Tuesday, March 30, 2010

No Presumption of Vindictiveness When Defendant Receives Higher Sentence On Remand From Different Judge Of the Same Court

United States v. Rodriguez, No. 09-20181 (5th Cir. Mar. 25, 2010) (King, Barksdale, Elrod)

From the be-careful-what-you-wish-for files: Rodriguez entered into plea agreement in exchange for 1) dismissal of some counts, and 2) the Government's promise not to seek offense level enhancements at sentencing. The Government then breached the agreement by defending the PSR's calculation of the Guidelines range, which included some of those enhancements. The district court agreed with only some of the PSR's recommendations, and imposed a low-end sentence of 37 months. Rodriguez appealed his conviction and sentence, arguing that the Government breached the plea agreement. The Fifth Circuit affirmed the conviction, but vacated the sentence and remanded for resentencing before a different judge. Judge 2 rejected Rodriguez's objections to the PSR, and imposed a low-end sentence of 47 months—10 months greater than Rodriguez received on the first go-round. Rodriguez appealed again, arguing that his 47-month sentence was either presumptively or actually vindictive.

First, a threshold issue: is Rodriguez's claim reviewable? The Government argued that the following statement by Rodriguez's counsel—after the sentence was imposed—amounted to either waiver or invited error. Responding to a question from the court as to whether he had "any argument on the mandate," counsel said:
Judge, he was ordered a re-sentencing. And from the looks of it, you have done, you have went through that file extensively. We reurged [prior counsel’s] objections, which were extensive; and you have just summed up exactly what you just did.

Said the court of appeals:
[T]hat reply, made after imposition of sentence, does not show counsel knew of the potential vindictiveness issue and chose intentionally to relinquish it (waiver). And, certainly, sentence having already been imposed, the reply did not induce the claimed error (invited error). Accordingly, the claimed error is reviewable[, albeit only for plain error].

One to keep in mind if you find yourself in the unfortunate position of having to refute a waiver/invited error argument by the Government.

On to the meat of the matter: "[North Carolina v.] Pearce held a presumption of vindictiveness arises when, after a new trial, a judge sentences a defendant to a harsher sentence. [cites omitted] At issue here is whether that presumption applies when a different judge of the same court imposes the new sentence."

Thus begins a lengthy exegesis of Fifth Circuit and Supreme Court case law on the subject. Long story short, the Fifth Circuit held that the presumption applies in these circumstances in United States v. Floyd, a case decided several years after Pearce. Floyd reached that conclusion, in part, because the resentencing-before-different-judge-on-remand scenario was what had happened in one of the two companion cases that comprised Pearce. But the Supreme Court has had a lot more to say about the presumption since Pearce, both before and after Floyd. In particular, there was Texas v. McCullough.
McCullough addressed whether the Pearce presumption applied where: a jury imposed the initial sentence; because of prosecutorial misconduct, however, the trial judge granted a new trial; upon retrial before the same judge, defendant asked that the judge, rather than the jury, impose sentence; and that judge imposed a greater sentence than had the jury for the first trial. The judge, on defendant’s motion, made findings of fact on why her sentence was greater.

(cites omitted). McCullough held that the presumption of vindictiveness does not apply in that situation. It acknowledged that Pearce itself involved a case with a different sentencer on remand, but noted that Pearce hadn't actually addressed this particular issue and—to the extent Pearce could be read otherwise—effectively overruled Pearce on this point. Therefore,
McCullough expressly rejected part of the basis for Floyd’s reasoning—there having been different sentencing judges in Pearce. Moreover, McCullough held having different sentencers was one of the primary reasons that the presumption was unnecessary. Restated, the possible same-court institutional and collegial pressures that were of concern to Floyd were held in McCullough not to require the presumption. Accordingly, we hold, as Rodriguez’ counsel conceded at oral argument, that Floyd was overruled by McCullough.

(You might be wondering why the court spent 11 pages analyzing this issue, given Rodriguez's concession. For starters, "[a]t oral argument, Rodriguez’ counsel conceded McCullough controls, but urged our criticizing McCullough as having strayed from the principles announced in Pearce." The court of course declined the invitation, but had to decide the issue for itself because it had never before considered whether Floyd survived McCullough.)

According to the court, seven other circuits "do not apply the presumption when different judges preside over the first and second sentencing." But some of them "hold the presumption is inapplicable in this different-sentencers situation only if the second states objective, non-vindictive reasons for imposing the greater sentence (added condition)." Although opining that "the evolved reasonable-likelihood-of-vindictiveness standard negates this added condition[,]" the court notes that it's good practice.
Neither party, however, has raised this added-condition issue. [cite]. In any event, as discussed infra, because the second judge stated more than sufficient reasons for the greater sentence, we do not need to reach the issue. In other words, even assuming the added condition is required, the record amply demonstrates that the second judge more than fulfilled that condition. Along that line, regardless of whether the added condition is required, the second judge should obviously state such reasons. They assist not only in our reviewing a vindictiveness challenge but also in reviewing other challenges to the sentence as well.

That's not the end of the matter, though. The court still had to "consider whether there was a reasonable likelihood that the increase in Rodriguez’ sentence was due to actual vindictiveness." And there wasn't:

Rodriguez contends the record shows the second judge acted vindictively because: he summarily overruled Rodriguez’ objections to the PSR; and, he did not allow the Government to contribute to the sentencing hearing. Neither matter even remotely suggests vindictiveness.

The record reflects that the second judge carefully considered Rodriguez’ objections. Moreover, Rodriguez has offered no authority requiring the second judge to state his reasons for denying them. [cite].

Rodriguez does, apparently, recognize the patent absurdity of his contention that the second judge’s stated intention not to engage the Government at resentencing somehow evinces vindictiveness. He admits in his reply brief that his contention creates a Catch-22 for the district court: according to Rodriguez, the second judge is vindictive for not having engaged the Government; but, had the judge done so, he would have caused the Government, once again, to breach its plea agreement. The record shows, as discussed infra, that the second judge was entitled to rely on other bases, negating any need to solicit input from the Government.

Again, there is simply no evidence of actual vindictiveness. Therefore, there was no error. In sum, our plain-error review for vindictiveness—presumed or actual—ends.

And so does this post.

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Monday, March 29, 2010

Fives Reiterate That District Court May Not Impose Sentence Below Statutory Minimum, Absent Substantial Assistance Motion or Safety Valve

United States v. Montes, No. 08-10932 (5th Cir. Mar. 26, 2010) (Reavley, Davis, Stewart)

That's what the court held in United States v. Krumnow, and that's what it holds here:

In United States v. Krumnow, 476 F.3d 294, 295-98 (5th Cir. 2007), we held that district courts could impose a sentence of imprisonment below a statutory minimum only if: (1) the government so moves pursuant to 18 U.S.C. § 3553(e), asserting the defendant’s substantial assistance to the government; or (2) the defendant meets the “safety valve” criteria set forth in 18 U.S.C. § 3553(f). Otherwise, post-Booker sentencing courts lack discretion to depart below relevant statutory minimums. Id. at 297.

Montes does not contend otherwise. Instead, he argues that United States v. James, 468 F.3d 245 (5th Cir. 2007) gave the district court the discretion to depart below the mandatory minimum sentence. In James, this court opined that “[t]here is . . . no statutory provision or jurisprudential holding that would prohibit a court from departing below the section 924(c)(1) minimum if the court felt that such a sentence was appropriate.” Id. at 248. This court’s holding in Krumnow, however, forecloses any interpretation of James’s language that would imbue district courts with discretion to depart below the mandatory minimum absent a substantial assistance motion under 18 U.S.C. § 3553(e) or application of the 18 U.S.C. § 3553(f) safety valve, both of which are not present in the instance case. In Krumnow, this court clarified its ruling in James and expressly held that the language upon which Montes now relies was “simply either subsumed in the analysis for why the § 924(c) sentence may be reduced if the Government requests it or is dictum. Restated, this statement [the one upon which Montes now relies] in James is not its holding.” Krumnow, 476 F.3d at 297-98 (emphasis in original and some citations omitted). Thus, the district court could not depart below the sentences it actually imposed for the section 924(c)convictions.

Montes's sentence, in case you're wondering, was 4,705 months' imprisonment.

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Tuesday, March 23, 2010

Hiding in Sleeper Compartment of Tractor-Trailer Not §2L1.1 Reckless Endangerment

United States v. Torres, No. 09-40678 (5th Cir. Mar. 4, 2010) (per curiam) (Jolly, Dennis, Jordan, D.J.)

I've sometimes wondered how long it would take for a 1000 monkeys pecking away at a 1000 typewriters to answer every possible COV question out there. Probably about as long as it would take those same monkeys to answer whether every conceivable alien-smuggling scenario calls for a reckless endangerment enhancement under guideline §2L1.1(b)(6). The point being: there sure seem to be a lot of these cases. Here's another one of the latter.

Our factual permutation for today: eight-year-old child riding in a 15" x 15" x 36" space under the sleeping area of a big rig tractor. Reckless endangerment, yay or nay?


Here, the district court adopted the PSR as its findings of fact. In doing so, it adopted the recommendation to apply the enhancement because “[t]he area dimensions where the 9 year-old was concealed measured approximately 15 inches high by 15 inches deep by 36 inches wide. This confined space subjected the child to a substantial risk of death or serious bodily injury and warrants the adjustment.”

While the space under the sleeping area in Torres’s tractor-trailer was small, so was the child. Moreover, the child was not separated from the driver’s cab area, was near her mother and the driver, and could communicate with others. An agent testified that there was no lack of oxygen. Similarly, there was no finding that she was exposed to extreme temperatures, and the parties agree the child exited the tractor-trailer without assistance.

To reach that conclusion, the court considered the five factors identified in Zuniga-Amezquita, reminding once again that "[s]ection 2L1.1(b)(6) requires a case-specific analysis" (albeit without the somewhat exasperated tone of Garza). Given that, you may be asking yourself: why was this case published? It simply applies a well-established analytical framework to a highly fact-bound question, and at least some of these aren't published. One possbility: the court recognizes that we just don't have time to keep waiting on those monkeys. (To put the matter in perspective, "In 2003, an experiment was performed with six Celebes Crested Macaques. Their literary contribution was five pages consisting largely of the letter 'S'.") A marginally more plausible possbility: enough of these turn out the wrong way below that a published opinion is necessary every now and then to remind everyone how this enhancement works.

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Monday, March 22, 2010

Cert Grant On Derivative Citizenship Statute's Disparate Treatment of Out-of-Wedlock Birth to U.S. Citizen Father vs. U.S. Cititzen Mother

This post was written by Matthew Wright, Legal Research & Writing Specialist in the Amarillo office of the Federal Public Defender for the Northern District of Texas.

Everyone who has raised an acquired or derivative citizenship defense to a prosecution for illegal reentry understands that it is more difficult to establish citizenship through an unwed U.S. citizen father than through an unwed U.S. citizen mother. Today, the Supreme Court agreed to decide whether one of the added difficulties—a length-of-residence requirement for the father—is constitutional (and in an illegal reentry case, no less).

The requirements for transmitting citizenship are described in 8 U.S.C. §§ 1401 and 1409 (alias: INA §§ 301 and 309), and those statutes have been amended a number of times. Typically, these cases involve a child born outside the United States when one parent is a U.S. citizen and the other parent is not.

When a child is born out-of-wedlock to a U.S. citizen mother, the child acquires U.S. citizenship at birth "if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year." 8 U.S.C. § 1409(c). But if the child is born out-of-wedlock to a U.S. citizen father, the child must prove 1) that the father was present in the U.S. for a certain number of years before the child's birth, and 2) that the father took certain official steps acknowledging or legitimating paternity. § 1409(a). The Supreme Court first considered the constitutionality of this scheme in Miller v. Albright, but the Court failed to reach a majority opinion. In Nguyen v. INS, the Court upheld the legitimation requirement against an equal protection challenge.

Today, the Supreme Court granted certiorari in Flores-Villar v. United States, No. 09-5081, to address the unequal residency requirements for citizenship transmission. Prior to an amendment in 1986, an alien seeking citizenship through a citizen father had to show that the father was present in the United States for ten years prior to his birth, at least five of which were after the father reached the age of 14. Under current law (applicable to anyone born after November 14, 1986), the alien needs to show the father was present for five years, two of which were after 14.

Enter Flores, who wanted to raise a derivative citizenship defense to an illegal reentry charge. The old law applied to him, and his father was only 16 when Flores was born, so it was impossible for his father to transmit U.S. citizenship. On this basis, the government moved to exclude any derivative citizenship defense. The district court granted that motion and overruled Flores's constitutional attack. Flores was then convicted of illegal reentry on stipulated facts.

The petition raises a number if interesting issues, such as whether a defendant has standing to raise a violation of his father's equal protection rights, and whether the intermediate scrutiny normally applied to gender discrimination claims should give way to the deference normally afforded Congress in immigration matters.

This is an extraordinarily complex area of immigration law, and if you think your client may have a derivative citizenship defense (or would have a valid defense absent the unequal residency requirements), you may want to consider consulting someone who has litigated these cases before. Also note that the Fifth Circuit has already rejected an equal protection challenge to the more-severe residency requirements for unwed fathers in United States v. Cervantes-Nava, 281 F.3d 501 (5th Cir. 2002). Even so, in light of today's grant, the issue should be preserved in any pending cases.

If you'd like to read more about the case, SCOTUSblog has helpfully collected the Ninth Circuit's opinion, petition for certiorari, brief in opposition, and reply.

3/23/10 UPDATE: Check out some additional coverage from the AP.

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Friday, March 19, 2010

New SCOTUS Website

Tony Mauro reports in the National Law Journal:

The Supreme Court's long-awaited Web site redesign was unveiled Thursday at supremecourt.gov, bringing the site into the 21st century only a few years late.

The new site is visually appealing, with a rotating series of photos of the Court building, and iconography drawn from the Court's architectural features. It has an easy search function on its main page, which also displays the Court's oral argument calendar. Several important pieces of information about the Court that used to take several clicks to get to are now brought forward, for easier access.

The overall verdict: "[I]t does not appear that the Supreme Court's new site has much new or different content, but what is there is more accessible and reader-friendly." Fans of novelty take heart, though: "The Court's announcement of the new site, made by public information officer Kathy Arberg, also indicates the site is a work in progress, with new features to be added over time."

Orin Kerr noted the change yesterday, along with a trivia contest. (Hint: the answer isn't "Vertigo".)