Opinion
No. 7:07-CR-107-FL.
February 23, 2010
MEMORANDUM OPINION
Defendant came before the court upon remand for resentencing February 19, 2010. Upon hearing, the court overruled defendant's objection to application of the sixteen-level sentencing enhancement for prior conviction of a drug trafficking offense pursuant to United States Sentencing Guideline § 2L1.2(b)(1)(A). The court amplifies herein upon its reasons for this determination.
BACKGROUND
Defendant was charged in a one count indictment with illegal re-entry by an alien in violation of 8 U.S.C. § 1326 on September 12, 2007. On November 14, 2007, defendant pleaded guilty. On April 15, 2008, the court determined the appropriate total offense level was twenty-one (21), which resulted in a recommended guidelines range of fifty-seven (57) to seventy-one (71) months imprisonment. The court determined this offense level by applying a sixteen-level enhancement for prior conviction of a drug trafficking offense pursuant to U.S.S.G. § 2L1.2(b)(1)(A). Defendant had a prior conviction in California under a statute which prohibited drug trafficking among other conduct. Adopting the approach used in United States v. Alvarez-Granados, 228 F. App'x 350 (4th Cir. 2007), this court found the enhancement proper because the California statute inter alia prohibited drug trafficking. The court did not give any further consideration to the facts underlying the prior conviction. The court sentenced defendant to fifty-seven (57) months imprisonment.
On November 9, 2009, the Court of Appeals for the Fourth Circuit vacated defendant's sentence and remanded the case for resentencing. The Fourth Circuit held the sixteen-level enhancement was inappropriate when the basis for the enhancement was a prior conviction under a statute that inter alia criminalizes drug trafficking, reversing the position of the court taken in Alvarez-Granados. United States v. Maroquin-Bran, No. 08-4464, slip op. at 4 (4th Cir. Nov. 9, 2009). Rather, when confronted with a statute that prohibits trafficking and non-trafficking conduct, the Fourth Circuit held the enhancement is only appropriate if the predicate conviction itself was for a drug trafficking offense. Id. The Fourth Circuit remanded for resentencing in light of its interpretation of § 2L1.2(b)(1)(A).
On remand, defendant urged the court that the sixteen-level enhancement was inappropriate because approved documentation does not establish the underlying behavior which served as a predicate for the California conviction. For the reasons detailed below, the court finds that the sixteen-level enhancement does apply in this instance and the applicable recommended guideline range is fifty-seven (57) to seventy-one (71) months. Because of the additional information before the court regarding defendant's impermissible conduct while in prison serving the court's sentence, the court concludes a period of incarceration of sixty-three (63) months is an appropriate term of imprisonment.
At sentencing, the Probation Officer stated that defendant has accrued two infractions regarding prohibited substances while in Bureau of Prisons ("BOP") custody. While BOP custody prohibits the Probation Officer from disseminating copies of this record, both parties were offered opportunity to review defendant's disciplinary record in the context of the court hearing.
ANALYSIS
To qualify for the sixteen-level enhancement pursuant to § 2L1.2(b)(1)(A), the defendant must have been deported after a "conviction for a felony that is (I) a drug trafficking offense for which the sentence imposed exceeded 13 months." A drug trafficking offense is one which prohibits the "manufacture, import, export, distribution, or dispensing of, or offer to sell a controlled substance" or possession with intent to engage in the aforementioned conduct. Id. application note 1. When determining whether a prior conviction warrants the enhancement, "a court must first compare the 'statutory definition of the prior offense' to the Guidelines' definition of a qualifying prior offense." Maroquin-Bran, slip op. at 6 (quoting Taylor v. United States, 495 U.S. 575, 602 (1990)). If the criminal statute is overbroad and prohibits both qualifying and non-qualifying conduct, the court must evaluate the character of the prior offense to determine whether it supports the enhancement. Id. When considering the character of the prior offense, the court's inquiry is "limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information." Shepard v. United States, 544 U.S. 13, 26 (2005).
Here, defendant's prior conviction at issue is a violation of California Health Safety Code § 11360(a). Section 11360 provides, "every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell furnish, administer, or give away, or attempts to import into this state or transport any marijuana shall be punished by imprisonment . . ." Given the breadth of conduct prohibited, not all convictions pursuant to § 11360 would necessarily support the sixteen-level enhancement. For instance, the sale of marijuana would support the enhancement at issue, but transportation of marijuana would not.Maroquin-Bran, slip op. at 6. As the statute prohibits both trafficking and non-trafficking offenses, the court must address the character of the prior offense to determine whether the conviction supports the enhancement.
The court has three Shepard-approved documents or sets of documents before it, copies of which are attached hereto for convenience of reference. These include 1) the criminal information; 2) the abstract of judgment relating to defendant's October 18, 1990, probation revocation; and 3) the four-page compilation of case records of the Superior Court of California, County of Los Angeles, of or relating to a) defendant's March 9, 1989, arraignment and plea, b) April 6, 1989, sentencing, and c) his subsequent probation revocations. The court does not consider or rely on the probation report again urged to corroborate theShepard-approved documents by the government. This report is outside the permissible scope of Shepard. The court declines also to draw any inference from count two of the California charging document, which pertains solely to another defendant.
This was in relation to defendant's second recorded violation of probation. The document as it pertains to the offense of conviction, is relevant and helpful in deciphering details pertinent to the date of defendant's conviction. The document shows defendant was convicted of the underlying offense on March 9, 1989, which date is not legible in other documentation. Singular reliance on this document for the purpose of determining what conduct defendant admitted to in his guilty plea is misguided, however, to the extent guidance is suggested in the stylization of the crime: "sale/TRANSP MARIJUANA." The abstract is several procedural steps removed and there is a contemporaneous recording of the plea and judgment taken a year and half or so earlier, to which reference can be made. The primary purpose of the later abstract is to record pronouncement of sentence October 18, 1990. From the face of the document generated around October 18, 1990, in light of the record developed in the case, it cannot be found that use of a slash mark and capital letters following that symbol were intended by the generator to emphasize that the plea pertained only to transportation of marijuana, as defendant argues. One also could speculate that the "capitol" function on the keyboard inadvertently was depressed as the typist navigated from "SECTION NUMBER" block to "CRIME" block in the form, and that this was corrected after the slash mark, resorted to because of that block's space limit, was deployed.
This four-page compilation, copied from microfiche or microfilm it would appear from records archived in the case now over twenty (20) years old, is difficult to read given the type size and quality of the images. Line by line, the documentation records a myriad of case activities in a staccato manner. The significance of the separate pages, discussed more particularly at hearing by the Probation Officer with deference to his California counterpart, appears unchallenged. There is no dispute that California state court processes resulted during the period in question in the making of this unified written record of defendant's contacts with the criminal justice system, be the components properly termed "transcripts," "judgments" or other. The compilation includes documentation of his arraignment and plea (form 2 containing block numbers 31 through 69), judgment and sentencing (form 3 containing block numbers 71 through 92), and probation violations and judgments thereon (form 4 containing block numbers 101 through 136). Documentation, if any other exists as a part of this unified record made in the Superior Court of California, County of Los Angeles, of or relating to activities in the case preceding this defendant's March 9, 1989, arraignment and plea, i.e. a form with block numbers 1 through 30, and in the interval between his April 6, 1989, sentencing and his first probation violation on July 24, 1990, i.e. a form with block numbers 93 through 100, has not been made a part of the record in this case.
The information charges this defendant with "the crime of SALE OR TRANSPORTATION OF MARIJUANA . . . [when he] did willfully and unlawfully transport, import into the State of California, sell, furnish, administer, and give away, and offer to transport, import into the State of California, sell, furnish, administer,and give away, and attempt to import into the State of Californiaand transport marijuana." (emphasis added.) Documentation contained in form 2 at line 57 of or relating to his arraignment and plea specifies defendant "PLEADS GUILTY WITH CONSENT OF DISTRICT ATTORNEY AND APPROVAL OF COURT TO VIOLATION OF SECTION(S) 11360.A H[EALTH] S[AFETY] IN COUNT(S) 1." After the word "GUILTY," certain language has been crossed out and made unavailable to characterize defendant's plea, entered upon withdrawal of a not-guilty plea.
The information charges the conduct in the conjunctive. Five times the word "or" appearing in the statute is supplanted by the word "and" as contained in the charging document. Defendant entered a plea to the offense conduct as charged in count one. The court need not look any further to determine that defendant's California conviction qualifies for the sixteen-level enhancement.
Defendant, however, urges the court to consider and rely onUnited States v. Vidal, 504 F.3d 1072 (9th Cir. 2007) ( en banc), to reach a different conclusion. In Vidal, the Ninth Circuit used the modified categorical approach to assess the prior conviction at issue in the case and concluded that, under the circumstances presented, the defendant's guilty plea to unlawful driving or taking of a vehicle did not establish the necessary factual predicate to qualify for an aggravated-felony enhancement. Id. at 1076. Vidal involved what is described therein as a West plea, sounding as a no contest plea, where a defendant is allowed to plead guilty without admitting the specific details of his conduct as charged. Id. at 1089. Vidal notes a predilection of California prosecutors specifically with regard to unlawful driving or taking of a vehicle offenses. Also, the court was concerned about the absence of certain documentation.
Defendant argues in reliance on that decision that charging in the conjunctive is the common practice of California prosecutors and, unless defendant pleads "guilty as charged," the charging document cannot be said to establish a factual predicate for the conviction. Vidal does not recognize a state-wide practice of charging in the conjunctive for violations of § 11360. Id. at 1088 n. 27. Moreover, it appears certain documentation not available in that case is available to this court illuminating the plea.
The Shepard-approved documents in this case do not indicate defendant entered anything less than a straightforward plea of guilty to the crime charged in count 1. Shepard counsels and the Fourth Circuit reiterates that decision is to be made upon a careful reading of and with deference to terms as written. Upon review of the Shepard-approved documents in this case, and as the court found at hearing, defendant's prior conviction was for a drug trafficking offense. Defendant's plea of guilty to the offense charged in count one of the California indictment shows his plea was effective to the offense of selling and transporting marijuana. Accordingly, a sixteen-level enhancement under § 2L1.2(b)(1)(A) is appropriate.
In this case, one might quite reasonably conclude the words "NO CONTEST" are the ones struck following the word "GUILTY" at line 57.
It came to light at resentencing that this defendant while in the custody of BOP has been non-compliant with the law and prison rules in several significant ways. These include his receipt of and resort to a controlled substance, that is on separate occasions he was found in possession of drugs and a fermented concoction "brewed" within the prison confines. This conduct further informs his history and characteristics, propensity for recidivism, and the like.
As more particularly set forth at hearing, considering the purposes of sentencing, with due regard to the advice of the guidelines, and in consideration of the factors set forth in 18 U.S.C. § 3553, the court has determined a within guideline punishment remains appropriate but one that is six months longer than that term originally imposed. All other conditions of the court's judgment are renewed, with the added recommendation that this defendant be considered by BOP for the most intensive treatment program it can make available for someone suffering from addiction and dependency.
CONCLUSION
For the foregoing reasons, the court overrules defendant's objection to the application of § 2L1.2(b)(1)(A) in his case. As memorialized in separate judgment entered herewith, the court sentences defendant to a period of incarceration of sixty-three (63) months. All other terms and conditions of the court's judgment are renewed and remain, with the added recommendation that this defendant be considered by BOP for the most intensive treatment program it can make available for someone suffering from addiction and dependency.SO ORDERED.
APPENDIX
1. Information 2. Abstract of Judgment Filed October 18, 1990 3. Four Page Compilation of Case Records of the Superior Court of California, County of Los AngelesINFORMATION
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COURTY OF LOS ANGELES THE PEOPLE OF THE STATE OF CALIFORNIA, Case No. A480149 Plaintiff v. INFORMATION Arraignment Date: 12/28/09 MARVIN BRAN MAROQUIN, and Department: SE J RAFAEL, RAMOS HERNANDEZ Defendant(s)INFORMATION SUMMARY
No. Charge Range Defendant Allegation Effect Ct. Charge Special Alleg. 1 N$11360(a) 2-3-4 MAROQUIN, MARVIN BRA HERNANDEZ, RAFAEL RA 2 N$11359 16-2-3 HERNANDEZ, RAFAEL RA The District Attorney of the County of Los Angeles, by this Information alleges that:COUNT 1
On or about November 11, 1988, in the County of Los Angeles, the crime of SALE OR TRANSPORTATION OF MARIJUANA, in violation of HEALTH AND SAFETY CODE SECTION 11360(a). a Felony, was committed by MARVIN BRAN MAROQUIN and RAFAEL RAMOS HERNANDEZ, who did willfully and unlawfully transport, import into the State of California, sell, furnish, administer, and give away, and offer to transport, import into the State of California, sell, furnish, administer, and give away, and attempt to import into the State of California and transport marijuana.
* * * * * COUNT 2
On or about November 11, 1988, in the County of Los Angeles, the crime of POSSESSION OF MARIJUANA FOR SALE, in violation of HEALTH AND SAFETY CODE SECTION 11359, a Felony, was committed by RAFAEL RAMOS HERMANDEZ, who did willfully and unlawfully possess for purpose of sale marijuana.
* * * * *
THIS INFORMATION CONSISTS OF 2 COUNT(S).
IRA REINER DISTRICT ATTORNEY County of Los Angeles, State of California By: GERALD G HANEY GERALD G HANEY DEPUTY DISTRICT ATTORNEY Filed in Superior Court. County of Los Angeles DATED: ____________________ABSTRACT OF JUDGMENT FILED OCTOBER 18, 1990
ExhibitFOUR PAGE COMPILATION OF CASE RECORDS OF THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Exhibit