Thursday, March 31, 2005

Insyxiengmay v. Morgan

No. 02-36017 (3-30-05). The 9th (Reinhardt) reversed the denial of a petition and remanded. The petitioner was convicted in the State of Washington for two counts of first degree murder related to a shooting. The petitioner, 15 at the time, was a gang member, and when his gang house was egged, he and others took after the car (high schoolers pulling a prank). The question became who was the shooter. The petitioner denied it was him; others said it was after they entered into a plea. There was also an informant who gave information that resulted in an arrest of other co-defendants. The defense was not allowed to question the informant, or even to know his name, and was precluded from even submitting written questions. The court held an in camera hearing, with the prosecutor and police officer witness, and determined that the information wasn't necessary. Even the state courts found this to be error, but denied relief on prejudice grounds. The 9th would have none of that, holding that the information was especially critical because the informant was a gang member (!), and could give highly relevant information. The state's arguments that the record wasn't fully developed was laughable because counsel did all anyone could do in trying to question the witness and develop the record. The 9th also made short shrift of the state's efforts to find that the petition was precluded because of time (the mailbox rule came into play), and exhaustion.
Congrats to AFPDs Nancy Tenny and Laura Made of the FPD, W.D. Wa (Seattle).

McNeil v. Middleton

No. 01-56565 (3-29-05). This was a remand from the Supremes (never a good sign). The panel had originally granted a writ, finding that petitioner had presented a Battered Wife Syndrome defense, but that the jury instructions, carefully read, as courts assume they are, would have precluded the jury from considering such a defense. The state trial court had given an erroneous definition of "imminent peril" so that, in a "lawyerly reading," the jury may have considered that one could find an imminent peril but not defend against it. The Supremes in Middleton v. McNeil, 541 US 433 (2004)(per curiam) took the 9th to task for being too scholastic. Thus, on remand, the panel (Fernandez) said that the Supremes, in no uncertain terms, told them not to read so carefully, or be so gullible as to the conclusion, and essentially to get on with it. The 9th thus found that the jury could have used the correct definition to return a guilty verdict for 2nd degree (although acquitting of voluntary manslaughter) and the error was non-prejudicial. Petitioner's lack of actual belief in the need for self-defense made the instructional errors regarding reasonableness non-prejudicial. The state courts' conclusions were not unreasonable. Dissenting, Paez still had "grave doubt" that due process was followed because the instructions could be read to gut the Battered Wife defense by precluding the reasonableness of petitioner's defense.
Because this is a Fernandez opinion, we have the usual "reach for the dictionary" words. The ones here are "recrudescent," "daedalian," "banausic," "fossicked" and "bosk."

Tuesday, March 29, 2005

Blakely meets FOPA: an important step in the analysis of firearm cases

Under the federal firearms statute, prior convictions for the purposes of felon in possession of a firearm, as well as predicates under the Armed Career Criminal Act, depend on whether, under state law, the crime is punishable by imprisonment for a term exceeding one year. Under Blakely, prior convictions under a mandatory guideline statute are not punishable by more than a year if enhancements and departures are not pleaded in the indictment and either proved at trial or admitted during the guilty plea colloquy. And admissions during the plea would need to comply with the narrow reading in Shepard. Defenders need to examine the predicate convictions under 18 U.S.C. § 922(g) and the ACCA to determine whether a federal crime has been charged.

The story begins in 1983 when § 922(g) had a federal definition. In Dickerson v. New Banner, the Supreme Court held that a prior state court conviction qualified as a predicate conviction under the federal definition even though the conviction had been expunged under state law. In response, Congress, with guidance from the National Rifle Association, enacted the Firearm Owners Protection Act of 1986, which deferred to state law. For a prior conviction to be a predicate for federal gun crimes, section 921(a)(20) states, "What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held." And the statute is plain: the firearms prohibition extends only to persons convicted of "a crime punishable by imprisonment for a term exceeding one year."

Then comes Blakely, in which the Supreme Court extended to state mandatory guideline systems the requirement that, to comply with the Sixth Amendment, factors that enhance punishment must be pleaded and proven beyond a reasonable doubt. Many state guideline maximums are one year or less, even though the statutory maximum is greater than one year. Prior to Blakely, the Ninth Circuit, in the immigration context, had rejected the argument that an offense, because it was not punishable by more than one year of incarceration under state guidelines, did not qualify as a federal felony in Rios-Beltran. The Ninth Circuit has recently remanded in Moreno-Hernandez to determine whether Rios-Beltran is still good law after Blakely. As previously blogged here, the immigration argument should be resolved by Leocal in favor of eliminating drug possession as an "aggravated felony," regardless of whether it is designated as a felony under state law.

But the argument is even more powerful in the firearms context. Congress has clearly deferred to state maximum punishments in deciding whether an offense is serious enough to require federal attention. The Supreme Court in Taylor and Shepard has circumscribed the type of evidence to be used in categorizing prior convictions. And the equities are on our side. As the number of firearms cases has proliferated, we are seeing more and more federal charges that are based on relatively innocuous prior convictions. In the Eastern District of Washington, AFPD Rebecca Pinnell won the issue before the District Court; her brief defending the decision on appeal is available here. AFPD Renee Manes briefed the issue here until the government superseded on a lesser charge. AFPD Chris Schatz has briefed the issue here.

Re-evaluation of whether our clients' prior convictions are within the federal definition should be undertaken in all firearms cases. The law is strongly in our favor, and the policy is a reasonable one – federal involvement in relatively minor state matters erodes the federalism goal of placing primary responsibility for enforcement of the criminal laws with the States (footnote 3 in Lopez).

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon

Monday, March 28, 2005

Letting the Air Out, or Shortening the Game

Stuard v. Stewart, No. 03-15300 (3-22-05). Petitioner committed "an astonishing number of armed robberies." (p. 3487). When caught, he refused to waive his speedy trial statutory right (90 days) despite his counsel's request for a continuance, and then the prosecutor's. he was of course convicted and now argues that he was forced into a Catch-22 in that he had to waive his sixth amendment right to a speedy trial in exchange for effective counsel. The 9th held that there was no Catch 22, nor Hobson's choice (to borrow from a 7th Circuit case with a similar issue). Here, the petitioner had a state statutory right to a speedy trial, that he insisted on. His counsel got ready (maybe not the best defense but he was good to go) and the state was actually scrambling. Moreover, defense counsel got the state file, and focused on the state's burden. No every choice is a Catch 22.

A Bounce Pass to Citizenship

Minasyan v. Gonzales, No. 02-73556 (3-22-05). In another derivative citizenship cases, the 9th finds that the petitioner was indeed a US citizen by virtue of derivative citizenship under the now defunct 8 USC 1432(a)(3). The focus was on whether the mother was legally separated from petitioner's father. The mother later became a citizen while the petitioner was still under age. If she was legally separated, then she had sole custody and the there was no policy issue or bar in that the other parent would oppose such a derivative citizenship. The 9th looked at state law, and considered California's definition of separation (with language about deference to state findings that echoes that particular case in Florida that has been in the news) and found that she indeed was legally separated and that the marriage was effectively ended.

Exhausting Match-Up Zone Defense

Fields v. Waddington, No. 04-35169 (3-21-05). The 9th, unsurprisingly, affirms the dismissal of a habeas writ for failure to exhaust. Here, petitioner raised evidentiary and sentence "credit" claims in the state court. In so raising, he cited the sixth amendment twice and "due process" but failed to address any specific federal cases, or apply the federal rights to his case. he only cited state cases. He argues that the state's due process rights (Washington) is coextensive with the federal, but again cited no specific state case to that effect. The 9th found a failure to exhaust.

No Technical Foul

Solis-Espinoza v. Gonzales, No. 03-70625 (3-23-05). In an immigration matter, the 9th reverses the BIA in a case involving what is "out of wedlock" and illegitimate. Here, the petitioner's father was a permanent resident; his biological mother was a Mexican citizen, and his father's wife (and adopted mother) was an American citizen The 9th finds that the child was adopted and accepted by his father and his wife, and so was neither illegitimate nor out of wedlock. He did qualify for derivative citizenship under 8 USC 1401(g).

No Technical Foul

Solis-Espinoza v. Gonzales, No. 03-70625 (3-23-05). In an immigration matter, the 9th reverses the BIA in a case involving what is "out of wedlock" and illegitimate. Here, the petitioner's father was a permanent resident; his biological mother was a Mexican citizen, and his father's wife (and adopted mother) was an American citizen The 9th finds that the child was adopted and accepted by his father and his wife, and so was neither illegitimate nor out of wedlock. He did qualify for derivative citizenship under 8 USC 1401(g).

Nothing But Net. US v. Kranvovich

No. 03-10226 (3-23-05). This is an appeal from a conviction for theft from a federally funded program. The defendant (a sheriff) used the cash for his own purposes. His main challenges were to the nexus between the federal program and the cash taken, but this challenges was foreclosed by the Supremes in Sabri v. US, 541 US 600 (2004) which held that no nexus was needed. Defendant's second argument was that the grant of $12,000 was approved, but the cash wasn't all disbursed (there is a federal trigger of at least $10,000 and only approximately $1300 was disbursed). The 9th found this distinction unavailing because whether the funds were disbursed yet, or sitting in a bank available, the grant still had been approved. Moreover, such jurisdictional grants are read broadly.

Thursday, March 24, 2005

Case o' The Week: Mena & Fourth Amendment Searches, Interrogations

The Supreme Court extends bad law in Mena, available here. Writing for the majority, Rehnquist holds that an occupant of a house searched pursuant to a warrant can be detained, in handcuffs, and interrogated during that detention -- even if there is no cause to believe the occupant is involved in a crime. As discussed below, however, there may be some important limitations to this disappointing decision.

Players: 5' 2" Salvadorean immigrant Iris Mena.

Facts: LA cops got a warrant to search a house for guns and a gang member. Mena, 2005 WL 645221, *2. During the search, they found Iris Mena, asleep. Id. Although she had nothing to do with the shooting or gang, she was detained in a garage, handcuffed, and interrogated by INS. Id. She brought and won a civil rights suit, which was upheld by the Ninth Circuit. Id.

Issue(s): (1) Was it "objectively unreasonable to confine [Mena] in the converted garage and keep her in handcuffs during the search[?]" Id. at *3. (2) Did "the questioning of Mena about her immigration status constitute[] an independent Fourth Amendment violation[?]" Id.

Held: (1) "Mena’s detention for the duration of the search was reasonable under Summers because a warrant existed to search [the house] and she was an occupant of that address at the time of the search." Id. at *4. "The governmental interests in not only detaining, but using handcuffs, are at their maximum when, as here, a warrant authorizes a search for weapons and a wanted gang member resides on the premises. In such inherently dangerous situations, the use of handcuffs minimizes the risk of harm to both officers and occupants." Id. "In summary, the officers’ detention of Mena in handcuffs during the execution of the search warrant was reasonable and did not violate the Fourth Amendment." Id. at *6.

(2) "[No] additional Fourth Amendment justifications for inquiring about Mena’s immigration status was required." Id. at *5. "Additionally, the officers’ questioning of Mena did not constitute an independent Fourth Amendment violation." Id. at *6.

Of Note: This is not groundbreaking bad law, but an extension of bad law. On the detention issue, the Court refused to evaluate the right to detain an occupant based on the "quantum of proof justifying detention." Id. at *4. In other words, the Court refused to require probable cause (or greater) to detain an occupant of a house searched pursuant to a warrant: that warrant is effectively carte blanche to detain house occupants. On the interrogation issue, the Court found that as long as the interrogation did not extend the detention, it was reasonable under the Fourth Amendment. Id. at *5. That dog of a case, Illinois v. Caballes, comes back to haunt the analysis regarding police actions tolerated as long as the actions do not extend detention. Id. at *5.

The concurrences note, and Rehnquist for the majority ignores, that Iris Mena was all of 5'2" tall, guarded by two armed officers, marched barefoot through the rain to the garage, and handcuffed for several hours behind her back. Id. at *7 (Stevens, J., concurring). Meanwhile, the gang member sought was found at another address, cited for a little pot, and released! Id. at *9. In fact, reading the concurrence sounds like a directed verdict for Mena on remand – despite the fact that majority opinion announces what sounds like contrary holdings. Id.

How to Use: The limitations in Mena should be emphasized in Fourth Amendment cases. First, "this was no ordinary search." Id. at *4. The case involved, (i) a search warrant, (ii) for weapons, and (iii) a wanted gang member. Id. Because of these facts, the use of handcuffs "minimizes the risk of harm to both officers and occupants." Id. By contrast, less-compelling facts may not justify such heavy-handed treatment. Query also whether Mena should be limited to search warrant cases. Finally, Caballes and Mena illustrate a clear new goal for the defense bar – elicit facts on how police action, such as a dog sniff, or an interrogation, extended the otherwise lawful detention. That will be a new hurdle to jump in many Fourth Amendment cases.

For Further Reading: Think this case is limited to civil rights litigation? Think again: DOJ weighed in with an amicus for Petitioners in light of the "important interest" relating to federal searches. See amicus brief here.

Steven Kalar, Senior Litigator Northern District Cal. Fed Public Defender.

Sunday, March 20, 2005

Case o' The Week: Edward Garcia, Withdrawing a Plea

In another great Judge Betty Fletcher opinion, the Ninth announces a fairly liberal standard for withdrawing one's plea in light of newly discovered evidence. United States v. Edward Garcia, __ F.3d __, 2005 WL 602959 (9th Cir. Mar. 16, 2005), available here.

Players: Judge Betty Fletcher, god bless her. Losing her in California cases would be one of the worst parts of the impending Circuit split.

Facts: Garcia pleaded guilty to manufacturing meth and a § 924(c) count, in return for the government dropping two other gun charges and agreeing to a ten year sentence. Garcia, 2005 WL 602959, *1. Interestingly, the defendant entered an Alford plea. He then tried to withdraw the plea before he was sentenced. Id. at *2. Garcia asserted two grounds for withdrawing the plea; first, because an intervening case would have affected the Career Offender exposure, and second, because of newly discovered evidence from witness Crystal McClurg. Id. The district court refused to permit withdrawal of the plea, and he was sentenced to 114 months. Id. at *2.

Issue(s): "We consider first whether Garcia’s claim of newly discovered evidence, specifically the McClurg declaration, provides a ‘fair and just’ reason for withdrawal." Id. at *3.

Held: "While newly discovered evidence wholly unrelated to a defendant’s case would surely not entitle him to withdraw his guilty plea, the generous ‘fair and just reason’ standard does not require that the defendant show that the new evidence exonerates him or that there is a reasonable probability he would not have been convicted had the case gone to trial." Id. "It is sufficient that this evidence was relevant evidence in Garcia’s favor that could have at least plausibly motivated a reasonable person in Garcia’s position not to have pled guilty had he known about the evidence prior to pleading. McGlurg’s statement therefore constitutes newly discovered evidence that is sufficient to justify the withdrawal of Garcia’s plea under the ‘fair and just reason’ standard." Id. "[W]e conclude that a defendant’s failure to proclaim his innocence should not count against him when he seeks to withdraw his plea under the ‘fair and just reason’ standard." Id. at *4.

Of Note: After the district court refused to permit to withdraw the plea, but before this case, the Ninth Circuit decided United States v. Ortega-Ascanio, 376 F.3d 879 (9th Cir. 2004). Read Ortega-Ascanio in conjunction with Garcia for the current Ninth Circuit standard on withdrawal of a plea. It is interesting that the defendant managed to get this deal despite an Alford plea – in the Northern District of California, that plea would probably not have been accepted by the Court, and definitely would not have been accepted by the government as part of a plea agreement.

How to Use: Ortega-Ascanio and Garcia considerably liberalize a defendant’s ability to withdraw a plea. Theoretically, it may now be possible to withdraw a plea based on newly discovered evidence during, for example, a co-defendant’s trial or a sentencing investigation. Withdrawing a plea at this stage will certainly be easier than prevailing on a later habeas. Of course, that may, at times, not be what a public defender would want: query whether this makes it easier for a disgruntled defendant to withdraw from a plea agreement that is very much in his interest. It is also interesting to consider how the waivers in the typical written plea agreements would hold up to Ortega-Ascanio and Garcia. Although there was apparently a plea agreement in the Garcia case, see id. at *1, there is no discussion in the opinion about the agreement’s prohibitions on withdrawing a plea.

For Further Reading: Judge Betty Fletcher took senior status in 1998, as part of a brokered deal to permit her son’s – William Fletcher’s – confirmation to the Ninth Circuit. See story here. She is now taking on Congress -- or at least, some Congressmen -- in opposing the proposed Ninth Circuit split. See article here.

Steve Kalar, Senior Litigator N.D. Cal.

Turney v. Pugh

No. 03-35165 (3-15-05). The 9th denies a petition seeking relief based on the first amendment. the petitioner was convicted in Alaska for informing prospective jurors that they had a right to nullify. He gave them information and a toll-free number. He was convicted under a state statue making criminal communicating with a juror in a way that affects the outcome. There is tension between the first amendment and the statute, but the 9th found that it wasn't overbroad, that is served a legitimate discrete purpose, and that it was narrowly construed.

US v. Garcia

No. 04-30172 (3-16-05). What is a "fair and just" reason to get out of a guilty plea? Is it a change in the law? We have that here. Is it newly discovered evidence? We have that here. Is it voluntariness? Well, we sort of have that here. The district court however said "no". The defendant was charged in a drug/gun conspiracy and was facing a life sentence. The evidence was an informant and weapons found at his home. His defense was that the drugs and guns belonged to others. To limit his exposure, he grudgingly accepted a plea. Indeed, it was amazing that the gov't and the court let him say that he was admitting the facts only to limit his exposure. He did say that he was guilty (grumble grumble). Well, after the plea, and before sentencing, the 9th came out with US v. Wenner, 351 F.3d 969 (9th Cir. 2003), which operated, according to defendant, to disqualify him as a career offender (oh yes, I forgot to mention he was also that). In addition, defendant submitted an affidavit from a previous resident of the home who said that the guns and rugs belonged to two transients that had just recently moved in. The 9th considered these factors to be "fair and just" reasons for withdrawing, stressing that the standard is a "liberal" one and should be broadly construed. The district court erred in finding there was delay (there wasn't bad faith), and that there was a change in the law. In addition, the district court should have considered the new evidence. Finally, the plea may have been voluntary, but the circumstances were such that justice might be better served letting him withdraw.

Friday, March 18, 2005

Moreland: road map to good time victory

As previously reported here, the good time issue has been gaining traction. Two district courts (White & Williams) have held that the good time statute unambiguously requires a maximum of 54 days for each year of the sentence imposed, not the 47 days provided by the Bureau of Prisons. And the Supreme Court’s Leocal opinion has undermined the courts that found the good time statute ambiguous, then deferred to the BOP under Chevron, rather than applying the rule of lenity. Now, Magistrate Judge Stephen William Smith provides the most thorough judicial analysis of the good time question to date in his findings and recommendation in Moreland v. Federal Bureau of Prisons. AFPD Brent Newton represents Ms. Moreland who, if she ultimately prevails, could be released four months earlier than her current release date.

The Moreland opinion (available here) begins with the basics: "term of imprisonment" should not be construed to mean different things in the same sentence. Judge Smith rejects the BOP’s insistence that the third use of "term of imprisonment" means "time served" while the first two uses in that sentence mean "sentence imposed": "Sloppy draftsmanship," he writes, "is not difficult to find in the U.S. Code, but the BOP’s interpretation plumbs new depths of linguistic confusion."

Judge Smith then adds depth to previous analyses of the statute, explaining why "at" does not mean "after" in the key phrase "up to 54 days at the end of each year of the prisoner’s term of imprisonment." The BOP has maintained that the phrase supports its interpretation that good time may not be credited for time not yet served. Explaining the "inclusive year" approach, the court concluded that 311 days of actual time served, plus 54 days of good time credit, equals one year of the sentence imposed. "[T]he BOP’s position can fairly be dubbed the ‘Christmas-in-January’ approach to GCT." Describing the BOP’s approach as "linguistically unsound," Judge Smith presents a collection of simple analogies to illustrate why "at" the end of the year cannot mean "after" the end of the year. "King Lear," he reminds us, "dies at the end of the play, not after the play. The fat lady sings at the end of the opera not after it. The two-minute warning occurs at the end of the game..."

Judge Smith carefully reviews the legislative history to reinforce his finding that Congress anticipated good time credit would be applied to the sentence imposed. Repeated references to 15% good time credit, the long history of awarding good time credit against the sentence imposed, and the purpose of simplicity all militate in favor of the prisoner receiving seven more days per year than the BOP gives.

Then on to my favorite part – the use of the rule of lenity to trump Chevron. Judge Smith reviews the "venerable" rule of lenity and its application to sentencing, including citation to Leocal. Although noting the limits to the rule’s application, the court found that this "substantive rule of statutory interpretation" foreclosed use of the BOP’s possible but implausible construction of the statute. "To the extent there remains any ambiguity in the statute after considering its most natural linguistic meaning and legislative history, the rule of lenity eliminates all doubt: good conduct time must be based on the sentence imposed, rather than time served."

Judge Smith then directly confronts the BOP arguments that Chevron deference applied and that other court’s opinions should be followed. He points to Supreme Court and circuit court authority finding that, as a matter of separation of powers, the Executive Branch’s interpretation of a criminal statute is due no deference. He cites Justice Scalia’s concurrence in Crandon for the simple proposition that "‘we have never thought that the interpretation of those charged with prosecuting criminal statutes is entitled to deference.’" Judge Smith then sets out the two-step Chevron test and finds that Chevron only applies where the statute is still ambiguous after application of traditional tools of statutory construction – such as the rule of lenity. Because the rule of lenity eliminated any potential ambiguity, deference to the BOP’s construction of the statute is unwarranted.

Judge Smith then thoroughly reviews the good-time case law, rejecting the faulty reasoning underlying the opinions. The First Circuit and a couple of district courts found that the good time credit statute is not a criminal statute to which the rule of lenity applies. The BOP made an important admission in its pleadings: "Here, the BOP has candidly conceded that the statue is indeed a penal statute, and as noted above, this concession is fully justified."

The Ninth Circuit and other courts have ruled based in part on what they characterize as the "windfall" the prisoner would receive based on the full 54 days per year of the sentence imposed. Judge Smith explains that "this is really a matter of bookkeeping" and not windfall. "The evaluation date (or ‘good time action date’ in BOP parlance) must be adjusted each year to take into account the GCT already earned and vested." When the good time date is adjusted annually, "no windfall is occurring in the last year of imprisonment." No windfall occurs if a prisoner simply receives the credit Congress intended. Summarizing the factors that leave almost nothing to recommend the BOP’s approach, Judge Smith concludes that "faithful misinterpretation of a statute over time does not alter its original meaning." He recommends that the writ be granted.

As outlined in my previous good time blog, defenders need to be assisting prisoners in every district to litigate this issue: Leocal has undermined the reasoning of all the negative precedent on this issue. Judge Smith has provides an excellent road map for this litigation. We still have a way to go; the Seventh Circuit reversed White, and the district judge has not yet adopted Judge Smith's findings and recommendation. It's worth the effort because the ultimate effect of victory on this issue affects almost every one of our clients: 27,000 years of freedom.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon

Tuesday, March 15, 2005

Shepard: where do we go from here?

The Supreme Court’s decision in Shepard fundamentally shifted the analysis of guidelines and sentencing statutes, providing rich opportunities for creative litigation. There are three basic reasons the opinion will have far-reaching effects. First, the types of cases in which the modified categorical analysis of prior convictions is necessary has greatly expanded to include the most commonly implemented guidelines, including illegal reentry, felon-in-possession-of-a-firearm, and career offender. Second, the Court has now decided that the judiciary must construe statutes to avoid deciding whether Almendarez-Torres is still viable, which requires reexamination of the ACCA and § 1326(b)(2) to determine whether, as in Buckland, the statutory silence on pleading and proof procedures should be filled with indictment and jury trial rights. Third, cases involving the narrow core of Almendarez-Torres – nothing more than the fact of conviction – are now more than ever subject to eventual reversal by the Supreme Court. Let’s take a look at predictable effects from the central holding to the more attenuated effects of Shepard.

The Modified Categorical Approach & The ACCA

Fifteen years ago, the Court in Taylor defined "burglary" under the Armed Career Criminal Act and permitted the use of the indictment plus the jury instructions to determine whether, in a state with an overly broad definition of burglary, the prior conviction met the Court's generic definition. In Shepard, the defendant pleaded guilty under a non-generic burglary statute. The First Circuit permitted use of police reports and a complaint application to determine whether a prior conviction for non-generic burglary involved entry into a building, thereby qualifying the prior as generic burglary under the ACCA. The Supreme Court, applying the rule of constitutional avoidance, construed the ACCA to limit inquiry regarding the facts of the prior conviction.

The Court reasoned that judicial resolution of the disputed facts would require the Court to decide whether Almendarez-Torres authorizes a judge to make the finding regarding the disputed fact or whether, under Jones and Apprendi, the increase in statutory maximum can only be decided by a jury under the Sixth Amendment. To avoid the serious risk of unconstitutionality, the Court construed the ACCA to limit examination of the record "to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information."

The closest point of Shepard’s impact is the Ninth Circuit’s recent decision in Smith. There, the court went far afield from core judicial findings to decide facts regarding a non-generic burglary based on statements by the prosecutor and defense counsel. Prior to issuance of the opinion in Smith, the court entered an order staying the mandate pending the decision in Shepard. With the guidance from Shepard, Smith is no longer good law because the reasoning and mode of analysis has been undermined by intervening Supreme Court authority. Shepard requires, and Smith lacks, "explicit factual findings by the trial judge to which the defendant assented." The Smith opinion’s derogation of the Taylor requirement of a charging document, although not directly at issue in Shepard, should also be subject to constitutional avoidance because serious constitutional doubt under the due process clause would accompany a construction that allowed a prior conviction that did not sufficiently charge the offense.

Modified Categorical Approach & Career Offender, Firearms, and § 1326 Guidelines

The Ninth Circuit has a cottage industry in applying modified Taylor analysis to an array of the most commonly applied guideline enhancements. Two en banc cases, Rivera-Sanchez and Corona-Sanchez, provide the basic guidance in applying Taylor (and now Shepard) to the guideline enhancements for prior convictions under § 2K2.1 (firearms), § 2L1.2 (illegal reentry), and § 4B1.2 (career offender). On prior drug convictions, Rivera-Sanchez closely analyzed the California transportation statute and found it to be non-generic (trafficking was not necessary given the breadth of the statute); several unpublished opinions have done the same with the California possession for sale statute. The same type of analysis applies to "crime of violence" in the multiple and varying definitions throughout the guidelines. All precedent in this area needs to be reviewed for compliance with Shepard.

There are a few general observations helpful to the defense. First, Shepard provides a gloss for the modified categorical approach set out in cases such as Wenner and Fish, providing guidance on the type of judicial facts that can be noticed. Second, Shepard’s repeated quotation of Taylor’s "narrow" exception to a strict categorical approach reinforces the view in Parker (5 F.3d 1322 (9th Cir. 1993)) and footnote 4 of Fish that the modified categorical approach should not apply to "catch-all" provisions, undercutting the case-by-case approach to an "otherwise" clause in Matthews. Third, in Oregon, Shepard needs to be applied to any burglary conviction because the statute, as in Wenner, is overly broad in failing to specify that the place entered is a generic building.

Constitutional doubt & the ACCA and § 1326

On January 25, 2005, the posted blog was entitled Almendarez-Torres: dead letter after Dretke v. Haley (available here). In Haley, Justice O’Connor applied the doctrine of constitutional avoidance to Almendarez-Torres in construing the habeas corpus statute to require resolution of other issues before considering actual innocence at sentencing. Now that Shepard has applied the doctrine of constitutional avoidance to one aspect of the ACCA, the argument in the earlier blog is even stronger: the amended § 1326 and the ACCA, neither of which set out pleading and proof requirements, must be construed to require compliance with the Fifth and Sixth Amendments to avoid deciding whether Almendarez-Torres is still valid.

Count the votes. The Shepard five are Justices Souter, Stevens, Scalia, Ginsburg, and Thomas (Justice Thomas concurring because Almendarez-Torres should be overruled); in Haley, Justice O’Connor wrote for all but the three dissenters, Justices Kennedy, Souter, and Stevens. Everyone except Justice Kennedy – and including the Almendarez-Torres author, Justice Breyer – has approved application of the doctrine of constitutional avoidance to Almendarez-Torres. And Justice Kennedy's Haley dissent was based on the righteous position that the sentence should be reversed on the spot, without the delay of applying constitutional avoidance.

Since Almendarez-Torres, Congress has amended § 1326 to require judicial determination of an array of extra-record facts through the expanding definition of "aggravated felony." The argument that the doctrine of constitutional avoidance should be applied to the amended § 1326 is in front of the Ninth Circuit in Munoz-Cruz (opening brief here). Similarly, the Ninth Circuit will be deciding whether Haley, and hence the doctrine of constitutional avoidance, should be applied to the ACCA in Swift (opening brief here). The Ninth Circuit has already identified the constitutional problem to be avoided in Dillard, where the failure to allege and prove an enhancing factor in a prior conviction violated the Sixth Amendment. And in Greer (2005 WL 396368 (M.D.Ga. Feb. 17, 2005), the court found that the Sixth Amendment required pleading and proof that the prior felonies were "violent" before the ACCA applied. Litigators can easily plug Shepard into the analysis already provided by Haley.

These issues should be litigated in the district court now, with no limitations from precedent. Up to Shepard, the Ninth Circuit had simply decided to wait until the Supreme Court considers the merits of Almendarez-Torres’s viability (for example, Pacheco-Zepeda & Quintana-Quintana). Under the Miller standard for considering precedent undermined by intervening Supreme Court authority, these cases are no longer valid. All the rulings derive from Pacheco-Zepeda, in which the defendant asserted that, after Apprendi, Almendarez-Torres "no longer has precedential value." Shepard has now instructed that there is a step in the analysis skipped in Pacheco-Zepeda and its progeny: the court must first attempt to construe the statute in a manner that does not require it to rely on Almendarez-Torres. Therefore, district courts and Ninth Circuit panels are free to construe § 1326 and the ACCA and any other such statute to avoid serious constitutional problems by requiring pleading and proof beyond a reasonable doubt as a matter of statutory construction.

Constitutional Doubt & Career Offender

Career offender is a strange creature in the post-Booker, post-Shepard world. The effects of career offender can be extreme: sale of a single gram of marijuana, with two qualifying crimes of violence or drug trafficking offenses, sets the guideline range at offense level 32 in Criminal History Category VI (Reyes, 8 F.3d 1379 (9th Cir. 1993)). And career offender is not strictly a guideline creation; Congress set out the criteria, then ordered that "the guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized" in 28 U.S.C. § 994(h). The authorizing statute must be construed as requiring, as a matter of statutory construction to avoid serious constitutional questions, that the prior convictions be pleaded and proven beyond a reasonable doubt (or admitted during a plea colloquy) for the enhancement to apply. The career offender guidelines also may implicate Fifth and Sixth Amendment rights because the drastic effect of § 4B1.2 may be the difference between a reasonable and an unreasonable sentence.

Almendarez-Torres Expansion

In any litigation regarding prior convictions and Almendarez-Torres, it is critical to remember that Apprendi, in expressing doubt regarding the continued viability of Almendarez-Torres, required that Almendarez-Torres be narrowly applied and limited to its facts. In Haley, the court also noted the narrow scope of the actual holding in Almendarez-Torres: the Court recognized that applying Almendarez-Torres to the sequence of prior convictions would be an expansion of the case’s holding. And the core validity should be quite limited because Almendarez-Torres only involved a Fifth Amendment challenge to the indictment in a case in which, during the plea colloquy, the defendant admitted that he had a prior conviction for an aggravated felony.

So what kind of facts should now be considered beyond Almendarez-Torres and within the protections of Apprendi/Blakely/Booker? How about the sequence of convictions required for the ACCA ("committed on occasions different from one another"), the illegal reentry statute (before deportation), and career offender ("previously been convicted" as well as related cases facts under § 4A1.3)? How about the various age requirements? Most of the battle against Almendarez-Torres need not get to the core merits because the case is so narrow, and the statutory (and guideline) uses of prior convictions frequently involve facts beyond the face of the conviction.

Almendarez-Torres Heartland

In Shepard, the National Association of Criminal Defense Lawyers filed an amicus brief suggesting that the Court should use the case to simply reverse Almendarez-Torres. As recognized by Justice Thomas concurring, the parties did not raise that issue. However, Justice Thomas once again recognized that, without his mistaken vote in Almendarez-Torres, the case would not survive. With some passion, Justice Thomas points to the shameful number of persons incarcerated in violation of Sixth Amendment rights.

The core holding of Almendarez-Torres should be preserved for review by the Supreme Court. Under the Booker constitutional ruling, if the guidelines were mandatory, the effect of prior convictions is pervasive. The Chapter 4 facts increase the maximum sentence along the horizontal axis, and think of all the non-fact-of-conviction factors such as length of sentence, time since release, and supervision status at the time of the offense. The Booker remedial opinion still requires thinking about these facts where the resolution would be the difference between a reasonable and an unreasonable sentence. The procedures for 21 U.S.C. § 851 may also implicate the core holding of Almendarez-Torres, especially given its Fifth Amendment focus.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon

Sunday, March 13, 2005

Case o' The Week: Garcia and Aiding & Abetting

The San Diego Defender continues its mens rea attacks in United States v. Odilon Garcia, __ F.3d __, 2005 WL 563967 (9th Cir. Mar. 11, 2005), available here. Judge Rymer, unfortunately, rejects the challenge, announcing the rule that a jury can be squarely split on a theory of liability . . . and yet, still convict.

Players: Yet another creative and compelling challenge by the Federal Defenders of San Diego, brought by Todd Burns and Ramzi Nasser.

Facts: Border Patrol agents stopped two vehicles. Garcia, 2005 WL 563967, *1. Illegal aliens jumped out of one, and the second vehicle fled. Id. The second vehicle was found at the edge of a ravine; defendant Garcia was found nearby, injured, walking in a daze, with keys in his pocket to the truck. Id. The defendant was charged with two counts of bringing undocumented aliens into the US for financial gain, and two counts of transporting them within the States. Id. The indictment also charged aiding and abetting as to each count, in violation of 18 USC § 2. Id. Garcia filed a pretrial motion to dismiss the indictment on grounds of duplicity, which was denied. Id. Also denied was a specific unanimity instruction that would have required the jury to agree whether Garcia was a principal, or aider and abettor. Id. The defendant was found guilty of all counts. Id.

Issue(s): Is an indictment that charges substantive crimes, and aiding and abetting, "duplicitous because the two have separate elements and thus are separate offenses, requiring the government to elect between them or the district court to give a specific unanimity instruction[?]" Id.

Held: "Following Supreme Court and our own precedent, we conclude that aiding and abetting is not a separate offense from the underlying substantive crime, but rather a different theory of liability for the same offense. Accordingly, we affirm Garcia’s conviction on all counts." Id.

Of Note: To understand Odilon Garcia, it helps to know some recent litigation history of the San Diego Federal Defender. That office has lead the charge on mens rea attacks, successfully establishing a higher intent showing necessary for attempted illegal reentry. One example of this distinction was argued by the defense in this case, citing the higher intent standard for attempted transport of an illegal alien. See id. at *2 (citing United States v. Ramirez-Martinez, 273 F.3d 903 (9th Cir. 2001). In a compelling analogy, the defense argued here that aiding and abetting – like attempted alien transportation – has a specific intent element, and thus requires specific unanimity instructions. See id.

While the decision breaks no new ground in rejecting this argument, the result is odd and disturbing. Under Garcia, six jurors could find a defendant guilty as an aider and abettor, and six jurors could find him guilty as a principal – but the jurors could vehemently disagree as to which theory of liability applies. Nonetheless, "jurors are not required to agree unanimously on alternative means of committing a crime." Id. at *3 (citing Schad v. Arizona, 501 U.S. 624 (1991).

How to Use: First, beware that aiding and abetting is implicit in every federal charge – thus, do not be surprised by a requested aiding and abetting instruction late in the game. See id. ("We have also held a number of times in different contexts that aiding and abetting is embedded in every federal indictment for a substantive crime.")

Note also that an aiding and abetting instruction may conflict with other instructions, such as the"wilful blindness" instruction. See United States v. Jewell, 532 F.2d 697 (9th Cir. 1976). There is a trend in other circuits to reject this instruction when specific intent offenses (like, arguably, aiding and abetting) are involved.

For Further Reading: The San Diego Defender and Judge Rymer have tangled before on mens rea issues – and last time, the en banc panel sided with the Defender. See United States v. Gracidas-Ulibarry, 231 F.3d 1188 (9th Cir. 2000), en banc (available here). Mens rea protections are one of many increasingly endangered constitutional rights; compare Gracidas-Ulibarry and Garcia as evidence of this devolution.

Steven Kalar, Senior Litigator ND Cal FPD.

Friday, March 11, 2005

US v. Lopez-Armenta

No. 04-10081 (3-10-05). The defendant moved to suppress evidence. The ruling went against him. He then pled guilty without a plea agreement (getting safety valve), but seeking to preserve his suppression issue. The district court at sentencing advised appellant he had a right of appeal. On appeal, the gov't moved to dismiss because he had entered an unconditional guilty plea. The 9th granted the motion. The 9th acknowledged some ambiguity in the district court's advisement that there was a right of appeal, but the guilty plea itself was unconditional, and that, under precedent, would waive the right to continue to argue that issue. See US v. Floyd, 108 F.3d 202 (9th Cir. 1997).

US v. Garcia

No. 04-50105 (3-11-05). Is "aiding and abetting" a separate offense or is it just one way of committing an offense? That was the issue raised in this 1324 (alien smuggling) case. The gov't alleged both alien smuggling and aiding and abetting. On appeal, appellant argued that the gov't should have been forced to elect between them or the jury instructed to decide unanimously on one or the other. Appellant pointed out, for different elements, that aiding requires specific intent while smuggling is general intent. The 9th was not convinced, holding that aiding and abetting really wasn't a separate offense, but a means to commit one criminal offense. This differs from, for example, from attempting to commit a crime and aiding. "Attempting" is a crime in and of itself -- it is the offense. "Aiding" on the other hand is a means of committing a single crime either by performing it or aiding in its commission. To the 9th, it is but one theory of liability. As for the unanimity requirement, this would fall under a Schad v. Arizona, 501 US 624 (1991) analysis, that held that jurors are not required to agree unanimously on alternative means of committing a crime (felony murder vs premeditated murder). The jurors here were instructed properly on each theory and the elements, and the liability of the defendant was the same as a principal. The 9th lastly relies on the fact that "aiding" is implied in every federal indictment and considered an alternate liability theory throughout the code.

Thursday, March 10, 2005

Riggs v. Fairman

No. 02-55185 (3-7-05). The petitioner faced a maximum, he thought, of nine years for his petty theft charge. That is what his lawyer told him. The lawyer also told him he could do better than the plea offer of five years, and so advised trial. Mistake. After conviction, it turned out that the petitioner was a California three-strikers, and so got a 25 to life sentence. The prosecutor had missed this too. The state courts found no IAC, but the district court did. In terms of remedy, the district court balked at reinstating the plea offer because the prosecutor was mistaken, and so vacated the sentence and placed the parties in a pre-trial stage. The petitioner on appeal argued that the court should have reinstated the plea offer under specific performance. The 9th agreed with the district court that it couldn’t order specific performance because, although the re was IAC, the prosecutor was also mistaken and would not have offered that plea if she knew the facts. Dissenting, Bea makes the point that if the petitioner had adequate counsel, he would have taken the plea – mistake or no. Her analysis is to look at the point that IAC took place in the context of the plea, which was the advice about what he faced and his rejection of the offer.

US v. Younger

No. 04-10206 (3-1-05). This is an appeal from felon in possession and possession with intent to distribute convictions. Defendant was caught in an apartment, reaching out a window, and a backpack was found outside with drugs and guns. Oh yes, an officer saw “a guy in blue” (the defendant was wearing blue) throw the backpack out. Despite these facts, the gov’t pushed the envelope, arguing in closing that “we know” certain things, and repeatedly referencing court rulings and the function of the court as “gatekeeper.” The 9th tisked-tisked the prosecutor, and found that the court’s sustaining of objections, admonishing of the prosecutor, and limiting instructions (all urged by defense counsel with a “Blank” stare) took care of the problem. Likewise the 9th found no problem with the “expert” testimony of a police officer about whether the number of baggies and the quantity of drugs signified a drug addict or a distributor. In an interesting discussion of what constitutes a legal request, the 9th considered whether the statement – “excuse me, if I am right, I can have a lawyer present through all this, right?” – was a request for counsel pursuant to Miranda or whether it was a restatement of a right. The 9th goes through the various permutations stemming from Davis, the Supremes case regarding what constitutes a request, and held this was a mere recitcitation of a right and not a request. Finally, the 9tyh rejected broad constitutional challenges, such as the 2nd amendment allows for felons to possess arms.

US v. Woods

No. 03-10313 (3-4-05). Fed. R. Crim. P. 33 concerns a motion for new trial based on newly discovered evidence. The defendant was convicted of ban robbery in 1998. He filed the motion for new trial based on new evidence in 2001, which was a year after the 9th denied his appeal. In 1998, though, after his conviction, Rule 33 was amended to require such motions to be filed three years after the conviction or verdict. This would time-bar his motion. The amended rule applied to all pending cases if it was just and practicable. The 9th joins two other circuits in holding that the change in the rule was procedural, not substantive, and that it could be applied retroactively and that it wasn’t barred by ex post facto. The procedure worked to the defendant’s disadvantage, but it was not related to the substance of the offense. Nonetheless, the 9th remanded because the Rule itself allows the district court to determine if its retroactive application was indeed just and applicable under the circumstances.

Reyes v. Brown

No. 00-57130 (3-4-05). This is a 3 strikes habeas appeal. The 9th acknowledges that the 8th amendment is a barrier to recidivist statutes, but recognizes that the Supremes, in their Ewing and Andrade cases, left an exception for minor statutory violations that result in 25 to life sentences. The 9th recognized such an exception previously in Ramirez v. Castro, 365 F.3d 755 (9th Cir. 2004) and now here. The petitioner here cheated (!) on a DMV driver’s test. He was taken to task by the DMV officer and turned over to the police (DMV tests are taken seriously in California). Because he was a previous felon (armed robbery) and a juvenile delinquent (robbery), he was charged with perjury and when convicted, got 25 to life. The 9th concluded that though perjury was a felony, the cheating was at worst a misdemeanor. The 9th wondered whether the previous conviction fro robbery was really that serious and so remanded to see if there was possibility for relief under Ramirez given that the present conduct was not against a person, and was statutory. Tallman, in dissent, decries the 9th’s stepping in for the state courts, the strained reading of Ewing and Andrade, and the misapplication of Ramirez. Tallman finds the 9th to be reaching for relief and that reach exceeding its jurisdictional and precedential grasp

US v. Rodriguez-Preciado

No. 03-30285 (3-4-05). Seibert is the interesting issue in this appeal. The defendant returns to his motel room, where the co-defendant had already invited in the police after they knocked. The police advised the defendant they had consent to be there, and, oh by the way, have you any drugs on you? The defendant said “yes” and pulled out a small baggie of cocaine. He was arrested and read his Miranda rights. Questioning then takes place, and is resumed with some of the same police the next day. Close to the start of the questioning the second time, the defendant is given a Miranda card and readvised of his rights. He still talks. The 9th easily finds that the first questioning wasn’t custodial, and so no Miranda violation. As for the second, the majority concludes that the 16-hour lapse didn’t make Miranda stale, and that the totality of circumstances were such that questioning could continue. Seibert, in its view, was inapposite because Miranda was read first. Berzon, in dissent, questions this. She does a careful analysis of Seibert, which is quite good, and concludes that the Seibert test is the plurality’s focus on whether the suspect thought of the circumstances and whether it was for all purposes the same questioning session. She reads Kennedy’s concurrence as being without support from most other Justices, as the dissenters want to retain Elstad and the plurality wanted to overrule or refine it. In this context, she would suppress the questioning after the regiving of Miranda because the officers were the same, it was effectively the same time and same place, and the officer went over the questions again, and so the Seibert prophylactic wasn’t followed. Berzon looks to Seibert policy over a formalistic no Miranda warning and then Miranda warning.

US v. Rodriguez-Preciado

No. 03-30285 (3-4-05). Seibert is the interesting issue in this appeal. The defendant returns to his motel room, where the co-defendant had already invited in the police after they knocked. The police advised the defendant they had consent to be there, and, oh by the way, have you any drugs on you? The defendant said “yes” and pulled out a small baggie of cocaine. He was arrested and read his Miranda rights. Questioning then takes place, and is resumed with some of the same police the next day. Close to the start of the questioning the second time, the defendant is given a Miranda card and readvised of his rights. He still talks. The 9th easily finds that the first questioning wasn’t custodial, and so no Miranda violation. As for the second, the majority concludes that the 16-hour lapse didn’t make Miranda stale, and that the totality of circumstances were such that questioning could continue. Seibert, in its view, was inapposite because Miranda was read first. Berzon, in dissent, questions this. She does a careful analysis of Seibert, which is quite good, and concludes that the Seibert test is the plurality’s focus on whether the suspect thought of the circumstances and whether it was for all purposes the same questioning session. She reads Kennedy’s concurrence as being without support from most other Justices, as the dissenters want to retain Elstad and the plurality wanted to overrule or refine it. In this context, she would suppress the questioning after the regiving of Miranda because the officers were the same, it was effectively the same time and same place, and the officer went over the questions again, and so the Seibert prophylactic wasn’t followed. Berzon looks to Seibert policy over a formalistic no Miranda warning and then Miranda warning.

Tuesday, March 08, 2005

Case o' The Week: Shepard questions Almendarez-Torres' viability

The Supreme Court's March 7 decision in Shepard v. United States, 2005 WL 51694 (Mar. 7, 2005), is remarkable, for it may sound the death knell for the hated Almendarez-Torres decision. The holding of the case is that police reports cannot be used to prove that burglaries were "violent felonies" to qualify as ACCA predicates.

The tantalizing aspect of the case, however, is Section III -- where Souter pleads for an opportunity to reverse Almendarez-Torres in light of Apprendi. With Thomas (who dissents as to Section III, because the Apprendi holding didn't go far enough!), Souter has five Justices to reverse Almendarez-Torres.

Players: Linda Thompson and Jeffrey Green for Shepard.

Facts: Shepard faced an ACCA sentence, and the government attempted to prove that prior burglary convictions were "crimes of violence" using police reports. The district court refused to do so, and the case bounced up to the First Circuit twice. 2005 WL 51694, *3. The Supreme Court took cert on the First Circuit’s reversal of the district court, requiring police reports be taken into account.

Issue(s): "The question here is whether a sentencing court can look to police reports or complaint applications to determine whether an earlier guilty plea necessarily admitted, and supported a conviction for, generic burglary." Id. at *3.

Held: "We hold that it may not, and that a later court determining the character of an admitted burglary is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of the plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented." Id. at *3.

Of Note: The Court’s endorsement of the limitations of its Taylor analysis is important, and kudos to counsel for that win. Shepard is most exciting, however, for Justice Souter’s plea for a case to reverse Almendarez-Torres. See id. at Section III, *8. Souter explained that constitutional developments since Taylor – Jones and Apprendi – create a real question of constitutional doubt as to whether the Almendarez-Torres exception to Apprendi for prior convictions remains good law. Id. AFPD Steve Sady’s "avoidance doctrine" argument is finally vindicated – Souter concludes, "The rule of reading statutes to avoid serious risks of unconstitutionality . . . therefore counsels us to limit the scope of judicial factfinding on the disputed generic character of a prior plea . . ." Id.

Four Justices concurred in the Section III, Apprendi argument: Souter, Stevens, Scalia, and Ginsberg. Justice Thomas dissented, because Section III didn’t go far enough! For Justice Thomas, there was constitutional error, not just constitutional doubt, when a prior conviction that was not proved to a jury enhanced a defendant’s sentence. Id. at *9. Count the votes – Almendarez-Torres is low fruit, ready for picking.

How to Use: Obviously, object to police reports as part of a Taylor analysis. Much more importantly, however, object to the use of any conviction which enhances a sentence, which is not proved to the jury beyond a reasonable doubt. Charges that immediately come to mind include ACCA, Section 1326 (illegal reentry), Career Offender, and mandatory minimums based on drug priors (argue that § 851 doesn’t meet Apprendi muster).

Based on Shepard, count on the Court revisiting Almendarez-Torres in the next term and start preserving the issue ASAP. The great prophets of Apprendi – Tim Crooks, Quin Denvir, Tim Crooks, Henry Bemporad, and Paul Raskind – have been after us to bring these challenges for years. Take their advice.

Anticipate the government alleging prior convictions in all indictments – which brings up our old surplusage and Buckland separation-of-powers, judicial rewriting of statutes arguments. Everything old is new again – change the headings on our old Apprendi motions, and remount new attacks, led by our Shepard.

For Further Reading: There will be much discussion of Shepard. Professor Berman reliably is one of the first commentators; his thoughtful discussion can be found here.

Steven Kalar, Senior Litigator, N.D. Cal. Fed. P.D.

Saturday, March 05, 2005

Leocal plus Booker: drug possession is not an aggravated felony

With the tenfold increase in illegal reentry prosecutions in the past decade, one of the most common, and frustrating, sentencing problems is the treatment of prior convictions for simple possession of drugs under U.S.S.G. § 2L1.2. Under the guidelines, aliens receive an enhancement to offense level 16 for having a conviction that is an "aggravated felony" under the Immigration and Nationality Act’s definitional section, 8 U.S.C. § 1101(a)(43). For immigration purposes, three Circuits reasonably construe section 1101(a)(43)(B) to require an element of trafficking before a drug conviction constitutes an "aggravated felony." But in the sentencing context, most Circuits treat mere possession of the tiniest amount of drugs as a "drug trafficking crime" that requires enhancement as an "aggravated felony." Here come two recent cases from the Supreme Court to the rescue.

In Leocal, the Supreme Court addressed the definition of "aggravated felony" under the INA in deciding whether drunk driving resulting in injury constituted a "crime of violence" under section 1101(a)(43)(A). The Court did two things that undercut the reasoning of the bad sentencing precedent.

First, the Court resorted to the common meaning of "crime of violence" to find that drunk driving was not within the natural or ordinary meaning of that term. Similarly, "drug trafficking crime" -- "naturally" and by its "ordinary meaning" -- does not include simple drug possession. Second, the Court held in footnote 8 that the statutory language must be interpreted "consistently, whether we encounter its application in a criminal or noncriminal context." The Ninth Circuit must therefore reconcile the different definitions of "drug trafficking crime" (as the predicate for being an "aggravated felony") in the immigration (Cazarez-Gutierrez & Ferreira) and sentencing (Ibarra-Galindo) contexts.

Booker provides important support for resolving the conflict in favor of the alien. The intra- and inter-Circuit split between the "hypothetical federal felony" approach and the "guidelines" approach is summarized and not resolved by the Sixth Circuit in Liao. As set out in the Garcia-Plancarte petition for certiorari here, the statute's plain meaning and the rules of statutory construction strongly support treatment of simple drug possession as outside the definition of "aggravated felony." The rationale for different treatment arises from the claim that national uniformity is necessary in the immigration context but not in the federal sentencing context. One thing both majorities in Booker agreed upon is the overarching congressional intent that defendants with similar backgrounds who commit the same offense should be treated similarly.

The "guidelines" approach typified by Ibarra-Galindo in the Ninth Circuit institutionalizes unwarranted disparity. A defendant convicted of the exact same immigration crime, with a prior conviction with the exact same elements, has an adjusted base level 8 for an Arizona conviction (Robles-Rodriguez), a base level of 16 for an Oregon conviction (Rios-Beltran), and 16 or 8 depending on "wobbler" factors for a California conviction (Fernandez-Cervantes, 13 Fed.Appx. 665 (9th Cir. 2001)). On the other hand, under the "hypothetical federal felony" approach, each defendant would have the same advisory guideline range: a prior conviction for mere possession, which is a misdemeanor under the federal Controlled Substances Act, would never be an "aggravated felony;" a prior conviction that included any of the trafficking and manufacture elements required for federal felonies under the CSA would always be an "aggravated felony."

Leocal and Booker are intervening Supreme Court authority that undercut the reasoning and "mode of analysis" of the split opinion in Ibarra-Galindo. Under the en banc opinion in Miller that frees district courts from such invalid precedent, aliens should no longer receive enhanced sentences based on mere drug possession because the district courts are no longer bound by precedent that defenders have long viewed as irrational and cruel. The Garcia-Plancarte petition is easily adaptable for use in the district courts.