Sunday, April 01, 2007

Case o' The Week: Viva the Virgule, Almazan-Becerra. Disjunctive plea and modified categorical analysis

Judge Wallace authors a good (revised) opinion with a favorable new rule for the "modified categorical" analysis of drug priors. United States v. Almazan-Becerra, __ F.3d __, No. 05-10056, Slip. Op. at 3603 (9th Cir. March 29, 2007), decision available here.

: Nice win by CJA counsel Don Searles of Fenwick & West, S.F..

Facts: Almazan-Becerra got seventy months in federal court for illegal reentry. Slip Op. at 3606. A big chunk of that sentence was from specific-offense enhancements from two state drug priors. Id. at 3607. The first prior was Cal. H&S § 11360(a), a felony drug offense for conduct involve pot. Id. The second was for Cal. H&S 11379, a felony drug offense for transporting meth. Id. For the state pot case, Almazan-Becerra had pleaded guilty and admitted that he had transported or sold or offered to sell pot. Id. For the state meth case, he had admitted in his plea that he had transported meth. Id. At sentencing on the federal illegal reentry charge, the district court gave a sixteen-level enhancement on the pot, and/or a twelve-level enhancement for the meth, because it considered these priors “drug trafficking offenses” under USSG § 2L1.2(b)(1)(A).

Issue(s): “Almazan-Becerra argue that neither conviction qualifies for a drug-trafficking enhancement.” Id. at 3608. (For the pot case): “Almazan-Becerra contends that because the indictment and plea colloquy were repeatedly stated in the disjunctive, they do not ‘unequivocally establish’ that he is guilty of conduct that qualifies for the enhancement.” Id. at 3611.

Held: 1. Meth Case: “[T]he district court abused its discretion by applying the twelve-level enhancement for [the meth conviction].” Id. at 3611. “[T]ransportation of a controlled substance for personal use [is] outside the scope of the drug trafficking enhancements.” Id. at 3610. [There is no] evidence supporting the conclusion that the “1998 conviction was for transporting methamphetamine with intent to sell.” Id. at 3611.

2. Pot Case: “We have previously held that when a defendant pleads guilty to facts stated in the conjunctive, each factual allegation is taken as true. This appeal requires us to consider whether the same is true in a disjunctive plea. Because Almazan-Becerra pled to the disjunctive ‘either transporting or selling or offering to sell marijuana,’ he could have pled to transporting marijuana for personal use , which does not qualify for the enhancement . . . . We therefore hold that this disjunctive guilty plea does not ‘unequivocally establish’ that Almazan-Becerra committed a drug-trafficking crime.” Id. at 3612 (internal citations, quotations, and brackets omitted].

Of Note: What role do police reports have in the modified categorical analysis? Here, in the old pot prior, defense counsel had stipulated that “related police reports” contained a factual basis to support a guilty plea. Id. at 3607. The reports didn’t control in the modified categorical analysis, though, because the pot plea was in the disjunctive, and police reports (showing hand to hand sales) therefore don’t “unequivocally establish” that this was transport for sale.

It’s hard to reconcile this analysis with another Ninth Circuit case, the horrible Espinoza-Cano decision. In Espinoza-Cano, police reports associated with a plea controlled the modified categorical analysis. See 456 F.3d 1126 (9th Cir. 2006). The Espinoza-Cano panel tries to explain the difference in a footnote – we’re told it hinges on the “disjunctive” plea. In reality, the distinction makes little sense. (Espinoza-Cano is also lousy for sanctioning that deplorable refuge of the lazy and fearful prosecutor: the abuse of the third acceptance point. Regrettably, this regrettable decision just survived an en banc call).

How to Use: State practitioners, plead in the disjunctive! Statutes are often written in the disjunctive, and state crimes are often charged that way. A disjunctive plea can later save years at federal sentencing. Federal practitioners: be wary of any drug priors triggering the 2L1.2 enhancement that isn’t H&S 11352 – more drug priors seem vulnerable to challenge, and the custodial savings can be huge if one beats the drug trafficking enhancements.

For Further Reading: The “virgule” will save Alamazan-Becerra years off of his custodial sentence. Id. at 3612. For more about this “oblique stroke” of good fortune, see article here.

Steven Kalar, Senior Litigator. Website at


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