Case o' The Week: If Brevity Be the Soul of Wit, a Witty Opinion indeed - Mendez-Sosa and Defining "Conviction" for Taylor analysis
Bad facts make bad law.
No facts make short opinions.
United States v. Mendez-Sosa, 2015 WL 868560 (9th Cir. Mar. 2, 2015), decision available here.
Players: Per curiam decision joined by Judges Wallace, M. Smith, and Friedland.
Facts: Mendez-Soza plead guilty to illegal reentry, in violation of 8 USC § 1326(a). Id. at *1. He had been previously convicted of Criminal Sexual Contact under New Jersey law. Id. At sentencing, the district court concluded that the offense was a “crime of violence” under USSG § 2L1.2(b)(1)(A)(ii) and hit the defendant with the sixteen-level enhancement. Id.
Issue(s): “On appeal, Mendez-Sosa argues the 16-level enhancement was improper for two reasons. First, he argues that he was never ‘convicted’ of the prior offense as that term is defined by either New Jersey law or the Immigration and Nationality Act. Second, he argues that even if he had been convicted of the prior offense, it was not a ‘crime of violence.’” Id. at *1.
Held: “We affirm.” Id.
Of Note: To paraphrase Churchill, this brief opinion is a riddle, wrapped in a mystery, inside an enigma. The core holding is this: “the applicable definition of ‘conviction,’ for purposes of the sentencing guidelines in the immigration context, is to be found in federal law, not state law.” Id. For support for that new proposition the panel relies on an old First Circuit case, United States v. Cuevas, 75 F.3d 778, 781 (1st Cir. 1996). Id.
What, exactly, was the alleged problem with the New Jersey prior that gave rise to this issue? It is not explained or described in the opinion. There are assurances that the defendant was “convicted” and we’re told he “pled guilty” – but there is no factual explanation on why this state definition of a “conviction” was in play. Was a nolo plea? Was it expunged? Diverted? Some exotic breed of East Coast wobbler? Not clear – and ambiguity may mean opportunity.
How to Use: Note the explicit limitation of the Mendez-Sosa holding: “for the purposes of the sentencing guidelines in the immigration context.” Id. at *1 (emphasis added). The case doesn’t purport to extend the “federal law” holding to the definition of “conviction” in other sentencing contexts (think guns, drugs, Career Offender, etc.) If outside of this very limited immigration / sentencing context, make sure to cabin this opinion to its narrow holding. And if you’re forced to fight Mendez-Sosa in the immigration context, explore the real factual ambiguity underlying this new Ninth holding.
For Further Reading: Go to http://www.ca9.uscourts.gov/opinions/, filter by Case Type “Criminal,” and behold the desert. Grizzled vets that follow such things can’t remember any similar absence of criminal opinions in the Ninth. There are traditional stretches of few opinions as the clerks switch up in the fall, and we always see slow periods around the holidays, but this winter’s opinion drought rivals California’s dry spell. The trend is of more than passing interest: D.C. bean counters who write the checks keep a close eye on these figures. See, e.g., US Courts stats here.
What gives? This may the downstream impact of sequestration and the general decline in criminal filings. It may be the pernicious impact of the growing use of appellate waivers in plea agreements (and yet another argument for the abolition of such waivers). It may be because the guidelines are increasingly irrelevant, and sentencing appeals have thus dried up. Maybe there is a boom in mem dispos? Maybe it is all of those things, together. Worrisome, though, when the nation’s largest federal Court of Appeals seems to have lost its voice on criminal justice issues.
Nietzshe image and quote from http://izquotes.com/quote/135858
Steven Kalar, Federal Public Defender ND Cal. Website at www.ndcalfpd.org