|Hon. Judge Morgan Christen|
Attorneys often speak for their clients.
however, attorneys can’t concede for their
clients (at least, can’t concede plea facts that haunt later Taylor analyses).
United States v. Sahagun-Gallegos, 2015 WL 159446 (9th Cir.
Apr. 10, 2015), decision available here.
Players: Decision by Judge Christen, joined by Judges Noonan
and Fletcher. Big win for former CD Cal AFPD Davina Chen.
Facts: Sahagun-Gallegos was deported and reentered the US. Id. at *1. He pleaded guilty in Az. to
aggravated assault, and was deported again. Id.
He reentered, was arrested, and convicted of illegal reentry. Id. The PSR recommended a +16 OL bump,
characterizing the agg assault as a felony “crime of violence.” Id. He refused to waive his appellate
rights, and was denied the third point for acceptance. Id. With no defense objection, the Court found the guidelines
correctly included the +16 OL increase. Id.
His attorney filed an Anders brief,
but the Ninth found two bases for an appeal: the +16 increase and the government’s refusal to
grant a third point for acceptance. Id.
at *2. New counsel was appointed. Id.
Issue(s): “We consider in this case whether, consistent with Descamps v. United States, 133 S. Ct.
2276 (2013), a sentencing court conducting the modified categorical approach
may rely on a defense attorney’s statement of the factual basis for a guilty
plea and use the process of elimination to determine which subsection of a
divisible statute the defendant pleaded guilty to violating.” Id. at *1.
conclude that it may not, and vacate and remand the case for resentencing.” Id.
Of Note: Some anonymous Ninth staff attorney earns a grateful
shout-out for catching these issues in an Anders
brief. The case actually gets reversed for the third point issue – the Commission
changed the acceptance guideline and put an end to that inane government policy
while the case was on appeal. Id. at
*2. The real issue in the case, however, is the factual showing underlying the Taylor analysis. Id. at *3. All agree that the agg assault statute at issue was both
overbroad and divisible. Id. at *4.
At the underlying plea colloquy for the Arizona conviction, Sahagun-Gallegos’ attorney stated that his client had
pointed a sawed-off shotgun at a cashier in a fast food restaurant. Id. However, nothing in the transcript revealed
Sahagun-Gallegos assented to his attorney’s factual description. Id. at *5.
Even if he had, that factual
concession in a plea can only (possibly) be used to negate all possible
statutory alternatives. Id. & fn.
The decision joins another post-Descamps
Ninth opinion, Marcia-Acosta, in a welcome
line limiting the government’s expansive fact-roving to try to make its Taylor showing.
How to Use:
Descamps¸you will recall, is the 2013
Supreme Court decision guiding the application of the Taylor modified categorical approach. See Steve Sady’s excellent Q&A on Descamps, here.
Sahagun-Gallegos is the Ninth’s
continued interpretation of Descamps. Take a particularly close look at the opinion if i) a prior is causing an offense
level increase (usually in Section 1326 cases, but also common in Section
922(g) sentencings and other crimes), ii) the underlying statute is divisible –
it has elements that can constitute a crime, but that don’t meet the “generic”
definition of the guideline prior, and iii) the government relies on a plea colloquy
transcript to argue the prior qualifies.
Reading: In other sentencing news, last week
the USSG adopted proposed amendments to the fraud guidelines. You can find
reader-friendly versions of these amendments here.
The amendments also include changes to relevant conduct principles, and the
hydrocodone guideline. These amendments become effective Nov. 1, 2015, barring
any contrary action by Congress.
Labels: Christen, Descamps, Guidelines, Modified categorical analysis, Sentencing, Sentencing Commission, Taylor Analysis