Thursday, December 21, 2006

Meth Conviction Reversed; Evidence Equally Supportive of Guilt and Innocence

United States v. Peñaloza-Duarte, No. 05-30881 (5th Cir. Dec. 20, 2006) (Jolly, Higginbotham, Dennis)

Yep, you read that right. The court reversed Peñaloza's conviction for aiding and abetting the possession of methamphetamine with intent to distribute, holding that the evidence gave equal circumstantial support to a theory of guilt and a theory of innocence. Note that Peñaloza properly preserved the evidentiary sufficiency issue by moving for a judgment of acquittal at the necessary points in the trial, thus entitling him to de novo review on appeal.

The facts are pretty involved, but here are the basics: Peñaloza was a passenger in a car that got pulled over by a Louisiana state trooper for failing to signal a lane change. Turns out there was nearly 900 grams of methamphetamine hidden under the glove compartment. During post-arrest conversations with LEO's from various agencies, Peñaloza admitted that he knew about the meth and that it was bound for Orlando. He claimed, however, that he was not actually involved in the meth venture and that he was instead working as a confidential informant for a police detective and a DEA agent in California. At Peñaloza's trial, the detective confirmed that Peñaloza had been working for some time as a CI, with good results, but that Peñaloza had not told him about any trip to Florida with methamphetamine. (Peñaloza had told the detective he was going "up north" in California to meet with some people about a drug venture, but found himself bound for Florida instead.) The jury found Peñaloza guilty of the aiding and abetting charge, and the district court sentenced him to 121 months.

On appeal, Peñaloza challenged the sufficiency of the evidence supporting his conviction. Because he had properly preserved the issue by moving for a judgment of acquittal both at the end of the government's case and at the close of all the evidence, the court of appeals reviewed the issue de novo. The court noted that "[c]lose association with suspected drug traffickers, standing alone, is insufficient to sustain a conviction for aiding and abetting[,]" a principle that the court considered "especially compelling when the defendant operates as a CI and has no criminal convictions." Slip op. at 10. It went on to conclude that "in this case that the circumstantial evidence on which the government relies gives equal support to the theory offered by Peñaloza, namely that he was a trusted CI, with no criminal convictions, who wanted to protect his cover and who found himself a passenger in an automobile very far from home with no affirmative association in the criminal venture." Id. at 12. Because the evidence was in equipoise it was insufficient to support the jury's verdict of guilt, and the court reversed and vacated Peñaloza's conviction.

Wednesday, December 20, 2006

Is FRAP 4(b) Appeal Deadline Jurisdictional? Maybe, Maybe Not.

United States v. Leijano-Cruz, No. 05-50280 (5th Cir. Dec. 20, 2006) (Jones, Smith, Stewart)

Is the notice-of-appeal deadline in Fed. R. App. P. 4(b) jurisdictional, or is it just a claim-processing rule? If it's the former, then an untimely notice bars the appeal. If it's the latter, then the Government could waive or forfeit any objection to an untimely notice of appeal, thus allowing the appeal to proceed. Leijano-Cruz doesn't actually decide the issue one way or the other. Instead, it holds that a district court does not err in enforcing the deadline against a defendant, even if the Government doesn't respond to the defendant's motion to extend the appeal deadline.

How did this come up? Leijano filed a notice of appeal (and a motion to extend the appeal deadline) after the 10-day deadline and 30-day extention period in FRAP 4(b) had already expired. The Government did not respond to Leijano's motion. The district court denied the motion on the grounds that it lacked the statutory authority to do so, and that, in any event, Leijano failed to demonstrate good cause or excusable neglect.

"Leijano-Cruz appeal[ed] the denial, arguing that rule 4(b) is a non-jurisdictional claim-processing rule that the government forfeited by failing to object to his motion for extension." Slip op. at 2. The court notes that it "has traditionally held that rule 4(b) is jurisdictional and thus cannot be forfeited or waived[,]" but allows as how the Supreme Court's recent decision in Eberhart v. United States, 126 S. Ct. 403 (2005) (per curiam) "casts doubt on [the Fifth Circuit's] traditional view." Id.

Eberhart involved the Fed. R. Crim. P. 33 deadline for filing a motion for new trial. Eberhart had filed a memorandum in support of his motion for new trial after the deadline had already passed. The Government opposed Eberhart's motion on the merits, but did not challenge its timeliness. The district court granted the motion, and the court of appeals reversed on the ground that the deadline was jurisdictional. The Supreme Court held that the Rule 33 deadline is simply a claim-processing rule rather than a jurisdictional requirement, and that the Government had therefore forfeited its right to raise a timeliness defense.

Leijano-Cruz reviews Eberhart's discussion of an earlier Supreme Court case which held that the notice-of-appeal deadline in Rule 4(b)'s predecessor was jurisdictional, and concedes that "one might conclude [from that discussion] that rule 4(b) is nonjurisdictional[.]" Slip op. at 3. Nevertheless, the court goes on to point out that "no court of appeals has yet done so[,]" and concludes that it is "unnecessary to take that step here." Id. at 3-4.

This is because, even if Eberhart applies to notices of appeal in criminal cases, the Supreme Court there held only that a district court’s decision to permit an untimely document to be considered could not be reversed in the absence of an objection by the government in the district court. Eberhart does not hold that a defendant, as appellant from a decision that forbade his pursuing an untimely noticed appeal, has a right to have the untimeliness disregarded.

In other words, the district court does not err, after Eberhart, if it enforces an inflexible claim processing rule, and we may not reverse its decision to do so. Irrespective of whether the government noted the untimeliness in the district court, it is the defendant’s burden on appeal to show that the court erred in enforcing the rule.

Id. at 4.

What this means is that there's still room to argue, in light of Eberhart, that FRAP 4(b)'s deadline is not jurisdictional. On the down side, this opinion limits the range of procedural scenarios in which a defendant will be in a position to do so.

Tuesday, December 19, 2006

Exigent Circumstances Two-Fer: Has the Exception Become the Rule?

United States v. Newman, No. 05-20603 (5th Cir. Dec. 5, 2006) (King, Garza, Owen)

United States v. Maldonado, No. 04-51293 (5th Cir. Dec. 12, 2006) (Jolly, Davis, Wiener)

In both of these (unrelated) cases the Fifth Circuit affirms the denials of the defendants' motions to suppress drugs found during warrantless searches of their homes, holding that exigent circumstances justified the police officers' actions. These sorts of cases are necessarily very fact-dependent, so I won't dwell on the details of either case except to mention that they both involved protective sweeps following the apprehension of suspects who had just left the home.

What's notable about the opinions is their breadth, not only in finding exigent circumstances (due largely to a drugs = guns inference) but also in finding that the law enforcement officers weren't responsible for creating the exigencies in the first place. In fact, the breadth of the court's opinion in Maldonado prompted this trenchant concurrence from Judge Jolly:
I concur because the majority opinion is not plainly inconsistent with our precedent. It does seem, however, that we are coming close to establishing a rule that any yard arrest involving a drug operation can justify a protective sweep of the residence, which would allow an intended exception to the Fourth Amendment to become the rule.

Slip op. at 20.

Stay tuned, because these aren't the only recent Fifth Circuit cases involving the de facto drug war exception to the Fourth Amendment. Up next: the ever-expanding scope of Border Patrol checkpoints.

Thursday, December 14, 2006

Admissibility of informant tips --

I wanted to share some recent research on the admissibility of the content of informant tips, purportedly offered by the government for the non-hearsay purpose of explaining why the law enforcement officers did what they did. It's been a recurring problem in our district.

What I found is that most circuits do not allow such evidence in accordance with McCormick on Evidence section 249, unless the tipster testifies. Some courts say that the non-hearsay purpose is pretextual. Others say that it is inadmissible even if considered as non-hearsay because it is irrelevant under Fed. R. Evid. 401 and its probative value is substantially outweighed by the risk of unfair prejudice under Fed. R. Evid. 403. The more directly the informant implicates the defendant, the more likely the jury is to disregard limiting instructions and use the evidence as proof of guilt.

The Fifth Circuit previously took this position but seems to be retreating. If you are interested in the full memo with citations, email me and I'll send it to you.

Wednesday, December 13, 2006

Tip For Salvaging a Failed Cross-Examination

Via the Maryland Injury Lawyer Blog comes this entertaining (and instructive) post about how to deal with a slippery witness who eludes your best attempts at a devastating cross-examination.

Link via Evan Schaeffer's Legal Underground.

Tuesday, December 12, 2006

District Court's Pre-Trial Adminitions Regarding Potential for Perjury Enhancement "Troubling," But Not Plain Error

United States v. Ricardo, No. 05-40848 (5th Cir. Dec. 11, 2006) (Garza, DeMoss, Stewart)

Most of this opinion (which features a tractor-trailer, a black Cadillac Escalade, and roosters) is a fairly routine rejection of several defendants' challenges to their convictions for participation in a marijuana conspiracy. There is one aspect of the opinion worth highlighting, however, and that is the defendants' argument that the district court unconstitutionally chilled their right to testify at trial by admonishing them that if they testified and the jury found them guilty, they would likely be facing a §3C1.1 obstruction enhancement for perjury.

Prior to trial,
[t]he court stated, “FYI if he testifies and is convicted—if he testifies that he didn’t commit this crime and, of course, if the jury finds that he did, then I find that he perjured himself . . . . I certainly know that all the District Judges in this courthouse add an additional two points when a defendant has perjured himself by testifying to his innocence, his factual innocence, and the jury determines that the facts were contrary to what was stated from him.” Although the court acknowledged that there might be exceptions to his practice, he never gave any indication that he would conduct an independent review of the evidence.

Slip op. at 10. All three defendants elected not to testify at trial, although none of them objected to the district court's warning regarding the perjury enhancement.

Of course, the law is clear that a court cannot apply the §3C1.1 enhancement simply because a defendant testifies and the jury finds him guilty. Slip op. at 10 (citing cases). Instead, "a district court must make 'findings to support all the elements of a perjury violation' before the enhancement can be properly applied." Id. (quoting United States v. Dunnigan, 507 U.S. 87, 97 (1993)).

But plain error review strikes again:
The district court’s statements in this case came very close to the line of improperly implying that a perjury enhancement would be based entirely on the jury’s verdict without any independent findings by the court. This practice is troubling, and it could be an error under Dunnigan. We emphasize that due caution, as noted in Dunnigan and the previously cited cases, should be exercised when the district court contemplates applying the perjury sentencing enhancement. However, it is not a plain error in this case because the district court never directly stated that he would definitely apply the sentencing enhancement based entirely on the jury’s verdict. Such explanations of the application of this sentencing enhancement should, however, be clearer in the future.

Slip op. at 11 (emphasis added). The court went on to opine that even if there had been plain error, it is unlikely that the trial would have turned out any differently in light of what the court characterized as substantial evidence of guilt. The court also noted that "although Ricardo and Gonzalez stated that they wanted to testify at the trial, the record does not clearly indicate that they would have testified but for the explanation of the sentencing enhancement. Without a stronger record on this point, we find that the district court’s comments did not affect the defendants’ substantial rights." Id.

A Valuable Lopez Resource

The New York State Defenders Association Immigrant Defense Project has several practice advisories available here regarding the Supreme Court's decision last week in Lopez v. Gonzalez. This one looks particularly helpful: Defending Immigrants With Prior Drug Possession Convictions in Illegal Entry/Reentry Cases - The Impact of Lopez v. Gonzalez. It not only explains why the Lopez decision applies to criminal cases (echoing commentary here, here, and here), but it also lays out arguments that you can make in different scenarios, such as:
  • What if my client has more than one prior state drug conviction?
  • What if my client has been convicted of a state drug offense that covers both conduct that would be a felony under federal law and conduct that would not be a felony under federal law?
  • What if my client has been convicted of a state drug offense that covers conduct that is not even punishable under federal law?
  • What if my client has been convicted of a state drug offense that appears to be one that would be a felony under federal law, but my client's record of conviction does not establish that the drug involved is one listed in the federal controlled substance schedules?
Link via Bender's Immigration Bulletin.

Monday, December 11, 2006

Evidence Sufficient to Support Finding BRD That Defendant Knew He Possessed Drugs As Opposed to Some Other Form of Contraband

United States v. Mireles, No. 05-40936 (5th Cir. Nov. 29, 2006) (Jones, Davis, Garza)

Mireles is another knowledge-of-drugs-in-hidden-compartment case. Mireles worked as a tow truck driver for Arnold's Wrecker Service in Falfurrias, Texas. Arnold's was one of several wrecker companies contracted to tow vehicles for the Brooks County Sheriff's Office (BCSO). "Mireles frequently retrieved abandoned or seized vehicles along Highway 281, often passing through the Falfurrias [Border Patrol] Checkpoint. Mireles was also friends with BCSO Deputy Sheriff Homer Morales, Jr., and often rode on patrol with Morales." Slip op. at 2.

On two separate occasions, Border Patrol agents at the Falfurrias checkpoint found marijuana hidden inside vehicles that Mireles was towing (in the cab of a pickup truck and the trunk of a Mercury Grand Marquis). The agents didn't arrest Morales on the first occassion because they didn't believe they had any evidence that Morales was aware of the marijuana. They arrested him the second time because of apparently false statements he made at the time of the first marijuana discovery, as well as his apparent nervousness while the agents were searching the second vehicle.

Mireles was convicted at trial of possession more than 50 kilograms of marijuana with intent to distribute. "On appeal, Mireles [did] not argue that the evidence was insufficient to demonstrate that he was knowingly transporting some sort of illegal contraband in the two towed vehicles. Instead, Mireles contend[ed] that the government failed to prove beyond a reasonable doubt that Mireles knew he was transporting drugs." Slip op. at 7.

The court disagreed. It concluded that "Mireles could only have reasonably thought he was smuggling drugs or illegal aliens" because 1) Border Patrol agents testified at trial "that the Falfurrias Checkpoint is known for drug trafficking and smuggling of illegal aliens[,]" and 2) the jury could have inferred that Mireles was aware of that fact because he frequenty rode along with BCSO Deputy Morales. Slip op. at 8. The court further held that the jury could have reasonably concluded that Mireles knew he was transporting drugs on both occasions because 1) the first vehicle was a flat-bed pickup truck with no apparent place where people could be concealed, and 2) the fact that he'd seen the agents pull the marijuana out of the pickup truck and that he "nevertheless attempted to smuggle contraband across the Falfurrias Checkpoint on October 8th in a manner similar to the first incident . . . removes any reasonable doubt that Mireles believed he was transporting some illegal contraband other than drugs on October 8th." Slip op. at 8-9.

In addition to challenging his conviction, Mireles also argued that there was a conflict between the oral pronouncement of sentence and the written judgment with regard to one of the conditions of his supervised release. The oral pronouncement contained a condition that "in the event that you are stopped on the highway while you're engaged in commercial activities as a truck driver or as a wrecker driver, you will advise the authorities that your [sic] are on Supervised Release for drug trafficking and that they may search your car and your person." Slip op. at 10-11. The written judgment, however, was more detailed and omitted the "engaged in commercial activities" language. Mireles argued the written judgment was broader than the oral pronouncement, and therefore in conflict. The court of appeals read the oral pronoucement fairly broadly, and rejected Mireles's argument.

Thursday, December 07, 2006

Lopez v. Gonzales: Not Just For Immigration Cases

There's been some discussion at a couple of our sister blogs about the applicability of Lopez v. Gonzales to criminal cases. "Why is this even a question," you ask? Well, remember that the Supreme Court granted cert in two cases presenting the felony-simple-possession-as-aggravated-felolny issue: Lopez v. Gonzales was an immigration case, and Toledo-Flores v. United States was a criminal case involving an appeal from the sentenced imposed for an illegal reentry conviction. As you know by now, the Court only decided the issue in Lopez; it dismissed the writ of certiorari as improvidently granted in Toledo-Flores.

So what effect, if any, does the DIG in Toledo-Flores have on the applicability of Lopez to the aggravated felony sentence enhancements found in 8 U.S.C. § 1326(b)(2) and U.S.S.G. §2L1.2(b)(1)(C)? None at all. Flores applies with just as much force in criminal cases as it does in immigration cases. Here's why:

First, there's nothing in the Lopez decision that suggests that its holding is limited to the immigration context. In fact, the opposite is true. Lopez twice refers to §2L1.2 when discussing the significance and effect of the aggravated felony determination. First here:
An aggravated felony on a criminal record has worse collateral effects than a felony conviction simple. [There are immigration consequences.] And under the sentencing law, the Federal Guidelines attach special significance to the “aggravated felony” designation: a conviction of unlawfully entering or remaining in theUnited States receives an eight-level increase for a prior aggravated felony conviction, but only four levels for “any other felony.” United States Sentencing Commission, Guidelines Manual §2L1.2 (Nov. 2005) (hereinafter USSG); id., comment., n. 3 (adopting INA definition ofaggravated felony).
Maj. op. at 2. And then here,
Finally, the Government's reading would render the law of alien removal . . ., and the law of sentencing for illegal reentry into the country, see USSG §2L1.2, dependent on varying state criminal classifications even when Congress has apparently pegged the immigration statutes to the classifications Congress itself chose.
Maj. op. at 10 (emphasis added). Moreover, when the Court explained that it "granted certiorari to resolve a conflict in the Circuits about the proper understanding of conduct treated as a felony by the State that convicted a defendant of committing it, but as a misdemeanor under the CSA," the Court cited both criminal and immigration cases. Id. at 3 & n.2. These passages clearly show that the Court understands that its decision will apply to both criminal and immigration cases.

Second, the Court has recently noted the rule of construction that statutes which have "both criminal and noncriminal applications" must be interpreted consistently in both contexts. Leocal v. Ashcroft, 543 U.S. 1, 11 n.8. (2004) (The famous footnote eight?) Leocal, like Flores, was an immigration case and also involved the interpretation of a paragraph in the INA's aggravated felony definition that cross-references a criminal statute.

Third, a DIG, like a cert denial, is not a decision on the merits (at least absent any explanation of the reasons for the dismissal). Hughes Tool Co. v. Trans World Airlines, Inc., 409 U.S. 363, 411 (Burger, J., dissenting). It would therefore be a mistake to read the DIG in Toledo-Flores, for which the Court gave no explanation, as an implicit repudiation of the Lopez holding in the context of criminal cases.

Fourth, Lopez's interpretation of § 1101(a)(43)(B) applies to illegal reentry cases simply as a matter of stautory construction. Guideline §2L1.2(b)(1)(C) calls for an 8-level enhancement if a defendant was deported after having been convicted of an aggravated felony. Application Note 3 to §2L1.2 explains that "aggravated felony," for purposes of (b)(1)(C), "has the meaning given that term in [8 U.S.C. § 1101(a)(43)] . . . ." Just as (b)(1)(C) incoporates § 1101(a)(43) without qualification, it also incorporates Lopez's interpretation of § 1101(a)(43) (and Leocal's, as well).

Fifth, unlike the Second and Ninth Circuits, the Fifth Circuit has held that § 1101(a)(43)(B) must be interpreted the same in both the immigration and criminal contexts. United States v. Hernandez-Avalos, 251 F.3d 505, 510 (5th Cir. 2001); see also Ruiz-Romero v. Reno, 205 F.3d 837, 839-40 (5th Cir. 2000) (same with regard to § 1101(a)(43)(N)). Although Hernandez-Avalos is no longer good law with regard to the meaning of § 1101(a)(43)(B), it's recognition of the requirement that the statute must be interpreted the same in criminal and immigration cases still stands (especially in light of Leocal).

So there you have it. These are the arguments you need to make in the unlikely situation that a court expresses skepticism about the applicability of Lopez outside of the immigration context.

More Aggravated Felony Action in the Supreme Court

Tuesday the Supreme Court heard oral argument in Gonzales v. Duenas-Alvarez, which presents the question "[w]hether a 'theft offense,' which is an aggravated felony' under the Immigration and Nationality Act, 8 U.S.C. 1101(a)(43)(G), includes aiding and abetting." Although, based on the oral argument transcript, it's unclear exactly what issues the Court will reach in this case. Suffice it to say that the Taylor/Shepard approach will likely figure prominently in whatever decision the Court makes, so you'll want to keep an eye on this case.

SCOTUSblog, as usual, has an oral argument preview here, and a recap here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Labels: , , ,

Tuesday, December 05, 2006

SCOTUS: State Drug Conviction Is Not Aggravated Felony Unless It Would Be Punishable as Felony Under CSA

Today the Supreme Court handed down its decision in Lopez v. Gonzales, which presented the question whether "conduct made a felony under state law but a misdemeanor under the Controlled Substances Act is a 'felony punishable under the Controlled Substances Act[,]" and therefore an aggravated felony under 8 U.S.C. § 1101(a)(43)(B). The Court held that it is not, overruling such cases as United States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997).

So the new rule is that a state drug conviction does not count as an aggravated felony unless the conduct prohibited by the state offense would be a felony under the federal Controlled Substances Act (21 U.S.C. § 801 et seq.). (Otherwise known as the "hypothetical federal felony" approach.) So, for example, a state felony conviction for simple possession of cocaine is not an aggravated felony because that conduct is only a misdemeanor under 21 U.S.C. § 844(a).

The decision was 8-1, with Justice Souter writing for the majority and Justice Thomas dissenting.

Professor Berman "doubt[s] this ruling will have a dramatic effect on criminal law or immigration law[,]" but I beg to differ. Illegal reentry cases account for a substantial percentage of prosecutions in federal court, and the aggravated felony determination has a significant impact on both the statutory and guideline sentencing ranges in those cases. And it's pretty common to see someone prosecuted for illegal reentry whose criminal history consists of nothing more than a felony conviction for simple possession of a small quantity of a controlled substance. Up until now, in this circuit, such a defendant would be facing a 20-year statutory maximum under 8 U.S.C. § 1326(b)(2) and an 8-level enhancement under U.S.S.G. §2L1.2(b)(1)(C). Now that defendant will be looking at "only" a 10-year statutory maximum under § 1326(b)(1) and a 4-level enhancement under §2L1.2(b)(1)(D). And as long as courts continue to sentence most defendants within the guideline range, the decision in Lopez will collectively save defendants decades if not centuries of time in prison.

By the way, you'll notice that I haven't mentioned Toledo-Flores yet (the companion case to Lopez). That's because for some reason the Court decided to dismiss the writ of certiorari in Toledo-Flores as improvidently granted.

A final aspect of Lopez that I'll mention is its emphasis on the importance of construing a definition in light of the term being defined. (For example, "ordinarily 'trafficking' means some sort of commercial dealing[,]" so Congress probably didn't intend for "drug trafficking" to include simple possession. Maj. op. at 5.) That rule of construction could also be brought to bear on the entire aggravated felony definition, not just § 1101(a)(43)(B). So perhaps the Supreme Court will bite on a cert. petition presenting this question: "Some 'aggravated felonies' are neither 'aggravated' nor 'felonies.' Discuss."

Labels: ,

Friday, December 01, 2006

Obstruction Enhancement Erroneously Applied; Defendant's Conduct Not Within Plain Meaning of U.S.S.G. §3C1.1

United States v. Brown, No. 05-50899 (5th Cir. Nov. 21, 2006) (Barksdale, Benavides, Owen)

Here's the court's concise recitation of the facts:

On 2 October 2003, Deputies from the Hill County Sheriff’s Department responded to a domestic-disturbance call in Brandon, Texas, from Brown’s girlfriend. She claimed Brown had threatened her on numerous occasions, telling her at one point he would kill her. The Deputies escorted her to Brown’s residence (mobile home) to retrieve her belongings. In route to Brown’s residence, the Deputies learned Brown had an outstanding arrest warrant.

When the Deputies arrived at the mobile home, they informed Brown they had a warrant for his arrest. As a Deputy began to detain him, Brown broke free from the Deputy’s grasp and ran into a heavily wooded area. The Deputies pursued Brown but soon lost sight of him. On returning to Brown’s residence, the Deputies found a loaded .22 caliber rifle with the initials “RB” carved in the stock.

Brown remained a fugitive and was placed on the United States Marshal’s most-wanted list in February 2004. That June, he was apprehended in Laredo, Texas, over 200 miles from Brandon.

That December, a federal grand jury indicted Brown for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). In April 2005, Brown was convicted of that charge.

Slip op. at 1-2. The PSR recommended a §3C1.1 obstruction enhancement on the ground that Brown "'escaped from the custody of the officers as they attempted to arrest him October 2, 2003.'" Slip op. at 2. Brown objected, but the district court overruled the objection without explanation or findings and imposed a sentence within the resulting range.

Brown appealed the application of the obstruction enhancement. The court of appeals agreed that the district court had erroneously applied the enhancement, for two reasons.

First, the obstruction guideline only reaches conduct that happens during the "investigation, prosecution or sentencing of the instant offense of conviction . . . ." However, "Brown ran from the Deputies before he was being investigated for the instant offense of illegally possessing a firearm." Slip op. at 5. (And he wasn't indicted for the offense until over a year later.)

Second, the commentary to §3C1.1 draws a distinction between fleeing from arrest (ordinarily not obstruction) and fleeing from custody (possibly obstruction). "Because Brown was never in custody and the Deputies never exercised a degree of formal control or restraint over him, his flight did not constitute obstruction of justice within the meaning of the Guideline." Slip op. at 7.

Because Brown's conduct didn't fit within the plain language of the guideline, the court vacated the sentence and remanded for resentencing.

More New Rules Effective December 1, 2006

Several amendments to the Rules of Criminal Procedure and Rules of Appellate Procedure took effect today: