Sunday, December 14, 2014

An Unexpected Win: Another Sentence Vacated under Plain Error Review

We continue where we left off yesterday: with another recent decision vacating a sentence because of an erroneous recidivist sentencing enhancement. This one is also from the Second Circuit:
United States v. Sanchez (Judge Cabranes, with Judges Livingston and Straub):
Drug convictions carry different penalties based on the type and quantity of drugs involved in the offense of conviction, as well as on whether the defendant has a prior conviction(s) that qualifies as a "prior felony drug offense." See 21 U.S.C. 841 & 851. In this case, the district court enhanced the defendant's statutory penalty range from 10 years' imprisonment and 5 years' supervised release to 20 years' imprisonment and 10 years' supervised release based on a prior Connecticut conviction for possession of narcotics. The district court sentenced Mr. Sanchez above the 20-year minimum (288 months) and also imposed the statutory minimum 10 years' supervised release.
On appeal, the government conceded that the district court erred in enhancing the statutory penalty range based on the prior Connecticut conviction. To understand the concession, one has to read this decision from the Second Circuit, which explains that Connecticut law criminalizes conduct related to "two obscure opiate derivatives" that do not fall under the federal definition of "felony drug offense." So, the government has to demonstrate that the basis of the prior conviction was not related to either of these obscure opiate derivatives, something that it could not do in this case (presumably because of the age of the conviction). In practice, then, if you have a drug case, and the client has a prior drug-related state conviction, make sure to compare the state provision with the federal provision for oddities like the one in this case. And remember to obtain the underlying Shepard-approved documents (charging instrument, plea colloquy, jury verdict, judgment, etc.) to determine whether the government might be able to meet its burden in your case.
There's more to this case, though. The government conceded reversible plain error only with respect to the term of supervised release, not the term of imprisonment (remember the latter was above the minimum). But not just the government. Apparently, the defendant agreed with the government's position on the authority of another Second Circuit decision that refused to vacate a sentence in a similar situation. The Court did something remarkable, however, and disagreed with both parties. It found this prior case distinguishable because the district court in that case expressly stated that the sentence imposed was independent of any consideration of the prior enhancer conviction. The district court did not make a similar statement in Sanchez's case, but instead mentioned the statutory minimum throughout the sentencing hearing. So, the Second Circuit found reversible plain error (there was no objection in the district court). The Court vacated the 288-month term of imprisonment, even though it was 48 months above the erroneous statutory minimum, because the district court's mention of the minimum "permeated the record."
When it comes to recidivist sentencing increases, it appears as if defendants are winning appeals even they admit they should not win. The momentum on these issues is remarkable. Scrutinize prior convictions. All of them. Change is in the air . . . .

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