Tuesday, January 30, 2007

New Issue of "The Liberty Legend" Newsletter Now Available

The Winter 2006-07 issue of "The Liberty Legend," the newsletter of the National Association of Federal Defenders, is available here. Plenty of good stuff in this issue, including a nuts & bolts guide to Rule 29 motions for judgment of acquittal, and kudos for some great work by federal defenders in Mississippi. Check it out.

Various Challenges to Meth Conviction Rejected

United States v. Finley, No. 06-50160 (5th Cir. Jan. 26, 2007) (King, Wiener, Clement)

Finley was convicted at trial of aiding and abetting the possession of methamphetamine with intent to distribute. On appeal, he argued that the district court erred by 1) refusing to give the jury a lesser-included-offense instruction on simple possession, 2) "denying his motion to suppress text messages and call records recovered in a warrantless, post-arrest search of his cell phone[,]" and 3) admitting certain evidence at trial. The court rejected all of Finley's arguments and affirmed his conviction. I'll just highlight the first two issues:

Lesser-Included-Offense Instruction

The charges arose out of Finley's involvement with Mark Brown. The DEA and the Midland (Texas) Police Department used a "cooperating source" to set up a controlled buy of methamphetamine from Brown. Brown agreed to deliver the meth at a truck stop. He got Finley to drive him there in a van that belonged to Finley's employer. At the truck stop, the cooperating source gave Brown $600 in marked bills and Brown gave her 3.1 grams of meth, which was tucked inside the clear wrapper of a cigarette package.

The MPD pulled over Finley and Brown a few miles away. The police found the marked bills in a trash can between the driver and passenger seats of the van. There were also two pill bottles in the trash can. One bottle had five individual packages of meth. The other bottle had Finley's name on it, and contained some meth paraphernalia and a substance commonly used to cut meth.

The Government charged both Finley and Brown with aiding and abetting each other in the possession of methamphetamine with intent to distribute. It argued at trial that Finley knowingly drove Brown to the truck stop so Brown could sell the meth. Finley argued that Brown had only asked for a ride to the truck stop to buy some cigarettes, and that he didn't know a meth deal was going to go down. Brown, who pled guilty and testified at Finley's trial, dropped Finley in the grease.

Finley asked the district court to give the jury an instruction on simple possession of meth, based on the meth found in the pill bottle. The district court refused. The court of appeals found no error. It held that although simple possession can be a lesser included offense of possession with intent to distribute, in this case they were two separate offenses:
[T]he methamphetamine in the cigarette package and the methamphetamine in the pill bottle were two separate caches of drugs; one was intended for distribution to Stratton at the truck stop, and the other was intended for some other purpose. Each stash therefore constituted a separate violation of the narcotics laws.

Slip op. at 11. Finley argued for the instruction based on the meth in the pill bottle. As to the meth in the cigarette pack, the facts showed that Finley either assisted Brown's sale or that he didn't; the facts did not support a finding of simple possesion of that meth. But because the Government had only charged Finley with the meth in the cigarette pack, he wasn't entitled to a simple possession instruction.

Motion to Suppress Information Recovered from Cell Phone

Finley had a cell phone in his pocket when the police arrested him. During a later interrogation, and without a warrant, one of the officers looked through the call records and text messages in the phone and confronted Finley with some of the purportedly incriminating text messages. The district court denied Finley's motion to suppress the fruits of the warrantless search of his phone.

On appeal, the Government argued that Finley lacked standing to challenge the search due to the fact that the phone belonged to Finley's employer. The court held otherwise. It concluded that that Finley had a sufficient privacy interest in the phone to give him standing, due in large part to the fact that Finley's employer expressly allowed him to use the phone for personal purposes.

As for the search itself, Finley argued that the phone was analogous to a closed container and that the police therefore could not search it without a warrant. The court disagreed. It held, with little explanation, that the phone search was a permissible search incident to arrest.

Proposed Amendments to Fed. R. Crim. P.; Most Designed to Implement Crime Victims' Rights Act

Amendments to Rules 1, 12.1, 17, 18, 29, 32, 41, 61, as well as a proposed new Rule 60, have been published for public comment. You can read about the proposed amendments here. If you wish to comment on the proposed changes, your comment must be received by February 15, 2007. Suggestions for writing an effective comment (along with a brief explanation of the rulemaking process) are available here.

Many of the proposed amendments are designed to implement the Crime Victims’ Rights Act (18 U.S.C. § 3771). The National Crime Victim Law Institute has collected links to testimony on the amendments here. (Link via Sentencing Law & Policy) You can also find the collected testimony at the U.S. Courts website here.

Monday, January 29, 2007

Anonymous Tip Created Reasonable Suspicion for Roving Border Patrol Stop

United States v. Hernandez, No. 05-41611 (5th Cir. Jan. 24, 2007) (Higginbotham, Smith, DeMoss)

First, a little geography. As you likely already know, Interstate 35 is a major artery that runs northeast from the border town of Laredo, Texas. Approximately 15 miles north of Laredo, U.S. Highway 83 splits off from 35 and heads north. There's a Border Patrol station just south of the split. And just north of the split, on Highway 83, is the Long Branch Saloon. According to the opinion, 83 is a "notorious alien smuggling route." And the Long Branch Saloon is a "well-known rendezvous spot" where aliens who have traveled on foot around the checkpoint will "lay up" and wait for smugglers who will take them to points north via Highway 83.

One evening an anonymous tipster called the checkpoint and claimed that a red pickup and a red Suburban had just picked up a group of illegal aliens at the Long Branch and headed north on 83. A few agents who were out on patrol went looking for the vehicles. After a few minutes, Agent Parra came up behind a red Suburban, which apparently pulled over on its own accord. Agent Parra spoke to the driver, Esteban Hernandez-Ramirez, for a few moments and eventually let him go after a registration check came back clean. About that same time, Agent Lopez pulled over a red pickup ten miles north of the saloon. The driver, Rosa Maria Hernandez, had four illegal aliens in the truck. A third agent who was involved in all this figured that Rosa and Esteban might be married, so he radioed Parra to pull Esteban over again. Parra did so, and Esteban admitted that he and Rosa were smuggling aliens.

Rosa and Esteban were charged with aiding and abetting the transportation of two illegal aliens for financial gain. They both filed motions to suppress, which the district court denied, and were convicted at a bench trial.

Rosa appealed the denial of her suppression motion, arguing that her stop was based on nothing but the anonymous tip and that the tip could not justify the stop because it amounted to nothing more than a bare, uncorroborated allegation. The court disagreed:
We conclude that reasonable suspicion supported the stop. These events played out in an area close to the border and a notorious alien smuggling route. Moreover, the tip itself was not bare. The tipster call was a rifle-shot to the nearest checkpoint facility, out of which the roving patrols were based, as opposed to any other office in the Laredo Sector, suggesting familiarity with the Border Patrol and knowledge and experience with reporting illegal activity. The tipster claimed to have seen the smuggling firsthand just moments before the call, and the Long Branch Saloon, it will be recalled, was next to a well-known lay-up area for illegal aliens, facts which point to a knowledgeable tipster. There was more. The tip provided the color, number, and type of the vehicles - a red truck and a red Suburban - and that description was validated when Lopez encountered Hernandez. The totality of the circumstances provided reasonable suspicion to stop Maria Hernandez.

Slip op. at 8.

This is a very disappointing decision. Despite what the court says, there's nothing more here than a bare, uncorroborated allegation. Even assuming that the facts demonstrate a "knowledgeable" tipster, there's still nothing that corroborates the tipster's allegation of criminality, other than the vehicles' presence on a "notorious" smuggling route and their proximity to a "well-known" staging area for alien smuggling. The problem is that those factors describe virtually every vehicle within at least 50 miles of the border. So in the end, all the agents really had was an anonymous accusation that these two vehicles were smuggling aliens. That shouldn't be enough to justify a warrantless seizure.

Friday, January 26, 2007

Trucker's Consent to Search Rig Was Voluntary, Even Though He Didn't Know He Could Refuse and Surely Knew Marijuana Would Be Found

United States v. Arias-Robles, N0. 05-51494 (5th Cir. Jan. 25, 2007) (Higginbotham, Smith, DeMoss)

A Texas DPS trooper pulled over Arias's 18-wheeler because he thought the tires sounded defective. After performing a "level two" safety inspection, the trooper found a couple of "out-of-service" violations (bad tires and delinquent log book). The trooper tried to print out a copy of the inspection report and a citation from the printer in his patrol car, but the printer wouldn't work. Arias followed the trooper to the nearby DPS office, where the trooper was able to get his printer to work. The trooper issued Arias the citation and inspection report, and told him that he would have to go to a nearby truck stop to resolve the out-of-service violations (one of which required him to chill for at least eight hours) before proceeding on his way. The trooper then told Arias that he was free to go. Immediately thereafter, the trooper expressed curiosity about some discrepancies in Arias's log book, and also mentioned that he knew about Arias's prior drug arrest. He also asked Arias if he could search the truck, and Arias consented. There turned out to be several bricks of marijuana hidden in the tractor's sleeper compartment.

Arias moved to suppress the marijuana on several grounds, including that his consent to search was involuntary. The district court denied the motion, and Arias appealed on the voluntariness issue alone.

The court held that the district court did not err in finding that Arias voluntarily consented to the search of his rig, based on the following factors comprising the totality of circumstances: 1) the trooper told Arias he was free to go; 2) there was no coercion; 3) Arias was cooperative; 4) although the trooper didn't inform Arias that he could refuse consent to search, that factor isn't dispositive; 5) Arias had some education and was intelligent enough to understand what was going on; and 6) even though Arias had to know that the trooper would find marijuana, that factor is also not dispositive. The court then concludes with this intriguing comment:
Concededly, under our cases a defendant faces a high hurdle in his effort to escape an affirmative response to an officer’s request for permission. At the least we are persuaded that our test ought to be skeptical of a defendant’s alleged consent when the defendant persuades that he did not know that he had a right to refuse the request for consent to search and it is plain from the facts that the contraband would likely be found. That said, we cannot conclude that such recurring circumstances so often produce a coerced consent that we ought to find them inherently coercive. There is no “Miranda requirement” attending a simple request for permission to search.

Slip op. at 8-9 (emphasis added). Sounds like a clear signal for district courts to view such "consent" more circumspectly.

Thursday, January 25, 2007

924(c) Conviction Affirmed Over Defendant's Challenges to Jury Instructions and Evidentiary Sufficiency on "In Relation To" Element

United States v. Harris, No. 06-30243 (5th Cir. Jan. 25, 2007) (King, Higginbotham, Smith)

Harris was arrested following a traffic stop when officers found a .40 caliber Glock in one pocket (with a full magazine and a chambered round), and 0.672 grams of heroin in the other (packaged in 48 individually-wrapped foils).

Harris pled guilty to being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)), and was convicted at trial of possesion of heroin with intent to distribute (21 U.S.C. § 841(a)(1)), possession of cocaine base with intent to distribute (same), and carrying a firearm during and in relation to a drug trafficking offense (18 U.S.C. § 924(c)(1)).

Harris raised two issues on appeal with regard to his conviction on the 924(c) count. First, he argued that the district court erred in refusing his requested jury instruction. The district court had given the Fifth Circuit pattern instruction, which includes this paragraph:
By "in relation to," means that the firearm must have some purpose, role, or effect with respect to the drug trafficking crime.
Slip op. at 4. In lieu of that paragraph, Harris requested this language:
Mere proximity of the firearm and the drugs is not enough. To prove that the defendant carried the firearm "during and in relation to" the drug trafficking crime, the government must prove that the firearm had some purpose or played some role in the drug trafficking crime.
Id. Harris argued that the pattern's use of "the word 'effect' allows the jury to convict on insubstantial evidence of a relationship between the gun and the drug offense." Id. The court disagreed, finding the charge as a whole substantially covered Harris's proposed instruction and made clear that mere possession of a gun during a drug trafficking crime is not enough to convict.

Second, Harris argued that the evidence was insufficient to support a finding BRD on the "in relation to" element. The court observed that it "has never vacated a conviction for 'carrying a firearm' based on insufficient evidence of a relationship between the gun and the drug offense[,]" and it doesn't do so here. Id. at 7. Rejecting Harris's argument, the court holds that,
from these circumstances - a gun in one pocket and a distributable quantity of drugs in the other - a rational jury could have found beyond a reasonable doubt that Harris was carrying the Glock for protection. This inference of protection provides "something more than strategic proximity of drugs and firearms" and honors the Congressional concerns manifested by the "in relation to" element.
Id. at 7-8.

Wednesday, January 24, 2007

SCOTUS: Generic Theft Includes Aiding & Abetting Theft

Last week the Supreme Court weighed in with another opinion that's significant for those of us who defend illegal reentry cases, as well as anyone who finds themselves dealing with the Taylor/Shepard categorical approach: Gonzales v. Duenas-Alvarez, No. 05-1629 (U.S. Jan. 17, 2007) (previewed here).

The case presented the question whether the term "theft offense" in 8 U.S.C. § 1101(a)(43)(G) (part of the "aggravated felony" definition) "includes the crime of 'aiding and abetting' a theft offense." Maj. op. at 1. Applying the Taylor categorical approach, the Court answered "yes." Although the common law distinguished among 1) first degree principals, 2) second degree principals, 3) accessories before the fact, and 4) accessories after the fact, every State and the Federal government has "'expressly abrogated the distinction' among principals and aiders and abettors who fall into the second and third categories." Id. at 5-6 (citing LaFave) "Since criminal law now uniformly treats those who fall into the first three categories alike, 'the generic sense in which' the term 'theft' 'is now used in the criminal codes of most States' covers such 'aiders and abettors' as well as principals." Id. at 6 (citing Taylor).

The Court also reached the question of whether California law on aiding and abetting liability is broader than the generic view of aiding and abetting. Duenas argued that it is, due to the fact that in California "an aider and abettor is criminally responsible not only for the crim he intends, but also for any crime that 'naturally and probably' results from his intended crime." According to Duenas, California's version of the natural-and-probable-consequences doctrine is broader than most States', thus making his prior conviction for aiding and abetting vehicle theft under Cal. Veh. Code § 10851(a) nongeneric theft.

After reviewing California case law however, the Court did not agree that California's conception of aiding and abetting is significantly different than that of most other states. In so doing, the Court made this important statement about the Taylor categorical approach:
[I]n our view, to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute's language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime. To show that realistic possibility, an offender, of course, may show that the statute was so applied in his own case. But he must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.

Maj. op. at 9.

As a special bonus, the Court's opinion includes a handy appendix with citations to statutes and case law involving theft, aiding and abetting, and the natural-and-probable consequences doctrine, in case you ever need to research those matters.


Tuesday, January 23, 2007

Court Finds Extent of Upward Departure Unreasonable

United States v. Rajwani, No. 05-10648 (5th Cir. Jan. 16, 2007) (Jones, Davis, Garza)

Rajwani was convicted of three counts of aiding and abetting wire fraud for her participation in a "Spanish lottery" scam. The victims were three elderly ladies, two of whom lost over $60,000.

Rajwani's guideline range, which included a vulnerable victim enhancement on account of the victims' ages, was 37 to 46 months (21, I). The district court departed upward to a sentence of 120 months on each of the three counts, to be served concurrently. "[T]he court found that an upward departure was warranted because the Guidelines range did not adequately address the seriousness of the offense (U.S.S.G. § 2B1.1, Comment 19) and because the circumstances in the case were present to a degree substantially in excess of that which ordinarily would be involved in a typical offense of this kind (U.S.S.G. § 5K2.0(a)(3))." Slip op. at 5. Specifically, the court "identified the effect of the financial loss on the elderly victims and the emotional impact on the victims as justification for the upward departure." Id.

Rajwani appealed, arguing, among other things, that the 120 month sentence was an abuse of discretion and unreasonable. The court agreed. It first held that the sentence was procedurally reasonable insofar as the district court adequately addressed the relevant § 3553(a) factors in determining that a departure was warranted on the specific facts of the case.

However, the court "conclude[d] that both the degree of the departure and the sentence as a whole are unreasonable and, therefore, the district court abused its discretion in the extent of the departure." Slip op. at 14. Although "the financial vulnerability of victims and the related emotional hardship make this case somewhat atypical and justify an upward departure[, . . . ] the Sentencing Commission has substantially accounted for these aggravating characteristics of the defendant’s conduct by providing for a vulnerable victim enhancement and an enhancement based on the amount of the fraud." Id. at 19. For that reason, the court held that a sentence three times the length of the mid-Guideline range was unreasonable. The court went on to say that even "a sentence beyond twice the top of the Guidelines range (92 months) would fail reasonableness review under the facts presented here." Id.

Friday, January 19, 2007

Remand for Resentencing "In Accordance with Booker" Permitted Reconsideration of Earlier Relevant Conduct Determination

United States v. Elizondo, No. 06-10131 (5th Cir. Jan. 15, 2007) (Higginbotham, Smith, DeMoss)

Here's one for fans of the law of the case doctrine and the mandate rule, in the context of a Booker remand. And as one of my colleauges pointed out, the case also reminds us that a jury verdict on a broad indictment does not necessarily require a district court to make equally broad findings as to relevant conduct. Because the two factual inquiries are distinct, it's possible for a defendant's relevant conduct liability to be narrower than his liability for an offense (depending on the foreseeability of co-conpirators' acts, for example).

A jury found Elizondo and a co-defendant guilty of conspiring to commit mail fraud for "perpetrat[ing] a scheme to defraud undocumented aliens by pretending to be [INS agents] and by purporting to help the aliens with fake immigration forms." United States v. Garza, 429 F.3d 165, 168 (5th Cir. 2005) (per curiam). The district court sentenced Elizondo to 37 months' imprisonment, and ordered restitution of $172,176, for which Elizondo was jointly and severally liable. Id.

In his first appeal, Elizondo raised a sufficiency challenge to his conviction, and also argued that both his prison sentence and the restitution order violated Blakely because they were based on judicially-determined facts. The court of appeals rejected Elizondo's sufficiency challenge, as well as his challenge to the restitution order (holding "that judicial fact-finding supporting restitution orders does not violate the Sixth Amendment"). Id. at 168-70. However, because the district court erred by imposing a sentence under a mandatory Guidelines scheme, and because the Government could not show that the error was harmless, the court vacated Elizondo's sentence and remanded "for resentencing in accordance with Booker." Id. at 170-71, 174.

At resentencing, Elizondo argued that he wasn't responsible for the full range of relevant conduct that the district court had found the first time around, meaning that he shouldn't be responsible for the full restitution amount and that his guideline offense level should have been lower. The district court apparently agreed, but nevertheless imposed the same sentence as it had the first time around. The court refused to reconsider the relevant conduct determination or the restitution amount because it considered itself bound by the court of appeals' determination of the facts in its resolution of the sufficiency challenge.

Elizondo appealed again, arguing that the district court was mistaken in its belief that the disposition of his sufficiency challenge precluded reconsideration of his relevant conduct on remand.

The court of appeals agreed that the district court erred. It pointed out that a determination that the facts were sufficient to establish an offense does not bind a district court at resentencing, because "sentencing requires evaluating facts beyond the facts required to establish an offense." Slip op. at 3-4. The court also rejected the Government's argument that the mandate rule precluded reconsideration of the earlier relevant conduct determination:
The mandate instructed the district court to resentence “in accordance with Booker.” A consideration of Elizondo’s relevant conduct fell within this mandate, because sentencing under the guidelines requires a consideration of the defendant's relevant conduct.

Slip op. at 4. However, the mandate did preclude the district court from revisiting the restitution order because the remand for resentencing "in accordance with Booker [did] not implicate the statute under which Elizondo was ordered to pay restitution - the Mandatory Victims Restitution Act." Id. Accordingly, the court again affirmed the restitution order and vacated the sentence and remanded for resentencing.

Booker Doesn't Give District Courts Discretion to Sentence Below Mandatory Minimum (Absent Substantial Assistance Motion or Safety Valve)

United States v. Krumnow, No. 06-50241 (5th Cir. Jan. 18, 2007) (Barksdale, Prado; DeMoss, concurring)

Krumnow pled guilty to possession of methamphetamine within 1,000 feet of a public school with intent to distribute (21 U.S.C. §§ 841(a)(1), (b)(1)(C), 860(a)), and possession of a firearm during the commission of a drug trafficking offense (18 U.S.C. § 924(c)(1)(A)(i)). The drug count required a one-year mandatory minimum sentence, and the 924(c) count required a mandatory minimum sentence of 60 months to be served consecutively to the sentence on the drug count. The guidelines on the drug count worked out to 63 to 78 months. The district court imposed a 60-month sentence on the drug count, and a concurrent 60-month sentence on the gun count. It characterized the sentence on the gun count as a departure from the mandatory minimum sentence. The government, unsurprisingly, appealed.

In an opinion that makes liberal use of italics, the court holds that a district court lacks discretion to impose a sentence below a mandatory minimum, except in the circumstances specified in 18 U.S.C. § 3553(e), (f) (5K1.1 motion and safety valve). Booker did not change that rule. Accordingly, the court vacates the sentence and remands for resentencing.

Judge DeMoss concurs fully, but writes separately to point out that the district court may be able to
achieve a similar result by issuing a non-Guideline sentence for the drug-possession charge either at or above the statutory minimum of one year (but below the low-end of the Guideline range), and then run the mandatory five-year sentence for the gun possession conviction consecutively. Of course at re-sentencing a full and proper explanation must be given for any non-Guideline sentence to justify its reasonableness. The combined sentence that Krumnow could then receive under the applicable statutes could be as little as six years, which would be closer to what I believe the district judge felt was an appropriate sentence for this defendant.
Slip op. at 10. (Note that when Judge DeMoss refers to a "non-Guideline" sentence, that should probably be read as "a downward departure or a non-Guideline sentence" since the two are subject to different procedural hoops under current Fifth Circuit reasonableness case law.)

Tuesday, January 16, 2007

Government Failed to Meet Its Burden of Proof With Respect to Loss Amount in Health Fraud Case

United States v. Jones, No. 05-30942 (5th Cir. Jan. 16, 2007) (Jones, Smith, Stewart)

Jones and Clark were convicted of health care fraud (18 U.S.C. § 1347) for failing to notify a fiscal intermediary that two Medicare providers with which they were involved were "related" for purposes of Medicare reimbursement regulations. The appeal dealt with the district court's findings on loss amounts for purposes of guideline enhancements and restitution. The defendants won:
We vacate the loss enhancement determined by the district court because the government failed to meet its burden of proof to establish the amount of loss suffered by Medicare as a result of Jones’s and Clark’s criminal behavior. The government presented no evidence on the following requisite facts: the profit factor, if any, Jones and Clark gained by failing to disclose the relation between Riverbend and Health One; whether Jones and Clark provided services to Riverbend; and a comparable facility to determine the reasonableness of management and consulting fees paid to Health One, Jones, and Clark. Accordingly, the district court may not apply any loss enhancement on re-sentencing. For these reasons, we VACATE the sentence and restitution orders of Jones and Clark, and REMAND this case to the district court for re-sentencing not inconsistent with this opinion.
The opinion is pretty fact-specific, but if nothing else it serves as a reminder that the Government has a burden of proof when it comes to guideline calculations, and a court can't simply rely on conclusory statements in a PSR that do little more than parrot the unsworn allegations of the prosecutor when it comes time to make findings on disputed guideline application issues.

You might also want to take note of footnote 5 in the opinion, which seems to hold that Booker did not do away with the Ex Post Facto prohibition on applying guidelines that are more serious than those in effect at the time of the offense:
Section 2F1.1 has been replaced by § 2B1.1; however, the probation officer properly applied the more favorable 1997 guidelines. See United States v. Harms, 442 F.3d 367, 379 n.7 (5th Cir. 2006).

Tuesday, January 09, 2007

SCOTUS Holds Attempted Illegal Reentry Indictment Need Not Allege An Overt Act; Undermines 5th Cir. Precedent on Elements of Attempted Illegal Reentry

Today the Supreme Court handed down its decision in United States v. Resendiz-Ponce, No. 05-998 (U.S. Jan. 9, 2007). As covered here, what began as a case about whether the omission of an element from an indictment can be harmless error became a case about the elements of attempted illegal reentry and the specificity required of an indictment for that offense. The Court wound up holding that although an overt act is an element of attempt, "an indictment alleging attempted illegal reentry under §1326(a) need not specifically allege a particular overt act or any other 'component par[t]' of the offense." Slip op. at 5. Consequently, the Court didn't reach the harmful error question on which it originally granted cert.

But what's particularly significant for those of us in the Fifth Circuit is how the Court arrived at its holding. It concluded that attempted illegal reentry includes the common law elements of attempt (intent to commit the object crime + an overt act that constitutes a substantial step towards completing the offense), and that "the word 'attempt' . . . encompasses both the overt act and intent elements." Slip op. at 4-5. That's significant because the Court's imputation of the common-law elements of attempt to §1326(a) undermines Fifth Circuit precedent regarding whether attempted illegal reentry (as opposed to a completed illegal reentry) requires general or specific intent, an issue that has divided the circuits.

In United States v. Gracidas-Ulibarry, the Ninth Circuit held that attempted illegal reentry is a specific intent crime requiring proof not only that the defendant intended to enter the United States, but that he intended to do so without the consent of the Attorney General (now the Secretary of the Department of Homeland Security). 231 F.3d 1188 (9th Cir. 2000) (en banc). That holding rests on two key premises. First, the term "attempt" has an established common-law meaning, and at common law "the crime of attempt requires a showing of specific intent even if the crime attempted does not." Id. at 1192 (quotation marks and citation omitted). Second, "[w]hen Congress has used a term that has a settled common law meaning, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of that term." Id. at 1193 (quotation marks and citations omitted). The Court concluded that Congress did not intend for "attempt" to have a different meaning in §1326(a), and that attempted illegal reentry therefore requires specific intent.

The Fifth Circuit expressly rejected Gracidas-Ulibarry's common-law interpretation of attempted illegal reentry in United States v. Morales-Palacios, 369 F.3d 446 (5th Cir. 2004). It concluded that "the Supreme Court has clearly instructed that the scope of the [canon] on imputing common-law meaning does not sweep so broadly as to apply to the unique nature of regulatory crimes." Id. at 447 (citations omitted). The court viewed attempted illegal reentry as the type of regulatory offense to which those Supreme Court cases referred, and went on to hold that "a specific intent requirement is unnecessary, because the regulatory nature of the statute makes the presumption of unlawful intent conclusive." Id. at 448.

Although Resendiz-Ponce focused on the overt act element of common-law attempt rather than the specific intent element, its clear endorsement of a common-law reading of the attempt portion of §1326(a) unquestionably undermines the Fifth Circuit's reasoning in Morales-Palacios. For that reason, it appears that the Fifth Circuit will have to revisit the issue of specific intent in a future case (as will the Second and Fourth Circuits, which have likewise held that attempted illegal reentry is a general intent offense). (For an example of circumstances in which specific-vs.-general intent would be an issue, see United States v. Morales-Tovar, 37 F. Supp. 2d 846 (W.D. Tex. 1999).)

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Wednesday, January 03, 2007

Fives Acknowledge Lopez v. Gonzales Applies to Criminal Cases

United States v. Estrada-Mendoza, No. 05-41627 (5th Cir. Jan. 3, 2007) (per curiam) (Higginbotham, Smith, DeMoss)

Well, that's settled:
Given the Court’s reference to the Guidelines, its citation to Hinojosa-Lopez, and its interpretation of a phrase directly adopted by the Guidelines, Lopez ineluctably applies with equal force to immigration and criminal cases. The Government agrees. As Estrada was sentenced under now-rejected jurisprudence, we vacate his sentence and remand for resentencing.
To recap, this means that a conviction for a drug offense does not qualify as an "aggravated felony" unless the offense would be punishable as a felony under the federal Controlled Subtances Act.

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