Saturday, March 19, 2011

Case o' The Week: Major Analysis for a "Minor" Issue - Doss, and Nijhawan in Criminal Sentencings

A slow week in the Ninth (for non-capital cases, at least), and an order amending the opinion, gives us an excuse to go back for a second pass at the interesting decision and sentencing issues in United States v. Doss, _ F.3d __, 2011 WL 871391 (Mar. 15, 2011) (amend.), decision available here, see earlier blog on privilege issues here.

Players: Extraordinarily hard-fought case by CD Cal AFPD Davina Chen (check out the number of submissions, revisions, vacated submissions, and re-considerations at the first page of the opinion).

Facts: Doss was convicted after trial and given a life sentence for sex offenses relating to children. Id. at *1. (For a more facts, see blog here (discussing case in context of privilege issues).

Section 3559(e)(1) of Title 18 creates a mandatory life sentence for these offenses, if the defendant has a “prior sex conviction in which the minor was a victim.” Id. at *13. Doss had a prior Nevada conviction for child pandering. Id. This state prior, the district court conceded, did not categorically qualify for the federal enhancement because Nevada defines “minor” as a person under 18, while the feds define “minor” as a person under 17. Id.

Turning to the Taylor modified categorical approach, the district court examined the charging documents, plea agreement, and colloquy from the state prior, and held that Doss had admitted to pandering a child who was 16. Id. The prior, held the court, counted for the federal enhancement: Doss was sentenced to life in prison. Id.

Issue(s): Under Apprendi, must the fact of the victim’s age – a fact that increases Doss’s statutory maximum sentence - be proved to a factfinder beyond a reasonable doubt? Id. at *14 (paraphrasing analysis).

Held: “Because we conclude that ‘in which a minor was the victim’ is not an element of ‘prior sex conviction,’a factual determination that a minor was involved necessarily falls outside the ‘fact of a prior conviction” exception of Apprendi . . . . Thus, if this fact increases the penalty Doss would face above the statutory maximum, it must be proven to a factfinder beyond a reasonable doubt. Id.; see also Nijhawan.” Id. at *14 (citations omitted). “Under these circumstances, especially considering the significant change in law since the sentencing, we believe the fairest approach would be to remand. . . for a new sentencing proceeding to determine, applying a beyond-a-reasonable-doubt standard, whether Doss’s prior sex conviction indeed involved a minor under the federal definition.” Id. at *15.

Of Note: Doss is complicated, even for those seeped in the Taylor sentencing goo. Here’s a gross oversimplification:

1. Nevada criminalizes pandering a minor who was 17 – for feds, a “minor” must be 16.

2. In the 2009 Nijhawan immigration case, the Supreme Court case created a new category called, “circumstance-specific” crimes for the “prior conviction” analysis, where the lower court is to look at the “facts and circumstances underlying an offender’s conviction.” Id. at *13.

3. In Doss, Judge Hawkins (author of the opinion, image above-left) dubs the federal enhancement statute one of these “circumstance-specific” cases, which would permit looking at the ‘specific circumstances surrounding an offender’s commission of that crime on a specific occasion.” Id. at *14.

4. But, because Doss is a criminal case (not an immigration case like Nijhawan) there are constitutional concerns. Apprendi thus requires proof beyond a reasonable doubt of the key fact: the true age of the minor. Id. at*14.

Simple, right?

How to Use: Nijhawan made us twitchy – it seemed a step backwards from the positive trends of the Taylor / Shepard approach, and we worried Nijhawan would bleed out of the immigration context and into criminal sentencing.

Doss answers that concern: Nijhawan can’t be (fully) imported into a criminal sentencing, because Apprendi gives a criminal defendant constitutional protections not found in immigration court.

Worry, though, about the actual result here: the remedy is a federal sentencing evidentiary hearing involving any evidence that “may be introduced under the Federal Rules.” Id. at *15 n.11. So, theoretically, the (then-allegedly) 16-year old Nevada girl whom Doss pandered could now come and testify at a federal sentencing hearing, birth certificate in hand. From Mr. Doss’s perspective, battle won, war prospects looking grim.

For Further Reading: So where is the en banc Aguila Montes de Oca decision, already? See generally, blog here. Next Wednesday, March 23, 2011, it’ll have been a full year since oral argument. See argument video here.

Judge Berzon was a very informed and engaged judge at that en banc argument. Interestingly, she is also on this Doss panel, which seems to view the Ninth’s great Navarro-Lopez rule (the central Aguila Montes de Oca issue) favorably. Doss, 2011 WL 871391, *13.

Tea leaves?

Image of the Honorable Michael Daly Hawkins from

Image of tea leaves from

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


Labels: , , , , ,


Post a Comment

<< Home