October 22, 2017

Tenth Circuit: Residual “Crime of Violence” Definition in INA is Unconstitutionally Vague

The Tenth Circuit Court of Appeals issued its opinion in Golicov v. Lynch on Monday, September 19, 2016.

Constantine Fedor Golicov, a lawful permanent resident, was convicted in Utah state court of failing to stop at a police officer’s command, a third-degree felony. He was sentenced to five years’ imprisonment. While serving his sentence, the Department of Homeland Security (DHS) served Golicov with a Notice to Appear, charging that he was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) because his Utah conviction constituted an aggravated felony under the Immigration and Nationality Act (INA). Golicov denied the charge and moved to terminate removal. An immigration judge agreed with Golicov, denying the charge and terminating removal proceedings. DHS appealed, and the BIA reversed the immigration judge and remanded to the IJ to “explore Golicov’s potential eligibility for relief.”

On remand, Golicov moved to terminate the proceedings on the grounds that the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), effectively rendered unconstitutional and improper for use in immigration proceedings the definition of “crime of violence” contained in 18 U.S.C. § 16(b). The IJ rejected his argument on remand, and the BIA affirmed the IJ. Golicov appealed to the Tenth Circuit.

The Tenth Circuit noted that the Due Process Clause of the Fifth Amendment requires specificity in order to properly apprise ordinary people of the conduct that is prohibited. The government initially argued that because a removal proceeding is civil, the criminal law holding in Johnson should not apply. The Tenth Circuit disagreed, noting that because deportation proceedings can strip non-citizens of their rights, statutes that impose the penalty of deportation are subject to Fifth Amendment vagueness challenges.

The Tenth Circuit reviewed Johnson‘s holding that the residual clause in the Armed Career Criminal Act was void for vagueness, and noted the similarity between the ACCA residual clause and the INA’s residual definition of “crime of violence.” The Tenth Circuit remarked that two circuits have addressed the identical issue and both determined that the INA residual definition was void for vagueness, and two other circuits addressed the issue in a criminal context and also determined the INA’s definition was unconstitutionally vague. The Tenth Circuit agreed with its sister circuits that the INA’s residual “crime of violence” definition is void for vagueness.

The Tenth Circuit vacated the order of removal and remanded to the BIA for further proceedings.

Tenth Circuit: Conviction for Robbery under California Penal Code Qualifies as Crime of Violence

The Tenth Circuit Court of Appeals issued its opinion in United States v. Castillo on Tuesday, December 15, 2015.

Wilber Castillo was convicted in California in 2004 of second-degree robbery, and was removed from the United States in 2007. In 2009, he reentered the United States without inspection. In 2011, he was convicted of shoplifting and in 2014 he was convicted of disorderly conduct. He was interviewed by ICE after his 2014 arrest, and based on his admission, Castillo was charged with illegal reentry under 18 U.S.C. § 1326. The base offense level for illegal reentry is 8 but because of his 2004 conviction for robbery, which is classified as a crime of violence, his total offense level was 24, resulting in a Guidelines range of 46-57 months’ imprisonment. Castillo objected to the application of the crime of violence enhancer. The district court ruled Castillo’s prior conviction was a crime of violence and the offense level was correct, but nevertheless varied downward and sentenced Castillo to 24 months’ imprisonment. Castillo appealed.

The Tenth Circuit examined California Penal Code § 211 to determine whether a conviction under that section qualifies as a crime of violence for purposes of Guidelines § 2L1.2. Castillo argued that because § 211 considers threats to property as crimes of violence, it does not substantially correspond with the generic definition of robbery. The government conceded that including threats to property is a minority position, but argued that the crimes covered by § 211 outside the generic definition of robbery fell within the generic definition of extortion, which is also considered a crime of violence. The Tenth Circuit agreed.  Following the Ninth Circuit’s reasoning in another case that evaluated whether a conviction under § 211 qualified as a crime of violence, the Tenth Circuit found that because the elements of § 211 that do not correspond to the generic definition of robbery are encompassed in the generic definition of extortion, and both crimes are considered crimes of violence, the sentencing enhancer applied.

The Tenth Circuit affirmed the district court.

Tenth Circuit: Statutory Rape Not Per Se Crime of Violence for Sentence Enhancement Purposes

The Tenth Circuit Court of Appeals issued its opinion in United States v. Madrid on Monday, November 2, 2015.

Jonathan Madrid pleaded guilty to possession of methamphetamine with intent to distribute in 2014. The presentence investigation report (PSR) classified him as a “career offender” subject to sentence enhancement due to his two prior convictions, one of which was a New Mexico conviction for cocaine trafficking and the other of which was a Texas conviction for statutory rape. The career offender enhancement changed his Guidelines sentencing range from 92-115 months to 188-235 months. He was sentenced to 188 months. He appealed his sentence, arguing the Texas conviction does not qualify as a “crime of violence” under U.S.S.G. § 4B1.1.

The Tenth Circuit noted that a conviction counts as a crime of violence when it (1) has as an element the use, attempted use, or threatened use of physical force; (2) is specifically enumerated in the Guidelines as a crime of violence; or (3) otherwise involves conduct that presents a risk of serious injury. Using the modified categorical approach, the Tenth Circuit analyzed the Texas statute under which Madrid was convicted to see if it fits the definition of crime of violence. The parties agreed that force was not an element of Madrid’s crime of conviction. The Tenth Circuit noted that the Guidelines specifically listed “forcible sex offenses” as crimes of violence, but held that statutory rape is not per se a forcible sex offense. The Tenth Circuit looked only to the elements of the charged offense, not the defendant’s actual conduct, to determine whether the offense was forcible. Because the Texas statute under which Madrid was convicted did not contain an element of force, the Tenth Circuit declined to look at Madrid’s actual conduct and found that his offense did not qualify as a forcible sex offense for Guidelines purposes.

Finally, the Tenth Circuit examined the residual clause of the Guidelines. Following the U.S. Supreme Court’s invalidation of the residual clause of the Armed Career Criminal Act in Johnson v. United States, 135 S. Ct. 2551 (2015), the Tenth Circuit found that the substantially similar Guidelines clause was invalid as unconstitutionally vague. The Tenth Circuit relied on Johnson‘s holding in stating “[t]he vagueness doctrine exists not only to provide notice to individuals, but also to prevent judges from imposing arbitrary or systematically inconsistent sentences.” Because the Guidelines’ residual clause was substantially similar to that of the ACCA, the Tenth Circuit found it did not provide adequate notice to defendants and allowed potential abuse by the judiciary.

The Tenth Circuit remanded with instructions for the district court to vacate Madrid’s sentence and resentence him consistent with its opinion.

Colorado Supreme Court: Enhanced Indeterminate Sentence Appropriate for Per Se Crime of Violence

The Colorado Supreme Court issued its opinion in Chavez v. People on Monday, November 2, 2015.

Mandatory Sentencing—Crimes of Violence—Colorado Sex Offender Lifetime Supervision Act.

Defendant appealed his indeterminate sentence of imprisonment for 15 years to life on a class 3 felony conviction for sexual assault on a child by one in a position of trust—pattern of abuse. A class 3 felony carries a presumptive penalty range of four to 12 years’ imprisonment. The Supreme Court held that where a defendant is convicted of a sex offense that is also a crime of violence, he must be sentenced to an indeterminate sentence of  incarceration with a minimum term in the enhanced, crime-of-violence range. The trial court was therefore required to sentence defendant to incarceration for a minimum term of eight to 24 years, and a maximum term of his life. Because defendant’s sentence satisfies those requirements, the Court affirmed the court of appeals’ judgment upholding the legal sentence.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Sentence Enhancement Based on Elements of Actual Convicted Offense

The Tenth Circuit Court of Appeals issued its opinion in United States v. Castro-Gomez on Monday, July 6, 2015.

Luis Carlos Castro-Gomez pleaded guilty to one count of illegal reentry by a removed alien. Castro-Gomez objected to the Presentence Report’s classification of his prior Illinois conviction for attempted murder as a crime of violence, and argued that since Illinois’ statutory definition of murder is broader than its generic counterpart and requires only the intent to do harm, his conviction for attempted murder should not count as a crime of violence. The district court disagreed and sentenced Castr0-Gomez to 35 months in prison. Castro-Gomez appealed.

On appeal, Castro-Gomez argued that since Illinois’ definition of murder requires only the intent to do bodily harm, it is broader than the generic definition and therefore does not constitute a crime of violence for purposes of the 16-level sentence enhancement. And if murder does not qualify as a crime of violence, then attempted murder must not qualify either. The Tenth Circuit rejected Castro-Gomez’s reasoning. The Tenth Circuit found persuasive a Ninth Circuit opinion with a similar fact pattern, where the Ninth Circuit determined that the actual crime of conviction should be evaluated in determining sentencing enhancements. Using the Ninth Circuit’s reasoning, the Tenth Circuit evaluated the intent requirement of attempted murder under Illinois law and found it corresponded to its generic counterpart, thereby qualifying as a crime of violence.

The Tenth Circuit rejected Castro-Gomez’s challenge and affirmed his sentence.

Tenth Circuit: Strict Liability Offense Does Not Qualify as Crime of Violence for Sentencing

The Tenth Circuit Court of Appeals issued its opinion in United States v. Wray on Tuesday, January 27, 2015.

Reginald Gerome Wray pleaded guilty to being a felon in possession of a firearm and was sentenced to 77 months’ imprisonment and three years’ supervised release. On appeal, Mr. Wray disputed that his prior conviction for “sexual assault – 10 years age difference” constitutes a crime of violence to increase his base sentencing level. Mr. Wray argued that under the U.S. Supreme Court’s decision in Begay v. United States, 553 U.S. 137 (2008), his prior conviction should not count as a crime of violence for sentencing purposes.

The Tenth Circuit analyzed U.S.S.G. § 4B1.2 and its application note. The circuit addressed whether Mr. Wray’s offense qualified as a “forcible sex offense” under the language of the application note or if it was conduct that presented a serious risk of potential injury under the residual clause, § 4B1.2(a)(2).

The Tenth Circuit employed a categorical approach in determining whether Mr. Wray’s prior offense was a crime of violence. Analyzing Supreme Court precedent in Begay and Sykes, the Tenth Circuit found that Begay applied to strict liability or negligence crimes, while the Sykes analysis of whether the conduct was purposeful, violent, or aggressive defined the level of risk. Turning to Mr. Wray’s offense, the Tenth Circuit first addressed the government’s argument that all statutory rape offenses are necessarily forcible because minors are not legally able to consent and rejected it. Applying the reasoning of the Fourth Circuit in a similar matter, the Tenth Circuit found that not all sex offenses where there is no legal consent are forcible, and that the absence of legal consent does not preclude the possibility of actual consent. The Tenth Circuit further found that Colorado statutes specifically contemplate non-forcible sex offenses, and Mr. Wray’s offense was not categorically forcible.

Next, the Tenth Circuit evaluated whether Mr. Wray’s offense fell within the residual clause and found that it did not. Following Begay, the Tenth Circuit found that the elements of Mr. Wray’s offense indicated it was a strict liability crime, since the offender need not have knowledge of the victim’s age in order to be culpable. The Tenth Circuit found that because the crime at issue was a strict liability offense, it fell within the Begay exception and did not qualify as a crime of violence.

The case was remanded for resentencing.

Tenth Circuit: Statutory Language Requires Separate Uses of Weapon During Crime to Support Multiple Charges

The Tenth Circuit Court of Appeals issued its opinion in United States v. Rentz on Tuesday, February 3, 2015.

Philbert Rentz fired one shot that injured one person and killed another. He was charged with two crimes of violence (assault and murder) and two counts of using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). He moved to dismiss the second § 924(c) count and the district court granted the motion. The government appealed the dismissal, and a panel of the Tenth Circuit reversed. Rentz petitioned for en banc rehearing, which was granted.

The Tenth Circuit, in an opinion written by Judge Gorsuch, examined the language of § 924(c)(1)(A). Judge Gorsuch diagrammed the sentence, illustrating that the verbs, “uses, carries, or possesses,” necessarily must modify each crime of violence. Because Rentz only “used” the weapon one time, there could only be one charge under § 924(c)(1)(A).

The Tenth Circuit also noted the vastly increased sentences for second offenses under § 924(c) as support for the argument that the statute was not intended to mandate multiple punishments for the same offense. And, to the extent the statute was ambiguous, the Tenth Circuit resolved the ambiguity in favor of Rentz, noting “the tie goes to the presumptively free citizen and not the prosecutor” as it applied the rule of lenity. The Tenth Circuit opinion did not address the double jeopardy issue, since it found Rentz’s conduct could only support one § 924(c) charge.

The Tenth Circuit opinion also addressed a potential circuit split on the issue based on the Eighth Circuit’s opinion in United States v. Sandstrom, 594 F.3d 634 (8th Cir. 2010). In Sandstrom, the Eighth Circuit, relying on Tenth Circuit precedent, allowed multiple charges under § 924(c) for a single gun use. However, the Tenth Circuit noted that Sandstrom did not directly address what the government must prove for each successive charge under a single statute.

The Tenth Circuit reversed the panel opinion and reinstated the district court’s dismissal of the second § 924(c) charge. Judge Matheson wrote a detailed concurrence regarding units of prosecution and the rule of lenity, and also addressed prior Tenth Circuit precedent leading to the previous panel’s decision. Judge Hartz wrote a second concurrence, and Judge Kelly dissented.

Tenth Circuit: No Reasonable Jurist Could Have Found Trial Counsel’s Performance Deficient

The Tenth Circuit Court of Appeals issued its opinion in United States v. Rodriguez on Wednesday, October 15, 2014.

Samuel Rodriguez pleaded guilty to the distribution of five grams or more of methamphetamine, and the district court sentenced him. The district court applied a career offender sentence enhancement based on Rodriguez’s two prior felony convictions involving crimes of violence or controlled substances. One of Rodriguez’s prior convictions was for simple assault under the Texas Penal Code. The parties disagree on whether the assault conviction constitutes a crime of violence. In an earlier appeal, Rodriguez’s attorney argued unsuccessfully that the conviction should not be considered a crime of violence. Rodriguez then sought collateral relief on a theory that his attorney had mishandled the issue. The district court recharacterized the request as a motion to vacate the sentence and denied it. Rodriguez then sought a Certificate of Appealability (COA), along with leave to amend his motion and a request to file in forma pauperis. The Tenth Circuit denied the COA and mooted the related requests.

The Tenth Circuit first noted that its prior ruling was the law of the case, and even if the current panel disagreed with the finding of the prior panel, it could not overturn that decision. Nevertheless, analyzing Rodriguez’s claim about the requisite mental state underlying his Texas assault offense, the Tenth Circuit found that the issue had been litigated in the prior ruling. The Tenth Circuit found that Rodriguez’s prior counsel advocated well for him, raising the claim that he did not have the requisite mental state, citing case law, and otherwise appropriately advocating, and declined to characterize Rodriguez’s appeal as anything other than an attempt to relitigate an already-decided issue.

The Tenth Circuit denied Rodriguez’s request for a COA and found moot his related requests to amend his motion and file in forma pauperis.

Colorado Court of Appeals: Rioting Not Lesser Included Offense of Rioting in Detention Facility

The Colorado Court of Appeals issued its opinion in People v. Lacallo on Thursday, June 19, 2014.

Public Disturbance—Riot—Detention Facility—Lesser Included Offense—Crime of Violence—Sentence.

Defendant and other inmates refused to leave a common area of the Jefferson County jail and lockdown. Before being returned to their cells, they damaged the common area. During the disruption, visiting members of the public were evacuated from the jail.

On appeal, defendant asserted that the prosecution failed to prove a “public disturbance” under CRS § 18-9-101(2), because a detention facility is not a place open to the public. Defendant failed to preserve this argument in the trial court, so the Court of Appeals reviewed this challenge for plain error. No Colorado case has interpreted the phrase “public disturbance” under CRS § 18-9-101(2), and there are no Colorado cases that provide a commonly accepted definition for the term “public” that would have alerted the trial court to alleged error arising from defendant’s interpretation. Thus, because determining the meaning of “public disturbance” under existing Colorado authority would be difficult, “the alleged error cannot be regarded as plain or obvious.”

Alternatively, defendant contended that even if sufficient evidence supported his conviction for engaging in a riot, because it is a lesser included offense of rioting in a detention center, the convictions should merge. However, each of these two offenses requires proof of one element that the other does not. Under CRS § 18-8-211(1), the offender must have been confined in a detention facility. Under CRS § 18-9-104(1), the offender—who need not have been confined—must have caused a public disturbance. Thus, engaging in a riot is not a lesser included offense of rioting in a detention facility.

The Attorney General conceded defendant’s contention that the trial court erred by applying crime of violence for sentencing to his conviction for engaging in a riot. The trial court imposed a consecutive six-year sentence for engaging in a riot, after the prosecution told the court that this offense was a crime of violence. However, CRS § 18-9-104(1) does not define engaging in a riot as a crime of violence. Because neither an increased sentencing range nor a consecutive sentence was mandated, defendant’s entire sentence was vacated and the case was remanded for resentencing.

Summary and full case available here.

Colorado Court of Appeals: Period In Which Competency Evaluation Being Completed Excluded from Speedy Trial Timeline

The Colorado Court of Appeals issued its opinion in People v. Naqi on Thursday, February 13, 2014.

Violation of Right to Speedy Trial—Competency Evaluation—Crime of Violence—Sentencing.

On January 10, 2011, while represented by the public defender, defendant pleaded not guilty to the charge of sexual assault on his stepdaughter while in a position of trust–pattern of abuse. In March 2011, defendant filed a pro semotion seeking to obtain a different attorney, which was denied. On June 1, 2011, the original defense counsel filed a motion to continue the case; defendant objected. The court gave defendant the option of proceeding pro se or waiving the speedy trial date and proceeding with either the original defense counsel or alternate defense counsel. Defendant chose to proceed pro se and was found competent to proceed after a court-ordered competency evaluation. A jury convicted him as charged.

On appeal, defendant contended that his right to a speedy trial was violated because the competency evaluation was unfounded and, therefore, the period during which his competency was being evaluated should not have been excluded from the six-month speedy trial period. A defendant must be brought to trial within six months of entering a not-guilty plea. However, any period during which a defendant is under examination with respect to his or her competency is excluded from the six-month period. Here, the record supports the conclusion that defendant might not have been competent to proceed to trial. Therefore, the court did not abuse its discretion in ordering a competency evaluation, and the period of time to complete the evaluation was properly excluded from the speedy trial period.

Defendant also contended that the trial court erred by aggravating the applicable sentencing range in accordance with the crime of violence and extraordinary risk crime statutes. Defendant was subject to crime of violence sentencing because the offense of which he was convicted is a per se crime of violence. Therefore, the prosecution was not required to prove a crime of violence to aggravate the sentencing range in accordance with the crime of violence statute. Although the sentencing range should not have been aggravated as an extraordinary risk crime, the sentence fell within the corrected sentencing range. Therefore, the judgment and sentence were affirmed.

Summary and full case available here.

Tenth Circuit: Defendant May be Charged with Two Separate Counts Arising from a Single Use of a Firearm

The Tenth Circuit Court of Appeals published its opinion in United States v. Rentz on Monday, November 18, 2013.

After Philbert Rentz fired a single gunshot that wounded one victim and killed another, he was charged with two separate counts of using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). Mr. Rentz moved to dismiss the second § 924(c) count. The district court granted his motion, holding that § 924(c) cannot support multiple § 924(c) charges arising from a single use of a firearm. The Government appealed.

At issue on appeal were: (1) whether § 924(c) permits two § 924(c) violations to be charged based on two underlying crimes of violence arising from a single use of a firearm, and (2) whether charging the two crimes of violence would violate the Double Jeopardy Clause.

18 U.S.C. § 924(c) criminalizes the use of a firearm in connection with a federal crime of violence or drug trafficking offense. A § 924(c) firearm charge is therefore derivative in nature. It rests on the commission of an underlying predicate offense—either a violent or a drug trafficking crime. It is unnecessary for a criminal defendant charged with a § 924(c) offense to be separately charged with and convicted of the underlying offense. But to establish a violation of § 924(c), the Government must prove the Defendant committed the underlying crime of violence.

Mr. Rentz was charged with two predicate offenses—murder and assault causing serious bodily injury. It would likely be uncontested in most cases that these two predicate offenses would support two § 924(c) derivative offenses. But this case arises from the unusual circumstance of a single gunshot causing both predicate offenses. The Tenth Circuit held that the statute allows two § 924(c) charges based on a single gunshot, because previous cases recognized that multiple § 924(c) counts are permitted based on a single criminal episode. The court stated that multiple underlying offenses could support separate § 924(c) charges so long as double jeopardy is not implicated.

The court held Double Jeopardy was not implicated here. The Fifth Amendment Double Jeopardy Clause of the United States Constitution provides that no “person be subject for the same offence to be twice put in jeopardy of life or limb.” Each underlying offense in this case required proof of an element that the other did not. Count I, second degree murder, required proof that Mr. Rentz caused the death of Mr. Francis with malice aforethought. Count IV, on the other hand, required proof that Mr. Rentz knowingly assaulted Mr. Dawes, causing him serious bodily injury. The charges did not therefore implicate the Double Jeopardy Clause.

REVERSED.

Colorado Supreme Court: Several Crimes Perpetrated Over 24 Hour Period Not Considered Same Criminal Episode

The Colorado Supreme Court issued its opinion in Marquez v. People on Monday, September 23, 2013.

Concurrent and Consecutive Sentencing—CRS §§ 18-1.3-406 and 18-1-408(2).

Defendant sought review of the court of appeals’ judgment affirming the district court’s imposition of consecutive forty-eight-year sentences for two crime-of-violence convictions. After finding that both crimes of violence arose out of the same incident, the district court concluded that it was statutorily required to order defendant’s two crime-of-violence sentences to be served consecutively. The court of appeals affirmed.

The Supreme Court reversed the court of appeals’ judgment and remanded the case with directions to return the matter to the district court for resentencing. The Court held that the phrase “arising out of the same incident,” as it appears in CRS § 18-1.3-406, is a reference to, and has the same meaning as, the phrase “arising from the same criminal episode” in CRS § 18-1-408(2). Further, record established that the crimes of violence of which defendant was convicted were not “based on the same act or series of acts arising from the same criminal episode.”

Summary and full case available here.