Puckett v. United States

On March 25, 2009, the Supreme Court issued its opinion in Puckett v. United States, 07-9712. (See http://www.supremecourtus.gov/opinions/08pdf/07-9712.pdf). The decision was made by a 7-2 majority, with Justice Scalia writing the opinion for the majority. Justice Souter dissented, and was joined by Justice Stevens.

In any case that an attorney receives a decision he or she personally disagrees with, that attorney is tempted to complain that judges were unfair or did not understand the issues presented. That is not my intent at all. However, there are a couple points arising from the decision that may have unexpected consequences.

The first has to do with the type of prejudice required to satisfy a "plain error" evaluation under Rule 52(b). In Puckett, the majority stated: "Because, as we have explained, the breach consists of a wrongful denial of the rights obtained by the defendant through the plea agreement and does not automatically invalidate the plea, we agree with the Government that the question with regard to prejudice is not whether Puckett would have entered the plea had he known about the future violation. Cf. United States v. Dominguez Benitez, 542 U. S. 74, 83 (2004). When the rights acquired by the defendant relate to sentencing, the ‘outcome’ he must show to have been affected is his sentence." Puckett, Slip op. at 12, n.4.

Unfortunately, it is my belief that no defendant will ever be able to satisfy this requirement. 18 USC 3553(a) states that a district court, in determining the particular sentence to be imposed, "shall consider" many different types of factors provided in that statute in determining a sentence. A district court judge must by law consider all these factors in imposing sentence. As the 3rd Circuit recently noted: "To be procedurally reasonable, a sentence must reflect a district court's meaningful consideration of the factors set forth at 18 U.S.C. § 3553(a). A district court "should set forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decision making authority." Rita v. United States, 127 S. Ct. 2456, 168 L. Ed. 2d 203 , 2007 WL 1772146, at *12 (2007). A sentencing court need not make findings as to each factor if the record otherwise makes clear that the court took the factors into account. Cooper, 437 F.3d at 329." United States v. Lessner, 498 F.3d 185, 203 (3rd Cir. 2007).

Because a district court judge is bound by law to consider all the factors listed under 3553(a), as a practical matter, it is difficult to imagine a sentence that would ever be found by an appellate court to have been determined solely by a factor not even listed under 3553(a), i.e., an agreement by the government to take or forgo taking an action that later is determined to have been breached. In effect, Puckett forecloses all Rule 52(b) relief when the defendant fails to object to the Government's breach of a plea agreement.

Another troubling point is that the Puckett decision may really be only half of the equation. The "other shoe" that may be dropping soon is when a defendant does object to a breach of the plea agreement. In Santobello v. New York, 404 U. S. 257 (1971), the Supreme Court held "that automatic reversal is warranted when objection to the Government’s breach of a plea agreement has been preserved, but that holding rested not upon the premise that plea-breach errors are (like “structural” errors) somehow not susceptible, or not amenable, to review for harmlessness, but rather upon a policy interest in establishing the trust between defendants and prosecutors that is necessary to sustain plea bargaining—an “essential” and “highly desirable” part of the criminal process, 404 U. S., at 261–262." Puckett, slip op. at 12. However, in Puckett, the Supreme Court indicated it was an open question whether Santobello was still good law. "We need not confront today the question whether Santobello’s automatic-reversal rule has survived our recent elaboration of harmless-error principles in such cases as Fulminante and Neder." Id., n.3.

Under the "harmless-error" test, an appellate court applies Rule 52(a), which states: "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded[.]" "When the defendant has made a timely objection to an error and Rule 52(a) applies, a court of appeals normally engages in a specific analysis of the district court record -- a so-called "harmless error" inquiry -- to determine whether the error was prejudicial." United States v. Olano, 507 U.S. 725, 734 (1993).

Here, Puckett has seemingly answered this question- prejudice is only established when the breach affects the "outcome" of the defendant's sentence. It arguably does not matter then if the defense attorney objects. If no prejudice resulted to the defendant from the breach, the defendant cannot prevail. Further, a breach of a plea agreement is, according to the majority, not a structural error which would preclude Rule 52(a) consideration. "[B]reach of a plea deal is not a “structural” error as we have used that term. We have never described it as such, see Johnson, supra[.]" Puckett, Slip Op. at 11. While the Puckett majority held in passing that its earlier decision in Santobello (and presumably its automatic reversal standard with no required showing of prejudice) was still applicable in cases where the Defendant objects to a plea breach, I believe that the Government will challenge an objected to breach of a plea agreement as not amounting to "harmless error" in a future appeal.

Another sign Santobello is in trouble is the Puckett majority's casting aside its brethren decisions from the same time period. In Puckett, the Supreme Court distinguished or overruled its decisions holding that a plea agreement cannot stand if induced by "misrepresentation" including "unfulfilled" promises (Brady v. United States, 397 U. S. 742 (1970) and that “when the prosecution breaches its promise with respect to an executed plea agreement, the defendant pleads guilty on a false premise, and hence his conviction cannot stand." (Mabry v. Johnson, 467 U. S. 504, 509 (1984)). See Slip Op. at 8-9, n.1. If these "bedrocks" of Constitutional law are not safe, can Santobello be far behind?

As Justice Souter wrote in his dissent, "Petitioner’s situation does not excite sympathy, but the Court’s holding will stand for a rule in circumstances less peculiar than those here." While the Supreme Court majority had an easy target in Mr. Puckett, the rules it set out may have unintended adverse results. The Puckett decision unfortunately may undermine the trust and confidence in the plea system and encourage United States Attorneys to breach plea agreements.

Puckett v. United States

On January 14, 2009, I argued for petitioner James Benjamin Puckett in Puckett v. United States, 07-9712, before the United States Supreme Court. With me at counsel table were Jonathan Hacker, Pamela Lakatos and M. Christina Rossi. Opposing was Assistant to the Solicitor General Lisa Schertler, and with her at counsel table was Kathleen Felton. The issue granted by the United States Supreme Court for review was: "Whether a forfeited claim that the government breached a plea agreement is subject to the plain-error standard of Rule 52(b) of the Federal Rules of Criminal Procedure." Amazingly, I don't think a single question was posed by the Justices to either side as to this issue.

I certainly could not have done this alone. The attorneys at O'Melveny & Meyers did a great job in preparing me for oral argument. I did five mock panels beforehand, which were all helpful. One of the these was held at the Georgetown Law School Supreme Court Institute, coordinated by Tina Drake-Zimmerman. Ms. Drake-Zimmerman was extremely friendly and of great assistance. Dahlia Fetouh wrote the excellent amicus brief for NACDL and kindly took the time to come to oral argument. Tom Vanderloo of the United States Sixth Circuit Court Library in Chattanooga was helpful and supportive. Richard Anderson, Jason Hawkins and Jerry Beard of the Federal Public Defender's Office of the Northern District of Texas were my foundation throughout this voyage.

In regard to the attorneys who sat with me a counsel table, Jonathan Hacker did a fabulous job on the briefs and was patient with this small town lawyer who had to throw his two cents in at every opportunity. Pamela Lakatos of Plano, Texas, is one of the finest attorneys I have ever known, and a real mentor to me. And M. Chris Rossi is a wonderful lawyer, and is an even more wonderful sister to assist her brother on this stressful day.

Oral argument itself was vigorous, to say the least. After my third sentence, Justice Ginsburg jumped in, and we were off to the races. All the justices, except for Justice Thomas, asked questions, some more pointed than others. Chief Justice Roberts seemed to be the most amenable to my client's position, but of course it is impossible to tell how the votes will come down. Justices Scalia and Alito seemed the least impressed with my arguments, and Justice Souter asked me a hypothetical in which he used the term "metaphysical." It was very challenging, and I did the best I could. My goal was not to appear to be hopelessly outclassed by the more experienced Assistant Solicitor General, and I like to think I achieved this goal.

All the pertinent documents can be found at: http://www.scotuswiki.com/index.php?title=Puckett_v._United_States. It is very rare that a sole practitioner gets to argue before the Supreme Court. I was aware of this, and felt the weight of history many times. One time was when we were being briefed by Clerk of the Supreme Court William Suter in the lawyers lounge on the day of oral argument. He could not have been nicer, but standing there before us in his morning coat and striped pants, and in the presence of numerous large portraits of former justices, it was a moment in which you felt a strong link to the history of the Court.

Another time I felt the weight of history was speaking with Justice Stevens during oral argument. Justice Stevens is a living link to some of the great justices of the past. Justice Stevens was preceded by Justice William O. Douglas. Justice Douglas had served with Associate then Chief Justice Harlan Stone. Associate/Chief Justice Stone had served with Justices Brandeis, Holmes, Cordozo and Taft, among others. How many poor souls had tried to match wits with these giants who have sat on the lofty bench of the Supreme Court? Not many have had this opportunity, but all probably felt as nervous as I did.

Two quotes from two very different authors seem appropriate, if not directly on point. First, Chief Justice Marshall wrote the following in his opinion in the Aaron Burr treason trial in 1807: "That this court dares not usurp power is most true. That this court dares not shrink from its duty is not less true." My hope is that the Supreme Court does not retreat from a bright line rule that a plea induced by a false promise cannot stand. There are many reasons why the Supreme Court loathes an automatic reversal rule- but, the repugnancy of such a rule pales in comparison to the repugnancy of allowing our government to trick a citizen into giving away his or her Constitutional rights to trial and due process of law.

The second quote is from recently-deceased author John Mortimer. In his short story "Rumpole and the Man of God," fictional aged lawyer T.C. Rowley ("Uncle Tom"), in lecturing his younger London temple-mates on the long-past workings of chambers, states: "We had no work in those days . . . No work of any kind. We spent our days practising chip shots, trying to get an old golf ball into the waste-paper basket with [a mashie niblick]. . . . Being able to defend myself with a club-like object would have been good training for my recent experience!

Second Chance Act of 2007

On April 9, 2008, President Bush signed the “Second Chance Act of 2007.” A summary of the Act is found at: http://www.whitehouse.gov/news/releases/2008/04/20080409-15.html.
In short, “the legislation formally authorizes key elements of the successful Prisoner Reentry Initiative (PRI), announced by the President in 2004, to help prisoners effectively reintegrate into the community. Additionally, the Second Chance Act enhances drug treatment, mentoring, and transitional services for ex-offenders through partnerships with local corrections agencies and faith-based and community organizations.” The Act allocates $360 million towards a variety of reentry programs. One of the main components of the bill is the funding of demonstration projects that would provide ex-offenders with a coordinated continuum of housing, education, health, employment, and mentoring services.

However, it will be up to Congress to appropriate the funds for this program. The success of this program, even with lofty hopes and goals, will depend on whether the Government will follow through with the necessary funding.

New Crack Cocaine Guidelines

The New “Crack Cocaine” Guidelines- an introduction

Recently, the United States Sentencing Commission amended the base offense levels applicable to cocaine base (“crack”) offenses. These amendments present an opportunity for those sentenced under the previous more punitive guidelines to petition the trial court for a reduction in sentence.

Change in guidelines

For many years, commentators have been concerned with the unwarranted disparity existing between Federal crack cocaine and powder cocaine sentences. Effective November 1, 2007, the United States Sentencing Guidelines Commission implemented Amendment 706 to the Sentencing Guidelines. Amendment 706 lowered the base offense levels applicable to cocaine base (“crack”) offenses. See http://www.ussc.gov/2007guid/appc2007.pdf.

The Sentencing Reform Act of 1984 specifically authorized the Commission to provide for retroactive effect of amendments that result in lower penalties for classes of offenses or offenders. On December 11, 2007, the Sentencing Commission voted to make Amendment 706 retroactive. See http://www.ussc.gov/PRESS/rel121107.htm. This decision became effective on March 3, 2008. Id.

Procedure

18 U.S.C. § 3582(c) provides: The court may not modify a term of imprisonment once it has been imposed except that— . . . (2) in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553 (a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

USSG §1B1.10 contains the policy statements concerning reduction of imprisonment as a result of amended guideline ranges. Effective March 3, 2008, a revised USSG §1B1.10 took effect. Amendment 706, as amended by Amendment 711, is now included in the list of amendments that may be applied retroactively. USSG §1B1.10 (c).

The major points included in USSG §1B1.10 are:

• In determining whether, and to what extent, a reduction in the defendant’s term of imprisonment, the court “the court shall determine the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines listed in subsection (c) had been in effect at the time the defendant was sentenced.”

• Except as provided in Subsection B, the court shall not reduce the defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range determined under subdivision.

• (B) Exception. If the original term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing, a reduction comparably less than the amended guideline range determined under subdivision (1) may be appropriate. However, if the original term of imprisonment constituted a non-guideline sentence determined pursuant to 18 U.S.C. § 3553(a) and United States v. Booker, 543 U.S. 220 (2005), a further reduction generally would not be appropriate.

Northern District of Texas

In the Northern District of Texas, the Federal Public Defender’s Office has identified Defendants that may qualify for a reduction in sentence, and have mailed form motions to them to file pro se. It has yet to be determined if these individuals will be entitled to court appointed counsel in pursuing these reductions.

A number of these motions have been filed by both pro se prisoners and those able to afford counsel, and some have been granted. In United States v. Mosby, 3:03-CR-188-N(20), Northern District of Texas (Dallas), the Hon. David C. Godbey granted a motion to reduce the represented Defendant’s Term of Imprisonment from 57 to 46 months because of the crack cocaine guideline change over the Government’s objection. In United States v. Bell, 4:06-CR-073-A(01), Northern District of Texas (Ft. Worth), the Hon. John McBryde granted a motion to reduce a pro se Defendant’s term of imprisonment from 240 to 193 months because of the new crack guidelines. In the initial judgment, Judge McBryde had sentenced the Defendant below the applicable guideline range, and certified in his amended sentence order that the “reduced sentence is comparably less” than the amended guideline range.

It is likely that the judges will be called upon to rule on many of these types of motions in the near future. It is unknown, however, as to how many of these persons will be appointed counsel to assist in the preparation and argument of these motions and what the position of the United States Attorney will be in response to these motions.

The Effect of the Adam Walsh Child Protection and Safety Act of 2006 on Immigrants and Immigration Law

This is an article I wrote for the newsletter for the Dallas Chapter of the Federal Bar Association on the effect of the Adam Walsh Child Protection and Safety Act of 2006 on Immigrants and Immigration Law:

On July 27, 2006, President Bush signed into law the “Adam Walsh Child Protection and Safety Act of 2006.” (PL 109-248 [HR 4472], 120 Stat 587)(Hereinafter, “The Act”). The Act’s purpose is to “protect children from sexual exploitation and violent crime, to prevent child abuse and child pornography, to promote Internet safety, and to honor the memory of Adam Walsh and other child crime victims.” See Preface, PL 109-248.

The Act seeks to establish a comprehensive national system for the registration of certain criminal offenders. See Sec. 102 of the Act, codified at 42 U.S.C § 16901. Specifically, “sex offenders” are required to register with the appropriate local or state government registry. See Sec. 113 of the Act, codified at42 U.S.C § 16913.

A “sex offender” is defined as “an individual who was convicted of a sex offense.” See Sec. 111(1) of the Act, codified at 42 U.S.C § 16911. The term “sex offense” includes any offense (or conspiracy to commit that offense) that “has an element involving a sexual act or sexual contact with another,” any offense “that by its nature is a sexual offense against a minor” and many federal crimes, including those prohibiting sex abuse (Chapter 109A of Title 18, USC), sexual exploitation of children (Chapter 110 of Title 18, USC) and transportation for illegal sexual activity (Chapter 117 of Title 16, USC). See Sec. 111(5)(a) of the Act, codified at 42 U.S.C. § 16911.

The Act provides for strict reporting requirements upon such conviction and for the Justice Department to create a national registry of sex offenders. See Sec. 113(b) of the Act, codified at 42 U.S.C § 16913; Sec. 119 of the Act, codified at 42 U.S.C § 16919. Under the Act, a failure to register is itself a federal crime punishable by fine or imprisonment not more than ten years, or both. See Sec. 141 of the Act, codified at 18 U.S.C § 2250(a)(3).
The Act specifically targets immigrants in a number of ways. First, the Act does not limit its registration requirement to those who committed crimes within the United States. Thus, persons who were convicted of such offenses outside the United States presumably must register. However, the Act provides:
(B) FOREIGN CONVICTIONS.--A foreign conviction is not a sex offense for the purposes of this title if it was not obtained with sufficient safeguards for fundamental fairness and due process for the accused under guidelines or regulations established under section 112.

Section 112(b) of the Act provides that the Attorney General shall issue guidelines and regulations to interpret and implement this title. See 42 U.S.C § 16912. However, these regulations have not been issued, so the definition of “sufficient safeguards” has yet to be determined.

Second, the Act provides:

The Attorney General, in consultation with the Secretary of State and the Secretary of Homeland Security, shall establish and maintain a system for informing the relevant jurisdictions about persons entering the United States who are required to register under this title. The Secretary of State and the Secretary of Homeland Security shall provide such information and carry out such functions as the Attorney General may direct in the operation of the system.

See Section 128 of the Act, codified at 42 U.S.C § 16928. Again, the Act provides no further details as to how this information is to be gathered or obtained.

Third, Section 401 of the Act amends Section 237(a)(2)(A) of the Immigration and Nationality Act (8 U.S.C. 1227(a)(2)(A) by inserting a new clause: "(v) . . . Any alien who is convicted under section 2250 (failure to register as a sex offender} of title 18, United States Code, is deportable."

Fourth, Section 402 of the Act amends Section 204(a)(1) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)) to bar U.S. citizens and Legal Permanent Residents (LPRs) convicted of any “specified offense against a minor” from having family based immigration petitions approved, “unless the Secretary of Homeland Security, in the Secretary's sole and unreviewable discretion, determines that the citizen poses no risk to the alien with respect to whom a petition described . . . is filed.” Unfortunately, Congress does not provide instruction as to how the Secretary is to make this determination.
Fifth, Section 402 of the Act further amends Section 101(a)(15)(K) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(K)) to flatly prohibit a U.S. citizen convicted of any “specified offense against a minor” from sponsoring an alien for admission to the United States under a fiancé (K) Visa.
In sum, the Act broadens and toughens the penalties and consequences for sex offenders. Immigrant sex offenders (and the spouses and fiancés of U.S. citizen or LPR offenders) are not spared, and are specifically targeted for increased scrutiny and sanctions, without the benefit of clear guidelines or interpretive regulations.

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Check out attorney Linda Ramirez' interesting blog on Extradition and Foreign Evidence Cases for Criminal Defense Attorneys!

Federal criminal immigration laws

The following is an article I recently wrote for the newsletter of the Dallas Chapter of the Federal Bar Association.

Federal law provides criminal penalties for numerous illegal activities relating to immigration. General areas include: (1) the unlawful entry of aliens into the United States, employment of such aliens, and document fraud; (8 U.S.C. § 1321-1328); (2) the manufacture or use of false or altered passports (18 U.S.C. § 1541-1547); and (3) false procurement or fraud in citizenship or naturalization proceedings (18 U.S.C. § 1421-1429). This article reviews the Fifth Circuit’s interpretation of 8 U.S.C. § 1324, which prohibits the smuggling of aliens into the United States, from January 2006 to current.[1]

Subject to 8 U.S.C. § 1324’s maximum sentencing limits, the Federal Sentencing Guidelines, while no longer binding, must still be utilized by the district courts as a first step in formulating a sentence.[2] The Federal Guideline Manual “establishes two numerical values for each guideline case: an offense level and a criminal history category. The two values correspond to a series of axes to a grid, called the sentencing table; together, they specify a sentencing range for each case. . . .The Manual provides rules for sentencing within the range, and for departures outside of it.” [3]

§ 2L1.1 of the Federal Sentencing Guidelines is applied to persons found guilty of violating 8 U.S.C. § 1324(a). In most cases, USSG § 2L1.1 sets a base offense level of 12 for a violation of § 1324(a).[4] The Special Offense Characteristics for USSG § 2L1.1 provide for a three point reduction if the offense was committed other than for profit and provides for various point amounts to be added: (1) based on the number of unlawful aliens smuggled or transported, (2) for prior felony immigration and naturalization offenses; (3) use or possession of a firearm; (4) creating a substantial risk of death or serious bodily to another person; or (5) another person suffered death or sustained bodily injury.[5]

The reported decisions of the Fifth Circuit in 2006 addressing 8 U.S.C. § 1324(a) have been a mixed bag of cases dealing with different aspects of that statute. In United States v. Rodriguez-Mesa, 443 F.3d 397 (5th Cir. 2006), Defendant was convicted by guilty plea in the United States District Court for the Southern District of Texas of transporting an alien in violation of 8 U.S.C. § 1324(a), and was sentenced to 19 months in prison, and two years of supervised release. In Rodriguez-Mesa, the Defendant transported the alien in a compartment that had been built in the center console of the minivan. There was a door located on top of the compartment. The compartment covered half of the passenger’s body, including his head and torso, but his legs extended on to the floorboard of the front passenger’s side of the vehicle. Id. at 398.

At the plea hearing, the Defendant admitted his guilt to § 1324(a), but refused to admit to an aggravating factor of “reckless endangerment” as charged in the indictment. After the entry of the plea, the PSR recommended a six point upper adjustment above the 12 point base level because the actions of the Rodriguez-Mesa “recklessly created a substantial risk of death or serious bodily injury to another person by concealing an illegal alien in the console area of the transport vehicle.” Id. at 399. Defendant objected on two grounds: (1) the enhancement violated his Sixth Amendment right to a jury trial because the judge used facts not admitted by him or proven to a jury beyond a reasonable doubt, and (2) the enhancement for reckless endangerment was not supported by the facts. Id. at 399-400. These arguments were rejected by the Court, which sentenced Rodriguez-Mesa in accordance with the guideline levels as recommended in the Presentence Report, finding “beyond a reasonable doubt that Rodriguez-Mesa created a substantial risk of serious bodily injury” in his transportation of the illegal alien. Id. at 400.

On appeal, the Fifth Circuit reversed and remanded to the district court for resentencing in light of Booker[6] decision’s holding that the Guidelines are advisory, not mandatory. Despite this holding, the Fifth Circuit affirmed that a substantial risk of serious bodily injury had been shown. The court acknowledged that the Commentary to USSG § 2L1.1(b)(5) defined reckless conduct as including “transporting persons in the trunk or engine compartment of a vehicle[,]” but that nothing in the commentary directly spoke to a transporting an alien in a compartment located inside the vehicle. Id. at 401. The court also noted its recent decision on United States v. Solis-Garcia, 420 F.3d 511 (5th Cir. 2005), in which it held that the act of transporting four aliens lying in the cargo area of a minivan, with no aggravating factors, did not create a substantial risk of serious bodily injury. Id. at 402. The Appeals Court distinguished these authorities, noting that because the alien was forced to ride potentially hundreds of miles “with the upper half of his body stuffed into the console and his arms pinned to sides,” it suggested exposure to substantial risk of serious bodily injury. Id. at 403.

In United States v. Contreras-Trevino, 448 F.3d 821 (5th Cir. 2006), law enforcement officers stopped a car for a violation of Section 502.409 of the Texas Transportation Code relating to the obstruction of a vehicle’s license plate. Specifically, the plate had a plastic frame, issued by a San Antonio car dealership, that covered the top half of the word “Texas” and the bottom half of the plate’s design. The officers stopped the vehicle based on this traffic infraction and were able to elicit a confession from the driver that he had brought the passengers over illegally from Mexico without inspection. Id. at 822. The Defendant was charged with two counts of unlawfully transporting an illegal alien in a motor vehicle in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (B)(ii). Defendant filed a motion to suppress arguing that the officer lacked probable cause to stop the vehicle, the court denied this motion, the district found Contreras-Trevino guilty of both counts after a bench trial and defendant appealed. Id. at 823.

The Fifth Circuit affirmed, noting that Section 502.409(a)(7)(B) provides for an offense if that person attached to or displays on a motor vehicle a number plate or registration insignia that has a coating, covering or protective material that “alters or obscures the letters or numbers on the plate, the color of the plate, or another original design feature of the plate.” Id. at 823. Here, the Fifth Circuit held that the plain meaning of “covering” for the purposes of Section 502.409(a)(7) may include a license plate frame. In the case at bar, because the word “TEXAS” was partially obstructed by the license plate frame and because it is literally “letters or numbers on the plate” and is an “original design element” of the plate, the officers had probable cause to stop Defendant. Id. at 824-825.

In United States v. Williams, 449 F.3d 635 (5th Circuit 2006), Williams faced the death penalty and other charges arising from an illegal alien smuggling conspiracy that caused the death of 19 persons hidden in the trailer of a tractor-trailer driven by Williams.

Williams and others were charged together in a sixty count indictment with various alien smuggling offenses in violation of 8 U.S.C. § 1324. Count 1 charged Williams and the others with conspiracy to conceal, harbor, shield from detection, and transport illegal aliens. Counts 2 through 20 charged Williams, both as a principal and as an aider and abettor, with unlawful concealment of illegal aliens. Counts 21 through 39 involved aliens that were allegedly injured during the unlawful transportation. Counts 40 through 58 mirrored Counts 21 through 39, except that Counts 40 through 58 involved aliens that died as a result of the transportation. Id. at 639-40.

For counts 21 through 58, the trial court added to the jury verdict an opportunity to find additional “aggravating factors” that would trigger increases in the maximum penalties of the offense, but only after a finding of guilt on the lesser offense provided under 8 U.S.C. § 1324. Id. at 642, 645. At trial, the jury returned a verdict of guilty on counts 21-58 of the indictment and expressed statements of “hopeless deadlock” on those count’s sub-questions concerning “aggravating factors” and on counts 1-20. Id. at 642. The district court declared mistrial on Counts 1-20, entered judgment on the “verdict” of guilty on aiding abetting the commission of the basic transportation offense in Counts 21-58, denied government’s request to retry defendant on the “greater aggravated offenses” in counts 21-58 and denied motion for reconsideration. The Government appealed. Id. at 642-643.

In Williams, the Fifth Circuit held, among other things, that the district court erred in its jury instruction, noting that the “aggravating factors” increasing the statutory maximum rendered them separate aggravated offenses. See id. at 645 (“[E]ach additional fact – the specific injury that resulted- must be alleged in the indictment, submitted to the jury, and found beyond a reasonable doubt. In short, each additional fact is an ‘element’ of a greater aggravated offense”).

In sum, the Fifth Circuit held that charges 1-20 could clearly be retried as the jury had indicated no verdict on these counts due to their deadlock; counts 21-58 could be retried on the greater aggravated offenses (the transportation offense with the additional injury factors) present in Counts 21 through 58; and that that the jury failed to convict Williams of any offense when, in regard to Counts 21 through 58, aiding and abetting the commission of the transportation offense, it returned a verdict of “guilty” as to the elements of the offense, but a statement of “hopeless deadlock” as to his role of the offense. The Fifth Circuit vacated the judgment of conviction and remanded the case to the Chief of the Southern District Court of Texas for reassignment to a new judge.

In United States v. Ibarra-Zelaya, __ F.3d. __, 2006 WL 2691401 (5th Cir. (Tex) 2006), defendants were convicted of hostage taking (18 U.S.C. § 1203(a)) and smuggling of illegal aliens (8 U.S.C. § 1324) when “coyotes” held numerous illegal aliens hostage in an attempt to extent additional funds from their relatives in Mexico. On appeal, the Defendant did not contest their convictions under 8 U.S.C. § 1324, but instead argued that the evidence was insufficient to sustain their convictions under the federal Hostage Taking Statute. The Fifth Circuit disagreed and sustained all convictions.

The smuggling of illegal aliens will no doubt continue to spawn numerous reported decisions from the Fifth Circuit interpreting 8 U.S.C. § 1324. The existence of “aggravating factors” triggering increased sentences for alien smugglers is likely to continue to be a fertile bed of appellate decisions in the near future.

[1] 8 U.S.C. § 1324(a)(1)(A) provides: Any person who--
(i) knowing that a person is an alien, brings to or attempts to bring to the United States in any manner whatsoever such person at a place other than a designated port of entry or place other than as designated by the Commissioner, regardless of whether such alien has received prior official authorization to come to, enter, or reside in the United States and regardless of any future official action which may be taken with respect to such alien;
(ii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law;
(iii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation;
(iv) encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law; or
(v)(I) engages in any conspiracy to commit any of the preceding acts, or
(II) aids or abets the commission of any of the preceding acts,
shall be punished as provided in subparagraph (B).
8 U.S.C. § 1324(a)(1)(B) provides that a person who violates subparagraph (A) shall, for each alien in respect to whom such a violation occurs--
(i) in the case of a violation of subparagraph (A)(i) or (v)(I) or in the case of a violation of subparagraph (A)(ii), (iii), or (iv) in which the offense was done for the purpose of commercial advantage or private financial gain, be fined under Title 18, imprisoned not more than 10 years, or both;
(ii) in the case of a violation of subparagraph (A) (ii), (iii), (iv), or (v)(II), be fined under Title 18, imprisoned not more than 5 years, or both;
(iii) in the case of a violation of subparagraph (A) (i), (ii), (iii), (iv), or (v) during and in relation to which the person causes serious bodily injury (as defined in section 1365 of Title 18) to, or places in jeopardy the life of, any person, be fined under Title 18, imprisoned not more than 20 years, or both; and
(iv) in the case of a violation of subparagraph (A) (i), (ii), (iii), (iv), or (v) resulting in the death of any person, be punished by death or imprisoned for any term of years or for life, fined under Title 18, or both.

[2] See United States v. Johnson, 455 F.3d 793, 797-798 (5th Cir. 2006)(“[U]nder Booker, to reach a reasonable sentence “the ··· court remains under a duty pursuant to [18 U.S.C.] § 3553(a) to ‘consider’ numerous factors including” the guidelines. Mares, 402 F.3d at 519. This duty to “consider” the Guidelines will ordinarily require the sentencing judge to determine the applicable Guidelines range even though the judge is not required to sentence within that range. The Guideline range should be determined in the same manner as before Booker/ Fanfan”).
[3] Campbell and Bemporad, An Introduction to Federal Sentencing, (9th Ed. 2006), page 6, found at: http://www.ussc.gov/training/intro9.pdf.
[4] The base level is 23 if the defendant was convicted under 8 U.S.C. § 1327 of a violation involving an alien who previously was deported after a conviction for an aggravated felony. USSG § 2L1.1(a)(1).
[5] USSG § 2L1.1(b)(1)-(6); Federal Sentencing Guidelines Handbook (Thompson-West 2006 Ed.) at 796-797.

[6] United States v. Booker, 543 U.S. 220 (2005).