Friday, March 15, 2013

Error, if Any, in Relying on Non-Shepard Document to Assess 12-Level Enhancement Did Not Affect Fairness, Integrity, or Public Reputation of Judicial Proceedings

United States v. Duque-Hernandez, No. 11-40642 (Smith, Prado, Higginson)

Duque-Hernandez pled guilty to illegal reentry and was sentenced to 51 months of imprisonment, which was the low end of the guidelines range after the court applied a 12-level enhancement. The court determined that his conviction under Utah Criminal Code § 58-37-8(1)(a)(ii) was a drug trafficking offense (DTO) by relying on a probable cause statement attached to the information. Duque-Hernandez did not object. On appeal, Duque-Hernandez argued that the statute of conviction was broader than a DTO and that the court erred in relying on a non-Shepard document to apply the enhancement.

The panel avoided the issues raised, however, finding that any error did "not seriously affect the fairness, integrity, or public reputation of judicial proceedings, [and] we decline to exercise our discretion to correct it." In sum: it’s not worth re-sentencing this defendant because we think he really did commit a drug trafficking offense (even if the Shepard documents don’t support that conclusion), he did not object even though he previously appealed on this same issue for a prior illegal reentry charge (and won!), and his sentence "has strong foundation" because he "has persistently disregarded the immigration [and drug] laws of the United States."

The one issue that the panel decided: it could rely on the probable cause statement, even if it was not a Shepard document, to determine whether the application of the DTO adjustment seriously affected the fairness, integrity, or public reputation of the proceedings. Since that statement indicates that Duque-Hernandez offered to sell cocaine, the panel allowed it to influence its determination of whether or not to vacate and remand for sentencing.

The lesson: preserve, preserve, preserve. Also, look up prior cases for repeat illegal reentry clients to find out how the courts have treated their priors. You might find arguments - or even decisions - that will help them out on their subsequent cases.

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