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United States District Court, S.D. New York

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 court may consult "the indictment or information and jury instructions" in determining whether to apply a sentencing enhancement. Id.

  In rejecting an examination of extrinsic evidence to determine the nature of the underlying conviction, the Taylor Court emphasized the "practical sentencing court to engage in an elaborate factfinding process regarding the defendant's prior offenses." Id. at 601. The Court also noted, in dicta, that "in cases where the defendant pleaded guilty, there often is no record of the Page 7 underlying facts. Even if the Government were able to prove those facts, if a guilty plea to a lesser, nonburglary offense was the result of a plea bargain, it would seem unfair to impose a sentence enhancement as if the defendant had pleaded guilty to burglary." Id. at 601-02.

  In United States v. Amaya-Benitez, 69 F.3d 1243 (2d Cir. 1995), the Second Circuit applied Taylor in a slightly different context. There, the defendant illegally reentered the United States after being convicted of rape, a crime that is clearly an aggravated felony. In granting a downward departure, the sentencing court examined the facts underlying the rape conviction, and found certain mitigating circumstances. The Second Circuit rejected the district court's approach, stating that "based on the reasoning of the Supreme Court [in Taylor] and this circuit, a court may not look to the facts underlying a predicate conviction to justify a departure from a guideline-imposed sentence on the basis of mitigating or aggravating circumstances surrounding such conviction." Id. at 1249-50. The Second Circuit specifically noted Taylor's holding, saying that,"where the defendant is convicted [at trial] under a multifaceted statute that in some cases constitutes an aggravated felony and in other cases does not, the district court may look to the indictment and jury charge to ascertain whether the defendant's conviction encompassed the elements of an aggravated felony. But once the Page 8 district court has made that determination, it may look no further." Id. at 1249 (citing Taylor, 495 U.S. at 602) (internal citation omitted) (emphases added).

  From a policy perspective, Taylor and Amaya-Benitez make sense: a sentencing court should not serve as a fact-finder with respect to the underlying offense. Such a task would be unduly burdensome, requiring the court to conduct a mini-trial in a case where a final judgment was entered years before. The sentencing court's sole task should be to determine whether the predicate crime meets the criteria set forth in a statute or guideline. Generally, this determination can be made from the language of the statute of conviction, and the sentencing court therefore typically need look no further. Taylor recognized that there is a narrow range of statutes that cover more than a single type of conduct — conduct that both meets and fails to meet the statutory definition at issue. In those instances, according to Taylor and Amaya-Benitez, a sentencing court may look beyond the statutory language. However, consistent with the idea that the sentencing court is not, and should not be a fact-finder, the Supreme Court and the Second Circuit placed firm limitations on what the sentencing court may consider in determining whether the predicate offense fits the statutory definition.

  Where the defendant was convicted of the underlying offense by a jury, the sentencing may consider only the statute, the indictment, and the jury Page 9 charge. These documents may guide the sentencing court in determining whether the defendant committed a crime that falls within the statutory definition. If upon reviewing these documents, the court cannot determine by a preponderance of the evidence*fn5 that the defendant committed a predicate offense giving rise to a sentencing enhancement, then no enhancement is appropriate.*fn6

  B. Plea Agreements

  Where the defendant is convicted by a guilty plea rather than a jury verdict, the sentencing court may still look to the statute and indictment, see Taylor, 495 U.S. at 601-02, but there is no jury charge for the court to consider. The question, then, is whether the sentencing court may look to any other documents to discern the facts underlying the prior conviction. The Second Circuit specifically addressed this issue in United States v. Palmer, 68 F.3d 52 (2d Cir. 1995). In that case, the sentencing court determined that the fact of the defendant's conviction under a particular Connecticut statute sufficiently proved Page 10 that he had committed a "crime of violence" as defined by the relevant provision of the Sentencing Guidelines. The Court of Appeals explicitly rejected the district court's conclusion, see id. at 56, but did not vacate the sentence because it concluded that the plea minutes of the underlying conviction conclusively established that the defendant had committed a "crime of violence." See id. at 59. In approving the use of plea minutes, the Second Circuit said:

Taylor's focus upon the charging instrument and jury instructions is surely dispositive with respect to a prior conviction that results from a jury trial. When, as here, the prior conviction results from a guilty plea, however, we agree that recourse may be had to other easily produced and evaluated court documents that clearly establish the conduct of which the defendant was convicted.
Id. at 59 (internal quotation marks and citations omitted) (emphasis added). Thus, the Court of Appeals expanded Taylor's holding to include plea minutes. The Palmer court also cited a number of cases detailing the types of documents upon which a sentencing court might rely. While surely dicta, the Palmer court cited its earlier decision in United States v. Brown, 52 F.3d 415, 425 (2d Cir. 1995), where the court approved of consulting the underlying conviction presentence report in determining whether a defendant qualified as an "armed career criminal." The Tenth and Eleventh Circuits have also approved the use of presentence reports. See United States v. Gacnik, 50 F.3d 848, 856 (10th Cir. 1995) (approving of Page 11 reliance on the judgment of conviction, indictment, and undisputed facts contained in the presentence report); United States v. Spell, 44 F.3d 936, 939 (11th Cir. 1995) (approving of reliance on the charging papers, the judgment of conviction, the plea agreement, and the presentence report adopted by the court).

  Though Palmer expands Taylor, the two cases employ consistent reasoning. Taylor warned sentencing courts not to engage in an elaborate fact-finding process when forced to determine the contours of the predicate conviction. Taylor involved a conviction by jury verdict. Palmer merely expanded the Taylor rule to cover convictions by guilty plea. Specifically, Palmer held that the sentencing court may review the minutes of the plea to determine the elements of the crime. The Palmer court also approved, in dicta, of reviewing the presentence report for the predicate conviction. Both the plea minutes and the presentence report contain an admission by the defendant of conduct and facts underlying the conviction, and are therefore uncontested, ensuring that the current sentencing court need not engage in any fact-finding. Thus, the plea minutes and presentence report provide the sentencing court with an undisputed and accurate description of the predicate crime, from which it can determine whether the statutory definition necessitating an enhancement has been met. However, if the court cannot determine, based on these documents, that the defendant pled guilty to a predicate Page 12 offense that gives rise to a sentencing enhancement, no enhancement is warranted.

  C. Discussion

  In this case, the criminal information filed by the district attorney states only: "Count II Feb. 14, 1991 Sales of Marijuana 11360 H & S." Information, People of the State of California v. Norman Lorenzo Harrison, Case No. SA005959, Ex. 3 to 1/9/03 letter to the Court from Lawrence Donovan ("1/9/04 Ltr."), defendant's counsel. Thus, it provides no guidance to this Court regarding whether Harrison's prior conviction was a drug trafficking offense or an aggravated felony.*fn7 Nor is the court document recording defendant's guilty plea instructive, as it merely states that defendant pled guilty to "11360 Health and Safety Code." Ex. 5 to the 1/9/04 Ltr. And, as noted earlier, the plea minutes are not available.

  The Government implicitly concedes that the documents that Taylor, Page 13 Amaya-Benitez, and Palmer permit the Court to consider in assessing the predicate conviction will not satisfy its burden of proof. Thus, the Government argues that the Court should review three other documents that purportedly detail the facts underlying defendant's 1991 conviction.

  The first of these documents is an excerpt from defendant's 1992 deportation proceedings, where the following colloquy occurred:

Q: So, would you tell me what happened with this possession for sale bust and conviction, the one in California?
A: I was taking this package to the airport.
* * *
Q: And what was in the package?
A: I didn't even know.
* * *
Q: How much marijuana was in the package?
A: They said it was approximately twenty pounds.
Q: Twenty pounds?
A: Approximately.
Q: Did you plead guilty to the charge?
  A: Yeah. Page 14

 Excerpt from Defendant's 8/24/92 deportation proceeding, Ex. A to Government's 1/30/04 Letter to the Court ("1/30/04 Ltr.") at 49, 51 (emphases added). Though not entirely clear from the transcript, it appears that "they" refers to the arresting DEA officers.

  This excerpt is beyond the scope of the limited exception created by Taylor and its progeny because it is not the indictment, jury charge, plea minutes or presentence report. Moreover, at the hearing, Harrison did not acknowledge that he knew he was carrying marijuana.

  The Government next relies on a pre-conviction probation officer's report which contains the following description of the offense:

Allegedly, defendant was in possession of 20 pounds of marijuana for sale, which he transported in a carry-on bag as he was about to board a plane to New York.
  Drug task force agents were notified that defendant appeared suspicious when he picked-up a pre-paid ticket at the Los Angeles International Airport (LAX) terminal with a Jamaican immigration card and no baggage to check in. The agents contacted defendant and advised him that he was not under arrest and free to leave. The agent then asked defendant if he had any narcotics or large sums of money. The defendant said no. The agents then asked the defendant for permission to check his carry-on bag and informed him that he did not have to consent to the search. The defendant consented to the search. Inside the bag the agents found a large gift wrapped package which felt like marijuana. With defendant's consent the agents opened the Page 15 gift wrapped package and found the marijuana.

 Probation Officer's Report, Ex. B to 1/20/04 Ltr., at 2. Defendant was not questioned during the preparation of this pre-conviction report. See id. at 7.

  This report is not the type of presentence report upon which federal sentencing courts rely in imposing sentence, and certainly is not comparable to the presentence reports relied upon in Brown, Gacnik, and Spell, The pre-conviction report was prepared by a probation officer on March 15, 1991, before Harrison pled guilty. It appears that the report consisted solely of a review of the arresting agent's statement. The defendant was never interviewed by the probation officer, nor was he confronted with this report or given an opportunity to challenge it. Moreover, there is no evidence that the sentencing court in California relied on that report in imposing sentence. Notably, in Palmer, the Second Circuit explicitly rejected the use of a current presentence report, to the extent it describes the underlying offense, finding such reports to be unreliable and a "surrogate for the `elaborate factfinding process'" forbidden in Taylor, Palmer, 68 F.3d at 59. In so doing, the Court of Appeals drew a clear line between presentence reports prepared in connection with the underlying conviction, and the current presentence report, emphasizing that the former may be considered by the sentencing court in determining the facts of the underlying conviction, but the Page 16 latter may not. See id. at 59.

  Finally, the Government has recently produced the transcript of the March 15, 1991 preliminary hearing. Only the arresting agent testified at the hearing; the defendant did not testify. During the proceeding, Harrison's counsel stipulated, solely for purposes of the hearing, that the package contained "a green, leafy substance." 3/15/91 Preliminary Hearing Transcript, attached to Government's 2/26/04 Letter to the Court, at 7. This stipulation was not a concession by Harrison that he knowingly possessed any particular amount of marijuana or intended to distribute such amount. Indeed, as noted, defendant made no admission at this hearing. Therefore, the transcript bears no resemblance to a guilty plea or to a jury's finding following instructions on the elements of a crime. Accordingly, it cannot be relied upon to elaborate upon the circumstances surrounding Harrison's 1991 conviction.

  This conclusion is entirely consistent with Taylor, Amaya-Benitez, and Palmer, Those cases allow the sentencing court to look beyond the mere fact of conviction to determine whether the predicate offense meets a statutory definition warranting an enhancement (or in the case of Amaya-Benitez, a downward departure), but severely circumscribe the documents that may be considered, thereby ensuring that the court does not "engage in an elaborate Page 17 factfinding process regarding the defendant's prior offenses." Taylor, 495 U.S. at 601. The documents that may be considered — the charging instrument and jury instructions, plea minutes, and presentence report — are unique; they all describe conduct of which the defendant is indisputably guilty. Reliance on these documents therefore does not require the sentencing court to engage in any fact-finding.

  The documents that the Government urges the Court to consider, on the other hand, are an entirely different category of documents: they consist of documents in which someone other than the defendant or a jury describes conduct that the defendant is accused of committing. Specifically, nowhere in the transcript of the deportation proceeding does the defendant admit that he knowingly attempted to transport twenty pounds of marijuana from California to New York. In fact, he specifically denies knowing that the package contained marijuana, and says only that the DEA officers told him that the package weighed twenty pounds. See Excerpt from Defendant's 8/24/92 deportation proceeding at 49, 51.

  Similarly, the pre-conviction report and preliminary hearing transcript consist of statements made by someone other than the defendant, before the defendant pled guilty, and generally describe the circumstances of the defendant's Page 18 arrest. Because the defendant was not interviewed in connection with the pre-conviction report, and did not admit any conduct during the preliminary hearing, these documents cannot conclusively establish any conduct by the defendant. Moreover, it would be particularly inappropriate to rely on the pre-conviction report and preliminary hearing transcript because they were generated before the defendant pled guilty. As the Supreme Court warned in Taylor, "in cases where the defendant plead[s] guilty, there often is no record of the underlying facts. Even if the Government were able to prove those facts, if a guilty plea to a lesser [] offense was the result of a plea bargain, it would seem unfair to impose a sentence enhancement as if the defendant had pleaded guilty to [a greater offense]." Id. at 601-02.

  Thus, the Government is asking the Court to review unreliable documents and make inferences based on allegations contained in those documents, without any admission by the defendant or a jury verdict. To do so would require the Court to engage in precisely the type of elaborate fact-finding that Taylor prohibits. Moreover, it is entirely possible that the resulting sentencing enhancement would be imposed based on an offense with which the defendant was charged, rather than a lesser offense to which he pled guilty.

  Notably, the Government's attempt to further expand Taylor, Amaya-Benitez, Page 19 and Palmer is troubling from a policy perspective. The Supreme Court and the Second Circuit have carefully circumscribed the documents that a district court may consider in determining whether a predicate conviction gives rise to a sentencing enhancement. The higher courts have drawn clear lines to ensure that the sentencing court does not engage in fact-finding with respect to the underlying conviction. To accept the Government's efforts to further expand the scope of documents upon which the district court relies would be to embark on the quintessential slippery slope: ultimately, the additions and exceptions permitted by the district and circuit courts would eviscerate Taylor's holding, and sentencing courts would sit as jurors, analyzing the allegations and facts of the underlying offense, and drawing their own conclusion.*fn8 This is precisely what Taylor does not allow.


  A. Drug Trafficking Offense

  Section 2L1.2(b)(1)(B) of the Sentencing Guidelines requires a 12-level Page 20 enhancement for a "drug trafficking offense" where the sentence imposed is 13 months or less. Application Note 1(B)(iii) defines the term "drug trafficking offense" as "an offense under federal, state, or local law that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense."

  Harrison acknowledges that he pled guilty to violating section 11360 of the CHSC. However, he argues that because the initial charge of Possession of Marijuana for Sale (CHSC § 11359) was dismissed, it logically follows that the conduct to which he pled guilty was transporting or offering to transport marijuana in violation of section 11360.*fn9 See also 1/27/04 Revised Presentence Report ¶ 27 (listing the 1991 conviction as Transportation or Attempted Transportation of Marijuana). Transportation is not the same as distribution, and mere transportation is not a "drug trafficking offense" as defined in U.S.S.G. § 2L1.2. Page 21 Moreover, section 11360 does not criminalize possession of marijuana, and therefore Harrison could not have pled to a crime of possession "with intent to manufacture, import, export, distribute, or dispense." U.S.S.G. § 2L1.2 Application Note B(iii). See Rivera-Sanchez, 247 F.3d at 908 ("Section 11360(a) [] criminalizes transportation of marijuana even if the defendant is not guilty of possession of the marijuana" (emphasis added)).*fn10 Thus, without an admission of any of the facts underlying the plea, the Government has not proved, by a preponderance of the evidence, that Harrison's 1991 conviction qualifies as a "drug trafficking offense" as defined in Application Note 1(B)(iii) to U.S.S.G. § 2L1.2. The Government's request for a 12-level enhancement is therefore denied.

  B. Aggravated Felony

  Section 2L1.2(b)(1)(C) of the Sentencing Guidelines requires an 8-level enhancement for an aggravated felony. Application Note 2 of this section Page 22 defines "aggravated-felony" by cross-referencing the definition contained in section 1101(a)(43) of Title 8. This section defines "aggravated felony" as "illicit trafficking in a controlled substance (as described in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)," whether in violation of federal or state law. 8 U.S.C. § 1101(a)(43)(B).

  Section 924(c), in turn, defines the term "drug trafficking crime" as any felony punishable under the Controlled Substances Act (21 U.S.C. § 801 et seq.). See 18 U.S.C. § 924(c)(2). Thus, under the second prong of section 1101(a)(43), an "aggravated felony" is a felony conviction under either state or federal law that is punishable under the Controlled Substances Act. See United States v. Ramirez, 344 F.3d 247, 251 (2d Cir. 2003).

  The next logical task is to determine which felonies are punishable under the Controlled Substances Act. Section 841 of Title 21 makes it unlawful for any person to knowingly or intentionally "manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance." Section 844 makes it unlawful for any person to knowingly or intentionally possess a controlled substance.*fn11 Page 23

  Although the Controlled Substances Act describes the transportation of controlled substances in both interstate and intrastate commerce as being part of the trafficking in controlled substances, see 21 U.S.C. § 801(3)(A), (B), (C), (4), (5), (6) and (7),*fn12 mere transportation of drugs, without more, is not listed as a punishable offense anywhere in the Act. See Alvarado-Ochoa v. Ashcroft, No. 02-56669, 2003 WL 21805239, at *1 (9th Cir. Aug. 6, 2003) ("While Alvarado's state transportation [of cocaine] is a felony in California . . . it is not punishable under the Controlled Substances Act. . . ."). Finally, even if transportation necessarily involves possession, and section 844(a) of Title 21 makes it a crime to knowingly possess a controlled substance, Harrison denied knowing that he was carrying marijuana, much less the quantity that he was carrying. And as already discussed in connection with drug trafficking, the Government has not Page 24 demonstrated, by a preponderance of the evidence, that Harrison pled guilty to "possessing" marijuana. See supra, Part V.A.

  Accordingly, without a judicially noticeable source describing the facts underlying the 1991 conviction, the Government has failed to prove, by a preponderance of the evidence, that Harrison's conviction under section 11360 constitutes a felony under the Controlled Substances Act. Therefore, Harrison's prior conviction does not qualify as an "aggravated felony" pursuant to section 1101(a)(43) of Title 8 and U.S.S.G. § 2L2.1(b)(1)(C), and the Government's request for an 8-level enhancement is denied.


  In sum, because there is no instructive extrinsic evidence that this Court may consider, I am bound by the limits of the statute of which defendant was convicted. As already noted, section 11360 criminalizes conduct that qualifies as a drug trafficking offense, as well as conduct that violates the Controlled Substances Act. However, it also encompasses conduct that does neither, such as transportation of an unspecified quantity of marijuana for personal use. Because there is no definitive, judicially noticeable evidence establishing, by a preponderance of the evidence, that the conduct to which Harrison pled guilty constituted a "drug trafficking offense" or an "aggravated felony," the Page 25 Government has not met its burden of proof. Accordingly, section 2L1.2(b)(1)(D) applies, resulting in only a 4-level enhancement. Thus, defendant's adjusted offense level is 12.


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