Divided Fourth Circuit panel knocks out “moral turpitude” framework for immigration decisions at Chevron step one

A divided panel of the Fourth Circuit held today in Prudencio v. Holder that the framework used by federal immigration judges to decide whether an individual has previously been convicted of a crime of moral turpitude is unauthorized because in conflict with the relevant provisions of the Immigration and Nationality Act. Judge Keenan wrote the opinion, in which Chief Judge Traxler joined. Judge Shedd penned a vigorous dissent.

The decision defies easy summary, but the dispute is an important one. Here is how Judge Shedd’s dissent begins:

The categorical approach adopted by the majority is a doctrine created by the judicial branch to address issues of concern to the judicial branch—protection of Sixth Amendment rights and efficient use of judicial resources. Although an agency may choose to adopt some version of this approach, there is no  requirement to expand this difficult, almost unworkable, limiting analysis to an agency, especially in the immigration context, and I would not do so.

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Fourth Circuit ACCA decision on divorced-from-reality law professor hypotheticals, common sense, and floating fast-food restaurants

The Fourth Circuit issued six opinions in argued cases between yesterday and the day before (3 published and 3 unpublished). One of the published opinions, holding that an ACCA enhancement was appropriate and reversing the district court’s contrary determination, featured three separate opinions weighing in on the value of common sense.

Judge Agee wrote the majority opinion in United States v. Foster, in which Senior Judge Hamilton joined. Judge Wynn dissented. Senior Judge Hamilton wrote a concurring opinion largely responding to Judge Wynn.

The issue in Foster is one that has roiled the Fourth Circuit in recent times: the propriety of a sentencing enhancement under the Armed Career Criminal Act. In this case, the Shepard documents relied upon by the government showed convictions for breaking and entering the “Sunrise-Sunset Restaurant” and the “Corner Market.” The issue was whether it is appropriate to infer that these convictions were for breaking and entering a building or structure. The precise details of the legal dispute aside for the moment, here are some quotations providing a sense of the back and forth on the panel.

Judge Agee, quoting the First Circuit:

“The ACCA is part of the real world, and courts should not refuse to apply it because of divorced-from-reality,law-school-professor-type hypotheticals that bear no resemblance to what actually goes on.” Rainer, 616 F.3d at 1216. As we concluded with respect to the “business” in Shelton, we find that the indictments’ references to the “Sunrise-Sunset Restaurant” and the “Corner Market,” in the context of the applicable Virginia statute, ensure that Foster entered buildings or structures and was thus convicted of generic burglary for purposes of the ACCA.

Senior Judge Hamilton, concurring:

I write separately to make three observations concerning the use of common sense in ACCA cases. First, there is nothing truly remarkable about the use of common sense in ACCA cases. * * *

Second,  leaving our common sense at the front door makes little sense in examining court documents in ACCA cases. For example, what if the Virginia state court documents reflected that Foster was convicted of breaking and entering into an “Outback Steakhouse” or a “Wawa”? Under the dissent’s interpretation of Shepard, a district court would be precluded from using such a conviction because the documents themselves do not prove to an absolute certainty that every Outback Steakhouse or Wawa is affixed to the ground. As the dissent sees it, our common sense cannot step in and tell us what we already know because there is an infinitesimally small possibility that there is some Outback Steakhouse or Wawa floating on a river somewhere in a far-off land. * * *

Finally, the dissent implies that the use of common sense “replace[s the district court’s] fact-finding with our own.” The use of common sense is not the equivalent of fact-finding. The standard of review in ACCA cases is de novo, United States v. Thompson, 421 F.3d 278, 280-81 (4th Cir. 2005), and the use of common sense here is the same common sense courts routinely employ in determining the meaning of a state or federal statute.

Judge Wynn, dissenting:

None of the judicial records pertaining to Defendant’s prior convictions contain any allegation that the Corner Market or the Sunrise-Sunset Restaurant are buildings or structures; they are referred to only by their proper names. Indeed, nothing in the record either proves or disproves that those establishments are located in buildings or structures, or that Defendant “necessarily admitted” to those facts as part of his guilty plea. If not from these judicial records, where then did the majority obtain its “evidence” that the Sunrise-Sunset Restaurant and the Corner Market are buildings? [footnote 2]

[Footnote 2: In fact, the majority’s statement that “[a] defendant who pleads guilty to the burglary of a McDonald’s Restaurant, under similar circumstances to this case, necessarily pleads guilty to the burglary of a building or structure  illustrates perfectly the danger of such speculation based only on common sense or logic. Ante p. 11. Notably, it is not apparent what “similar circumstances” would render the per se determination that a McDonald’s Restaurant is a building for purposes of invoking the ACCA. Without some extrinsic knowledge of the circumstance of location in this case or another, it could well fit within the description of the McDonald’s Restaurant that operated out of a riverboat in Saint Louis for twenty years. See http://www.yelp.com/biz/mcdonalds-riverboat-st-louis (last visited Nov. 10, 2011); http://www.flickr.com/photos/tom-margie/2864343408/lightbox/ (last visited Nov. 10, 2011).

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Yet another sentence vacated in light of en banc decision in Simmons

The Fourth Circuit yesterday vacated another enhanced sentence under the Armed Career Criminal Act in light of its August 2011 8-5 en banc decision in United States v. Simmons (prior discussions here and here). The panel that issued the unpublished per curiam opinion in United States v. Bellamy was composed of Judges Motz, Agee, and Wynn.

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Judge Davis advises appellant to “save the taxpayers a few dollars and forego the customary petition for rehearing in this case and seek certiorari without inordinate delay.”

One of the more unusual aspects of the two Fourth Circuit decisions issued yesterday came at the tail end of United States v. Taylor, in a partial dissent authored by Judge Davis.  The appeal involved, among other things, a sentencing enhancement imposed after application of the “modified categorical” approach under the Armed Career Criminals Act (“ACCA”).

As the fractured en banc opinions in the Fourth Circuit’s recent decision in United States v. Vann reveal, the court of appeals is deeply riven over the correct approach to sentencing enhancements using the modified categorical approach to analyzing what constitutes a violent felony under the ACCA. Even so, Judge Davis’s concluding advice about appellate strategy in Taylor is unusual in its directness.

After alluding to the “vagaries of the Supreme Court’s sentencing jurisprudence under the [ACCA],” Judge Davis contends that “only the Supreme Court itself can provide the clarification so urgently needed.” He continues: “In that spirit, I would suggest that [appellant’s] counsel . . . save the taxpayers a few dollars and forego the customary petition for rehearing in this case and seek certiorari without inordinate delay.”

This is an unusual piece of advice to offer. It raises questions: Is Judge Davis suggesting that a petition for rehearing would be futile? If so, would that futility be apparent absent the implicit suggestion of futility? Should the statement be interpreted as directed more at other Fourth Circuit judges and at Supreme Court Justices than at counsel for appellant? Is this good advice, given the ferment in the Fourth Circuit over the application of ACCA enhancements and the low probability of Supreme Court review?

With respect to the last question, it is perhaps worth recalling the identity of the other panel judges. Judge Wilkinson authored the majority opinion and Judge Motz joined in that opinion. I have not undertaken independent research into each of these jurist’s views on the ACCA in relation to the views of their colleagues on the Fourth Circuit. As a general matter, however, it is usually a safe bet that there is not an en banc majority to overturn a panel opinion authored by Judge Wilkinson and joined in by Judge Motz.

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Another ACCA appeal about application of “violent felony” label to state conviction splits Fourth Circuit panel

In addition to yesterday’s decision on gun possession in motorcycle gangs, the Fourth Circuit issued a published opinion in another gun case: United States v. Taylor. The decision came in the consolidated appeals of Daryl Taylor and Antwan Thompson from a jury verdict convicting them of being felons in possession of a firearm under 18 U.S.C. § 922(g).

Judge Wilkinson wrote the opinion for the court, which was joined in by Judge Motz. Judge Davis authored a separate opinion concurring in part and dissenting in part.

The panel unanimously agreed on the disposition of the appellate issues raised with respect to the conviction and sentence of Daryl Taylor.

The disagreement about Antwan Thompson’s sentence centered on the propriety of a 15-year mandatory minimum under the ACCA due to Thompson’s prior felony convictions. Thompson had three relevant prior convictions: two for cocaine offenses and one for second-degree assault under Maryland law. His argument on appeal was that his assault conviction was not a “violent felony” under the ACCA.

The panel majority applied the modified categorical approach, according to which a court can look at certain materials such as charging documents, plea agreements, and transcripts of plea colloquys, to determine whether the conviction was necessarily for a violent felony.

The panel majority rested on the facts set forth in a plea colloquy, according to which Thompson, in resisting arrest for a drug deal, had thrown a Styrofoam cup of liquid at one police officer and scuffled intensely with three of them, leading to a charge for assaulting the officer on the receiving end of the thrown cup of liquid. Thompson argued that he did not admit the facts set forth by the judge in the plea colloquy, but rather that the record showed only that his lawyer did not dispute those facts.

The panel majority holds Thompson to the representations made by his lawyer. By contrast, Judge Davis argues that the attorney’s say-so in declining to make any corrections or additions cannot be treated as the defendant’s confirmation of the facts set forth by the judge.

This area of the law is not one that I specialize in, but my quick take on the governing precedent as a generalist observer is that Judge Davis is parsing Shepard too finely and that the panel majority is justified in treating Thompson’s assault conviction as one for a “violent felony.”

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En banc Fourth Circuit is 10-2 on outcome and 5-4-1-2 in opinions (with the 5-judge, 2-judge, and 1-judge opinions in agreement on a crucial issue for future cases, though perhaps not aggregable to establish that point in this case)

It has taken me some extra time to post about the Fourth Circuit’s en banc decision earlier this week in United States v. Vann because it has taken me a long time to get through the 100 pages of opinions. The issue in the case is whether a certain individual’s three convictions under North Carolina’s indecent liberties statute qualify as convictions for a “violent felony” under 18 U.S.C. § 924(e)(2), thereby triggering a mandatory minimum sentence under the federal Armed Career Criminal Act (“ACCA”). The short answer, for this defendant, is no. But whether any convictions for violating the indecent liberties statute can qualify as a “violent felony” in some other case remains unclear. (The write-ups by Jonathan Byrne at Fourth Circuit Blog and Matt Kaiser at his law firm’s blog provide a helpful overview of the opinions and issues.)

The simplest way of understanding the en banc decision, at one level, is in relation to the vacated panel opinion. Judge Niemeyer authored that split decision, which Judge Shedd joined. Judge King dissented. The panel opinion had affirmed the application of the ACCA 15-year mandatory minimum.

The en banc court consisted of twelve judges: Chief Judge Traxler, and Judges Wilkinson, Niemeyer, Motz, King, Gregory, Shedd, Agee, Davis, Keenan, Wynn, and Diaz. (Judge Duncan did not participate and Judge Floyd was not yet on the court.) By a 10-2 vote, the en banc court voted to vacate the sentence. The only two judges supporting the panel opinion are the two judges who joined it initially (Judges Niemeyer and Shedd). But the other 10 judges on the en banc court split 5-4-1 on their reasoning.

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Another sentence vacated in light of en banc decision in Simmons

The Fourth Circuit’s en banc decision last week in United States v. Simmons changed the way that the Fourth Circuit analyzed prior North Carolina convictions for sentencing enhancement under the Armed Career Criminal Act. (See here for my earlier discussion of this decision.) The day after Simmons was handed down, a panel vacated the sentence for a drug conspiracy in United States v. Morton. Today brings news of another sentence vacated under Simmons–an almost 20-year sentence (235 months) in United States v. Trent. The ACCA sentencing enhancement had raised Trent’s sentencing range from 120-150 months to 235 to 293 months.

Trent’s arrest and prosecution followed a car chase in which Trent “drove faster than 100 miles per hour into oncoming traffic,” lost control of his Ford Taurus, and crashed into a commercial storefront. While escaping out a side door, Trent was observed dropping an object “about the size of his hand.” Officers ran down Trent and his passenger. A search of the car revealed a handgun and drug paraphernalia. Trent was convicted of being a felon in possession of a firearm. Among the predicate convictions relied upon by the government for a sentencing enhancement under ACCA were two convictions for felony speeding to elude arrest. The facts underlying those two convictions closely resembled the car chase that resulted in his federal prosecution. “[I]n all three incidents, Trent drove recklessly, wrecked his vehicle, fled on foot from police, and then attempted to dispose of his firearm.” Because Trent could not have been sentenced to more than one year imprisonment for each of those prior attempts, in light of the framework supplied by Simmons, those two prior convictions could not be used as the basis of the ACCA enhancement that Trent received.

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