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

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

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

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

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

Revised “Animal Crush Video” Statute Does Not Facially Violate First Amendment because “Obscene” Element Incorporates Miller Definition

United States v. Richards, No. 13-20265 (Wiener, Haynes, Higginson)

Richards and Justice were charged with five counts of violating the revised 18 U.S.C. § 48.  In response to United States v. Stevens in which the Supreme Court struck down 18 U.S.C. § 48 (1999), “Congress revised § 48 to make it crime to knowingly create, sell, market, advertise, exchange, or distribute an “animal crush video” that (1) depicts actual conduct in which one or more non-human animals is intentionally crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury and (2) is obscene.”

Richards and Justice did not challenge the statute as overbroad, but they filed a motion to dismiss on the grounds that § 48 is facially invalid under the First Amendment because it proscribes speech that is not within an unprotected category and is not narrowly tailored to serve a compelling government interest.  The district court dismissed those five counts, and the Government timely appealed. 

Since obscenity is one of the areas in which the First Amendment permits restrictions, the first issue is whether § 48 is limited to obscene speech.  Section 48 does not define “obscene,” but courts have held that the Miller v. California, 413 U.S. 15 (1973), definition of “obscene” is incorporated into such federal statutes that use but do not define the term.  Miller provides the trier of fact the following guidelines for determining obscenity:

(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

413 U.S. at 24.

Richards and Justice argue that Congress did not intend to use the Miller definition of “obscene” because Congress did not intend § 48 obscenity to require depiction of sexual conduct.  The panel finds that the legislative history does not clearly exclude sexual conduct from the definition of obscene.  “[Section] 48 incorporates Miller obscenity and thus by its terms proscribes only unprotected speech.”  Presumably this leaves to the prosecutor to prove that the animal crush videos meet the Miller definition of obscenity by depicting sexual conduct or at least unusually deviant acts.

The panel also disagrees with Richards and Justice’s second argument that, even limited to Miller obscenity, § 48 is facially unconstitutional because it proscribes only a narrow category of obscenity based on its content.  The panel finds § 48 is content-neutral because it targets the secondary effects of speech (promotion of antisocial and violent behavior) and is reasonably and narrowly tailored.

Restitution Order Based on Taxes Owed Is "Debt Due for Federal Tax" Under Federal Debt Collection Procedures Act & Consumer Credit Protection Act

United States v. Clayton, No. 09-31025 (5th Cir. Aug. 2, 2010) (Davis, Smith, Haynes)

How much of one's earnings may be garnished to satisfy a restitution order based on a failure to pay federal income taxes? All of them.

Clayton pleaded guilty to three misdemeanor counts of failing to file federal income tax returns for the tax years 1999 through 2001. His tax liability for those three years was $608,727. His sentence included an order that he pay restitution in that amount to the IRS.

As it turns out, Clayton was a retired riverboat pilot with the New Orleans Baton Rouge Steamship Pilots Association (NOBRA). Among other types of payments, "NOBRA . . . owed Clayton monthly payments of between $15,000 and $16,000 for life, which it described as half-pay inactive status benefits."

So after Clayton was shipped off to BOP, the United States obtained a writ of garnishment from the district court, pursuant to the Federal Debt Collection Procedures Act (FDCPA, and not to be confused with that other FDCPA, the Fair Debt Collection Practices Act). It ordered NOBRA to pay to the United States 100% of Clayton's half-pay inactive status benefits, as well as 25% of other payments, to satisfy the restitution order. Clayton appealed the 100% portion of the order.

As a threshold matter, the court had to figure out the standard of review for such an appeal. The answer: abuse of discretion. In this case, the matter was one of statutory interpretation, so that was reviewed de novo.

Onward to the merits . . . .

The United States is authorized to enforce any restitution order imposed as part of a criminal sentence by using its powers under the FDCPA. See 18 U.S.C. § 3664(m)(1)(A) (2006); 18 U.S.C. § 3613(a), (f) (2006); see also United States v. Phillips, 303 F.3d 548, 550–51 (5th Cir. 2002) (explaining the statutory scheme in detail). The FDCPA in turn authorizes the government to garnish property “in which the debtor has a substantial nonexempt interest and which is in the possession, custody, or control of a person other than the debtor, in order to satisfy the judgment.” 28 U.S.C. § 3205(a) (2006). However, the government’s power to collect restitution in general is expressly made subject to the restrictions on garnishment of section 303 of the Consumer Credit Protection Act (“CCPA”), 15 U.S.C. § 1673 (2006). See 18 U.S.C. § 3613(a)(3).

The principal restriction imposed by the CCPA is that garnishment of an individual’s disposable earnings is limited to twenty-five percent of the debtor’s weekly earnings. 15 U.S.C. § 1673(a)(1). Clayton argues that this restriction applies here to limit the garnishment of his half-pay inactive status benefits. The United States contends that 15 U.S.C. § 1673(b)(1)(C) expressly removes the garnishment order obtained here from the protection of the CCPA altogether: that subsection provides that, without qualification or exception, “[t]he restrictions of subsection (a) do not apply in the case of . . . (C) any debt due for any State or Federal tax.” 15 U.S.C. § 1673(b)(1)(C).

The question then becomes whether the restitution order constitutes a debt “due for any Federal tax.” We agree with the government that the unequivocal plain language of 15 U.S.C. § 1673(b)(1)(C) operates to eliminate the twenty-five percent garnishment limit as to this order.

The chain of reasoning is this: "any" is broad, a restitution order is a "debt", and it's "due for any Federal Tax" because it's payable to the IRS and "[o]ther circuits and the United States Tax Court have explained that the payment of criminal restitution based on taxes owed constitutes the payment of tax." And "[w]hile no state or federal court has apparently ever addressed this provision before,'[w]hen the plain language of a statute is unambiguous and does not lead to an absurd result, our inquiry begins and ends with the plain meaning of that language.'"

By the way, if like me you wonder how a riverboat pilot could rack up a $600K tax liability in three years, read this.

Defendant Who Got 5K1.1 Departure Below Statutory Minimum Not Eligible for 3582(c)(2) Reduction, Because Sentence Was Based on Statute, Not Guidelines

United States v. Carter, No. 08-20235 (5th Cir. Jan. 28, 2010) (per curiam) (Jones, Smith, Elrod)

The short answer (because the long one requires close examination of statutory and guideline language): "[W]e join the Fourth, Eighth, and Eleventh Circuits and hold that when a defendant is subject to a statutory minimum sentence above the upper end of his guideline range, even if the district court departs downwardly from that minimum under a statutory exception, 18 U.S.C. § 3582(c)(2) provides no authority to the district court to later modify the sentence based on amendments to the guideline range." If you want to get deep in the weeds of this issue, read on.

Our facts: In 2005, Carter was convicted of a crack offense carrying a statutory mandatory minimum sentence of 10 years' imprisonment. That was higher than the Guideline range of 87 to 108 months, so the Guideline sentence was 120 months. The Government moved for a §5K1.1 substantial assistance departure. The court granted it, and sentenced Carter to 36 months.

November 1, 2007 rolls around, along with a retroactive reduction of the crack guidelines. Carter filed a motion to reduce his sentence, pursuant to 18 U.S.C. § 3582(c)(2).

He argued that his 36-month sentence represented a 59 percent reduction from the 87-month low end of the Presentence Report’s guideline calculation, that a correct guideline range in light of the crack cocaine amendments would be 70 to 87 months, and therefore that the district court should reduce this portion of his sentence to 59 percent below 70 months. This would result in a sentence of 29 months, rather than 36, on the possession count.

The district court denied Carter's motion, finding that he wasn't eligible for a reduction under § 3582(c)(2) because his original sentence was based on the statutory mandatory minimum, not the subsequently-amended crack guidelines.

The court of appeals agreed, relying on the reasoning of a Fourth Circuit decision involving similar facts.

The phrase “based on a sentencing range” [in § 3582(c)(2)] straightforwardly aligns with the familiar sentencing practice of initially calculating a base range and then considering grounds for departing from it. In contrast to that typical situation, when an applicable statutory minimum sentence is greater than the high end of the guideline range, that minimum—not the otherwise applicable guideline range—is the starting point for sentencing. See U.S.S.G. § 5G1.1(b) (“Where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence.”). Indeed, the district court lacks authority to impose a sentence below the statutory minimum absent a statutory exception. . . . There is no dispute that Carter was subject to a statutory minimum sentence greater than the high end of his guideline calculation, whether calculated with or without the crack cocaine amendments. In this circumstance, the sentence was “based on” the statutory minimum, not the guideline range.

Carter countered by pointing to the language of 18 U.S.C. § 3553(e), which is the statutory authorization for substantial assistance departures. It directs a court to impose such a sentence "in accordance with the guidelines and policy statements issued by the Sentencing Commision." That language, Carter argued, "refer[s] to the otherwise applicable guideline range[,]" meaning that "the statutory minimum sentence no longer applie[s]." The court disagreed:

Nothing in § 3553(e) indicates that a statutory minimum sentence gives way to an otherwise applicable guideline range when a district court reduces the sentence based on the defendant’s substantial assistance to the government. Rather, § 3553(e)describes the familiar procedure of a downward departure from a baseline sentence. The Sentencing Commission has indicated that the applicable policy statement for § 3553(e) is U.S.S.G. § 5K1.1, which is the general provision governing downward departures from the guidelines. . . . Section 5K1.1 provides that “[u]pon motion of the
government stating that the defendant has provided substantial assistance . . . the court may depart from the guidelines” (emphasis added). Accordingly, the Commission implicitly considers a statutory minimum sentence to be analogous to a low-end guideline from which the court may depart. That is the interpretation we give to § 3553(e) as well. . . . Furthermore, inasmuch as the statutory minimum remains the baseline sentence from which the court may downwardly depart, we do not agree with Carter that the phrase “in accordance with the guidelines and policy statements issued by the Sentencing Commission” refers to ordinary guideline ranges. Instead, we interpret it to refer to such guidelines and policy statements as the Commission may create specifically to implement § 3553(e). As noted in Hood, 556 F.3d at 235, the applicable policy statement is the downward departure provision of U.S.S.G. § 5K1.1, which states principles for determining whether and how far to downwardly depart; the sentencing commission has not created any further “sentencing ranges” for such downward departures.

Carter had one more arrow in his quiver:

Whereas § 3582(c)(2) allows modification only of sentences “based on” amended sentencing ranges, Carter notes that under § 1B1.10(a)(1), a reduction may be appropriate if “the guideline range applicable to [the] defendant has subsequently been lowered as a result of [certain amendments].” (emphasis added) . . . . Carter argues that the 87 to 108 month range is “the guideline range applicable” in his case, even though a statutory minimum guideline sentence superseded that range.

The court disagreed, "conclud[ing] that the term 'guideline range applicable' in § 1B1.10 includes a statutory minimum sentence when such a minimum applies." Consequently, "a subsequent amendment to a different provision (the unutilized guideline range calculation) does not provide grounds for a sentence reduction." The court also pointed to §1B1.10's Application Note, which says that a defendant is not eligible for a sentenced reduction if the change in the guidelines "does not have the effect of lowering the defendant’s applicable guideline range because of the operation of another guideline or statutory provision (e.g., a statutory mandatory minimum term of imprisonment)."

Each Receipt of Money Is Separate Offense Under 18 U.S.C. § 641

United States v. Reagan, No. 08-11006 (5th Cir. Feb. 4, 2010) (King, Barksdale, Elrod)

Ever wondered what the unit of prosecution is under the theft of public money statute, 18 U.S.C. § 641? Then read on.

Reagan was charged under 18 U.S.C. § 641 for improperly receiving $41,832 over five years in Section 8 program payments from the Dallas Housing Authority (DHA), which administers funding provided by the Department of Housing and Urban Development (HUD). The Section 8 program subsidizes rent for low income persons. Reagan jointly owned a residential property with his wife, Debra Kirvin, and, in 2002, leased this property to his wife’s mother, Leatha Kervin, a participant in the Section 8 program. One of the documents that Reagan signed and filed with the DHA to initiate Section 8 benefits included the disclaimer that “the owner (including a principal or other interested party) is not the parent, child, grandparent, sister, or brother of any member of the family.” In another document signed and filed with the DHA, Reagan similarly promised that he had “no blood, marital or other familial relationship” with the Section 8 recipient. Reagan received monthly checks from the DHA from March 2002 until September 2007, when his relationship to Leatha Kervin was discovered. Reagan was charged under § 641 with five counts of receipt of public funds, one count for each year that he received monthly Section 8 payments.

Reagan was convicted of all five counts. On appeal he argued "that the indictment was multiplicitous because although it charged five separate offenses, all 'stem[med] from a single fraudulent ac[t] in the first year.'" The Government, as you might imagine, argued that multiple counts were appropriate because Reagan violated § 641 each time he received a payment.

As multiplicity mavens know well, the the question boils down to the unit of prosecution for the offense, which depends on what the statute says.

Section 641 penalizes “[w]hoever embezzles, steals, purloins, or knowingly converts to his use or the use of another . . . any record, voucher, money, or thing of value of the United States.” 18 U.S.C. § 641. No case has been reported discussing the “allowable unit of prosecution” under § 641. Courts interpreting similarly-worded statutes, however, have concluded that each distinct taking of funds constitutes a separate violation under the statute.

Like those other statutes,

§ 641 punishes “[w]hoever embezzles, steals, purloins or knowingly converts to his use . . . any record, voucher, money, or thing of value of the United States.” 18 U.S.C. § 641 (emphases added). Accordingly, we hold that the “allowable unit of prosecution” under § 641 is each individual transaction in which government money is received, even if the transaction is part of an overarching scheme. Reagan violated § 641 each time he converted a HUD check. The five counts against Reagan therefore were not multiplicitous.

Reagan raised a couple of other challenges to his conviction, but the court declined to address them:

Reagan, who is represented by appointed counsel, does nothing beyond listing these points of error—he offers no further arguments or explanation. This is a failure to brief and constitutes waiver.

* * *

Reagan does not provide citations to any evidence in the record to support his claim. By failing to do so, Reagan has failed to show a “sufficient evidentiary foundation” for the requested instruction and therefore cannot establish abuse of discretion. This is also a failure to brief.

* * *

Reagan argues that “[t]he law favors cautioning jurors under such circumstances to take the testimony of the hostile, accomplice witness with a grain of salt,” but offers no further legal analysis.

Ouch.

Enhancement for Committing an Offense While On Release Applies to One Convicted of Failing to Appear

United States v. Dison, No. 08-30786 (5th Cir. June 23, 2009; rev. July 24, 2009) (Wiener, Dennis, Clement)

If you get convicted of failing to report for service of a sentence, can you also receive a sentence enhancement for committing an offense while on release, even though the only way you could have failed to appear was because you were on release in the first place? Dison answers that vexing question—which has divided courts—"yes." Fortunately, the enhancement does not authorize a sentence in excess of the maximum for the failure-to-appear offense, as the court explains in a short jaunt through Apprendi-land.

Okay, from the top: Let's say that, like Dison, you fail to appear for service of a sentence. Three provisions become relevant:

• 18 U.S.C. § 3146(a)(2) makes it a crime to fail to report for service of sentence. The punishment varies, depending on the nature of the offense for which the sentence was imposed, but in all cases "shall be consecutive to the sentence of imprisonment for any other offense." § 3146(b)(2).
• 18 U.S.C. § 3147 provides that "[a] person convicted of an offense while released under this chapter shall be sentenced, in addition to the sentence prescribed for the offense, to" up to 10 years if the offense is a felony, or up to 1 year if the offense is a misdemeanor. Section 3147 further provides that "[a] term of imprisonment imposed under this section shall be consecutive to any other sentence of imprisonment."
• U.S.S.G. §3C1.3 calls for a 3-level enhancement "[i]f a statutory sentencing enhancement under 18 U.S.C. § 3147 applies. The guideline also directs the sentencing court to "divide the sentence on the judgment form between the sentence attributable to the underlying offense and the sentence attributable to the enhancement[,]" in order to comply with § 3147's consecutiveness requirement.
  

Dison was convicted of a § 3146 failure-to-appear, subject to a five-year statutory maximum. The PSR applied the 3-level enhancement under §3C1.3 when calculating the Guidelines range. The district court overruled Dison's objection to the enhancement, and imposed a sentence of 21 months' imprisonment—the bottom of the 21- to 27-month range—apportioning 5 of those months to the § 3147 enhancement.

On appeal, Dison argued "that the § 3147 enhancement should not apply when the sole offense committed while on release is failure to appear, which by definition can only be committed while on release. She argues that the § 3147 enhancement as applied to a § 3146 offense (1) is ambiguous and should thus be interpreted in favor of lenity, and (2) constitutes improper double-counting, thereby violating the Double Jeopardy Clause."

The court rejected the lenity argument, finding the statutes' language plain and unambiguous, and not productive of an absurd result. According to the opinion, three other circuits have also so held.

Is that right? Is there really nothing absurd about requiring not only that a sentence for failing to report be consecutive to the sentence for the earlier offense, but also that an additional sentence be imposed consecutive to the failure-to-appear sentence? If not absurd, it's at least a bizarre way to structure the sentence for a failure-to-appear.

As for the Double Jeopardy issue, the court said:

Dison contends that even if the § 3147 enhancement could be read as extending to the § 3146 offense of failure to appear, the enhancement as applied to her violates the Fifth Amendment’s Double Jeopardy Clause because it “exposes Ms. Dison to multiple punishments for the same offense.” It is true that Dison is subject to the § 3147 enhancement for having failed to appear while on release even though she committed that offense in the only manner possible, viz., while on release. Yet, assuming arguendo that the enhancement subjects Dison to double counting, “such an application would not necessarily violate the double jeopardy clause.” “The [Supreme] Court has . . . defined the nature of double jeopardy protection by stating: ‘[w]ith respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.’”

Here, there was a single prosecution for Dison’s offense of failure to appear. And, we know that cumulative punishment, to the extent any exists, is within the intent of Congress because the “Guidelines are explicit when double counting is forbidden.” Under the doctrine of inclusio unius est exclusio alterius, “only if the guideline in question expressly forbids double counting, would such double counting be impermissible.” Section 3147 contains no prohibition against cumulative punishment. We presume, therefore, that Congress intended to impose it; there is thus no double jeopardy violation.

We continue briefly to emphasize that the instant case is not one in which we must determine whether Congress intended to permit a defendant to be convicted of, and sentenced for, two offenses that penalize the same underlying conduct. If that were the case, we would require a “clear and definite legislative directive” indicating that Congress intended both punishments. Instead, our precedent establishes that § 3147 provides only a sentence enhancement and does not constitute an independent offense or an element thereof. This analysis is consistent with the Supreme Court’s decision in Apprendi, which held that “[o]ther than the fact of a prior conviction, 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.” Apprendi is inapplicable to “a fact used in sentencing that does not increase a penalty beyond the statutory maximum.” And, regardless of the fact that § 3147 calls for punishment “in addition to the sentence prescribed” for the underlying offense, the § 3147 enhancement can never result in a sentence in excess of the statutory maximum prescribed for the offense committed while on release, here failure to appear. Our foregoing analysis of the subject sentencing scheme therefore stands without the need for any additional scrutiny.

I'm not sure the Apprendi issue is as simple as the court makes it out to be. (Anyone with thoughts on that question is welcome to leave a comment.) Nevertheless, the important point to take away is that, according to Dison, § 3147 does not authorize a sentence in excess of the maximum for the offense committed while on release.

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

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

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

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

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

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

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

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

Did You Wake Up This Morning Pleading, "My Kingdom for a Guide to the Canons of Statutory Interpretation!"

Then you should buy a lottery ticket, because today is your lucky day. A little birdie hipped us to a Congressional Research Service report providing that which you seek. Behold: "Statutory Interpretation: General Principles and Recent Trends (updated Aug. 31, 2008)". From the report's summary:

The Supreme Court has expressed an interest “that Congress be able to legislate against a background of clear interpretive rules, so that it may know the effect of the language it adopts.” This report identifies and describes some of the more important rules and conventions of interpretation that the Court applies. Although this report focuses primarily on the Court’s methodology in construing statutory text, the Court’s approach to reliance on legislative history are also briefly described.

The report is primarily geared towards those drafting legislation. (And if there were any doubt of where the author's allegiance lies, consider this snarky commentary from elsewhere in the summary: "Not infrequently the Court stacks the deck, and subordinates the general, linguistic canons of statutory construction, as well as other interpretive principles, to overriding presumptions that favor particular substantive results.") Nonetheless, the report looks like it can also serve as a helpful overview for those of you tangling with thory statutory interpretation issues.

For Purposes of Illegal Reentry, Alien Who Departs U.S. Before Being Ordered Removed Has Been "Removed" If Removal Order Later Issues

United States v. Ramirez-Carcamo, No. 08-30298 (5th Cir. Feb. 17, 2009) (Smith, Southwick, Rodriguez, D.J.)

Submitted for your consideration: an offense that doesn't obey the rules of all the others in the U.S. Code. Some of the elements can be proven by paper, notwithstanding a defendant's right to confront the witnesses against him. The maximum penalty increases five- or ten-fold based on the existence and nature of a defendant's prior criminal convictions, notwithstanding a defendant's double jeopardy right to not be punished more than once for a single offense. And the fact of a prior conviction need not be alleged in the indictment or proven to a jury beyond a reasonable doubt, notwithstanding the general rule that facts which increase the maximum penalty for an offense must be alleged and proven in that manner. What's more, sentences for this offense often exceed those for drug or gun offenses, and even offenses involving an actual victim. And now, we learn that this offense doesn't even obey the normal rules of statutory construction, like the rule that every word of a statute must be given effect, or the rule of lenity. It is an offense which we call "Illegal Reentry."

Meet one Olvin Ramirez-Carcamo, a citizen of Honduras. Border Patrol agents apprehended him near Eagle Pass, Texas on September 17, 2005. Lacking sufficient funds to detain Ramirez, the agents sent him on his way with a notice to appear before an immigration judge to show cause why he was not subject to removal from the United States. "No date or time for the appearance was stated. The Notice to Appear indicated the timing would be established later. Ramirez-Carcamo was required to report, in writing or in person, to a deportation officer on October 1, 2005. Further, if he did not appear at his removal hearing after being told of its scheduling, the Notice informed him that an immigration judge could order removal in his absence."

Ramirez did not report to a deportation officer on October 1st, nor did he appear at the removal hearing which at some point was set for January 20, 2006. That's because he boarded a plane in Miami on September 28, 2005---eleven days after his apprehension by Border Patrol---and flew to El Salvador. The immigration judge ordered Ramirez's removal in absentia on January 20, 2006.

Fast-forward to August 2007, when Ramirez was arrested for traffic violations in Louisiana and then turned over to Border Patrol. He told them he had reentered the United States---sans permission to do so---one year earlier.

That arrest led to Ramirez's indictment for illegally reentering the United States after removal, in violation of 8 U.S.C. § 1326. He moved to dismiss the indictment on the ground that one of the elements was not met, i.e., that he had not previously been "removed" from the United States because he voluntarily departed the country before the January 2006 removal order issued. The district court denied the motion. Ramirez entered a conditional guilty plea, and appealed.

Not surprisingly, Ramirez rested his argument on the text of § 1326(a), which makes it a crime for an alien to reenter the United States without first applying for the requisite permission, if the alien "has [previously] been denied admission, excluded, deported, or removed, or has departed the United States while an order of exclusion deportation, or removal is outstanding . . . ."

Ramirez-Carcamo submits that “removal” means the physical act of being transported outside of the United States instead of the issuance of an order of removal. He left before any order of removal was issued and argues he therefore was never “removed” for purposes of Section 1326. He submits that if “removed” means leaving by force of a legal order, then a later portion of the statute – departure “while an order of removal is outstanding” – is superfluous. An important statutory construction principle is “that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.” TRW v. Andrews, 534 U.S. 19, 31 (2001) (internal quotation marks omitted). We must also remember, though, that canons of statutory interpretation are only guides. Chickasaw Nation v. United States, 534 U.S. 84, 85 (2001).

The court, as you know by now, rejected Ramirez's argument. After a largely unnecessary examination of the way § 1326 has been amended over the years, and a review of some cases involving a prior version of the statute, the court finally alighted on 8 U.S.C. § 1101(g). That provision reads:

For the purposes of this chapter any alien ordered deported or removed (whether before or after the enactment of this chapter) who has left the United States, shall be considered to have been deported or removed in pursuance of law, irrespective of the source from which the expenses of his transportation were defrayed or of the place to which he departed.

The court, for reasons not apparent to me from the text of § 1101(g), "interpret[ed] it to override the distinction Ramirez-Carcamo is making, that if the order of removal is entered after an alien has physically departed, there has in law been no 'removal.'" Ramirez, naturally, countered that "this provision applies only to aliens who depart after issuance of a removal order. Not so, said the court:

. . . Section 1101(g) does not state, and, to our ears, does not even suggest that the removal order or the departure must always be first. No matter whether the removal order comes first and the alien then departs, or, as here, the departure comes first and then removal is ordered in absentia, the alien ultimately is outside the country with an enforceable order requiring that he have exited. When both have occurred, the person is “considered to have been . . . removed in pursuance of law.” 8 U.S.C. § 1[1]01(g).

So what about Ramirez's argument that reading "removal" in this way effectively renders the departure-while-order-of-removal-outstanding clause superfluous? After dismissing the canons of construction as merely "guides," the opinion simply drops the matter without attempting to salvage this now apparently vestigial predicate to illegal-reentry liability.

The court concludes the opinion thusly:

In conclusion, we emphasize certain aspects of the chronology. At the time of his capture on September 17, 2005, Ramirez-Carcamo signed a Notice to Appear. The notice warned that the immigration judge could order removal in absentia if he did not appear at the removal proceedings. Rather than appear at the proceedings, Ramirez-Carcamo left the country. The threatened order was entered in absentia. We conclude, based on our analysis of the statutory language, that aliens do not avoid prosecution under Section 1326 by refusing to comply with their obligation to appear at removal proceedings and instead departing in advance of the removal order. If the removal order is thereafter entered in absentia, it has the same effect for prosecutions under Section 1326 as would a departure after the removal order.

Is the court suggesting that the statute needs to be read this way in order to prevent wily aliens from escaping § 1326 liability by voluntarily leaving the country prior to the issuance of a removal order? Seems far-fetched to me. More importantly, if § 1101(g) is ambiguous on this point, then the court should have applied the rule of lenity and resolved that ambiguity in favor of the defendant. Even if other canons of construction are merely "guides," surely the due-process aspects of the rule of lenity warrant its application here.

A final note: given the court's difficulty in parsing the (concededly confusing) INA, some amicus assistance from an immigration expert might have been helpful. Unfortunately, as Orin Kerr discussed some while back---in a post I am now unable to find at the Volokh Conspiracy---it is often difficult for potential amici to identify cases at the circuit court level in which their expertise could assist the court.

Court Must Aggregate All Revocation Imprisonment Terms When Calculating Maximum Supervised Release Term Available Under § 3583(h)

United States v. Vera, No. 07-20516 (5th Cir. Sept. 8, 2008) (Garza, Dennis, Minaldi)

When a district court revokes a defendant's supervised release and imposes a term of imprisonment, 18 U.S.C. § 3583(h) permits the court to impose an additional term of supervised release to be served following imprisonment. Subsection (h) also limits the permissible term of supervised release to that "authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release." (emphasis added).

Which leads to the question presented in Vera: if a defendant has been revoked multiple times, does the italicized language refer only to the length of the term of imprisonment imposed on the instant revocation, or to the aggregate length of all of the revocation imprisonment terms?

The court holds that § 3583(h) requires aggregation. In so holding, it aligned itself with the Fourth, Eighth, and Eleventh Circuits. Those courts relied on the dictionary definition of "any," which means "all." They also pointed to the legislative history of the 1994 amendments to § 3583, in which the bill's sponsor stated that “under [the amendments], a defendant would always be credited for incarceration time against both the cap on re-imprisonment and the maximum authorized period of supervised release.” According to Vera, no other court has held otherwise.

So what did that mean for Vera, who had originally been convicted of a Class C felony? He got 6 months on his first revocation, and 11 months on his second. Under the court's construction of § 3583(h), that meant that the maximum supervised release term he could have received on the second revocation was 19 months (36 months less 17 months). The district court had given him 25 months' supervised release on the second revocation, so Vera got a remand for resentencing.

The Government had argued that a 2003 PROTECT Act change to § 3583(h) eliminated any aggregation requirement. Prior to the change, subsection (h) only allowed an additional term of supervised release if the defendant received less than the maximum revocation imprisonment term. The 2003 amendment eliminated the "less-than" requirement, so now a defendant who gets a maximum revocation imprisonment term can also receive an additional term of supervised release (provided that the original offense occurred prior to the effective date of the PROTECT Act, for obvious ex post facto reasons). Vera rejected the Government's argument, pointing out that "[t]he amendment . . . addressed when the district court could impose supervised release upon revocation, but did not alter the formula for calculating how much supervised release the district court could impose."

So far, so good. But counsel should also be aware of a scary footnote in the opinion noting, but not resolving, a separate question created by the PROTECT Act. Both the pre- and post-PROTECT Act versions of § 3583(e)(3) set forth the maximum imprisonment term a defendant may receive upon revocation of supervised release. "Interpreting the pre-2003 version of subsection (e)(3), courts have held that in multiple revocation cases, the maximum term of imprisonment that may be imposed upon revocation is determined on a cumulative basis and not separately each time supervised release is revoked[,]" an aggregation requirement similar to that in subsection (h). The PROTECT Act changed (e)(3) "to state that the maximum term of imprisonment upon revocation applies 'on any such revocation.'" According to Vera, "[c]ourts reviewing this amended language have concluded that the maximum term of imprisonment that can be imposed upon revocation now applies on a per revocation basis, without regard to any term of imprisonment imposed in previous revocations." (citing an Eighth Circuit case collecting other cases). The court declined to resolve that question here, because it wasn't at issue. But it did observe that the lack of a similar change to subsection (h) bolstered its reading of the statute.

Under 18 U.S.C. § 844(h)(2), Carrying of Explosives Need Only Be "During," Not "In Relation To," Underlying Felony

United States v. Ressam, No. 07-455 (U.S. May 19, 2008)

Title 18 U.S.C. § 844(h)(2) makes it a crime to "carry an explosive during the commission of any [federal] felony." Ressam was convicted of that offense, and a § 1001 false statements count, for carrying explosives in his car trunk when he provided false identity information on a customs declaration form at a port of entry in Washington. The Ninth Circuit reversed Ressam's § 844 conviction, holding that the "during" element requires that the explosives be carried "in relation to" the other felony. Other circuits, including our very own Fifth Circuit, had interpreted § 844 to require only that the carrying be during the other felony. Hence cert.

The Supreme Court held, in a brief opinion authored by Justice Stevens, that "during" means "during" and only "during":

The term "during" denotes a temporal link; that is surely the most natural reading of the word as used in the statute. Because repondent's carrying of explosives was contemporaneous with his violation of § 1001, he carried them "during" that violation.

The Court also found this reading compelled by legislative history. As originally enacted, both § 844(h)(2) and § 924(c)(2) prohibited "unlawful" carrying of an explosive or firearm "during" another federal felony. Section 924(c)(2) was later amended to remove the requirment that the firearm-carrying be "unlawful," and to add that it must be "in relation to" the underlying felony. A few years later, Congress amended § 844(h)(2) to remove the term "unlawful," but it did not add an "in relation to" element as it did when it amended § 924(c)(2). The Court concluded that this history demonstrated Congress' intent not to require that explosives-carrying be in relation to the underlying felony.

(Justices Scalia and Thomas did not join the legislative history portion of the opinion, which is a little strange. Their usual objection is to the use of committee reports and such. But the Court here simply compares the evolution of two initially identical statutory provisions over time, which would seem to fall outside the typical objections to consideration of legislative history.)

But this is one of those cases in which the dissent is the more interesting part of the case. Justice Breyer, writing only for himself, pointed to some potentially absurd results produced by the majority's interpretation, since the statutory definition of "explosives" includes items such as kerosene, gasoline, or fertilizer:

Consequently the Court’s opinion brings within the statute’s scope (and would impose an additional mandatory 10-year prison term upon), for example, a farmer lawfully transporting a load of fertilizer who intentionally mails an unauthorized lottery ticket to a friend, a hunter lawfully carrying gunpowder for shotgun shells who buys snacks with a counterfeit $20 bill, a truckdriver lawfully transporting diesel fuel who lies to a customs official about the value of presents he bought in Canada for his family, or an accountant who engaged in a 6-year-long conspiracy to commit tax evasion and who, one day during that conspiracy, bought gas for his lawnmower. In such instances the lawful carrying of an "explosive" has nothing whatsoever to do with the unlawful felonies. I cannot imagine why Congress would have wanted the presence of totally irrelevant, lawful behavior to trigger an additional 10-yearmandatory prison term.

One might question whether Justice Breyer's parade of absurdities is consistent with his opinion for the Court in Gonzales v. Duenas-Alvarez, which held that, for purposes of the Taylor categorical approach,

to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute's language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.

Snark aside, Justice Breyer's main argument is a very good one (and one that arguably commanded a majority of the Court in Begay): "Context matters. And if judges are to give meaningful effect to the intent of the enacting legislature, they must interpret statutory text with reference to the statute's purpose and history."

The Court, with its decision today, makes possible the strange results I describe above precisely because it resolves the statutory interpretation question by examining the meaning of just one word in isolation. In context, however, the language excludes from the statute’s scope instances in which there is no significant relation between the explosives-carrying and the felony. A contextual interpretation furthers Congress’ original purpose, is less likely to encourage random punishment, and is consistent with the statute’s overall history. As a result, like the Ninth Circuit, I would read the statute as insisting upon some (other than merely temporal) relationship between explosives carrying and "felony."

Which is not to say that Justice Breyer "agree[d] with the Ninth Circuit that the statute restricts the requisite relationship to one in which the carrying of explosives 'facilitated' (or 'aided') the felony."

In my view, the statute must also cover a felony committed to facilitate the carrying of explosives. Why should it matter in which direction the facilitating flows? Either way, there is a relation between the carrying of explosives and the other felony. Either way, one might reasonably conclude that the presence of the explosives will elevate the risks of harm that otherwise would ordinarily arise out of the felony’s commission. Either way, one might consider the explosives "misused." Thus, I believe the statute applies if the felony, here, the making of a false statement to a customs officer, facilitated or aided the carrying of explosives.

Despite the fact that Justice Breyer's opinion didn't carry the day (or garner any other votes) here, you should keep the "context matters" argument in mind. Sometimes it works.

Applicable Recidivist Enhancements Determine "Maximum Term of Imprisonment" for ACCA "Serious Drug Offense" Predicate

United States v. Rodriquez, No. 06-1646 (U.S. May 19, 2008)

The Court has been struggling recently with the interpretation of the Armed Career Criminal Act. What's striking about these recent decisions is that they don't seem to apply any predictable or consistent framework for interpreting the poorly-drafted provisions of the ACCA, and that you're about as likely to predict the voting lineup by pulling the justices names out of a hat as you are by tracking their votes and reading their opinions in these cases. (see, e.g., Professor Anita Krishnakumar's ruminations on Begay and Rodriquez at Concurring Opinions). If anything, yesterday's decision in Rodriquez is the most perplexing of them all, as it includes a holding that doesn't seem at all reconcilable with the Court's recent explication of the rule of Apprendi (with the agreement of two Apprendi stalwarts, no less). But on the up side, it recognizes an important procedural limitation on the application of the ACCA, so you'll want to put the case on your to-read-soon list.

The ACCA, as you know, provides for an enhanced punishment for gun-possessing felons who have at least three prior convictions for a "violent felony" or "serious drug offense." An SDO is a drug offense "for which a maximum term of imprisonment of ten years or more is prescribed by law." The question is Rodriquez is whether the "maximum term of imprisonment" takes recidivist enhancements into account.

The question arose in Rodriquez's case because of his three prior Washington state convictions for delivery of a controlled substance (he also had two prior California residential burglary convictions). The relevant state statutes established a maximum sentence of five years for that basic offense, but also authorized a sentence of up to ten years for "[a]ny person convicted of a second or subsequent offense." The state judgment listed the maximum sentence as "ten years," but Rodriquez was sentenced to only 48 months on each count, which was apparently the maximum term authorized by the Washington sentencing guidelines.

The Court held---in an opinion written by Justice Alito for a six-robe majority---that the plain meaning of the terms "offense," "law," and "maximum term" mean that the "the maximum term prescribed by Washington law for at least two of respondent's state drug offenses was 10 years." In so holding, the Court reversed the Ninth Circuit's decision below, which had held that the "maximum term of imprisonment" under the ACCA is determined without regard to recidivist enhancements. The Court concluded that the Ninth Circuit's approach would lead to absurd results; for example, if Rodriquez had been sentenced to six years on the drug charges, the Ninth Circuit's approach would still treat those offenses as being subject only to a five-year maximum for ACCA purposes. The Court also found "[t]he Ninth Circuit's interpretation . . . inconsistent with the way in which the concept of the 'maximum term of imprisonment" is customarily understood by participants in the criminal justice process."

Rodriquez made a laundry list of arguments, all of which the Court rejected. (I'll only discuss a few of the more significant ones here.) He argued that the term "offense" typically refers only to the elements of a crime, and that because prior convictions are not typically treated as offense elements, they are not part of the "offense" for ACCA purposes. The Court, begging the question, simply responded that

[Rodriquez's] argument is not faithful to the statutory text. [He] reads ACCA as referring to "the maximum term of imprisonment prescribed by law" for a defendant with no prior convictions that trigger a recidivist enhancement, but that is not what ACCA says. ACCA instead refers to "the maximum term of imprisonment prescribed by law" for "an offense," and, as previously explained, in this case, the maximum term prescribed by Washington law for each of respondent’s two relevant offenses was 10 years.

Rodriquez also argued that it'll be a huge headache for district courts to determine whether a defendant faced a recidivist enhancement for a prior offense. The Court---in a very important paragraph that reveals a significant procedural limitation on the ACCA enhancement---was more sanguine:

First, in some cases, a defendant will have received a recidivist enhancement, and this will necessarily be evident from the length of the sentence imposed. Second, as the present case illustrates, the judgment of conviction will sometimes list the maximum possible sentence even where the sentence that was imposed did not exceed the top sentence allowed without any recidivist enhancement. Third, as respondent himself notes, some jurisdictions require that the prosecution submit a formal charging document in order to obtain a recidivist enhancement. Such documents fall within the limited list of generally available documents that courts already consult for the purpose of determining if a past conviction qualifies as an ACCA predicate. See Shepard v. United States, 544 U. S. 13, 20 (2005). Fourth, in those cases in which the defendant pleaded guilty to the state drug charges, the plea colloquy will very often include a statement by the trial judge regarding the maximum penalty. This is mandated by Federal Rule of Criminal Procedure 11(b)(1)(H), and many States have similar requirements. Finally, in those cases in which the records that may properly be consulted do not show that the defendant faced the possibility of a recidivist enhancement, it may well be that the Government will be precluded from establishing that a conviction was for a qualifying offense. The mere possibility that some future cases might present difficulties cannot justify a reading of ACCA that disregards the clear meaning of the statutory language.

(record cites omitted). This paragraph is critical, because it reveals that the Government must establish that the defendant actually faced a recidivist enhancement in the prior proceedings, not simply that a recidivist enhancement was possible. So, for example, it would not be enough to show that a defendant was convicted of a drug offense under a statute providing for a recidivist enhancement, and that he had previously been convicted of a qualifying predicate. If that was the case, then the Court would have just said that. Instead, the Court's examples demonstrate the Government must show---based on the sentence imposed, Shepard-type documents, or maybe a transcript of a plea colloquy---that the enhanced penalty was actually in play in the state case. And if the Government can't do that, then the ACCA enhancement would not apply.

The Court saved the most controversial holding for last. And by "controversial" I mean that it completely ignores recent Supreme Court holdings from the Apprendi line of cases. It also involves a question that Rodriquez conceded, in his brief in opposition, that he'd waived, so there's good reason to question why the Court addresses the issue in the first place.

Rodriquez argued that, in a state where mandatory sentencing guidelines cap a sentence below the theoretically applicable statutory maximum, the guidelines maximum is the "maximum term of imprisonment" for ACCA purposes. For example, even though the relevant statutes authorized a sentence of up to ten years' imprisonment for at least two of Rodriquez's drug convictions, it appears that the Washington sentencing guidelines authorized a sentence of no more than 48 months.

But the Court held that Congress intended for the "maximum term of imprisonment" to be the highest sentence authorized by statute, not the highest sentence available under sentencing guidelines. First, the Court said, "the top sentence in a guidelines range is generally not really the 'maximum term . . . prescribed by law' for the 'offense' because guidelines systems typically allow a sentencing judge to impose a sentence that exceeds the top of the guidelines range under appropriate circumstances."

Astonishingly, the Court doesn't attempt to reconcile this conclusion with its recent holdings in Blakely or Cunningham. The effect of those decisions is that the highest possible maximum sentence is not authorized in every case; that is, for some defendants in Washington, California, and other states that have Blakely-ized their guidelines, a sentence in excess of the guidelines maximum (or California's DSL default middle-term) would violate the Fifth and Sixth Amendment rights to proof beyond a reasonable doubt and to trial by jury. But not only is the Court completely silent on this glaring conflict, it actually cites the availability of upward departures under the current post-Booker advisory federal Sentencing Guidelines, and under the pre-Blakely Washington sentencing guidelines, as evidence that "essentially the same characteristic was shared by all of the mandatory guidelines systems in existence at the time of the enactment of the ACCA provision at issue in this case."

And that appears to be the lynchpin of the Court's holding, because it adds that "the concept of the 'maximum' term of imprisonment or sentence prescribed by law was used in many statutes that predated the enactment of ACCA and the federal Sentencing Reform Act of 1984, and in all those statutes the concept necessarily referred to the maximum term prescribed by the relevant criminal statute, not the top of the sentencing guideline range." Thus, "[i]n light of this established pattern and the relative newness of sentencing guidelines systems when the ACCA provision at issue here was added, we conclude that Congress meant the concept of the 'maximum term of imprisonment' prescribed by law for an 'offense' to have [the] same meaning in ACCA.

Recognizing that this result also seems inconsistent with the Court's construction of the Federal Juvenile Delinquency Act in United States v. R.L.C., the Court had this to say:

The statutory provision there, 18 U. S. C. §5037(c), set out the term of official detention for a juvenile found to be a delinquent. This provision was amended by the Sentencing Reform Act, and then amended again two years later. As thus amended, the provision did not refer to the "maximum term of imprisonment" prescribed for an "offense." Rather, the provision focused on the particular juvenile being sentenced. It provided that, "‘in the case of a juvenile who is less than eighteen years old,’" official detention could not extend beyond the earlier of two dates: the juvenile’s 21st birthday or "‘the maximum term of imprisonment that would be authorized if the juvenile had been tried and convicted as an adult.’" Because this provision clearly focuses on the circumstances of the particular juvenile and not on the offense, it is not analogous to the ACCA provision that is before us in this case.

(most citation clutter omitted).

All this brings up a couple of questions. First, the Court is likely correct about circa ACCA/SRA-era understanding of the interaction between guidelines and statutory maximums. But that's no answer to the question of why that understanding should remain controlling more than twenty years later after the Court has repeatedly addressed that very issue and held that, depending on the operation of the state sentencing scheme, a sentence in excess of the guidelines maximum may be constitutionally prohibited. It also calls into question the so-called remedy in Booker, which rested on the notion that Congress originally intended for the federal Guidelines to be mandatory, but would not have wanted them to be mandatory if that would implicate constitutional procedural protections concerning pleading, the burden of proof, and the identity of the fact-finder for Guidelines calculations. If the Court could revise the Sentencing Reform Act to take into account what it believed Congress' intent would have been in light of the Booker merits holding, then why can't it reevaluate Congressional understanding of the term "maximum term of imprisonment" in light of Blakely, Booker, and Cunningham?

A second question is whether the same would hold true for a defendant whose relevant state convictions, in a mandatory-guidelines state, occurred after Blakely, especially a state that formally "Blakely-ized" its guidelines by judicial decision or legislative action. We know that, by that time, the understanding of a guidelines maximum was different than it was twenty-odd years ago. And we know that, at least as of 2004, Congress is well aware that in some states the guidelines maximum "trumps" a higher statutory maximum. It's hard to say for sure whether the Court would view that situation differently, but the majority opinion does provide some support for an argument that in such a situation the guidelines maximum is the controlling one for ACCA purposes:

The United States Sentencing Guidelines, for example, permit "upward departures," see United States Sentencing Commission, Guidelines Manual §5K2.0 (Nov. 2007), and essentially the same characteristic was shared by all of the mandatory guidelines system in existence at the time of the enactment of the ACCA provision at issue in this case. (Following this pattern, Washington law likewise provided at the time of respondent’s state convictions that a sentencing judge could "impose a sentence outsidethe standard sentence range" upon a finding "that there [were] substantial and compelling reasons justifying an exceptional sentence." Wash. Rev. Code §9.94A.120(2) (1994).)

(emphasis added). That's hardly conclusive, I know, but it's hard not to ask the question when it might provide some explanation for the Court's otherwise inexplicable silence on Blakely and kin.

You might read this portion of the case as a refusal on the part of some justices to accept the entire Apprendi line of cases, similar to Justice Breyer's position in Harris. But that doesn't explain why both Justices Scalia and Thomas join the majority here. They've both been staunch proponents of the rule of Apprendi (with Justice Thomas being arguably the staunchest), and Justice Scalia wrote Blakely. Why they joined this opinion is a mystery, as neither one of them wrote a separate opinion in the case. And their two votes were critical for the six-justice majority.

In fact, you might have expected them to join Justice Souter's outstanding dissent, as Justices Stevens and Ginsburg did. Justice Souter's major disagreement is elegantly simple: the statute is ambiguous on the question presented because the Government's and defendant's competing interpretations are at least equally plausible, thus triggering the rule of lenity. That rule prohibits reading the statute "so as to increase the penalty that it places on an individual when such an intepretation can be based on no more than a guess as to what Congress intended." As applied here, that would mean that the "maximum term of imprisonment" be read to refer to the maximum for the base offense, without reference to any recidivist enhancements.

Apart from that, Justice Souter catalogues a number of problems with the majority's interpretation of the statute, including the wide variation in the mechanics and severity of states' recidivist schemes, and the practical problems in determining exactly what the maximum sentence might have been for a particular recidivist, as opposed to the maximum for a basic offense. He also takes issue with the majority's resolution of the guidelines-vs.-statutory maximum question, although (strangely) without mentioning Blakely, Booker, and Cunningham. Instead, Justice Souter points out the arbitrariness of relying on one particular offender characteristic (recidivism) to the exclusion of other offender characteristics that are typically taken into account in guidelines calculations, as they are both "prescribed by law":

The Court tries to deflect the implication of its position by denying that state sentencing guidelines really do set maximum penalties, since typically they allow a judge to depart from them, up or down, when specified conditions are met. But while this is true, the objection stands. However a particular mandatory guideline scheme works, it sets a maximum somewhere; if it includes conditions affecting what would otherwise be a guideline maximum, the top of the range as affected should be the relevant maximum on the Court’s reading of the statute. Indeed, the factual conditions involved are usually offender characteristics, and if the ACCA is going to count them under offense-defining statutes or freestanding recidivism laws, those same facts ought to count under a guideline rule (whether setting, or authorizing a departure from, a particular limit). There is no practical difference whether maximums are adjusted by a statute, a statutorily mandated guideline, or a guideline-specified departure; wherever a "prescri[ption] by law" resides, itought to be honored by the ACCA court.

I encourage you to read the whole thing.

Failure to Pay Child Support Obligation is a Continuing Offense

United States v. Edelkind, No. 06-30777 (5th Cir. Apr. 15, 2008) (Reavley, Smith, Dennis)

Title 18 U.S.C. § 228(a)(3) makes is a crime to "willfully fail[] to pay a support obligation with respect to a child who resides in another State, if such obligation has remained unpaid for a period longer than two years, or is greater than $10,000[.]" The statute of limitations for this offense is five years. When does the SOL begin to run?

Edelkind, who was convicted of this offense, argued that the crime is complete as soon as the arrearage reaches two years or $10,000, and that the SOL begins running at that point. He made this argument because his unpaid child support obligation reached $10,000 in October 1999, at the latest, meaning that under his interpretation of the offense the SOL expired in October 2004. He wasn't indicted until October 2005.

The Government argued that § 228(a)(3) is a continuing offense and does not terminate until the obligation is paid or the person is indicted. The court agreed, for several reasons. First, other federal courts of appeals, as well of a majority of state courts that have addressed this issue, treat failure-to-pay as a continuing offense. "A strong majority of the state courts is significant in this context because Congress’s driving concern when enacting 18 U.S.C. § 228(a) was to strengthen the enforcement of state crimes of wilful failure to pay child support when a parent crosses state lines."

Second, statutory language and legislative history indicate that Congress intended this to be a continuing offense. "The nature of a continuing offense is that 'each day's acts bring a renewed threat of the substantive evil Congress sought to prevent.'" The statute's reference to a period "longer than" two years and to an amount "greater than" $10,000 demonstrates that "Congress . . . imagined the criminalized conduct to last continuously beyond a 2-year period or the accumulation over $10,000." Also, statements in legislative history show that Congress sought to target parents who shirk their legal and financial obligations to their children, as well as the burden on custodial parents who have to constantly seek to have support orders enforced.

Finally, the court pointed out that under Edelkind's proposed interpretation of the statute, what Congress intended to be a single crime could potentially become a number of crimes.

[I]f a defendant owes, for example, $11,000 a month in support, and refuses to pay, the crime [would be] complete every single month. In one year, the defendant could conceivably be responsible for twelve separate crimes of $11,000, each carrying with it a potential sentence of up to 24 months for a total of a 264 months maximum. Under a “continuous offense” approach, however, the defendant would only be accountable for one continuous crime involving losses of $132,000, and would be subject to just a 24 month maximum sentence. Congress clearly did not intend to attach lengthy jail-times for this crime, but merely wanted to use the threat of a two-year maximum to create an incentive for “deadbeat” parents to fulfill their ongoing obligations to their children.

SCOTUS: CSA's "Felony Drug Offense" Is Term of Art, Does Not Depend on State Classification of Offense as Felony or Misdemeanor

Burgess v. United States, No. 06-11429 (U.S. Apr. 16, 2008)

The good news is that fans of statutory construction get two decisions to gnaw on today. The bad news is that you've already heard about the good one.

The question in Burgess, which has produced a circuit split, "is whether a state drug offense classified as a misdemeanor, but punishable by more than one year's imprisonment, is a 'felony drug offense' as that term is used in [21 U.S.C.] §841(b)(1)(A)." The question arises because of two apparently conflicting definitions in the Controlled Substances Act:

Section 802(13) defines the unadorned term "felony" to mean any"offense classified by applicable Federal or State law as afelony." Section 802(44) defines the compound term "felony drug offense" to mean an offense involving specifieddrugs that is "punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country."

The Court holds, unanimously, that the term "felony drug offense" is "defined exclusively by §802(44) and does not incorporate §802(13)'s definition of 'felony.'" It concludes that Congress defined "felony drug offense" as a term of art "without reference to §802(13)[,]" for several reasons:

First, 802(44) provides that "the term 'felony drug offense' means an offense that is punishable by imprisonment for more than one year," and generally "[a] definition which declares what a term 'means' . . . excludes any meaning that is not stated."

Second, "the term 'felony' is commonly defined to mean a crime punishable by imprisonment for more than one year." Since 802(44) defines an FDO as "an offense . . . punishable by imprisonment for more than one year[,]" there is no gap for 802(13)'s "felony" definition to fill.

Third, if Congress wanted to incorporate 802(13)'s felony definition in 802(44), it could have defined an FDO as "a felony that is punishable for more than one year . . . . " (The Court points out that Congress has nested definitions in this manner elsewhere in the U.S. Code, but distinguishes Burgess's examples of "defined words nested within defined phrases where . . . the definition of the word is embraced within the phrase, although the word is not repeated in the definition of the phrase.")

Fourth, interpreting 802(44) to incorporate 802(13) would lead to anomalies in that it would wind up excluding foreign offenses (because 802(13) refers only to federal or state offenses, whereas 802(44) refers to state, federal, and foreign offenses). It would also exclude offenses in states that don't classify offenses as felonies or misdemeanors. (The latter "anomaly" is actually pretty minor. The opinion cites only two states that don't classify: New Jersey and Maine. But it also cites a case acknowledging that New Jersey common law classifies offenses punishable by more than one year as felonies. So we're left with Maine, and given the state's low population, it's hard to imagine that its lack of misdemeanor/felony classification could affect very many 841 enhancement determinations.)

Fifth, reading 802(44) in this way does not render 802(13) superfluous because there are at least several places in the CSA that rely on the "unadorned" felony definition in 802(13).

The Court also concludes that a change in the relevant provisions in 1994 confirms its construction of the statute, but I won't bore you with the details of that.

Finally, and least persuasively, the Court declares that the rule of lenity has no application here because the statute isn't ambiguous. The decision may be unanimous, but I think it's a stretch to say there's no ambiguity at all.

(Interesting aside: the Court issued its opinion in this case just 23 days after oral argument.)

Begin the Begay (-Based Arguments, That Is): SCOTUS Holds Felony DUI Not an ACCA "Violent Felony"

Begay v. United States, No. 06-11543 (U.S. Apr. 16, 2008)

Today's Supreme Court news will likely be dominated by coverage of Baze v. Rees, the lethal-injection case, but today's decision in Begay will likely have a far bigger impact in terms of the number of cases affected.

At issue in Begay was whether felony DUI is a "violent felony" for purposes of the Armed Career Criminal Act's 15-year mandatory minimum sentence. More specifically, does felony DUI qualify under 18 U.S.C. § 924(e)(2)(B)(ii), which includes an offense that "is burglary, arson, or extortion, or otherwise involves conduct that presents a serious potential risk of physical injury to another." (emphasis added).

The answer: No. The Court concluded that, in order to give effect to every word in the definition, the "otherwise clause" must be interpreted to include only offenses that "are roughly similar, in kind as well as in degree of risk posed, to the" listed offenses. And how do we know if that rough similarity exists?

The listed crimes all typically involve purposeful, "violent," and "aggressive" conduct. . . . That conduct is such that it makes [it] more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim. Crimes committed in such a purposeful, violent, and agressive manner are "potentially more dangerous when firearms are involved." And such crimes are "characteristic of the armed career criminal, the eponym of the statute."

(internal cites purposefully, perhaps aggressively, but definitely not violently, omitted). Measured against that standard, felony DUI doesn't make the cut:

By way of contrast, statutes that forbid driving under the influence, such as the statute before us, typically do not insist on purposeful, violent, and aggressive conduct; rather, they are, or are most nearly comparable to, crimes that impose strict liability, criminalizing conduct in respect to which the offender need not have had any criminal intent at all.

(Id.) This construction is consistent with the ACCA's overall purpose, which is to address the special danger present when certain types of particularly dangerous felons possess guns:

In this respect---namely, a prior crime's relevance to the possibility of future danger with a gun---crimes involving intentional or purposeful conduct (as in burglary and arson) are different than DUI, a strict liability crime. In both instances, the offender's prior crimes reveal a degree of callousness towards risk, but in the former instance they also show an increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger. We have no reason to believe that Congress intended a 15-year mandatory prison term where that increased likelihood does not exist.

As Justice Scalia points out in his opinion concurring in the judgment, the majority's construction of the statute "excludes a slew of crimes from the scope of the residual clause[.]" So there's plenty of room to start litigating this issue with renewed vigor, and to attack prior decisions finding various crimes to fall within the residual clause.

By the way, why didn't Justice Scalia join the majority? As in James, he complains that the majority's test provides insufficient guidance to lower courts. Instead, he would apply the test he proposed in James: the risk of physical injury presented by the offense in question must be equivalent to or greater than the risk posed by the least serious enumerated offense, which is burglary. Justice Scalia then concludes that drunk driving doesn't present that level of risk. Although DUI is dangerous and kills thousands of people a year, it is impossible to know how serious that risk is without knowing how many instances of DUI there are in a year and those statistics aren't available. For some crimes, the severity of the risk is obvious, but that's not the case with DUI. And because one "can do more than guess as to whether drunk driving poses a more serious risk than burglary[,]" the rule of lenity kicks in and the enhancement cannot be applied.

Justice Alito, joined by Justices Souter and Thomas, dissented. He makes a number of interesting points, but his argument boils down to this: DUI is itself quite dangerous and easily fits within the literal language of the otherwise clause, and repeat DUI-ers who possess guns pose a danger just as serious as that posed by repeat burglars, arsonists, and so forth.

Finally, congrats to New Mexico AFPD Margaret Katze, lead counsel for Mr. Begay, as well as to all the others who helped on this very big win.

"Any Blank Permit" In Second Paragraph of 18 U.S.C. § 1546(a) Includes Both Real and Fake Documents

United States v. Uvalle-Patricio, No. 05-40309 (5th Cir. Feb. 12, 2007) (Smith, Garza, Clement)

18 U.S.C. § 1546(a) criminalizes a variety of conduct relating to immigration document fraud. "The first paragraph of § 1546(a) criminalizes possession of forged immigration documents[,]" while the second paragraph, "as a whole, criminalizes possession of materials that can be used to produce false immigration documents." Slip op. at 4-5.

Uvalle was caught at a Border Patrol checkpoint with fake blank I-551 (green card) forms. The government charged him under the portion of the second paragraph of § 1546(a) that prohibits "knowingly possess[ing] any blank permit[.]" Uvalle argued that "any blank permit" only refers to the possession of real documents, not fake ones.

The court of appeals disagreed. Relying on what it considered to be the plain language of the statute, as well as "the operation of the statute as a whole and in context with other provisions[,]" it held that "any blank permit" includes both real and fake documents.