Friday, January 25, 2013

Career-Offender Discussion: Misdemeanors, Shepard Documents

Not a big week for decisions in the 6th Cir. 

But here’s a little career-offender discussion. . . .

United States v. Apodaca, Nos. 11—4342 & 11—4378 (6th Cir. Jan. 23, 2013) (unpublished).

The first defendant challenged the district court’s finding that he was a career offender.  He argued that his California conviction for assault with a deadly weapon other than a firearm was not a felony.

The sole question on appeal for this defendant was whether the California conviction for assault with a deadly weapon other than a firearm was a prior felony conviction for career-offender purposes.

The Court of Appeals concluded it was such a conviction.
The California conviction fell under California Penal Code section 245(a)(1): “[a]ny person who commits an assault upon the person of another with a deadly weapon other than a firearm . . . shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year.”

When a sentencing court sentences a defendant in accordance with the last option, the offense is treated as a misdemeanor under California law.  Such convictions are termed “wobbler” offenses because sentencing judges have the option of making the offense a felony or a misdemeanor, depending on the sentence imposed.

The defendant argued that his conviction was only a misdemeanor because the court chose to impose a sentence of 365 days in county jail, which made the conviction a misdemeanor “for all purposes.”  But the Court of Appeals found otherwise. 

Under the Guidelines, a “prior felony conviction” is a prior adult conviction for an offense punishable by a term greater than one year, regardless of whether the offense is specifically designated as a felony and regardless of the actual sentence imposed.  The Court of Appeals looked to guideline section 4B1.2’s application note 1. So the designation of the offense under California law and the actual sentence imposed were irrelevant. The sole question was whether the California offense was punishable by a term exceeding one year.

The defendant tried arguing that the California statute effectively encompassed two offenses: one that was punishable by a longer term in state prison and one punishable by county jail for a term “not exceeding one year.”  But the Court of Appeals found that the statute encompassed a single offense: “assault with a deadly weapon . . . other than a firearm.” And that single offense “shall be punished by imprisonment . . . for two, three or four years or in a county jail for not exceeding one year.” The statute provided for multiple punishment options—not multiple offense options. The single offense was punishable by a term exceeding one year, so it counts for career-offender purposes.

Even if the Court were to look more closely at the intent of California law, the prior offense would not be considered a misdemeanor. The Court found that the defendant was not sentenced to a misdemeanor sentence; he was sentenced to 365 days in county jail, suspended, credit for 144 days, and five years of probation. Under California law, when a court suspends a sentence and orders probation, there is a conviction, but no judgment has been rendered. The offense here would be regarded as a felony until judgment is entered.

The defendant did not argue that a judgment was actually rendered, so the prior conviction would not be considered a misdemeanor even in California. The district court did not err in finding that the defendant was a career offender.

For the second defendant, the issue was one of Shepard sources and the categorical approach. The government acknowledged that the sources it produced regarding the prior drug offense were not Shepard sources, but it argued that it did not have to provide Shepard documents because the defendant did not challenge the fact of the prior conviction and the statutory definition was adequate to determine the nature of the offense.
This prior conviction was for a violation of a statute that provided that “every person who possesses for sale any marijuana, except as otherwise provided by law, shall be punished” in a “county jail for 16 months, or two or three years,” under the California Health and Safety Code sections 11359 and 1170(h).

There was no other way to violate the statute. A conviction under that provision is a controlled-substance offense under section 4B1.1, as it is an offense “punishable by imprisonment for a term exceeding one year” that prohibits “the possession of a controlled substance . . . with intent to manufacture, import, export, distribute, or dispense.” Such a conviction for possession of marijuana for sale fits this definition.

The defendant did not challenge the fact of the offense or the specific convicting statute. He argued only that the government did not prove its case. The government presented a case summary from California, case “minutes” from California, a criminal history report from Los Angeles County, and an indictment to prove the nature of the prior conviction. These were the only documents regarding the offense and they showed that the defendant was charged with and pleaded nolo contendre to a violation of California HSC 11359. The Court of Appeals concluded that the district court did not err in relying on these documents to show the fact of the prior conviction.

As to the last challenge that the district court did not understand its sentencing discretion, the defendant waived his appellate rights.

Friday, January 18, 2013

Happy Friday!

Read United States v. Simon . Because, really, how often do we get to read about a defendant attempting to defect to Canada?

Wednesday, January 16, 2013

Relevant conduct must be illegal conduct

The Sixth Circuit's ruling yesterday in United States v. Ernest Catchings, 11-6303/6305 (found here) might seem obvious: in order to be "relevant conduct" for the purposes of calculating guidelines, said conduct must "amount to an offense for which a criminal defendant could potentially be incarcerated." Mr. Catchings had been prosecuted for using former client's identifying information to obtain credit cards in their names. In calculating loss, the PSR included money charged to credit cards Mr. Catchings had associated with a business he and another person had together. Those charges pushed Mr. Catchings into a higher loss bracket.

The business partner acknowledged they had obtained the credit cards together, for the business, but said the cards were not to be used for personal expenses. While the government presented evidence of charges on the cards, it presented no evidence those charges were not actually used for business purposes. Bad business, perhaps, but not illegal conduct.

The value in this case is less its seemingly-obvious result and more the discussions involved in reaching that result. The Sixth Circuit made clear the standard of review for relevant conduct decisions: because it involves the application of law to fact, the district court's determination is reviewed de novo. The analysis of the relevant conduct claim is a good example of giving legal heft to an argument in which I'd be tempted to just say, "Well, duh!"

Another issue raised in the appeal the voluntariness of his plea and whether he should have been permitted to withdraw his guilty plea. The Sixth Circuit affirms the district court decisions, again with an excellent walk-through of how these issues should be analyzed. The plea withdrawal analysis is worth your time, or even a copy and paste to whatever folder you keep for such gems.

Thursday, January 03, 2013

Defendants may not waive counsel at their own competency hearings

In United States v. Ross, No. 09-1852 (Dec. 31, 2012), the Sixth Circuit held that "the Constitution requires a defendant to be represented by counsel at his own competency hearing, even if he has previously made a knowing and voluntary waiver of counsel."
During the litigation of his case, Ross engaged in conduct giving rise to serious questions about his competence.  Eventually, at his request, the district court allowed him to represent himself at trial, albeit with standby counsel available to assist him.  Later, the district court conducted a competency hearing, at which standby counsel was present but did not participate on the record.
The Sixth Circuit found that the absence of counsel at the competency hearing would constitute a structural constitutional error requiring reversal.  The court explained, "Even if the 'Constitution does not force a lawyer upon a defendant,' enforcing the Supreme Court's determination that the Constitution 'require[s] that any waiver of the right to counsel be knowing, voluntary, and intelligent' requires representation until—as well as while—such a determination is made." (citation omitted).
The Court adopted the "meaningful adversarial testing" standard from United States v. Cronic, 466 U.S. 648, 656-57 (1984), as "the appropriate standard for assessing whether Ross's standby counsel provided representation that was adequate to overcome Ross's claim that he was deprived of counsel at his competency hearing."  Here, "[t]he record . . . is insufficient to fully resolve this issue" since it "does not contain clear evidence of meaningful adversarial testing or investigation of the evidence by standby counsel . . . ."  Although standby counsel "did not present argument during the competency hearing," the court explained, "it is conceivable that he did satisfy the minimum standard by adequately investigating, undertaking appropriate preparation for the hearing and then making an independent, strategic decision not to contest competency."
The court remanded for an evidentiary hearing.
In dissent, Judge Boggs argued that the majority's standard "will raise the legal and practical costs of the diligent pursuit of a trial judge's ongoing duty to ensure the defendant’s competence," and "means that a trial judge may well be understandably reluctant—especially in marginal cases—to have any type of proceeding focusing on a defendant's competence to represent himself once that judgment has initially been made."