ADVERTISEMENTS

    Here?s a small linguistic/sentencing conundrum that has bugged me for a long time, involving the meaning of ?is,? and? in trying to settle that one? the meaning of ?most.?  This has nothing to do with sex, and I?ve put most of it below the fold because it?s only for people really interested in sentencing.  It also involves an abiding query of mine, which is why appellate courts are so spooked by the possibility of ?mini-trials" at sentencing, at which the parties would have to prove facts about a defendant's prior criminal conduct.  For my money, proving facts should be the norm, not the bogeyman, of criminal practice.  More on that at the bottom of the post.

    Here?s the setting for our linguistic puzzle. The Sentencing Guidelines provide generally for increased sentences based on criminal history.  In addition, one particular guideline, the one covering re-entry by deported aliens, also includes a big offense-specific enhancement if the defendant was deported after a conviction for certain crimes.  The rationale is that it is qualitatively worse for a criminal deported alien to re-enter than a non-criminal deported alien.  The crimes are listed at USSG § 2L1.2 Cmt. n. 1(B)(iii). The most common category for this enhancement is ?crime of violence.?  It?s defined as follows:



        "Crime of violence" means any of the following offenses under federal, state, or local law: murder,               manslaughter, kidnapping, aggravated assault, forcible sex offenses (including where consent to the          conduct is not given or is not legally valid, such as where consent to the conduct is involuntary,               incompetent, or coerced), statutory rape, sexual abuse of a minor, robbery, arson, extortion,               extortionate extension of credit, burglary of a dwelling, or any other offense under federal, state, or           local law that has as an element the use, attempted use, or threatened use of physical force                      against the person of another.

    In applying this guideline, the courts follow a 1990 Supreme Court case called Taylor, which is at 495 U.S. 575, and which established a method for classifying prior offenses for purposes of the Armed Career Criminal Act.  This method was later incorporated into Sentencing Guidelines analysis, which was entirely sensible pre-Booker.  (I think it no longer makes sense post-Booker.)  Per Taylor, a particular state offense counts as an instance of a listed enhancement-triggering offense if fits the ?generic? definition of that offense.  But there is no official compendium of ?generic? definitions of crimes.  So Taylor gave us a standard: a state?s definition of a crime is generic if that state defines the offense in the way that ?most? states do.  495 U.S. at 598.  Burglary under California law, for example, ?is? burglary if and only if California law matches the definition employed by ?most? states.  And because burglary does not include as an element the use, attempted use, or threatened use of physical force against the person of another, a conviction under any given state?s burglary statute triggers the enhancement only if it is ?generic? burglary.

    All right, we need to figure out how states define their crimes, so we look to statutes and caselaw.  But when we look to caselaw, we need find only a single instance of the offense being enforced in a ?non-generic? way in order to categorically (for Kant fans, that means ?always and for all purposes?) eliminate the statute as a predicate for the enhancement.  See, e.g., United States v. Aguila-Montes, 553 F.3d 1229, 1234 (9th Cir. 2009). We do not ask whether ?most? prosecutions within a state are ?generic.? 

    (There is one interesting outlier, a recent case in the 9th Circuit, Mayer, 560 F.3d 948, that applied a ?most? standard to the intrastate analysis, but it concerns ACCA language (the second clause in 924(e)(2)(B)(ii), for those following along) that?s not used in USSG 2L1.2, and so won?t alter guidelines analysis.  Still, it will be interesting to see if anyone tries.)

    So we appeal to ?most? in our interstate analysis, but not in our intrastate analysis.  Why the difference?  And what does the word mean, anyway?

    First, the interstate analysis.  Does ?most? mean 51?  60?  67?  Should comparative tallies take into consideration population differences among the states?  The top ten states- California, New York, Florida, Texas, Illinois, Pennsylvania, Ohio, Michigan, Georgia, and North Carolina, have over half the country's total population.  So ?most? of the country?s population lives under the criminal laws of those states.  And if the ?most states? rule instead incorporates a one state-one vote model (as it seems to in practice), what is the theoretical basis for such a rule?  Taylor itself doesn't tell us.  

    Second, the intrastate analysis.  Why don?t we use a ?most cases? standard to evaluate the intrastate question as well?  There was a pretty good answer pre-Booker, and there?s still at least an articulable answer post-Booker for ACCA.  But for a pure Guidelines question, post-Booker? I don?t see it.  The Guidelines are advisory; the stat max isn?t implicated; the normal guidelines standard for sentencing facts is preponderance. Why don?t we ask: Is it more likely than not that this defendant committed the generic listed offense?

    Here?s an example, to make this problem more concrete.  ?Burglary of a dwelling? is listed in the sentencing guidelines as a prior offense that triggers a 16-level enhancement in certain cases (re-entry after deportation, if you were deported following a burglary conviction).  In California, ?burglary of a dwelling? is defined in Cal. Pen. Code section 459, and provides that burglary of a dwelling means entry into a dwelling with the intent to commit a felony therein.   The statute does not say that the entry has to be ?unlawful.?  ?Generic burglary,? the Supreme Court has held (that?s Taylor at 598 again) requires that the entry be unlawful, because ?most? states define it that way.  So does California in fact require an unlawful entry?  We turn to the cases.  We find that there are two affirmed California burglary convictions involving defendants who peddled securities without a license, were invited into the houses of their victims, and therein persuaded the victims to invest in bogus securities: People v. Cole, 67 Cat. Rptr. 3d 526 (Cal. 2007), and People v. Salemme, 3 Cal.Rptr.2d 398, 402-03 (1992).   (If you want to go all the way back to 1892, you can find a third case, albeit not a residential case, where the defendant entered a grocery store, during business hours, with the intent to shoplift.  People v. Barry, 94 Cal. 481, 29 P. 1026 (1892).) 

    On the basis of those two cases, the Ninth Circuit has held that no California residential burglary conviction is ever a ?burglary of a dwelling? for USSG 2L1.2 purposes.  The reasoning is that California burglary is in some sense ?not real burglary? because it lacks the unlawful entry element.  But here?s the thing with the meaning of ?most?: there?s no claim here, as in every Taylor case, that the particular defendant challenging the application of the prior-conviction enhancement didn?t commit a ?real,? ?generic? burglary.  His only claim is that someone else, fifty years earlier, committed a ?non-generic? burglary and was prosecuted for it in California.

    Leave aside the question whether the con men cases even actually entail the lack of an ?unlawful entry? element.  (In that 1892 case, the court also said: ??[A] party who enters with the intention to commit a felony enters without an invitation. He is not one of the public invited, nor is he entitled to enter.?)  The question for us now is: Why use ?most? in one context but not in the other?  Pre-Booker, the answer was easy: the nature of the prior increased the stat max, so it had to be charged, and found by the factfinder beyond a reasonable doubt.  If there was even one instance of the statute?s being applied non-generically, that creates reasonable doubt that the defendant?s prior was in fact generic. 

    Post-Booker, I don?t get it: the guidelines are advisory, so no guidelines findings increase the stat max.  (For those wondering, even non-generic burglary pushes the 1326 stat max to 20 years because the statute references the ?aggravated felony? definition in Title 8, not the more restrictive guidelines definition.) The standard for applying guidelines enhancements is preponderance.  There?s no dispute about the fact of the prior; the only question is the likelihood that the defendant?s conviction was non-generic? that his ?burglary? conviction was not ?really? for burglary.  Shouldn?t 999,998 out of 100,000 be enough for preponderance?  So what is the logical/doctrinal basis for a rule that invalidates all California burglary convictions as predicates for the enhancement on the basis of two cases in a century (out of, say, 100,000 burglary convictions in that time)?  And what is the logical/doctrinal basis for allowing such claims in the pure guidelines context when the defendant himself is not making any claim that his own burglary was not ?generic??

    Moreover, consider what Taylor itself said when it rejected the suggestion that it apply the old common-law definition of burglary: ?[C]onstruing ?burglary? to mean common-law burglary would come close to nullifying that term's effect in the statute, because few of the crimes now generally recognized as burglaries would fall within the common-law definition.?  Id. at 594.  Well, that?s what?s happened with every single burglary in California.

    Why do we still use Taylor for pure guidelines analyses?  As a matter of practice, because no court has ever held that Booker abrogates Taylor for pure guidelines findings.  And it?s not an argument that the government has pushed.  The courts seem to like Taylor? Judge Kozinski, dissenting from denial of rehearing en banc in the Mayer case cited above, extolled its ?elegance,? and said any attempt to apply a ?most cases? analysis intrastate would be a ?train wreck.?  But he didn?t explain why, if the ?most? analysis makes no sense on the intrastate issue, it is so ?elegant? on the interstate issue. 

    So for the die-hard sentencing crew who?s made it this far, here?s my idea, after having done hundreds of these things.  Let?s just have real-offense sentencing for 2L1.2 priors, and settle it that way.  If the guy says his entry in the house was with the owner?s permission and so it wasn?t generic burglary, fine!  Let him get up and say it.  I?ll go get witnesses and we?ll have a hearing.  That?s what criminal lawyers do.  I think that would be the truly ?elegant? solution to the problem.

    The Taylor court itself, like most people I?ve talked to about this, said: No way, man! The system will collapse under the weight of mini-trials about the conduct underlying the prior?  I have two responses: ?Really?? and ?So what??  First, you need a defendant who?s actually going to raise the issue? in other words, one who will say, under oath, that his entry into the dwelling was permissive.  Second, suppose the defendant does raise the issue: now you have to have an evidentiary hearing to decide the question.  The FREs don?t apply, you can use hearsay, the burden is preponderance.  What?s the big deal?  You call the responding officer to report what the victim said.  If you can?t call the officer, you put on his report.  If the defendant disputes the victim?s narrative, you call the victim herself.  Is that really such a big deal? 

    The point is we either believe in real-offense sentencing or we don?t.  If we believe in it, then we should think that the prior-conviction enhancement for generic residential burglary ought to apply to all and only people who committed generic residential burglary.  Maybe we don?t all believe in real-offense sentencing, but the guidelines system is predicated on the assumption that we do.

    Finally, I understand the response that criminal re-entry sentences are just too high, and this is just one way for the courts to lower them.  Maybe.  But district courts already have full Booker discretion to disregard the guidelines, for any reasons they want, even policy reasons.  I have no quarrel with those arguments, whether directed to the legislature or the sentencing court.

Bloggers, promote your law blog by nominating your blog for inclusion in USLaw.com's Law Blog Directory and RSS Reader. Benefits described.