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.
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
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
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
III. THE PREDICATE CONVICTION
Harrison's conviction arose from his guilty plea to a single count, a
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
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.
IV. RESORT TO EXTRINSIC DOCUMENTS
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
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
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
Id. (emphasis added). Under this modified categorical
approach, the sentencing ...