Which Max Do They Mean?
- Two recent Supreme Court cases provide strong support for an argument that it’s the state guideline maximum, not a maximum set by the general statute, that controls whether a crime was “punishable by imprisonment for a term exceeding one year” under the Armed Career Criminal Act and the career offender guideline.
- Three other circuits have so held in considering prior convictions under state sentencing guidelines systems.
- The Ninth Circuit has held to the contrary, but the Ninth Circuit cases were decided prior to the Supreme Court cases, so you can argue, first, that a three-judge panel can overrule them, as “clearly irreconcilable” with the intervening Supreme Court cases, and, second, that there should be en banc review if a three-judge panel won’t overrule them.
NOW THE BLOG:
Both the Armed Career Criminal Act and the career offender guideline require that the “violent felon[ies]” and “crime[s] of violence” which trigger their penalties be what we loosely call “felonies” and which both the Act and the guideline define as “crime[s] punishable by imprisonment for a term exceeding one year.” In states with mandatory guidelines systems – which in our circuit includes Washington and Oregon – this raises the question of whether this means punishable by the statute that defines the offense and sets a statutory maximum penalty, or whether it means the maximum allowed by the guidelines in your client’s particular case at the time he was convicted.
Two relatively recent Supreme Court cases support the argument – suggested to me by former Central District of California DFPD and now panel attorney extraordinaire Davina Chen – that it’s the latter of these two alternatives – the maximum set by the guidelines – that controls. The first case is Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010). In Carachuri-Rosendo, the question was whether a conviction in a state court for simple drug possession qualified as a “felony punishable under the [federal] Controlled Substances Act” and hence an “aggravated felony” under the immigration statutes because the defendant had a prior drug conviction and the federal Controlled Substances Act makes simple possession punishable by two years in prison when the defendant has a prior conviction. See id. at 566, 567-68. Because the record of conviction for the defendant’s second drug possession conviction “contain[ed] no finding of the fact of his prior drug offense,” the Court held it did not qualify as a felony under the federal Controlled Substances Act, even though it could have been made punishable by more than a year in prison had it been prosecuted in federal court. See id. at 576-78.
The second Supreme Court case that supports an argument that it’s the guidelines maximum that controls whether the prior offense was punishable by more than a year in prison is Moncrieffe v. Holder, 133 S. Ct. 1678 (2013). In Moncrieffe, the defendant had been convicted under a state possession of marijuana with intent to distribute statute. The defendant argued that this did not qualify as a “felony punishable under the [federal] Controlled Substances Act” because the federal Controlled Substances Act makes marijuana distribution punishable only as a misdemeanor if it involves a small amount of marijuana distributed for no remuneration. See id. at 1683. Citing its earlier decision in Carachuri-Rosendo, the Supreme Court held that, where an offense is punishable as a felony only if “an ‘amalgam’ of offense elements and sentencing factors” are present, for a prior conviction to constitute a conviction for such a felony, that amalgam of elements and sentencing factors must actually be established by the prior conviction. Id. at 1287 (quoting Carachuri-Rosendo, 560 U.S. at 572).
In each case, it was not enough that, in a “hypothetical” prosecution for the prior offense, a sentence of more than one year could have been imposed. See Moncrieffe, 133 S. Ct. at 1688; Carachuri-Rosendo, 560 U.S. at 572-73, 575-76, 580-81. Rather, the Supreme Court held that a prior conviction was not for an offense punishable as a felony where the record of conviction did not establish each of the elements and sentencing factors needed for the offense to be punished as a felony. See Moncrieffe, 133 S. Ct. at 1287; Carachuri-Rosendo, 560 U.S. at 572.
Multiple courts of appeals have recognized this reasoning extends to the question of whether a state statutory maximum can control when there is a lower maximum created by a graduated sentencing or guidelines scheme based on criminal history and/or other aggravating factors. Three different circuits have held that Carachuri-Rosendo means the defendant-specific maximum under the state graduated sentencing or guidelines scheme controls. See United States v. Brooks, 751 F.3d 1204 (10th Cir. 2014); United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc); United States v. Haltiwanger, 637 F.3d 881 (8th Cir. 2011). And two of those opinions were in response to a Supreme Court suggestion that Carachuri-Rosendo changed the analysis, as reflected by orders vacating and remanding for reconsideration in light of Carachuri-Rosendo. See Simmons, 649 F.3d at 239 (noting Supreme Court remand); Haltiwanger, 637 F.3d at 882 (same). These three court of appeals opinions, as summarized in the most recent opinion in Brooks, reason as follows:
[W]here a maximum term of imprisonment of more than one year is directly tied to recidivism, Carachuri-Rosendo and [United States v.] Rodriquez[, 553 U.S. 377 (2008),] require that an actual recidivist finding – rather than the mere possibility of a recidivist finding – must be part of a particular defendant’s record of conviction for the conviction to qualify as a felony.” Haltiwanger, 637 F.3d at 883-84. Because Haltiwanger’s record of conviction did not include recidivism sufficient to expose him to more than one year in prison, “the hypothetical possibility that some recidivist defendants could have faced a sentence of more than one year is not enough to qualify Haltiwanger’s conviction as a felony under 21 U.S.C. § 841(b)(1).” Id. at 884. . . .
Several months after the Eighth Circuit’s about-face in Haltiwanger, an en banc Fourth Circuit panel confronted the same issue. There, the district court had originally classified a defendant’s prior North Carolina drug conviction as a felony under 21 U.S.C. § 841(b)(1) even though he could have received at most eight months community service. Simmons, 649 F.3d at 239-41. On appeal, prior to Carachuri-Rosendo, the Fourth Circuit affirmed. See United States v. Simmons, 340 Fed. Appx. 141 (4th Cir.2009) (unpublished). Like Haltiwanger, the Supreme Court granted certiorari and remanded the case, without opinion, “for further consideration in light of Carachuri-Rosendo.” Simmons v. United States, 561 U.S. 1001, 130 S. Ct. 3455, 177 L. Ed. 2d 1048 (2010). On remand, the same panel concluded Carachuri-Rosendo did not implicate its prior analysis. See United States v. Simmons, 635 F.3d 140 (4th Cir.2011). After en banc rehearing, however, the Fourth Circuit also reversed course. According to an eight-judge majority, . . . United States v. Harp, 406 F.3d 242 (4th Cir.2005), was no longer good law under Carachuri-Rosendo. See Simmons, 649 F.3d at 239–50. Explicitly tracking Haltiwanger, the Fourth Circuit held that “‘where a maximum term of imprisonment . . . is directly tied to recidivism,’ the ‘actual recidivist finding . . . must be part of a particular defendant’s record of conviction for the conviction to qualify as a felony.’” Id. at 244 (quoting Haltiwanger, 637 F.3d at 884).
Brooks, 751 F.3d at 1211-12.
Brooks also explains why a contrary result isn’t required by the other Supreme Court case – Rodriquez – which held that the phrase, “maximum term of imprisonment prescribed by law,” in the Armed Career Criminal Act’s “serious drug offense” definition means the maximum sentence after any enhancements prescribed by the law of the state in which the prior conviction was sustained. Brooks explained how that holding was clarified by Carachuri-Rosendo:
The Supreme Court in Carachuri-Rosendo, however, wrote that under Rodriquez a recidivist finding could only set the maximum term of imprisonment “when the finding is a part of the record of conviction.” Carachuri-Rosendo, 560 U.S. at 577 n. 12, 130 S. Ct. 2577 (emphasis added). Riffing on the facts of Rodriquez, the Court stated: “[W]hen the recidivist finding giving rise to a [prior] 10-year sentence is not apparent from the sentence itself, or appears neither as part of the ‘judgment of conviction’ nor the ‘formal charging document,’ the Government will not have established that the defendant had a prior conviction for which the maximum term of imprisonment was 10 years or more. . . .” Id. (internal citation omitted). . . . [T]he Supreme Court has now interpreted Rodriquez to mean a recidivist increase can only apply to the extent that a particular defendant was found to be a recidivist.
Brooks, 751 F.3d at 1210 (emphasis in original).
The Ninth Circuit has rejected arguments that it is the guidelines maximum that controls, for both Washington and Oregon prior convictions. See United States v. Parry, 479 F.3d 722, 724-25 (9th Cir. 2007); United States v. Murillo, 422 F.3d 1152, 1155 (9th Cir. 2005). Those Ninth Circuit cases were decided prior to Carachuri-Rosendo and Moncrieffe, however, which leaves two arguments to make. First, you can argue that a three-judge panel on its own can overrule the prior cases, as “clearly irreconcilable” with the intervening Supreme Court decisions in Carachuri-Rosendo and Moncrieffe. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc) (holding that three-judge panel may treat prior Ninth Circuit case law as “effectively overruled” when it is “clearly irreconcilable” with intervening Supreme Court authority). This is precisely what the Tenth Circuit did in Brooks, where it treated its prior contrary decision in United States v. Hill, 539 F.3d 1213 (10th Cir. 2008), as abrogated by Carachuri-Rosendo, see Brooks, 751 F.3d at 1205, 1210-11, based on a Tenth Circuit rule very similar to the Ninth Circuit’s “clearly irreconcilable” rule, see Brooks, 751 F.3d at 1209 (noting rule that panel may not overrule earlier panel decision does not apply when intervening Supreme Court decision is “contrary to” or “invalidates our previous analysis” (quoting United States v. Meyers, 200 F.3d 715, 720 (10th Cir. 2000)). And Brooks is even more persuasive because the prior Tenth Circuit case it overruled – Hill – followed the Ninth Circuit case of Murillo. See Hill, 539 F.2d at 1219.
There is a more recent Ninth Circuit opinion – United States v. Cisneros, 826 F.3d 1190 (9th Cir. 2016) – that states in a one-sentence footnote: “We reject Cisneros’s argument that Parry was wrongly decided; further, as a ‘three-judge panel[, we] may not overrule a prior decision of the court.’ Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc).” Cisneros does not describe the argument it is rejecting, however, and it does not even mention either Carachuri-Rosendo, Moncrieffe, or Brooks and the cases Brooks follows. If your panel doesn’t accept your “clearly irreconcilable” argument, you should seek en banc review. Adhering to Murillo and its progeny is not only inconsistent with the Supreme Court’s reasoning in Carachuri-Rosendo and Moncrieffe, but, when placed alongside Brooks and the cases it follows, it creates a split in the circuits, which is a favored ground for en banc review under Ninth Circuit Rule 35-1.
So check state guidelines maximums for your Washington and Oregon prior convictions. Brooks and the other cases make the older Ninth Circuit cases seem ripe for challenge. For sample briefs making the argument, see Davina Chen’s opening brief and reply brief in a case where she made the argument (but it wasn’t decided), attached here and here.