Wednesday, September 10, 2008

Kidnapping Under Cal. Penal Code § 207(a) Isn't Categorically a 16-Level COV Under §2L1.2

United States v. Moreno-Florean, No. 07-50833 (5th Cir. Sept. 8, 2008) (King, DeMoss, Prado)

This opinion packs a lot into seventeen pages, and is probably more important for the satellite issues it resolves (details of the categorical approach, effect of guideline calculation error in appeal of sentence) than for the ultimate COV issue.

Our facts, in brief: Moreno pleaded guilty to illegal reentry. He had a prior conviction for kidnapping under Cal. Penal Code § 207(a), which provides that “[e]very person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping.” The PSR treated that conviction as a 16-level COV under guideline §2L1.2(b)(1)(A)(ii). Moreno objected to the PSR's criminal history calculation, but not to the application of the 16-level bump. The district court imposed a 57-month, within-Guidelines sentence. Moreno then appealed his sentence, arguing that the California conviction wasn't a COV. The court of appeals agreed and vacated Moreno's sentence, confronting several interesting issues along the way.

1. California Abstracts of Judgment May Be Used to Identify the Fact of a Prior Conviction, and Possibly the Statute of Conviction, But Not to Pare Down Disjunctive Elements: We know that a California abstract of judgment is not a Taylor/Shepard-approved document that may be used under the categorical approach to identify which of a series of disjunctive elements underlay a conviction. We've also seen the Fives hint that the abstract may be used for other purposes. Here the court expressly identifies one such purpose, while leaving another one uncertain.

In Gonzales-Terrazas, the court initially suggested that an abstract of judgment from a revocation proceeding may be sufficient to establish the fact of the conviction for which the defendant was placed on probation, and maybe even to identify the statute of conviction, although the court later omitted that discussion when it substituted a new opinion in the case after the Government filed a petition for panel rehearing. Also, in Neri-Hernandez, the court held that a New York "certificate of disposition"---a document similar to a California abstract of judgment---could be used to establish the fact of a prior conviction. Here, the court cites Neri-Hernandez as support for its holding that "California abstracts of judgment have sufficient indicia of reliability to support their probable accuracy such that the documents can be used as evidence of a prior conviction."

But what about the statute of conviction, rather than just the fact of conviction? That remains unclear, because the parties in Moreno-Florean agreed that his "kidnapping conviction occurred pursuant to CAL. PENAL CODE § 207(a) as reflected in the indictment and abstract of judgment pertaining to the conviction." The court also explained that "[o]ur consideration of Moreno-Florean’s abstract of judgment is limited to proving the existence of his prior kidnapping conviction; it does not function to narrow the statute of conviction based on the facts underlying the offense."

2. A California Charging Instrument That Alleges Alternative Elements Conjunctively Does Not, By Itself, Establish the Elements of Conviction: Abstracts of judgment may be of limited use in the COV-determination arena, but charging instruments are Taylor/Shepard-approved (provided that the defendant was actually convicted of the specific charge in the instrument). What if the charging instrument alleges multiple disjunctive elements conjunctively ("defendant did X and Y and Z," only one of which is legally necessary for the offense), and there is no other document, such as a transcript of a plea colloquy, to identify which elements actually formed the basis of the conviction?

It depends on state law, of course. Under Georgia law, for example, a guilty plea admits all of the factual allegations in a charging instrument. Thus, in Gutierrez-Bautista, the Fives held that a plea to a Georgia indictment alleging that a defendant sold and possessed a controlled substance constituted an admission that the defendant did both of those acts.

But California law is different, as Moreno-Florean acknowledges. California law actually requires conjunctive pleading of alternative elements, and "if the indictment alleges elements in the conjunctive, the defendant can be convicted if the evidence establishes any set of disjunctive elements that together constitute the criminal offense." Thus, a guilty plea, by itself, does not admit all of the allegations in a California charging instrument. It also doesn't identify which of the alternative elements the defendant was convicted of. Just like Texas.

3. When a Defendant Pleads Guilty to Two Offenses in the Same Charging Instrument, the Elements Admitted By the Plea to One of the Counts Cannot Necessarily Be Used to Identify Which Disjunctive Elements Were Admitted by the Plea to the Other Count: Okay, that's a little abstract. Let's talk about the fact of this case. You can see from the offense definition---"forcibly, or by any other means of instilling fear"---that § 207(a) doesn't necessarily require force. But Moreno didn't just plead guilty to kidnapping. He also pleaded guilty to another count contained in the same charging instrument: willfully inflicting corporal injury, in violation of Cal. Penal Code § 273.5(a). "The Government argue[d] that the use of physical force is a necessary element of § 273.5(a), such that the record of conviction establishes that Moreno-Florean used physical force with respect to his kidnapping conviction." The court disagreed:
While the indictment reflects that the kidnapping and corporal injury offenses were committed on the same day with Jane Doe as the victim, it does not establish that the conduct involved in the corporal injury offense was necessarily involved in the kidnapping offense. According to the language found in the indictment, Moreno-Florean could have kidnapped Jane Doe “by other means of instilling fear,” and then later used physical force to inflict corporal injury upon her. Because we do not have a written plea agreement, transcript of the plea colloquy, or explicit factual findings by the trial judge to which the defendant assented, we cannot narrow the statute of conviction to determine which disjunctive elements of § 207(a) formed the basis of Moreno-Florean’s conviction.

What's more, because California law allows disjunctive pleading and conjunctive proof (see discussion of point 2 above), "Moreno-Florean’s guilty plea to the kidnapping count in his indictment, standing alone, does not compel a finding that he used physical force to perpetrate that crime."

4. Kidnapping Under Cal. Penal Code § 207(a) is Broader than the Generic, Contemporary Definition of "Kidnapping": This is the fourth published decision addressing whether a state offense constitutes generic "kidnapping." I've summarized the others (see here, here, and here), but I'm just going to give you the holding on this one: "Because the least culpable act constituting a violation of § 207(a) only requires proof of two elements discussed in Gonzalez-Ramirez, we conclude that § 207(a) sweeps more broadly than the generic, contemporary meaning of 'kidnapping.'" To find out why, you'll have to read the court's thorough explanation at pages eight through sixteen of the slip.

5. Guideline Calculation Error Will Require Vacation of a Sentence Resulting from Such Error, Even If the District Court Gives Detailed, Fact-Specific Reasons Tied to the § 3553(a) Factors: The Government made an argument you may have seen if you've been handling any sentencing appeals lately. It argued "that the district court provided detailed, fact specific reasons for its sentence based on the factors under 18 U.S.C. § 3553(a), such that the district court provided an alternative basis for its sentence." The court of appeals rejected the idea that a statement of reasons tied to § 3553(a) constitutes an "alternative sentence." Pointing out that "[b]efore the district court imposes a non-guideline sentence, it must first properly calculate the applicable guideline range[,]" the court ultimately concluded that "[b]ecause we cannot say that Moreno-Florean’s sentence did not 'result' from an incorrect application of the guidelines, we cannot affirm his sentence on the basis of the Government’s 'alternative sentence' theory." And that's on plain-error review, no less.

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