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March 8, 2004.


The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge


Finality of judgments is a bedrock of our criminal justice system because "[i]nroads on the concept of finality tend to undermine confidence in the integrity of our procedures." United States v. Addonizio, 442 U.S. 178, 184 n. 11 (1979). This fundamental principle is tested by statutes and sentencing guidelines that require sentencing enhancements based on previous convictions. It is not always clear what conduct was encompassed by the prior conviction. In such instances, the question arises as to what documents a court may review in order to determine the conduct of which the defendant was convicted. This case, involving a 1991 California conviction based on a guilty plea, squarely presents the following question: in the absence of plea minutes and a presentence report, are there any records a court may consider to determine the conduct to which the defendant pled guilty, where the scope of that conduct is disputed. Page 2


  On November 6, 2003, Norman Harrison pled guilty to illegal reentry after deportation in violation of 8 U.S.C. § 1326(a)(2). Harrison was sentenced on March 3, 2004. I write now to explain the reasoning underlying the Court's calculation of Harrison's adjusted offense level.*fn1

  The Government and the defendant agree that pursuant to the United States Sentencing Guidelines, the base offense level for illegal reentry is eight. See U.S.S.G. § 2L1.2(1).*fn2 The Government argues that Harrison's 1991 conviction, for which he was deported, is a "drug trafficking offense" requiring a 12-level enhancement, pursuant to U.S.S.G. § 2L1.2(b)(1)(B). The Government urges, in the alternative, that at the very least the prior conviction is an "aggravated felony," requiring an 8-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(C). Defendant, in turn, contends that because the prior conviction is neither a drug trafficking offense nor an aggravated felony, he should receive only Page 3 4-level enhancement, pursuant to U.S.S.G. § 2L1.2(b)(1)(D), which covers "any other felony." The question this Court must answer is how to characterize Harrison's 1991 conviction.


  On February 14, 1991, Harrison was arrested in California when he attempted to board a plane, destined for New York, while carrying a duffel bag containing a gift-wrapped package of marijuana. On February 15, 1991, a one-count felony information was filed, charging Harrison with Possession of Marijuana for sale in violation of California Health and Safety Code ("CHSC") § 11359. It is unclear when, but it appears that ultimately Harrison was charged with two counts: (1) possession of marijuana for sale in violation of section 11359, and (2) violation of section 11360 of the CHSC. On March 29, 1991, Harrison pled guilty to the section 11360 charge; the section 11359 count was dismissed. He was sentenced that same day to three years of probation, with the first 210 days to be served in custody. No presentence report was prepared in connection with the sentencing. Moreover, the Government has been unable to locate the minutes of the plea, despite my request that they be produced.


  Harrison's conviction arose from his guilty plea to a single count, a Page 4 violation of section 11360(a) of the CHSC.*fn3 The first question is whether that offense was a drug trafficking crime, an aggravated felony, or neither.

  In United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001), the Ninth Circuit Court of Appeals held that section 11360 of the CHSC, titled "Transportation, sale, import, give away, etc.; punishment" is a broad statute that encompasses both simple transportation of marijuana for personal use, and offers to sell or transport marijuana, so-called solicitation offenses. See id. at 908. The issue, then, is whether Harrison pled to a solicitation offense or the lesser crime (for purposes of the Sentencing Guidelines) of transporting marijuana for personal use.

  This case thus squarely presents the question of whether the Court may look beyond the fact of conviction to determine whether Harrison committed Page 5 a drug trafficking offense or an aggravated felony. The answer is critical because it is possible to violate section 11360(a) without committing either, as in the case of someone who transports marijuana for personal use. Such personal use transportation would not be a drug trafficking offense, as defined in the Application Notes to U.S.S.G. § 2L1.2, nor an aggravated felony, as defined in 8 U.S.C. § 1101(a)(43), and thus would not be grounds for the 8 or 12-level enhancement the Government seeks.


  A. General Principles

  In Taylor v. United States, 495 U.S. 575 (1990), the Supreme Court addressed the question of whether the Government may seek a sentencing enhancement under 18 U.S.C. § 924(e) on the ground that the defendant committed a "burglary," where the defendant was convicted under a state statute that defined burglary more broadly than typical "generic burglary" statutes. See id. at 599-600.*fn4 In resolving this question, the Supreme Court held that "an Page 6 offense constitutes `burglary' for purposes of a § 924(e) sentence enhancement if either its statutory definition substantially corresponds to `generic' burglary, or the charging paper and jury instructions actually required the jury to find all the elements of generic burglary in order to convict the defendant." Id. at 602.

  In reaching this conclusion, the Court opted for a "categorical approach" that,
generally requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense. This categorical approach, however, may permit the sentencing court to go beyond the mere fact of conviction in a narrow range of cases where a jury was actually required to find all the elements of generic burglary.
Id. (emphasis added). Under this modified categorical approach, the sentencing ...

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