "based on" the Guidelines, for purposes of 18 U.S.C. § 3582(c)(2), the court ultimately concluded that "answering that question requires that we examine the nuances of both the plea agreement and the sentencing transcript in each particular case." In so doing, the court concluded that Garcia's sentence was based on the Guidelines range.

Change the facts a little, and we have Williams, and a different result. Instead of giving the court a range to work with, the (c)(1)(C) agreement here specified a particular sentence: 192 months. After once again canvassing the relevant authority from other circuits, and applying Garcia, the court spake:

In this case, we need not adopt a categorical rule regarding whether sentences pursuant to Rule 11(c)(1)(C) plea agreements are in all cases “based on” the Guidelines. A review of the plea agreement, sentencing record, and applicable guidelines demonstrates that Williams’s sentence was not “based on” the subsequently amended crack-offense guidelines. Williams stipulated to a sentence of 192 months, whereas the guidelines range for his crime would have been 360 months to life. Even under the newly amended Guidelines, his sentencing range would be 324 to 405 months. Thus, Williams’s sentence was significantly lower than the then-existing guidelines range and is still significantly lower than the post-amendment guidelines range. Furthermore, the plea agreement never stated that the stipulated sentence depended on, or was even connected to, the applicable sentencing range. Likewise, a review of the sentencing transcript does not suggest that the district court based its decision on a guideline calculation. While the guidelines range may have affected the plea negotiations, we have never held that such a tenuous connection is sufficient to establish that a defendant’s ultimate sentence was in fact “based on” the Guidelines, as that term is used in § 3582(c). We decline to do so today. Therefore, the district court did not err when it found that Williams’s sentence was not subject to modification under § 3582(c).

But what if it had erred?

Even if Williams’s sentence were deemed to be “based on” the Sentencing Guidelines, and thus eligible for reduction under § 3582(c), the district court did not abuse its discretion in denying the motion for a reduced sentence. The policy statement accompanying § 3582(c)(2) states that “[i]f the original term of imprisonment imposed was less than the term of imprisonment provided by the guidelines range applicable to the defendant at the time of sentencing, a reduction comparably less than the amended guideline range . . . may be appropriate.” As we explained in United States v. Cooley, “[e]ven though the district court may grant a comparable sentence reduction, however, it is not compelled to do so.” The district court in the present case concluded that it did not have authority to reduce Williams’s sentence. However, the district court ruled in the alternative, as well, stating that even if it had authority to reduce the sentence, it would not do so because the “sentence of months is already significantly below his ‘modified’ range of 324–405 months, and there is no adequate reason why his sentence should be lowered further.” We agree. Williams identifies no convincing reasons why he is deserving of a sentence reduction. Therefore, the district court did not abuse its discretion in denying Williams’s motion for a reduced sentence.

An issue the opinion does not address: what if the district court had authority to do a full Booker resentencing, and did not realize it? Under existing Fifth Circuit law, the court did not have that authority. But don't forget that the Supreme Court has taken up the question.

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.

Sentence Resulting from (c)(1)(C) Agreement May or May Not be "Based On" a Retroactively Reduced Guidelines Range for § 3582(c)(2) Purposes

United States v. Garcia, No. 08-50458 (5th Cir. May 7, 2010) (per curiam) (Jones, Higginbotham, Elrod)

Garcia was charged with seven counts of distributing lots of cocaine and crack. He entered a (c)(1)(C) agreements providing that 1) he would plead guilty to two counts in exchange for dismissal of the remaining counts, and 2) the sentence would be at least 240 months.

The plea agreement also contemplated the sentencing guidelines, albeit with the 240 month minimum overlay. Paragraph 8 provided: “The parties agree to request the Court to consult with and take into account the United States Sentencing Guidelines and accompanying policy statements (‘the U.S.S.G.’) for the calculation of the Defendant’s sentence pursuant to 18 U.S.C. § 3553.” Paragraphs 10 and 15 discussed the possibility that the government would move for a downward departure from the sentencing guidelines. The government in paragraph 17, citing to U.S.S.G. § 3E1.1(b), promised to move for an additional point deduction from Garcia’s offense level as a “reward” for his timely plea. Finally, paragraph 19 declared that, besides the 240 month minimum, “[a]ll . . . sentencing issues . . . will be determined by the Court after the completion of a Presentence Investigation Report.”

The Guidelines range worked out to 210 to 262 months, which became 240 to 262 months under the terms of the plea agreement. "In short," the court puts it, "range was bounded on the bottom by the plea agreement and on the top by the guidelines." Garcia got 262 months.

Enter the 2007 retroactive reduction of the crack guidelines, which lowered Garcia's range to 168 to 210 months. "[I]n a continuing effort to honor the plea bargain, the district court determined the actual amended range to be 240 to 240 months, the agreed-to minimum sentenced. The district court granted Garcia’s motion and reduced his sentence to 240 months. Garcia appealed, urging that the district court could have gone lower."

A threshold issue: did the district court have jurisdiction to lower the sentence under § 3582(c)(2)? More specifically, is a sentence resulting from a (c)(1)(C) agreement "based on a sentencing range that has been subsequently lowered by the Sentencing Commission"? As you might imagine, that question has produced a split. Setser canvasses the authority from other circuits, which involves a bewildering array of slight factual differences.

Ultimately, none of these circuits dealt with a stipulated minimum sentence, so Garcia’s case is the wrong vehicle with which to enter this demolition derby. Here, we have no reason to pass on a plea with a specific sentence, or a maximum, or a range bounded on both ends by the guidelines. However, the caselaw—rife with inter- and intra-circuit disagreement—does teach that wooden rules will not do. The jurisdictional question is whether the sentence was “based on” the subsequently amended crack-offense guidelines, and answering that question requires that we examine the nuances of both the plea agreement and the sentencing transcript in each particular case[, following a path charted by the Seventh and Ninth Circuits].

Doing so, we conclude the district court sentenced Garcia based on the sentencing guidelines – just as the plea agreement provided. The parties stipulated to a minimum sentencing range irrespective of the guidelines. But the agreement allowed that the maximum point on Garcia’s range could derive from the guidelines if the high end of the guidelines range exceeded 240 months. It did, and the district court sentenced Garcia to 262 months based on its guidelines calculation. The able district judge expressly said as much: “I adopt . . . the application of the U.S. Sentencing Guidelines . . . .” Garcia qualified to move for a reduction.

Okay, so did the district court abuse its discretion by only reducing Garcia's sentence to 240 months? No:

Garcia’s agreement stipulated to a minimum sentence of 240 months, unmoored from any guidelines calculation. When the sentencing guidelines for crack offenses changed, bringing down the high end of Garcia’s range, his negotiated minimum stayed put. By modifying the sentence to 240 months, the district court gave Garcia the biggest reduction for which he was eligible.

Note that the court's holding renders irrelevant the Fifth Circuit's position that "[a] § 3582(c)(2) proceeding is not a full resentencing, so Booker and its bifurcated reasonableness review do not apply[,]" a proposition with which the Supreme Court may or may not agree.

Split Remains Over Whether Court May Order Federal Sentence to Run Consecutively to Not Yet Imposed State Sentence

United States v. Setser, No. 08-10835 (5th Cir. May 11, 2010) (Benavides, Stewart, Southwick)

May a district court order that the federal sentence it imposes run consecutively to an anticipated, but not yet imposed, state sentence? The answer is found in 18 U.S.C. § 3584(a). And that answer, per the Fifth Circuit's 1991 decision in United States v. Brown, is yes. Other circuits disagree. So does the Government. Yet Brown remains good law. But for how long? Here's what Setser has to say on the subject:

[T]here are only two ways in which Brown’s posture as binding precedent in this Court could change: 1) an intervening decision by the Supreme Court or 2) a superseding decision by this Court sitting en banc. The Supreme Court, to date, has issued no intervening decision. Further, this Court has recently declined the opportunity to reconsider Brown en banc.**

Footnote ** relates the backstory:

In United States v. Garcia-Espinoza, No. 08-10775, 2009 WL 1362199 at *1 (5th Cir. May 15, 2009) (unpublished), this Court rejected a defendant’s challenge to his consecutive sentence, holding that his “challenge is foreclosed by our prior precedent.” However, in light of the circuit split concerning a district court’s discretion to order a federal sentence to run consecutively to an undischarged state sentence, Judge Owen and Judge Dennis, in their joint concurrence, recommended that the Court revisit the Brown holding en banc. Id. at *2. Yet when Garcia-Espinoza filed a motion for rehearing en banc, “[n]o member of the panel nor judge in regular active service on the court . . . requested that the court be polled” on a rehearing en banc. As a result, the Court denied the defendant-appellant’s motion on April 13, 2009. Thus, given this Court’s recent refusal to reconsider Brown en banc, any future reversal of the Court’s decision in Brown is best left to the discretion of our Supreme Court.

Note that the Supreme Court recently denied two cert petitions presenting this issue.

Panel Breaks With Prior Panel Precedent; Holds Ex Post Facto Clause Does Not Apply to Guidelines Increases Post-Booker

United States v. Castillo-Estevez, No. 09-40096 (5th Cir. Feb. 9, 2010; rev'd Mar. 10, 2010) (Jones, Smith, Elrod)

See update below.

Here we have an instance of dueling panels. Castillo-Estevez holds that any error in the district court's application of the Sentencing Guidelines was not plain, despite the fact that there is controlling circuit precedent on the precise question at issue, and under that precedent the district court plainly erred.

The scenario: Castillo pleaded guilty to illegal reentry. He had a prior New York conviction for criminal sale of a controlled substance; that offense can be committed simply by an offer to sell; it does not require an actual sale. Under the 2007 Sentencing Guidelines in effect at the time Castillo committed the illegal reentry, an offer to sell a controlled substance was not a "drug trafficking offense" for purposes of the 12- or 16-level enhancements under §2L1.2. (In fact, it probably wasn't even an "aggravated felony" for purposes of the 8-level enhancement.) But under the 2008 Guidelines in effect at the time of Castillo's sentencing, an offer to sell was a §2L1.2 DTO (due to an expanded DTO definition). The district court applied the 2008 Guidelines, resulting in a higher range than would have applied under the 2007 Guidelines in effect at the time of Castillo's offense.

On appeal, Castillo naturally argued that this was an ex post facto violation, because he received a more severe sentence due to a guideline change that took effect after he had completed his offense. Unfortunately, Castillo raised this argument for the first time on appeal, resulting in plain error review.

Here's what the court said:

Castillo’s argument overlooks the Supreme Court’s subsequent decision in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), which rendered the sentencing guidelines merely advisory. In United States v. Rodarte-Vasquez, 488 F.3d 316 (5th Cir. 2007) (Jones, C.J., concurring), it was observed that the now-advisory guidelines should not raise ex post facto concerns because “the sentence imposed by the court need not be harsher under later guidelines than it would have been under the guidelines in effect when the offense was committed.” [Two circuits have agreed with that observation, two others have disagreed.]

We need not determine here whether ex post facto claims arising from the application of evolving sentencing guidelines are viable after Booker. Even if the district court’s application of the 2008 guidelines violated the ex post facto clause, the error would certainly not be “plain” in light of such post-Booker cases as Rodarte-Vasquez, Demaree, and Barton. To be “plain,” legal error must be “clear or obvious, rather than subject to reasonable dispute.” Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). See also United States v. Peltier, 505 F.3d 389, 391 n.3 (5th Cir. 2007) (“Plain error must be ‘error so obvious that our failure to notice it would seriously affect the fairness, integrity, or public reputation of [the] judicial proceedings and result in a miscarriage of justice.’”). Because the caselaw reveals a “reasonable dispute” regarding the ex post facto implications of retroactive application of the advisory guidelines, the district court’s error, if any, was not plain.

But the Fifth Circuit has already determined that ex post facto claims arising from the application of evolving sentencing guidelines are viable after Booker. In United States v. Austin, 479 F.3d 363—a pre-Rodarte-Vasquez decision reviewing a sentence imposed post-Booker—the court began its analysis by noting that,

Post-Booker, we continue to review the district court's interpretation of the Sentencing Guidelines de novo and its fact findings for clear error, although the ultimate sentence is reviewed for unreasonableness. When calculating a Guidelines sentencing range, a district court applies the Guidelines in effect at sentencing, unless the Guidelines in effect when the offense occurred would yield a lesser penalty. In such a case, to avoid ex post facto concerns, the court uses the Guidelines yielding the lesser penalty.

Later, applying that rule, Austin stated that "the offense level under the 2004 Guidelines is higher than under the 1998 Guidelines, and the 1998 Guidelines apply." The court went on to hold that the district court had incorrectly calculated the range under the older Guidelines, and even vacated the sentence on plain error review.

Thus, in light of Austin, the district court's application of more severe post-offense 2008 Guidelines in Castillo's case was not only error, but clear and obvious error. (It might very well meet the other requirements for reversal under plain error review, too.) And that should hold true even though there's a circuit split on the ex post facto question.

The opinion in Castillo-Estevez does not discuss or attempt to distinguish Austin, so there is no way to know for sure why the court did not find it controlling. (It also is not clear whether Castillo brought up Austin. The opinion says only that he relied on United States v. Kimler, 167 F.3d 889 (5th Cir. 1999), a pre-Booker decision.) In any event, because one panel may not overrule another (absent something like a statutory change or intervening Supreme Court case law), Austin should control over Castillo-Estevez.

3/10/2010 UPDATE: In an apparent response to a petition for rehearing en banc, the panel has issued a revised opinion that includes a footnote addressing Austin:

Our post-Booker decisions in United States v. Reasor, 418 F.3d 466 (5th Cir. 2005), and United States v. Austin, 479 F.3d 363 (5th Cir. 2007), do not alter our conclusion that the district court committed no plain error. Reasor is distinguishable. See Rodarte-Vasquez, 488 F.3d at 325 n.2 (Jones, C.J., concurring). Moreover, the court’s acknowledgment in Austin that retroactive guidelines application might pose ex post facto problems was dicta; ex post facto claims were not at issue on appeal because the lower court had applied the guidelines version yielding a lesser penalty. 479 F.3d at 366–67.

To be fair, Austin is a difficult read (unless you delight in reading discussions of loss-amount calculations in Medicare fraud cases). But it's hard to see how Austin's ex post facto analysis could be dicta. As near as I can tell, Austin argued that the district court should have applied the 2004 Guidelines in effect at the time of sentencing, rather than the 1998 Guidelines in effect at the time of his offense, because the loss calculation would have been lower under the later version. He also argued that the district court erred in not crediting certain funds against the loss amount (presumably under the 1998 Guidelines, since it appears that he arrived at a loss of $0 under his interpretation of the 2004 Guidelines even without this credit). The court of appeals:

1. acknowledged that when the Guidelines range is higher under the version in effect at the time of sentencing than under the version in effect at the time of the offense, the court must apply the earlier version "to avoid ex post facto concerns,"
2. rejected Austin's proposed interpretation of the applicable 2004 provisions (which would have resulted in a loss amount of $0),
3. applied the ex-post-facto clause to conclude that because "the offense level under the 2004 Guidelines is higher than under the 1998 Guidelines, . . . the 1998 Guidelines apply[,]" and
4. ultimately held that the district court incorrectly calculated the loss under the 1998 Guidelines.

Because the court necessarily had to confront the ex post facto issue to resolve the case, Austin's discussion of and application of the rule was not dicta and Austin should be controlling on the question unless and until the en banc Fifth Circuit or Supreme Court conclude otherwise. (Which may very well happen at some point, as there is a circuit split on the question.)

"Altered or Obliterated Serial Number" Defined for Purposes of §2K2.1(b)(4)

United States v. Perez, No. 08-40917 (5th Cir. Oct. 16, 2009) (Reavley, Smith, Dennis)

Have you ever wondered what it means for a firearm's serial number to have been "altered or obliterated" for purposes of guideline §2K2.1(b)(4)? The Fifth Circuit answers that question for the first time in Perez, adopting the reasoning of the Ninth Circuit's 2005 decision in United States v. Carter (which, surprisingly enough, happened to be the first time that any appellate court had interpreted the terms in the context of the guideline):

Based on its interpretation of the provision’s plain language, legislative history as well as earlier decisions interpreting “altered or obliterated,”the Carter court held in conclusion that “for purposes of Guideline § 2K2.1(b)(4), a firearm’s serial number is ‘altered or obliterated’ when it is materially changed in a way that makes accurate information less accessible.” Carter, 421 F.3d at 916. We agree with the Ninth Circuit’s reasoning and holding in Carter.

In this case, a serial number that "looked like someone 'tried to file [it] off,' as the district court found, or that . . . 'appeared to be altered and partially obliterated, as if somebody had attempted to scratch the numbers off,' as the PSR stated"—but which was apparently still legible, with effort—fit the bill.

Another thing worth mentioning from Perez: an apparent circuit split concerning the §2K2.1(b)(6) enhancement for possessing a firearm "in connection with another felony offense." Evidently, the Third, Sixth, and Seventh Circuits have held "that classifying an offense that arose from the same conduct as 'another felony offense' under U.S.S.G. § 2.K2.1(b)(6) renders the word 'another' superfluous." But as the court notes, "we have previously rejected the Third, Sixth and Seventh Circuits’ line of reasoning, as those decisions all specifically recognize." Oddly, the court goes on to hold that "Perez’s possession of the weapon as a convicted felon is sufficiently distinct from his discharging the weapon in violation of TEX. PENAL CODE § 22.05(b) & (e) (Vernon 2004) to warrant the enhancement under U.S.S.G. § 2K2.1(b)(6)." So maybe the supposed split isn't as clear-cut as it seems.

Third Circuit Weighs In On Circuit Split Over Fast-Track Variances; Disagrees With Fifth

For over a year now, there has been a circuit split over whether a district court may vary from the advisory Guidelines range due to georgraphic disparities created by the availability of fast-track departures in some districts, but not others. Our own circuit, in United States v. Gomez-Herrera, has held that not only are district courts not required to consider sentencing disparities created by differing fast-track policies around the country, but that it would be an abuse of discretion to do so. (Although there's potentially an argument that the Supreme Court's decision in Spears constitutes intervening Supreme Court precedent that abrogates Gomez-Herrera.) The First Circuit has decided otherwise, expressly disagreeing with Gomez-Herrera's reasoning.

As Professor Berman pointed out earlier this week, the Third Circuit has now weighed in on the matter: United States v. Arrelucea-Zamudio, No. 08-4397 (Sept. 14, 2009) (Sloviter, Ambro, Jordan). Siding with the First Circuit, Arrelucea-Zamudio points out a significant flaw in Gomez-Herrera:

Paradoxically, the Fifth Circuit Court case, Gomez-Herrera, 523 F.3d 554, which relied on the congressional policy rationale to differentiate the fast-track issue from Kimbrough, appears to have curtailed a district court’s sentencing discretion post-Kimbrough more than it had before that decision. The Court at first stated that it

"has never held that a district court may not consider and give effect to defendant’s argument for a reduced sentence on th[e] basis [of a fast-track disparity]. Rather our cases have only concluded that a district court is not required to factor in, when sentencing a defendant, the sentencing disparity caused by early disposition programs to prevent a sentence from being unreasonable."

Gomez-Herrera, 523 F.3d at 558 n.1 (internal quotations and citations omitted). Yet it went on to say that post-Kimbrough “it would be an abuse of discretion for the district court to deviate from the Guidelines on the basis of sentencing disparity resulting from fast track programs that was intended by Congress. . . . [This deviation] would result from an erroneous view of the law.” Id. at 563 n.4 (citation omitted). In light of Kimbrough, this statement strays from the standard set by the Supreme Court. In its sentencing cases post-Booker, the Court has been clear that a sentencing judge has discretion to impose a sentence grounded in the § 3553(a) factors regardless whether it varies from the Guidelines range. See, e.g., Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456 (2007); Gall, 128 S. Ct. at 597.

Which is not to say that the Third Circuit will allow district courts to vary willy-nilly on the basis of fast-track disparities: "A generalized argument to a district court that a defendant should be sentenced below the Guidelines range because of fast-track disparity is alone not sufficient to justify such a variance." That's because "[t]he fast-track disparity applies to a segment of immigration defendants that are unfortuitously prosecuted in non-fast-track districts (but would have qualified for fast-track treatment), whereas the crack/powder cocaine disparity applies to crack defendants across-the-board." Consequently, "[t]o justify a reasonable variance by the district court, a defendant must show at the outset that he would qualify for fast-track disposition in a fast-track district."

The Third Circuit's opinion notes that the Ninth and Eleventh Circuits have gone along with Gomez-Herrera, so we've got at least a 3-2 split on the issue. Perhaps the Supreme Court will decide it's time to step into the fray and resolve this split. There's no shortage of cert petitions presenting the issue.

Fives Address Issues Concerning Reasonableness Review and Plain Error In Course of Rejecting Various Challenges to Revocation Sentence

United States v. Whitelaw, No. 08-50346 (5th Cir. Aug. 19, 2009) (Davis, Owen, Haynes)

If the court imposes a term of imprisonment on revocation of supervised release, may it order that term to run consecutively to any other sentence, even though the sentence for the original offense—as required by the terms of the plea agreement—ran concurrently with an already-imposed state sentence? That question, and others concerning plain error and reasonableness review (including a circuit split!), are answered in Whitelaw.

The lengthy backstory:

Alan Whitelaw was convicted of theft of money in an amount exceeding $200,000 in state court and was sentenced to 60 years of imprisonment. Whitelaw subsequently pleaded guilty to federal bank fraud charges in the Southern District of Texas. While the same type of fraudulent conduct was the basis for both of Whitelaw’s convictions, the federal and state convictions involved different specific conduct, dates, and victims.

Although Whitelaw pleaded guilty to the federal charge without a written plea agreement, the Government made an oral agreement at rearraignment that it would recommend that Whitelaw’s sentence run concurrently with his state court sentence. The district court accepted the agreement as a plea agreement under FED. R. CRIM. P. 11(c)(1)(C), ruling that Whitelaw would be allowed to withdraw his guilty plea if it did not order that his sentence run concurrently with his state court sentence. The district court sentenced Whitelaw to 46 months of imprisonment, the sentence to run concurrently with his state court sentence, and five years of supervised release.

For reasons not explained in the opinion, Whitelaw was released from state prison after serving just five years of his sentence. He then began serving his federal supervised release term.

A little over three years later, Whitelaw was arrested on a revocation violation warrant. The Government then filed two motions to revoke Whitelaw's supervised release, the latter of which alleged six violations, including "committing the felony offense of theft of copper wire valued in excess of $1,000 or possession of stolen copper wire valued in excess of $1,000," lying to his probation officer about it (both orally and with forged documents), and technical violations.

After a hearing, the court found all but one of the alleged violations (a failure to report) to be true. Whitelaw requested a sentence at the low end of the advisory 4- to 10-month Guidelines range. The court instead sentenced him to 36 months—the statutory maximum—"and ordered that sentence run consecutively to any other state or federal sentence."

Following the revocation of his supervised release, Whitelaw filed a pro se motion that included a claim that he should be allowed to withdraw his guilty plea because his sentence upon the revocation of supervised release was not ordered to run concurrently with any state court sentence he received. The district court struck the motion because Whitelaw was represented by counsel and, therefore, not entitled to make pro se filings. In the alternative, the district court denied the motion on its merits.

Which finally gets us to the issues on appeal . . .

Standard of Review
For at least the third time, the court declined to decide whether revocation sentences are reviewed for reasonableness or plain unreasonableness, because all the issues Whitelaw raised were subject to plain error review:

• "Whitelaw did not raise any of the specific claims of procedural error that he argues in this appeal when he was before the district court for sentencing[,]" so plain error review for those (failure to consider the policy statements in Chapter 7 of the Guidelines Manual, and an inadequate statement of reasons for the sentence).
• Whitelaw's motion challenging the consecutiveness order "was stricken by the district court because Whitelaw was represented by counsel. Accordingly, Whitelaw did not properly raise this claim of specific legal error below, and this court reviews it for plain error only."
• "Whitelaw also did not object to the substantive reasonableness of the sentence below. Whitelaw’s contest of the revocation charges and request for a sentence at the low end of the guidelines range are insufficient to preserve the substantive reasonableness of the sentence for review." See Peltier. (But don't forget that circuit split.)

No Error In Running Sentence Consecutive to Any Other Sentence, Notwithstanding Plea Agreement on Original Offense
Whitelaw challenged the consecutive order on his revocation sentence on two grounds, both of which the court rejected. First, he argued that the district court didn't indicate it realized that it could order the sentence to run concurrently with any other sentence. While the district court didn't specifically acknowledge it's discretion in the matter, the Government asked for the revocation sentence to run consecutively, and the district court express doubt that it could do that. "In the absence of evidence to the contrary, this court assumes that the district court knows the law and applies it correctly[,]" so no plain error.

Second, Whitelaw argued that the terms of his original plea agreement required any revocation sentence to run concurrently to any other sentence, as was the case with his original sentence. Not so, said the court. The rearraignment transcript wasn't in the record, but the PSR

describes the plea agreement as requiring that Whitelaw’s sentence run concurrently with the state court sentence Whitelaw was then serving. We see no indication that the plea agreement applied to any sentence other than for the crime upon which he was charged. The judgment of conviction provides only that Whitelaw’s sentence of imprisonment would run concurrently with the state court sentence that Whitelaw was then serving; it did not impose any restrictions upon possible sentences that could be imposed if Whitelaw’s later term of supervised release was revoked.

(emphasis added). Is that right? It may be the case that the plea agreement didn't purport to cover what would happen in the event of a revocation of supervised release (and given the lack of a written plea agreement or a rearraignment transcript, it's impossible to say the court's wrong about that). But to the extent that the court is suggesting that a revocation sentence is for a crime other than the one for which a defendant was originally convicted, the court applies a mistaken understanding of revocation. As the Supreme Court explained in Johnson v. United States, a post-revocation sanction is an additional punishment for the original offense, not a punishment for the violation of the terms of release. 529 U.S. 694, 699–701 (2000). Treating post-revocation sanctions as punishment for violations of conditions of supervised release would raise "serious constitutional questions," given that "the violative conduct need not be criminal and need only be found by a judge under a preponderance of the evidence standard, not by a jury beyond a reasonable doubt." Id. at 700. The court doesn't address Johnson here, but it's something to keep in mind if you find yourself with a case similar to Whitelaw.

Whitelaw Failed to Show that the District Court Failed to Consider the Guidelines' Revocation Policy Statements
Whitelaw argued on appeal that the district court failed to consider the Chapter 7 policy statements. But the court of appeals held that he failed to show that, because 1) the district court correctly calculated the advisory revocation range and referred to it before imposing sentence, 2) "[d]efense counsel referred to that range in its argument[,]" and 3) the Government also referred to that range in its motions to revoke, and "made arguments for an above range sentence related to the § 3553(a) factors[.]"

District Court Plainly Erred in Failing to State Reasons for the Sentence, but That Error Did Not Affect Whitelaw's Substantial Rights Because the Record Reveals the Reasons
Given that the district court imposed a sentence that was more than three times the high end of the advisory Guidelines range, Rita required some explanation. The district court gave no reasons. That was clear and obvious error. But did the error affect Whitelaw's substantial rights? And how does the court of appeals assess that?

As it turns out, up until now the Fifth Circuit "ha[d] not yet applied plain error review to a district court’s failure to state reasons for an above guideline sentence." (emphasis added). As you'll recall, Mondragon-Santiago reviewed such an error in the context of a within-Guidelines sentence. It held that that the defendant must "show that the error actually did make a difference [in the sentence]: if it is equally plausible that the error worked in favor of the defense, the defendant loses; if the effect of the error is uncertain so that we do not know which, if either, side it helped the defendant loses." Mondragon-Santiago rejected the approach of "other circuits [that] have relaxed this requirement in the sentencing context[.]"

But given that Mondragon-Santiago involved a within-Guidelines sentence, Whitelaw had to decide whether that approach to the third plain-error prong also applies to review of above-Guidelines sentences. To that end, Whitelaw canvassed what appears to be a circuit split on the question:

In cases involving above guidelines sentences, the D.C. Circuit and the Second Circuit have relaxed the showing required by a defendant to demonstrate that the error affected the defendant’s substantial rights. These courts reason that the absence of a statement of reasons affects the appellate court’s ability to perform a meaningful review of the sentence. Both circuits also conclude that the failure to state reasons undermines “the public reputation of judicial proceedings” because the statement of reasons indicates to the public that the sentencing judge has thoughtfully discharged his responsibilities and demonstrates that the judgment is not arbitrary. [So has the Sixth Circuit.]

Other circuits have declined to follow that lead. The Tenth Circuit affirmed a below guidelines sentence in which the government argued procedural error for failure of the sentencing court to cite reasons for a downward departure. The Tenth Circuit refused to find that the error affected the government’s substantial rights because, applying traditional plain error analysis, the government could not explain how a more detailed reasoning process might have led the court to select a higher sentence. In other words, the government could not show that the error made a difference in the sentencing outcome. The court refused to presume prejudice.

(cites omitted). Ultimately, Whitelaw found it unnecessary to take sides on this question, because "our review of the record reveals the reasons for Whitelaw’s sentence, even if not explicitly stated by the district court." The revocation hearing was extensive. The district court heard evidence, and both parties presented sentencing arguments. "The government then urged the court to sentence Whitelaw to 36 months in prison (the statutory maximum) for the five reasons set forth in its motion to revoke and that the sentence be consecutive to any other sentence. The district court then granted the government’s motion and sentenced Whitelaw to the government’s recommended 36 month term of imprisonment." (By the way, a portion of the Government's motion is reproduced in the opinion, and is predictably purple.) The court then reaches this troubling conclusion:

We have no trouble concluding that by granting the government’s Motion to Revoke and sentencing Whitelaw to the term of imprisonment recommended and supported in that motion, the district court implicitly adopted the government’s rationale for that sentence as set forth in the motion. These reasons thoroughly explain Whitelaw’s sentence. The factual basis supporting them is implicit in the district court’s findings that most of the revocation charges were true. By reviewing the record of the sentencing proceedings in this case, we are able to conduct a meaningful appellate review. Accordingly, the district court’s failure to state these reasons on the record has not prejudiced Whitelaw.

Will that give prosecutors an incentive to paper the case with overheated arguments for a stiff revocation sentence, in hopes that the district court won't state reasons of its own? Perhaps. If possible, you might consider trying to blunt the effect of such pleadings with your own written submission (which may or may not be possible, depending on whether the releasee challenges the alleged violations, and on whether the court will allow time for written arguments before deciding on a disposition). Of course, it's also a good reason to object to procedural errors at the hearing so you're not stuck with plain error review in the first place.

On Review for Substantive Reasonableness, Whitelaw's Sentence was not Plain Error
After all that, the court's resolution of Whitelaw's substantive reasonableness challenge was pretty brief. The court simply said that because the sentence did not exceed the statutory maximum, it wasn't plain error, citing other Fifth Circuit opinions that also so held. Is the court relying on a broader principle that a sentence within the statutory range can never be plain error? If so, that sounds questionable. Hopefully, the court is just saying that, as a descriptive matter, such sentences will have a very hard time satisfying all four plain error prongs. And given the poor track record of preserved substantive reasonableness challenges, that's probably true.

District Court May Not Impose Sentence Below Revised Guidleines Range In 3582(c)(2) Resentencings

United States v. Doublin, No. 08-30775 (5th Cir. June 22, 2009) (per curiam) (Barksdale, Dennis, Elrod)

A couple of years ago the Sentencing Commission revised the drug guidelines to reduce, but not eliminate, the disparity between crack and powder cocaine sentences. The Commission also made the change retroactive, allowing defendants whose Guidelines ranges would have been lower under the revised guidelines to be resentenced under those new guidelines.

Of course, this all happened after Booker, leading to the question whether these "3582(c)(2)" resentencings were to be full "Booker resentencings"—in which case the district court could impose a sentence below the newly-lowered range—or whether the low end of the new range was a mandatory floor. As you might imagine, the circuits divided over this question—a complicated one involving the interaction of a statute, a Guidelines policy statement, and the Supreme Court's judicial revision of the Guidelines scheme in Booker. In the meantime, the Sentencing Commission amended policy statement §1B1.10 in 2008 to prohibit a reduction below the revised Guidelines range.

Doublin finds the Fifth Circuit joining the eight others that have held the 2008 amendment bars any reduction below the revised Guidelines range. The Ninth Circuit is the only one to have held otherwise, and it weighed in before the 2008 amendment (although the amendment would not have had any effect on the Ninth Circuit's analysis, which reasoned that no guidelines are mandatory after Booker). So why does Doublin pick the side it does?

Booker mandates the guidelines are advisory in full sentencings (and, hence, in full resentencings); but, it is undisputed that a reduction under 18 U.S.C. § 3582 does not constitute a full resentencing. Guideline § 1B1.10(a)(3) provides that “proceedings under 18 U.S.C. § 3582(c)(2) . . . do not constitute a full resentencing of the defendant”. As the Tenth Circuit noted in Rhodes, “there are clear and significant differences between original sentencing proceedings and sentence modification proceedings”. These differences explain why Booker does not affect Guideline § 1B1.10.

As an initial matter, the concerns at issue in Booker do not apply in an 18 U.S.C. § 3582(c)(2) proceeding. Quoting Apprendi v. New Jersey, Booker noted that any “fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt”. Section 3582(c)(2) proceedings do not, of course, involve sentence increases. “[T]he limits § 3582(c)(2) and U.S.S.G. § 1B1.10 impose on the extent of reductions are, at most, the equivalent of mandatory minimum sentences, which the Sixth Amendment permits within an otherwise-authorized sentencing range”.

Furthermore, reductions under 18 U.S.C. § 3582(c)(2) are not mandatory; this section merely gives the district court discretion to reduce a sentence under limited circumstances. By referencing the guidelines, the Sentencing Commission has not reimposed a mandatory guidelines regime; rather, the guidelines serve merely as a limit on the extent to which a sentence may be reduced subsequent to its having been imposed previously. (Of course, in the absence of 18 U.S.C. § 3582(c)(2), a sentence based on a subsequentlyamended guideline could not be reduced to any extent.)

As the Eighth Circuit noted in Starks, “[i]n § 3582(c), Congress sought to limit the authority of a district court to modify a term of imprisonment”, by requiring any reduction to be consistent with policy statements issued by the Sentencing Commission. Accordingly, “[a]lthough the guidelines must be treated as advisory in an original sentencing proceeding, neither the Sixth Amendment nor Booker prevents Congress from incorporating a guideline provision as a means of defining and limiting a district court’s authority to reduce a sentence under § 3582(c)”.

(some citation clutter omitted). Shorter, glib version: the Guidelines are advisory, except when they're not.

So, will the Supreme Court grant cert to resolve the circuit split on this question? I don't see why not. Every one of the geographic circuits save one (D.C.) have now weighed in, the Ninth Circuit is unlikely to change its mind, and the question affects a large number of prisoners. Seems primed for cert, whether it be Doublin or some other case.

For Purposes of Supervised-Release Tolling Provision, "Imprisonment" Includes Pretrial Detention

United States v. Molina-Gazca, Nos. 08-50619, 08-50620 (5th Cir. June 11, 2009) (Jones, Elrod, Guirola, D.J.)

Prefatory disclosure: I did some work on this case.

Under 18 U.S.C. § 3583(i), a district court does not have jurisdiction to revoke a term of supervised release after it expires, unless a warrant or summons issued before the expiration of the term. A separate statute, § 3624(e), provides that "[a] term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days." Given those provisions, and the following sequence of events, did the district court have jurisdiction to revoke Molina's terms of supervised release?

• November 3, 2003: Molina commences serving two concurrent three-year terms of supervised release.
• July 8, 2005: Molina is arrested in New Mexico and charged with several felonies. He is detained pending trial.
• November 2, 2006: Molina's supervised release terms expire.
• November 15, 2006: Molina is convicted of the state charges.
• May 3, 2007: A revocation warrant issues, evidently in response to the United States' motion to revoke Molina's TSR. The motion relied on Molina's new conviction as the basis for revocation.
• September 24, 2007: Molina is sentenced to 39 years' imprisonment, with credit for the time he served in pretrial custody.
• At some point after that, the district court revoked both of Molina's terms of supervised release, and sentenced him to two concurrent terms of 15 months' imprisonment, to run consecutive to his state sentence.
  

Molina argued that "a conviction within the period of supervised release is necessary to trigger the tolling provision under § 3624(e)." The court disagreed, relying on the "unambiguous" text of the statute:

Congress could have elected to restrict the application of § 3624(e) in the manner Molina-Gazca suggests. For example, Congress could have limited tolling to periods of imprisonment in connection with a conviction that “occurs during supervised release.” However, § 3624(e) makes no distinction between pre-trial or postconviction periods of imprisonment, but instead requires that “any period” of imprisonment be “in connection with a conviction” for tolling to apply. The phrase “imprisoned in connection with a conviction” plainly lacks any temporal limitation.

This construction, Molina noted, could "leave[] a defendant in a state of 'jurisdictional limbo' while the district court waits to see if a conviction will actually occur." Despite acknowledging this possibility, the court nevertheless concluded that "[t]o the extent that Congress’s omission of a causal or temporal term results in uncertainty as to a defendant’s status, our role is not to imply those limits when Congress could have done so in the first instance."

Finally, Molina argued that detention and imprisonment are understood to be two different things, and that by using the term "imprisonment," § 3624(e) does not reach back to include a period of pretrial detention once a defendant is convicted and sentenced. The Ninth Circuit has so held, meaning that periods of pretrial detention are excluded from § 3624(e). The Sixth Circuit has held otherwise, concluding that the Ninth Circuit's interpretation would render the "in connection with" clause superfluous. The court here chose to follow the Sixth Circuit, pointing also to one statute, 18 U.S.C. § 3041, that "would seem to reject an imprisonment-detention distinction by providing that offenders may be 'arrested and imprisoned or released as provided in chapter 207 of this title ['Release and Detention of a Defendant Pending Judicial Proceedings'], as the case may be, for trial before such court of the United States as by law has cognizance of the offense.'"

Ultimately, the court held that "[p]retrial detention falls within 'any period in which the person is imprisoned' and tolls the period of supervised release, provided a conviction ultimately occurs. This plain meaning interpretation of § 3624(e) gives effect to all of its terms."

Panel Members Call for En Banc Reconsideration of Whether Federal Sentence May Be Ordered to Run Consecutively to Yet-To-Be-Imposed State Sentence

United States v. Garcia-Espinoza, No. 08-10775 (5th Cir. May 15, 2009) (per curiam) (unpublished)

Sometimes you find the most interesting things in unpublished opinions. Like a call for the court to reconsider earlier precent en banc in light of 1) a long-standing circuit split, and 2) the Government's belief that the earlier precedent was wrongly decided.

In this case, the split is over whether 18 U.S.C. § 3584(a) permits a district court to order that a federal sentence run consecutively to an anticipated, but yet-to-be-imposed, state sentence. Nearly two decades ago, in United States v. Brown, 920 F.2d 1212, the Fifth Circuit answered that question "yes." Over the years, some circuits have reached the same conclusion as Brown, while others have disagreed, creating at least a 4-4 split.

Which brings us to Mr. Garcia's case. At his sentencing for illegal reentry, the district court "ordered his federal sentence to run consecutively to a not-yet-imposed state sentence." Garcia appealed, and the panel affirmed the sentence due to Brown.

Judge Owen, joined by Judge Dennis (but not Judge King, who was also on the panel), concurred, suggesting that the court should reconsider the issue en banc. Not only because of the circuit split, but also because the Government now says that the Fifth Circuit "in an appropriate case, should overrule or modify United States v. Brown [citations omitted] and hold that 18 U.S.C. § 3584(a) does not authorize a district court to order that the federal term of imprisonment be served consecutively to a yet-to-be-imposed state sentence." (second alteration in Garcia-Espinoza). That's not to say the Government believes Garcia-Espinoza to be an appropriate case:

The Government contends that we should not revisit Brown in the present case because the defendant has now served his state sentence and cannot receive credit toward his federal sentence, thus making this matter moot. I disagree. The Bureau of Prisons (BOP) has the authority to implement a concurrent sentence by retroactively designating the state prison in which the defendant served his state sentence as the place for service of his federal sentence as well. Thus, if we were to vacate and remand for resentencing and the district court imposed a concurrent sentence, the BOP could still implement that sentence notwithstanding the fact that the defendant has already served the entirety of his state sentence in a state prison.

Intriguing. Make sure you preserve the issue. (Wouldn't hurt to keep that anti-mootness argument handy, too.) You could also ask the district judge not to do this in the first place, citing the Government's position as support.

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.

Solicitor General Endorses View that UUV Is Not an Aggravated Felony, Seeks GVR In Serna-Guerra

Long-time readers of this blog, as well as those of you who handle immigration and illegal reentry cases, are familiar with the Fifth Circuit's frustrating adherence to its view that unauthorized use of a vehicle is an aggravated felony, notwithstanding Supreme Court decisions undermining the Fifth Circuit's reasoning. If you're not already familiar with the issue, you can get up to speed lickety split here, here, here, and here (in that order).

Anyhoo, Bender's Immigration Daily reports on a big development in Serna-Guerra v. Holder, which seeks cert to resolve this whole fooferaw. The Solicitor General's brief in response (available here) asks the Court to grant cert and remand to the Fifth Circuit for reconsideration in light of Chambers v. United States, just as the Court recently did in at least three other criminal cases:

Petitioner argues that this Court should grant plenary review because the Texas UUV offense of which he was convicted is not a “crime of violence” under 18 U.S.C. 16, and because the court of appeals’ decision upholding his removal conflicts with decisions of this Court and the United States Court of Appeals for the Tenth Circuit. In the alternative, petitioner argues that this Court should grant the petition for a writ of certiorari, vacate the decision of the court of appeals, and remand for further consideration in light of Chambers v. United States, 129 S. Ct. 687 (2009). The Court in Chambers held that a failure to report for weekend confinement is not a violent felony under the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. 924(e)(2)(B)(ii), because it does not present a serious potential risk of physical injury to another. Respondent agrees that the Court should grant, vacate, and remand in light of Chambers.

As petitioner notes, following the decision in Chambers, this Court granted certiorari, vacated the judgments below, and remanded for further consideration in three cases from the Fifth Circuit raising the same issue that petitioner raises here. See Castillo-Lucio v. United States, 129 S. Ct. 993 (2009); Armendariz-Moreno v. United States, 129 S. Ct. 993 (2009); Reyes-Figueroa v. United States, 129 S. Ct. 998 (2009). The United States subsequently filed letter briefs in two of those three cases, informing the Fifth Circuit that, in light of Chambers and Begay v. United States, 128 S. Ct. 1581 (2008), which held that DUI is not a violent felony under the ACCA, the government no longer adheres to its prior position that UUV is a crime of violence under Section 16. See Letter from Tim Johnson, Acting U.S. Att’y, to Hon. Charles R. Fulbruge III, Clerk, U.S. Court of Appeals for the Fifth Circuit, regarding United States v. Armendariz-Moreno, No. 07-40225 (Mar. 30, 2009); Letter from Tim Johnson, Acting U.S. Atty, to Hon. Charles R. Fulbruge III, Clerk, U.S. Court of Appeals for the Fifth Circuit, regarding United States v. Castillo-Lucio, No. 07-40752 (March 30, 2009).

In light of the remands and the government’s change of position, the Fifth Circuit may well reconsider its prior rulings on the issue and bring itself into alignment with the Tenth Circuit. Plenary review of the issue by this Court would therefore be premature at this time. Instead, the Court should follow the same approach here that the Court took in Castillo-Lucio, Armendariz-Moreno, and Reyes-Figueroa.

(emphasis added; some extraneous cites pruned). Note the careful wording here. The SG doesn't explicitly concede the issue, but I thinks it's fair to characterize it as an endorsement of the position that the U.S. Attorney in Texas Southern has staked out in those other Chambers remands. Nevertheless, the fight's not won yet, so keep preserving the issue in your cases. And until then, the SG's brief is great fodder for an argument for non-Guidelines sentences in illegal reentry cases involving the issue.

Yet Another COV Circuit Split: Ninth Disagrees with Fifth Over Mens Rea for Generic Aggravated Assault

A solid majority of U.S. jurisdictions, as well as the Model Penal Code, define aggravated assault to require a mens rea of intent, knowledge, or some form of heightened recklessness (such as recklessness under circumstances manifesting extreme indifference to the value of human life). "Simple" recklessness won't do. Nevertheless, in United States v. Mungia-Portillo, the Fifth Circuit held that generic "aggravated assault," for purposes of guideline §2L1.2's 16-level COV enhancement, requires a minimum mens rea of just simple recklessness. Eschewing the traditional Taylor/Shepard categorical approach in favor of an ill-defined "common-sense approach," Mungia-Portillo concluded that any difference between "simple" recklessness and "heightened" recklessness is minor enough not to matter. In so holding, Mungia-Portillo "decline[d] to exhaustively survey all state codes[,]" instead relying on the Model Penal Code, LaFave, and Black's law dictionary.

Turns out there are now two circuit splits involving this issue. The Ninth Circuit has previously criticized---and refused to follow---the Fifth Circuit's "common-sense" departure from Taylor/Shepard. And just last week, in United States v. Esparza-Herrera,* it disagreed with Mungia-Portillo's other holdings. Expanding the inquiry beyond secondary sources to include a survey of actual aggravated assault statutes across the country, Esparza-Herrera concluded both that 1) a solid majority of U.S. jurisdictions "require, at a minimum, a heightened form of recklessness to sustain an aggravated assault conviction[,]" and 2) "ordinary recklessness is a broader mens rea requirement for aggravated assault than is 'recklessness under circumstances manifesting extreme indifference to human life.'" (For those of y'all keeping track, the aggravated assault statute underlying Esparza's prior conviction was Arizona Revised Statute § 13-1204(A)(11).)

Intriguingly, all three judges on the panel joined an opinion concurring in the per curiam, and pining for the Fifth Circuit's approach!

[I]n this esoteric sphere of legal analysis our circuit precedent in substance says that common sense is out and instead we must canvass and assess what the majority of jurisdictions have concluded. I might disagree with the conclusion of the Fifth Circuit in Mungia-Portillo to the extent it suggests that there is no relevant difference between extreme indifference and ordinary recklessness, but I don’t think that such a difference should be very important in assessing whether there has been an aggravated assault. I would prefer to use the Fifth Circuit’s “common sense” approach, rather than trying to assess the standard jurisdiction by jurisdiction. What is important to me is whether the Arizona statute to which Esparza-Herrera pled guilty shows an offense sufficiently serious that we should consider it a “crime of violence” warranting a higher sentence under the advisory Guidelines in the interest of protecting the community. Using a common sense approach, I would have no problem concluding that Esparza-Herrera’s guilty plea . . . yielded a prior conviction of a crime of violence for purposes of calculating the range of the advisory Sentencing Guidelines, even if supported only by the recklessness required under the statute to which he pled guilty.

As Steve Kalar observes in his analysis of Esparza-Herrera at the Ninth Circuit Blog, the concurrence "seems to be gunning for en banc or Supreme Court review of the Ninth’s rule."

*United States v. Esparza-Herrera, No. 07-30490 (9th Cir. Feb. 25, 2009) (per curiam; Gould, Tallman, Callahan, concurring)