Great win on agg felony issue, but nagging problem with government's abuse of discretion with the third acceptance point. United States v.Baza-Martinez, __ F.3d. __, 06 Cal. Daily Op. Serv. 11951 (9th Cir. Sept. 26, 2006), decision available here.
Players: Great win by Arizona crew Michaela Portillo, Brian Rademacher, and Defender Jon Sands.
Facts: An illegal reentry defendant pleaded open with a North Carolina prior for “indecent liberties with a child.” Id. at 11954. The district court gave the +16 offense level bump for reentry after an agg felony. Id.
Issue(s): “Baza-Martinez contends that the imposition of a sixteen-level sentencing enhancement was not justified because his prior felony conviction . . . for taking indecent liberties with a child, is not ‘sexual abuse of a minor,’ a ‘crime of violence’ under United States Sentencing Guidelines . . . § 2L1.2(b)(a)(A)(ii).” Id. at 11594.
Held: “Employing the categorical approach and considering the full range of conduct criminalized by [the North Carolina statute], we hold that a conviction under that statute is not necessarily a ‘crime of violence . . . .” Id. at 11955.
Of Note: The important win for Baza-Martinez – and his F.P.D. team – was to knock out the 16 level enhancement. The troubling aspect of the opinion, however, is that the AUSA withheld the third point for acceptance – for no apparent reason. Apparently, the AUSA was reassured the defendant wasn’t going to trial, there were no pretrial motions filed, and the defendant timely entered a plea. The government appears to have withheld the recommendation for the third offense level because the defendant decided to keep his rights to appeal his sentence and file a collateral attack. The audacity. How preserving a sentencing appeal relates to permitting the government “avoid preparing for trial” (the language of the acceptance guideline) is a mystery. Nonetheless, this AUSA gets a pass because “[n]othing in the record suggests that the prosecutor’s motive was retaliatory.” Id. at 11956.
The third acceptance point has become the refuge of lazy and fearful prosecutors. As predicted, when the government got the discretion to recommend whether that point was warranted, it quickly abused its power and expanded acceptance far beyond avoiding trial – here, preserving a sentencing appeal cost the third point! What’s even worse is that, here, the defendant was right! The North Carolina prior, turns out, was not an agg felony.
When a court tolerates the government’s misuse of the third-acceptance point recommendation, it undermines the judicial system by building in tolerance for erroneous legal decisions. In this case, for example, had the defendant not had the chutzpah to sacrifice the third point and take the case up, that erroneous decision on the agg felony would still stand. This little point is a Big Point: the government’s abuse of the third point recommendation unfairly and inappropriately chills the exercise of appellate rights. Baza-Martinez illustrates this problem in a very dramatic way. The source of all this mischief is the wrongly-decided Espinoza-Cano decision: that case cries out for en banc review.
How to Use: Baza-Martinez reinforces an old lesson: even the most unlikely felony priors may escape the agg felony designation with a little pushing. Old priors or out-of-state priors should set off a red flag that maybe the paperwork has gone missing, making the “modified categorical” approach impossible for determining whether a statutory offense is an aggravated felony.
For Further Reading: There was a rumor that this third acceptance-point debacle in the PROTECT Act was first cooked up by some young hack at DOJ who resented working on pretrial motions on his weekends. USSG 3E1.1(b) is thus the “PROTECT AUSA Weekend” amendment. Letting an AUSA determine "acceptance" is letting the fox guard the hen house -- except a fox is canny and charming.
As a sign of how flagrantly this “acceptance discretion” is abused, the issue has now cropped up in other circuits. See United States v. Sloley, __ F.3d __, 2006 WL 2642113 (2d Cir. Sept. 15, 2006), blog entry here; see also Espinoza-Cano blog here.
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org