Thursday, March 19, 2015

Light Traffic

We all know by now that the definition of violent crime or crime of violence is a complete mess. That is why SCOTUS is contemplating whether the residual clause is void for vagueness in Johnson v. US; we talked about it here and here.

The label of a prior conviction doesn't always tell you much about whether it fits into a particular category. For example, "Trafficking in Methamphetamine 14 Grams or More" -- you'd think that was a drug trafficking offense. But not so.

In an illegal reentry case, US v. Sarabia-Martinez, the Fifth Circuit held that this prior Florida conviction was not a drug trafficking offense, and it was plain error (no objection below) to rely on it to increase the base offense level by 16 levels under USSG 2L1.2. The Florida statute allowed for a trafficking conviction just for knowingly possessing more than 14 grams of meth.  The state apparently infers trafficking from the amount --  14 grams or more -- but that inference is not an element.

The Guideline trafficking definition includes possession with intent to distribute, but the Florida statute covers mere possession of a certain amount, which is outside the Guideline definition. "Sentencing enhancements are defined by federal, not state, law, and a state’s 'bulk theory of intent' cannot displace the guidelines’ text."

An important point: the PSR cited the conviction and described the facts from the arrest report. This does not satisfy the categorical approach. “[A] district court is not permitted to rely on a PSR’s characterization of a defendant’s prior offense for enhancement purposes.” And it was plain error to do so.

This is why it is necessary to dig deep into any prior conviction used to increase a sentence, to get the underlying records of prior convictions, and to research the underlying statute that was in effect at the time of the conviction. Labels can be misleading.

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