The Shepard Revolution:Challenging Federal Sentencing Enhancements Based on State

Drug Convictions

Federal Defenders, District of Connecticut April 30, 2009

Terence Ward, Assistant Federal Defender Sarah Russell, Yale Law School

Overview of Common Enhancements Based on Prior Drug Convictions

Enhancement Prior state conviction typically at issue

Type of challenge

ACCA (statutory) Conn. Gen. Stat. § 21a-277(a)

Madera or Savage

851 (statutory) Any state felony drug offense

We are working on a challenge

Career Offender (guidelines)

Conn. Gen. Stat. § 21a-277(a) or (b)

Savage

Felon in Possession (guidelines; non-ACCA)

Conn. Gen. Stat. § 21a-277(a) or (b)

Savage

Illegal Reentry

(guidelines)

Any state felony drug offense

Madera or Savage

Shepard and the Categorical Approach

• Shepard v. United States, 544 U.S. 13 (2005) has greatly expanded the ability to fight enhancements based on prior convictions.

• Shepard and Taylor v. United States, 495 U.S. 575 (1990) set forth the “categorical approach” for determining if prior convictions trigger enhancements

• This approach applies for statutory enhancements and Guidelines enhancements.

Shepard and the Categorical Approach

• Under the categorical approach, courts look at the elements of the offense of conviction and the requirements of the enhancement.

• If the offense of conviction covers a broader range of conduct than the conduct that triggers the enhancement, then the conviction does not automatically trigger the enhancement.

• In these instances, courts apply the “modified categorical approach.”

Modified Categorical Approach

• Under the modified categorical approach, courts may consider only facts admitted by the defendant or necessarily found by the jury.

• The purpose of this inquiry is to determine whether the offense of conviction was “narrowed” to conduct that triggers the enhancement.

• The government has the burden of proof

Modified Categorical Approach

• In making this inquiry, courts can look at only

(1) the charging document;

(2) jury instructions (if the case was tried)

(3) the written plea agreement; and

(4) the plea transcript

• Courts may not look at police reports and rap sheets

Alford pleas

• As we’ll discuss later, under United States v. Savage, 542 F.3d 959 (2d Cir. 2008), where a defendant has entered an Alford plea to a generic charging document (i.e., one that does not narrow the offense to only conduct covered by the enhancement), the government will not be able to establish the enhancement

• In addition, even without an Alford plea, if the charging document does not narrow the charge and the transcript of the plea proceeding is unavailable, the government cannot be meet its burden.

State Drug Convictions

• CT state drug convictions often do not automatically trigger federal sentencing enhancements and the modified categorical approach is applied.

• We will review specific enhancements in more detail.

• We will focus on enhancements based on prior drug convictions. Note, however, that this approach applies as well in analyzing whether prior convictions are “crimes of violence” or “violent felonies,” which trigger statutory and guidelines enhancements.

ACCA and Madera

• Madera applies most often in ACCA cases• ACCA limits its reach in the case of predicate drug

felonies to offenses involving substances in the federal Controlled Substances Act, 21 U.S.C. § 802 et seq.

• Connecticut controls at least two drugs that are not in the federal Controlled Substances Act -- benzylfentanyl and thenylfentanyl

• Burden Is on the Government to Show the Convictions did not Involve Benzylfentanyl and Thenylfentanyl.

Five Steps to Beating an ACCA Predicate

(1) Obtain the charging document

(2) Obtain the transcript of the plea colloquy

(3) Object, in a timely fashion, to the PSR’s use of the conviction as a predicate offense.

(4) Brief the issue in a sentencing memorandum filed well in advance of sentencing.

(5) Allocate the burden of proof.

Challenging Guidelines Enhancements

Based on Drug Convictions • Prior drug convictions can lead to substantial sentence

increases under the Career Offender Guideline, the Felon in Possession Guideline, and the Illegal Reentry Guideline.

• United States v. Savage can be helpful in challenging these enhancements.

Career Offender Guideline

• The Career Offender Guideline, U.S.S.G. § 4B1.1, applies if the federal offense is a crime of violence or a controlled substance and the defendant has two prior felony convictions of either a “crime of violence” or a “controlled substance offense.”

• A “controlled substance offense” means an offense under federal or state law that “prohibits the manufacture, import, expert, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 4B1.2(b).

Savage and “offers”

• United States v. Savage, 542 F.3d 959 (2d Cir. 2008), holds that an “offer” to provide drugs is not conduct falling within the definition of “controlled substance” offense under the Guidelines.

• Savage also holds that Conn. Gen. Stat. § 21a-277(b) criminalizes “offers” to provide drugs. (This holding

applies to § 21a-277(a) as well).

Savage and “Offers”

The Connecticut Statute provides, in pertinent part:

Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with intent to sell or dispense, possesses with intent to sell or dispense, offers, gives or administers to another person any controlled substance . . . may, for the first offense, . . . be imprisoned not more than seven years . . . .

Conn. Gen. Stat. § 21a-277(b) (emphasis added).

Savage and the Modified Categorical Approach

• Thus, if your client has a prior conviction under Conn. Gen. Stat. § 21a-277(a) or (b), the conviction does not automatically qualify as a Career Offender predicate.

• The government has the burden of establishing that the client admitted with a plea (or the jury found at trial) that the state conviction involved conduct falling within the definition of “controlled substance offense”

• In order to determine whether the government can meet this burden, obtain the charging document and plea transcript (see instructions in Madera discussion).

Savage and “Sale”

• Savage also holds that under Connecticut law, “sale” includes “offers” to provide drugs. (This holding is based on the definition of “sale” in the drug statute).

• The Connecticut statute defines a “sale” of a controlled substance, in pertinent part, as “any form of delivery[,] which includes barter, exchange or gift, or offer therefor” Conn. Gen. Stat. § 21a-240(50).

• Thus, under Savage, if the government provides a charging document that shows the client pleaded guilty to “sale” of drugs, this does not suffice to trigger the enhancement.

Savage and Alford

• Under Savage, if your client entered an Alford plea to a generic charging document (i.e., one that charges simply a violation of 21a-277(a) or (b) or charges “sale”), then you win. This is because the government cannot prove that the conduct underlying the offense was not an “offer.”

• Under Savage, if the client entered an Alford plea, then he admitted nothing regarding the facts of the conviction. The prosecutor’s statement of facts (i.e., that your client exchanged drugs for money) may not be used to support the enhancement because the defendant did not admit to these facts.

Savage and Alford

• Savage does not resolve whether you win if your client enters an Alford plea to a charging document that charges “possession with intent to distribute” or “possession with intent to sell.”

• Even if your client did not enter an Alford plea, you will avoid an enhancement if the transcript is missing and the charging document is generic (i.e., it charges simply a violation of 21a-277(a) or (b) or it charges “sale”).

Felon in Possession Guideline

• U.S.S.G. § 2K2.1 applies in felon in possession of a firearm cases.

• The offense level increases if the defendant has one or two prior “controlled substance offenses.”

• Definition of “controlled substance offense” is the same as with the Career Offender Guideline. Therefore, same arguments apply here.

Illegal Reentry Guideline

• U.S.S.G. § 2L1.2(a) applies in illegal reentry cases.

• Offense level increases based on prior conviction for a “drug trafficking offense.”

• This definition is identical in pertinent part to “controlled substance offense” and thus same arguments apply.

Illegal Reentry Guideline

• Offense level is also increased based on “aggravated felony.”

• Drug offenses (including mere possession offenses) may be “aggravated felonies” as defined by 8 U.S.C. § 1101(a)(43).

• You may be able to use Madera and Savage to avoid a finding that a conviction is an aggravated felony. If you have such a case, call us and we can explain the argument.

• Note that these arguments can also be helpful in immigration court, as immigration courts apply Shepard.

Savage and ACCA

• Madera is your best argument for avoiding ACCA if you have a case where the charging document does not allege a particular substance and the defendant does not admit during the plea that the offense involved a particular substance.

• However, even if the substance is identified in the charging document, you may use Savage to try to avoid the enhancement.

Savage and ACCA

• For example, if the charging document charges “sale of cocaine” you can argue under Savage that sale includes “offer” and “offers” are not conduct falling within the definition of “serious drug offense” under ACCA.

• That definition does not include offers but instead provides that “serious drug offense” means “an offense under State law, involving manufacturing, distributing, or possessing with the intent to manufacture or distribute a controlled substance . . . .”

Misconceptions About Madera and Savage

• Myth #1. Savage and Madera mean that my prior offenses cannot receive criminal history points.

• Myth #2. An Alford plea in a prior conviction means that my prior offense cannot be used to enhance my sentence.

• Myth #3. Madera can be used to attack any prior drug conviction for use in any enhancement provision.

Should Savage and Madera have any Effect on How I Represent

Clients in State Court?

YES!

Crimes of Violence

• The same categorical approach applies with respect to determining whether prior convictions are “crimes of violence” triggering enhancements under the Guidelines or “violent felonies” under ACCA.

Crimes of Violence

• Burglary in the Third Degree, Conn. Gen. Stat. § 53a-103, includes burglary of a vehicle or boat and thus is not categorically a crime of violence under the Guidelines or a violent felony under ACCA. See Taylor v. United States, 495 U.S. 575 (1990).

• Assault in the Second Degree, Conn. Gen. Stat. § 53a-60, includes reckless conduct, and thus does not categorically qualify as an ACCA predicate or a crime of violence under the Guidelines. See Begay v. United States, 128 S. Ct. 1581 (2008

• Escape in the First Degree, Conn. Gen. Stat. § 53a-169 is not categorically a crime of violence or violent felony. Chambers v. United States, 129 S.Ct. 687 (2009).

• The law is in flux with respect to crimes of violence/violent felonies (with several recent Supreme Court cases on the issue), so make sure to keep up to date and preserve issues.