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After Post-Descamps Scolding, 9th Still Lost on Sentencing

By William Peacock, Esq. on August 14, 2013 | Last updated on March 21, 2019

Here it is again, for those who don't follow our U.S. Supreme Court blog:

"[I]t should be clear that the Ninth Circuit's new way of identifying ACCA predicates has no roots in our precedents. But more: Aguila-Montes subverts those decisions ..."

Whoops. Many lawyers, or courts, after a 23-page bench-slapping from Justice Elena Kagan, would re-examine their path on a certain issue. For the Ninth Circuit, that issue is the incongruence between the elements of state statutes and federal sentencing and immigration policies.

And now, they've not only "subvert[ed]" the U.S. Supreme Court in that Armed Career Criminal Act (ACCA) case, but they've subverted themselves by denying en banc rehearing in a conceptually similar immigration consequences-of-sentencing case.

Descamps, In Brief

Though Descamps dealt with sentencing enhancements, the mechanism for applicability is the same. For certain prescribed classes of offenses, the ACCA will apply and a sentence will be enhanced. When the prior is a state-level offense, it often doesn't match 1:1 with a federal offense.

For example, in Descamps, the statute at issue was California's burglary statute, which does not require an illegal entry -- shoplifting even fits the definition. But the federal definition differs, and unless the charging documents and the plea bargain contain sufficient information to know if the actual crime fits the federal definition (the "modified categorical" approach), the enhancement can't apply.

The Ninth Circuit was employing a derisively-coined "modified factual" approach where they looked to the facts of the crime itself, as opposed to the plea documents. Of course, factual determinations create a Sixth Amendment right-to-jury issue, and conflict with the previously-mentioned SCOTUS precedent.

Cantabac, Denied En Banc

Cantabac, similarly, deals with the immigration consequences of a plea deal. Again, if the state offense doesn't match the federal offense 1:1, the plea documents must reflect sufficient information to determine that the federal offense equivalent was violated.

Cantabac violated California Health & Safety Code § 11377(a), for possession of a controlled substance (here, apparently it was methamphetamine). The plea deal only referred to "Count 1," and contained no information on what the substance was. Section 11377(a) classifies more substances as "controlled" than the federal equivalent.

They would seem to have a Descamps issue, though the court sidestepped that case by looking to the abstract of judgment and complaint, which maybe, just maybe, complies with Descamps. The dissent from rehearing notes that they haven't yet addressed Descamps' impact on this case, or others.

Where the conflict seemingly arises is Vidal, a 2007 Ninth Circuit case.

Vidal's Vitality

In Vidal, the court required that for facts in a complaint to be considered, the language "as charged in the information" must be explicitly stated in the plea deal. In Vidal, the plea merely referred to "Count 1." That was insufficient. Here, the plea also refers to "Count 1." The panel ignored Vidal and pressed on.

In light of this, one might question the vitality of Vidal. The dissent here summarizes the issue by stating:

"The current approach of some panels, which is to distinguish Vidal beyond recognition, or to simply ignore it as this panel does, risks depriving criminal defendants who pled guilty in reliance on Vidal of the benefit of their plea. As it stands, Vidal is our own Schrödinger's cat: dead and alive at the same time."

For defense attorneys, and for defendants considering pleas, the three conflicting holdings of Descamps, Cantabac, and Vidal create an intolerably murky standard. Clarification, however, will have to wait.

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