A prior crime haunts our hero Jean Valjean for twenty years in Les Miserables. The Ninth has got that beat, though: it upholds the use of a thirty-year old offense to dramatically increase the specific offense adjustment of an illegal reentry defendant. See United States v. Olmos-Esparaza, __ F.3d __, Slip. Op. 4541 (9th Cir. Apr. 24, 2007), decision available here.
Players: Creative challenge by San Diego AFPD James Fife.
Facts: Olmos-Esparaza was convicted of illegal reentry after a trial and received a sentence of seventy months. Slip Op. at 4544. He won a Booker remand and on re-sentencing got a below-guideline, sixty-month term. Olmos-Esparaza took the case back up to the Ninth, arguing that the court erred by using convictions from 1972 and 1976 to increase the specific offense adjustment under USSG § 2L1.2 (2003) by sixteen levels. Id.
Issue(s): “Leobardo Olmos-Esparaza . . . convicted of illegal reentry after deportation . . . appeals his sentence . . . . In an issue of first impression in this circuit, he contends that the district court erred by considering his convictions from 1972 and 1976 in calculating sentencing enhancements under § 2L1.2 of the 2003 Sentencing Guidelines.” Id. at 4543.
Held: “We join the Tenth and Eleventh Circuits in holding that this section contains no time limitation on the age of convictions for purposes of calculating sentencing enhancements.” Id.
Of Note: This was a clever and credible defense argument. One type of specific offense adjustment under this guideline (the “+8" bump for agg felonies) specifically states that it is to be imposed regardless of the date of the underlying conviction. Id. at 4546. Another specific offense adjustment (“+16" for more serious offenses, like those at issue here) is silent as to a time limitation. Here, AFPD Fife exhumed that great law-school chestnut, expressio unius est exclusio alterius (“when some statutory provisions expressly mention a requirement, the omission of that requirement from other statutory provisions implies that the drafter intended the inclusion of the requirement in some instances but not others.”) Id. at 4546.
Unfortunately, the opinion’s author – Judge Hawkins – identifies some credible reasons why this spin doesn’t work, including an odd result from the defense argument: less serious (+8) agg felony enhancements wouldn’t have any time limitations, but more serious (+16) enhancements would. Id. at 4547.
How to Use: There’s something wrong when a conviction too old to even count in the criminal history computation doubles (or trebles) a defendant’s guideline exposure as a specific offense adjustment. There’s also something unfair (and frankly racist) in the fact that very old convictions can’t increase specific offense adjustments in other guidelines (like § 2K2.1(a), felon in possession), but can for illegal reentry under § 2L1.2. Don’t hold your breath that the Sentencing Commission will correct these injustices, but, fortunately, district judges can after Booker. Any conviction that earns “zero” points in the Criminal History computation of the PSR, but that nonetheless jacks-up the Offense Level calculation, is ripe for a Booker / § 3553(a) attack. Maybe that’s one of the equities that earned Mr. Olmos-Esparaza a below-guideline sentence on his Booker remand?
For Further Reading: One of the hot criminal law issues in the Ninth is how to deal with prior convictions that trigger specific offense adjustments. Olmos-Esparaza deals with time limitations on the use of such priors. Many other recent Ninth Circuit cases wrestle with the “modified categorical” approach, and whether a particular “prior” qualifies. (The ramifications of Shepard v. United States, 544 U.S. 13 (2005) are finally being ironed out in the Circuits). For a very, very useful recent decision on this issue, take a look at United States v. Snellenberger, 480 F.3d 1187 (9th Cir. 2007), decision available here. This great Ferguson decision rejects criminal minutes and abstracts of judgments as fodder for the “modified categorical” mill. Id. at 1191 & n.5. This little nugget from Snellenberger has escaped much notice, but the decision is a big deal: footnote five dictates an evidentiary limitation on the government that could save Career Offender and illegal reentry defendants years in custody.
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org