Standard for Sadistic Depiction Enhancement is Objective, Requires Contemporaneously Infliction Pain

United States v. Nesmith, No. 16-40196, —F.3d—, 2017 WL 3393055 (5th Cir. Aug. 8, 2017) (King, Jolly, Prado)

Calvin Nesmith pleaded guilty to the sexual exploitation of a minor, in violation of 18 U.S.C. § 2251(a) and (e). At sentencing, the district court applied a four-level enhancement under §2G2.1(b)(4) (depiction of sadistic conduct) because investigators found an explicit image of Nesmith standing next to the bed of a minor with his erect penis touching the minor’s lips. The Government conceded that the image did not depict physical violence, but argued that the enhancement was proper because the image had inflicted emotional pain on the victim once she learned of its existence. Nesmith objected.

The Court held that “an image portrays sadistic conduct where it depicts conduct that an objective observer would perceive as causing the victim in the image physical or emotional pain contemporaneously with the image’s creation.” Id. at *4. Because the victim in the picture was asleep at the time the photo was taken, the image did not depict sadistic conduct. The Court vacated and remanded for resentencing.

Illinois Aggravated Battery with a Deadly Weapon is Crime of Violence

United States v. Reyes, No. 16-40241, — F.3d —, 2017 WL 3262281 (5th Cir. Aug. 1, 2017) (Reavley, Southwick; Southwick concurring; Owen dissenting)

The Court held that Illinois’s aggravated battery statute (720 Ill. Comp. Stat. § 5/12-3.05) is divisible, and that subsection (f)(1) (aggravated battery based on the use of a deadly weapon) is a crime of violence under the elements clause of guideline §2L1.2. Interesting is the Court’s disagreement over how to determine whether the statute identified elements or means.

Writing for the majority, Judge Reavley begins by acknowledging that Mathis required the Court to revisit United States v. Velasco, 465 F.3d 633 (5th Cir. 2006), to determine whether that case’s “implicit” holding—that the statute was divisible—retained vitality.

The majority held that the entirety of the statute is divisible, relying on a decision from the Illinois Supreme Court, People v. Cherry 63 N.E.3d 871 (Ill. 2016). It then addressed whether subsection (f), aggravated battery based on the use of a deadly weapon, listed means or elements. The Court noted that it could find no Illinois case that answered that question. It instead relied on dicta in Cherry that discussed aggravated battery with a firearm as a separate offense from aggravated battery. It found additional support by looking to another statute, Illinois’ Murderer and Violent Offender Against Youth Registration Act, which included § 5/12-3.05(f)(1) as a “violent offense against youth,” but not the remaining subsections, § 5/12-3.05(f)(2)–(4).

Judge Southwick concurred with the decision to affirm the sentence, but not that Cherry clearly resolved the issue.  Judge Southwick pointed to Illinois case law that suggests that the use of the term “element” in Cherry might not have the same meaning as what the Supreme Court intended in Mathis. Notwithstanding Cherry’s lack of clarity, Judge Southwick pointed to the “widely different crimes” described in the statute, as well as different classifications for some aggravated-battery provisions, which suggest that the subsection identified separate offenses rather than “means.”

 

Judge Owen’s lengthy dissent points to People v. Diaz, 614 N.E.2d 268, 270–71 (Ill. App. Ct. 1993), People v. Smith, 906 N.E.2d 1192 (Ill. App. Ct. 2007), and Illinois’s pattern jury instructions to reflect that jury unanimity is not required on which particular way a defendant committed aggravated battery. The statute, according to Judge Owen, is indivisible.

Sentencing Commission Adopts New Guideline Amendments

The U.S. Sentencing Commission voted on April 15 to amend the U.S. Sentencing Guidelines, including significant changes to 2L1.2, 2G2.2, and conditions of supervision.

A "reader-friendly" version of the adopted amendments is available online.

These amendments will be submitted to Congress and go into effect on November 1, 2016, absent congressional action.

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

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

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

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

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

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

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

Public Comment Sought for Sentencing Commission Proposed Amendments

The U.S. Sentencing Commission released proposed amendments to the Sentencing Guidelines at the beginning of January.  USSC Press Release.

Here is a link to the amendment related to the 4B1.2 crime of violence definition.  In light of Johnson v. United States, 135 S. Ct. 2551 (2015), the amendment deletes the residual clause from 4B1.2(a)(2).

The Commission is also recommending amendments to 2L1.2, alien smuggling, child porn distribution with file sharing programs, age and vulnerable victim enhancements, conditions of probation and supervised release, animal fighting, compassionate release, and other miscellaneous amendments.

The closing date for public comment is March 21, 2016.

NACDL Report on Federal Indigent Defense: The Independence Imperative

Last week, the National Association of Criminal Defense Lawyers released its report on Federal Indigent Defense calling for greater independence from the judiciary.

The report raises many concerns about the system and identifies Seven Fundamentals of a Robust Federal Indigent Defense System:

1. Control over federal indigent defense services must be insulated from judicial interference.

2. The federal indigent defense system must be adequately funded.

3.  Indigent defense counsel must have the requisite expertise to provide representation    consistent with the best practices in the legal profession.

4.  Training for indigent defense counsel must be comprehensive, ongoing and readily available.

5.  Decisions regarding vouchers must be made promptly by an entity outside of judicial control.

6.  The federal indigent defense system must include greater transparency.

7.  A comprehensive, independent review of the CJA program must address the serious concerns discussed in this report.
For NPR coverage of the report, click here.

No Equitable Vacatur of Supervised Release for Deported 1326 Defendant

United States v. Heredia-Holguin, No. 14-10846 (5th Cir. June 16, 2015) (Reavley, Owen, Higginson)

 

Heredia-Holguin was sentenced to one year in prison and a three-year term of supervised release for illegal reentry. He did not object to his sentence or term of supervised release. While Heredia-Holguin’s appeal was pending, he served his one-year prison term and was deported with supervised release. After his deportation, his counsel filed a brief conceding the deportation rendered the appeal moot, and he requested that his remaining term of supervised release be vacated.  

 

The panel ordered supplemental briefing on three issues: 1) what error had Heredia-Holguin complained of on appeal, 2) whether the appeal had become moot, and 3) if the appeal was moot, “whether the court should vacate the conviction, sentence, or term of supervised release under the doctrine of equitable vacatur.”  

 

First, Heredia-Holguin emphasized in his supplemental briefing that he was not pursuing the sentencing appeal.  Rather, he “requested only that the panel vacate the remaining term of his supervised release.”

 

As to mootness, the panel discussed United States v. Lares-Meraz and United States v. Rosenbaum-Alanis, which arrived at opposite conclusions regarding mootness of a sentencing appeal after the defendant is deported. In Lares-Meraz, the “alleged sentencing error,” was not moot “because the defendant remained the subject to a term of supervised release, an element of the overall sentence.” The error, however, was harmless. In Rosenbaum-Alanis, the defendant’s sentencing appeal was moot because the defendant could not reenter the U.S. for resentencing purposes, and no waiver was on record allowing for his absence. The panel perceived inconsistences between Lares-Meraz and Rosenbaum-Alanis but opted not to resolve them.

 

Assuming Heredia-Holguin’s appeal was moot, the panel denied his request to vacate his supervised release under the doctrine of equitable vacatur. “[V]acatur is in order when mootness occurs through happenstance or unilateral action of the party who prevailed in the lower court.”  Heredia-Holguin’s deportation, however, cannot be attributed to happenstance or the unilateral action of the Government since it was the natural consequence of Heredia-Holguin reentering the United States illegally. Furthermore, the district court “imposed the term of supervised release to deter Heredia-Holguin from illegally returning to the U.S.”  In light of the deterrent effect and his failure to object to the imposition of supervised release before the district court, the panel did not exercise its equitable discretion to vacate Heredia-Holguin’s term of supervised release. 

 

Since it denied Heredia-Holguin’s request, the panel did not address “the Government’s argument that equitable vacatur is a civil doctrine that is not available in a criminal case as a matter of law.”

 

Thanks to FPD Intern Adam Pena for this post.