Case o' The Week: Compelling Concurrence Takes Pot-Shot at Carranza - Drug Crimes, Mens Rea, and Apprendi
|Hon. Judge William Fletcher|
Bring into the U.S. what you think is five kilos of pot? Five year federal sentence, max.
But if it turns out, unbeknownst to you, to be five kilos of meth? Ten year mand-min.
Unfair and unjust. Judge Fletcher explains why.
United States v. Jefferson, 2015 WL 3916827 (9th Cir. June 26, 2015), decision available here.
Players: Decision by Judge Wardlaw, joined by Judge Kozinski. Very interesting concurrence by Judge William Fletcher. Hard fought appeal by AFD Kara Hartzler, Federal Defenders of San Diego, Inc.
Facts: Jefferson entered a guilty plea to a count of intentionally importing 4.65 kilos of meth into the U.S. Id. at *1. Jefferson contended that he thought he was transporting pot in his truck, and did not know the quantity. Id. At sentencing, he argued under the Supreme Court’s decisions in Alleyne and Flores-Figueroa that knowledge of drug type and quantity were elements of the offense that the government had to prove to trigger the ten-year mand-min. Id. The district court found the Supreme Court decisions had not abrogated Ninth authority, and imposed 144 months. Id.
Issue(s): “Jefferson first argues that this long established precedent [holding that the government is not required to prove that the defendant knew the type or quality of the controlled substance he imported . . . for the [mandatory minimum] penalties under § 960(b) to apply] was abrogated by the Supreme Court’s decision in Alleyne v. United States, 133 S.Ct. 2151 (2013) . . . .” Id. at *2.
Held: “We reject Jefferson’s argument that recent Supreme Court authority requires the government to prove that the defendant knew the specific type and quantity of the drugs he imported to trigger the ten-year mandatory minimum under 21 U.S.C. § 960(b)(1)(H). Accordingly, we affirm.” Id.
Of Note: Jefferson is disappointing, though not terribly surprising. Of far more interest is Judge Fletcher’s thoughtful and thought-provoking concurrence, arguing that the Ninth Circuit’s decision in Carranza, 289 F.3d 644 (9th Cir. 2002) should be overruled. Id. at *5. For Judge Fletcher, “[t]he question presented in this appeal is whether a defendant who reasonably believed he was illegally importing several kilograms of marijuana, but in fact illegally imported several kilograms of methamphetamine, must be sentenced to the ten-year mandatory minimum term that corresponds to methamphetamine.” Id. at *6. In a compelling argument, Judge Fletcher argues that the mandatory minimum should not be triggered absent a mens rea proof as to type and amount. Id. It is precisely what we’ve been arguing since back in the Buckland era.
With a Supreme Court increasingly concerned over sentencing schemes where the core facts need not be found by a reasonable doubt, id. at *8, and with increased bipartisan concerns about over-incarceration, the time seems ripe for an en banc court to revisit Carranza. Take a shot at a Carranza attack in your next mand-min 841 or 960 case: delivery on Apprendi’s full promise is overdue.
How to Use: Jefferson discusses the comparatively rare Section 960 “importation” charge (well, rare north of Temecula). What about the much more-common § 841(b)(1)(C) offense? The Court’s decision in Jefferson probably controls § 841 offenses as well. Section 841 is “structurally identical” to § 960, and Judge Wardlaw discusses Section 841 precedent in the context of this Section 960 holding. Id. at *3 & n.2.
For Further Reading: Last week in Johnson v. United States the Supreme Court held the residual clause of the ACCA was unconstitutionally vague and violated due process. It is an incredibly important decision – both for ACCA clients, and, by extension potentially for (alleged) Career Offenders and others who find their Guideline sentences increased for prior “crimes of violence.”
Professor Berman is first off the mark with Johnson commentary, with some essays on possible retroactivity action and quick observations on the intriguing Supreme Court coalition that produced the decision. You can find his initial comments here.
Image of the Honorable Judge William Fletcher from http://www.ajcsanfrancisco.org/atf/Account16283/images/_23109153481092.jpg
Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org