Practice Tip: Challenging “Crimes of Violence” and “Controlled Substance Offenses” under § 4B1.2 — Ideas about Inchoate Offenses

Figuring out how your client’s criminal history impacts their sentencing exposure is often no easy task. This is particularly so when you’re dealing with prior convictions that could be counted as “crimes of violence” or “controlled substance offenses” under the career offender guideline, § 4B1.2. Take a felon-in-possession sentencing, for example, where a single prior “crime of violence” will increase a client’s base offense level from 14 to 20—and potentially add years to his sentence.

That’s why it’s worth looking closely at every supposed “crime of violence” or “controlled substance offense,” and objecting to the characterization of that prior conviction if possible. Challenging priors might help your client now, or it might help later (read on for ideas about how to preserve arguments for appeal). Remember, a district court commits procedural error when it fails to properly calculate the correct Guidelines range. See, e.g., United States v. Lente, 647 F.3d 1021, 1030 (10th Cir. 2011).

Here are some arguments to consider if the prior conviction is for an inchoate offense such as conspiracy, aiding and abetting, or attempt.

THE BASICS

Is the prior conviction a categorical match for the generic offense?

When determining whether a particular conviction constitutes a “crime of violence” or “controlled substance offense” under § 4B1.2, courts apply the categorical approach and “look to the statute under which the defendant was convicted.” United States v Martinez-Cruz, 836 F.3d 1305, 1309 (10th Cir. 2016). That includes determining whether the elements of the generic, contemporary version of the relevant inchoate offense match up with the elements of the prior conviction. In Martinez-Cruz, for example, the Tenth Circuit found that the defendant’s prior conviction for federal conspiracy to possess with intent to distribute was not a “controlled substance offense” because—unlike generic conspiracy—that offense does not require proof of an “overt act.” See 836 F.3d at 1310-11.

To conduct this type of analysis, begin by taking a look at the underlying inchoate offense and figuring out what it requires the government to prove, and then compare it to similar offenses in other jurisdictions. In Colorado, for example, conspiracy is “unilateral,” which means it is “committed when the defendant agrees with another person to act in a prohibited manner; the second party can feign agreement.” People v Vecellio, 292 P.3d 1004, 1010 (Colo. Ct. App. 2012). But in other jurisdictions, conspiracy is “bilateral” and requires two co-conspirators to actually agree to commit a crime—you can’t “conspire” with an undercover law enforcement agent who is only pretending to agree. See, e.g., United States v Barboa, 777 F.2d 1420, 1422 (10th Cir. 1985); People v Foster, 457 N.E.2d 405, 415 (Ill. 1983).

If there seems to be a real split in authority, it’s worth digging deeper to suss out the majority approach to the question—i.e., what counts as the generic form of the crime. If your client’s prior is broader than that generic crime, then it is not a categorical match for the offense, and cannot be counted as a “crime of violence” or “controlled substance offense” under § 4B1.2.

FORECLOSED BUT MIGHT BE WORTH PRESERVING

There are a couple of arguments in this vein that are foreclosed by Tenth Circuit precedent, but may be worth raising for preservation.

  • Does Application Note 1 unlawfully expand the definition of “crime of violence” to include inchoate offenses?

The practice of counting inchoate offenses as “crimes of violence” or “controlled substance offenses” is not actually rooted in the text of § 4B1.2. Rather, it is based entirely on Application Note 1 to that guideline, which states that the definitions of “crime of violence” and “controlled substance offense” “include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.”

That raises the question: Since when can the Sentencing Commission expand the scope of a guideline through its commentary? Unlike the guidelines themselves, the commentary are not subject to the Administrative Procedures Act. And while the Sentencing Commission is free to interpret the guidelines through commentary, the expansion of the guideline to include inchoate offenses arguably exceeds that interpretive authority. At least, that’s what the D.C. Circuit held in United States v Winstead, 890 F.3d 1082 (2018), and what a panel of the Sixth Circuit seemed to believe in United States v Havis, 907 F.3d 439 (2018). The Havis panel was bound to affirm the sentence by prior circuit precedent—but were apparently able to persuade the entire court to take the issue en banc. See United States v. Havis, 921 F.3d 628 (2019) (granting petition for rehearing en banc).

The Tenth Circuit previously rejected a version of this argument in United States v Martinez, 602 F.3d 1166 (2010). However, the issue may nevertheless be worth raising, in light of the new (and growing?) circuit split on the issue.

  • Is Colorado attempt broader than generic attempt, insofar as it defines “substantial step” to mean any conduct that is strongly corroborative of the actor’s criminal purpose?

The Tenth Circuit has held that generic attempt liability requires “the commission of an act which constitutes a substantial step toward commission of that crime,” United States v Venzor-Granillo, 668 F.3d 1224, 1232 (10th Cir. 2012), a formulation that derives from the Model Penal Code. The Model Penal Code, in turn, states that “[c]onduct shall not be held to constitute a substantial step . . . unless it is strongly corroborative of the actor’s criminal purpose.” Model Penal Code § 5.01(2). In other words, it suggests that strongly corroborative conduct may constitute a substantial step—but not that it necessarily does.

By contrast, Colorado law provides that “[a] substantial step is any conduct . . . which is strongly corroborative of the firmness of the actor’s purpose to complete the offense.” Colo. Rev. Stat. § 18-2-101(1) (emphasis added). Under Colorado law, strong corroboration of criminal purpose is not merely necessary but rather sufficient to establish a substantial step, unlike the “unadulterated Model Penal Code approach.” People v Lehnert, 163 P.3d 1111, 1114 (Colo. 2007). In this way, Colorado attempt arguably sweeps more broadly than generic attempt.

The Tenth Circuit recently rejected this argument in United States v. Mendez, No. 18-1259 (10th Cir. 2019). This is another argument that may be worth raising for preservation purposes, in case the law changes in the future.

Takeaways

  • Look closely at any conviction that is classified as a “crime of violence” or “controlled substance offense.” It could make a big difference to your client’s sentence!
  • Be creative. The elements of the inchoate offenses—conspiracy, aiding and abetting, and attempt—vary across jurisdictions. Compare the elements of your client’s prior offense against those in other jurisdictions, and consider whether there’s a viable challenge under the categorical approach.
  • Focus on the text of the guideline. As the D.C. Circuit and several judges on the Sixth Circuit have noted, § 4B1.2 says nothing about inchoate offenses—and the Sentencing Commission lacks the authority to expand the reach of its guidelines through its commentary. While this argument is arguably foreclosed in the Tenth Circuit, it may be worth preserving in your client’s case.
  • Brush up on the categorical approach. This sentencing doctrine is hyper-technical and obscure—and it can produce real results for our clients. For a good overview of the categorical approach in general, take a look at United States v Titties, 852 F.3d 1257 (10th Cir. 2017). For an example of its use in the guidelines context, take a look at United States v Martinez-Cruz, 836 F.3d 1305 (10th Cir. 2016).

News You Can Use: Tenth Circuit Vacates Denial of Suppression Motion in a Published Decision (With Photos!)

In US v. Gaines, the Tenth Circuit vacated the denial of a motion to suppress in a published opinion, ruling: (1) the defendant was seized when police officers confronted him about reported drug sales in a parking lot; and (2) the subsequent discovery of an arrest warrant did not attenuate the connection between the seizure and the evidence. And they did so with style, buttressing their points with actual photographs of the alleged seizure in question. The opinion doesn’t break new legal ground, but it provides a nice review of some basic Fourth Amendment principles—and is a great example of creative appellate advocacy.

Background

Kansas City police received a 911 call reporting a man dressed in red had sold drugs in a local parking lot. Based on that call, uniformed officers driving two separate police cars pulled into the parking lot and parked behind a car occupied by a man wearing red clothing—Mr. Gaines. Police turned on their flashing roof lights and gestured for Mr. Gaines to get out of his car. To help established the scene, Mr. Gaines included the following image the Opening Brief:

Photo1

After Mr. Gaines got out of his car, one officer confronted him about the reported drug sale, observed an open container of alcohol, and smelled PCP. Officers told Mr. Gaines he would be detained. Mr. Gaines then grabbed a pouch from his car and fled the scene. He was soon captured. Meanwhile, police discovered cocaine, marijuana, PCP, drug paraphernalia, cash, and a handgun in his car.  Mr. Gaines unsuccessfully moved to suppress this evidence, and was convicted after trial. He appealed the denial of his motion to suppress.

Tenth Circuit Decision

The Tenth Circuit vacated the denial of the suppression motion in a published opinion, focusing on two issues: (1) whether there was a seizure; and (2) whether the relationship between the seizure and the evidence was attenuated.

  • There was a seizure

The Tenth Circuit found Mr. Gaines was seized because a reasonable person would not have felt free to leave the scene, and Mr. Gaines in fact yielded to the police’s show of authority. The opinion goes into a lot of detail about what specifically made the encounter a seizure, including that it involved uniformed police officers in marked police cars with flashing lights, where state law requires motorists to stop for flashing lights. The Court also emphasized one of the officers had gestured for Mr. Gaines to get out of his car before asking him an accusatory question.

  • There was no attenuation

The Tenth Circuit also rejected the government’s attempt to salvage the case through the attenuation doctrine. Under that doctrine, evidence does not need to be excluded if the Government can meet its heavy burden of showing that there is only a weak or attenuated connection to the asserted Fourth Amendment violation. When applying the attenuation doctrine, the court considers: (1) the temporal proximity between the alleged Fourth Amendment violation and the discovery of the evidence; (2) the presence or absence of intervening circumstances; and (3) the purpose and flagrancy of the police wrongdoing.

Specifically, the Tenth Circuit rejected the government’s arguments that either an outstanding arrest warrant or the subsequent development of probable cause established attenuation in this case. With respect to the warrant, the Tenth Circuit noted that executing the warrant and arresting Mr. Gaines would not automatically have allowed the search of his vehicle—citing the Court’s recent decision limiting officer authority to conduct warrantless searches of arrestees in US v. Knapp. The Court also observed that neither the warrant nor the observations arguably amounting to probable cause were discovered until after the challenged seizure. The Court therefore reasoned both the close temporal proximity and the absence of intervening circumstances weighed against application of the attenuation doctrine in this case.

Takeaways

  • Preservation matters. The standard of review is important, and this is another appellate win born of  preservation. Mr. Gaines moved before trial for an order suppressing all evidence derived from law enforcement’s initial seizure of him. The court held an evidentiary hearing on the motion, ultimately denying it. Mr. Gaines reasserted his motion towards the end of trial.  Notably, this belt and suspenders approach is commendable, but the issue was already preserved for appeal. Under  Federal Rule of Evidence 103(b):“[o]nce the court rules definitively on the record—either before or at trial—a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” 
  • Detail matters. Suppression motions often require fact-intensive inquiries, and as this case demonstrates, it’s useful to do everything you can to marshal the facts in your favor. Explain in detail exactly what happened: How many police officers were there? What were they wearing? What were they driving? And what exactly did they do when they encountered the defendant? And then those details to the relevant legal standard.
  • A picture is worth a thousand words. Check out the Opening Brief  in this appeal(filed by the Kansas FPD). Sometimes, it’s useful not only to tell the court why your motion should be granted, but also show them. If there’s an image that really captures the essence of your argument, consider including it in your brief so your point doesn’t get lost in the shuffle. Nobody’s suggesting you file a comic book, but when done right, this technique shakes up legal writing and can be quite effective.
  • Arrest authority is not the end of the story. As the Tenth Circuit’s in-depth attenuation analysis demonstrates, the fact that police could have lawfully arrested your client doesn’t necessarily excuse any Fourth Amendment violations. Pick apart any attenuation argument to see if the Government’s claim holds up: Would an arrest really have led to the discovery of the evidence, independent of the Fourth Amendment violation? And can the warrant really be considered an “intervening event” that weakens the causal connection between the Fourth Amendment violation and the evidence sought to be excluded?

Resource: USSC releases new report on Revocations Among Federal Offenders

Check out the latest in the United States Sentencing Commission’s ongoing study of the criminal history of federal offenders.  A new report — Revocations Among Federal Offenders — explores a subset of the Commission’s criminal history rules—those regarding the revocation of terms of probation, parole, supervised release, special parole, and mandatory release.  The report analyzes the prevalence of revocations among federal offenders and the nature of the revocations. The Commission’s other research reports on criminal history are also worth a read.

Key findings include:

  • Only a minority of offenders (35.0%) with criminal history points under the federal sentencing guidelines had at least one scored conviction with a revocation. Most often such offenders had only one such conviction.
  • For the minority of offenders who did have at least one scored conviction with a revocation, it often increased their criminal history score and resulting Criminal History Category.
  • Among offenders with at least one scored conviction in their criminal history, three-fifths (60.2%) received additional criminal history points, and just under a third (30.9%) received an increase in Criminal History Category. For those offenders who received an increase into a higher Criminal History Category, the impact was generally limited to one Criminal History Category.
  • The rate at which offenders had at least one scored conviction with a revocation varied significantly depending on the type of federal offender. Firearms offenders were the most likely (54.3%) and immigration offenders the least likely (20.9%) to have at least one scored conviction with a revocation. However, the impact of such convictions on their criminal history scores and Criminal History Categories varied much less. Among offenders with at least one such conviction, firearms offenders were the most often (66.2%) and immigration offenders least often (55.9%) to receive additional criminal history points. Among offenders who received additional criminal history points, those points resulted in a higher Criminal History Category most often for drug trafficking offenders (53.1%) and least often for firearms offenders (42.9%).

 

News You Can Use: 2018 Amendments to the Sentencing Guidelines, Effective 11/1/2018

The 2018 Amendment to the Sentencing Guidelines go into effect on November 1, 2018.  The National Sentencing Resource Counsel Project has prepared a helpful summary of the changes and also included relevant practice tips (noted as “Defender comments”). The SRC memo is available here: SRC Summary of 2018 Amendments to the Sentencing Guidelines.

Notable changes include amendments to:

(1) the drug guidelines for synthetic drugs, namely cathinones, cannabinoids, and fentanyl analogues;

(2) the illegal reentry guideline;

(3) the acceptance of responsibility guideline (now adding language to clarify that unsuccessful challenges to relevant conduct should not bar application of the acceptance reduction);

(4) the Commentary to §5C1.1 (now directing that courts “should consider imposing a sentence other than” imprisonment for nonviolent first offenders falling in Zones A and B);

(5) the Commentary to §4A1.3 (now providing a non-exhaustive list of factors a court may consider in determining whether and to what extent to depart upward based on tribal court convictions);

(6) the fraud guideline (now adding the 20th specific offense characteristic to §2B1.1 for defendants convicted of certain forms of social security fraud).

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Please make sure to look at the actual language of the Amendments  on the Commission’s website. And, recall that, for amendments that hurt defendants, ex post facto limitations apply, and the Guidelines Manual in effect on the date of the offense of conviction should apply if beneficial.

 

 

News You Can Use: Tenth Circuit issues first published decision on USSG § 2D1.1(b)(12) — the enhancement for maintaining a premises for drug distribution

In United States v. Murphy, No. 17-5118 (10th Cir. Aug. 24, 2018) the Tenth Circuit issued its first-ever published opinion on U.S.S.G. § 2D1.1(b)(12), the guideline adjustment for maintaining a premises for purposes of drug distribution.  Although the circuit affirmed the application of the adjustment, it made some useful law on how the adjustment applies when the premises at issue is the defendant’s own residence.  

Section 2D1.1(b)(12) provides for a two-level increase if “the defendant maintained a premises for the purpose of manufacturing or distributing a controlled substance.”   The commentary adds that while drug activity need not be the “sole purpose” of the premises, it must be a one of the “primary or principal uses” of the premises and not an “incidental or collateral” use.  § 2D1.1 cmt. n.17. 

In many cases, like this one, the premises at issue is the defendant’s own home.  And that situation raises the question of what it means for drug activity to be a “primary” use of a premises that is constantly used for legitimate activities too?  Mr. Murphy argued that drug activity must be “pervasive and persistent” to qualify for the adjustment.  Op. at 8.  The court rejected that test but ultimately adopted a very similar one: drug activity “must not only be frequent but also substantial.”  Op. at 10.

The court also set out a number of factors to consider: “(1) the frequency and number of drugs sales occurring at the home; (2) the quantities of drugs bought, sold, manufactured, or stored in the home; (3) whether drug proceeds, employees, customers, and tools of the drug trade (firearms, digital scales, laboratory equipment, and packaging materials) are present in the home, and (4) the significance of the premises to the drug venture.”

Takeaway: Mr. Murphy lost under this test because the evidence suggested that he had used his home to sell drugs for a long time.  But in general, this test should be hard to meet, and in most cases you can challenge the enhancement.

 

Practice Tip: How to Tackle Implicit Bias in the Courtroom

If you think implicit bias in the courtroom may be at issue in your next federal trial, consider filing a motion, asking the court for permission to do the following:

(1) Use a case-specific juror questionnaire that includes questions geared towards uncovering racial prejudice and implicit bias;

(2) Play this Western District of Washington juror orientation video on implicit bias to potential jurors;

(3) Give a preliminary instruction to potential jurors about implicit bias (also based on the W.D. Wash. materials); and

(4) Permit 30 minutes of attorney-led voir dire, including questions based on the What Would You Do?

To learn more, check out these law review articles on implicit bias in the courts. 

Unraveling Knot of Implicit Bias in Jury Selection (implicit bias)

Implicit Bias in the Courtroom (implicit bias)

215 Motion for case-specific jury questionnaire (implicit bias)

 

 

Practice Tip: Federal Civil Pro Se Litigation Clinic Opens in the District Of Colorado

For our criminal clients with civil issues, check this out:

The Colorado Bar Association opened a federal civil pro se clinic at the end of June. 

The clinic will provide assistance to litigants with federal civil cases involving civil rights, labor and employment law, contracts, personal injury, and other areas of federal and state law.

Examples of the clinic’s services include:

  • Legal advice and counseling
  • Assisting litigants with formulating claims prior to filing
  • Interpreting and explaining rules and procedures
  • Reviewing and explaining motions and court orders
  • Assisting with pleadings and correspondence

One caveat: the clinic will not provide in court representation.

This clinic is located at the Alfred Arraj Courthouse (first floor) and appointments can be made here: http://www.cobar.org/cofederalproseclinic or at 303-380-8786. Walk-ins are also allowed.