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United States v. Apodaca, Nos. 11—4342 & 11—4378 (6th Cir. Jan. 23, 2013) (unpublished).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

No comments: