The Supreme Court waded back into the murky waters of the Armed Career Criminal Acct (“ACCA”) today with its decision in United States v. Chambers. The defendant in Chambers had argued that his prior conviction for his failure to report to a penal institution, which the Seventh Circuit treated as a predicate “violent felony” under the ACCA, should not be treated the same as an escape. The Supreme Court agreed, noting that a failure to report is a different crime than escape.

In reaching its holding, the Court noted that “[t]he behavior that likely underlies a failure to report would seem less likely to involve a risk of physical harm than the less passive, more aggressive behavior underlying an escape from custody.” Indeed, the Court relied in part of a study conducted by the United States Sentencing Commission to support its holding, remarking that “the study strongly supports the intuitive belief that failure to report does not involve a serious potential risk of physical injury.”

Although the Court resolved the issue presented in this case, the concurring opinion written by Justice Alito astutely noted the difficulty in interpreting the ACCA and applying the categorical approach in general. As he noted, “[a]fter almost two decades with Taylor’s ‘categorical approach,’ only one thing is clear: ACCA’s residual clause is nearly impossible to apply consistently.” As most practitioners can readily attest, Justice Alito’s concerns over the ACCA are well taken. Despite having the opportunity in recent cases like James, Begay, and Chambers, the Supreme Court has injected little clarity into the process of interpreting the residual clause of the ACCA. Although the convoluted area of law may stymy efforts at predictably interpreting the ACCA and the guidelines treatment of “crimes of violence,” this ambiguity fortunately endows defense practitioners with the ability to creatively attack the use of prior convictions.

After a long hiatus, I am back blogging. If there's anyone who actually reads this blog, I would suggest heading to Professor Berman's blog and the Tenth Circuit blog to catch up on the blog backlog. At any rate, the Tenth issued an interesting sentencing decision today in US v. Servin-Acosta.

The defendant argued that his prior conviction for robbery was not sufficient to be considered a crime of violence under the sentencing guidelines. In short, he argued that the district court erred by relying on a minute entry of his prior conviction and that the evidence offered at sentencing was insufficient to establish that his prior robbery conviction was for the crime of generic robbery, as required by 2L1.2.

The Tenth rejects the defendant's argument that a minute entry is insufficient, noting that the United States also furnished the district court with two immigration reports from the defendant's deportation proceedings. Because the defendant failed, however, to present any evidence to contradict the prior conviction, the court holds that the government met its burden and the documentation provided was sufficiently reliable.

The Tenth does find merit in the defendant's contention that the California robbery statute is broader than the definition of generic robbery utilized by the guidelines. As the court notes, "[a] State's designation of a criminal provision as its 'robbery' statute does not necessarily mean that it qualifies as "robbery" under 2L1.2." Instead, the court adopted a "uniform generic definition" of robbery, and concluded that the California statute could encompass a broader range of conduct than "generic robbery." The Tenth further observed that the government "has conceded that second-degree robbery in California is broader than generic robbery, and it has presented no evidence that Mr. Servin-Acosta's specific offense was generic robbery. It simply put all its eggs in one defective basket..." The court remanded the case for further sentencing proceedings.

Tenth's Latest Attempt at Reasonableness Review

For any federal practitioner who thought that Rita, Gall, and Kimbrough clarified the state of reasonableness review, take a look at US v. Smart. The majority affirms the district court's sentence of 120 months for a defendant convicted of inducing a minor to engage in sexually explicit conduct, despite the fact that he received an enhancement for obstruction of justice and did not receive acceptance of responsibility because he exercised his right to trial. The district court declines to impose the guideline sentence of 168-210 months because of the potential disparity with a more serious co-defendant who pled guilty and received 120 months.

The United States appealed, arguing that it was improper for the judge to consider the disparity and the trial penalty in its sentence. The Tenth affirms, rejecting the government's contention that disparity is an improper consideration in light of Gall. The Court likewise finds that "[b]ecause the district court plainly did not rely on Smart's decision to go to trial as a justification for its downward variance, we need not decide whether such a consideration would constitute procedural error after Gall." Also noteworthy is the Tenth's explicit rejection of its prior decision in Garcia-Lara, relying on the intervening law set forth in Gall and Kimbrough.

The dissent, however, takes issue with the distinction between procedural and substantive reasonableness offered by the majority. Judge Hartz, while not actually finding that there was procedural error, would characterize a district court's consideration of erroneous factors as procedural error rather than analyzing the substantive reasonableness of the sentence as the majority does. Hartz's concerns over the characterization of error are likely unnecessary in this particular case, but his assessment of error is at least interesting.

I suspect that other justices, inclined to give less deferential review to defendants who have prevailed in the district court, will likely strain their analysis to ensure that many errors are characterized as procedural rather than substantive. While the opinion and dissent may not appear to be ground-breaking at first glance, the issue at stake is indeed great as it affects the very standard of review that will apply on appeal.

Categorical Confusion

If the categorical and modified categorical approaches weren't confusing enough, take a look at the Tenth's latest foray into prior conviction analysis in US v. Maldonado-Lopez. The defendant appealed the district court's determination that his three prior misdemeanor convictions warranted a four-level bump under 2L1.2(b)(1)(E). At issue was whether each of the prior misdemeanor was properly classified as a crime of violence. The district court analyzed two of the available transcripts for the prior convictions, but relied solely on a judgment for the third. Because the Colorado statute at issue criminalized behavior that did not necessarily involve physical force, the Tenth declined to apply the categorical approach. Because the third conviction, for which there was no plea transcript, did "not describe Defendant's actual conduct but only the statutory section to which he pled guilty," the district court erred in classifying the prior conviction as a crime of violence.

More interesting than the result in Maldonado-Lopez, however, is Judge McConnell's concurring opinion, which begins with the observation that "[t]his Circuit's precedent has become confused regarding when to use the pure 'categorical method,' when to use the 'modified categorical method,' and when to use the 'factual approach,' in determining when various sentencing enhancements apply on account of prior convictions." McConnell details the muddled state of Tenth Circuit law on the issue of the categorical approach, even noting that his own prior opinions contradict one another. While McConnell observes that Maldonado-Lopez does not present the occasion to fully clarify the Tenth Circuit's contradictions, he does remark that "[i]t thus appears our Circuit has been overly casual in considering what role charging papers and plea agreements play in determining the elements of a crime. At some point we will have to resolve that contradiction in our case law and determine whether the 'modified categorical approach' can properly be used in determining the elements of a state-law offense."

ACCA Trap for the Unwary

The Armed Career Criminal minimum of 15 years will typically apply if an offender has three prior convictions for violent felonies. This enhancement applies so long as the violent felonies were "committed on occasions different from one another." See 18 U.S.C. 924(e). In an unpublished decision in US v. Stupka, the Tenth Circuit holds that three burglaries committed on apartments under the possession and control of the same people, on the same day, at the same address, and by using a master key suffice for the requisite violent felonies.

The fact that the statute is specifically targeted at career criminals is of no consequence since the burglaries were committed "on occasions different from one another." As the Court noted, "Mr. Stupka could not have simultaneously burglarized all three apartments. In addition, although the apartments were in the same complex ... he had to "break and enter" each apartment separately."

This bizarre decision should cause defense attorney to seriously scrutinize all of the potential predicate offenses before entering a plea. Different counts in the same charging document can give rise, as in Stupka, to multiple predicate offenses even though the convictions appear at first blush to be inextricably intertwined.

Error in Calculating Guideline Range Reason for Reversal

In United States v. Todd, the Tenth held that the district court's failure to properly calculate the guideline range warranted reversal. The district court failed to take into account the admissions of the defendant that he obtained at least two ounces of meth per month over the year preceding the indictment, instead noting that the government had failed to prove the quantities by a preponderance of the evidence.

Relying largely on the uncontroverted admissions of the defendant, the probation department, the government, and the Tenth Circuit all agree that the defendant's guideline range should have taken into account the quantities acknowledged (and unrefuted) by the defendant himself. Because the guideline error resulted in a range of 77-96 months rather than 188-235 months, the court of appeals declines to find the error harmless, noting that "the district court expressly relied upon the lesser Guidelines range when passing sentence."

Though not central to the disposition of the appeal, the Tenth Circuit also addresses the defendant's argument that acquitted conduct should not factor into a court's sentence. The Court, while also noting that the case did not really present the issue of acquitted conduct, holds that Watts remains good law and acquitted conduct can be properly considered.

The Todd decision should provide a reminder to all defense counsel that admissions of prior conduct will be counted as relevant conduct. Also of interest is that Gorsuch authored the opinion in this case. He has taken the lead, so to speak, in parsing out the Tenth's view of post-Rita and post-Gall sentencing (he also authored the recent McComb decision), which could cause reason for concern among defense practitioners as his views appear to be extremely deferential to the government (and not just in a Gall-mandated deference).

District of Arkansas Judge Tackles Gall and Guidelines

First noted on Professor Berman's blog, there is a fascinating sentencing memo detailing (and assailing) the blind adherence to the guidelines, the severity of home confinement, the need to account for medical infirmities, alternatives to imprisonment, and a host of other issues. District Judge Robert Dawson's 30 page sentencing memorandum is a must read for those interested in a thoughtful analysis of sentencing practices.

In justifying the sentence of home confinement because of the defendant's serious medical issues, the court notes,
The Court is not unaware that the sentence imposed today will dismay those who feel no punishment other than imprisonment can adequately punish Coughlin or any defendant convicted of any crime. But the Court is more concerned with engendering derision for the law in those aware of Coughlin's medical condition that might well be outraged by a criminal justice system that, despite the real investments of intelligence and moral judgment that contribute to that system, produces a sentence plainly inhumane. Imprisonment is unnecessary because probation can accomplish the goals of punishment, while avoiding a serious threat to Coughlin's life.

In addition, the judge provides a thoughtful analysis of the stautory goals of sentencing, remarking that "3553(a) permits variance because, based on the unique facts of a particular case, the sentence suggested by the Guidelines is not appropriate, as one size cannot be said to fit all. No chart of numbers will ever fully contemplate, quantify and cipher the endless variations of the human experience. While it might provide a normalizing force in sentencing, we cannot, with a system of points and categories, reduce justice to a universal formula."

In final rhetorical flourish, Judge Dawson observes that "[a] court that mechanically doles out precalculated sentences on a wholesale basis to categories of faceless defendants fails to do justice. A court that succumbs to apathy, bred by repetition, will cease to see defendants as individuals, with pasts and potentials, with humanity and promise."

While I am not sure that I agree with the ultimate sentence of home confinement imposed in this case, I recognize the appeal of Judge Dawson's criticism of the rote, mechanical nature of the guidelines as well as appreciate the thoughtfulness of his reasoning. If Rita and Gall are to have any real meaning, it is imperative that sentencing judges fully explain their reasoning and rationale without simply falling back of the mathematical precision of a sentencing matrix. I hope that more judges will follow Judge Dawson's lead.