News You Can Use: SCOTUS refrains (for now) from reviving nondelegation doctrine in Gundy v. United States

By Perrin Tourangeau

Perrin is a summer intern at the Office of the Federal Public Defender for the Districts of Colorado and Wyoming.  She is a rising second-year law student at the University of Virginia School of Law.  She was born and raised in Denver, and hopes to return to Colorado after finishing law school to pursue a career in public defense.

 In  Gundy v United States, a plurality of the Supreme Court narrowly dodged a nondelegation conflict presented by a challenge to the Sex Offender Registration and Notification Act (SORNA). Justices Kagan, Ginsburg, Breyer, and Sotomayor concluded that a SORNA provision which gives the Attorney General the authority “to specify the applicability” of SORNA’s registration requirements to sex offenders who were convicted before its enactment (pre-Act offenders) was a “distinctly small-bore” legislative delegation and, thus, “easily passes [constitutional] muster.” Gundy v. United States, –S. Ct.–, 9, 2019 WL 2527473 (2019); see 34 U.S.C. § 20913(d).

The nondelegation doctrine prohibits Congress from transferring its legislative power to another federal branch. Id. at 2. However, Congress can “confer substantial discretion on executive agencies to implement and enforce the laws, so long as it “supplie[s] an intelligible principle to guide the delegee’s use of discretion.” Id. at 4. While the provision in question does not explicitly impose a limitation on the Attorney General’s discretion regarding the application of SORNA to pre-Act offenders, based on the statute’s declaration of purpose, definition of “sex offender,” and legislative history, the plurality interpreted it to confine “the Attorney General’s discretion … only to considering and addressing feasibility issues” of applying the statute to pre-Act offenders, rather than allowing the Attorney General to decide whether or not to apply the statute to pre-Act offenders in general. Id.at 4-7. Therefore, the Court held that, because SORNA requires “the Attorney general [to] apply SORNA’s registration requirements as soon as feasible to offenders convicted before the enactment,” the statute provides an intelligible principle limiting the Attorney General’s authority and, thus, does not violate the nondelegation doctrine. Id. at 2.

The plurality expressed its hesitation to use the nondelegation doctrine to invalidate the provision, stating that “if SORNA’s delegation is unconstitutional, then most of the Government is unconstitutional,” and highlighting Congress’s need to delegate authority “under broad general directives.” Id. at 9 (quoting Mistretta v. United States, 488 U.S. 361, 372 (1989)). As noted on SCOTUS Blog, “[t]he lineup in Gundy shows that there are four justices … who are still willing to use the tools of statutory interpretation to fend off the nondelegation problem.” Mila Sohoni, Opinion analysis: Court refuses to resurrect nondelegation doctrine, SCOTUSBlog (June 20, 2019).

Justice Alito concurred in the judgment only, stating that “[i]f a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort. But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment.” Id. at 10 (Alito, J., concurring in the judgment).

Justice Gorsuch, joined by Justice Thomas and the Chief Justice, dissented, taking issue with both the plurality’s interpretation of SORNA and its nondelegation analysis. Id. (Gorsuch, J., dissenting). Looking to contradictory representations about the provision’s meaning made by the government in previous cases and the lack of an explicit standard limiting the delegation in the statute’s text, the dissent concluded that SORNA’s delegation impermissibly authorizes “the nation’s chief law enforcement officer to write the criminal laws he is charged with enforcing” and provides no meaningful standard by which to limit that delegation. Id. at 22-23. Justice Gorsuch stated that in a previous case, “the government told this Court that SORNA supplies no standards regulating the Attorney General’s treatment of pre-Act offenders. This Court agreed, and everyone proceeded with eyes open about the potential constitutional consequences; in fact, the dissent expressly warned that adopting such a broad construction … would yield the separation-of-powers challenge we face today.” Id. at 25. Although Justice Gorsuch described the plurality’s feasibility standard as “imaginary,” he noted that even were it explicitly written into the section at issue, it is too ambiguous to actually cabin the executive’s exercise of the statutory delegation. Id. at 23.

The dissent proposes a more potent (or, as the dissent suggests, more constitutionally faithful) version of the nondelegation doctrine. Justice Gorsuch characterizes the intelligible principle doctrine as “another way to describe the traditional rule that Congress may leave the executive the responsibility to find facts and fill up details.” Id. at 17. According to the dissent, three kinds of statutory delegations “are constitutionally permissible: (1) legislation in which Congress makes the important policy decisions but leaves it to the executive to ‘fill up the details’; (2) legislation in which Congress prescribes the rule but leaves it to the executive to conduct fact-finding when the rule is applied; and (3) legislation that allows the executive broad discretionary power concerning matters that also fall within a zone of executive power.” Sohoni, supra. To the dissent, the nondelegation doctrine is a vital constitutional protection because it aids in the preservation of individual liberties, promotes legislative deliberation, provides stability, predictability, and fair notice to individuals, and increases political accountability. Gundy, –S. Ct. at 14(Gorsuch, J., dissenting).

Responding to the plurality’s concerns about the nondelegation doctrine’s potential to destabilize the entire modern executive branch, Justice Gorsuch argued that enforcing the doctrine does not “spell doom for what some call the ‘administrative state.’” Id. at 22. He frames the doctrine as merely a “procedural protection” and, thus, noted that it “does not prohibit any particular policy outcome, [nor does it] dictate any conclusion about the proper size and scope of government. Id. This construction of the doctrine hardly leaves Congress without tools to achieve its legislative objectives: according to Justice Gorsuch, Congress permissibly “may … authorize executive branch officials to fill in even a large number of details, to find facts that trigger the generally applicable rule of conduct specified in a statute, or to exercise non-legislative powers.” Id.

Justice Kavanaugh did not participate in the decision.

Takeaways

  • SORNA applies to pre-Act offenders. This much is obvious: those convicted of a qualifying sex offense before SORNA’s enactment (pre-Act offenders) must comply with SORNA’s registration requirements as dictated by the Attorney General pursuant to 34 U.S.C. § 20913(d) and 75 Fed. Reg. 81850. Those pre-Act offenders who knowingly fail to register under the Act may be imprisoned for up to ten years. 18 U.S.C. § 2250(a).
  • Be on the lookout for potential challenges to legislative delegations in criminal statutes. Four justices explicitly indicated in Gundy that they are “willing to reconsider the nondelegation doctrine from the ground up,” and Justice Kavanaugh could provide a fifth vote to revitalize the doctrine in future cases. Sohoni, supra. The Gundy dissent is particularly concerned with statutory delegations that combine “lawmaking and law enforcement responsibilities … in the same hands” as well as those that give the executive branch the power to “make all the important policy decisions” without providing a meaningful standard “court[s] might later use to judge whether [the executive] exceeded the bounds of the authority,” like the ambiguous feasibility standard that the majority read into34 U.S.C. § 20913(d). Gundy, –S. Ct. at 23 (Gorsuch, J., dissenting). However, some commentators doubt the potency of this potential revival of the nondelegation doctrine, arguing that the “intelligible principle” doctrine is too “mushy” to be applied consistently by the Court, Rick Hills, Gundy, Constitutional Coalitions, and the Credible Commitment Problem of the Constitutional Doctrine, PrawfsBlawg (June 22, 2019), and that if the Court was unwilling to invalidate a “low-stakes” statute like that in Gundy, it is highly unlikely to invalidate future laws as the stakes increase. Adrian Vermeule, Never Jam Today, Notice & Comment (June 20, 2019).
  • Preserve, preserve, preserve. Given Justice Alito’s concurrence and the fact that Justice Kavanaugh did not participate in the Gundy decision, lawyers should continue to preserve the nondelegation argument regarding U.S.C. § 20913(d) in SORNA cases involving pre-Act offenders. The Gundy concurrence and dissent suggest that future challenges to this provision might be worthwhile, and we may even see rehearing requests pr more certiorari petitions because Justice Kavanaugh did not weigh in on the decision.

 

News You Can Use: Tenth Circuit holds supervised release Standard Condition 12 is improper delegation of authority to probation – United States v. Cabral

Standard Condition 12 requires people on supervised release to notify third parties about the “risks” they pose, at the discretion of their probation officer. See U.S.S.G. § 5D1.3(c)(12). Last year, in United States v Hull, 893 F.3d 1221 (10th Cir. 2018), the Tenth Circuit upheld this condition against vagueness and improper delegation challenges in a case where the judge specified that the relevant “risks” were those related to the defendant’s prior convictions for bank robbery and home invasion.

Recently, in United States v Cabral, —F.3d—, 2019 WL 2416950 (10th Cir. 2019), the Tenth Circuit vacated Standard Condition 12 in a case where the judge refused to limit its scope in any way. The Tenth Circuit punted on Mr. Cabral’s vagueness challenge, which it found prudentially unripe, but found that the unbounded condition was an improper delegation of authority to the probation officer.

The law here is well settled. Article III gives only judges the authority to impose punishment, and the judiciary may not delegate that authority to a non-judicial probation officer. Mr. Cabral argued on appeal that the risk-notification condition improperly delegates to probation the power to define the term “risk”—and thus “to determine what conduct the condition proscribes, and when it will be enforced”—without meaningful guidance from the district court. The circuit agreed: “By tasking Mr. Cabral’s probation officer with determining whether Mr. Cabral poses a “risk” to others in any facet of his life and requiring Mr. Cabral to comply with any order to notify someone of any such risk, the district court delegated broad decision-making authority to the probation officer that could implicate a variety of liberty interests.” 2019 WL 2416950, at *7.

Notably, the law on interpreting these open-ended supervised release conditions is usually pretty bad for us on appeal, because the Tenth Circuit interprets conditions “such that they comply with the law.” But as you’ll see in the opinion, it was impossible to apply this general rule here, because of what the district court said at sentencing. (For example, “I don’t care if I can’t say what the risk is now.”) As Judge McHugh wrote: “the district court here emphatically opened the door to boundless scenarios implicating various liberty interests,” from the right to familial association to the right to engage in a lawful occupation. 2019 WL 2416950, at *7-8.

Also noteworthy is Judge McHugh’s apparent sensitivity to the hardship indigent clients face in pursuing modification of supervised release, because there is no right to appointed counsel at those proceedings: “the prospect that Mr. Cabral would otherwise have to retain private counsel or proceed pro se to challenge the condition further supports our immediate review of his challenge, with the benefit (to him and to us) of counsel’s briefing.”

Takeaways

  • Seek clarification of Standard Condition 12. After Cabral, it’s clear that Standard Condition 12 requires some kind of limitation—it can’t be read to allow probation officers to require disclosure of literally any risk. So ask the sentencing court to be clear about what risks your client will be required to disclose, or else propose a limit of your own. It may, for instance, make sense to tie the relevant risks directly to your client’s specific criminal history, as Judge Brimmer did in Hull.
  • Watch out for improper delegations to the probation office. This opinion serves as a good reminder that probation officers are not judges, and their discretion should be limited to deciding “ministerial” questions—like what time to show up for an appointment—and not foundational ones—like what conduct is subject to a condition at all.
  • Keep an eye on standard conditions. Generally speaking, the Tenth Circuit is quite deferential when it comes to the standard conditions of supervised release set out in the Sentencing Guidelines. But as Cabral demonstrates, there are limits to that deference, and you shouldn’t assume that an otherwise overbroad, over-delegating condition is OK just because it’s a standard one.
  • Try to resolve questions about conditions of supervised release at sentencing. It may be tempting to put off resolving questions about the scope of your client’s conditions of supervised release until, well, he is actually on supervised release. But as Cabral reminds us, that strategy may put your client in a tough spot: After all, there’s no right to counsel to pursue modifications of supervised release. So if your client is facing a problematic condition of supervised release, see if you can take care of it at sentencing.

News You Can Use: Tenth Circuit’s decision in United States v. Aragon – a Narrow Drug Quantity Ruling That Raises Broad Questions

In United States v. Aragon, 922 F.3d 1102 (10th Cir. 2019), the Tenth Circuit issued an interesting but fact-specific holding that the district court clearly erred in determining the applicable drug quantity. At the same time, the opinions in Aragon raised without resolving fundamental questions about the role of the court and counsel in sentencing proceedings.  Read on about the opinion, and be sure to check out the takeaways at the bottom of the post.

 I.           The Drug Quantity Issue

Leonard Aragon pleaded guilty to possessing with intent to distribute controlled substances. The charges were based on two controlled buys in which Mr. Aragon sold a total of 71.9 grams of heroin to a confidential informant. The drug quantity issue arose from additional suspected drugs recovered from Mr. Aragon’s car at the time of his later arrest. The district court found that the suspected drugs amounted to 11 additional grams of heroin and 28.5 grams of methamphetamine. The district court’s findings increased Mr. Aragon’s offense level by 4 and produced a higher guidelines range.

On appeal, Mr. Aragon maintained that the district court clearly erred by determining that the suspected heroin weighed 11 grams and that the suspected methamphetamine weighed 28.5 grams. The record revealed only the “packaged weights” of the suspected drugs, not the “net weights” of the drugs themselves. The district court had attempted to derive the net weights by “deducting half a gram for the packaging” of each package. Slip op. at 7. It was this move that Mr. Aragon attacked as clearly erroneous. Mr. Aragon pointed out there was no evidence about the weight of the packaging and posited that the available photographs made it “impossible to tell” how much of the packaged weight was attributable to the packaging itself. Id. at 14.

 The Tenth Circuit agreed. The Court characterized “the district court’s half-a-gram figure” as “guesswork” and ruled that drug quantity findings cannot be sustained on such a basis. Id. The Tenth Circuit went on to reject a harmless-error defense interposed by the Government. The Government argued that Mr. Aragon’s offense level would have remained the same “even if the packaging of the heroin and methamphetamine found in his car weighed 11 grams each.” Id. at 15. The Tenth Circuit, however, took note of cases in which the weight attributed to drug packaging “was dramatic,” including a prior Tenth Circuit case in which the packaged weight of heroin was 28.2 grams but the net weight was only 3.8 grams. Id. Given that the photographs in the case were ambiguous, the Tenth Circuit found itself unable to conclude that the district court’s error did not affect Mr. Aragon’s offense level. Id. at 16.

The Tenth Circuit vacated Mr. Aragon’s sentence and remanded for resentencing. Id. at 19.

 II.          The Roles of District Courts and Counsel at Sentencing

 Although the Tenth Circuit vacated Mr. Aragon’s sentence on narrow grounds, both the Court’s opinion and a concurrence by Judge Holmes broached broader issues.

 A.          What are the limits on a district court’s authority to act sua sponte at sentencing?

Before ruling in favor of Mr. Aragon on the drug quantity issue, the Tenth Circuit addressed and rejected Mr. Aragon’s argument that the district court had abused its discretion by acting sua sponte at sentencing.

 This issue arose because it was the sentencing judge, not the Government, who elicited the evidence regarding what was found in Mr. Aragon’s car. The parties had signed a plea agreement stating that the appropriate guidelines range was one that did not add levels based on what was found in Mr. Aragon’s car. Id. at 2-4. The Government had agreed with that calculation because, unlike the heroin from the controlled buys, the suspected drugs found in Mr. Aragon’s car were neither field tested nor sent to a laboratory for formal testing. Id. at 6. No such testing was pursued “because Mr. Aragon had quickly indicated his intent to resolve the case, which prompted the government to cease its investigation.” Id. The sentencing judge, however, decided to collect and present its own evidence regarding what was found in Mr. Aragon’s car. The judge directed the Government to provide the court with “all documents and reports relating to Mr. Aragon’s arrest and the discovery of [suspected] drugs in his car,” a police report relating to phone calls that Mr. Aragon had made from jail, and a report regarding the contents of Mr. Aragon’s cell phone. Id. at 4. In addition, the judge directed the Government to “have the case agent present at sentencing.” Id. Over Mr. Aragon’s objection, the district court relied on the evidence that it had gathered to increase Mr. Aragon’s guidelines range.

Mr. Aragon maintained the district court’s sua sponte actions were improper, but the Tenth Circuit disagreed. The Court reaffirmed prior precedent that a district court’s power to gather and elicit its own evidence is incident to its obligation to determine the facts relevant facts at sentencing. Id. at 8. Still, the Court recognized that this power is not absolute. While ultimately rejecting Mr. Aragon’s argument, the Court did agree with Mr. Aragon on two preliminary points: (1) that a sentencing judge who gathers and elicits his own evidence “must take care not to create the appearance that he or she is less than totally impartial” and (2) that a district court’s power to gather and elicit its own evidence is “subject to abuse-of-discretion review.” Id. at 8, 10. The Court simply held that Mr. Aragon had not established an abuse of discretion on the particular facts of his case. Id. at 8-12.

The Aragon opinion ultimately sheds little broader light on when a district court’s sua sponte conduct at sentencing may go too far. The decision says that sua sponte actions may be overturned for an abuse of discretion. The opinion does not explain which factors are material to assessing whether a district court has abused its discretion, though it did deem significant that the judge had “made multiple statements to Mr. Aragon reassuring him that the manner in which the additional evidence was uncovered would not impact his sentence.” Id. at 11.

 B.          Must counsel disclose to the district court all information that “reasonably could be deemed” to affect the guidelines range?

A concurring opinion by Judge Holmes took aim at an ethical question that had been raised by the sentencing judge. In explaining his decision to gather and elicit evidence sua sponte, the district judge expressed the view that counsel for the parties had intentionally concealed the fact that contraband had been found in Mr. Aragon’s car and thereby acted improperly. Id. at 20 (Holmes, J., concurring). The principal opinion, however, described how defense counsel had disclosed at the change-of-plea hearing that contraband that might have increased Mr. Aragon’s offense level had been found in his car when he was arrested, and the Court assumed without deciding that the district court clearly erred in finding that the parties had acted deceptively. Id. at 2-3, 8-9 (principal opinion). Judge Holmes deemed himself “content with that assumption” and “d[id] not opine on the propriety of counsel’s actions in this case.” Id. at 20, 26 (Holmes, J., concurring). Nevertheless, speaking “hypothetically,” Judge Holmes wrote separately to offer his view that it would violate counsel’s duty of candor to the tribunal to “agree to intentionally withhold from the court’s consideration evidence that reasonably could be deemed to qualify as relevant conduct.” Id. at 24. Neither of the other two judges on the panel joined Judge Holmes’s concurrence.

 TAKEAWAYS

  •  Packaged Weights, Gross Weights, and Net Weights (Oh My?)

Be on guard for drug quantities that are reported as “packaged weights” or (equivalently) as “gross weights” — that is, the combined weight of drugs and their packaging. Likewise, be skeptical if quantities reported do not explicitly specify that they are “net weights” — that is, the weight of the drugs themselves, not including any packaging. Under U.S.S.G. § 2D1.1 n.1, the applicable drug quantity does not include packaging or other material “that must be separated from the controlled substance before the controlled substance can be used.” And the Aragon opinion highlights cases in which the difference between gross weight and net weight was large.

  •  No Guessing Allowed.

 Aragon is also useful because it reemphasizes the more broadly applicable principle that a drug quantity calculation must be grounded in something more than guesswork. Consider an objection on these grounds any time the Government’s or Probation’s drug quantity calculation is based on ambiguous or contradictory information.

  •  The Judge’s Authority to Investigate

 Aragon confirms that, as a general matter, a judge may gather and elicit evidence in connection with sentencing. Defense counsel should anticipate and, in appropriate cases prepare for, this possibility.

 

 

 

 

 

 

 

 

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 Holds Colorado Attempted Robbery Is a Crime of Violence for Purposes of USSG 4B1.2(a)

When it comes to calculating your client’s advisory guidelines range, prior convictions that are counted as “crimes of violence” under USSG § 4B1.2 are bad news.

Section 4B1.2 doesn’t define what constitutes attempt.  Last week, the Tenth Circuit issued a published decision in United States v. Mendez, holding attempted robbery as defined in Colorado law qualifies as a crime of violence under the guidelines.

Be on the lookout for another post soon with more analysis about this ever-changing area of law and preservation arguments that might be worth making in your cases.

 

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: SCOTUS decides more ACCA predicate cases (Part 1)

The Supreme Court recently decided the consolidated cases of United States v. Stitt (and United States v. Sims), No. 17-765, 2018 WL 6439818  (U.S. Dec. 10, 2018). The opinion holds that burglary of a vehicle adapted for overnight accommodation of persons is a generic burglary for purposes of the Armed Career Criminal Act.

The Stitt opinion is another in a line of cases that have asked whether certain burglary convictions qualify as predicate offenses under the Armed Career Criminal Act (ACCA). The defendants in these cases, Victor J. Stitt and Jason Daniel Sims, were each convicted in federal court of unlawfully possessing a firearm, in violation of 18 U. S. C. §922(g)(1). The sentencing judge in each case imposed the mandatory minimum 15-year prison term that the ACCA requires for §922(g)(1) offenders who have at least three previous convictions for certain “violent” or drug-related felonies, §924(e)(1), based in part on burglary convictions.

The Supreme Court has previously stated that burglary of a vehicle is not a valid ACCA predicate. But the narrower question in this case was whether statutes that cover burglaries of vehicles that have been adapted or customarily used for overnight accommodation should qualify as ACCA predicates because they fall within the “generic” definition of burglary.

The categorical approach

Recall that the categorical approach first adopted Taylor v. United States, 495 U.S. 575 (1990), requires courts to evaluate a prior state conviction by reference to the elements of the state offense, rather than to the defendant’s conduct. In other words, you can’t look at the underlying facts of the prior conviction to figure out whether the predicate counts. A prior state burglary conviction does not qualify under the ACCA where “the elements of [the relevant state statute] are broader than those of generic burglary.” Mathis v. United States, 136 S.Ct. 2243 (2016). Burglary statutes that cover vehicles as one possible means of committing the crime are therefore excluded from being predicate ACCA offenses because the statutes are overbroad. See, e.g., Mathis, 136 S. Ct. at 2250. (holding that Iowa statute covering burglary of “any building, structure, [or] land, water, or air vehicle” was overbroad and indivisible and thus did not qualify as an ACCA predicate).

The nitty gritty

Stitt’s prior convictions were for violations of a Tennessee statute that defines “[a]ggravated burglary” as “burglary of a habitation.” Tenn. Code Ann. § 39–14–403(a) (1997). It further defines “[h]abitation” to include: (1) “any structure, including … mobile homes, trailers, and tents, which is designed or adapted for the overnight accommodation of persons,” and (2) any “self-propelled vehicle that is designed or adapted for the overnight accommodation of persons and is actually occupied at the time of initial entry by the defendant.” §§ 39–14–401(1)(A), (B) (emphasis added).

Similarly, Sims’ prior convictions were for violations of an Arkansas statute that prohibits burglary of a “residential occupiable structure.” Ark. Code Ann. § 5–39–201(a)(1) (Michie 1997). The statute defines “[r]esidential occupiable structure” to include:  “a vehicle, building, or other structure: (A) [w]here any person lives; or (B) [w]hich is customarily used for overnight accommodation of persons whether or not a person is actually present.” § 5–39–101(1) (emphasis added).

In both cases, the District Courts found the state statutory crimes fell within the scope of the word “burglary” in the Armed Career Criminal Act and consequently imposed that statute’s mandatory sentence enhancement. In both cases, the relevant Court of Appeals held that the statutory crimes did not fall within the scope of the word “burglary,” vacated the sentence, and remanded for resentencing. The Government sought certiorari in both cases in part because of a circuit split that included an old Tenth Circuit case, United States v. Spring, 80 F.3d 1450, 1462 (10th Cir. 1996), which held that such burglary convictions would qualify as ACCA predicates.

The upshot

The Supreme Court surveyed state statutes from 1986 and earlier and determined that “a majority of state burglary statutes covered vehicles adapted or customarily used for lodging.” Stitt, 2018 WL 6439818, at *4. As a result, such burglary convictions were included within the definition of “generic burglary.” In so doing, the Supreme Court reversed the decisions below of the Sixth and Eighth Circuits, and also abrogated contrary precedent in the Fourth and Ninth Circuits. See United States v. White, 836 F.3d 437, 446 (4th Cir. 2016); United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc). Justice Breyer wrote the opinion for a unanimous Court.

Takeaways

  • Burglary convictions/statutes that cover vehicles plain and simple are still out, but statutes that cover vehicles “adapted for overnight accommodation of persons” will now qualify as ACCA predicates—as long as they are not overbroad and indivisible in some other way.
  • For a refresher on the categorical approach, see Mathis v. United States, 136 S.Ct. 2243 (2016), available here.
  • Remember: burglary convictions are NEVER crimes of violence under the career offender provisions of the Guidelines (this case affects only potential ACCA clients).