Sunday, June 10, 2012

Case o' The Week: Defendant's loss, a Defense Win - Leal-Vega and the Taylor Categorical Analysis

Legislatures are so creative. Bored by common, generic definitions of frequent crimes (like burglary) State Legislatures love to cook up novel definitions that expand criminal liability. California, for example, has criminalized  the possession for sale of drugs that fall outside of the standard federal definition of “controlled substances.”

Bad for clients fighting state cases. A great trend, however, for federal defendants fighting the Taylor sentencing analysis. See United States v. Leal-Vega, 2012 WL 1940217 (9th Cir. May 30, 2012), decision available here.

Players: Important case litigated by former AFPD Carl Gunn. Decision by Judge M. Smith.

Facts: In 1999, Leal-Vega pled guilty to violating Cal. Health and Safety Code § 11351 (possession for sale of a ‘controlled substance).” Id. at *1. 

A decade later he was convicted of illegal reentry, and Probation hit him with a sixteen offense level adjustment for a prior “drug trafficking offense” under USSG § 2L1.2. Id. The district court found that the prior felony did not qualify categorically as a “drug trafficking offense,” because California law criminalizes the possession for sale of "controlled substances" not within the federal definition. Id. at *2. The government appealed.

Issue(s): “The Government contends that the sixteen-level enhancement should have been applied because Section 11351 is categorically a ‘drug trafficking offense’ under U.S.S.G. § 2L1.2. Alternatively, the Government contends that even if Section 11351 does not categorically qualify, Leal-Vega’s conviction qualifies as a ‘drug-trafficking offense’ applying the modified categorical analysis because the substance involved was tar heroin, a substance covered by the federal Controlled Substances Act . . . .” Id. at *1

Held: “We hold that a conviction under Section 11351 does not qualify categorically as a ‘drug trafficking offense’ for the purposes of U.S.S.G. § 2L1.2. However, we hold that Leal-Vega’s prior Section 11351 conviction qualifies as a ‘drug trafficking offense’ using the modified categorical approach, and we reverse and remand for sentencing.” Id.

Of Note: The Taylor jurisprudential goo has been one of the hottest issues in the Ninth (and the Supremes) for the past decade or so. Two Ninth judges have taken a particular interest in the topic: the Honorable Jay Bybee (author of the fractured Aguila Montes de Oca decision), and the Honorable Milan Smith, author of Leal-Vega. Judge M. Smith has had the better approach, in our opinion – he was the first to explain that a California burglary never really ought to qualify as a “violent offense” under a categorical analysis. See blog post here. 

Judge Smith gets it right again in Leal-Vega, correctly explaining why the government’s approach to Section 11351 would undermine the reasoning behind the categorical approach set forth in Taylor. Id. at *4-*6. Leal-Vega provides a thoughtful explanation of the most important area of unsettled sentencing law: it is worth a close read for a good understanding of what Taylor really means.

How to Use: Mull this truth: a California crime of possession of a “controlled substance” for sale is now not categorically a “drug trafficking” offense under the Guidelines. We like it, but even we concede this holding isn’t intuitive unless you really dig into the state statute. Leal-Vega illustrates the importance of a brutally skeptical eye when looking at the categorical analysis of state priors that increase guideline sentences.

 The modified categorical approach still hurts, of course – here the Court permits a modified categorical analysis, and the “tar heroin” facts surrounding Leal-Vega’s prior cost him the win. Id. at *7. Nonetheless, the confusion around Aguila Montes de Oca’s fractured modified categorical approach (and its reliance on “necessary” facts) means that there are still many opportunities for mischief in Section 11351 cases.

 Build on Leal-Vega’s understanding of the broad state definitions of controlled substances to attack the categorical qualification of other state (and potentially federal!) prior convictions that increase sentencing exposure.
For Further Reading: What a contrary cuss is Carl – god bless him. To read straight from the horse’s mouth how to exploit the Leal-Vega decision, hit his blog for a recap of the opinion (he modestly forgets to note it is his case). See “Hanging out with Carl Gunn,” here

Image of the California State Legislature from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at

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