SUPREME COURT OF THE UNITED STATES

SUPREME COURT OF THE UNITED STATES UNITED STATES OF AMERICA, ) Appeal from the ) United States Court of Appeals Respondent, ) for the Fourteenth Circuit ) ) v. ) ) ) DANNY OCEAN, ) ) Petitioner. ) ) BRIEF FOR RESPONDENT THE UNITED STATES OF AMERICA Team Nine Marquette Law Firm, LLP 1000 Easy Street Suite 777 Milwaukee, WI 53202 Counsel for the Respondent

TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF AUTHORITIES... iii JURISDICTIONAL STATEMENT...1 STATEMENT OF THE ISSUES...2 STATEMENT OF THE CASE...3 STATEMENT OF THE FACTS...4 SUMMARY OF THE ARGUMENT...6 ARGUMENT...7 I. THE GOVERNMENT PROPERLY EXERCISED ITS PEREMPTORY CHALLENGES TO STRIKE JURORS 20 AND 25 FROM THE JURY...7 A. Standard of Review...8 B. Batson does not extend to religious based peremptory challenges...8 C. If Batson were to extend to religious based peremptory challenges, religious affiliation could be a discriminatory distinction, but amount of religious involvement could not...10 II. THE PETITIONER S SENTENCE WAS PROPERLY ENHANCED BECAUSE HIS PRIOR CONVICTION FOR POSSESSION OF 100 GRAMS OF COCAINE CONSTITUTES A DRUG TRAFFICKING OFFENSE WITHIN THE MEANING OF THE UNITED STATES SENTENCING GUIDELINES....13 A. Standard of Review...14 B. The definition of drug trafficking offense under the United States Sentencing Guidelines permits enhancement where the intent to distribute cocaine is inferred...14 C. Intent to distribute can be presumed from possession of 100 grams of cocaine because the Packerland Controlled Substances Act specifies more significant penalties for more significant quantities of cocaine regardless of explicit intent...15 CONCLUSION...18 i

CERTIFICATE OF COMPLIANCE...19 ii

TABLE OF AUTHORITIES United States Supreme Court Cases Batson v. Kentucky, 476 U.S. 79 (1986)...3, 5, 7, 8, 9, 10, 11, 12, 13 Brown v. N. Carolina, 479 U.S. 940 (1986)...9 Davis v. Minnesota, 511 U.S. 1115 (1994)...9 Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991)...9 Georgia v. McCollum, 505 U.S. 42 (1992)...9 J.E.B. v. Alabama, 511 U.S. 127 (1994)...8, 9 Johnson v. California, 545 U.S. 162 (2005)...8 Miller-El v. Dretke, 545 U.S. 231 (2005)...8, 11, 12 Powers v. Ohio, 499 U.S. 400 (1991)...9 United States v. Taylor, 495 U.S. 575 (1990)...17, 18 Federal Appellate Court Cases United States v. Alvarez-Granados, 228 F. App'x 350 (4th Cir. 2007)...14, 15 United States v. DeJesus, 347 F.3d 500 (3d Cir. 2003)...9 United States v. Girouard, 521 F.3d 110, 116 (1st Cir. 2008)...10 United States v. Herrera-Roldan, 414 F.3d 1238 (10th Cir. 2005)...17 United States v. Madera-Madera. 333 F.3d 1228 (11th Cir. 2003)...14, 15, 16 United States v. Lopez-Salas, 513 F.3d 174 (5th Cir. 2008)...14 United States v. Navidad-Marcos, 367 F.3d 903 (9th Cir. 2004)...14 United States v. Stafford, 136 F.3d 1109 (7th Cir. 1998)...9, 11, 13 United States v. Uwaezhoke, 995 F.2d 388, 394 n.5 (3d Cir. 1993)...10 United States v. Villa-Lara, 451 F.3d 963 (9th Cir. 2006)...17 State Court Cases State v. Davis, 504 N.W.2d 767 (Minn. 1993)...10 Federal Statutes 8 U.S.C. 1326 (2006)...1, 3, 4, 5, 7 21 U.S.C. 841 (2006)...18 U.S.S.G. 2L1.2(b)(1)(A)...3, 5, 7, 13, 14, 15, 16 State Statutes Nev. Rev. Stat. 453.3385...18 P.G.S. 55(a)(2)...4 P.G.S. 55(h)(2)...4, 13, 15, 17 Other Authorities iii

Committee Hearing on the Proposed Packerland Controlled Substances Act: Before the S. Judiciary Comm. Crime and Drugs, October 9, 2001 (Packerland 2001)(statement of Sen. Aaron Rodgers, Chair, S. Judiciary Comm.)...16 iv

JURISDICTIONAL STATEMENT Petitioner was charged and convicted of illegal reentry into the United States in violation of 8 U.S.C. 1326 (2006). The District Court had jurisdiction pursuant to 18 U.S.C. 3231 (2006), as illegal reentry is an offense against the United States. The Petitioner is appealing from a final order of the United States Court of Appeals for the Fourteenth Circuit affirming the District Court. This Court has jurisdiction pursuant to 28 U.S.C. 1254 (2006), which provides the Supreme Court with jurisdiction over final judgments from the United States Courts of Appeal upon petition for a writ of certiorari. 1

STATEMENT OF THE ISSUES I. WHETHER THE STATE S RACE-NEUTRAL EXERCISE OF PEREMPTORY CHALLENGES BASED ON RELIGIOUS INVOLVEMENT VIOLATES THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT. II. WHETHER, IN VIEW OF THE PETITIONER S PRIOR CONVICTION FOR POSSESSION OF 100 GRAMS OF COCAINE, THE PETITIONER S SENTENCE WAS PROPERLY ENHANCED UNDER THE UNITED STATES SENTENCING GUIDELINES. 2

STATEMENT OF THE CASE This case is an appeal by the Petitioner, Danny Ocean, from a decision of the Court of Appeals for the Fourteenth Circuit, holding that Batson protections do not extend to religiousbased peremptory strikes, and that the Petitioner s illegal reentry sentence was properly enhanced under section 2L1.2(b)(1)(A) of the United States Sentencing Guidelines due to his prior drug trafficking conviction. The Petitioner was convicted in the United States District Court for the District of Packerland of unlawful reentry in violation of 8 U.S.C. 1326(a) and (b)(2). (R. at 17.) The Court of Appeals affirmed the District Court s ruling that Petitioner s prior conviction for possession of 100 grams of cocaine constituted a drug trafficking offense within the meaning of the Sentencing Guidelines section 2L1.2(b)(1)(A), Application Note 1(B)(iv). (R. at 28.) When voir dire concluded in the District Court, the Petitioner raised a Batson challenge based on the Government s exclusion of Jurors 20 and 25 due to their heightened religious involvement. (R. at 8.) The District Court judge overruled the objection, and the Court of Appeals affirmed that [g]eneral religious beliefs and involvement are proper reasons for exercising peremptory challenges. (R. at 27.) The Court of Appeals further affirmed that the Petitioner s sentence was properly enhanced based on United States Sentencing Guidelines section 2L1.2(b)(1)(A). (R. at 28.) The issues certified here on appeal are (1) whether the exercise of peremptory challenges based on heightened religious involvement violates the Equal Protection Clause of the Fourteenth Amendment, and (2) whether the Petitioner s prior conviction for possession of a controlled substance constitutes a drug trafficking offense under the Sentencing Guidelines, absent an explicit element of intent. 3

STATEMENT OF THE FACTS After being arrested by local authorities for public intoxication and disorderly conduct at a local bar on the evening of September 6, 2010, the Petitioner, Danny Ocean, failed to cooperate with Old Mukwonago police officers by refusing to provide any form of identification. (R. at 2.) By using the Petitioner s fingerprints, officers discovered that the Petitioner was convicted in 2005 for possession of 100 grams of cocaine under section 55(a)(2) of the Packerland Controlled Substances Act, and sentenced to 39 months in Old Wapun state prison under section 55(h)(2)(b). (Id.) The Petitioner had been subsequently deported to his native Columbia in December of 2008 as a consequence of his conviction, and was therefore an illegal alien. (Id.) Being found inside the United States less than seven months after his deportation, without the express consent of the Attorney General or any other official designated by statute for reapplication for admission to the United States, the Petitioner was charged with illegal reentry into the United States in violation of 8 U.S.C. 1326(a) and (b)(2). (R. at 16.) During jury selection for the Petitioner s trial, the Government peremptorily struck Jurors 20 and 25 based on their heightened religious involvement. (R. at 8.) During questioning by the Government, both Jurors made clear their vigorous religious activity. Specifically, Juror 20 stated that she was blessed with six children, and she attended church regularly, where her son sang in the church choir, and she substitute taught Sunday school. (R. at 4-5.) Juror 20 further declared that she reads the Bible for enjoyment, attends Bible study on Wednesdays, and would have dinner with Jesus if she could have dinner with anyone in the world dead or alive. (R. at 5.) Juror 25 confirmed that he attended Old Mukwonago Unity Seminary where he rigorously studied theology and earned an undergraduate degree in Religion. (R. at 7.) Juror 25 also stated that he was an ordained minister and attended church, where he also played the organ, regularly. 4

(R. at 6-7.) The Government then identified each jurors heightened religious involvement as the race-neutral reason for each peremptory strike. (R. at 8.) The Petitioner, who is a local church leader, unsuccessfully raised a Batson challenge to the Government s peremptory strikes of Jurors 20 and 25, and further argued for the judge to extend Batson to religious-based peremptory challenges. (Id.) The District Court s ruling that the peremptory strikes of Jurors 20 and 25 were proper was affirmed by the Court of Appeals for the Fourteenth Circuit. (R. at 28.) The Petitioner was then tried and convicted in the United States District Court for the District of Packerland of unlawful reentry in violation of 8 U.S.C. 1326(a) and (b)(2). (R. at 17.) In light of the Petitioner s previous drug trafficking offense, the District Court sentenced the Petitioner to 28 years in federal prison, including a 16-level enhancement under United States Sentencing Guidelines section 2L1.2(b)(1)(A), a sentence upheld by the Court of Appeals for the Fourteenth Circuit. (R. at 25.) 5

SUMMARY OF THE ARGUMENT This Court should affirm the Court of Appeals for the Fourteenth Circuit and District Court in holding that the prosecution properly exercised its peremptory challenges under the Equal Protection Clause of the Fourteenth Amendment and that the sentence imposed on the defendant was properly enhanced under the United States Sentencing Guidelines. The peremptory strikes in this case were proper because the holding of Batson v. Kentucky does not extend to religious based peremptory strikes. In the event that Batson were to be extended to religious based challenges, a strike based on the amount of religious involvement would not offend Equal Protection. The Petitioner s sentence was properly enhanced under the United States Sentencing Guidelines because his prior conviction for possession of 100 grams of cocaine under Packerland law included an implied intent to distribute and so qualified as a drug trafficking offense within the meaning of the Guideline Application Notes. 6

ARGUMENT The District Court properly denied the Petitioner s Batson challenge and properly enhanced the Petitioner s illegal reentry sentence under U.S. Sentencing Guidelines section 2L1.2(b)(1)(A). The Court of Appeals for the Fourteenth Circuit correctly affirmed the lower court s ruling. This Court should uphold the decision of the Court of Appeals. The reason given by the Government for peremptorily striking Jurors 20 and 25 was raceneutral on its face, and the Petitioner failed to prove purposeful discrimination. Furthermore, Batson does not extend to religious-based peremptory strikes, and if it were to extend so, striking jurors based on their amount of religious involvement is not a violation of the Equal Protection Clause of the Fourteenth Amendment. The Petitioner s sentence for conviction of illegal reentry into the United States was properly enhanced because his prior conviction for possession of 100 grams of cocaine constitutes a drug trafficking offense for purposes of the United States Sentencing Guidelines. While the District Court may have misread parts of section 1326 when crafting the underlying base sentence, the Defendant has accepted the base sentence as correct by not raising such a defect either in the Court of Appeals or in his petition for a writ of certiorari in this Court. I. The Government properly exercised its peremptory challenges to strike Jurors 20 and 25 from the jury. The Petitioner raised a Batson challenge to the prosecution s peremptory strikes of Jurors 20 and 25. When a criminal defendant challenges the Government s use of peremptory strikes under Batson, the defendant must make a prima facie case showing that the prosecutor used peremptory challenges to exclude the veniremen from the petit jury because of their membership in a protected class. Batson v. Kentucky, 476 U.S. 79, 96 (1986). If the trial court finds that the 7

defendant has made a prima facie case of discrimination, the burden then shifts to the prosecution to offer a race-neutral reason for the challenge that relates to the case. Johnson v. California, 545 U.S. 162, 168 (2005). Once the prosecutor offers a race-neutral explanation, the trial court must decide whether the defendant has proven purposeful discrimination. Johnson v. California, 545 U.S. at 168. In this case, the Petitioner has failed to prove purposeful discrimination. While a prima facie case can be established by the fact that both jurors stricken were African-American, as stated by the Government, both jurors were struck "due to their heightened religious involvement." (R. at 8.) In fact, the Petitioner concedes that the Government s reason was raceneutral and now attempts to inappropriately extend the protection of Batson to peremptory challenges based on heightened religious involvement. Individuals with heightened religious involvement are not part of a protected class as members of a race are under Batson. A. Standard of review. The Petitioner s challenge to the extension of Batson is a question of law; therefore, this Court will review the decision not to extend Batson de novo. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994). The finding that there was no discriminatory intent by the Government in peremptorily striking Jurors 20 and 25 is a finding of fact; therefore, this Court will review such finding for clear error. Miller-El v. Dretke, 545 U.S. 231, 232 (2005). Because the determination of purposeful intent necessary to establish a violation under Batson is factual and turns largely on an assessment of credibility, the Court in Batson instructed that the finding of the trial court merits great deference on review. Batson v. Kentucky, 476 U.S. 79, 98 n. 21 (1986) (emphasis added). B. Batson does not extend to religious based peremptory challenges. 8

The Supreme Court has never held that Batson should extend beyond race-based or gender-based peremptory challenges, and it should not begin to do so now. Batson, itself, speaks solely of the need to eliminate racial discrimination. In Davis v. Minnesota, 511 U.S. 1115 (1994), the Supreme Court denied a petition for writ of certiorari to a case in which the Supreme Court of Minnesota held that Batson does not extend to peremptory challenges on the basis of religion, emphasizing the Supreme Court s lack of intent to extend Batson to religious-based challenges. On another denial of a petition for certiorari, Justice O Connor wrote specifically to indicate her intent not to extend Batson, stating that outside the context of racial discrimination, "the ordinary rule that a prosecutor may exercise his peremptory strikes for any reason at all" applies. Brown v. N. Carolina, 479 U.S. 940 (1986). In the cases the United States Supreme Court has reviewed to date involving Batson, it has extended Batson s protection against purposeful racial discrimination to defendants whose race differs from that of the excluded jurors, Powers v. Ohio, 499 U.S. 400 (1991), to parties in civil lawsuits, Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), to prosecutors in criminal cases, Georgia v. McCollum, 505 U.S. 42 (1992), and to gender-based peremptory challenges, J.E.B. v. Alabama, 511 U.S. 127, 144-45 (1994), but never to other forms of discrimination. Several Appellate Courts have denied or strictly limited the extension of Batson protection to religious-based peremptory challenges. The Court of Appeals for the Seventh Circuit extends Batson protection to peremptory challenges based on religious affiliation, but bars extension for peremptory strikes based on heightened religious activity or religious beliefs that lead either side to believe the potential juror would have trouble basing their decision on civil or criminal authority. United States v. Stafford, 136 F.3d 1109, 1114 (7th Cir. 1998). The Court of Appeals for the Third Circuit followed suit in United States v. DeJesus, 347 F.3d 500, 9

502 (3d Cir. 2003) holding that because the government's peremptory strikes were based on the jurors' heightened religious involvement rather than a specific religious affiliation the District Court s decision allowing the religion-related peremptory strikes was proper. The Third Circuit Court of Appeals further pronounces that by definition, a peremptory challenge is without cause and can be based on anything including a trial lawyer s gut reaction. See United States v. Uwaezhoke, 995 F.2d 388, 394 n.5 (3d Cir. 1993). To extend Batson would unnecessarily complicate and erode the historical practice of peremptory challenges, which has long served the selection of an impartial jury. Extending Batson would not serve to remedy any long-standing injustice perpetrated by the court system against specific individuals and classes, as Batson clearly does. State v. Davis, 504 N.W.2d 767, 771 (Minn. 1993). Religious bigotry in the use of the peremptory challenge is not as prevalent, flagrant, or historically ingrained in the jury selection process as is race. Moreover, religious affiliation (or lack thereof) is not as self-evident as race or gender. Id. As the Court of Appeals for the First Circuit has recently pointed out, [t]his lack of information is one of the essential problems with applying Batson to religious groups. Compared to race and gender, religious affiliation is relatively hard to discern from appearances. United States v. Girouard, 521 F.3d 110, 116 (1st Cir. 2008). Consequently, for every peremptory strike, opposing counsel could demand a religion-neutral explanation. This would unduly complicate voir dire and be excessively intrusive for the end sought to be achieved. C. If Batson were to extend to religious based peremptory challenges, a strike based on the amount of religious involvement would not offend the Equal Protection Clause of the Fourteenth Amendment. The Court of Appeals for the Seventh Circuit specifically addresses the issue of religiousbased peremptory strikes and states, [i]t is necessary to distinguish among religious affiliation 10

and a specific religious belief. Stafford, 136 F.3d at 1114. The court in Stafford stated that it may be improper and perhaps unconstitutional to strike a juror on the basis of his being a Catholic, a Jew, a Muslim, etc., but emphasized that it would be proper to strike him on the basis of a belief that would prevent him from basing his decision on the evidence and instructions, even if the belief had a religious backing. Id. Even assuming that discrimination on the basis of religious affiliation is permissible under Batson, it is not impermissible to exercise a peremptory challenge against a juror for his beliefs, even if based on religion. Nor is it improper to infer such beliefs from a heightened level of religious activity. Batson does not assure a place on the jury for persons of any particular religious belief. If the religious beliefs of potential jurors make either side unsure whether a potential juror is going to substitute a religious source of authority for a civil or criminal source of authority, that uncertainty is grounds for the use of a peremptory strike. Faced with a prospective juror whose answers to neutral questions regarding hobbies, pastimes, reading materials, and the like reveal a propensity to experience the world through the prism of religious beliefs, as Jurors 20 and 25 answers did, it is rational for a prosecutor to act upon the concern about a reluctance to convict. When conducting the analysis of purposeful discrimination at the third step in the Batson analysis, the trial court must decide not only whether the reasons stated are race-neutral, but whether they are relevant to the case, and whether those stated reasons were the prosecutor's genuine reasons for exercising a peremptory strike. Johnson v. California, 545 U.S. at 168. Moreover, the prosecutor is responsible for articulating his own reasons for the challenges exercised. Miller-El v. Dretke, 545 U.S. 231, 241 (2005). The Supreme Court has stressed that 11

courts must be careful not to substitute their own speculation as to reasons why a juror might have been struck for the [Government s] stated reasons. Id. In this case, the Government s exact stated reason for his peremptory strikes of Jurors 20 and 25 was, I struck both due to their heightened religious involvement. (R. at 8.) When further prompted by the judge, the Government stated, it is our position that the deep religious beliefs of these two prospective jurors overshadow their capacity to be open-minded. (Id.) The Government expressed a justifiable concern that the level of religious involvement indicated by Jurors 20 and 25 suggested that each juror would be steadfast in traditional religious beliefs such as forgiveness, and therefore unwilling to judge someone of such similar heightened religious involvement as the Petitioner. Since neither Juror in this case revealed their specific religious affiliation in voir doir, the Petitioner should be required to prove purposeful discrimination based on religious affiliation, as is required in the standard third step of the Batson analysis. In this case, the Petitioner has failed to prove purposeful discrimination based on religious affiliation. In order for the Petitioner to prove that the strikes were based on religious affiliation and therefore unconstitutional under the Seventh Circuit s standard mentioned above, he would have to prove that the Government s tendered reason for the strikes was pretext for purposeful religious affiliation discrimination. While the Petitioner may attempt to contend that the Jurors religious affiliations were obvious based on their questioning, the Government never inquired into the Jurors particular religious affiliations and also never mentioned a specific religion when explaining its reasons for the strikes. In fact, based on the stricken jurors answers to the questions, they could be members of a number of different religious denominations. 12

When in response to a Batson challenge the prosecutor gives a race-neutral reason that persuades the judge, there is no basis for reversal on appeal unless the reason given is completely outlandish or there is other evidence which demonstrates its falsity. Stafford, 136 F.3d at 1114. In this case, neither condition is satisfied; therefore, the decision made by the District Court, and affirmed by the Court of Appeals for the Fourteenth Circuit should be upheld. II. The Petitioner s sentence was properly enhanced because his prior conviction for possession of 100 grams of cocaine constitutes a drug trafficking offense within the meaning of the United States Sentencing Guidelines. In 2005 the Petitioner was convicted of a drug trafficking crime in Packerland state court after being arrested with 100 grams of the cocaine. (R. at 15.) This conviction was a Class G felony under Packerland General Statutes Section 55(h)(2)(b) and the Petitioner was sentenced to 39 months imprisonment and was subject to a $50,000 fine. Id. Petitioner was deported back to Columbia upon his release. Id. An alien who illegally reenters the United States after having been convicted of a drug trafficking offense carrying a sentence of 13 or more months is subject to a 16-level sentence enhancement of their sentence. U.S.S.G. 2L1.2(b)(1)(A). The Application Notes to the Sentencing Guidelines define drug trafficking offense, in relevant part, as an offense under federal, state, or local law that prohibits the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense. U.S.S.G. 2L1.2(b)(1), Application Note 1(B)(iv). While the Defendant was not convicted under a statute with an explicit element of intent to distribute, the relevant United States Sentencing Guidelines Application Note permits an inference of intent if the structure of the state statutes so indicates. Intent to distribute can be 13

inferred from the structure of Section 55 of the Packerland Controlled Substances Act, under which the Petitioner was convicted. A. Standard of review. District Court determinations regarding whether a prior offense fits within The United States Sentencing Guidelines are matters reviewed de novo by this Court. United States v. Lopez- Salas, 513 F.3d 174, 178 (5th Cir. 2008); United States v. Navidad-Marcos, 367 F.3d 903, 907 (9th Cir. 2004); United States v. Alvarez-Granados, 228 F. App'x 350, 351-52 (4th Cir. 2007). B. The definition of drug trafficking offense under the United States Sentencing Guidelines permits enhancement where the intent to distribute cocaine is inferred. While the United States Sentencing Guidelines define drug trafficking offense as any statute that prohibits, among other things, possession of a controlled substance with intent to distribute, the statute need not include the element of intent. U.S.S.G. 2L1.2(b)(1), Application Note 1(B)(iv). The Application Note for section 2L1.2 permits an inferred intent to distribute because, as the Eleventh Circuit Court of Appeals noted in United States v. Madera-Madera, drug trafficking offense is not defined with reference to the elements of the underlying state statute, but rather by the type of conduct prohibited by the state statute. 333 F.3d at 1233. The Application Note provides that a drug trafficking offense means an offense under federal, state, or local law that prohibits the possession of a controlled substance with intent to manufacture, import, export, distribute, or dispense. U.S.S.G. 2L1.2(b)(1)(A)(i). Other offenses in the Guidelines, such as crime of violence, are specifically defined by the elements of the underlying statute. Id. the Sentencing Commission clearly understands how to define an enhancement in terms of the elements of the prior offense, but did not do so in section 2L1.2(b)(1)(A)(i). Id. As a result the prohibited conduct, rather than the statutory elements, governs whether the prior offense is a drug trafficking offense. 14

The Fourth Circuit Court of Appeals has agreed with the Eleventh in holding that the statutory construction of section 2L1.2 requires only that the defendant have been convicted under a state statute which prohibits drug trafficking, not one with any specific element indicating underlying conduct. United States v. Alvarez-Granados, 228 F. App'x 350, 353 (4th Cir. 2007). In Alvarez, the court considered and rejected the defendant s argument that, because his prior convictions did not include specific references to conduct prohibited under section 2L1.2, his convictions could not be considered drug trafficking offenses. Id at 352. The court adopted the Eleventh Circuit s reasoning in Madera-Madera in holding that the exact wording of the underlying state statute need not match section 2L1.2. Id. So long as the statute prohibited drug trafficking, the intent to distribute can be implied. Id. B. Intent to distribute can be presumed from possession of 100 grams of cocaine because the Packerland Controlled Substances Act specifies more significant penalties for more significant quantities of cocaine regardless of explicit intent. The Petitioner was sentenced under section 55(h)(2)(b) of the Packerland Controlled Substances Act, for trafficking in cocaine or a drug trafficking crime. (R. at 15.) This section provides greater criminal penalties for possession of larger amounts of cocaine. Section 55(h)(2)(a) provides that possession of 25 grams or more, but less than 50 grams [of cocaine] with intent to distribute is a Class F felony with minimum 13 month and maximum 30 month sentences. Section 55(h)(2)(b), under which the Petitioner was sentenced, provides that possession of 50 grams or more, but less than 200 grams [of cocaine] is a Class G felony with minimum 30 and maximum 50 month sentences and an added maximum $55,000 fine. Under section 55(h)(2)(b) the Petitioner s intent to distribute was presumed from his possession of such a large quantity of cocaine. Such quantities are extremely unlikely to be possessed for personal use. The Packerland legislature created the statutory scheme in this 15

manner precisely to address the problem of drug dealing and trafficking within the state. Committee Hearing on the Proposed Packerland Controlled Substances Act: Before the S. Judiciary Comm. Crime and Drugs, October 9, 2001 (Packerland 2001)(statement of Sen. Aaron Rodgers, Chair, S. Judiciary Comm.). A similarly structured Georgia drug trafficking statute was held to constitute a drug trafficking offense for purposes of section 2L1.2(b)(1)(A)(i) of the Sentencing Guidelines in United States v. Madera-Madera, 333 F.3d 1228 (11th Cir. 2003). In Madera-Madera, the court held that an illegal reentry defendant who had previously been convicted of mere possession of a controlled substance under state law had committed a drug trafficking offense. Id at 1231. The court explained that the state statute in question did not need to contain an explicit element of intent due to the construction of the Georgia statutory scheme. Id. The court in Madera-Madera concluded that, while the statute under which the defendant had been convicted did not include an explicit element of intent to distribute, the defendant s intent could be implied. Id at 1232. The statute in question carried the most severe penalties of any offense within the Georgia statutory scheme, while other offenses, with less severe penalties, included explicit intent elements. Id. The court held that, while there are a number of ways that intent might have been defined, [t]he Georgia legislature elected to use the amount of the controlled substance as the basis for distinguishing the crime of trafficking from other offenses. Id. The elevated drug quantities in Georgia's drug laws represent an intent to distribute and thereby traffic. Id. The court further noted that failing to infer intent to distribute from the statute would, perversely, result in larger sentence enhancements under section 2L1.2 for convictions related to less severe offenses. Id at 1234. 16

While the Tenth Circuit Court of Appeals ruled against an argument of implied intent in United States v. Herrera-Roldan, it did so while applying a similar statutory construction approach for determining intent to distribute in a drug trafficking offense. 414 F.3d 1238, 1241 (10th Cir. 2005). In Herrera-Roldan the defendant had been convicted under a Texas statute that lacked an explicit intent element. Id at 1242. The Tenth Circuit noted the Madera-Madera framework for considering implied intent, but held that the Texas statute in question gradually increases punishment for both possession and delivery based on the quantity of drug; there is no designated quantity of drugs at which possession is treated the same as delivery and subjected to more severe punishment. Id at 1243. This fact, the court held, distinguished the Texas statute from statute in Mader-Madera. Id. By contrast, under the Packerland Controlled Substances Act. 55(h)(2)(b), any quantity of cocaine greater than 50 grams is treated the same regardless of intent. As the Fourteenth Circuit noted in its decision below, the Packerland scheme mirrors the statute at issue in Madera- Madera and is explained by the intent of the legislature to imply intent to distribute by the volume of cocaine underlying the offense. Id. The court below found the Eleventh Circuit s reasoning persuasive and adopted the inferred intent rule. Id. While the Ninth Circuit has criticized the holding in Madera-Madera, that court s rulings ignore the important role that implied intent plays in statutory structures like the Packerland Controlled Substances Act. In United States v. Villa-Lara, 451 F.3d 963 (9th Cir. 2006), the Ninth Circuit rejected the reasoning in Madera-Madera for failing to undertake an analysis consistent with United States v. Taylor, 495 U.S. 575 (1990). The court held that a categorical analysis of the Nevada statute at issue in that case led to the conclusion that intent was lacking and therefore that the sentencing enhancement under section 2L1.2 was improperly applied. 17

Villa-Lara, 451 F.3d at 964-65. By ignoring the context of the larger statutory scheme, the Ninth Circuit ruled in a manner that would permit nonsensical outcomes. For example, under a different provision of the same Nevada statute at issue in Villa-Lara, a defendant could be sentenced to a prison term exceeding that which could have been imposed under the United States Code for the same basic offense. See Nev. Rev. Stat. 453.3385(3)(b); 21 U.S.C. 841 (2006). But because the federal statute contains an explicit intent element, it carries the more severe enhancement under the Ninth Circuit s reading of the Sentencing Guidelines. Id. The purpose of the Taylor categorical approach to statutory interpretation is not to turn the sentencing process on its head or to thwart the will of state legislatures, but to avoid a messy, factual investigation into a defendant s underlying conduct in prior offenses. Taylor, 451 F.3d at 601. By restricting a court s investigation to the elements of the statute, this Court was attempting to give effect to Congress intent that the great variety of state statutory constructions for a particular offense would not produce different results when used as the basis for a federal sentence enhancement. Id at 589. Considering the overall statutory scheme of a state when looking at implied intent serves that same purpose, and is at odds with the Ninth Circuit s rigid application of the categorical approach to statutory interpretation. CONCLUSION For the aforementioned reasons, this Court should affirm the ruling of the Court of Appeals for the Fourteenth Circuit, holding that the peremptory challenges in this case do not offend the Equal Protection Clause and that the sentence of the District Court was appropriately enhanced under the Sentencing Guidelines. 18

Certificate of Compliance We certify that this brief complies with the format requirements of the Federal Rules of Appellate Procedure as modified by the rules of this Competition. In particular, we certify that the brief is in 12-point Times New Roman font, with margins of at least one inch on all sides, and contains 4,794 words, excluding the cover pages, tables, and this certificate of compliance. Team Number: 9 Date: February 16, 2011 19