Tuesday, August 26, 2014

Florida Attempted Aggravated Battery on LEO with LEO’s Firearm is § 2L1.2 Crime of Violence; Alien Smuggling and Illegal Reentry Grouped Together for § 3D1.2

Garcia-Figueroa was convicted of three counts: conspiracy to bring aliens into the United States, bringing them into the United States, and being unlawfully present in the United States following his deportation.  He challenged the 12-level enhancement for a crime of violence (“COV”) and the sentencing court’s failure to group all counts together for § 3D1.2.

Garcia-Figueroa’s prior judgment used for the COV enhancement indicates he was convicted in 1991 for attempted aggravated battery on a law enforcement officer (“LEO”) with a LEO’s firearm in violation of Florida Statute §§ 784.07 (aggravated battery), 777.04 (attempt), and 775.0875 (third degree felony to take a firearm from a LEO lawfully engaged in law enforcement duties).  Garcia-Figueroa’s argument focuses on the divisible Florida aggravated battery statute, 784.045(1)(a), arguing that the Shepard documents do not specify that Garcia-Figueroa committed aggravated battery with a deadly weapon.  The panel disagrees and finds that the judgment establishes that Garcia-Figueroa used a deadly weapon, which would render the conviction a COV pursuant to United States v. Dominguez, 479 F.3d 345 (5th Cir. 2007).  The panel also analyzes the elements of taking a firearm from a LEO lawfully engaged in law enforcement duties and finds that such an offense creates a sufficient threatened use of force to qualify as a § 2L1.2 COV under the elements clause.

Garcia-Figueroa also argues that Florida attempt is broader than the generic definition of attempt and that his conviction therefore does not qualify as a § 2L1.2 COV.  Generic attempt follows the Model Penal Code’s substantial step test, which requires the substantial step to be “strongly corroborative of the actor’s criminal purpose.”  MPC § 5.01(2).  In contrast, Florida attempt includes “any act toward the commission” of an offense.  Fla. Stat. §77.04(1) (1991).  Nevertheless, the panel finds that Garcia-Figueroa failed to point to specific instances where Florida attempt was applied to conduct outside the ordinary meaning of attempt.  He cited two Florida cases, but the panel finds that they would be covered by generic attempt.  Thus, the panel affirms the 12-level enhancement. 

However, the panel finds that the district court erred in its grouping calculations.  Since the “victim” of both the alien smuggling and illegal reentry offenses is the societal interest protected by immigration laws, the immigration offenses should have been grouped together.  See U.S.S.G. § 3D1.2 cmt. n.2.  By grouping the alien smuggling counts together separate from the illegal reentry offense, the court applied an erroneous 2-level increase that resulted in a higher guideline range.  Garcia-Figueroa was sentenced within the higher, incorrect range, and the transcript revealed that the sentence “was strongly grounded in the erroneously calculated Guidelines range.”  The panel vacates Garcia-Figueroa’s sentence and remands for resentencing.

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Monday, August 18, 2014

Reckless NY Aggravated Criminal Contempt Conviction is Aggravated Felony

Sanchez-Espinal challenged the 8-level enhancement imposed on his illegal reentry conviction.  The district court found that his conviction in New York for Aggravated Criminal Contempt, N.Y. Penal Law § 215.52(1), was a crime of violence under 18 U.S.C. § 16(b) and therefore an aggravated felony pursuant to 8 U.S.C. § 1101(a)(43)(F).  Section 16(b) provides that a felony conviction is a crime of violence if, “by its nature, [it] involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”
“A person is guilty of aggravated criminal contempt when . . . in violation of a duly served order of protection . . . he or she intentionally or recklessly causes physical injury or serious physical injury to a person for whose protection such order was issued.”  N.Y. Penal Law § 215.52(1).  Sanchez-Espinal’s charging document charged his mens rea as both intentionally and recklessly.
The panel sets the stage by emphasizing that a § 16(b) crime of violence does not require the risk of the use of physical force to arise in every instance; it just requires a strong probability that the application of physical force during the commission of the crime will occur.  The panel reasons that, even if committed recklessly, the defendant must have “knowingly flout[ed] a court order to violate § 215.52(1)” thereby “increas[ing] the likelihood of force in the commission of aggravated criminal contempt.”  A protective order is issued in New York after a victim’s complaint or the commission of a “family offense,” which refers to many offenses including harassment and strangulation.  Therefore, this offense “naturally involve[s] a person acting in disregard of the risk that physical force might be used against another in committing [the] offense.”  See Leocal v. Ashcroft, 543 U.S. 1, 10 (2004).  (Although, one can easily imagine a decision reaching the opposite result and stating that “[i]n no ‘ordinary or natural’ sense can it be said that a person risks having to ‘use’ physical force against another person in the course of [violating a protective order] and causing [serious physical] injury.”)
Sanchez-Espinal also argued on appeal that he was actually convicted of Criminal Contempt, N.Y. Penal Law § 215.51, and that the Government had not presented sufficient evidence to prove that he was convicted of § 215.52 or to narrow his conviction to § 215.52(1).  Since he did not preserve these issues below, the panel addresses these arguments on plain error review.  The panel finds that the state court felony complaint, the state court information, and the state court Uniform Sentence & Commitment supported a finding that he was convicted of § 215.52.  Since the language of the information closely tracked the language of § 215.52(1), the panel finds the district court did not err in finding that he was charged and convicted of violating § 215.52(1). 

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Wednesday, August 06, 2014

Revised “Animal Crush Video” Statute Does Not Facially Violate First Amendment because “Obscene” Element Incorporates Miller Definition

Richards and Justice were charged with five counts of violating the revised 18 U.S.C. § 48.  In response to United States v. Stevens in which the Supreme Court struck down 18 U.S.C. § 48 (1999), “Congress revised § 48 to make it crime to knowingly create, sell, market, advertise, exchange, or distribute an “animal crush video” that (1) depicts actual conduct in which one or more non-human animals is intentionally crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury and (2) is obscene.”
Richards and Justice did not challenge the statute as overbroad, but they filed a motion to dismiss on the grounds that § 48 is facially invalid under the First Amendment because it proscribes speech that is not within an unprotected category and is not narrowly tailored to serve a compelling government interest.  The district court dismissed those five counts, and the Government timely appealed. 
Since obscenity is one of the areas in which the First Amendment permits restrictions, the first issue is whether § 48 is limited to obscene speech.  Section 48 does not define “obscene,” but courts have held that the Miller v. California, 413 U.S. 15 (1973), definition of “obscene” is incorporated into such federal statutes that use but do not define the term.  Miller provides the trier of fact the following guidelines for determining obscenity:
(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
413 U.S. at 24.
Richards and Justice argue that Congress did not intend to use the Miller definition of “obscene” because Congress did not intend § 48 obscenity to require depiction of sexual conduct.  The panel finds that the legislative history does not clearly exclude sexual conduct from the definition of obscene.  “[Section] 48 incorporates Miller obscenity and thus by its terms proscribes only unprotected speech.”  Presumably this leaves to the prosecutor to prove that the animal crush videos meet the Miller definition of obscenity by depicting sexual conduct or at least unusually deviant acts.
The panel also disagrees with Richards and Justice’s second argument that, even limited to Miller obscenity, § 48 is facially unconstitutional because it proscribes only a narrow category of obscenity based on its content.  The panel finds § 48 is content-neutral because it targets the secondary effects of speech (promotion of antisocial and violent behavior) and is reasonably and narrowly tailored.

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Friday, August 01, 2014

Louisiana Aggravated Battery Not Categorically § 2L1.2 COV Because It Includes Administering Poison

Herrera-Alvarez was convicted of illegal reentry and had a prior Louisiana conviction for aggravated battery under Louisiana Revised Statutes section 14:34.  The panel determines that section 14:34 as a whole is not categorically a § 2L1.2 crime of violence (“COV”) because it “criminalizes aggravated batteries committed by administering poison, which does not necessarily entail the use of destructive or violent physical force.” 

However, under the modified categorical approach, Herrera-Alvarez’s aggravated battery conviction is a COV.  Under Louisiana law, “[b]attery is the intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another.”  Herrera-Alvarez’s charging document specifically said that he committed aggravated battery with a dangerous weapon, to wit: a knife, thereby excluding the possibility that the aggravated battery was committed by means of poisoning. 

The panel reasons that the touching of an individual with a deadly weapon is a sufficient threat of force to qualify as a COV.  Thus, Herrera-Alvarez’s conviction is a COV because it necessarily contains, as an element, the use, attempted use, or threatened use of force by requiring both physical contact and the use of a dangerous weapon used in a manner calculated or likely to produce death or great bodily harm.  The panel affirmed the 16-level enhancement and rejected Herrera-Alvarez’s arguments that the statute only requires offensive touching and that the offense can be committed while merely possessing the dangerous weapon, not touching an individual with it.

As a side note, the panel also explains why the instant case was not controlled by decisions finding that Louisiana aggravated battery is a COV under § 4B1.2(a) and a “serious violent felony” for purposes of 18 U.S.C. § 3559(c).  The panel explains that there is a “salient statutory distinction among the statutes and Guidelines provisions at issue,” so the other precedent does not control the § 2L1.2 determination.  For example, Louisiana aggravated battery is a COV under the residual clause of § 4B1.2(a) because it involves conduct that presents “a serious potential risk of physical injury to another’ and is “purposeful, violent, and aggressive.”  Section 2L1.2, however, does not have a comparable residual clause.  This is an important reminder to be sure to address the correct COV definition when analyzing and researching a COV issue because it can make a difference.

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