U.S. v. Sahagun-Gallegos, No. 13-10095 (Christen with Noonan and Fletcher) ---
The statements of defense counsel during a plea colloquy, with only the defendant's assent, cannot be used in a modified categorical analysis under Descamps v. United States, 133 S. Ct. 2276 (2013). This case involved a 1326 and an enhancement for a COV. The COV was an AZ aggravated assault. However, the aggravated assault had been found to be overbroad and the intent could be simple recklessness, not any kind of heightened recklessness. Under Descamps, for a COV, if a statute is divisible, a modified categorical approach can look at court documents to determine the divisible variant of the statute under which the defendat was convicted, and whether an element of that crime involves heightened recklessness. Here, although defense counsel laid the factual basis at the change-of-plea hearing on the prior conviction, the defendant did not agree and there was not even a reference to the divisible statute. The 9th held that such use of the statement was plain error.
The court reached this issue of plain error in order to provide guidance to the district court, to which the sentence was remanded because of another issue to which the government had confessed error -- the withholding of the third point for acceptance of responsibility because the defendant refused a plea agreement in order to preserve his right to appeal. Previous Ninth Circuit law had allowed this, but over two years ago the Sentencing Commission changed the Guidelines to disapprove of the Ninth Circuit's approach to the issue. Many cases pending on appeal have already been remanded for resentencing based on this issue alone. So what took this case so long? The issues in this appeal were flagged by the court's independent review of the record after prior appellate counsel filed an Anders brief.
Congratulations to Davina Chen, formerly of the FPD in Los Angeles.
The decision is here: