When Is A Felony Not A Felony?: A New Approach to Challenging Recidivist-Based Charges and Sentencing Enhancements

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1 When Is A Felony Not A Felony?: A New Approach to Challenging Recidivist-Based Charges and Sentencing Enhancements Alan DuBois Senior Appellate Attorney Federal Public Defender-Eastern District of North Carolina A. Many offenses and sentencing enhancements require the existence of a prior felony or conviction of a specific length: 1. Unlawful Possession of a firearm by a felon 18 U.S.C. 922(g) requires felony conviction. 2. Armed Career Criminal Enhancement 18 U.S.C 924(e) requires a serious drug offense with a stat max of at least 10 years or a violent felony. 3. Career Offender U.S.S.C. 4B1.1 requires a crime of violence or controlled substance offense punishable by a term exceeding one year. 4. Illegal Re-entry U.S.S.C. 2L1.2 premises different punishments for re-entry following conviction of felony, aggravated felony, etc. This paper discusses ways to attack these charges and enhancements by showing that the defendant s predicate conviction does not qualify as a felony because, as to this particular defendant, the conviction was not punishable by more than a year (or 10 years in the case of an ACCA serious drug offense). B. What is a felony? 1. Ignore the Label: In determining whether a particular state conviction qualifies as a predicate felony, the label the state places on the offense is irrelevant. Some convictions a state calls felonies are not predicates, while other convictions a state calls misdemeanors are predicates. 2. Look to the Stat Max: Most federal statutes define felony in terms of the maximum punishment applicable to the offense. Generally, a felony is any crime,

2 regardless of how it is labeled, that carries a maximum sentence of more than twelve months in prison. 3. Watch out for two year Misdemeanors: Several states, including Massachusetts and North Carolina, have or had misdemeanor offenses that are punishable by up to two years in prison; thus, despite the state label, they qualify as felonies for federal sentencing purposes. It is entirely possible for a defendant to qualify for the 15-year ACCA mandatory based on three state misdemeanor convictions. C. How do you determine the stat max? This is where things get tricky. Historically, things were relatively straightforward. There were fewer types of offenses and most had clearly defined maximum punishments that were explicitly set out in the state s criminal code. However, with the rise of sentencing guideline systems and the increased use of recidivist-based, career offender, habitual felon-type sentencing enhancements, things got more complicated. With guideline systems, a range of punishments is applicable to a particular offense and that range can go up or down based on the presence of aggravating or mitigating factors and the specifics of the defendant s criminal history. Thus, the maximum punishment applicable to a particular offense and defendant varies case by case. So for example, under the North Carolina sentencing guideline system, possession with intent to distribute cocaine is a Class H felony. According to the North Carolina sentencing chart, depending on the defendant s past criminal record, the maximum possible punishment for this offense could be as low as 10 months for a first offender to as much as 30 months for the defendant with the worst possible criminal record. What, then, is the stat max for possession with intent to distribute cocaine in North Carolina? To answer this question do we look to the maximum possible sentence the particular defendant could receive? Or do we look to the maximum possible sentence a hypothetical defendant with the worst possible record could receive? 2

3 This is a question with huge consequences. Under the first approach, a first offender convicted of this PWID offense could face no more than 10 months in prison. So if this is deemed the stat max, this conviction could not later be used as a predicate felony for 992(g), etc, because the offense was not punishable by more than 12 months. However, if the stat max is determined based on the maximum sentence any defendant could receive (30 months), then a North Carolina PWID conviction would qualify as a felony for every defendant, including our first offender even though he personally could not have received a sentence of more than 10 months for this offense. Similar questions arise when dealing with simple recidivism enhancements. Suppose a state law imposes a 5 year maximum for a particular drug offense but a 10 year maximum if the conviction is for a second offense. Is the stat max for this offense 5 or 10 years? In other words, should any recidivism based enhancement be taken into account in determining the stat max or do we only look at the maximum punishment for the offense itself? Does the answer to this question change based on whether this is the particular defendant s first or second offense? Does it matter if the defendant was technically eligible for the 10-year sentence but the state chose not to pursue the enhancement? Over the past several years, the circuit courts and, increasingly, the Supreme Court have grappled with the surprisingly knotty issues regarding how to determine what the statutory maximum is for a specific offense. These cases provide the blueprint for attacking recidivist-based charges and sentencing enhancements. D. The Bad Law: The Stat Max Should be Determined Based on the Sentence the Worst Possible Defendant Could Receive. Several courts have held that an offense should be deemed a felony if any defendant could receive a sentence of more than 12 months upon conviction. For instance, in United States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005), the Fourth Circuit held that to determine whether a conviction is a crime punishable by a prison term exceeding one year," courts should "consider the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history. Harp reasoned that syntax dictates looking to the maximum aggravated sentence because punishable is an adjective used to describe crime [and] [a]s such, it 3

4 is more closely linked to the conduct, the crime, than it is to the individual convicted of the conduct. Id. (quoting United States v. Jones, 195 F.3d 205, 206 (4th Cir. 1999)). This view was also adopted by the Tenth Circuit in United States v. Hill, 539 F.3d 1213, 1218 (10th Cir. 2008): In drafting 922(g), Congress focused on the crime, not the individual defendant. The statute criminalizes the possession of firearms for any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year. On the question whether 922(g) is defendant-centered or crime-centered, the reasoning of the Fourth Circuit is persuasive: 922(g) requires only that the crime be punishable by a term exceeding one year. (Citing Jones, 195 F.3d at 207). The upshot of these cases is that a defendant could be deemed convicted of a felony (i.e., a crime punishable by more than one year) even if there were no set of circumstances under state law that would have permitted that particular defendant to receive a sentence of 12 months or more. In this analysis, the only relevant inquiry is whether any hypothetical defendant convicted of the same offense could have legally received a sentence of more than a year. See Carachuri-Rosendo v. Holder, 570 F.3d 263, (5th Cir. 2009) rev d 130 S.Ct (2010). If so, the offense qualifies as a felony for all defendants. E. The Sixth Circuit to the Rescue: The Stat Max Must Be Determined Based on the Maximum Sentence Faced by the Individual Defendant Before the Court. Thankfully for this paper, the Sixth Circuit considered and rejected the Harp analysis and, instead, adopted an approach which focuses on the actual maximum sentence a specific defendant could receive under the applicable laws of the state. In United States v. Pruitt, 545 F.3d 416 (6th Cir. 2008), the court considered whether the defendant s two North Carolina convictions for possession with intent to deliver marijuana were punishable by more than one year and thus qualified as career offender predicates. The court found that a defendant s maximum sentence under the North Carolina guideline system was determined based on both the circumstances of his offense and his past criminal record. For Mr. Pruitt s PWID marijuana conviction, a defendant with the worst criminal record could receive a sentence of up to 15 months, in others words 4

5 felony level punishment. However, the maximum punishment for defendants at lower criminal history levels was less than 12 months, which was not felony level punishment. The question before the Sixth Circuit was, in determining the stat max applicable to the offense, did the court have to take into account Mr. Pruitt s criminal history category which, under state law, imposed an absolute limit on the length of the sentence he could receive or could it simply look to the sentence that could be imposed on the defendant in the highest criminal history category. The Sixth Circuit held that a federal court must take into account the defendant's state criminal history (or lack thereof) at the time of his predicate North Carolina convictions in order to determine whether that predicate was punishable by... imprisonment for a term exceeding one year. 545 F.3d at 417 (emphasis added)(applying Career Offender guideline). It is reversible error for a federal court to instead examine the maximum sentence allowable for a hypothetical defendant with the worst prior record level when determining whether a North Carolina predicate conviction is punishable by over one year. Id. at 418. Pruitt noted that this result derives in large part from North Carolina s structured sentencing scheme which, [u]nlike many substantive criminal statutes... do[es] not prescribe a statutory maximum punishment for the offense, but instead effectively tailors the statutory maximum punishment available to each individual defendant. Id. at North Carolina s sentencing law reflects a clear legislative judgment to vary a defendant's sentencing exposure based on criminal history. Id. at 422. A North Carolina sentencing judge lacks the discretion or power to sentence a defendant above the aggravated range supported by his prior record level. Id. Thus, under the North Carolina scheme, a defendant's criminal history has a significant effect on the maximum sentence authorized. Id. It is therefore reversible error for a district court not to consider [a defendant s] prior record level in determining whether [that defendant s] convictions were for an offense punishable by a term of imprisonment exceeding one year. Id. F. The Supreme Court Weighs In, Creates Hope, Causes Confusion: United States v. Rodriguez In United States v. Rodriquez, 553 U.S. 377, (2008) addressed the question of what counted as a predicate serious drug offense conviction for purposes of the ACCA. Serious drug offenses are ones for which a maximum term of imprisonment 5

6 of ten years or more is prescribed by law. 18 U.S.C. 924(e)(2)(A). The Court held that for purposes of 924(e), a Washington state statute providing for a ten-year maximum term for [a]ny person convicted of a second or subsequent [drug] offense prescribed a maximum ten-year term of imprisonment. Id. at (citing Wash. Rev. Code (a)(1)(ii)-(iv) (1994)) (internal quotation marks omitted). In so holding, the Court rejected the defendant s argument that a maximum term of imprisonment... is determined without reference to recidivist enhancements. Id. at In Rodriguez, the defendant was a second offender and thus subject to the recidivist stat max of ten years. The Rodriguez Court did not directly answer the more difficult question of what would be the stat max, for ACCA purposes, for a first offender under the Washington penalty scheme. A Harp analysis would suggest that because some offenders could receive 10 years for commission of the Washington drug offense, the offense would qualify as an ACCA predicate for all offenders. However, the Rodriguez court suggested (but did not formally hold) that this analysis may not be correct. In one section of the opinion, Rodriquez addressed the argument that, in practice, determin[ing] whether a defendant faced the possibility of a recidivist enhancement would often be difficult to determine[.] Id. at The Court called any such concern exaggerate[d], and demonstrated that, contrary to Harp, when it is criminal history that determines the maximum punishment for an offense, the inquiry is defendant specific, prosecutorial difficulties notwithstanding. The Court s in-depth discussion in Rodriquez of the difficulty of determining whether a defendant was sentenced as a recidivist, and thus determining what term of imprisonment the criminal statute prescribed, makes no sense under a Harp analysis. If the law is that a court may look to the highest possible sentence at the highest possible criminal history category, an entire section of the Rodriquez opinion is irrelevant to the issue the Court decided in that case. The highest recidivist penalty would be the universal stat max for the offense, there would never be a need to engage in a Shepardtype inquiry into the prior sentence, and the government would never have a need to establish that a conviction was for a qualifying offense, let alone be precluded from doing it. Rodriquez engaged in this analysis because, contrary to Harp s holding, the court must conduct a defendant-specific inquiry to determine whether a prior conviction was punishable by over a year. 6

7 Indeed, Rodriguez s discussion about the need for a court to determine whether a defendant was subject to a recidivist penalty (and thus subject to a higher stat max) was the linchpin pin of the Sixth Circuit s decision in Pruitt which held there is no reasonable basis on which to distinguish the North Carolina scheme's consideration of a defendant's prior record level and the recidivism enhancement provision at issue in Rodriquez. Under each, the prior criminal record of the defendant operates to increase the defendant's sentencing exposure, reflecting a legislative judgment to authorize harsher criminal penalties for persons who have previously engaged in criminal activity. In Rodriquez, the Court made clear that two of the defendant's prior Washington convictions carried a maximum sentence of ten years because the defendant himself was subject to the recidivism enhancement. In [North Carolina], the relevant substantive criminal statute does not itself prescribe a maximum punishment. Instead, the maximum punishment is derived under the North Carolina structured scheme. Under that scheme, [a defendant]'s state prior record level dictates his sentencing exposure and, consequently, it must be considered in determining whether [that defendant]'s convictions were "punishable" for a term exceeding one year. Pruitt, 545 F.3d at 423. However, not all courts read Rodriguez the same way. In fact, the Tenth Circuit in Hill relied on Rodriquez to reach the exact opposite conclusion; i.e, that the applicable statutory max is the longest term of imprisonment any defendant could receive. The Tenth Circuit did not address the portion of the Rodriguez opinion relied upon by Pruitt but instead relied upon a different section which rejected Rodriguez s argument that the top of his state guideline range should constitute his statutory maximum. Hill, 539 F.3d at What the Tenth Circuit failed to note was that the Supreme Court s rejection of this argument relied heavily on the fact that, in many guideline systems, the top of the range does not set a hard ceiling and thus does not constitute a true maximum penalty. Rodriguez, 533 U.S. at (noting that under Washington law, the court could impose sentence above the top of the guideline range for substantial and compelling reasons justifying an exceptional sentence ). It did not address sentencing systems where a court has no authority to impose a sentence higher than the top of the applicable guideline range. 7

8 G. The Smoke Begins to Clear, Our Side Wins?: United States v. Johnson and Carachuri-Rosendo v. Holder. Two recent Supreme Court cases strongly suggest Pruitt had a better reading of Rodriguez and that statutory maximum penalties must be determined in relation to maximum legal sentence faced by the specific defendant, not the maximum sentence faced by the worst possible defendant. United States v. Johnson, 130 S.Ct (2010) reinforces Rodriquez s defendantspecific approach to determining whether a crime is punishable by over a year when state law assigns different punishments based on a defendant s criminal history. In Johnson, the defendant had a Florida conviction for simple battery, a conviction that the government argued counted as an ACCA predicate violent felony. 130 S. Ct. at In describing the conviction, the Supreme Court noted that the conviction... under Florida... ordinarily is a first degree misdemeanor. Id. at Mr. Johnson s conviction became a third-degree felony under Florida law, the Court continued, because he had a previous conviction for battery. Id. (citing Fla. Stat (2)). If the Supreme Court had followed the court s approach in Harp, it would have simply noted that simple battery in Florida is a felony because the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history is over one year. Harp, 406 F.3d at 246 (emphasis altered). The Supreme Court did not do that, however. Instead, it specifically inquired as to Johnson s criminal history in determining whether his conviction was for a felony. This simply does not make sense if Harp was correctly decided. An even more important case for our argument was also decided by the Supreme Court last term. Carachuri-Rosendo v. Holder, --- S. Ct. ----, 2010 WL (2010) explicitly affirms the defendant-specific approach described in Rodriquez and Pruitt and 1 rejects the approach set out in Harp and Hill. Whereas Harp holds that a conviction is 1 It is very significant that in light of Carachuri-Rosendo, the Supreme Court granted certiorari, vacated the judgment, and remanded the case in four cases from this circuit that relied on Harp. See United States v. Smith, 354 F. App x 830 (4th Cir. 2009), (per curiam; unpublished), cert. granted, judgment vacated, and case remanded, 2010 WL (U.S. June 21, 2010) (No ); United States v. Williams, 353 F. App x 839 (4th Cir. 2009)(per curiam; unpublished), cert. granted, judgment vacated, and case 8

9 punishable as a felony if felony punishment would have been authorized for any defendant with the worst possible criminal history, Carachuri- Rosendo holds that a prior conviction is punishable as a felony only if felony punishment is authorized for the defendant himself with his particular criminal history. In Carachuri-Rosendo, the defendant had two misdemeanor drug possession convictions. Under the applicable law, the second misdemeanor conviction could have been prosecuted as a felony if the prosecutor had given notice of the prior drug conviction. The question in Carachuri-Rosendo was whether Carachuri s second conviction thus constituted an aggravated felony for immigration purposes. See 2010 WL , *3-*4. The Fifth Circuit, applying what it called the hypothetical approach, held that a conviction qualifies as an aggravated felony if the government could have prosecuted a defendant for an aggravated felony, notwithstanding whether or not it actually chose to do so. Accordingly, it held that Carachuri s second conviction was an aggravated felony even though in his particular case the charge was prosecuted as a misdemeanor. The Supreme Court rejected the hypothetical approach and reversed the Fifth Circuit. The Court explained that because the statutory question was whether Carachuri had been convicted of a[n] aggravated felony, the Court had to look to the conviction itself as [its] starting place, not to what might have or could have been charged. Carachuri-Rosendo, 2010 WL , *8 (quoting 8 U.S.C. 1229b(a)(3)) (emphasis in Carachuri-Rosendo). The Court expressly noted that Rodriquez held that a recidivist finding could set the maximum term of imprisonment, but only when the finding is a part of the record of conviction. Indeed, we specifically observed that in those cases in which the records that may properly be consulted do not show that the remanded, 2010 WL (U.S. June 21, 2010) (No ); United States v. Simmons, 340 F. App x 141 (4th Cir. 2009) (per curiam; unpublished), cert. granted, judgment vacated, and case remanded, 2010 WL (U.S. June 21, 2010) (No ); United States v. Watson, 336 F. App x 363 (4th Cir. 2009) (per curiam; unpublished), cert. granted, judgment vacated, and case remanded, 2010 WL (U.S. June 21, 2010) (No ). 9

10 defendant faced the possibility of a recidivist enhancement, it may well be that the Government will be precluded from establishing that a conviction was for a qualifying offense. Id. at *8n.12 (quoting Rodriquez)(emphasis added). In other words, the proper inquiry is not, as Harp holds, on the maximum punishment faced by any hypothetical defendant. It is on the maximum punishment faced by the actual defendant before the court. Carachuri-Rosendo also affirms the importance of considering procedural safeguards when determining punishability. The Carachuri-Rosendo Court noted that a second simple possession offense (like that sustained by Carachuri in Texas) may be prosecuted as a felony in federal court only if certain procedures are followed. Among other things, the government must give notice of its intent to prove the fact of the prior conviction before it can prosecute the offense as a felony. Carachuri-Rosendo went on to say that [m]any state criminal codes, like the federal scheme, afford similar deference to prosecutorial discretion when prescribing recidivist enhancements. Id. at 86. In Carachuri s case, the Texas prosecutor specifically elected to [a]bandon a recidivist enhancement under state law. Id. (alteration in the original). Were we to permit a federal immigration judge to apply his own recidivist enhancement after the fact so as to make the noncitizen s offense punishable as a felony for immigration law purposes, the Court said, we would denigrate the independent judgment of state prosecutors to execute the laws of those sovereigns. Id. Interestingly, the Fourth Circuit largely anticipated the Carachuri-Rosendo opinion th in its 2003 decision in United States v. Williams, 326 F.3d 535 (4 Cir. 2003). There, in an opinion strongly at odds with its later decision in Harp, the Fourth Circuit examined whether a defendant s prior conviction for a New Jersey drug offense was an offense with a ten-year maximum and therefore could be used as a predicate for sentencing Mr. Williams as an Armed Career Criminal. Id. Mr. Williams had two prior New Jersey drug convictions under statutes that had a five-year maximum punishment for defendants without a prior drug conviction, and a ten-year maximum for defendants with a prior drug conviction. Id. at (citing New Jersey statutes). The court did not, as the holding in Harp would compel, hold that Mr. Williams New Jersey predicates were serious drug offenses because they were punishable by ten years for a defendant with the worst possible criminal history. Harp, 406 F.3d at 246. Instead, Williams looked to the individual defendant in the case and how the statute at issue applied to him when he was sentenced in state court. It also 10

11 noted, critically, that New Jersey did not apply the enhanced ten-year maximum sentence on a defendant automatically, but only after the New Jersey district court imposed certain procedural requirements, one of which was establishing prior convictions by the prosecution at a sentencing hearing. Williams, 326 F.3d at 539. Because the prosecution for Mr. Williams 1993 New Jersey convictions did not meet these procedural requirements, he was not (as a matter of New Jersey law) subject to a ten-year maximum sentence. Id. As the court noted, holding otherwise would not only mis-apply the ACCA, but also implicate Constitutional concerns: [t]o subject Williams to an enhancement now, based upon a sentence that he could have received only after the exercise of procedural safeguards, would compromise not only Williams's statutory rights, but his due process rights as well. Id. Carachuri-Rosendo and Williams thus stand for the proposition that if the procedural requirements for subjecting a defendant to a higher statutory maximum penalty are not satisfied then the higher statutory maximum is simply not applicable to the defendant, even if he, in fact, met all the requirements for the elevated penalty. Harp and Hill simply cannot be reconciled with the Supreme Court s treatment of recidivism enhancements in Rodriguez, Johnson, and Carachuri-Rosendo. It is Pruitt which provides the correct analysis and provides the best argument for attacking convictions or enhancements based on prior convictions where the particular defendant could not have been legally sentenced to more than 12 months in prison. H. When and How to Deploy this Argument. This section is designed to help you identify cases where you can employ this argument. 1. Does the case involve a charge or enhancement that requires a prior felony conviction or conviction of a certain length? For example, the argument may be available in 922(g), ACCA, career offender, immigration, child porn and drug cases. 2. Did the defendant actually receive less than 12 months for his predicate conviction? If the defendant received a sentence of more than a year (or 10 years in the case of an ACCA serious drug offense), his conviction was obviously punishable as a felony as to him and this argument is not available. However, if the actual sentence was less than a year, further investigation is warranted. 11

12 3. What was stat max applicable to the defendant under the law of state of conviction? This requires research into the specific sentencing system of the convicting state. If the state sets a single stat max for each offense and grants the court discretion to impose a sentence up to the stat max, the answer to the question is easy: the conviction is a felony if it allows a sentence of more than 12 months. However, in states with mandatory guideline systems with limited judicial discretion, it is important to determine the guideline range based on the defendant s offense level and criminal history. If that range is less than 12 months, this conviction may not qualify as a felony even some other defendant with a worse record convicted of the same charge could have received more than 12 months. 4. Did the defendant qualify for a recidivist enhancement? As Rodriguez and Carachuri-Rosendo show, a state recidivism enhancement may elevate a misdemeanor conviction into a felony under certain circumstances. However, in these cases, the recidivism-based felony can be used as federal predicate only if the defendant qualified for the enhancement. It is not enough that offense could be a felony as to some other defendant, it must be a felony as to your defendant. 5. Even if your defendant met the requirements for a stat max raising recidivist enhancement, did the state actually seek to impose the enhancement on the defendant? Procedural requirements matter. Both Carachuri-Rosendo and Williams suggest that even if the defendant met the requirements that would transform a state misdemeanor into a felony, his conviction will not be deemed a felony unless the state actually proves the facts that make the conviction a felony. For instance, suppose a state misdemeanor is punishable as a felony if the state provides proof that it is the defendant s second drug conviction. If the state fails to provide such proof, the conviction is a misdemeanor for federal predicate purposes, even if it is clear the defendant did in fact have a prior conviction the state could have proven if it wanted to. This idea is similar to idea behind the 851 enhancement in federal drug cases: if the government fails to file the 851 notice of prior conviction, the defendant is simply ineligible for the enhancement even if it is clear that he has qualifying predicate convictions. If, after going through this checklist, it appears that your defendant s predicate was not punishable by more than 12 months, how do you raise and preserve this issue? 12

13 1. In the case of an offense such as 922(g), you must file a motion to dismiss. File a motion seeking to dismiss the case on the ground that the defendant does not actually have a qualifying felony conviction. 2. If the motion is denied, do not plead guilty. A regular guilty plea will waive this argument and the denial of the motion to dismiss will not be reviewed on appeal. 3. Instead, go to trial or enter a conditional plea. If the facts of the possession are clear cut and the only issue is whether or not the defendant has a qualifying felony, a bench trial may be appropriate. Even better would be if the government would agree to allowing the defendant to enter a conditional plea which reserved the right to challenge the denial of the motion to dismiss. Note, if you do go to trial, do not forget to renew your request to dismiss via a Rule 29 motion at the close of the evidence. 4. For sentencing issues, career offender, ACCA, etc., file timely objections to the presentence report. This issue can be raised and preserved like any other sentencing objection to the guideline calculations or statutory sentencing enhancements. 5. If you think you have a good claim, plead straight up if possible, do not waive your appellate rights. Especially while the law is unsettled in this area, do everything you to preserve your right to appeal this issue in the event it is rejected by the district court. 13

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