TENTH CIRCUIT DECISIONS
AUGUST 2005
Appeal Waiver - Government Motion to Enforce
United States v. Clayton, 04-3394 (August 1, 2005)
(Jill M. Wichlens, FPD, Denver, Colorado)
Clayton pleaded guilty to one count of drug distribution. His plea agreement included a waiver of appeal.
HELD: (1) The circuit has recently held that a knowing and voluntary waiver may preclude an appeal based on Booker if the error is within the scope of the waiver. Clayton argued that his waiver is unenforceable where the government failed to timely file a motion to enforce the waiver. Rule 27.2(a) presently provides for motions to dismiss or affirm. In Hahn, the court stated that the circuit’s rule would be amended to allow the government to file a dispositive motion for dismissal based on the waiver. Nothing in Rule 27.2 provides that a contention that can be raised by motion must be raised by motion. Failure to file a motion under the rule to dismiss for lack of appellate jurisdiction does not foreclose raising the issue in a brief. The circuit had approved this motion procedure because its prior practice of referring the government’s motion to dismiss to the merits panel and ordering briefing on the merits in effect robbed the government of the benefit of its bargain. But the government is free to forego some of that benefit. The defendant’s appeal is within the scope of an enforceable waiver. The circuit did not address the merits. The appeal is dismissed.
Waiver - Jury Trial at Sentencing, Waive Rights Recognized in the Future
Guideline Interpretation
Amount of Loss
Victims (Number)
Harmless Error
United States v. Leach, 04-5117 (August 3, 2005)
(Paul D. Brenton, Julia O’Connell and Barry L. Derryberry, FPD, Tulsa, Oklahoma)
Leach pleaded guilty to theft of mail by a postal employee in violation of 18 U.S.C. § 1709. The court sentenced Leach to 37 months imprisonment. Between the time of plea and sentencing, Blakely was decided. Disputed issues of fact centered on the amount of loss and number of victims. The district court offered Leach an opportunity to withdraw her pre-Blakely guilty plea. She declined. The district court held that Leach’s pre-Blakely waiver of jury trial applied both to the guilt-innocence and sentencing phases. And in light of her waiver, the court could make fact findings without violating the Sixth Amendment. But out of an abundance of caution, the court held a hearing, requiring the government to prove loss amount and number of victims beyond a reasonable doubt. The court imposed a two-level enhancement for abuse of a position of trust based on her admission in the guilty plea petition, and applied two enhancements based on amount of loss and number of victims. The court awarded Leach a three-level reduction for acceptance of responsibility. The guideline range was 30 to 37 months, and the court imposed a 37 month sentence.
HELD: (1) A defendant’s right to jury trial at sentencing can be voluntarily waived. A waiver is an intentional relinquishment or abandonment of a known right or privilege. Plea agreements may waive rights in existence, as well as those that courts recognize in the future. If there were any doubt as to the scope of the pre-Blakely waiver, that doubt was erased when the defendant declined the offer to withdraw her plea.
(2) With regard to the argument that the district court miscalculated the loss, the circuit reviews a district court’s application of the guidelines de novo with respect to legal questions, and for clear error as to fact findings. The district court need only make a reasonable estimate of loss and is entitled to deference. The district court concluded that the government had proved the loss amount by a preponderance, but that the government had not proved this beyond a reasonable doubt. The circuit could not say that the district court clearly erred.
(3) As to the number of victims, a victim is defined as any person who sustained any part of the actual loss or bodily injury as a result of the offense. The district court found that over 200 people reported undelivered donations and incurred the expense of writing and mailing a replacement check. The circuit disagreed as none of the 200 people were intended addressees of undelivered mail. Nor did they suffer any bodily injury. The only relevant definition is any person who sustained any part of the actual loss determined under subsection (b)(1) of §2B1.1. The cost in sending replacement checks was a reasonably foreseeable pecuniary harm of Leach’s conduct. But this harm was not included as part of the actual loss under subsection (b)(1). Nothing was presented regarding the type and amount of loss suffered by donors.
(4) The error was not harmless. Without these 200 individuals, the crime involved only eight discernable victims, so no enhancement based on the number of victims is appropriate. Without the enhancement, the maximum sentence was 24 months – 13 months less than the 37 month sentence the defendant actually received.
Aliens - Collateral Attack on Removal Proceedings, Three Requirements
Crime of Violence - DUI
Retroactivity - Statutory Construction Decision is Retroactively Applied
Appellate Review - Affirm on Different Basis from District Court
United States v. Rivera-Nevarez, 04-3164 (August 5, 2005)
(Timothy J. Henry, FPD, Wichita, Kansas)
Rivera was charged with illegal reentry after removal. He moved to dismiss the indictment on the ground that subsequent Board of Immigration Appeals and Tenth Circuit precedent rendered invalid the 1999 removal order on which the illegal reentry charge was based. The district court denied the motion. Rivera pleaded guilty, reserving the right to appeal. The underlying conviction was for DUI. The BIA had classified DUI as a crime of violence under 18 U.S.C. § 16, and therefore an “aggravated felony.” In Lucio-Lucio, the Tenth Circuit established that drunk driving was not a crime of violence or aggravated felony under the INA. In Mendoza-Lopez, the Supreme Court held that a defendant, being prosecuted under 8 U.S.C. § 1326, can collaterally attack the prior removal order if the removal hearing was fundamentally unfair and the defendant was denied the right to appeal. Rivera argued that he satisfied the prerequisites for a collateral attack on a removal order. Most recently, the Supreme Court decided Leocal v. Ashcroft, which held that DUI offenses are not crimes of violence under 18 U.S.C. §16, and therefore are not “aggravated felonies” under the INA.
HELD: (1) The district court held that these decisions were not retroactively applicable and that the removal was valid at the time. But because Leocal involves a question of statutory construction, its holding is retroactively applicable to the time of Rivera’s removal hearing. Decisions of statutory interpretation are fully retroactive because they do not change the law, but rather explain what the law has always meant. Therefore, Leocal provides the correct interpretation of the law as it stood in 1999 when Rivera was deported.
(2) Nonetheless, Rivera cannot collaterally challenge his removal unless he can establish that he meets the statutory prerequisites for a collateral attack set forth in 8 U.S.C. § 1326(d). Rivera fails to demonstrate that the statutory requirements are satisfied.
(3) Section 1326 criminalizes reentry after removal, and originally included no exception for cases in which the original removal order was unlawful. But in Mendoza-Lopez, the Supreme Court held that an administrative removal proceeding plays a critical role in the subsequent imposition of a criminal sanction, so that the proceeding must be conducted in accordance with due process and there must be some meaningful review. A defendant is deprived of an opportunity to judicially challenge a deportation order when not adequately informed of his right to appeal. In response to Mendoza-Lopez, Congress enacted § 1326(d) which establishes three requirements that an alien must satisfy in order to collaterally challenge a removal proceeding. Subsection (d) requires the alien to demonstrate that he has exhausted any administrative remedies, the deportation proceedings deprived him of an opportunity for judicial review, and the entry of the order was fundamentally unfair. Assuming Rivera can satisfy the other requirements, he failed to meet his burden to show he was deprived of the opportunity for judicial review. It is his burden to show he was deprived of his right to appeal. Rivera correctly argues that the law – as it was in 1999 – appeared to preclude any right to appellate review of the removal order. But the applicable statutory section, § 1252(a)(2)(C), did not preclude courts from reviewing the threshold question of which crimes constitute crimes of violence under the INA. Rivera could have appealed to the Fifth Circuit on that question. Therefore, the district court’s error in denying the motion to dismiss was harmless.
(4) The dissent reads Rule 11(a)(2), F.R.Cr.P. to mandate a per se rule of reversal for cases where the district court, while reaching the correct result, relies on erroneous reasoning in deciding an issue reserved for appeal as part of a conditional plea agreement. The dissent would remand because the district court erred on the question of retroactivity. The majority held that the dissent is wrong in its view that the terms of the plea agreement itself restrict this court from considering the requirements of § 1326(d). The majority characterized Judge Lucero’s dissent as an “extraordinary interpretation” of the rule that is “unprecedented in the history of the court.” The majority relied on the principle of appellate review that a court of appeals may affirm the rulings of the lower court on any ground that finds support in the record, even when the lower court reached its conclusions from a different or even erroneous course of reasoning.
Aliens - Marriage Fraud, Intent
United States v. Islam, 04-3320 (August 9, 2005)
Islam, a native of Pakistan, was indicted for marriage fraud, in violation of 8 U.S.C. 1325(c). He was convicted. The district court denied his motion for judgment of acquittal, concluding a rational jury could have found that Islam entered into a sham marriage to evade immigration laws.
HELD: (1) The INA makes it unlawful for an individual to knowingly enter into a marriage for the purpose of evading any provision of the immigration laws. To prove marriage fraud, the government must show the alien knowingly entered into a marriage, for the purpose of evading a provision of the immigration laws, and the alien knew or had reason to know of those laws. The government must prove that the alien acted with knowledge that his conduct was unlawful, but need not prove the defendant knew of the specific immigration statute allegedly violated. The evidence was sufficient.
(2) The instruction on intent is somewhat ambiguous as to whether the jury had to find the defendant, and not his wife, had the intent to engage in marriage fraud. The ambiguity is only in the second element. But the instruction clearly indicates in the last sentence that the defendant was the one who must evade the immigration laws, not his wife.
Upward Departure - Number of Bank Robberies, Interpretation of §3D1.4
Criminal History -Points Assigned Based on Sentence Imposed-Not Time Served
Plain-Error Review
Booker - Harmless Error
United States v. Martinez, 04-4166, 04-4167 (August 12, 2005)
(Vicki Mandell-King, FPD, Denver, Colorado)
Martinez pleaded guilty to 10 counts of bank robbery. At sentencing, the district court departed upward and imposed a sentence of 130 months. The robberies occurred during a robbery spree in 2003. Martinez was charged with five counts out of the District of Utah and five counts out of the District of New Mexico. Martinez pled guilty to all 10 charges. The PSR author assigned offense level 24 and criminal history category VI, with a guideline range of 100-125 months imprisonment. This level 24 included the reduction for three levels for acceptance of responsibility. The district court notified the parties of its intention to depart because the offense level did not adequately account for the number of crimes. Section 3D1.4 limits the additional number of levels added to five, and the district court departed upward by an additional four levels. Ultimately the guideline range was calculated to be 130 - 162 months. The government recommended a sentence at the low end. The court imposed that sentence.
HELD: (1) When reviewing a district court’s application of the guidelines, the court reviews legal questions de novo, and reviews fact findings for clear error.
(2) Martinez contends the 4-level departure was unreasonable. In reviewing the degree of departure, the court gives due deference to the district court and will not reverse absent an abuse of discretion. The district court explained its decision to depart and adequately justified the 4-level upward departure. The degree of departure was not unreasonable.
(3) The PSR author assigned Martinez two points based on a 1996 theft conviction Because there was no objection below, review is for plain error. The core of Martinez’ argument is that he did not serve any time on his sentence for the 1996 theft conviction. But it is irrelevant whether he served any time on the sentence. The assignment of points for a sentence of imprisonment is based on the maximum sentence imposed. Therefore, the court held the argument was without merit.
(4) Review is for harmlessness, because Martinez objected under Blakely. The government bears the burden of demonstrating that Martinez’ substantial rights were not affected. There is no reason to think the district court would impose a less severe sentence in exercising his post-Booker discretion. Therefore the error is harmless.
Aliens - Illegal Reentry After Deportation Upon Conviction of Aggravated Felony (18 U.S.C. § 16; §2L1.2), Crime of Violence, Attempted Aggravated Assault, Actual Term of Imprisonment, Harmless Error
Booker - Non-Constitutional Error Where Enhancement Based on Prior Conviction
United States v. Gonzalez-Coronado, 03-2226 (August 15, 2005)
(Kurt J. Mayer, FPD, Las Cruces, New Mexico)
Gonzalez pled guilty to illegal reentry after deportation under 8 U.S.C. § 1326(a).
HELD: (1) To define aggravated felony under § 1326(b)(2), the court looks to 8 U.S.C. § 1101(a)(43), which defines an aggravated felony as a crime of violence for which the term of imprisonment is at least one year. While the prior conviction for attempted aggravated assault is a crime of violence under 18 U.S.C. § 16, Gonzales argues that the conviction did not involve a prison term of at least one year. The court looks to the actual sentence imposed. The Kansas court sentenced Gonzalez to probation. A sentence to probation for a one or two-year period is not a one-year prison term.
(2) But the error is harmless because Gonzalez still faced a maximum 10-year sentence, which was more than sufficient to support the 37-month sentence.
(3) In calculating the guideline range, the district court treated the prior Kansas conviction as a crime of violence, and enhanced the base offense level by 16 levels. For a prior conviction to be a crime of violence, §2L1.2(b)(1)(A)(ii) does not require that the conviction result in a sentence of any particular length.
(4) Gonzalez also raises a Booker issue. There is no Sixth Amendment error because the district court enhanced Gonzalez’ sentence based only upon the existence of a prior violent felony conviction. But the court committed non-constitutional Booker error. The defendant has the burden. The court affirmed.
Booker - Applies to Cases on Direct Review
United States v. Rines, 04-4182 (August 16, 2005)
(Steven B. Killpack, Scott Keith Wilson, FPD, Salt Lake City, Utah)
Rines pleaded guilty to possession of ammunition by a convicted felon. He stipulated that he knowingly possessed ammunition, and that at the time, he had been convicted of a crime punishable by more than one year imprisonment. At sentencing, he raised a Blakely claim. The guideline calculation was offense level 21, criminal history category V, and a sentencing range of 70-87 months. The district court held it would be unconstitutional to apply the guidelines, and concluded it needed to impose a sentence somewhere between probation and 10 years imprisonment. The court found the appropriate sentence to be 70 months.
HELD: (1) In light of Booker, the guidelines are advisory, but are still in effect. Rines argued that, applying the remedial holding of Booker violates due process because it is a judicially created rule that is an unforeseeable alteration of what was – up until Booker – a clear statutory requirement that he be sentenced within the guideline range (citing Bouie). The Supreme Court in Booker held that its holdings – including the remedial interpretation – are to be applied to all cases on direct review. Post-Booker, the sentencing court is not required to consider individually each factor listed in § 3553(a).
Possession of Child Pornography (18 U.S.C. § 2252) - Taylor Categorical Approach Does Not Apply, Violent Felony, Sixth Amendment and Shepard Decision, PSR as Document to Consider
United States v. McCutchen, 04-3498 (August 17, 2005)
McCutchen pled guilty to knowingly possessing child pornography transported in interstate commerce by computer in violation of 18 U.S.C. § 2252(a)(4)(B), and was sentenced to 120 months imprisonment. He objected to the PSR’s proposed application of § 2252(b)(2), that he was subject to a mandatory minimum sentence of ten years because in 1984, he was charged in Kansas state court with two counts of indecent liberties with a child and ultimately pled guilty in 1985 to an amended count of sexual battery. He pleaded guilty pursuant to a written plea agreement, expressly permitting him to appeal the conclusion that he was subject to a mandatory minimum 10-year sentence.
HELD: (1) Interpretation of the Kansas state conviction and § 2252 involves interpretation of the federal statute and the court reviews this de novo. McCutchen’s arguments rely heavily on Taylor v. United States. This circuit has held that Taylor did not impose the categorical approach as a universal requirement of all sentencing enhancements. Taylor interpreted § 924(e), the language of which directs the courts to examine the elements of previous crimes. The categorical approach is inapplicable to other, differently-worded sentencing enhancement provisions. There is no basis to conclude that a sentencing court, under § 2252(b)(2), must focus exclusively on the elements of the prior state conviction in determining whether such conviction triggers application of the sentence enhancement provisions. Section 2252(b)(2) contains no explicit reference to any elements of the crime. And what is important is the conduct that gave rise to the conviction, not the elements of the offense. So the court rejected the narrow categorical approach to application of § 2252(b)(2).
(2) The court held that the enhancement did not violate McCutchen’s Fifth and Sixth Amendment rights. The determination of whether a conviction constitutes a violent felony is a question of law and not fact. The Sixth Amendment is not implicated so long as the district court follows Shepard. The district court referred to a statement made by McCutchen during the presentence investigation admitting that he engaged in sexual contact with a minor. Shepard does not specifically include PSRs among the documents it lists that a district court may consider. McCutchen did not challenge the truthfulness of the statement relied on by the district court, and the circuit concluded any error was harmless beyond a reasonable doubt (citing Chapman).
Drug Possession -Permissive Inference From Possess Truck in Which Drugs Were Hidden
Instructions - Permissive Inference
Booker - Not Call Into Question Law Regarding Permissive Inferences, Plain Error, Constitutional Error
United States v. Badilla, 03-2183 (August 17, 2005)
Badilla was convicted of possessing more than 100 kilograms of marijuana with intent to distribute. He was sentenced to 78 months imprisonment. On direct appeal, the court affirmed his conviction and sentence. Badilla petitioned the Supreme Court, which vacated the judgment and remanded in light of Booker. On direct appeal, Badilla had argued that the district court erred in giving the jury the permissive inference instruction. Based on the facts at trial, the court had concluded that the inference of Badilla’s knowledge of the hidden drugs was more likely than not to flow from the undisputed fact of his sole possession of the truck.
HELD: (1) Badilla argues that this previous analysis is no longer valid in light of Booker. Badilla’s argument is foreclosed by the Supreme Court’s decision in Ulster County, that makes clear that permissive inference instructions do not invade the jury’s fact finding function as long as there is a rational way the trier could make the connection permitted by the inference. There is simply nothing in Booker that calls into question the Court’s decision in Ulster County.
(2) The Booker claim is reviewed for plain error. The circuit proceeded on the assumption that constitutional Booker error occurred by the enhancement for obstruction of justice. Badilla does not satisfy either of the two alternative methods for demonstrating an effect on substantial rights identified in Dazey.
Motion for Judgment of Acquittal - Standard
Carjacking - Conditional Intent
Aid and Abet
United States v. Vallejos, 04-2216 (August 19, 2005)
Vallejos was found guilty of aiding and abetting car jacking and use of a firearm in connection with a crime of violence. The district court granted Vallejos’ motion for judgment of acquittal. The government appealed. The circuit reversed.
HELD: (1) The court reviews de novo the grant of a motion for judgment of acquittal. The court asks whether, taking the evidence - both direct and circumstantial, together with reasonable inferences to be drawn therefrom - in the light most favorable to the government, a reasonable jury could find guilt beyond a reasonable doubt.
(2) To prove car jacking in violation of 18 U.S.C. § 2119 and 18 U.S.C. § 2 (aid and abet), the government must prove the offense of car jacking was committed, Vallejos associated himself with it, participated in the car jacking as something he wished to bring about, and sought to make the car jacking successful. In order to be convicted of aiding and abetting, a defendant must share in the intent to commit the underlying offense. For conviction of car jacking, a defendant must take a motor vehicle by force or intimidation with intent to cause death or serious bodily harm. This intent requirement is satisfied when the government proves that, at the moment the defendant demanded or took control over the driver’s automobile, the defendant possessed the intent to seriously harm or kill the driver if necessary to steal a car. Holloway (S.Ct.). The intent necessary to commit a car jacking is a conditional intent. The district court determined that Vallejos possessed the conditional intent, and the circuit accepted this.
(3) To determine whether a defendant possesses the conditional intent necessary to support a car jacking conviction, the court considers the totality of the circumstances. The presence of a gun establishes that the defendant possessed the intent to seriously harm or kill the driver if necessary. The district court misconstrued two First Circuit cases. The First Circuit left open the question whether the government must show the defendant knew to a practical certainty of the principal’s intent or whether it is sufficient to show the defendant was simply “on notice” of such intent. Even if the circuit were to require such a showing, the standard was met here. Because the evidence establishes the requisite intent for aiding and abetting, the district court’s entry of judgment of acquittal was erroneous.
(4) Aiding and abetting in the use of a firearm during a crime of violence under 18 U.S.C. § 924(c) requires proof that the defendant knew his cohort used a firearm in the underlying crime, and knowingly and actively participated in that crime. The evidence at trial was sufficient.
Motion to Vacate Sentence (28 U.S.C. § 2255)
Procedural Default - Show Cause and Prejudice by Ineffective Appellate Counsel
First Amendment - Cross Burning
Instructions - Definition of Force, Threat of Force
Conspiracy - Venue, Statute of Limitations, Co-Conspirator Hearsay
United States v. Magleby, 03-4191 (August 19, 2005)
Magleby moved to vacate sentence under 28 U.S.C. § 2255. None of the claims raised had been raised in direct appeal. Magleby claimed ineffective assistance of appellate counsel.
HELD: (1) Virginia v. Black holds that, in order not to violate the First Amendment, a defendant may be convicted only if the cross burning constituted a threat of unlawful violence. Magleby missed his opportunity to raise this issue on direct appeal. To overcome procedural bar, he must show cause and prejudice for his failure to raise his jury-instruction challenge. For cause, he claims ineffective assistance of appellate counsel. The court examined the state of the law at the time of the direct appeal, and concluded that counsel had not been ineffective.
(2) Magleby complains the trial court defined force to include any form of compulsion or restraint, and instructed that the threat to intimidate does not require the possibility of physical force or physical harm. But reading the instructions as a whole, the circuit did not think that the failure of counsel on direct appeal to raise a First Amendment challenge fell below an objective standard of reasonableness.
(3) As to the instructions on § 241, the court agreed with Magleby that they are flawed. The flaw in the § 241 instructions is that they did not require the jury to find Magleby conspired to threaten the use of force. But it is not always objectively unreasonable for counsel to forego a challenge to an improper instruction. Counsel may believe the error is harmless.
(4) Magleby urges that the enhancement under § 844(h)(1) is unconstitutional as applied to him. He claims that the Supreme Court decision in R.A.V. v. City of St. Paul controls. In view of the doubtful success of the First Amendment challenge, the circuit held the failure to raise a challenge on direct appeal did not constitute ineffective assistance of counsel.
(5) Section 844(h)(1) proscribes the use of fire or an explosive to commit any felony.
(6) Conspiracy is often described as a continuing offense. Venue is proper wherever acts in furtherance of conspiracy occur, regardless of whether an overt act must be proved. Under Rule 801(d)(2)(E), a co-conspirator statement, made during the course and in furtherance of the conspiracy, is not hearsay. The statement need not further the attainment of the agreement; it is enough that it furthers an object of the agreement. For statute of limitations purposes, a non-overt-act conspiracy is not committed simply on the date the agreement is made, but is deemed to continue as long as its purposes have neither been abandoned nor accomplished. It was not obvious at the time of the direct appeal that counsel’s failure was unreasonable. Thus, failing to raise the inapplicability of § 844(h)(1) on direct appeal was not ineffective assistance of counsel.
Right of Confrontation - Constitutional Error, Harmless Error Review, “Reverse Rule 404(b) Evidence;” Rule 608 (Specific Instances of Conduct to Attack Credibility
Conspiracy -Elements
Possession with Intent to Distribute
United States v. Montelonco and McCalvin, 04-2215, 04-2241 (August 24, 2005)
Montelonco and McCalvin were charged with possession with intent to distribute more than 50 kilograms of marijuana.
During the trial the owner of the semi-truck, Gomez, testified for the government. The defendants sought to cross-examine him about an incident a few months before their arrest, during which marijuana was found in the sleeping compartment of a second semi-truck owned by Gomez. The district court ruled that Rules 404(b) and 608(b) precluded the defendant from eliciting such testimony.
HELD: (1) The court reviews de novo a Sixth Amendment confrontation rights claim. If the court finds error, it will reverse unless it determines the error is harmless beyond a reasonable doubt. The government bears the burden.
(2) A defendant’s right to cross-examine witnesses is guaranteed by the Sixth Amendment. The right to cross-examine witnesses is not without limits. A defendant is limited to presenting relevant evidence. Defendants argue the previous case was relevant. To determine what evidence is relevant, the court turns to the elements of the offense.
(3) To prove a charge of possession with intent to distribute, the government must show that the defendant possessed the controlled substance, knew he possessed it, and possessed it with intent to distribute. A conspiracy in violation of 21 U.S.C. § 846 consists of four elements: an agreement with another to violate the law, knowledge of the essential objectives of the conspiracy, knowing and voluntary involvement, and interdependence among the alleged co-conspirators.
(4) Rule 404(b) is typically used by prosecutors seeking to rely on a
criminal defendant’s prior bad acts as proof of motive, opportunity, intent, preparation, etc. Evidence of a witness’ other wrongs is admissible for defensive purposes if it tends, alone or with other evidence, to negate the defendant’s guilt of the crime charged against him. This is referred to as “reverse 404(b) evidence.” Admissibility depends on a straightforward balancing of the probative value against considerations of undue waste of time and confusion of the issues. The evidence the defendant sought to elicit on cross examination was relevant to their defense that they had no knowledge of the marijuana packed in the truck they were driving. The court noted the similarities between the crimes and their temporal proximity. The court also found the relevance of the proffered evidence was not substantially outweighed by the risk of confusing the jury. The defendants only sought to cross-examine one witness on this one discrete issue. Nor was there danger that the jury would be distracted. The district court erred in preventing the defendant from cross-examining Gomez based on Rule 404(b).
(5) The district court ruled that Rule 608(b) barred cross-examination of Gomez about the previous case. The defendants were not seeking to cross-examine Gomez in order to attack his character for truthfulness, but rather to negate the defendants’ guilt of the crime charged. Thus, Rule 608(b) does not bar cross-examination of Gomez and a district court erred again. This error undermined the protections afforded by the Sixth Amendment’s confrontation clause. A constitutional violation occurs when the defendant is prohibited from engaging in otherwise appropriate cross-examination.
(6) The question then is whether the error was harmless. The government bears the burden to demonstrate that the error was harmless beyond a reasonable doubt, and the government did not meet the Chapman test.
Admission of Evidence - Discretion, Hearsay, Harmless Error
Booker - Plain-Error Review, Constitutional Error, No Error Where Sentence Imposed Was Not Higher Than That Which Could Be Imposed Without Enhancement
United States v. Resendiz-Patino, 03-2191 (August 26, 2005)
(Jill M. Wichlens, FPD, Denver, Colorado)
Resendiz was convicted of possession with intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of cocaine. The statutory penalty was 5 to 40 years. He received a 121 month sentence.
At trial the case agent testified that one reason he did not submit the battery sheath for fingerprint analysis was that other agents had informed him in the past that often times the fingerprints on containers of controlled substances are smudged and unidentifiable. Resendiz argues that the agent’s testimony about what other agents told him about obtaining fingerprints was inadmissible hearsay, an abuse of discretion and reversible error.
HELD: (1) Hearsay, under Rule 801(c) is a statement, other than one made by the declarant while testifying at the trial or hearing, offered at evidence to prove the truth of the matter asserted, and is generally inadmissible.
(2) Evidentiary rulings are committed to the discretion of the trial court. Deference to a trial judges heightened on hearsay rulings. The court applies the harmless error standard. A harmless error is one that does not have a substantial influence on the outcome of the trial; nor does it leave one in grave doubt as to whether it had such effect. The court avoided deciding whether the testimony was hearsay, and simply held that the error was harmless.
(3) As to the Booker claim, review is for plain error. Resendiz stipulated at trial as the quantity of cocaine. The contested issue at trial was possession, not quantity. The stipulation at trial is an admission as to the quantity. Nor did the imposition of the obstruction of justice enhancement contravene Booker because, without the two-level enhancement for obstruction, the offense level would have been 30. Together with a criminal history category I, this would have resulted in a sentencing range of 97-121 months. Resendiz was sentenced to 121 months so there is no constitutional Booker error. (Yazzie). There was only non-constitutional Booker error. The court affirmed based on the fourth prong of plain error review.
Career Offender (§4B1,2) - Crime of Violence, DUI, Statutory Construction, Taylor Categorical Approach, Difference in Definitions (Compare 18 U.S.C. § 16 and §2L1.2, with §4B1.2)
United States v. Moore, 04-8091 (August 30, 2005)
(Robert R. Rogers, FPD, Cheyenne, Wyoming)
Moore pleaded guilty to felon in possession of a firearm. A presentence report was prepared. The author noted that Moore had a prior Nevada felony conviction for DUI. The author deemed this a crime of violence under §4B1.2. Moore objected.
HELD: (1) Whether a statute defines a crime of violence is a question of statutory construction reviewed de novo. The court is limited to examining the statutory elements of the crime. But if ambiguity exists under the statute, it will look to certain records of the prior proceeding. After a jury trial, the court may look to charging documents and jury instructions. When the conviction is based on a plea, the court can review the charging document, written plea agreement, transcript of the plea colloquy, and any explicit fact finding by the judge. A felony driving under the influence is a crime of violence under §4B1.2, as it is an offense involving conduct that presents a serious potential risk of physical injury to another under §4B1.2(a)(2). The decision is partly compelled by an earlier Tenth Circuit decision in Farnsworth, which is not distinguishable.
(2) Cases like the Supreme Court’s Leocal v. Ashcroft decision and the circuit’s Lucio-Lucio decision are distinguishable, because they arise under “crime of violence” definitions found in 18 U.S.C. § 16 and §2L1.2 respectively. The definition is different from that in §4B1.2. All the cases that hold that DUI is not a crime of violence require the use of physical force. In contrast, §4B1.2(a)(2) covers offenses involving only the “risk of physical injury.”
(3) The felony driving under the influence is a crime of violence under §4B1.2. But the Nevada statute encompasses, not only driving under the influence but also merely being in actual physical control of a vehicle. The statute is ambiguous in that it covers both violent and non-violent conduct. The record contains none of the documents permitted for review. Therefore, the circuit remanded for the district court to determine, based on a proper record, whether Moore was actually convicted of driving under the influence, and thus whether a crime of violence enhancement is warranted in this case.
Armed Career Criminal Act (Corresponding Guideline §4B1.4) – Burglary, Violent Felony, Taylor Categorical Approach
United States v. King, 04-2137 (August 31, 2005)
King pleaded guilty to felon in possession of a firearm, and was sentenced as an armed career criminal to 180 months imprisonment.
HELD: (1) The ACCA mandates that a defendant who violates § 922(g), and has three previous convictions for a violent felony, shall be imprisoned not less than 15 years. Section 4B1.4 of the guidelines defines those subject to enhancement under the ACCA as armed career criminals, and provides for an enhanced sentencing offense level and criminal history category. Burglary is one of the offenses included in the ACCA’s definition of “violent felony.” But the ACCA does not define burglary. The Supreme Court adopted a generic definition in Taylor. The Taylor court held that, in determining whether a given conviction meets the generic definition of burglary, the sentencing court is only permitted to consider the fact of conviction and the statutory definition of the prior offense under the “categorical approach.” But when a conviction results from a non-generic statute, the sentencing court can go beyond the mere fact of conviction, and consider the charging papers and jury instructions to determine whether the jury was actually required to find all the elements of generic burglary in order to convict. As to guilty pleas, the sentencing court can consider the charging document, terms of a plea agreement, or transcript of colloquy between the judge and the defendant, in which the factual basis for the plea was confirmed by the defendant.
(2) The court reviews de novo whether a prior conviction is a violent felony under the ACCA and §4B1.4. King was convicted of commercial burglary under a non-generic burglary statute. The district court properly considered the indictment and the plea agreement. Both of these documents establish that King was convicted of unlawfully entering a structure. Photographs are indisputably outside the bounds of permissible evidence to be considered by a sentencing court, but the error here is harmless.
(3) King asserts the district court violated his Sixth Amendment rights by finding facts related to his prior conviction. Review is for plain error. The prior conviction exception subsumes inquires into whether a given conviction constitutes a violent felony.