Tuesday, November 11, 2014

How a Felony Becomes a Misdemeanor

One of the (few) good results from the November 4 elections was the passage of Prop 47 in California. This reduces some felonies to misdemeanors, including simple drug possession. According to the LA Times, "[t]he greatest effect, experts said, would be in drug possession cases, noting that California is now the first state in the nation to downgrade those cases from felonies to misdemeanors." Some of these felonies are known as wobblers, familiar from the 2003 SCOTUS decision in Ewing v. California, which allowed such convictions to support a three-strike sentence.

So . . . the connection between the California election and the federal client file laying on your desk? If your client has a California felony conviction, such as simple possession of methamphetamine, you may be able to change that felony to a misdemeanor. And while we don't know for certain how this will play out in federal court, it could benefit your client in several ways. 

But first, how to get this done. The law is retroactive but not automatic. A federal defendant with a qualifying California felony conviction can file an application with the California sentencing court to designate the felony as a misdemeanor. If it qualifies, relief appears to be non-discretionary. A pro se application should be available soon, as well as direction from the California courts on how to expedite the application process.

Now, why it needs to be done. Applying for a misdemeanor designation is imperative if the California felony subjects the defendant to a federal felon-in-possession charge; this could mean actual innocence. There may be a parallel argument for aggravated re-entry charges. Misdemeanor designation would also be required to get out from under mandatory statutory sentencing enhancements, such as the Armed Career Criminal Act or 851 drug penalties.

Redesignation as a misdemeanor is the optimal choice, and absolutely necessary in the above statutory scenarios. In the context of the advisory guidelines, though, a secondary option may be to request a below-guideline variance.  Argue for a lower sentence if the California felony is a predicate for 1) career offender, 2) a base-offense-level increase under the weapons guideline, 2K2.1, 3) a base-offense-level increase under the immigration guideline, 2L1.2, 4) if the defendant was previously deported based on a reducible felony, or 5) to off-set any argument for an upward variance based on excessive criminal history.

The flip-side of the last argument is a request for a below-guideline variance or downward departure (yes, there is still such a thing in the Tenth Circuit, 4A1.3(b)) because the criminal history category over-represents the seriousness of the defendant's criminal history or risk of recidivism. For example, misdemeanors usually carry a maximum of one-year, and therefore could not have received more than two points (4A1.1(a) and (b)); may have then timed-out under the ten-year cut-off (4A1.2(e)); or may be excluded under 4A1.2(c), based on the nature of the conviction, because the possible probationary term could not have been "more than one year." This may only work if the felony sentence was also probation.

We will post a link to a pro se application when it is available. 

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