In U.S. v. Estupinan, No. 05-16279 (June 28, 2006), the Court rejected the argument that Congress exceeded its authority under the Piracies and Felonies Clause of Article I of the Constitution when it adotped the 46 U.S.C. app. § 1903, the Maritime Drug Law Enforcement Act (MDLEA).
The Court stated that inasmuch as the trafficking of narcotics is condemned universally by law-abiding nations, it was not fundamentally unfair for Congress to provide for the punishment of persons apprehended with narcotics on the high seas.
Thursday, June 29, 2006
Tuesday, June 27, 2006
Norris: Legal Orchids Are Part of Sentence
In U.S. v. Norris, No. 04-15487 (June 23, 2006), the Court affirmed a sentence imposed on an offender convicted of importing orchid species from Peru into the United States in violation of CITES (the Convention on International Trade in Endangered Species of Wild Fauna and Flora).
The defendant claimed that the market value assigned to the orchids was erroneous, because it was on the market value of the orchid shipments in their entirety, rather than on the market value of the orchids that had been undocumented in the the CITES permits accompanying each shipment. Rejecting this argument, the Court noted that the defendant tried to avoid customs’ detection of the undocumented orchids by mixing them in the same shipment with large quantities of documented orchids. "[T]he legally imported orchids were an integral part of the conspiracy." Consequently, the legal orchids were part of the "relevant conduct," and was appropriately considered in setting sentence.
The defendant claimed that the market value assigned to the orchids was erroneous, because it was on the market value of the orchid shipments in their entirety, rather than on the market value of the orchids that had been undocumented in the the CITES permits accompanying each shipment. Rejecting this argument, the Court noted that the defendant tried to avoid customs’ detection of the undocumented orchids by mixing them in the same shipment with large quantities of documented orchids. "[T]he legally imported orchids were an integral part of the conspiracy." Consequently, the legal orchids were part of the "relevant conduct," and was appropriately considered in setting sentence.
Mitsven: Supervised Release required for probation revocation
In U.S. v. Mitsven, No. 05-12647 (June 22, 2006), the Court held that, on revocation of probation, a district court was required to impose a three-year term of supervised release.
The Court noted that the probation revocation statute instructs sentencing courts to resentence a defendant under Subchapter A of the sentencing laws. Subchapter A in turn instructs to impose a term of imprisonment under Subchapter D. 18 U.S.C. § 3583(a), which is part of Subchapter D, instructs that supervised release must be imposed if the statute of conviction so requires. Mitsen’s original statute of conviction, 21 U.S.C. § 841(b)(1)(C), provides that a three year term of supervised release must be imposed if the defendant is sentenced to a term of incarceration. Since the revocation sentence included a four-month term of incarceration, supervised release was required.
The Court noted that the probation revocation statute instructs sentencing courts to resentence a defendant under Subchapter A of the sentencing laws. Subchapter A in turn instructs to impose a term of imprisonment under Subchapter D. 18 U.S.C. § 3583(a), which is part of Subchapter D, instructs that supervised release must be imposed if the statute of conviction so requires. Mitsen’s original statute of conviction, 21 U.S.C. § 841(b)(1)(C), provides that a three year term of supervised release must be imposed if the defendant is sentenced to a term of incarceration. Since the revocation sentence included a four-month term of incarceration, supervised release was required.
Wednesday, June 21, 2006
Wilk: Six Months Before Trial Is Reasonable Death Notice
In U.S. v. Wilk, No. 05-12694 (June 20, 2006), the Court, on a defendant’s interlocutory appeal which claimed that the government’s notice of intent to seek the death penalty was not given with a "reasonable time before trial," as required by 18 U.S.C. § 3593(a), held that the Death Notice filed six months before the trial was reasonable notice.
The Court noted that, from the start, the parties knew this was a likely death penalty case, and Wilk’s counsel began to prepare a death defense months before the Death Notice was filed. Further, the six month period between the Death Notice and the trial was itself objectively reasonable. The Court noted that the date of trial, for purposes of § 3593(a), is the actual date of the trial, not the originally scheduled date. The Court noted that continuances of trial did not change its analysis. Moreover, six months sufficed for the defense Wilk intended to present at trial.
The Court noted that, from the start, the parties knew this was a likely death penalty case, and Wilk’s counsel began to prepare a death defense months before the Death Notice was filed. Further, the six month period between the Death Notice and the trial was itself objectively reasonable. The Court noted that the date of trial, for purposes of § 3593(a), is the actual date of the trial, not the originally scheduled date. The Court noted that continuances of trial did not change its analysis. Moreover, six months sufficed for the defense Wilk intended to present at trial.
Tuesday, June 20, 2006
Schwab: Public Defender Conflict Not Prejudicial
In Schwab v. Crosby, No. 05-14253 (June 15, 2006), the Court denied habeas relief to a Florida inmate sentenced to death for a 1991 murder.
The Court rejected Schwab’s ineffective assistance of counsel claim based on the fact that his lawyer, a public defender, declined to cross-examine fellow lawyers from the public defender’s office who were called to the stand to testify about the chain of custody of an incriminating letter Schwab sent to the public defender’s office. The Court noted that no prejudice arose because the testimony was about uncontested aspects of the chain of custody.
The Court also rejected the argument that Schwab’s counsel was presumptively prejudiced by the conflict of interest of the public defender’s office. The Court noted the deferrence provisions of AEDPA, as well as the Teague limitation on retroactivity of Supreme Court cases in habeas. The Court found that no Supreme Court had clearly held that prejudice would be presumed in Schwab’s case, that is, outside the multiple representation context, and therefore rejected the presumed prejudice argument.
The Court also found harmless any error in the Florida trial court’s description of the evidence in mitigation, noting that the "horrendous facts" of the case (the defendant sexually assaulted the victim before strangling him to death) indicated that any error was outweighed by the aggravating factors.
The Court rejected Schwab’s ineffective assistance of counsel claim based on the fact that his lawyer, a public defender, declined to cross-examine fellow lawyers from the public defender’s office who were called to the stand to testify about the chain of custody of an incriminating letter Schwab sent to the public defender’s office. The Court noted that no prejudice arose because the testimony was about uncontested aspects of the chain of custody.
The Court also rejected the argument that Schwab’s counsel was presumptively prejudiced by the conflict of interest of the public defender’s office. The Court noted the deferrence provisions of AEDPA, as well as the Teague limitation on retroactivity of Supreme Court cases in habeas. The Court found that no Supreme Court had clearly held that prejudice would be presumed in Schwab’s case, that is, outside the multiple representation context, and therefore rejected the presumed prejudice argument.
The Court also found harmless any error in the Florida trial court’s description of the evidence in mitigation, noting that the "horrendous facts" of the case (the defendant sexually assaulted the victim before strangling him to death) indicated that any error was outweighed by the aggravating factors.
McGuiness: Obstruction of Justice in Escape
In U.S. v. McGuiness, No. 05-10797 (June 15, 2006), the Court affirmed the imposition a two-level obstruction of justice sentence enhancement on a defendant convicted of escape.
While a federal fugitive, McGuiness was approached by officers at a restaurant. McGuiness presented a false i.d. and claimed he was staying at nearby Holiday Inn. Police released him when his false name did not turn up on their database. Several hours later, when police realized no one by the assumed name was staying at the Holiday Inn, police, using a tracking dog and helicopter, after 24 hours, found the defendant hiding in woods near his hotel.
At sentencing, the district court imposed a two-level sentence enhancement for obstruction of justice, based on USSG § 3C1.1, cmt. n.4, which provides that this enhancement applies when a defendant provides a materially false statement to a law enforcement officer that significantly impeded the investigation. The Court affirmed this finding, noting that the use of a police dog and helicopter would not have been necessary had the defendant been truthful about his identity when first approached.
The Court rejected McGuiness’ argument that an obstruction enhancement should not apply to an escape offense, because conduct to elude capture is inherent in the continuing offense of escape. The Court noted that the Guidelines exclude some offenses from the obstruction enhacement’s application; however, escape was not one of the excluded offenses. Moreover, use of false identification makes it more difficult for law enforcement to locate an escapee.
The Court rejected the defendant’s argument that he should not have been ordered to pay a $4,000 fine, because of his inability to pay. The Court cited the defendant’s own statement that he had hidden cash away before commencing his prison term.
While a federal fugitive, McGuiness was approached by officers at a restaurant. McGuiness presented a false i.d. and claimed he was staying at nearby Holiday Inn. Police released him when his false name did not turn up on their database. Several hours later, when police realized no one by the assumed name was staying at the Holiday Inn, police, using a tracking dog and helicopter, after 24 hours, found the defendant hiding in woods near his hotel.
At sentencing, the district court imposed a two-level sentence enhancement for obstruction of justice, based on USSG § 3C1.1, cmt. n.4, which provides that this enhancement applies when a defendant provides a materially false statement to a law enforcement officer that significantly impeded the investigation. The Court affirmed this finding, noting that the use of a police dog and helicopter would not have been necessary had the defendant been truthful about his identity when first approached.
The Court rejected McGuiness’ argument that an obstruction enhancement should not apply to an escape offense, because conduct to elude capture is inherent in the continuing offense of escape. The Court noted that the Guidelines exclude some offenses from the obstruction enhacement’s application; however, escape was not one of the excluded offenses. Moreover, use of false identification makes it more difficult for law enforcement to locate an escapee.
The Court rejected the defendant’s argument that he should not have been ordered to pay a $4,000 fine, because of his inability to pay. The Court cited the defendant’s own statement that he had hidden cash away before commencing his prison term.
Thursday, June 15, 2006
Bascomb: Bound by Appeal Waiver
In U.S. v. Bascomb, No. 05-13932 (June 14, 2006), the Court dismissed a defendant’s appeal because he agreed in his plea agreement to an appeal waiver.
At sentencing, the district court expressed reservations about the harshness of imposing a mandatory 120-month minimum sentence on a defendant convicted of cultivating marihuana at his home. The defendant sought to raise this point on appeal. The Court held that, notwithstanding the district court’s comments, the defendant remained bound by the written terms of his plea agreement.
At sentencing, the district court expressed reservations about the harshness of imposing a mandatory 120-month minimum sentence on a defendant convicted of cultivating marihuana at his home. The defendant sought to raise this point on appeal. The Court held that, notwithstanding the district court’s comments, the defendant remained bound by the written terms of his plea agreement.
Wednesday, June 14, 2006
Johnson: Sentence within statutory limits not disproportionate
In U.S. v. Johnson, No. 05-14889 (June 13, 2006), the Court affirmed a 140-month sentence for a defendant convicted of several counts of producing and distributing child pornography.
One victim, whom the defendant photographed, testified that sexual activity with the defendant started at age 8 and continued for six years.
The Court rejected Johnson’s argument that his sentence was disproportionate and therefore unconstitutional under the Eighth Amendment. Although Johnson had not raised this argument in the court below, the Court applied de novo, instead of plain error review, because the district court did not give Johnson an opportunity to object to his sentence.
The Court asserted that a sentence within the statutory limits generally does not violate the Eighth Amendment. Here, each count of conviction carried a statutory maximum punishment of 50 or 40 years. Hence the 140-month sentence was within the statutory limits. Johnson therefore failed to make a threshold showing of disproportionality.
One victim, whom the defendant photographed, testified that sexual activity with the defendant started at age 8 and continued for six years.
The Court rejected Johnson’s argument that his sentence was disproportionate and therefore unconstitutional under the Eighth Amendment. Although Johnson had not raised this argument in the court below, the Court applied de novo, instead of plain error review, because the district court did not give Johnson an opportunity to object to his sentence.
The Court asserted that a sentence within the statutory limits generally does not violate the Eighth Amendment. Here, each count of conviction carried a statutory maximum punishment of 50 or 40 years. Hence the 140-month sentence was within the statutory limits. Johnson therefore failed to make a threshold showing of disproportionality.
Dowd: 305-sentence affirmed for 65 year old felon
In U.S. v. Dowd, No. 05-15067 (June 13, 2006), the Court affirmed a 305-month sentence on a defendant convicted of robbing a postmater and placing his life in jeopardy, in violation of 18 U.S.C. § 2114(a), use of a firearm in the commission of a crime of violence, in violation of § 924(c), unlawful conversion of money orders, in violation of § 500, and felony possession of a firearm, in violation of § 922(g)(1).
The Court rejected Dowd’s argument that the felon in possession count should have severed from his trial for the robbery of the post office, because the possession predated the robbery by several days. The Court noted that no compelling prejudice arose from the joinder, because the jury would have heard all of the firearms-related evidence anyway, because it contradicted Dowd’s primary defense that he used only a toy gun in the robbery. Moreover, the proof of Dowd’s guilt in the robbery was extensive and overwhelming.
The Court also rejected Dowd’s challenge to the admission of his confession. Although Dowd did not sign the Miranda waiver, he signed the portion of the form expressing that he understood his Miranda rights and he thereafter expressed his willingness to speak to investigators. Dowd did not even equivocally suggest that he wished to cease questioning.
The Court rejected Dowd’s Double Jeopardy challenge to being punished twice for use of a firearm, once for the robbery at gunpoint of the post office, and again for use of a firearm. The Court noted that Congress specifically intended consecutive punishment in this instance. Even though the offenses involve the same elements, this did not change the Double Jeopardy analysis because there was clear legislative intent to impose cumulative punishments.
The Court rejected Dowd’challenge to his sentence under the Armed Career Criminal Act. The district court relied on the transcripts of plea colloquys in Dowd’ prior State convictions as the basis for concluding that his prior burglaries qualified as predicate violent felonies under ACCA. This was in keeping with Shepard v. U.S., 544 U.S. 12 (2005).
The Court also found no error in the substitution of judges after trial, for sentencing, pointing out that the sentencing judge was sufficiently familiar with Dowd’s trial to sentence him.
Finally, the Court rejected Dowd’s reasonableness challenge to his 305-month sentence. "While it is true that Dowd is over 65 years old, it is also undeniable that Dowd committed a violent felony at that age."
The Court rejected Dowd’s argument that the felon in possession count should have severed from his trial for the robbery of the post office, because the possession predated the robbery by several days. The Court noted that no compelling prejudice arose from the joinder, because the jury would have heard all of the firearms-related evidence anyway, because it contradicted Dowd’s primary defense that he used only a toy gun in the robbery. Moreover, the proof of Dowd’s guilt in the robbery was extensive and overwhelming.
The Court also rejected Dowd’s challenge to the admission of his confession. Although Dowd did not sign the Miranda waiver, he signed the portion of the form expressing that he understood his Miranda rights and he thereafter expressed his willingness to speak to investigators. Dowd did not even equivocally suggest that he wished to cease questioning.
The Court rejected Dowd’s Double Jeopardy challenge to being punished twice for use of a firearm, once for the robbery at gunpoint of the post office, and again for use of a firearm. The Court noted that Congress specifically intended consecutive punishment in this instance. Even though the offenses involve the same elements, this did not change the Double Jeopardy analysis because there was clear legislative intent to impose cumulative punishments.
The Court rejected Dowd’challenge to his sentence under the Armed Career Criminal Act. The district court relied on the transcripts of plea colloquys in Dowd’ prior State convictions as the basis for concluding that his prior burglaries qualified as predicate violent felonies under ACCA. This was in keeping with Shepard v. U.S., 544 U.S. 12 (2005).
The Court also found no error in the substitution of judges after trial, for sentencing, pointing out that the sentencing judge was sufficiently familiar with Dowd’s trial to sentence him.
Finally, the Court rejected Dowd’s reasonableness challenge to his 305-month sentence. "While it is true that Dowd is over 65 years old, it is also undeniable that Dowd committed a violent felony at that age."
Monday, June 12, 2006
Atwater: Counsel did not preseve Batson Claim for Habeas
In Atwater v. Crosby, No 03-16259 (June 12, 2006), the Court denied habeas relief to a Florida inmate sentenced to death for a 1989 murder.
The Court recognized that the Florida Supreme Court incorrectly applied Batson v. Kentucky when it concluded that there was no error in the striking of the sole black juror on the venire. However, given the great deference owed to the Florida courts, and defense counsel’s failure in the Florida state trial court to present evidence of how similarly situated white jurors had been treated differently by the prosecution, the Court concluded that the error was not unreasonable, and therefore unworthy of habeas relief.
The Court also found no grounds for habeas relief in the Florida Supreme Court’s conclusion that Atwater’s counsel was not ineffective in seeking to spare Atwater’s life on the ground that he was guilty of second-degree murder only. The Court noted that this was a plausible defense strategy in light of the overwhelming evidence of guilt.
The Court found that Atwater had defaulted his claim that counsel was ineffective for failing to allow him to testify, and that, in any event, Atwater was not prejudiced by his failure to testify in light of the overwhelming proof of guilt.
The Court also found no error in the denial of an evidentiary hearing on Atwater’s claim that counsel was ineffective in failing to put on mitigation evidence at the penalty phase. The Court noted that this was virtually the same evidence, through other witnesses, as the evidence which was presented.
The Court recognized that the Florida Supreme Court incorrectly applied Batson v. Kentucky when it concluded that there was no error in the striking of the sole black juror on the venire. However, given the great deference owed to the Florida courts, and defense counsel’s failure in the Florida state trial court to present evidence of how similarly situated white jurors had been treated differently by the prosecution, the Court concluded that the error was not unreasonable, and therefore unworthy of habeas relief.
The Court also found no grounds for habeas relief in the Florida Supreme Court’s conclusion that Atwater’s counsel was not ineffective in seeking to spare Atwater’s life on the ground that he was guilty of second-degree murder only. The Court noted that this was a plausible defense strategy in light of the overwhelming evidence of guilt.
The Court found that Atwater had defaulted his claim that counsel was ineffective for failing to allow him to testify, and that, in any event, Atwater was not prejudiced by his failure to testify in light of the overwhelming proof of guilt.
The Court also found no error in the denial of an evidentiary hearing on Atwater’s claim that counsel was ineffective in failing to put on mitigation evidence at the penalty phase. The Court noted that this was virtually the same evidence, through other witnesses, as the evidence which was presented.
Friday, June 09, 2006
Valnor: Guidelines Inadequate to Punish Appropriately
In U.S. v. Valnor, No. 05-15701 (June 6, 2006), the Court rejected a reasonableness challenge to a 28-month sentence imposed on a defendant convicted of violating 18 U.S.C. § 1028(f) by conspiring to produce identification documents without lawful authority.
Valnor’s offense consisted of issuing fraudulent driver’s licences to illegal immigrants in the South Florida area. The 28-month sentence reflected a downward departure for cooperating with the government’s investigation, but also an upward departure because the crime involved was more serious than the Guideline range indicated, because identification documents are important to the country’s security.
Reviewing the sentence, post-Booker, for reasonableness, the Court found that the district court properly addressed the seriousness of the offense, consistent with 18 U.S.C. § 3553(a)(2), and the need to protect society from middlemen like Valnor. Further, the sentence was well below the statutory maximum. "The district court properly fulfilled its role in considering the Guidelines, but found the Guidelines range to be inadequate to accomplish the statutory goals of providing adequate deterrence and protecting the public from further crimes."
Valnor’s offense consisted of issuing fraudulent driver’s licences to illegal immigrants in the South Florida area. The 28-month sentence reflected a downward departure for cooperating with the government’s investigation, but also an upward departure because the crime involved was more serious than the Guideline range indicated, because identification documents are important to the country’s security.
Reviewing the sentence, post-Booker, for reasonableness, the Court found that the district court properly addressed the seriousness of the offense, consistent with 18 U.S.C. § 3553(a)(2), and the need to protect society from middlemen like Valnor. Further, the sentence was well below the statutory maximum. "The district court properly fulfilled its role in considering the Guidelines, but found the Guidelines range to be inadequate to accomplish the statutory goals of providing adequate deterrence and protecting the public from further crimes."
Ortiz-Delgado: Lewd Act On Minor Qualifies as Crime of Violence
In U.S. v. Ortiz-Delgado, No. 05-15466 (June 7, 2006), the Court affirmed treating a defendant’s prior California convictions for attempted lewd acts upon a child and for lewd acts upon a child as "crimes of violence" for purposes of imposing a 16-level sentence enhancement on a defendant convicted of illegal re-entry.
Noting that such crimes involve psychological injury, and the inherent risk of injury to a child of such crimes, the Court sided with all other circuits to have considered the issue.
The Court also rejected Ortiz-Delgado’s challenge to the reasonableness of his sentence. Ortiz-Delgado argued that he re-entered the United States to support a child that was living there. But the Court affirmed the district court’s reasoning that, as a repeat child sex offender, Ortiz-Delgado’s punishment should be sufficient to protect society.
Noting that such crimes involve psychological injury, and the inherent risk of injury to a child of such crimes, the Court sided with all other circuits to have considered the issue.
The Court also rejected Ortiz-Delgado’s challenge to the reasonableness of his sentence. Ortiz-Delgado argued that he re-entered the United States to support a child that was living there. But the Court affirmed the district court’s reasoning that, as a repeat child sex offender, Ortiz-Delgado’s punishment should be sufficient to protect society.
Thursday, June 01, 2006
Gamble: No Faretta violation precludes death penalty
In Gamble v. Sec’y Dep’t Corrections, No. 05-14334 (May 31, 2006), the Court denied habeas relief to a Florida inmate sentenced to death for a 1991 murder.
Applying the deferential AEDPA standard of review, the Court found no error in the Florida Supreme Court’s determination that there was no Farretta violation in the trial court’s failure to conduct an inquiry into the defendant’s wish to represent himself, because the defendant, in fact, never asked to represent himself. Instead, he asked for substitute counsel. The Court agreed with the Florida Supreme Court that that since there was no merit to the Farretta issue, appellate counsel had not been ineffective in failing to raise it on direct appeal. Finally, the Court found no ineffectiveness in counsel’s failure, at the penalty phase, to argue that the murder was not committed for pecuniary gain (an aggravator). The Court pointed out that the jury’s contrary verdict on this point at the guilt phase made such an argument "preposterous."
Applying the deferential AEDPA standard of review, the Court found no error in the Florida Supreme Court’s determination that there was no Farretta violation in the trial court’s failure to conduct an inquiry into the defendant’s wish to represent himself, because the defendant, in fact, never asked to represent himself. Instead, he asked for substitute counsel. The Court agreed with the Florida Supreme Court that that since there was no merit to the Farretta issue, appellate counsel had not been ineffective in failing to raise it on direct appeal. Finally, the Court found no ineffectiveness in counsel’s failure, at the penalty phase, to argue that the murder was not committed for pecuniary gain (an aggravator). The Court pointed out that the jury’s contrary verdict on this point at the guilt phase made such an argument "preposterous."
McGill: DUI qualifies as "crime of violence"
In U.S. v. McGill, No. 05-10285 (June 1, 2005), the Court (Dubina, Marcus, Cox) held that prior Alabama DUI convictions qualified as "crimes of violence" for the purpose of assigning a higher base offense level under USSG § 2K2.1(a)(2) to a sentence for being a felon in possession of a firearm.
The Court noted that the Guideline define a "crime of violence" as one punishable by more than a year of imprisonment and, inter alia, which "otherwise involves conduct that presents a serious potential risk of physical injury to another." The Court found that driving intoxicated met this definition. The Court also found that its decision was not controlled by Leocal v. Ashcroft, 542 U.S. 1 (2004), which did not involve a DUI categorization under the "crime of violence" definition in the Guidelines. The Court also noted that Alabama makes a felony the fourth and subsequent DUIs, and thus McGill’s prior DUIs counted as qualifying felonies because he had five prior DUIs. The Court also rejected the argument that mere control over the vehicle, without its operation, would make a DUI less of a "crime of violence" for sentence-enhancement purposes.
The Court noted that the Guideline define a "crime of violence" as one punishable by more than a year of imprisonment and, inter alia, which "otherwise involves conduct that presents a serious potential risk of physical injury to another." The Court found that driving intoxicated met this definition. The Court also found that its decision was not controlled by Leocal v. Ashcroft, 542 U.S. 1 (2004), which did not involve a DUI categorization under the "crime of violence" definition in the Guidelines. The Court also noted that Alabama makes a felony the fourth and subsequent DUIs, and thus McGill’s prior DUIs counted as qualifying felonies because he had five prior DUIs. The Court also rejected the argument that mere control over the vehicle, without its operation, would make a DUI less of a "crime of violence" for sentence-enhancement purposes.
Aguilar-Ortiz: Solicitation of $30 crack not "drug trafficking"
In U.S. v. Aguilar-Ortiz, No. 05-12591 (May 31, 2006), the Court (Tjoflat, Barkett, Goodwin b.d.) vacated a sentence, holding that the district court erred in its Guideline analysis when it treated the defendant’s prior Florida state conviction for solicitation to deliver cocaine as a "drug trafficking offense" for purposes of imposing a 12-level enhancement for being found guilty in the United States after deportation.
The Court noted that under Shepard v. U.S., 544 U.S. 13 (2005), when a court determines whether a prior conviction qualifies for a sentencing enhancement, it may rely on the charging document, written plea agreement, transcript of plea colloquy, and explicit judicial fact-finding. The Court noted that not all Florida solicitation offenses qualify as drug trafficking offenses, because some involve a small amount of drugs for personal use. Examining Aguilar-Ortiz’ prior conviction, the Court concluded that his solicitation offense, which involved the attempted purchase of $30 of crack cocaine from an undercover agent, was akin to attempted possession without intent to distribute. Hence, the conviction did not qualify as a drug trafficking offense, and was not a correct basis for imposing the 12-level enhancement.
The Court noted that under Shepard v. U.S., 544 U.S. 13 (2005), when a court determines whether a prior conviction qualifies for a sentencing enhancement, it may rely on the charging document, written plea agreement, transcript of plea colloquy, and explicit judicial fact-finding. The Court noted that not all Florida solicitation offenses qualify as drug trafficking offenses, because some involve a small amount of drugs for personal use. Examining Aguilar-Ortiz’ prior conviction, the Court concluded that his solicitation offense, which involved the attempted purchase of $30 of crack cocaine from an undercover agent, was akin to attempted possession without intent to distribute. Hence, the conviction did not qualify as a drug trafficking offense, and was not a correct basis for imposing the 12-level enhancement.
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