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September 24, 2013

Through the Guideline looking glass, where a prior misdemeanor is really an "aggravated felony"

HumptyAn oft-quoted passage from the famous Lewis Carroll novel Through the Looking-Glass, and What Alice Found There came to mind as I was reading a recent Fifth Circuit's sentencing ruling.  Here is the passage I have in mind:

"When I use a word,' Humpty Dumpty said in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less."

"The question is," said Alice, "whether you can make words mean so many different things."

"The question is," said Humpty Dumpty, "which is to be master — that's all."

This first paragraph from the unanimous panel ruling in United States v. Ramirez, No. 13-10473 (5th Cir. Sept. 23, 2013) (available here), should make plain why this literary reference seems apt:

Efrain Hernandez Ramirez pled guilty to one count of illegal reentry following removal and at his sentencing, the district court applied an eight-level enhancement based on a prior conviction for an aggravated felony. The aggravated felony in question was a New York state misdemeanor conviction for third-degree sexual abuse of a fifteen-year-old girl. Ramirez appeals, arguing that his misdemeanor conviction cannot be an aggravated felony. For the following reasons, we AFFIRM.

September 24, 2013 at 04:47 PM | Permalink


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Prof. Berman: I'd be curious to hear if you have a substantive critique of the opinion, which seems fairly well-reasoned and follows the holdings of nine other circuits. On what basis do you think that the Fifth Circuit should have disregarded its prior precedent and created a circuit split on this issue?

Posted by: Anon | Sep 24, 2013 6:19:43 PM

The fault, dear Brutus, lies not in the court but in the Sentencing Commission and Congress.

The definition of "aggravated felony" in the immigration law is bizarre. But at least there the consequences are limited to exclusion and deportation, not incarceration. If I read the opinion correctly, the Sentencing Commission adopted this notorious definition for the purpose of sentencing.

Posted by: Kent Scheidegger | Sep 24, 2013 7:19:48 PM

ANON: I am not sure I have a substantive critique of the opinion (and it seems you note I did not make one above). I do have a substantive critique of the underlying guidelines doctrines which, in my view, still give far too much formal import to complicated rules about how to categorize prior convictions rather than using more simple standards to guide judicial sentencing discretion. Ramirez may well be a sound legal ruling for the notion that, for federal guideline purposes, some state misdemeanors are to be categorized as "aggravated felonies." But would this legal determination be easy to explain to a criminal lawyer not steeped in guideline arcana, let alone to a federal defendant and his family?

One of many reasons I am glad we still have a post-Booker system of advisory guidelines is that district judges no longer are bound to give these kinds of complicated rules too much import or impact if they conclude that these rigid rules do not serve the ends of sentencing justice set forth in 3553(a). But the fact that judges need not always follow the guideline word-mazes to the bitter end does not mean it is still a good idea to preserve guideline mazes.

Posted by: Doug B. | Sep 24, 2013 10:00:09 PM

This opinion, while a correct legal analysis, only highlights the silliness of section 2L1.2 of the guidelines. I suspect that when the guideline was written, few people were prosecuted for illegal reentry, so no one really knew what types of defendants would be sentenced under 2L1.2. The drafters formulated the guideline to mirror in some way 8 USC 1326, which is why there is a graduated increase in offense level based on the type of prior conviction. When the guideline started to be applied in great numbers, there was some minimal tinkering, but no one really bothered to look at what the guideline was doing empirically.

The problem is that if you compare the 2L1.2 factors to 18 USC 3553, there's no real relationship. Why should someone who has lived here his whole life, then was deported 15 years ago following a conviction for delivering a small amount of marijuana be looking at the same guideline range as someone who barely lived in the US and was deported last year after committing a violent rape? Someone deported without any criminal convictions, but who comes into the country and immediately commits a heinous crime is going to have the lowest guideline range possible. And a guideline that presumably concerns itself with immigration offenses makes no provision for people who have been deported on multiple occasions, yet persist in returning to the U.S.

The whole thing needs to be rewritten.

Posted by: C.E. | Sep 25, 2013 1:07:55 AM

well ANON as far as i'm concerned if the charging and sentencing authority listed it as NOT a felony. NOBODY else get's to change that. PERIOD!

In fact i think anyone criminal or retarded enough to do is is now a bigger and more dangerous individual then the one they are fucking with.

They unlike him have a OATH and DUTY to upholde the constitution

Posted by: rodsmith | Sep 25, 2013 4:29:16 AM

The problem is that felony and misdemeanor have no set meaning. Instead, they are broad categories use by legislative and quasi-legislative bodies to attempt to distinguish more serious from less serious offenses.

Given that each state (and the federal government) gets to define for the purposes of its laws which offenses it chooses to characterize as felonies and misdemeanors, it would be preferable if those describing criminal records enhancement used a different term than felony or misdemeanor when it is looking at the offense of conviction rather than the label put on it by a given state. Such careful drafting would avoid the paradox that a state misdemeanor can be used as part of a federal enhancment that the federal government labels as "aggravated felonies" even though it really means "aggravated offenses."

There is, of course, nothing in the constitution that precludes Congress or a federal judge from deciding that a state offense is serious enough to show that a recidivist is deserving of additional punishment even though the state thinks that the offense should be treated less seriously in the state court system.

To those who think contrarywise, imagine a rather perverse state that chooses to label the unlawful setting of fires as murder and the unlawful killing of another as arson. Would it be impermissible for other states and federal governments to indicate that they consider these "arson" homicides as fitting in what they mean by murder if their laws prohibit a person with a prior murder conviction from getting parole.

Posted by: tmm | Sep 25, 2013 2:17:12 PM

"The problem is that felony and misdemeanor have no set meaning."


Posted by: Daniel | Sep 26, 2013 2:18:06 AM

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