Monday, May 23, 2005

Ngo & Nobriga: two critical pieces of the post-Shepard jigsaw puzzle

Two new circuit court cases provide critical pieces of the post-Shepard logic that requires re-interpretation of the Armed Career Criminal Act and Section 922(g). In each case, the courts take important steps into the post-Shepard world we have been predicting. In Ngo, by reversing a career offender enhancement based on failure to establish the facts necessary to show priors were not "related cases", the Seventh Circuit shows the way for re-interpretation of the ACCA to require pleading and proof that the priors were committed "on occasions different from one another." In Nobrigo, in dismissing an indictment for gun possession after a domestic misdemeanor conviction, the Ninth Circuit provides guidance on foreclosing use of priors under the ACCA and Section 922(g) where the necessary characteristics of the prior conviction are not established in the Shepard-proof record. And these are both plain error cases.

Every Statute That Increases Maximum Punishment Based On A Prior Conviction Must Be Reassessed In Light Of Apprendi, Blakely, and Shepard.

Let’s catch up for a minute. We have been claiming that Almendarez-Torres, which provides the basis for Apprendi’s prior conviction exception, is a dead letter and that the definitions of priors are sharply limited to characteristics apparent from the face of the convictions (in blogs available here and here and here). Short of outright reversal, Almendarez-Torres has been completely marginalized: almost every Justice has agreed that application or extension of the case implicates the doctrine of constitutional avoidance; Apprendi narrowly limited Almendarez-Torres to its unique facts and circumstances; and Shepard requires that the qualifying characteristics be proven at the prior trial or admitted in the plea colloquy. In a parallel development, the definition of maximum sentence throughout the firearms statutes must be reassessed in light of Blakely (as set out here). Given the Ninth Circuit’s en banc opinion in Miller, every district court should be re-examining statutes free of barriers created by precedent because the Miller court limited the effect of precedent where intervening Supreme Court cases undermined the reasoning or "mode of analysis" of the earlier cases.

The advocacy positions, short of directly overruling Almendarez-Torres, can be summarized as follows:

1) If the statutory maximum is increased based on a prior conviction, the statute must be re-interpreted to require pleading and proof beyond a reasonable doubt to save it from reliance on Almendarez-Torrez under the doctrine of constitutional avoidance.

2) If the prior conviction requires predicate facts beyond the actual conviction (characteristics such as violence, drug trafficking, maximum punishment, extra-conviction factors required to be an "aggravated felony"), those characteristics must be pleaded and proved both because Apprendi does not permit extension of Almendarez-Torres beyond the fact of conviction and because Shepard requires the statute be construed to avoid the constitutional question.

3) If the statute defers to state law in defining the prior conviction, the Blakely maximum provides the definition for determining whether a prior guidelines conviction is "punishable by imprisonment for a term exceeding one year" (§922(g) & §924(e)(B)) and whether a "serious drug offense" is involved because a "maximum term of imprisonment of ten years or more is prescribed by law" (§924(e)(2)(A)(ii)).

In this context, Ngo and Nobriga provide key pieces establishing that the ACCA and Section 922(g) must be re-interpreted to require pleading and proof of the qualifying characteristics of predicate convictions.

Ngo Is To "Common Scheme Or Plan" As [Blank] Is To "Occasions Different From One Another."

After being convicted for meth trafficking, Tek Ngo received a career offender sentence based on two prior robberies. On appeal, he claimed that the district court’s fact findings on "related cases" under Application Note 3 of U.S.S.G. §4A1.2 - in the post-Blakely, pre-Booker world - violated the Sixth Amendment. In an opinion available here, the Seventh Circuit rejected his argument that the "consolidated for sentencing" factor went beyond the face of Shepard-approved documentation, but agreed that, after Shepard, the question whether prior convictions were not "part of a common scheme or plan" was a jury question under Blakely. In footnote 1, the court noted that the Shepard problem with career offender will not arise in the future because of Booker’s remedial opinion.

Ngo should live on because it directly supports application of Shepard to other aspects of the ACCA, most obviously the statutory requirement that the three convictions "occurred on occasions different from one another." The Ngo opinion provides strong support for each step of the analysis. First, the court cited directly to its precedent on the ACCA and noted that precedent that rejected "parsing out" the ACCA’s "separate occasions" requirement appeared to have been superseded by Shepard. Second, in light of Shepard, the court determined that the Almendarez-Torrez exception "is quite narrow" and exempts only findings traceable to a prior judicial record of "conclusive significance." Lastly, because the "common scheme or plan" inquiry required resort to information beyond the "conclusive significance" of the judicial record, the judicial fact-finding violated Mr. Ngo’s Sixth Amendment right to jury trial.

These steps are all critical to expansion of Shepard in the context of ACCA, §922(g), and §1326. There is also a residual argument that career offender priors must be pleaded and proved even after Booker. Career offender results in drastic increases in offense level that often implicate the reasonableness of the ultimate sentence within the statutory maximum (e.g., the addict with two probationary dispositions for single dose distributions who, upon sharing a line, is now facing close to twenty years). Unlike most guideline enhancements, career offender has its direct roots in statute (28 U.S.C. §994(h)), which may be subject to a constitutional avoidance construction requiring pleading and proof complying with the Sixth Amendment. Such issues would have to be raised by Mr. Ngo for the first time on remand.

Nobriga Provides Guidance On Application Of Shepard And Blakely.

Fred Nobriga pleaded guilty to possession of a firearm by a person convicted of a misdemeanor crime of domestic violence, preserving appeal of a motion to dismiss. The federal statute, 18 U.S.C. §921(a)(33)(A)(ii), includes the specific components required for the conviction to qualify. In an opinion available here, the Ninth Circuit rejected the categorical issue preserved by Mr. Nobriga because the non-generic conviction could qualify under the modified-Taylor analysis of judicial documents. But the heart of the case was whether the victim of the offense had the domestic relationship to Mr. Nobriga required by §921(a)(33)(A)(ii).

The Ninth Circuit carefully analyzed the terms of the Hawaii misdemeanor statute. The definition of the potential victim included a class beyond the scope of the federal definition - roommates without a more personal relationship. The indictment did not pinpoint the relationship and, in footnote 3, the court noted that Shepard precluded consideration of the police reports. But the federal guilty plea included a statement that the victim was a "former girlfriend."

First, the court found in footnote 4 that the admission during the federal plea was not pertinent to the Taylor/Shepard analysis. However, the court noted that the statement might be relevant as an affirmative waiver of Shepard-based arguments. The court stated that the issue need not be decided because of its ultimate ruling that "former girlfriend" did not meet the statutory criteria for a federal domestic victim.

Second, the court parsed the four categories of federal domestic violence victims. Three sections require a current relationship, a formal relationship, or a child in common. The last possibility - cohabitated with the person as a spouse - simply was not established by the admission that the victim was a "former girlfriend." And nothing in the state statute necessarily filled in the missing cohabitation requirement because the Hawaii statute stated the roommate and relationship statuses in the alternative. The indictment had to be dismissed under plain error doctrine because the relationship established in the state conviction did not fall into any of the four categories in the federal statute.

Federal defenders have been asserting the inexorable logic of Apprendi, Blakely, and Shepard in arguing for additional procedural protections in firearms and other statutes in which prior convictions with certain characteristics increase the statutory maximum. Ngo and Nobriga accept and develop major premises of those arguments, which we need to make to contest application of some of the most irrationally severe sentencing provisions to our clients.

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


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