Saturday, June 30, 2007

Case o' The Week: No Prior, Restraints, in Norbury

Mandatory-minimum statutes generate some of the worst injustices in federal sentencing: a situation not helped by Judge Beezer's recent decision in United States v. Norbury, __ F.3d __, Slip. Op. 7071 (9th Cir. June 25, 2007), decision available here. In Norbury, the Ninth (Beezer (left), Fisher, Tallman) holds that a prior state drug conviction can be used to trigger a mandatory minimum sentence -- even though the drug conviction had been dismissed, with prejudice!

Players: Judge Beezer authors, Fisher and Tallman on panel.

Facts: Norbury was charged with a bevy of federal meth offenses, and was convicted after trial. Slip Op. at 7608-09. At sentencing, he objected to the government’s reliance on a state felony drug conviction to create a 20 year mandatory minimum. Id. at 7609. That drug prior had been dismissed – with prejudice – by the state court. Id. at 7610. The district court rejected his challenge, and imposed 20-year mand-min sentences run concurrently. Id. at 7609.

Issue(s): “Norbury argues that the district court erred in enhancing his sentence under 21 USC § 841 based on a prior conviction because the conviction was later dismissed with prejudice by the state court.” Id. at 7610.

Held: Whether a defendant’s prior state conviction was a ‘conviction’ within the meaning of a federal statute is a question of federal, not state, law unless Congress provides otherwise.” Id. at 7610-11. “The meaning of the term ‘conviction’ in § 841 . . . remains a question of federal law.” Id. at 7611. “Our sister circuit courts that have addressed the issue agree that a deferred, expunged, or dismissed state conviction qualifies as a prior conviction under § 841.” Id. at 7611. “Norbury argues that a dismissal differs from expungement and alters the legality of a prior conviction by invalidating the underlying charges. We disagree.” Id. at 7612. “The district court properly concluded that Norbury’s dismissed state conviction qualifies as a prior conviction under 21 USC § 841.” Id.

Of Note: The panel neatly punts on another real issue is this case: whether the government has the burden of proof to prove the existence of a prior conviction beyond a reasonable doubt. See Shepard v. United States, 544 U.S. 13, 27 (2005) (Thomas, J., dissenting) ("Almendarez-Torres, like Taylor, has been eroded by this Court's subsequent Sixth Amendment jurisprudence, and a majority of the Court now recognizes that Almendarez-Torres was wrongly decided.") Instead of grappling with this challenging issue, the decision assures us in a footnote (!?!) that the government’s burden of proof is “irrelevant in this case.” Norbury, Slip Op. at 7610 & n.2.

The decision highlights a tremendous inequity in how priors play out in federal cases. It explains that after the Supreme Court decision in Dickerson v. New Banner Ins., Inc., 460 U.S. 103 (1983), Congress amended the gun control statutes to allow the term “conviction” to be determined in accordance with the law of the jurisdiction in which the proceedings were held – in other words, state law. Id. at 7611. Congress did not so amend the drug statutes after Dickerson. Id. Therefore, a prior “conviction” that doesn’t count under state law for a federal gun charge will qualify as a predicate for a drug case, under federal law. Id. Moral? Don’t sell drugs; carry guns.

How to Use: Not much light in this dark tunnel of a decision. The panel repeated Dickerson 's speculation that a prior conviction’s legality may be affected by actual innocence or trial error. Id. at 7612. So, all you need to do is prove that your client was actually innocent of the state prior – you may avoid the federal mandatory minimum if you do. Id. at 7612. Sarcasm aside, note that Norbury’s state prior appears to have been dismissed because he successfully completed the “terms and conditions” of his sentence. Id. If the defendant’s state dismissal was less – ministerial – a future client may want to take a shot at distinguishing Norbury. With twenty years, or life, at stake, what’s the down side of such a challenge?

For Further Reading: Families Against Mandatory Minimums (FAMM) has one of the best web sites on mand-mins in both the federal and state systems, and work on legislation to repeal them. See FAMM site here. For a useful summary of crack-cocaine legislation now pending in Congress, visit FAMM’s web page here. The Sentencing Commission has sent a report to Congress urging reform for crack cocaine sentencing: it can be found here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at


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