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.

§2L1.2 Enhancement for Unlawfully Remaining In U.S. Following Certain Convictions Applies Only If a Removal Order Was Issued or Reinstated After Such a Conviction (Even If Not in Response to It)

United States v. Nevares-Bustamante, No. 10-31110 (5th Cir. Jan. 25, 2012) (Higginbotham, Stewart; Haynes, specially concurring)

Let's say an alien is deported a couple of times (both times following convictions of aggravated felonies), returns again to the United States, is convicted of rape in state court and sentenced to prison, is released from prison without the Border Patrol being notified and without any removal order having been issued or reinstated following his most recent reentry, and is arrested about a year later while still in the United States? Does the new conviction trigger an enhancment under guideline §2L1.2(b)(1)?

These are, of course, the facts of and question presented in Nevares-Bustamante. The question arises because §2L1.2(b)(1) provides for a range of enhancments not only if a defendant was removed after having been convicted of various offenses, but also if he "unlawfully remained in the United States" after such. That would seem to be the end of it, as Nevares did remain in the United States unlawfully after his release from state prison. But that's not the end of it. Application Note 1(A)(iii) explains that,

A defendant shall be considered to have unlawfully remained in the United States if the defendant remained in the United States following a removal order issued after a conviction, regardless of whether the removal order was in response to the conviction.

As it turns out, the First Circuit has already done the heavy lifting here:
Read more »

TX Poss'n of Controlled Substance With Intent to Offer to Sell Not a §2L1.2 "Drug Trafficking Offense" or a §4B1.2(b) "Controlled Substance Offense"

United States v. Ford, No. 06-20142 (5th Cir. May 24, 2007) (Davis, Dennis, Prado)

Recall that the Fifth Circuit recently held in United States v. Gonzales that the Texas offense of delivery of a controlled substance is not categorically a "drug trafficking offense" for purposes of U.S.S.G. §2L1.2(b)(1)(A) & (B). That's because the definition of "deliver" applicable to the Texas drug laws includes mere offers to sell drugs, and offers to sell fall outside the §2L1.2 definition of "drug trafficking." "Okay," you say, "instead of an actual offer to sell, what about possession with intent to offer to sell? Is that 'drug trafficking?'" Ford holds it's not.

The question in Ford is actually whether the Texas offense is a "controlled substance offense" under U.S.S.G. §4B1.2(b), rather than a "drug trafficking offense" under §2L1.2. But since the §4B1.2(b) CSO definition is virtually identical to the DTO definition found in Application Note 1(B)(iv) of §2L1.2, the court acknowledges that cases holding that offers to sell don't constitute §2L1.2 DTO's are equally applicable to the §4B1.2(b) CSO question. (That seemingly minor point is important because it means that you have to be aware of this issue not only when it comes to illegal reentry offense level calculations, but also anywhere that the §4B1.2(b) CSO definition comes into play (including §2K2.1 base offense level determinations, the career offender and armed career criminal guidelines, and possibly others).)

The court went on to conclude that if an offer to sell is not a DTO or a CSO (and Garza-Lopez and Gonzales say it's not), then it logically follows that possession with intent to offer to sell isn't either. The possession doesn't affect the analysis: "[W]hether or not possession is implicated, the operative element of 'intent to deliver,' per Gonzales, is still broader than intents found in the 'controlled substance offense' definition as 'deliver' includes an offer to [sell]. Since this operative intent element is broader, the whole conviction, regardless of the possession element, is broader than the 'controlled substance offense' definition."

Full Faith & Credit Act No Bar To Basing 21 U.S.C. § 841 Enhancement on State Deferred Adjudication

United States v. Fazande, No. 06-30751 (5th Cir. May 18, 2007) (per curiam) (Reavley, Garza, Dennis)

Fazande pled guilty to conspiracy to possess 50+ grams of meth/500+ grams of a meth mixture with intent to distribute. The district court applied the enhanced 20-year mandatory minimum under 21 U.S.C. § 841(b)(1)(A), based on Fazande's 1995 Texas deferred adjudication for possession of less than one gram of cocaine.

Fazande appealed, arguing that the deferred adjudication was not a "final" conviction, as required by the terms of the enhancement provision. He acknowledged that the Fifth Circuit has held otherwise in United States v. Cisneros, but argued that Cisneros should be overturned because it violates the Full Faith and Credit Act (28 U.S.C. § 1738), which provides that state judicial proceedings "shall have the same full faith and credit within every court of the United States . . . as they have by law or usage in the court of such State, Territory, or Possession from which they are taken."

An interesting argument. Unfortunately, the court rejects it with little discussion:

Although this court does not appear to have previously addressed Mr. Fazande’s full faith and credit argument, the argument is meritless. The Full Faith and Credit Act obligates federal courts to give effect to the judgments of state courts, but the principles that underlie the Full Faith and Credit Act are simply not implicated when a federal court endeavors to determine how a particular state criminal proceeding is to be treated, as a matter of federal law, for the purpose of sentencing the defendant for a distinct and unrelated federal crime. A number of other circuits have reached this same conclusion, and we are aware of no decisions to the contrary. [string cite and parentheticals] Accordingly, we reject the argument that the Full Faith and Credit Act prohibited the district court from considering his Texas deferred adjudication for sentencing purposes.

Robbery Under Tex. Penal Code § 29.02 Qualifies as ACCA Predicate, Fits In "Violent Felony" Definition's Residual Clause

United States v. Davis, No. 05-40758 (5th Cir. May 17, 2007) (King, Davis, Barksdale)

As you've no doubt heard by now, the Supreme Court recently decided James v. United States, a case involving the so-called residual clause of the Armed Career Criminal Act's "violent felony" definition. The clause follows a list of enumerated violent felonies, and includes offenses that "otherwise involve[] conduct that presents a serious potential risk of physical injury to another." James held that the Florida offense of attempted burglary qualifies as a violent felony under the clause. But that's about all the opinion does. As three dissenting justices in James point out (Scalia, Stevens, and Ginsburg), the majority's reasoning is so narrow that it provides virtually no guidance for lower courts, or defendants, trying to figure out whether other offenses fit within the residual clause:

[F]or what is probably the vast majority of cases, today's opinion provides no guidance whatever, leaving the lower courts to their own devices in deciding, crime-by-crime, which conviction "involves conduct that presents a serious potential risk of physical injury to another." It will take decades, and dozens of grants of certiorari, to allocate all the Nation's crimes to one or the other side of this entirely reasonable and entirely indeterminate line.

Nevertheless, the panel in Davis steps into the breach and finds sufficient guidance in James to hold that robbery under Texas Penal Code § 29.02 qualifies as a violent felony under the residual clause. The court began with what it understood to be "[t]he test articulated by James for determining whether an offense falls within the residual clause[:] 'whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another.'" (Of course, the problem with James' test is that it does nothing more than restate the statutory language; it tells you nothing about how to make that determination.) After reviewing the way James tackled the issue, and discussing the elements of Texas robbery, the court reached its conclusion:

To commit robbery, an individual must interact with the victim in order to cause bodily injury or place the victim in fear of it. See TEX. PEN. CODE ANN. § 29.02. Such interaction to take another’s property creates a serious potential risk of a violent confrontation between the robber and the victim. This in turn, in the ordinary case, presents a serious potential risk of physical injury to another.

The court rejected Davis' argument that Texas robbery can be committed without a weapon and that unarmed robbery doesn't pose a serious enough risk of injury to qualify under the residual clause: "Even when the robber has no weapon, the very real possibility of confrontation between the robber and the victim creates a serious potential risk of injury."

Like James, Davis fails to provide much guidance on how to apply the residual clause to other offenses, except perhaps those that necessarily involve the risk of physical confrontation. The good news is that four Supreme Court justices think this approach to applying the ACCA is unconstitutional (three because it makes the ACCA unconstitutionally vague, and one because the judicial fact-finding violates Apprendi), so the cert petition practically writes itself. The bad news is that four is less than five.

Defendant's "Admission" Enough to Find that Drug Priors Were Felonies for Purposes of § 841 Mandatory Minimum

United States v. Jenkins, No. 05-51291 (5th Cir. May 17, 2007) (Jones, Benavides, Stewart)

Jenkins pled guilty to possession of 100+ kilos of marijuana with intent to distribute. The Government also sought to invoke a 10-year mandatory minimum by filing an enhancement information pursuant to 21 U.S.C. § 851, which alleged three prior felony drug convictions. Jenkins objected to the enhanced penalty at sentencing on the ground that "'[i]t was $10 worth of drugs on two occasions — two separate felonies, and those were the two that were used to enhance me, 10 to life.'" The district court overruled the objection, and sentenced him to 120 months. His guideline range would otherwise have been 92 to 115 months.

On appeal, Jenkins raised two arguments against the application of the mandatory minimum. First, he argued that the district court failed to follow the procedures prescribed by § 851(b). The court of appeals reviewed for plain error. It agreed that there was error, but that it didn't affect Jenkins' substantial rights because § 851 prohibits a defendant from challenging convictions that occurred more than five years before the enhancement was filed and two of Jenkins' three priors were more than five years old. The court also added that "Jenkins admitted at sentencing that his prior convictions were felonies and never revealed what challenges he was prepared to make to his prior convictions."

Jenkins' second argument was that the "the district court violated Shepard v. United States by relying on the PSR’s characterization of his prior offenses for enhancement purposes." The court of appeals held that regardless of the fact that "the record is silent regarding whether the court examined any supporting documents[,]" Jenkins' admission that the priors were felonies "was sufficient for the district court to conclude that Jenkins’s prior convictions were felonies without regard to the categorical approach for sentence enhancements." Additionally, Jenkins did not argue on appeal that the priors weren't felonies.

(That point about Jenkins' admissions sounds wrong. I don't think a defendant's statements about legal questions, such as whether a particular offense was a felony or not, constitute "admissions" for purposes of Shepard. Nevertheless, this holding is yet another reason for defendants to be extra careful about what they say. This isn't the first time that the Fifth Circuit has treated some statement in the record as an admission on a point that the statement doesn't appear to have been addressing in the first place. See, e.g., here and here. Plain error review doesn't help matters, either.)

Jenkins also challenged the district court's refusal to award him a minor role adjustment, arguing that he was just a courier. The court of appeals rejected this argument, as well, pointing to case law that says that couriers aren't necessarily minimal or minor participants. I don't know why the court addressed this issue, because his guideline range was already below the 10-year mandatory minimum even without the minor role adjustment.

16-Level COV Enhancement Under U.S.S.G. §2L1.2(b)(1)(A)(ii) Not Plain Error, Partly Because of Defendant's Admission that PSR Was Correct

United States v. Martinez-Vega, No. 05-41498 (5th Cir. Nov. 29, 2006) (Barksdale, Benavides; Owen, concurring)

"Is everything in the PSR correct?" That's not an uncommon question for the district court to ask the defendant at sentencing. It's also a question that a defendant may not want to answer (or at least be very careful how he answers), as this case illustrates. The case also highlights the importance of making the necessary objections in the district court, so as not to be saddled with plain error review on appeal.

Martinez pled guilty to illegal reentry. He had a prior Texas conviction for what the PSR referred to as "sexual assault, a lesser included offense." Slip op. at 2. "The PSR further stated that the conviction stemmed from his sexual abuse of his four-year-old daughter. At the sentencing hearing, [Martinez] responded affirmatively to the court's question whether 'everything in the report [was] correct." Id. The district court treated that prior conviction as a 16-level crime of violence under U.S.S.G. §2L1.2(b)(1)(A)(ii). Martinez did not object to the enhancement.

On appeal, Martinez conceded that he had been convicted of sexual assault under Tex. Penal Code § 22.011, but argued that the record contained insufficient information to establish which subsection of § 22.011 underlay his conviction.

The Government supplemented the record with the indictment and judgment from the prior case. The indictment had charged Martinez with "'intentionally and knowingly caus[ing] his sexual organ to penetrate the mouth of . . . the victim, a child younger than 17 years of age and not the spouse of the defendant, and the victim was then and there younger than 14 years of age[,]'" an offense under Tex. Penal Code § 22.021(a)(2)(B). Slip op. at 4, 5. However, Martinez did not plead guilty to that charge. Instead, the judgment recited that Martinez pleaded guilty to "'the lesser charge contained in the Indictment.'" Slip op. at 5.

The Government argued that these documents established that Martinez was convicted under § 22.011(a)(2), which criminalizes sexual conduct with a person under 17 years of age. Martinez countered that the indictment could not be used to pare down § 22.011 because he didn't plead guilty to the charge in the indictment.

The court rejected Martinez's argument, and held that there was no plain error in treating the conviction as "sexual abuse of a minor," a specifically enumerated crime of violence for purposes of §2L1.2(b)(1)(A)(ii). First, the judgment referred to "the lesser charge contained in the Indictment," which the court took to be sexual assault of a person under 17 years old. Second, the PSR stated that the victim was Martinez's 4-year-old daughter and Martinez admitted that the PSR was correct. "We recognize that Appellant’s admission of the correctness of the contents of the PSR was a rather broad admission. Nonetheless, we are confident that, in view of this admission, combined with the state court judgment’s reference to 'the lesser included charge contained in the Indictment,' which was sexual assault of a minor, Appellant has failed to demonstrate that the error was clear or obvious." Slip op. at 7.

Judge Owen concurred in the judgment, but took a different view of Martinez's admission regarding the correctness of the PSR:

Reliance on Martinez-Vega’s admission regarding the content of the presentence report (PSR) is problematic for a number of reasons, one of which is that the PSR simply summarizes what a Hidalgo County, Texas Sheriff’s Office offense report said in connection with the prior conviction. When Martinez-Vega agreed that the “everything in the report [was] correct,” he admitted only that the PSR accurately recounted what was in the sheriff’s office report, not that he actually performed any or all of the conduct described in that report."

Slip op. at 10-11 (footnote omitted). What's even more interesting is that Judge Owen believes the admission wouldn't matter one way or the other:

Even if Martinez-Vega now admits that he sexually assaulted his daughter when she was four years old, which he has not done, that is not the same as admitting he was convicted of assaulting a four-year-old child. As we have seen, the record of conviction reflects that he was convicted of sexually assaulting a child younger than seventeen but he was not convicted of sexually assaulting a child younger than fourteen. Because of Martinez-Vega’s guilty plea to the lesser included offense, the government was never required to prove the greater offense.

The district court may certainly consider any admission by Martinez-Vega that he did in fact sexually assault his daughter when she was four years old in deciding whether an upward departure is warranted, but such an admission cannot be the basis for an enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii).

Slip op. at 11-12 (footnote omitted).

Judge Owen's position seems more faithful to the Taylor/Shepard approach. I don't think Taylor or Shepard contemplated a situation in which a court would rely on admissions about a prior conviction made outside of the proceedings that led to that conviction. However, Judge Owen's position is not that of the majority here, and it isn't the first time that the Fifth Circuit has upheld the application of a COV enhancement based on admissions made at the time of the illegal reentry sentencing (see here).

The scope and effect of a defendant's admissions about prior convictions may be an issue worth litigating, but it's also an issue that's avoidable. For one thing, the majority repeatedly referred to the standard of review: plain error. The result might have been different had Martinez objected to the enhancement in the district court, entitling him to de novo review of the enhancement issue. Also, remember that a guilty plea does not waive a defendant's Fifth Amendment privilege to remain silent at sentencing, and a court cannot draw an adverse inference from a defendant's assertion of the privilege. Mitchell v. United States, 526 U.S. 314, 119 S. Ct. 1307 (1999). The rule of Mitchell should extend to questions about prior convictions, at least where the record of the prior conviction is insufficient to establish the basis for an enhancement.