Case o' The Week: Ninth Not Content without Assent - Sahagun-Gallegos, Decamps, and Taylor Analysis of Prior Plea Transcripts
|Hon. Judge Morgan Christen|
Attorneys often speak for their clients.
Thankfully, however, attorneys can’t concede for their clients (at least, can’t concede plea facts that haunt later Taylor analyses).
United States v. Sahagun-Gallegos, 2015 WL 159446 (9th Cir. Apr. 10, 2015), decision available here.
Players: Decision by Judge Christen, joined by Judges Noonan and Fletcher. Big win for former CD Cal AFPD Davina Chen.
Facts: Sahagun-Gallegos was deported and reentered the US. Id. at *1. He pleaded guilty in Az. to aggravated assault, and was deported again. Id. He reentered, was arrested, and convicted of illegal reentry. Id. The PSR recommended a +16 OL bump, characterizing the agg assault as a felony “crime of violence.” Id. He refused to waive his appellate rights, and was denied the third point for acceptance. Id. With no defense objection, the Court found the guidelines correctly included the +16 OL increase. Id. His attorney filed an Anders brief, but the Ninth found two bases for an appeal: the +16 increase and the government’s refusal to grant a third point for acceptance. Id. at *2. New counsel was appointed. Id.
Issue(s): “We consider in this case whether, consistent with Descamps v. United States, 133 S. Ct. 2276 (2013), a sentencing court conducting the modified categorical approach may rely on a defense attorney’s statement of the factual basis for a guilty plea and use the process of elimination to determine which subsection of a divisible statute the defendant pleaded guilty to violating.” Id. at *1.
Held: “We conclude that it may not, and vacate and remand the case for resentencing.” Id.
Of Note: Some anonymous Ninth staff attorney earns a grateful shout-out for catching these issues in an Anders brief. The case actually gets reversed for the third point issue – the Commission changed the acceptance guideline and put an end to that inane government policy while the case was on appeal. Id. at *2. The real issue in the case, however, is the factual showing underlying the Taylor analysis. Id. at *3. All agree that the agg assault statute at issue was both overbroad and divisible. Id. at *4. At the underlying plea colloquy for the Arizona conviction, Sahagun-Gallegos’ attorney stated that his client had pointed a sawed-off shotgun at a cashier in a fast food restaurant. Id. However, nothing in the transcript revealed Sahagun-Gallegos assented to his attorney’s factual description. Id. at *5.
Even if he had, that factual concession in a plea can only (possibly) be used to negate all possible statutory alternatives. Id. & fn. 6.
The decision joins another post-Descamps Ninth opinion, Marcia-Acosta, in a welcome line limiting the government’s expansive fact-roving to try to make its Taylor showing.
How to Use: Descamps¸you will recall, is the 2013 Supreme Court decision guiding the application of the Taylor modified categorical approach. See Steve Sady’s excellent Q&A on Descamps, here.
Sahagun-Gallegos is the Ninth’s continued interpretation of Descamps. Take a particularly close look at the opinion if i) a prior is causing an offense level increase (usually in Section 1326 cases, but also common in Section 922(g) sentencings and other crimes), ii) the underlying statute is divisible – it has elements that can constitute a crime, but that don’t meet the “generic” definition of the guideline prior, and iii) the government relies on a plea colloquy transcript to argue the prior qualifies.
For Further Reading: In other sentencing news, last week the USSG adopted proposed amendments to the fraud guidelines. You can find reader-friendly versions of these amendments here.
The amendments also include changes to relevant conduct principles, and the hydrocodone guideline. These amendments become effective Nov. 1, 2015, barring any contrary action by Congress.
Image of Judge Morgan Christen from http://bloximages.chicago2.vip.townnews.com/billingsgazette.com/content/tncms/assets/v3/editorial/3/2d/32d9be34-f580-560f-9e24-b0bd90e94411/54c18d424bf58.preview-620.jpg
Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org