Washington: Booker plus Shepard equals no enhancement under firearms guideline
Good news from an unusual source: the Fourth Circuit. In Washington, the court applied Booker and Shepard to enhancement of the firearms guideline based on prior convictions (U.S.S.G. §§ 2K2.1(a)(4) and 4B1.2(a)(2)). The court found that, in the absence of the judicially noticeable facts listed in Shepard, a prior conviction could not be considered a "crime of violence." This issue was discussed in the Shepard: where do we go from here? blog.
The firearms guideline includes drastic increases in offense level based on prior convictions – already counted in reaching the criminal history category – that are a "crime of violence" or a "drug trafficking offense" as defined in the career offender guideline. Mr. Washington faced sentencing for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). The trial court enhanced his sentence based on a prior conviction for breaking and entering, even though the statute did not categorically describe a "crime of violence." At the sentencing hearing, the trial judge received additional information regarding the circumstances of the offense, leading to findings by a preponderance of the evidence regarding factors the court found sufficient to qualify the offense as presenting "a serious potential risk of physical injury to another." Because no Sixth Amendment claim was raised below, the Fourth Circuit reviewed for plain error.
The majority opinion (available here) held that the cumulative effect of Booker and Shepard is to foreclose the enhancement. The "fact of a prior conviction" exception to the jury trial requirement, with its questionable roots in Almendarez-Torres (see earlier blog here), rested on two assumptions: the certainty that procedural safeguards applied to any relevant "fact" necessary to the conviction; and the absence of any challenge to the accuracy of the relevant fact in Almendarez-Torres. In Shepard, consideration of material beyond jury instructions, bench trial findings, and admissions during guilty plea colloquies created Sixth Amendment issues that must be avoided – by not permitting their consideration as a matter of statutory interpretation.
The Washington court takes the logical step to the Sixth Amendment. Because the trial judge’s inquiry went beyond the facts of the guilty plea, "Washington’s sentence was imposed in violation of his Sixth Amendment rights." The extra-record facts went beyond the face of the indictment and included hypothetical facts based on the type of structure involved (a drug task force building). Washington controverted underlying facts as well as the ultimate conclusion that the prior conviction was a crime of violence. Because the error was plain, the court vacated and remanded "for such other and further proceedings as may be appropriate." Judge Luttig dissented.
Congratulations to the defense team out of the Charleston, West Virginia, office of the Federal Public Defender.
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon
The firearms guideline includes drastic increases in offense level based on prior convictions – already counted in reaching the criminal history category – that are a "crime of violence" or a "drug trafficking offense" as defined in the career offender guideline. Mr. Washington faced sentencing for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). The trial court enhanced his sentence based on a prior conviction for breaking and entering, even though the statute did not categorically describe a "crime of violence." At the sentencing hearing, the trial judge received additional information regarding the circumstances of the offense, leading to findings by a preponderance of the evidence regarding factors the court found sufficient to qualify the offense as presenting "a serious potential risk of physical injury to another." Because no Sixth Amendment claim was raised below, the Fourth Circuit reviewed for plain error.
The majority opinion (available here) held that the cumulative effect of Booker and Shepard is to foreclose the enhancement. The "fact of a prior conviction" exception to the jury trial requirement, with its questionable roots in Almendarez-Torres (see earlier blog here), rested on two assumptions: the certainty that procedural safeguards applied to any relevant "fact" necessary to the conviction; and the absence of any challenge to the accuracy of the relevant fact in Almendarez-Torres. In Shepard, consideration of material beyond jury instructions, bench trial findings, and admissions during guilty plea colloquies created Sixth Amendment issues that must be avoided – by not permitting their consideration as a matter of statutory interpretation.
The Washington court takes the logical step to the Sixth Amendment. Because the trial judge’s inquiry went beyond the facts of the guilty plea, "Washington’s sentence was imposed in violation of his Sixth Amendment rights." The extra-record facts went beyond the face of the indictment and included hypothetical facts based on the type of structure involved (a drug task force building). Washington controverted underlying facts as well as the ultimate conclusion that the prior conviction was a crime of violence. Because the error was plain, the court vacated and remanded "for such other and further proceedings as may be appropriate." Judge Luttig dissented.
Congratulations to the defense team out of the Charleston, West Virginia, office of the Federal Public Defender.
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon
posted by Steve Sady at 4/18/2005 08:12:00 AM
2 Comments:
The district judge explicitly rejected the government's attempt to bolster the record. He based his observations on the likelihood of violence on his "common experience" about the nature of such task force offices. (A common experience which turned out not to be true in the sleepy town where the burglary occurred. Guns and drugs were there, but no one was around for hours.) I view Judge King's opinion as a statement that Washington had a Sixth Amendment right to have a jury apply its common experience to the law in determining whether the breaking and entering was a crime of violence.
Just to follow up on Ed's point: I find it hard to believe that the Govt's bolstering didn't have some impact on the district court's conclusion that the B&E was a crime of violence, even if it just reinforced its "common experience." But I'm a cynic at heart.
Also, FWIW, the issue that got us there in the first place (whether a B&E of a non-dwelling can ever be a crime of violence in the Fourth Circuit) went unresolved.
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