Thursday, March 12, 2009

Good News from the Categorical-Approach Front

Nice result in United States v. Medina-Almaguer, No. 07–4254 (6th Cir. Mar. 12, 2009) (panel of Judges Keith, Sutton, and Griffin). Defendant sentenced to 27 months for illegal reentry after deportation. Got the 16-level bump for prior drug-trafficking offense. Guideline range was 37 to 46 months. Downward variance to 27 months because predicate offense for bump was nearly 18 years old and defendant had stayed out of trouble for the most part after that prior offense.

Issue: was defendant’s 1989 California conviction a drug-trafficking conviction to justify the bump.

California Health and Safety Code Section 11352(a) (1989) makes it a crime to transport, import, sell, furnish, administer, or give away a controlled substance or to offer to do those things. This broad reach means the statute covers more than just the conduct that makes an offense a drug-trafficking offense. The district court relied on a transcript of the preliminary examination in that earlier case to determine that the offense qualified as a drug-trafficking offense. Transcript showed that the defendant had been arrested after selling heroin to an undercover agent.

Appellate-court conclusions: court documents reviewed to determine nature of prior offense must establish that the defendant "necessarily admitted" the elements of a predicate offense when he/she pleaded guilty. Court assumed for the sake of argument that a district court may consult a preliminary-examination transcript. But panel found that the transcript at issue did not demonstrate that the defendant necessarily admitted the elements of a drug-trafficking offense.

Key points:
—Preliminary examination involves gateway step in criminal process—determining whether probable cause exists to detain suspect.
—It takes place before the individual is charged.
—Purpose is to determine if there is probable cause to believe the individual committed a felony.
—The transcript may show that the magistrate properly concluded there was sufficient cause to think the defendant violated Section 11352(a). But the defendant did not admit the conduct.
—Transcript does not show that he necessarily admitted the conduct when he later pleaded guilty.
—Defendant did not testify at hearing. His attorney did not concede anything on his behalf.
—Panel did not determine whether the transcript is even an appropriate source because this transcript is not helpful even if it could be reviewed.
—It is clear that "Shepard requires more than probable inferences and likely implications." Need judicial record.

Cases:
Court distinguishes United States v. Jones, 453 F.3d 777, 780 (6th Cir. 2006). Jones allows limited use of an affidavit of complaint. May be used only for purpose of determining whether prior offense constitutes a single criminal episode or multiple episodes. Court looked to United States v. Wells, 473 F.3d 640, 647 n.5 (6th Cir. 2007), for clarification. Relates to ACCA. Jones did not address whether a sentencing court may use an affidavit of complaint to determine the conduct the defendant necessarily admitted when he or she pleaded guilty.
Remanded for resentencing.

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