Friday, December 12, 2014

Add Illinois to the Recidivist Statute Watch List

In light of a series of Supreme Court cases, this year's winner of most-likely-to-win-an-issue-on-appeal goes to the incorrect application of recidivist sentencing statutes. In other words, we challenge whether a prior conviction qualifies under some recidivist sentencing statute that increases our client's penalty range (e.g., armed career criminal and career offender), and we actually win (sometimes). It is a crazy phenomenon.
There are quite a few recent examples of this. We give you one today (from the Seventh Circuit): United States v. Jenkins (authored by Judge Kanne, joined by Judges Flaum and Sykes)
The case involves application note 6 to USSG 4A1.2, entitled "Reversed, Vacated, or Invalidated Convictions." It provides, inter alia, that convictions that "have been ruled constitutionally invalid in a prior case" are not scored with criminal history points (we take a moment to note that the phrase "constitutionally invalid" appears to be nothing more than an extremely poor way of saying "unconstitutional").
In 2012, the Seventh Circuit held a portion of Illinois's poorly-named "Aggravated Unlawful Use of a Weapon" statute (AUUW) unconstitutional under the Second Amendment. The Illinois Supreme Court followed suit in 2013. The statute was both poorly named and unconstitutional because it prohibited, among other things, the carrying of a firearm outside of the home.
So, our protagonist, Mr. Jenkins, had a prior AUUW conviction, and he received points for it at his federal sentencing in October 2013 (one month after the Illinois Supreme Court's decision). His attorney did not object, but Mr. Jenkins caught a break when his appeal was assigned to the Seventh Circuit Federal Defenders, who did two things: (1) went into state court and vacated the conviction; and (2) asserted on appeal that, in light of Note 6 to 4A1.2, the district court erred in scoring the conviction.
The Seventh Circuit agreed. But its decision did not hinge on the fact that Jenkins' prior conviction had been vacated. Instead, the Court held that, because the Illinois Supreme Court held the statute void ab initio (roughly translated to "as if it had never existed"), and because Note 6 uses the article "a" instead of "the" (as in "a prior case"), the conviction was invalid as a result of the ruling in that case.
We think that this means that any prior Illinois AUUW conviction does not score (assuming the conviction is under the voided portion of the statute). So you'll need to be aware of this if you have a client with a prior AUUW conviction. And you should probably check the constitutionality of similar statutes from other states if your client has a conviction for one of those.
One last point, and this relates to the Tenth Circuit's recent decision in Saballon-Umana and its discussion of plain error review. In a similar light, the Seventh Circuit did not hesitate to find plain error in this case, noting the obvious Guidelines mistake and its serious consequences (some 3 years on the Guidelines range). But it further noted that the plain error was missed by the probation office and the government as well: "it would be unjust to place the entire burden for these oversights on the defendant." Indeed. And we add: the district court as well.
Props to AFPD George Taseff, who orchestrated the collateral attacks in state court, and AFPD Peter Henderson, who litigated the appeal.

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