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July 27, 2004

Now, officially, news from New Mexico

Below is a repost of a post from last week that was removed because a final order was not entered immediately after the decision in US v. Pedro Quijada was handed down. But now I have a copy of the government's "Motion to Correct Sentence," which in my mind makes this matter "official" to report. See paragraphs 9 and 10 for the key Blakely prompting the government's motion:
Download quijada_mot_reconsider.pdf

Steve McCue, Federal Public Defender in New Mexico provided the following interesting and important report abut a ruling US v. Pedro Quijada, NM 04cr0516. Here's the text:

US District Judge James O. Browning, District of New Mexico, today declined to apply the sixteen-level enhancement for an aggravated felony/crime of violence in the Reentry after Deportation guideline, USSG § 2L1.2(b)(1)(A)(ii). As I understand, it the court found that the enhancement required it to make a finding regarding the nature of the prior conviction (i.e. that it was a "crime of violence") in derogation of Blakely. The court semed to think that the required characterization of the prior was more than the "fact of the prior conviction" [which seems to be an exception to the Blakely rule due to the holding in Almendarez-Torres]. Of course this has major implications not only for southwest border courts but also for other USSG enhancements like Career Offender....
Several judges here have declined to apply USSG enhancements under Blakely. So far courts here in the USDC NM have avoided ruling the guidelines unconstitutional. Courts are however imposing alternative sentences.

Judge Browning has granted the government's motion to correct sentence in Floyd Lopez' Pedro Quijada case. This was the reentry after deportation case in which Judge Browning had refused to apply the sixteen level enhancement of §2L1.2 USSG to a prior "crime of violence" because he had to make a finding that the prior was indeed a crime of violence. Judge Browning found today that, in light of the intervening Tenth Circuit opinion in US v. Cooper, ___ F.3d ___ at fn.3, 2004 WL 1598798 (10th Cir. 2004), the fact of prior conviction is one found by the court by a preponderance of the evidence and Blakely does not apply to this determination. The court went on to find that Quijada's prior was a crime of violence and awarded the sixteen level enhancement. Mr. Quijada got 46 months - the low end of the guideline range. Cooper is a three strikes case. Judge Browning equated the finding of "serious violent felony" under 18 USC §3559(c) with the finding of "crime of violence" under 2L1.2.

July 27, 2004 at 09:12 PM | Permalink


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I am Victor Haltom, a defense attorney from Sacramento, California.

Is this Quijada case from New Mexico going to be published? It seems that the court's reasoning would apply to misdemeanor/felony classifications under California's Penal Code section 17(b), which purports to allow judges, rather than juries, to characterize certain offenses ("wobblers") as misdemeanors or felonies.

Posted by: Victor Haltom | Jul 20, 2004 12:40:58 AM

I am Mary Smith, a federal prosecutor in Oklahoma City.
I'm not sure the New Mexico decision will stand in light of the 10th Circuit's ruling yesterday in United States v. Cooper No.03-4019, 2004 WL 1598798 (June 19, 2004) that Apprendi and Blakely do not apply to facts of prior convictions.

Posted by: Mary Smith | Jul 20, 2004 11:00:14 AM

I am Francisco Leon, a defense attorney in Arizona.

Even if not published, if the court issued a written decision in Quijada, it would be helpful if someone posted that. I have tried to access the New Mexico District Court on PACER but apparently New Mexico has a different system.

Posted by: Francisco Leon | Jul 20, 2004 11:10:43 AM

I accessed the docket sheet for this case, and there is no written opinion. Rather, the only relevant filing is the transcript of the plea hearing from 7/19, which was filed yesterday.

The text of the transcript is not available on-line, so you would need to contact the court reporter to purchase a copy of the transcript.

Your other option would be to contact one of the attorneys involved in the case:
AUSA Nelson Spear or defense attorney Floyd Lopez

Posted by: Law Clerk | Jul 27, 2004 11:35:48 PM

Ms. Smith, is the 10th circuit saying, like Scalia's example in Blakely, but here regarding a prior conviction: Consider that a defendant was charged with an illegal lane change, was found (or plead) guilty and served his time. He later commits another crime. At sentencing for this instant crime, a judge can then find additional facts (not BRD) for the prior lane change crime resulting in it now being considered "accessory to murder". The resulting sentence for the instant crime then must consider this "new" prior as if it is a fact on the record. Is this accurate? If so, how does it square with the Blakely reasoning?
I am the sister of a man in PA who had an Apprendi issue under appeal to the PA Supreme Court pre-Blakely. Some appeal issues included fact finding by the sentencing judge about prior as well as the instant crime. The case was returned to the trial court for furthur consideration, which is still pending. All of these extra-element sentencing "facts" increased the sentence to 50 years, which is significantly beyond the statutory maximum of 20 years. Also note that in PA, the normal "guideline" sentence for this crime, even considering priors, when no other facts are found at sentencing by a judge, is 60 months. As just a sister and not a scholar or lawyer, I gasp when realizing 60 months went to 50 years in one swift sentencing hearing. Stunning, really.

Posted by: Jeannie | Jul 28, 2004 12:52:28 AM

Re: Important Update and my comment above.

I guess that IS what the 10th is saying. So much for Blakely's Constitutional argument regarding prior offenses. And so much for justice therein, as this layman sees it. Is this the last word?

Posted by: Jeannie | Jul 28, 2004 2:59:26 PM

I'm back--the sister from the last two posts. At the risk of being an inappropriate bore, I want to share our good news.

Our PCRA petition for relief was granted. A new trial was granted on ineffective assistance and the sentence was vacated pursuant to the Apprendi doctrine.

Blakely made a brief appearance in the discussion of the theme running through Jones, Apprendi and Blakely, apparently for completeness, though Blakely probably does not directly apply due to timing issues.

Prevailing in one battle does not win the war, but hope springs eternal.

Thanks for hosting this site. It's apparently intended audience notwithstanding, nonprofessionals are culling from it as much as we are able to understand.

Posted by: Jeannie | Jul 31, 2004 2:44:26 PM

sony vgp-bp2ea battery

Posted by: laptop battery | Oct 14, 2008 5:18:16 AM

The text of the transcript is not available on-line, so you would need to contact the court reporter to purchase a copy of the transcript.

Posted by: Robe de Soirée 2013 | Dec 13, 2012 1:27:17 AM

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