Friday, August 28, 2009

Suspended Sentence Not a "Sentence Imposed" for §2L1.2 Purposes, But Troubling Plain Error Analysis

United States v. Rodriguez-Parra, No. 08-40708 (5th Cir. Aug. 26, 2009) (Higginbotham, Smith, Southwick)

There's good and bad in this opinion. The good is that a suspended sentence isn't a "sentence imposed" for purposes of the 12- and 16-level drug-trafficking enhancements in guideline §2L1.2. The bad is that the panel continues a recent trend of ever-stricter plain error review, and in this case employs an approach to "plainness" that appears contrary to Supreme Court and Fifth Circuit case law.

So what happened? In 1994, Rodriguez was convicted of delivery of marijuana in Texas state court. He was sentenced to five years' imprisonment, which was suspended in favor of five years' probation, and served no part of his sentence in jail. When Rodriguez later illegally reentered the United States, the Texas conviction formed the basis for a 12-level enhancement under guideline §2L1.2(b)(1)(B), as "a conviction for a felony drug-trafficking offense for which the sentence imposed was 13 months or less[.]" The district court sentenced Rodriguez to 46 months' imprisonment, which was the bottom of the advisory Guidelines range.

On appeal, Rodriguez argued that the prior Texas drug conviction "cannot be used to enhance the [illegal reentry] sentence, because the [drug] sentence was entirely suspended." Because Rodriguez did not raise this argument in the district court, the court of appeals reviewed for plain error.

First, the good news. The court found error:
We must first decide whether there was error. The court enhanced under § 2L1.2(b)(1)(B), which increases a sentence by twelve levels “[i]f the defendant previously was deported, or unlawfully remained in the United States, after . . . a conviction for a felony drug trafficking offense for which the sentence imposed was 13 months or less.” Because the sentence was entirely suspended in favor of probation, we must determine whether it is a “sentence imposed” for purposes of § 2L1.2.

Section 2L1.2’s application notes answer that question. “‘Sentence imposed’ has the meaning given the term ‘sentence of imprisonment’ in Application Note 2 and subsection (b) of § 4A1.2.” U.S.S.G. § 2L1.2 Application Note 1(B)(vii). Section § 4A1.2 states,

"(1) The term ‘sentence of imprisonment’ means a sentence of incarceration and refers to the maximum sentence imposed.

"(2) If a part of a sentence of imprisonment was suspended, ‘sentence of imprisonment’ refers only to the portion that was not suspended."

Under subsection (2), therefore, the suspended portion of a sentence is not part of a “sentence of imprisonment.” Thus, if all of Rodriguez-Parra’s sentence was suspended, there is no remaining portion of the sentence that could refer to “sentence of imprisonment.” Application note two confirms this: “To qualify as a sentence of imprisonment, the defendant must have actually served a period of imprisonment on such sentence.” U.S.S.G. § 4A1.2 Application Note 2 (emphasis added).

There is caselaw that supports this conclusion. In United States v. Brown, 54 F.3d 234, 240 (5th Cir. 1995), we examined what constituted a “sentence of imprisonment” under § 4A1.2. That term “require[s] that . . . some time actually be served on the sentence.” Id. The only other court of appeals to examine this issue after the 2003 guideline amendments reached the same conclusion. Because all of Rodriguez-Parra’s sentence was suspended, his prior sentence did not meet the requirements for “sentence imposed” under the guidelines, so there was error under the first prong of the plain-error rubric.
As you can see, the same reasoning would apply to a sentence of straight probation, although probably not if any jail time was imposed as a condition of probation.

Now for the bad news: the court found that the error was not plain, and appears to have departed from controlling Supreme Court and Fifth Circuit precedent in reaching that conclusion. The court said, "There is no plain error if the legal landscape at the time showed the issue was disputed, even if, as here, the district court turns out to have been wrong. United States v. Ellis, 564 F.3d 370, 377 (5th Cir. 2009)." (emphasis added).

There are two problems with that statement. First, it's contrary to Supreme Court precedent. In Johnson v. United States, the Court held that, "where the law at the time of trial was settled and clearly contrary to the law at the time of appeal[,] it is enough that an error be 'plain' at the time of appellate consideration." 520 U.S. 461, 468 (1997) (emphasis added). And, consistent with Johnson, the Fifth Circuit has held that "[t]he plain or obvious nature of the error is determined by the law as it exists at the time of appellate review, rather than the time of the district court's ruling." United States v. Davis, 487 F.3d 282, 284 (5th Cir. 2007). Rodriguez-Parra does not discuss or attempt to distinguish these cases, or others that have followed Johnson. Instead, it just cites Ellis, which brings us to the second problem.

Ellis does not say that plainness is assessed by reference to the state of the law at the time of sentencing. In fact, the court in Ellis never even decided whether there was error in the first place, because it concluded that the question at issue was so close that no error could be plain: "even now after full briefing and oral argument the error is not plain or obvious, indeed it is most uncertain whether there was any error at all." Here, on the other hand, the court found easily found error.

Rodriguez-Parra goes on to treat as controlling a Fifth Circuit case that found no plain error on the same issue presented here: United States v. Garcia-Rodriguez, 415 F.3d 452 (5th Cir. 2005).
In Garcia-Rodriguez, the defendant had been convicted in California on a drug offense and sentenced to three years’ probation. Id. The district court used the earlier conviction to enhance, despite the fact that the defendant had not been imprisoned as a result of the earlier conviction. Id. Focusing on the same “sentence imposed” language from § 2L1.2 that we are currently reviewing, we held that the enhancement was not plain error. Id. at 456.
Garcia-Rodriguez relied on the fact that, "at the time of . . . sentencing[,] . . . [t]wo courts of appeals had interpreted the relevant provision in the same manner as the district court, and this court's law was unsettled." As Rodriguez-Parra describes it, "the lack of Fifth Circuit controlling authority on the issue meant that there was not plain error. [Garcia-Rodriguez, 415 F.3d] at 456. The presence of Garcia-Rodriguez as binding precedent means, therefore, that the resolution of Rodriguez-Parra’s sentencing issue is less than obvious." Rodriguez-Parra goes on to say that its finding of error
is reached . . . only by a careful parsing of all the relevant authorities, including the sentencing guidelines and applicable decisions. “[T]o satisfy the second prong of plain error inquiry, ‘the legal error must be clear or obvious, rather than subject to reasonable [dispute].’” Ellis, 564 F.3d at 377-78 (quoting Puckett v. United States, 129 S. Ct. 1423, 1429 (2009)). Here the result is reached only by traversing a somewhat tortuous path.
But that's an odd description of the court's analysis of the issue, which is reproduced in full up above. The court only needed three relatively brief paragraphs of analysis to conclude that there was error. There was no indication here, as in Ellis, that the legal error was subject to reasonable dispute; indeed, the court apparently saw it as an easy question with a straightforward answer. And it's hard to say that that a simple cross-reference to another guideline amounts to a "somewhat tortuous path" (it's nothing compared to §2L1.2(b)(1)(C)'s incorporation of Title 8's "aggravated felony" definition, for example). Moreover, to the extent that the court is suggesting that error cannot, by definition, be "plain" whenever there is a lack of controlling case law on the question, that seems wrong, too. Especially if the relevant guideline provisions are clear, as they seem to be here.

Of course, this decision isn't all that surprising in light of what seems to be a trend towards a more stringent plain error review. There's that cite to Puckett, for example. There's also this:
That [tortuous] path . . . would have been more straight and level had Rodriguez-Parra made his objection in the district court, thus allowing each side to present its arguments on the question now at hand. This is the very point of the plain-error standard—it “serves powerful institutional interests, including securing the role of the United States District Court as the court of first instance.” [Ellis] at 378.
These concerns would carry more force if the question at issue were a closer one, but—again—that evidently wasn't the case here. They also sound more relevant to the third and fourth prongs of plain error review, not the second.

Given Rodriguez-Parra's apparent departure from established plain-error principles, this case would seem to be a good candidate for panel or en banc rehearing. We'll see what happens.

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