Information Failure

United States v. Espinal, No. 09-4344-cr (2d Cir. March 7, 2011) (Walker, Straub, Lynch, CJJ)

Here, the district court did not properly follow 21 U.S.C. § 851(b), which sets out the procedures for using a prior felony information to increase the mandatory minimum sentence in a drug case. Because both the defendant and the government were prejudiced, the circuit remanded the case for resentencing.

Background

The government had offered to permit defendant Santo Laiz to plead guilty to a drug offense with a ten-year mandatory minimum and agreed to refrain from filing a prior felony information. But Laiz pled guilty after the deadline, by which time the government had filed the information, which alleged that Laiz had been convicted of a felony drug offense in Massachusetts under the name “Jose Luis Lai.” During Laiz’ guilty plea, the court did not ask him whether he admitted to the conviction.

In his sentencing submissions, Laiz raised various legal challenges to the information, but did not clearly deny the allegation that he had in fact been convicted of the offense it specified. Thus, at the sentencing itself, the prosecutor sought clarification of the defendant’s position. Laiz’ attorney replied that he had “no grounds to believe that Mr. Laiz was not convicted,” but, since had not verified the conviction himself, he was “taking the word of the government.”

The district court still did not ask Laiz himself to affirm or deny the conviction. Instead, it asked the prosecutor for verification, and the AUSA responded by handing up a rap sheet that warned that it was “not supported by fingerprints.” The rap sheet had a variety of names, including “Santo Ramon Laiz” and “Jose Luis Lai,” and a birthdate of December 3, 1964. An associated docket sheet reflected a similar conviction with some different names and the same date of birth. The identifying information on these documents was not entirely consistent with those in Laiz’ PSR - the date of birth was different and some of the aliases differed, as well.

When the judge finally asked Laiz whether he affirmed or denied the conviction, on advice of counsel, Laiz remained silent. The judge, concluding that Laiz did not have a right to refuse to affirm or deny, imposed the enhanced, twenty-year minimum sentence with no further findings or warnings to Laiz.

The Appellate Court’s Decision

Laiz’ main argument on appeal was that the proof was insufficient to establish that he was the person named in the Massachusetts records. But the circuit, finding that the government had not had a “full and fair opportunity to present its best evidence” on the issue, did not rule on the sufficiency of the evidence. Instead, finding numerous procedural defects, the court sent the case back for a do-over.

Under Section 851(b), once the prosecutor has filed a prior felony information, if the defendant is convicted of the underlying offense, the district court must ask the defendant whether he affirms or denies that “he has been previously convicted as alleged in the information,” and must also inform the defendant that he waives that any collateral challenge to the prior conviction that is not made before sentence is imposed. If the defendant denies the allegation, or claims that the conviction is invalid, he must be given an opportunity file a written response to the information. This triggers a hearing, at which the government must prove any issue of fact beyond a reasonable doubt.

The district court did not follow these procedures “meticulously.” First, it did not ask Laiz to affirm or deny the prior conviction at his plea, although it did not have to then. Moreover, while Laiz did not expressly deny the conviction in his sentencing submission, the failure to do so then did not waive the objection. Accordingly, by the time of sentencing there was still “some ambiguity” as to the extent of Laiz’ objection to the enhancement.

Moreover, at sentencing, the district court did not undertake the required “affirm or deny” inquiry until after “considerable confusion about Laiz’ position had already been generated,” and never warned him that he had a right to put his objections in writing and that a failure to object would constitute a waiver. The “hearing” required by the statute was more like an “impromptu inquiry,” in which the district court examined documents handed up by the prosecutor without addressing their “obvious discrepancies” or “giving the defendant an opportunity to review and comment on them.”

Of course, Laiz did not help matters. Neither he nor his counsel made clear before sentencing whether they planned challenge the conviction, and Laiz’ refusal to affirm or deny is not covered by the statute at all. But, at least on these facts, the court refused to conclude that the refusal should be treated either as a denial - triggering the government’s beyond-a-reasonable-doubt burden - or an affirmation, which would have served as a waiver of the right to challenge the prior felony, since the district court did not follow the “affirm or deny” inquiry with the other statutory requirements: an opportunity to respond in writing and a warning of the consequences of a failure to act.

The failure to comply with § 851 does not automatically invalidate the enhanced sentence, since harmless error analysis applies. But here, Laiz was prejudiced in two distinct ways, apart from the extra ten years of prison time he received. First, the court’s failure to warn him of the effect of failing to object “may well have influenced Laiz’ unusual choice not to affirm or deny the allegations in the information,” which in turn affected the government’s burden of proof. In addition, the district court’s failure to follow the statutory procedure “compromised the reliability and thoroughness of the ‘hearing’” that it conducted.”

In the end, given the many uncertainties, the court neither affirmed the enhanced penalty nor struck it. Instead, it vacated the sentence and remanded the case for resentencing so that “proper procedures” could be followed.

For Your Information

United States v. Morales, No. 07-4202-cr (2d Cir. March 18, 2009) (per curiam)

Morales was charged in a two count drug indictment; one count had a 5-year mandatory minimum, under 21 U.S.C. § 841(b)(1)(B), while the other had a 10-year mando under § 841(b)(1)(A). Before trial, the government filed a prior felony information pursuant to 21 U.S.C. § 851(a)(1). This had the effect of doubling the mandatory minimum to which Morales was exposed. But the information specifically indicated that Morales would be subject to the “enhanced penalties of Title 21, United States Code, Sections 841(a), 841(b)(1)(B) and 851.” After trial, but before sentencing, when it is otherwise to late to file an information, the government filed an amended information referencing § 841(b)(1)(A).

At sentencing, Morales complained that he went to trial because he believed that the only mandatory minimum he faced was 10 years: the 5 years under § 841(b)(1)(B) - which was doubled by the prior felony information - and the 10 years under § 841(b)(1)(A), which he indicated he believed the government had refrained from doubling in an exercise of its discretion. Not an unreasonable thought, since the defendant was, at the time, 67 years old.

The government, on its part, noted that § 851 does not require that a prior felony information identify the statutory basis of the proposed enhancement at all. It claimed that it had simply made a clerical error, and that the amended information corrected the error, which is expressly permitted by the language of § 851(a)(1). The district court agreed, found that Morales was subject to a 20-year mandatory minimum, and imposed it.

On appeal, the circuit vacated for further findings. It agreed that § 851 does not require the government to specify the basis of the enhancement or its length, but looked beyond the language of the statute to determine its purpose. In fact, § 851 has two purposes. The first, not implicated here, is to allow the defendant to contest the accuracy of the claim that he has a prior felony conviction. But the second, inherent in the statute’s requirement that the information be filed before trial or the entry of a guilty plea, is that the defendant is supposed to have “ample time to determine whether to enter a plea or go to trial and plan his trial strategy with full knowledge of the consequences of a potential verdict.” After all, if an opportunity to question the prior conviction were all that was required, “notice after conviction but prior to sentencing would suffice.”

Accordingly, the court held that “a prior felony information that, like this one, could mislead a defendant as to the minimum penalty he or she would face after a jury’s conviction undermines Congressional intent.” Given this, it is “not possible to determine the appropriate remedy, if any, until it is known whether the mistake in the prior felony information adversely affected defendant’s decision to go to trial or his trial strategy.” The court therefore remanded the case to the district court for further findings on “(1) whether defendant understood the citation to 841(b)(1)(B) and the absence of a citation to 841(b)(1)(A) as an indication that the government had elected not to seek Section 841(b)(1)(A)’s higher mandatory minimum; and (2) if so, whether defendant’s misapprehension adversely affected trial strategy or triggered a decision to go to trial rather than to accept or seek a plea bargain.”

In a footnote, the appellate court also pointed out that the district court could still impose a 20-year sentence, even if it concluded that Morals was not subject to a 20-year mandatory minimum.

Career Angst

United States v. Sanchez, No. 05-3812-cr (2d Cir. February 29, 2008) (Kearse, Straub, Pooler, CJJ).

In this long opinion, the court considered several challenges to recidivist sentences in a drug case. Two defendants, both “career offenders” under Guidelines section 4B1.1, got relief. A third, sentenced to an enhanced mandatory minimum, did not.

Career Offender

Title 28 U.S.C. § 994(h) directed the Sentencing Commission to develop Sentencing Guidelines for career offenders that would fix a Guideline range “at or near” the statutory maximum. Here, the district judge made statements that seemed to indicate that she believed that this section required her to sentence the defendants above the mandatory minimum, which was 120 months. She gave one defendant 235 months, and the other 188.

The court appellate court concluded that the district court’s apparent belief was incorrect. It noted that § 994(h) is a direction to the Commission, not the courts; moreover, there is no statute giving similar instructions to judges. Indeed, Congress rejected such legislation when fashioning the 1984 Sentencing Reform Act. The circuit concluded that for both defendants, the record was at least ambiguous as to whether the court would have imposed the same sentence if it correctly understood that § 994(h) did not restrict its sentencing authority.

The court remanded for clarification without vacating the sentences, and gave some interesting instructions for the remand. Since the policy considerations behind § 994(h) are relevant to several of the factors set out in 18 U.S.C. § 3553(a), this “must be taken into account” by the district court. The circuit instructed the district court to first “provide the necessary clarifications” regarding its reasons for imposing the sentences it selected, under a procedure similar to a Crosby remand. If that clarification reveals that the court would have imposed the same sentence, it need take no other action. If the clarification reveals that the district court would have imposed a different sentence on either defendant, then it should vacate that sentence and resentence him.

The Prior Felony Information

A third defendant received an enhanced mandatory minimum, 20 years instead of 10, after the government filed a prior felony information. See 21 U.S.C. § 851. The court rejected two constitutional challenges to the sentence.

First, it held that the statutory delegation to the United States Attorney of the power to raise the mandatory minimum did not violate the constitutional principle of separation of powers. Section 851 does give the government “some degree of control” over the ultimate sentence. But this is simply part of the government’s legitimate power to decide whether to prosecute at all and, if so, to decide which among the various available statutes - with different maximums and minimums - to use.

The defendant also argued that the government’s failure to explain why it had chosen to file a prior felony information against this one defendant, but not the others, was a due process violation. The court disagreed. Here, there was no evidence of an improper motive that would overcome the presumption of regularity of prosecutorial decision-making.

Why Oh, Why Oh, Y.O?

United States v. Jackson, Docket No. 06-5928-cr (2d Cir. October 5, 2007) (Miner, Cabranes, CJJ, Crotty, DJ) (per curiam)

This case continues the court’s seemingly relentless, and highly questionable, line of cases upholding the use of New York State youthful offender adjudications (“Y.O.”’s) as sentencing enhancers.

In United States v. Sampson, 385 F.3d 183 (2d Cir. 2004), the court held that a Y.O. constituted a prior drug felony for purposes of the sentencing enhancements contained in 21 U.S.C. §§ 841(b) and 851.

Here, Jackson, whose Y.O doubled a five-year mandatory minimum, tried to capitalize on a potential hole in Sampson. He argued that the Sampson court’s observation that the defendant served his Y.O. sentence in an adult institution created a requirement that district courts find this to be true before enhancing a drug sentence based on a Y.O.

The court disagreed. A finding of fact on this question is not required. It is enough that, despite the Y.O., Jackson was tried and convicted in adult court of an adult drug offense that was punishable by more than one year in prison.

The court went on to note that Jackson himself never provided any evidence that he was housed in a juvenile facility, despite being in the best position to do so. It appears that this is dicta, since the rule has always been that the government has the burden of proving a sentencing enhancement.