Updated: 6/15/11. Career Offender Cases (chronologically)

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1 Career Offender Cases (chronologically) Updated: 6/15/11 Supreme Court to decide if second or subsequent possession offense is an "aggravated felony." Under federal law, an "aggravated felony" is defined in part to mean a felony "drug trafficking crime." Simple possession of a controlled substance, in violation of 21 U.S.C. 844, is a misdemeanor, but a second conviction under that statute can be punished as a felony if the government files an information under 21 U.S.C. 851 alleging the prior conviction. The Supreme Court holds a conviction qualifies only if the State applied the recidivist enhancement in that second or subsequent conviction. Crachuri-Resendo v. Holder, 130 S.Ct (6/1410). Supreme Court rejects categorical approach for deciding if fraud offense is aggravated felony. An alien who sustains a conviction for an "aggravated felony" is subject to a deportation. Under 8 U.S.C. 1101(a)(43)(M)(I), the term "aggravated felony" is defined to include an offense that "involves fraud or deceit in which the loss to the victim exceeds $10,000." The Supreme Court, in a unanimous decision written by Justice Breyer, held that to satisfy this definition of "aggravated felony," an offense need not require proof of the loss of $10,000 as an element of the offense. Instead of using the "categorical approach" to determine whether a fraud offense satisfies the definition of "aggravated felony" in this context, a court should look to the particular circumstances in which an offender committed the fraud to determine whether it resulted in a loss of more than $10,000. The Court noted that under 8 U.S.C. 1326, a defendant who reenters the U.S. after deportation following conviction for an aggravated felony is subject to an enhanced sentence, and it acknowledged that its "circumstance-specific" approach "could create potential constitutional problems" if the government prosecuted an alien who had a prior fraud conviction under The Court noted, however, that the government had conceded that in a prosecution under 1326, the jury would have to find that defendant's prior fraud conviction involved a loss of more than $10,000. Nijhawan v. Holder, 129 S. Ct. 2294, 557 US 2294, 174 L. Ed. 2d 22 (June 15, 2009). Supreme Court holds that failure to report to prison is not a violent felony. Under the Armed Career Criminal Act, 18 U.S.C. 924(e), a defendant convicted of being a felon in possession of a firearm who has three prior convictions for a "violent felony or a serious drug offense" is subject to a mandatory minimum 15-year sentence. A "violent felony" is defined in part as an offense that "involves conduct that presents a serious potential risk of physical injury to another." The Supreme Court, in an opinion by Justice Breyer, held that the Illinois felony of failing to report to a penal institution to serve a sentence is not a "violent felony" within the meaning of the ACCA. Justice Alito wrote an opinion concurring in the judgment in which he urged Congress to amend the ACCA to include a specific list of expressly defined crimes that support the ACCA's sentencing enhancement. Chambers v. U.S., 129 S. Ct. 687, 555 US 122, 172 L. Ed. 2d 484 (2009). Supreme Court holds that maximum term under ACCA is maximum set by recidivist provision. Under the Armed Career Criminal Act, 18 U.S.C. 924(e), a defendant convicted of possession of a firearm by a convicted felon is subject to a mandatory 15-year sentence if he has three prior convictions for a violent felony or a serious drug offense. A serious drug offense is defined in part to mean an offense for which a maximum term of imprisonment of ten years is prescribed by law. Defendant had three prior drug convictions in Washington. Under Washington 1

2 law, a first drug offense was subject to a five-year maximum sentence, but second and subsequent convictions for drug offenses carried a 10-year maximum. The Ninth Circuit held that the maximum term of imprisonment must be determined without taking the recidivist enhancements into account. The Supreme Court, in an opinion by Justice Alito joined by five other justices, held that the maximum term of imprisonment for defendant's state drug convictions was the 10-year maximum set by the state recidivist provision. U.S. v. Rodriguez, 553 U.S. 377,128 S. Ct. 1783, 170 L. Ed. 2d 719 (2008). Supreme Court holds that felony DUI is not a violent felony. The Armed Career Criminal Act, 18 U.S.C. 924(e), provides that a defendant convicted of possession of a firearm by a convicted felon is subject to a mandatory 15-year sentence if he has three prior convictions for a violent felony. That term is defined to mean an offense that is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. Defendant had 12 prior New Mexico convictions for driving under the influence of alcohol. Under New Mexico law, the fourth such conviction is a felony punishable by more than one year in prison. The Supreme Court held that New Mexico's felony DUI law does not define a violent felony under the ACCA. In an opinion by Justice Breyer, the Court reasoned that even if felony DUI involves conduct that presents a serious risk of physical injury to others, it is too unlike the other crimes listed in the definition to qualify as a violent felony. Begay v. U.S., 553 U.S., 128 S. Ct. (April 16, 2008). Supreme Court says that ACCA exemption does not apply to offender who never lost civil rights. The Armed Career Criminal Act, 18 U.S.C. 924(e), provides that a defendant convicted of possession of a firearm by a convicted felon is subject to a 15-year mandatory minimum sentence if he has three prior convictions for "violent felonies." A state-law misdemeanor may qualify as a "violent felony" if it carries a maximum sentence of more than two years. A prior conviction that otherwise constitutes a violent felony does not qualify if the defendant "has had [his] civil rights restored" for the conviction. The Supreme Court unanimously held that the ACCA's exemption for convictions for which the offender's civil rights have been restored does not apply to defendants who did not lose their civil rights upon conviction. Accordingly, defendant's misdemeanor conviction counted as a violent felony. Logan v. U.S., 552 U.S., 128 S.Ct. 475 (2007). Supreme Court clarifies categorical approach and holds that attempted burglary is a "violent felony" under ACCA. The Armed Career Criminal Act, 18 U.S.C. 924(e), defines the term "violent felony" to include a crime punishable by more than a year that is "burglary" or "otherwise involves conduct that presents a serious potential risk of physical injury to another." Under Florida law, attempted burglary requires proof of an "overt act directed toward entering or remaining in a structure or conveyance." The Supreme Court held that attempted burglary under Florida law categorically qualifies as a "violent felony" because it poses a serious potential risk of physical injury to another. The Court held that the commission of an offense need not pose the requisite risk of physical injury in every case; instead, the proper inquiry under the categorical approach is whether the conduct encompassed by the elements of the offense ordinarily presents a serious potential risk to another. James v. U.S., U.S., 127 S.Ct (2007). 2

3 Supreme Court says offender must show realistic possibility that prior conviction was outside generic definition. In determining whether a prior conviction is a theft offense under 8 U.S.C. 1101(a)(43), the Supreme Court held, in accord with Taylor v. U.S., 495 U.S. 575 (1990) that Congress intended a modern generic definition. In this civil immigration case, the alien argued that the California statute under which he was convicted included conduct outside the generic definition. The Supreme Court held that to find that a state statute creates a crime outside the generic definition requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime. To show such a realistic possibility, the offender must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (non-generic) manner for which he argues. Here, the offender made no such showing. Gonzalez v. Gonzalez v. Duenas-Alvarez, 127 S.Ct. 815 (2007). Supreme Court holds that theft offense includes aiding and abetting that offense. An aggravated felony under the immigration statutes includes a theft offense. Defendant was convicted under a California statute that reaches any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing of a vehicle. The Ninth Circuit held that the statute did not categorically define a theft offense because a person can aid or abet the offense without committing the elements of a generic theft. The Supreme Court reversed and held that the term theft offense includes aiding and abetting that offense. Gonzalez v. Duenas-Alvarez, 127 S.Ct. 815 (2007). Supreme Court rules that state drug felony that is only a misdemeanor under federal law is not an aggravated felony. The Immigration and Naturalization Act defines the term aggravated felony to include illicit trafficking in a controlled substance. An alien was convicted of aiding and abetting another person s possession of cocaine under South Dakota state law. That offense is a felony under state law but would only be a misdemeanor under federal law. The Supreme Court held that a state drug felony that is only a misdemeanor under federal law is not an aggravated felony within the meaning of the immigration statute. Lopez v. Gonzalez, 127 S.Ct. 625 (2006). Supreme Court says that simple possession is not a controlled substance offense. Under 4B1.1, a defendant s prior conviction for a controlled substance offense is counted in determining whether the defendant is a career offender. The term controlled substance offense is defined in part as the possession of a controlled substance with intent to manufacture, import, export, or distribute. In a short per curiam opinion, the Supreme Court held that simple possession of a controlled substance is not a controlled substance offense under 4B1.1. Salinas v. U.S., 547 U.S. 188, 126 S.Ct (2006). Supreme Court limits evidence used to determine if prior conviction is generic felony. The Armed Career Criminal Act, 18 U.S.C. 924(e), mandates a 15-year minimum mandatory sentence for defendants convicted of possessing a firearm who have three prior convictions for serious felonies, including burglary. In Taylor v. U.S., 495 U.S. 575 (1990), the Court held that only generic burglaries qualified as predicate felonies under the ACCA and that in determining whether a defendant s prior conviction was a generic burglary, a court could look to statutory elements, charging documents, and jury instructions. In a 5-3 decision, the Supreme Court held that a 3

4 sentencing court may not look to police reports or complaint applications to determine whether a defendant s earlier guilty plea showed that defendant committed a generic burglary. Instead, a court is limited to the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge. Shepard v. U.S., 544 U.S. 13, 125 S.Ct (2005). Supreme Court requires deference to district court s finding that prior convictions were related. The guidelines define career offender as an offender with at least two prior felony convictions for violent or drug related crimes. USSG 4B1.1. However, prior convictions that are related must be treated as only one conviction. In a unanimous opinion written by Justice Breyer, the Supreme Court held that a district court s finding that prior convictions are not related is reviewed deferentially on appeal, not de novo. The court observed that 18 U.S.C. 3742(e) requires a reviewing court not only to accept a district court s findings of fact unless clearly erroneous, but also to give due deference to the district court s application of the guidelines to the facts. Moreover, the court observed that the question of whether two prior convictions are related is a minor, detailed, interstitial question of sentencing law, buried in a judicial interpretation of an application note to a sentencing guideline. The question is not a generally recurring, purely legal matter, such as interpreting a set of legal words. Rather, the issue is bounded by case-specific detailed factual circumstances, which limits the value of appellate court precedent. Accordingly, the court rejected the de novo review standard adopted by the Fifth and Ninth Circuits and held that the court of appeals properly deferred to the district court s ruling that two cases were not functionally consolidated and therefore were not related. Buford v. U.S., 532 U.S. 59, 121 S.Ct (2001). Supreme Court holds that career offender amendment violates the statute. In 28 U.S.C. 994(h), Congress directed the Sentencing Commission to assure that the guidelines specify a prison sentence at or near the maximum term for career offenders. Effective November 1, 1994, the Sentencing Commission amended Commentary Note 2 to the career offender guideline, 4B1.1, to define the phrase offense statutory maximum to mean the maximum term not including any increase in the maximum term under a sentencing enhancement provision that applies because of the defendant s prior criminal record, such as 21 U.S.C. 841(b). This new definition was challenged by the Department of Justice. In a 6-3 opinion written by Justice Thomas, the Supreme Court agreed with the Justice Department and held that the Commission s interpretation was inconsistent with the plain language of 28 U.S.C. 994(h). Thus the court held that the maximum term authorized must be read to include all applicable statutory sentencing enhancements, including the recidivist enhancements in 841(b). Justice Breyer dissented at length, joined by Justices Stevens and Ginsburg. U.S. v. LaBonte, 520 U.S. 751, 117 S.Ct (1997). Supreme Court limits collateral attack on state convictions used to enhance sentence. Defendant was convicted of possession of a firearm by a felon under 18 U.S.C. 922(g)(1). At sentencing, the judge sentenced him under the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e)(1), because he had three prior state felony convictions. Defendant claimed his prior state convictions were invalid due to ineffective assistance of counsel. The district court refused to entertain this collateral attack, noting that [u]nlike the statutory scheme for enhancement of 4

5 sentences in drug cases [ 924(e)(1)] provides no statutory right to challenge prior convictions. In a 6-3 opinion written by Chief Justice Rehnquist, the Supreme Court affirmed, holding that with the sole exception of convictions obtained in violation of the right to counsel, a defendant has no right to collaterally attack prior state convictions that are used to enhance his sentence under the Armed Career Criminal Act. The statute focuses on the fact of the conviction and nothing suggests that the prior final conviction may be subject to collateral attack for potential Constitutional errors before it may be counted. Justices Souter, Blackmun and Stevens dissented. Custis v. U.S., 511 U.S. 485, 114 S.Ct (1994). Supreme Court permits uncounseled misdemeanor to be used to enhance sentence. In a opinion written by Chief Justice Rehnquist, the Supreme Court overruled Baldasar v. Illinois, 446 U.S. 222 (1980) and held that an uncounseled misdemeanor conviction for which no prison term was imposed, may be used to enhance punishment for a later conviction. In the present case, the petitioner was assessed one criminal history point for a state misdemeanor conviction for driving under the influence, for which he was not incarcerated. Even though he was not represented by counsel at the DUI proceeding, his conviction was valid under Scott v. Illinois, 440 U.S. 367 (1979) which held that there is no right to counsel in a misdemeanor proceeding where no imprisonment is imposed. Therefore his sentence was properly enhanced. Justice Souter concurred, and Justices Blackmun, Stevens, and Ginsberg dissented. Nichols v. U.S., 511 U.S. 738, 114 S.Ct (1994). Supreme Court says federal felons are not affected by state restoration of civil rights. It is a crime for a person convicted of a felony to possess a firearm. 18 U.S.C. 922(g) But any conviction for which civil rights have been restored shall not be considered a conviction. In these consolidated cases, the defendants claimed that their civil rights had been restored by state statutes after they had been convicted in federal court of the predicate felonies on which their present convictions for being felons in possession of firearms were based. In a unanimous opinion written by Justice O Connor, the Supreme Court held that the restoration of civil rights by a state statute does not remove the disabilities imposed as a result of a defendant s federal conviction. The court thus overruled U.S. v. Edwards, 946 F.2d 1347 (8th Cir. 1991), and U.S. v. Geyler, 932 F.2d 1330 (9th Cir. 1991). The court expressed no opinion on whether a federal felon can have his civil rights restored under federal law. Beecham v. U.S., 511 U.S. 368, 114 S.Ct (1994). Supreme Court rules state laws restoring felon s civil rights do not bar federal conviction for felon in possession of a firearm. Under 18 U.S.C. 921(a)(20), a person convicted of a felony cannot possess a firearm. However, any conviction for which a person has had civil rights restored shall not be considered a conviction. In U.S. v. Edwards, 946 F.2d 1347 (8th Cir. 1991) and U.S. v. Geyler, 932 F.2d 1330 (9th Cir. 1991), the 8th and 9th Circuits held that a state s restoration of a felon s civil rights prevents use of prior state or federal convictions as an element of a federal charge of possession of a firearm by a convicted felon. In a unanimous opinion written by Justice O Connor, the Supreme Court rejected these cases, holding that persons convicted of a felony can take advantage of 921(a)(20) only if they have had their civil rights restored under federal law. Beecham v. U.S., 511 U.S. 368, 114 S.Ct (1994). Supreme Court holds felon in possession of firearm is not a crime of violence and remands for retroactivity ruling. In a unanimous opinion written by Justice Kennedy, the Supreme Court 5

6 held that, in accordance with the amendment to the commentary to 4B1.2, the crime of being a felon in possession of a firearm is not a crime of violence for career offender purposes. However, the Supreme Court did not address the question of whether the amended Commentary (amendment 433) applied to petitioner because the 11th Circuit had not addressed the government s nonretroactivity argument. The government took the position that petitioner must file a motion under 18 U.S.C. 3582(c)(2) for resentencing and noted that amendment 469 provided that amendment 433 may be given retroactive effect. This issue was not fairly included within in the grant of certiorari and can be considered on remand. Stinson v. U.S., 508 U.S. 36, 113 S.Ct (1993). Supreme Court says commentary amendment is binding despite prior court interpretation. Petitioner was convicted of being a felon in possession of a firearm. He was sentenced as a career offender under the 1989 version of the Sentencing Guidelines. After the sentence was affirmed on appeal, the Commentary to 4B1.2 was amended to provide that the term crime of violence does not include the offense of unlawful possession of a firearm by a felon (amendment 433). The 11th Circuit rejected a petition for rehearing, ruling that commentary, though persuasive, is of only limited authority and not binding. In a unanimous opinion by Justice Kennedy the Supreme Court reversed, finding that with limited exceptions, guideline Commentary is authoritative. Amendment 433 does not run afoul of the Constitution or a federal statute and is not inconsistent with 4B1.2. Consequently, it is binding on the courts. Stinson v. U.S., 508 U.S. 36, 113 S.Ct (1993). Supreme Court upholds presumption of regularity for prior convictions used to enhance sentence. Under a Kentucky statute regarding repeat felony offenders, a presumption of regularity attaches to enhancing prior convictions once the state proves the existence of the prior conviction. If the defendant refutes the presumption of regularity, the burden shifts back to the state to affirmatively show validity. Respondent challenged two convictions under Boykin v. Alabama, 395 U.S. 238 (1969) because the records did not contain transcripts of the plea proceedings and did not affirmatively show that the guilty pleas were knowing and voluntary. Justice O Connor, writing for an eight member majority, found that the Kentucky burden-shifting rule did not violate due process. It cannot be presumed from the mere unavailability of a transcript that a defendant was not properly advised. Due process does not require the state to prove the validity of a prior conviction by clear and convincing evidence. The court did not decide whether due process requires state courts to permit challenges to priors that are used for enhancement purposes. Parke v. Raley, 506 U.S. 20, 113 S.Ct. 517 (1992). First Circuit Cases 1st Circuit affirms continuance of sentencing in light of last-minute vacatur of prior sentence. Defendant's initial PSR classified him as a career offender based in part on a 2001 Massachusetts assault conviction. On September 19, five days before his September 24 federal sentencing, defendant moved in a Massachusetts court to vacate the 2001 conviction. The motion was heard on the morning of the 24th, and granted the same day, rendering the career offender status inapplicable. The government requested a continuance, which the district court granted, rescheduling the sentencing hearing for October 10. The government then petitioned the Massachusetts Supreme Court to vacate the order vacating the 2001 conviction. Before the Supreme Court responded, the state district judge, sua sponte, vacated her order and restored defendant's 2001 conviction. The First 6

7 Circuit held that the district court was within its discretion in continuing the sentencing hearing. The need for the continuance was largely of defendant's own making: he sought to vacate his 2001 state conviction just five days before the federal sentencing hearing, and his motion was granted the morning of sentencing, giving the government no more than several hours notice. Faced with a lastminute vacatur and a request for a brief continuance with a clearly defined purpose, the district judge's grant was entirely justifiable. U.S. v. West, F.3d (1st Cir. Jan. 26, 2011) No st Circuit says breaking and entering a building at night was not a crime of violence. Defendant was originally sentenced as a career offender based in part on the court's finding that his Massachusetts conviction for breaking and entering in the night time was a crime of violence. However, based on the First Circuit's en banc decision in U.S. v. Giggey, 551 F.3d 27 (1st Cir. 2009) (en banc), on remand the district court found that defendant's conviction did not meet the residual clause test for a crime of violence, and that he should not be sentenced as a career offender. The First Circuit agreed. While burglary of a building is comparable in kind to one of the listed offenses (burglary of a dwelling), the risk of burglary of a building, given Massachusetts's broad definition, is not comparable to burglary of a dwelling. While night-time entry compounds the risk to anyone already present, the reality is that many buildings are often wholly unoccupied at night. The statute covers a range of structures like storage sheds or detached garages where one might rarely encounter someone at night. U.S. v. Brown, F.3d (1st Cir. Jan. 27, 2011) No st Circuit holds that youthful offender adjudication was prior felony conviction. Defendant challenged the district court's decision to sentence him as a career offender, arguing that his youthful offender adjudication for armed robbery and assault with a dangerous weapon should not count as a predicate prior felony conviction. Initially, the district court considered certifying the question to the Massachusetts Supreme Judicial court to determine whether it would classify the offense as an adult conviction. However, U.S. v. Torres, 541 F.3d 48 (1st Cir. 2008), intervened; the district court held that it was directed by Torres to count the youthful offender adjudication as a prior felony conviction. Defendant conceded that Torres controlled his case, but raised the challenge in order to preserve the issue for further en banc review. The First Circuit agreed that it was bound to follow Torres and upheld the district court's sentencing decision. U.S. v. McGhee, F.3d (1st Cir. Dec. 7, 2010) No st Circuit allows resentencing where career offender s sentence was based on crack guidelines. Defendants were convicted of crack cocaine offenses, and qualified as career offenders. In both cases, the district court departed downward and imposed a sentence under the crack guidelines without applying the career offender designation. Both defendants later sought resentencing based on the recent amendments to the crack Guidelines. The First Circuit held that when a defendant s existing sentence was determined by the crack cocaine guidelines rather than the career offender guideline, resentencing is within the discretion of the district court. However, a mere reference to the lower sentences provided by the crack cocaine guidelines is not enough to find that a sentence is based on the crack guidelines. Here, at defendant Cardosa s sentencing, the judge stated that the career offender guideline was not a true reflection of defendant s criminal history, and that it was departing downward to the offense level without the career offender status. Thus, Cardosa s sentence was plainly based on the crack cocaine guidelines. The situation was less clear for defendant Rodriguez, so the panel remanded to let the district judge decide in the first instance 7

8 whether the sentence was or was not based on the crack cocaine guidelines. U.S. v. Cardosa, 605 F.3d 16 (1st Cir. 2010). 1st Circuit upholds finding that prior burglary offense did not pose serious potential risk of physical injury. The district court originally found that defendant was a career offender based on First Circuit precedent holding that non-residential burglaries were per se crimes of violence. On appeal, the First Circuit, en banc, overruled that case law, holding that district courts must use a categorical approach to examine whether the predicate offense presented a serious potential risk of physical injury. See U.S. v. Giggey, 551 F.3d 27 (1st Cir. 2008) (en banc). On remand, the district court held that defendant s prior burglary offense did not pose such a danger and that he was not a career offender. The First Circuit affirmed. The only question was whether the class C burglary viewed categorically created a risk of physical injury comparable to that of the crimes listed in U.S.S.G. 4B1.2(a)(2). The government did not argue for reversal on this ground, and only asked the court to stay the appeal and request the Sentencing Commission to clarify whether non-dwelling burglary is a crime of violence. Because there was no specification of error by the government, the panel dismissed the appeal. U.S. v. Giggey, 589 F.3d 38 (1st Cir. 2009). 1st Circuit remands to determine whether burglary of commercial building was crime of violence. Defendant contended that it was improper for the court to treat him as a career offender because burglary of a commercial building is not a predicate offense. The First Circuit s recent en banc decision in U.S. v. Giggey, 551 F.3d 27 (1st Cir. 2008) (en banc), abrogated the rule established in U.S. v. Fiore, 983 F.2d 1 (1st Cir. 1992), which held that a prior conviction for a burglary of a non-dwelling structure is per se a crime of violence under the Guidelines. Giggey held that in order to determine whether a defendant s prior convictions for non-residential burglary constituted crimes of violence, the district court is required to use the categorical approach, comparing the elements of the state crime against the requirement in U.S.S.G. 4B1.2(a)(2) that the offense involve conduct that presents a serious potential risk of physical injury to another. The First Circuit remanded for the district court to decide whether the prior burglary offense qualified as a crime of violence. U.S. v. Hersom, 588 F.3d 60 (1st Cir. 2009). 1st Circuit says escape from secure custody is a crime of violence. A defendant is a career offender if, among other requirements, he has two prior felony convictions for a "crime of violence" of a controlled substance offense. A "crime of violence" is defined in part to mean an offense that "involves conduct that presents a serious potential risk of physical injury to another." Defendant, convicted of bank robbery, had a prior conviction in Maine for escape from a secure custody. The First Circuit held that defendant's conviction was for a crime of violence. U.S. v. Willings, F.3d (1st Cir. Dec. 1, 2009) No st Circuit rules New York conviction for attempted sale of controlled substance was controlled substance offense. Defendant argued that his 1996 New York conviction for attempted sale of a controlled substance should not count as a "controlled substance offense" under the career offender guideline, because the New York statute defines "sale" of a controlled substance to include an "offer" to sell, and an offer to sell may not constitute a predicate offense. The First Circuit found no merit to this argument. Under New York law, in order to support a conviction under an "offering for sale theory," there must be evidence of a bona fide offer to sell i.e. the defendant had both the 8

9 intent and the ability to proceed with the sale. Thus, the case was distinguishable from U.S. v. Savage, 542 F.3d 959 (2d Cir. 2008), because there were no concerns that defendant was convicted of making a fraudulent offer, a non-predicate offense. U.S. v. Bryant, 571 F.3d 147 (1st Cir. 2009). 1st Circuit approves copy of court record to prove fact of prior conviction, despite ambiguous notation. The district court sentenced defendant as a career offender based in part on a Massachusetts drug conspiracy conviction. He argued that the government did not prove the state conviction, claiming that a handwritten docket sheet from the Municipal Court where the case originated put into question the validity of the conviction. The notation stated, "Previous record vacated. Superior Court Case is dismissed." Although this notation was not from the court of conviction, defendant argued that it was nevertheless a judicial record of the originating case that undermined the reliability of the conviction. The First Circuit held that the district court did not clearly err in finding that the certified copy of the record from the Superior Court was sufficiently reliable to support the fact of defendant's conviction. This type of record is presumptively reliable, despite the existence of the handwritten notation, which admittedly added some confusion. U.S. v. Bryant, 571 F.3d 147 (1st Cir. 2009). 1st Circuit finds insufficient evidence of fact of prior conviction. The district court sentenced defendant as a career offender based in part on a New York drug conviction. The government was unable to provide a judicial record of defendant's New York conviction. To prove the conviction, the government relied on the criminal history record maintained by the National Crime Information Center and the New York State Police, as well as the incarceration record from the New York Department of Corrections. Defendant argued that the Supreme Court's decision in Shepard v. U.S., 544 U.S. 13 (2005) required a prior conviction be proved by judicial records. The First Circuit disagreed, finding that Shepard was not applicable because it did not address what documents can be used to prove the fact of a prior conviction. However, the government did not meet its burden of proving the prior conviction. The district court could not rely on the government's recitation of the sources cited in the PSR without any additional inquiry into the reliability of those sources. The district court clearly erred by not requiring the government to show that the PSR's description of the offense was "based on a sufficiently reliable source to establish the accuracy of that description." U.S. v. Bryant, 571 F.3d 147 (1st Cir. 2009). 1st Circuit holds that burglary of curtilage of a structure was violent felony. The district court sentenced defendant as an armed career criminal based in part on its finding that his two prior Florida convictions for burglary in the third degree were violent felonies. The First Circuit agreed. It was true that the statute under which defendant was convicted covered more than generic burglary, since the Florida statute includes "curtilage" as part of the definition of "structure." Thus, defendant's convictions were not "generic burglaries" under the ACCA. However, the ACCA also contains an "otherwise" clause, which defines a violent felony as a crime that "otherwise involves conduct that presents a serious potential risk of physical injury to another." Both the Supreme Court and the Eleventh Circuit have held that burglary of the curtilage of a structure under Florida law presents a serious potential risk of physical injury to another for purposes of the "otherwise" clause of the ACCA. See U.S. v. Matthews, 466 F.3d 1271 (11th Cir. 2006) and James v. U.S., 550 F.3d 192 (2007). The district court properly found that defendant's two convictions for third degree burglary 9

10 under Fla. Stat (a) constituted "violent felonies under the otherwise clause. U.S. v. Pakala, 568 F.3d 47 (1st Cir. 2009). 1st Circuit holds that escape from secure custody was violent felony. Defendant was sentenced as an armed career criminal based in part on the district court's finding that his escape conviction was a violent felony. However, in Chambers vs. U.S., 129 S.Ct. 687 (2009), the Supreme Court ruled that failures to report and escapes from custody, although sometimes grouped together within a single criminal statute, do not belong to the same category of crimes for purposes of the "violent felony" provision of the Armed Career Criminal Act. This eroded First Circuit cases holding that all escape crimes should be treated the same in making the violent felony or crime of violence determination. The court must now identify the category of escape crime applicable to defendant's conviction, and determine whether crimes in that category should be considered ACCA predicate violent felonies. Defendant's indictment revealed that his was not a failure to report crime but an escape from secure custody, by crawling under a fence at a county jail. The First Circuit held that this was a violent felony within the meaning of the ACCA. U.S. v. Pratt, 568 F.3d 11 (1st Cir. 2009). 1st Circuit says charge that defendant "did assault and beat" victim established violent felony. Under Massachusetts law, assault and battery may be of two separate types, "offensive" and "harmful." The latter type qualifies as a violent felony under the ACCA. See U.S. v. Holloway, 499 F.3d 114 (1st Cir. 2007). Based on three prior Massachusetts assault and battery convictions, the sentencing court classified defendant as an armed career criminal. The district court relied on charging language that defendant "did assault and beat" the victim to find that each assault and battery conviction was for the "harmful," violent type of assault and battery. The First Circuit affirmed. In four previous cases, the appellate court determined that the "did assault and beat" charging language sufficed to identify the "harmful" brand of assault and battery. Although defendant presented affidavits from both a current and retired clerk in the Massachusetts state court that the "did assault and beat" charging language is used in all assault and battery cases regardless of which type was being charged, the First Circuit found that it was bound by existing precedent. U.S. v. Rivera, 562 F.3d 1 (1st Cir. 2009). 1st Circuit says assault and battery with a dangerous weapon was crime of violence. Defendant received an enhanced offense level under 2K2.1(a)(2) based on the court's finding that his prior conviction for assault and battery with a dangerous weapon (ABDW) was a crime of violence. The First Circuit affirmed. The offense "involved conduct that presents a serious potential risk of physical injury to another," under the residential clause of 4B1.2(a)(2). The crime also met the additional requirements set forth in the Supreme Court's recent decision of Begay v. U.S., 128 S.Ct (2008). Begay says that to qualify as a violent felony under the residual clause, the offense must (1) pose a degree of risk that is similar to the degree of risk posed by the enumerated offenses of arson, burglary, extortion and offenses involving the use of explosives, and (2) be similar "in kind" to those offenses, i.e., involve purposeful, violent, and aggressive conduct. Because a defendant must use a dangerous weapon to be convicted of ABDW, the offense poses a risk of injury comparable to the enumerated offenses. ABDW also is a purposeful offense that involves aggressive and violent conduct. U.S. v. Glover, 558 F.3d 71 (1st Cir. 2009). 10

11 1st Circuit finds conviction for resisting arrest was "prior felony conviction" under career offender guideline. Defendant was sentenced as a career offender based in part on his prior conviction for resisting arrest, in violation of Massachusetts law. The First Circuit held that the district court properly determined that resisting arrest conviction was a "prior felony conviction" because under Massachusetts law, resisting arrest, a misdemeanor offense, carries a punishment of up to two and one-half years in jail. The fact that 4A1.2(c) cites "resisting arrest" as an example of a misdemeanor or petty offense did not change this analysis. Any ambiguity is resolved by 4A1.2(o), which states that for 4A1.2(c), a "felony offense" means any federal, state, or local offense punishable by death or a term of imprisonment exceeding one year, regardless of the actual sentence imposed." In order for a resisting arrest offense to qualify as a misdemeanor offense for purposes of 4A1.2(c), it would have to be punishable by imprisonment for a term under one year. U.S. v. Almenas, 553 F.3d 27 (1st Cir. 2009). 1st Circuit rules that resisting arrest was crime of violence. Defendant was sentenced as a career offender based in part on his previous conviction for resisting arrest. The First Circuit upheld the district court's finding that resisting arrest qualified as a crime of violence for career offender purposes. One section of the state statute defines the offense as "using or threatening to use physical force or violence against the police officer or another." Mass. Gen Laws, ch. 268, 32B(1). This method of resisting arrest fits squarely within the definition of a crime of violence. The second method of resisting arrest involves "using any other means which creates a substantial risk of causing bodily injury to such police officer of another." Mass. Gen Laws, ch. 268, 32B(2). Even after Begay, this second method of resisting arrest qualifies as a crime of violence under the so-called residual cause because it (a) poses a degree of risk roughly similar to the risk posed by the enumerated offenses, and (b) involves purposeful, violent and aggressive conduct. Stiffening one's arm to avoid being handcuffed cannot be characterized as "non-violent," or "non-aggressive." U.S. v. Almenas, 553 F.3d 27 (1st Cir. 2009). 1st Circuit, en banc, requires categorical approach under residual clause to decide if nonresidential burglary is crime of violence. In U.S. v. Sawyer, 144 F.3d 191 (1st Cir. 1998), and U.S. v. Fiore, 983 F.2d 1 (1st Cir. 1992), the First Circuit held that a prior conviction for a burglary which is not of a dwelling is per se a "crime of violence'" under the Guidelines. Here, the First Circuit en banc reversed course and rejected the per se rule, holding instead that whether a prior conviction for non-residential burglary is a crime of violence turns on the application of a categorical approach under 4B1.2(a)(2)'s residual clause. In determining whether a prior offense is a violent felony under the ACCA, the Supreme Court has consistently adhered to a categorical approach. The en banc court believed that the Sentencing Commission intended this categorical approach be used in interpreting the career offender guideline, by using identical language to the ACCA in the residual clause and through its commentary. Moreover, other circuits uniformly apply a categorical approach when considering whether non-burglary crimes are included under 4B1.2(a)(2)'s residual clause. U.S. v. Giggey, 551 F.3d 27 (1st Cir. 2008) (en banc). 1st Circuit says crack amendment did not apply to career offender. Defendant was convicted of possessing crack cocaine. Because he qualified as a career offender, and his offense level under the career offender guideline was higher than under the drug guidelines, he was sentenced as a career 11

12 offender. His guideline range was months, but the district court varied downward to 108 months based on defendant's health. Defendant later moved under 3582(c)(2) to reduce his sentence based on Amendment 706, which decreased the base offense levels for crack offenses. The district court found that 3582(c)(2) was not applicable, since defendant's offense level had been calculated under the career offender guideline, and the First Circuit agreed. If an amended guideline does not have the effect of lowering the sentencing range actually used at sentencing, the defendant's sentence was not "based on a sentencing range that has subsequently been lowered." Even though defendant received a non-guideline sentence, that had no effect on the sentencing range applicable in his case. U.S. v. Caraballo, F.3d (1st Cir. Dec. 22, 2008) No st Circuit holds transporting minor for prostitution is categorically crime of violence. Defendant was convicted of interstate transport of a minor for prostitution purposes, and sentenced as a career offender. The First Circuit affirmed, holding that the offense was categorically a crime of violence for career offender purposes. The fact that defendant himself was not involved in sexual contact with the minor did nothing to diminish the risk that force might be used. A prostituted child who is exploited in violation of 2423(a) faces more and greater risks than does a seduced child. The Supreme Court's recent decision in Begay v. U.S., 128 S.Ct (April 16, 2008), did not change this conclusion. Begay, which charted a new course in interpreting the violent felony definition under the ACCA, had to be considered because this circuit reads the ACCA and the almost identical language in the career offender guideline the same. Begay, which held that DUI is not a violent felony, directs a court to focus not only on the degree of risk of harm posed by a particular crime, but whether the crime involves purposeful, violent, and aggressive conduct. The panel acknowledged that the offense here was different from other crimes of violence in that the defendant himself was not necessarily the agent of violence. However, since the risk of harm is so substantial and so easily foreseen by the defendant, there was no basis for distinction. U.S. v. Williams, F.3d (1st Cir. May 7, 2008) No st Circuit holds homicide by negligent operation of motor vehicle is not crime of violence. The district court applied an enhanced offense level based on its finding that defendant's prior Wisconsin conviction for motor vehicle homicide was a crime of violence under 4B1.2(a). The First Circuit found that under the Supreme Court's recent decision in Begay v. U.S., 553 U.S. (2008), the offense did not qualify as a crime of violence. Under Begay, the crime at issue must be "roughly similar" in kind, as well as in degree of risk posed, to the crimes listed in the "otherwise" clause (burglary, arson, extortion or crimes involving use of explosives). Begay found that DUI was not a violent felony because it was too unlike the listed examples, even though it was roughly similar in degree of risk. Here, although vehicular homicide met the necessary degree of risk to be a crime of violence, it was not similar in kind to the enumerated offenses. Although it was violent, it was not necessarily aggressive or purposeful. Vehicular homicide involving criminal negligence does not involve the requisite purposeful, intentional or deliberate conduct to be a crime of violence. U.S. v. Herrick, 545 F.3d 53 (1st Cir. 2008). 1st Circuit remands to consider whether two burglary sentences on same day constituted a single offense. Applying the 2005 sentencing guidelines, the district court found that defendant was a career offender based on two prior crimes of violence both apartment burglaries in the same building in the same week. On appeal, defendant argued that the burglaries should be counted as one 12

13 because they were related sentences under 4B1.2(c). The First Circuit rejected the argument. Although defendant was sentenced for the two burglaries on the same day, the two crimes had not been consolidated for trial or sentencing. Nevertheless, the First Circuit noted that while defendant's appeal was pending, 4B1.2(c) was amended to provide that two prior convictions are counted as one if the resulting sentences were imposed on the same day. The amendment was not retroactive, but it made it clear that the Commission now believes two burglary sentences imposed on the same day should be treated as one. On defendant's petition for rehearing, the First Circuit found that the district judge should be given a chance to reconsider the sentence, because the judge's discretion is no longer rigidly controlled by the guideline range, and the judge is free to consider the Commission's current thinking for whatever use it may be. U.S. v. Godin, 522 F.3d 133 (1st Cir. 2008). 1st Circuit finds defendant waived objection to career offender status by failing to object despite express invitation. Defendant argued that the two prior convictions used to sentence him as a career offender were inadequately substantiated, and that the district court erred when it relied on the PSR for proof of these prior convictions. However, at his disposition hearing, defendant never lodged an objection to the inclusion of either of these prior convictions in the PSR, and did not object to the court's designation of him as a career offender. This was particularly striking because, at multiple times during the Rule 11 hearing, the district court expressly invited defendant to take the opportunity provided by the disposition hearing to challenge any mischaracterization of his prior criminal record or his status as a career offender. The First Circuit held that defendant, having been expressly invited to object on the ground that his predicate convictions did not qualify him for career offender status, and having eschewed that opportunity, waived that objection. Not even plain-error review is available to a party who has waived a claim of error. U.S. v. Jimenez, F.3d (1st Cir. Dec. 27, 2007) No st Circuit says use of crack penalties was irrelevant to defendant sentenced as career offender. Defendant argued that the court erred by sentencing him on the basis of possessing crack cocaine, rather than another form of cocaine base. The First Circuit found this issue irrelevant because defendant was sentenced as a career offender. Since his offense level calculated without reference to the career offender provisions was less than his offense level calculated in accordance with those provisions, the latter trumped the former. See U.S.S.G. 4B1.1(b). The career offender provisions do not distinguish between crack cocaine and other forms of cocaine base. Regardless of whether defendant possessed crack cocaine or some other form of cocaine base, his sentencing range as a career offender would have been the same. U.S. v. Jimenez, F.3d (1st Cir. Dec. 27, 2007) No st Circuit holds that court abused discretion by refusing to grant continuance to gain further info about status of prior convictions. The government appealed the district court's refusal to grant a continuance so that it could directly inquire with the Massachusetts state court as to the meaning of a contested docket entry and the actual status of defendant's February 1999 conviction. In denying the government's request for a continuance, the district court accepted defendant's position that the contested docket entry vacated his February 1999 conviction and ruled that he was not a career offender for sentencing purposes. The First Circuit held that the district court abused its discretion in refusing to grant the continuance. The government's request for time to clarify the veracity of 13

14 defendant's argument was justifiable, especially since it informed the court precisely what steps it would take if the continuance were granted. While the court's interest in concluding what had become a protracted sentencing process was understandable, this did not outweigh the government's interest in having defendant's sentence calculated using the most accurate information available. U.S. v. Fink, 499 F.3d 81 (1st Cir. 2007). 1st Circuit holds attempted possession of controlled substance was "felony drug offense." A jury convicted defendant of drug charges. The district court found that he was subject to a mandatory minimum life sentence based in part on its finding that "attempt" offenses are felony drug offenses under 21 U.S.C. 841(b)(1). The First Circuit agreed that attempted possession of controlled substances is a "felony drug offense" under the sentencing enhancement provisions of 21 U.S.C. 841(b)(1). A "felony drug offense" is "an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct related to narcotic drugs." The classification that Congress built into the Controlled Substances Act sweeps broadly. To "relate" means to show or establish a logical or casual connection. An attempt to possess a controlled substance is, by definition, connected logically and causally to narcotic drugs. Case law supports this interpretation. Courts interpreting the Armed Career Criminal Act, 18 U.S.C. 924(e), have held that attempted possession with intent to distribute qualifies as a "serious drug offense," notwithstanding its inchoate character. In addition, the Sentencing Commission includes inchoate offenses in its definition of a "controlled substance offense." U.S. v. Brown, 500 F.3d 48 (1st Cir. 2007). 1st Circuit finds charging document supported violent felony finding. Defendant pled guilty to being a felon in possession of ammunition. Defendant had three prior Massachusetts convictions for assault and battery. The government argued that the offenses were violent felonies, and defendant should be sentenced under the Armed Career Criminal Act, 18 U.S.C. 924(e), because each conviction was based on a charging document that alleged that defendant did "assault and beat" the victim. Defendant claimed that this language was boilerplate that said nothing about the nature of the underlying crime (the Massachusetts statute included both harmful and non-harmful conduct). The district court accepted this position and refused to sentence defendant under the ACCA. The First Circuit reversed, finding defendant's position foreclosed by precedent holding that a Massachusetts charging document that states the defendant "assault[ed] and beat" the victim is sufficient to establish that the conviction was for a violent battery and therefore a "crime of violence" under the guidelines. See, e.g., U.S. v. Estevez, 419 F.3d 77 (1st Cir. 2005). The definitions of "violent felony" in the ACCA and "crime of violence" in U.S.S.G. 4B1.1 are essentially the same, and therefore the court may look to cases dealing with either of them. U.S. v. Holloway, 499 F.3d 114 (1st Cir. 2007). 1st Circuit holds Massachusetts assault was a crime of violence. The district court applied a 16- level enhancement under 2L1.2(B) (1) based on its finding that his assault conviction, under Mass. Gen Laws ch. 265, 15A, was a crime of violence. The statute contained two subsections. Subsection (b) sets out punishment for anyone who "commits assault and battery upon another by means of a dangerous weapon." Thus, the statutory definition "admits to no interpretation other than a crime that involves the use of physical force against another person." The First Circuit ruled that the district court did not err in relying on the state statutory definition of the crime rather than the 14