Louisiana Aggravated Battery Is Not a § 2L1.2 Crime of Violence

United States v. Hernandez-Rodriguez, No. 14-40321 (5th Cir. June 5, 2015) (Clement, Prado, Elrod)

This case involved determining whether the least culpable means of committing aggravated battery under Louisiana law involves conduct within the scope of the generic, contemporary meaning of “aggravated assault.” This classification determines whether the district court’s application of a sixteen-level enhancement for a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii) is valid. The panel considers both the force clause and the enumerated offence clause for COV classification.

The Louisiana statue under which Hernandez-Rodriguez was convicted defines aggravated battery as “a battery committed with a dangerous weapon.” La. Rev. Stat. § 14:34. Louisiana’s criminal code then defines battery as either (1) “the intentional use of force or violence upon the person of another” or (2) “the intentional administration of a poison or other noxious liquid or substance to another.” Under state law, the term “dangerous weapon” includes any liquid, gas, substance or instrument that “in the manner used, is calculated or likely to produce death or great bodily harm.” § 14:2(A)(3).

This does not qualify under the force prong of § 2L1.2 because there are no Shepard-compliant documents identifying the subpart of the statute that forms the basis of his conviction.  Since the administration of poison alternative cannot be excluded, the least culpable act did not necessarily involve destructive or violent force.  United States v. Herrera-Alvarez, 753 F.3d 132 (5th Cir. 2014).

Nor does it qualify as a generic aggravated assault.  Under the Model Penal Code, a person is guilty of aggravated assault if he/she “attempts to cause serious bodily injury to another” or causes such injury “purposely, knowingly, or recklessly” or if he/she “attempts to cause” or “purposely or knowingly causes bodily injury to another with a deadly weapon.” Thus, the generic definition of aggravated assault requires a showing of specific intent, while the Louisiana offense of aggravated battery is a general intent offense.  Moreover, the requisite intent for Louisiana aggravated battery relates only to the defendant’s conduct, not to the infliction of serious bodily harm or the intent to inflict serious injury as in the Model Penal Code.  The panel provides a detailed example from Louisiana case law of how it is broader than generic aggravated assault and vacates the sentence and remands for resentencing.

Thanks to FPD Intern Samantha Canava for this blog post.

ACCA Residual Clause Unconstitutional

Johnson v. United States, No. 13-7120, 576 U.S. __ (2015) (Scalia, Roberts, Ginsburg, Breyer, Sotomayor, Kagan; concurring opinions by Kennedy and Thomas; dissenting opinion by Alito) 

 

From the opinion:

 

"In Taylor v. United States, 495 U. S. 575, 600 (1990), this Court held that the Armed Career Criminal Act requires courts to use a framework known as the categorical approach when deciding whether an offense "is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." Under the categorical approach, a court assesses whether a crime qualifies as a violent felony "in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion." Begay, supra, at 141.

 

Deciding whether the residual clause covers a crime thus requires a court to picture the kind of conduct that the crime involves in "the ordinary case," and to judge whether that abstraction presents a serious potential risk of physical injury. James, supra, at 208. The court’s task goes beyond deciding whether creation of risk is an element of the crime. That is so because, unlike the part of the definition of a violent felony that asks whether the crime "has as an element the use . . . of physical force," the residual clause asks whether the crime "involves conduct" that presents too much risk of physical injury. What is more, the inclusion of burglary and extortion among thee numerated offenses preceding the residual clause confirms that the court’s task also goes beyond evaluating the chances that the physical acts that make up the crime will injure someone. The act of making an extortionate demand or breaking and entering into someone’s home does not, in and of itself, normally cause physical injury. Rather, risk of injury arises because the extortionist might engage in violence after making his demand or because the burglar might confront a resident in the home after breaking and entering.

We are convinced that the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant’s sentence under the clause denies due process of law."
 
See analysis at scotusblog.com.

Georgia Possession With Intent to Distribute Is § 2L1.2 DTO Even Though Not an Aggravated Felony Per Moncrieffe; No Remuneration Required

United States v. Martinez-Lugo, No. 13-40924 (5th Cir. Mar. 27, 2015) (Davis, Dennis, Costa) (per curiam)

The Fifth Circuit giveth and then taketh away.  For 3 months, giving away drugs was not a § 2L1.2 drug trafficking offense (DTO) thanks to the now superseded United States v. Martinez-Lugo, 773 F.3d 678 (5th Cir. Dec. 11, 2014) (Davis, Dennis, Costa).  Last week, the panel sua sponte withdrew its prior opinion and substituted an opinion that finds a conviction for Georgia conviction for possession with intent to distribute (PWID) marijuana is a § 2L1.2 DTO even though the Supreme Court held it was not an aggravated felony in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013).  Lack of remuneration does not prevent Georgia PWID from being a § 2L1.2 DTO. 

In the withdrawn opinion, the majority focused on the common sense definition of “drug trafficking offense.”  The Moncrieffe court reiterated the Supreme Court’s previous recognition that “the everyday understanding of ‘trafficking’ . . . ordinarily means some sort of commercial dealing.”  Since the Georgia PWID statute does not require remuneration, the Martinez-Lugo majority in the withdrawn opinion found that it was not categorically a DTO.

In the new opinion, the majority focuses on the elements of a federal drug trafficking offense and compares them, rather than the Moncrieffe definition of “trafficking,” to the Georgia PWID statute.  Moncrieffe recognized that the elements of Georgia PWID and PWID under the Controlled Substances Act (CSA) are the same.  The only reason Georgia PWID is not an aggravated felony is that the distribution of a small amount of marijuana for no remuneration is a misdemeanor under the CSA, and only CSA felonies would be an aggravated felony.  In contrast, § 2L1.2 does not require that an offense be a CSA felony in order to be a DTO. 

The new Martinez-Lugo majority opinion claims Martinez-Lugo never argued that the elements of Georgia PWID differ from the elements of the generic, contemporary PWID offense but instead argued that Moncrieffe controls.  The majority “decline[s] to extend Moncrieffe to the different scheme embodied in the Guidelines absent clear direction to do so. . . . Under a straightforward application of the categorical approach, the Georgia offense under which Martinez-Lugo was convicted has the same elements as the generic possession with intent to distribute offense.” 

Judge Dennis dissents.  He interprets Moncrieffe as making clear that the generic definition of a “trafficking” does not include sharing a small amount of marijuana for no remuneration.  The CSA recognizes this by treating such an offense as a misdemeanor simple possession.  Since the categorical approach requires a court to examine the least culpable act punishable under a statute, which would include sharing a small amount of marijuana for no remuneration, Georgia PWID is not a § 2L1.2 DTO.  Judge Dennis also criticizes the “ironic and illogical inconsistency” that, under the majority’s decision, Martinez-Lugo receives a 16-level enhancement for a DTO but would not be subject to the 8-level enhancement for an aggravated felony.

Note:  This is the second time in three years that a Fifth Circuit panel initially resolved a § 2L1.2 DTO issue in favor of the defendant and then withdrew the opinion and entered an opinion affirming the enhancement.  See United States v. Rodriguez-Escareno, 700 F.3d 751, 753 (5th Cir. 2012) (superseding prior opinion that held conspiracy to distribute meth was not a DTO).

Texas Aggravated Assault with Deadly Weapon Conviction Is Generic “Aggravated Assault” even though Judgment of Conviction Had No Affirmative Weapon Finding

United States v. Sanchez-Sanchez, No. 14-10305 (5th Cir. Feb. 24, 2015) (Higginbotham, Smith, Graves)

This case involved the reliability of a judgment of conviction to determine that Sanchez-Sanchez’s prior state conviction constituted “aggravated assault” in the generic sense to support the 16-level enhancement under § 2L1.2. 

The parties agreed that Sanchez-Sanchez was convicted under the Texas aggravated assault statute, Tex. Penal Code § 22.02(a).  Section 22.02(a) contains offenses that are COVs (such as assault with a deadly weapon) and ones that are not (such as simple assault on a peace officer). Under the modified categorical approach, the panel can rely on Shepard documents to narrow Sanchez-Sanchez’s conviction to a specific offense under § 22.02(a). 

Sanchez-Sanchez pled guilty in Texas to aggravated assault with a deadly weapon, and the indictment alone would establish a conviction for aggravated assault with a deadly weapon.  Sanchez-Sanchez argues, however, that the judgment casts doubt on whether he was convicted under that subsection because the judgment does not make an affirmative finding as to the use of a deadly weapon.

The panel concludes that the judgment is not inconsistent with the indictment because, in Texas, an “affirmative finding” that a deadly weapon was used is significant only for the determination of whether probation or parole can be granted.  “In other words, the failure to make such an affirmative finding relates to sentencing, not to the underlying offense conduct.”  The panel discusses competing interpretations by lower Texas appellate courts about the trial court’s discretion to decline to enter the affirmative finding in the judgment, but concludes that this disagreement does not change the holdings by the Texas Court of Criminal Appeals on which the panel relies.  “The absence of an affirmative finding does not amount to a finding that the offense did not involve a deadly weapon.”  The sentence is affirmed.

The updated § 2L1.2 Crime of Violence list is available on fd.org.

Presumed Intent to Distribute due to Quantity of Drug Does Not Make Florida Trafficking in Meth a § 2L1.2 Drug Trafficking Offense

United States v. Sarabia-Martinez, No. 14-50064 (5th Cir. Feb. 20, 2015) (Reavley, Jones, Elrod)

How can an offense called trafficking in methamphetamine not be a drug trafficking offense?  Well, Florida Statute § 893.135(1)(f) includes mere possession as a form of “trafficking” provided the defendant possesses at least 14 grams of methamphetamine.  Under the U.S. Sentencing Guidelines, though, presumption of intent to distribute due to the possession of a certain quantity of the drugs does not create a drug trafficking offense.  United States v. Lopez-Salas, 513 F.3d 174, 179-80 (5th Cir. 2008).

So, Florida trafficking in methamphetamine is not categorically a drug trafficking offense.  No Shepard documents narrowed Sarabia-Martinez’s conviction to a form of trafficking other than mere possession, and the district court plainly erred by relying on facts contained in the Presentence Investigation Report to conclude that the conviction was for drug distribution.  The panel rejected the Government’s argument, based on non-Shepard documents, that the error did not work an injustice and that remand would be improper.  The panel reasoned the “facts asserted in the ‘arrest report’ now provided by the government were never confirmed by Sarabia-Martinez” and declined drawing “any conclusions from documents the district court would not be permitted to consider.”  The erroneous enhancement resulted in a notable sentencing disparity, and Sarabia-Martinez had no other significant convictions or prior reentry convictions.  The sentence was vacated and remanded for resentencing.

Updated § 2L1.2 Crime of Violence list, which includes some drug trafficking offenses, is available on fd.org.

Giving Away Drugs Is Not A § 2L1.2 Drug Trafficking Offense (Opinion Withdrawn)

The Fifth Circuit sua sponte withdrew the opinion described below and replaced it with

United States v. Martinez-Lugo, No. 13-40924 (5th Cir. Mar. 27, 2015) (Davis, Dennis, Costa) (per curiam).  The new opinion holds affirms the district court and applies the 16-level enhancement after finding that Moncrieffe does not control.  See the blog post from April 3 on the new opinion for more information.

US v. Martinez-Lugo, No. 13-40924 (5th Cir. Dec. 11, 2014) (Davis, Dennis, Costa) (withdrawn on March 27, 2015)

At long last, the Fifth Circuit finally had to address whether a § 2L1.2 drug trafficking offense (DTO) includes giving away drugs without remuneration.  After rejecting similar arguments raised by defendants on plain error review, the panel resolved this question in Martinez-Lugo’s favor, albeit by a split panel. 

Martinez-Lugo’s conviction was under Georgia Code Annotated section 16-13-30(j)(1), the same statute at issue in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013).  In Moncrieffe, the Supreme Court held that the conviction was not an aggravated felony—illicit trafficking in a controlled substance, defined in part as a felony under the Controlled Substance Act (CSA)—because the CSA treats distribution of a small amount of marijuana for no remuneration as a misdemeanor.  

Section 2L1.2 does not define a DTO other than in the Application Notes, and the Application Note definition does not refer to the CSA.  So, the holding of Moncrieffe does not control.  Nevertheless, the majority relies on Moncrieffe’s language that “the everyday understanding of ‘trafficking[]’ ordinarily . . . means some sort of commercial dealing.”  Since the Application Note definition of DTO, which includes “possession . . . with intent to distribute” would conflict with the common understanding of the term “trafficking” if distribution did not require remuneration, the panel only applies the language of the § 2L1.2 guideline and finds that Martinez-Lugo’s conviction for an offense that could include giving away marijuana cannot support the 16-level enhancement.

Judge Costa dissents, urging the “straightforward result” that flows from the § 2L1.2 Application Note definition of a DTO.  Since Martinez-Lugo was convicted of possession with intent to distribute, Judge Costa maintains the 16-level enhancement applies.

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

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

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

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

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

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

Absent Proof to the Contrary, Government Does Not Have to Prove No Other Charging Document Exists to Narrow Conviction Under Modified Categorical Approach

US v. Castellon-Aragon, No. 13-41244 (5th Cir. Nov. 24, 2014) (Jolly, Jones, Africk)

Castellon-Aragon challenged the 12-level enhancement for his drug conviction, arguing that the Government presented insufficient evidence that his conviction under the broad statute, California Health and Safety Code section 11378, was for possession of methamphetamine for sale.  The panel rejects this argument largely due to the plain-error stature of the case and the absence of any evidence that Castellon-Aragon did not plea to the criminal complaint.  The criminal complaint refers to methamphetamine as the basis for his conviction.  The district court did not plainly err by “failing to require the Government to prove a negative: that no superseding charging instrument was filed such that Castellon-Aragon might have pled guilty to an offense that didn’t specify methamphetamine[.]”

This decision leaves undisturbed the analysis of the unpublished decision upon which Castellon-Aragon relied: United States v. Lopez-Cano, 516 F. App’x 350 (5th Cir. 2013) (unpublished).  In Lopez-Cano, the error was preserved.  The panel held that certain California court documents were not proper Shephard documents because they were prepared by the court and not by a judge.  The panel also held that the complaint was not a Shephard-approved document because Lopez-Cano ultimately pled to a subsequently issued information that did not specify the drug was methamphetamine.

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

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

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

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

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

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

Louisiana Aggravated Battery Not Categorically § 2L1.2 COV Because It Includes Administering Poison

United States v. Herrera-Alvarez, No. 12-41425 (5th Cir. May 22, 2014) (Davis, Garza, Dennis)

Herrera-Alvarez was convicted of illegal reentry and had a prior Louisiana conviction for aggravated battery under Louisiana Revised Statutes section 14:34.  The panel determines that section 14:34 as a whole is not categorically a § 2L1.2 crime of violence (“COV”) because it “criminalizes aggravated batteries committed by administering poison, which does not necessarily entail the use of destructive or violent physical force.” 

However, under the modified categorical approach, Herrera-Alvarez’s aggravated battery conviction is a COV.  Under Louisiana law, “[b]attery is the intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another.”  Herrera-Alvarez’s charging document specifically said that he committed aggravated battery with a dangerous weapon, to wit: a knife, thereby excluding the possibility that the aggravated battery was committed by means of poisoning. 

The panel reasons that the touching of an individual with a deadly weapon is a sufficient threat of force to qualify as a COV.  Thus, Herrera-Alvarez’s conviction is a COV because it necessarily contains, as an element, the use, attempted use, or threatened use of force by requiring both physical contact and the use of a dangerous weapon used in a manner calculated or likely to produce death or great bodily harm.  The panel affirmed the 16-level enhancement and rejected Herrera-Alvarez’s arguments that the statute only requires offensive touching and that the offense can be committed while merely possessing the dangerous weapon, not touching an individual with it.

As a side note, the panel also explains why the instant case was not controlled by decisions finding that Louisiana aggravated battery is a COV under § 4B1.2(a) and a “serious violent felony” for purposes of 18 U.S.C. § 3559(c).  The panel explains that there is a “salient statutory distinction among the statutes and Guidelines provisions at issue,” so the other precedent does not control the § 2L1.2 determination.  For example, Louisiana aggravated battery is a COV under the residual clause of § 4B1.2(a) because it involves conduct that presents “a serious potential risk of physical injury to another’ and is “purposeful, violent, and aggressive.”  Section 2L1.2, however, does not have a comparable residual clause.  This is an important reminder to be sure to address the correct COV definition when analyzing and researching a COV issue because it can make a difference.

Boiler Plate Judicial Admission Sufficient to Narrow Conviction Under Modified Categorical Approach to Texas Penal Code § 30.02(a)(1), a COV

United States v. Conde-Castaneda, No. 13-10590 (5th Cir. May 28, 2014) (Jolly, Garza, Higginson)

In prior decisions, the Fifth Circuit has held that a conviction for burglary under Texas Penal Code § 30.02(a)(1) is a § 2L1.2 crime of violence (COV), United States v. Garcia-Mendez, 420 F.3d 454 (5th Cir. 2005), while a conviction for burglary under § 30.02(a)(3) is not, United States v. Constante, 544 F.3d 584 (5th Cir. 2008).  The Fifth Circuit has also held in an unpublished decision that a general conviction under § 30.02 that cannot be narrowed to (a)(1) through the modified categorical approach is not a COV because § 30.02 is broader than the generic definition of burglary.  United States v. Morales-Ramirez, 540 F. App’x 368 (5th Cir. Sept. 25, 2013) (unpublished).

In Conde-Castaneda, the panel first decides that it can apply the modified categorical approach, since § 30.02(a) is divisible, to look at documents outside of the judgment (Shepard documents) to determine which of the three alternatives of § 30.02(a) form the basis of Conde-Castenada’s conviction.  Then the panel looks to the following documents:

-          Judgment, which establishes that Conde-Castaneda under § 30.02(a) but not a specific subsection;

-          Indictment, which charges Conde-Castaneda with violating § 30.02(a)(1) and § 30.02(a)(3), “but obviously cannot by itself establish the ultimate basis for his conviction”;

-          Written judicial confession, which states “I have read the Indictment . . . and I committed each and every act alleged therein . . . .”

The panel holds that the confession, “a pre-printed template under which Conde-Castaneda signed his name” sufficiently establishes that he was convicted of § 30.02(a)(1).  Conde-Castaneda argues that the template confession is insufficient based on United States v. Espinoza, 733 F.3d 568 (5th Cir. 2013), which held that the adoption of a boiler plate judicial confession admitting that Espinoza committed the assault with every listed category of mental culpability did not conclusively prove mens rea.  The panel rejects the argument because of an earlier decision, United States v. Garcia-Arellano, 522 F.3d 477 (5th Cir. 2008), which held that “a template confession sufficed to establish which offenses a conviction indicated.”  “Espinoza cannot overturn the earlier decided case of Garcia-Arrellano.  To the extent that the holding of Espinoza is inconsistent with Garcia-Arellano, Garcia-Arellano controls.”

Thus, relying on Garcia-Arellano, the panel finds that Conde-Castaneda was convicted of burglary under § 30.02(a)(1) and receives the 16-level COV enhancement under § 2L1.2.  Given Espinoza, though, it might be worth preserving that objection—particularly for alternative elements in a statute that are mutually exclusive, thereby casting doubt as to the actual admission of guilt as to each one of them.

Section 922(g)(9) “Misdemeanor Crime of Domestic Violence” Only Requires Offensive Touching

United States v. Castleman, No. 12-1371 (U.S. Mar. 26, 2014) (Majority: Sotomayor, Roberts, Kennedy, Ginsburg, Breyer, Kagan; Concurring in part and in the judgment: Scalia; Concurring in the judgment: Alito, Thomas)

A person convicted of a “misdemeanor crime of domestic violence” is prohibited from possessing a firearm.  A “misdemeanor crime of domestic violence” is defined in part as an offense that “has, as an element, the use or attempted use of physical force, or threatened use of a deadly weapon, committed by a . . . person with whom the victim shares a child in common.”  18 U.S.C. §§ 921(a)(33)(A), 922(g)(9).  In Castleman, the Court had to define “physical force” and determine whether Castleman’s conviction of “intentionally or knowingly caus[ing] bodily injury to” the mother of his child, in violation of Tennessee Code § 39-13-111(b), made him a prohibited person under § 922(g)(9). 

Castleman successfully argued before the district court and the Sixth Circuit that his conviction was not a “misdemeanor crime of domestic violence” because one can cause bodily injury without “violent contact” with the victim.  The Sixth Circuit held that the degree of physical force required by § 921(a)(33)(A)(ii) is the same as that required by the Armed Career Criminal Act (“ACCA”), § 924(e)(2)(B)(i), which defines “violent felony” and was addressed by the Supreme Court in Johnson v. United States, 559 U.S. 133 (2010).  In Johnson, the Court held that “physical force” as used to define a “violent felony” does not mean battery or offensive touching but must mean “violent force.”

The Supreme Court reverses.  The majority holds that “physical force” as used in § 921(a)(33)(A)(ii) has the common-law meaning of physical force, which is essentially battery or offensive touching.  The Court reasons that the common-law definition applies because, unlike the term “physical force” in the ACCA, there is no indication that Congress did not intend to incorporate the common-law term of “physical force” in the definition of misdemeanor crime of domestic violence.  To support this, the majority points out that perpetrators of domestic violence are routinely convicted under assault or battery laws, that the term “domestic violence” does not necessarily connote a substantial degree of force, that it makes sense to group domestic abusers convicted under generic assault or battery offenses with the others listed in § 922(g) who can’t possess guns, and that construing the term otherwise would have rendered § 922(g)(9) inoperable in at least ten states.

The majority then applies this definition of “physical force” to Castleman’s offense and finds that “the knowing or intentional causation of bodily injury necessarily involves the use of physical force,” offensive touching.   

In his concurrence, Scalia applies the Johnson definition of “physical force,” meaning “force capable of causing physical pain or injury to another person,” but still finds that Castleman’s offense would necessarily involve the use of violent force.  He thinks that the term “physical force” should mean the same thing in § 921(a)(33)(A)(ii) as in § 924(e)(2)(B)(i) and systematically rejects each of the majority’s reasons for distinguishing the terms.

Alito writes separately to voice his disagreement with the Johnson majority, as he believes “physical force” in both statutes should be given the common-law meaning of battery.

More info: http://www.scotusblog.com/case-files/cases/united-states-v-castleman/

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

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

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

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

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

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

New Jersey Third Degree Aggravated Assault Not a § 2L1.2 Crime of Violence

United States v. Martinez-Flores, No. 11-41375 (June 19, 2013) (Stewart, Benavides, Higginson) (per curiam)

The difference between New Jersey Third Degree Assault, N.J. Stat. Ann. § 2C:12-1b(7), and aggravated assault under the Model Penal Code is the injury. The New Jersey statute only requires "significant bodily injury," something that does not arise to serious bodily injury and could include an eye injury only lasting a few days. In contrast, the MPC requires "serious bodily injury," defining that as "bodily injury which creates a substantial risk of death or causing serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." The panel determined that the New Jersey statute was broader than the MPC definition of aggravated assault because the New Jersey statute included injuries that did not meet the MPC definition of "serious bodily injury." Thus, the conviction was not categorically a crime of violence under § 2L1.2, and the panel vacated the judgment and remanded for sentencing.

Other things to note:

The Fifth Circuit previously held, in a published decision, that it was not plain error for the district court to determine that New Jersey Third Degree Assault was a crime of violence under § 2L1.2. United States v. Ramirez, 557 F.3d 200 (5th Cir. 2009). Nevertheless, Martinez-Flores’ attorney objected to the sentencing enhancement and won on de novo review before the Fifth Circuit. So, be sure to distinguish between plain error and de novo review decisions when deciding whether an issue is foreclosed by precedent.

Also, the panel stated in a footnote that the new plain-meaning approach announced in United States v. Rodriguez, 711 F.3d 541 (5th Cir. 2013) (en banc), does not apply to determining whether an aggravated assault conviction is an enumerated offense. To support this proposition, the panel cites footnote 17 of the Rodriguez opinion. While that footnote states that precedent regarding "aggravated assault" remains intact, the premise is that offense categories defined at common law remain intact. Whether or not aggravated assault is an offense defined at common law may be a trickier question than the Fifth Circuit opinions have led us to believe thus far, so feel free to keep that line of argument open as well.

Recap of Recent Supreme Court Decisions

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

 

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

 

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

 

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

 

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

 

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

 

 

Statutory Elements that Increase Mandatory Minimum Must Be Submitted to Jury

 

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

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

 

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

 

 

Eroding the Fourth Amendment: DNA Testing of Arrestees OK

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

 

Federal Sentencing Guidelines Are Subject to the Ex Post Facto Clause

 

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

 

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

 

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

 

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

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

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

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

The Court concluded:

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

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

Justice Thomas, joined by Justice Alito, dissented.

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

Error, if Any, in Relying on Non-Shepard Document to Assess 12-Level Enhancement Did Not Affect Fairness, Integrity, or Public Reputation of Judicial Proceedings

United States v. Duque-Hernandez, No. 11-40642 (Smith, Prado, Higginson)

Duque-Hernandez pled guilty to illegal reentry and was sentenced to 51 months of imprisonment, which was the low end of the guidelines range after the court applied a 12-level enhancement. The court determined that his conviction under Utah Criminal Code § 58-37-8(1)(a)(ii) was a drug trafficking offense (DTO) by relying on a probable cause statement attached to the information. Duque-Hernandez did not object. On appeal, Duque-Hernandez argued that the statute of conviction was broader than a DTO and that the court erred in relying on a non-Shepard document to apply the enhancement.

The panel avoided the issues raised, however, finding that any error did "not seriously affect the fairness, integrity, or public reputation of judicial proceedings, [and] we decline to exercise our discretion to correct it." In sum: it’s not worth re-sentencing this defendant because we think he really did commit a drug trafficking offense (even if the Shepard documents don’t support that conclusion), he did not object even though he previously appealed on this same issue for a prior illegal reentry charge (and won!), and his sentence "has strong foundation" because he "has persistently disregarded the immigration [and drug] laws of the United States."

The one issue that the panel decided: it could rely on the probable cause statement, even if it was not a Shepard document, to determine whether the application of the DTO adjustment seriously affected the fairness, integrity, or public reputation of the proceedings. Since that statement indicates that Duque-Hernandez offered to sell cocaine, the panel allowed it to influence its determination of whether or not to vacate and remand for sentencing.

The lesson: preserve, preserve, preserve. Also, look up prior cases for repeat illegal reentry clients to find out how the courts have treated their priors. You might find arguments - or even decisions - that will help them out on their subsequent cases.

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

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

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

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

Read more »

GA Residential Burglary Statute Is Within Curtilage of Generic Burglary of a Dwelling

United States v. Garcia, No. 09-20587 (5th Cir. Oct. 27, 2010) (Barksdale, Stewart, Southwick)

Another day, another COV case.  The opinion doesn't contain anything new on the categorical approach or any meta-COV issues; it's just one more to add to your list.

The context: Illegal reentry case, the 16-level COV enhancement under guideline §2L1.2 (which includes burglary of a dwelling as an enumerated COV).

The prior offense at issue: Georgia burglary of a dwelling.

The defense argument: Generic burglary of a dwelling doesn't include entries into structures within a home's curtilage, only entries into the actual dwelling house.  Georgia burglary of a dwelling historically encompassed entries into outbuildings.  Although the current version of the burglary statute no longer explicitly mentions curtilage, a Georgia court of appeals decision post-dating the statutory change cited an older pre-change curtilage case when defining the term "dwelling house" as used in the burglary statute.  Therefore, Q.E.D.

The court's holding: You're right about the exclusion of curtilage from the the generic definition of "burglary of a dwelling."  But you're wrong about the Q.E.D. part.

We conclude that none of the Georgia opinions interpreting the current version of the Georgia burglary statute has held that a “dwelling house” includes structures within the curtilage. The current statute has other provisions that allow for conviction if entry is into certain other buildings, but those structures are not “dwelling houses.” The term “dwelling” within the Georgia burglary statute comports with the ordinary, contemporary definition of that term.

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

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

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

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

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

And § 924(c) provides that

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

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

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

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

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

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

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

Keep that in mind.