Case o' The Week: What Happens in Vegas . . . Gets Reversed in SF -- Castillo-Marin and Taylor Sentencing
Las Vegas, surprisingly, isn’t so hot at interpreting New York. United States v. Castillo-Marin, 2012 WL 2550594 (9th Cir. July 3, 2012), decision available here.
Players: Decision by CD Cal DJ Timlin, joined by Judge Fisher. Dissent by Judge Rawlinson. Nice win for Nev. AFPD Brenda Weksler and Federal Defender Rene Valladares.
Facts: The PSR for Castillo-Marin’s illegal-reentry sentencing in Las Vegas hit the defendant with a +16 offense level, specific offense adjustment. Id. at *1. The PSR described a New York prior, where the charging document alleged Castillo-Marin had stabbed a man five times with a knife – putting the victim in critical care. Id. Looking to the “crime of violence” definition at 8 USC § 1101(a)(43) [ed. note – a definition used for “agg felonies”], the PSR found the New York prior qualified and recommended a sentence within the offense level 21 range (post-acceptance). Id. The defense did not object. Id.
Issue(s): “Castillo-Marin challenges the district court’s application of U.S. Sentencing Guidelines (U.S.S.G.) § 2L1.2(b)(1)(A)(ii), which imposes a 16-level enhancement where a defendant has previously committed a crime of violence. He contends that the district court committed plain error by relying solely on the PSR’s characterization of his prior conviction.” Id. at *1.
Held: “[T]o the extent the district court relied on the PSR’s factual description of Castillo-Marin’s prior offense to determine that Castillo-Marin had been convicted of a crime of violence, it plainly erred.” Id. at *3.
Of Note: Appellate folks: here are two nuggets in Castillo-Marin to tuck away for future briefs. First, the defense here argued in its opening brief that all four prongs of the plain error analysis were met. Id. at *2. In its answering brief, the government did not contest that the first two prongs of plain error were satisfied. Id. The government was then (to its likely chagrin) bound by that concession: when the government fails to contest an argument in its answering brief it is “deemed waived.” Id.
Second, the government urges the Ninth to take “judicial notice” of New York documents surrounding the prior. Id. at *7. Judge Timlin ain’t buying it, emphasizing that the Ninth “rarely take[s] judicial notice of facts presented for the first time on appeal.” Id. Remember Castillo-Marin when the government tries to sneak facts in on appeal through the “judicial notice” ruse.
How to Use: Castillo-Marin is a good source for three sentencing propositions that are now black-letter law:
• A district court can’t use a PSR for the Taylor analysis. Id. at *3.• PSRs are so off-limits for Taylor sentencing that using them can constitute plain error on appellate review. Id. at *4.• Charging documents (here, the New York indictment) alone are never sufficient to establish a predicate offense under the modified categorical analysis. Id. at *9.
For Further Reading: Aggravating matters (pun intended), the Las Vegas Probation Office used the wrong definition of “crime of violence” when it hit Castillo-Marin with a +16 OL specific offense adjustment. Id. at *4. The Probation Office used the statutory definition, for aggravated felonies. Id. (discussing §1101(a)(43)). The +16 OL specific offense adjustment in Guideline § 2L1.2(b)(1)(A)(ii), however, has a different definition of “crime of violence.”
“Crime of Violence” (or, “C.O.V.”, for Taylor geeks) is a complex and subtle area of law that can make a big difference for our illegal reentry, ACCA, and Career Offender clients. For a helpful outline on this complicated area, see Michael A. Meetze, AFPD D. S. Carolina, Determining “Crimes of Violence” and “Violent Felonies”, available here.
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Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org