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United States v. Serrano-Mercado

United States Court of Appeals, First Circuit

May 24, 2016

WILSON SERRANO-MERCADO, Defendant, Appellee.

          Before Howard, Chief Judge, Torruella, Lynch, Lipez, Thompson, Kayatta and Barron, Circuit Judges.


         The petition for rehearing having been denied by the panel of judges who decided the case, and the petition for rehearing en banc having been submitted to the active judges of this court and a majority of the judges not having voted that the case be heard en banc, it is ordered that the petition for rehearing and the petition for rehearing en banc be denied.

          TORRUELLA and THOMPSON, Circuit Judges, dissent from denial of en banc rehearing.

          LIPEZ, Circuit Judge, joined by TORRUELLA and THOMPSON, Circuit Judges, Statement Re Denial of En Banc Review.

         I write to record my deep disappointment that a majority of the active judges of this court have denied appellant's compelling petition for en banc review, which raises a question of exceptional importance that has split the circuits. Their refusal to reconsider this case en banc is all the more disconcerting in light of the Supreme Court's recent decision in Molina-Martinez v. United States, No. 14-8913 (U.S. Apr. 20, 2016), which significantly changes the precedential landscape on plain error in sentencing. As appellant argues, Molina-Martinez undermines this court's cases requiring the defendant, on plain error review, to produce affirmative evidence that he would have received a more favorable sentence.

         Importantly, the underlying issue -- prolonged incarceration, erroneously imposed --implicates the growing national concern over excessively long imprisonment. This is not a technical debate over arcane legal doctrine. At stake are years in the lives of individuals who, albeit convicted felons, are serving enhanced sentences that are unjustified on the records before the court. I had hoped that even those colleagues who question the view of the law expressed in my concurrence, see United States v. Serrano-Mercado, 784 F.3d 838, 850-61 (1st Cir. 2015), would have acknowledged the need for the en banc process to consider the views of other courts, now including the Supreme Court's decision in Molina-Martinez, so that we could -- at a minimum -- clarify the inconsistencies in our own precedent concerning the proper plain error analysis for sentencing errors such as occurred in this case. Because my colleagues have rejected that deliberation, the defendant must now look to the Supreme Court for relief.

         The question presented by the petition arises when a sentencing judge relies on a defendant's past convictions as a basis for enhancing his current sentence, pursuant to the Armed Career Criminal Act ("ACCA") or the United States Sentencing Guidelines.[1] If a past conviction was under a "divisible" statute -- i.e., a statute that criminalizes different types of conduct, only some of which may trigger the enhancement -- the sentencing court must apply the so-called modified categorical approach to determine the particular version of the crime that underlies the defendant's conviction. Descamps v. United States, 133 S.Ct. 2276, 2283-84 (2013). If the prior conviction is not shown to rest on qualifying conduct -- in this instance, violence -- it may not be used as a sentencing "predicate."[2] To determine the nature of the conviction, the court may consult a limited set of approved records, including charging documents, plea agreements, jury instructions, and verdict forms. United States v. Ramos-González, 775 F.3d 483, 505 (1st Cir. 2015); see also Shepard v. United States, 544 U.S. 13, 26 (2005) (listing the acceptable records, often described as "Shepard materials").[3]

         Indisputably, the government bears the burden of establishing the nature of a predicate conviction under a divisible statute before the offense may be used for aggravated punishment. See United States v. Dávila-Félix, 667 F.3d 47, 57 (1st Cir. 2011). If the government does not make that showing, and the sentencing court nonetheless relies on the conviction, the court has erred. If the defendant did not object to use of the conviction when he was sentenced, plain error review will apply if he challenges the enhancement on appeal. The nature of that review is the question raised by appellant's petition: How does the government's burden to establish that a conviction under a divisible statute qualifies as a predicate offense intersect with the defendant's burden to show plain error?

         Our circuit's law contains two strains of analysis for determining whether reversible plain error occurred when a sentencing court improperly used a conviction under a divisible statute as a predicate for enhancement: one in which we have held the government to its burden of proving the conviction's eligibility, see, e.g., id. at 57, and one in which we have not, see, e.g., United States v. Turbides-Leonardo, 468 F.3d 34, 39-40 (1st Cir. 2006). The circuits also have been divided on whether the defendant or government should bear the burden of production in the plain error context. See Serrano-Mercado, 784 F.3d at 848-49 (panel opinion) (listing decisions by the Third, Tenth, and D.C. Circuits as consistent with the panel approach, and decisions by the Second, Fifth, Eighth, and Ninth Circuits as consistent with the concurrence's proposed approach), 856 (Lipez, J., concurring) (also noting Fourth Circuit case as consistent with concurrence's view).

         The focus of our precedent is on the prejudice prong of the plain error analysis. In this case, the panel shifted the burden to the defendant to prove that, but for the sentencing judge's improper reliance on the specified conviction, it is reasonably probable that he would have received a lesser sentence. Id. at 851 (Lipez, J., concurring). Hence, in effect, this precedent conditions a finding of prejudice on the defendant's ability to produce Shepard materials revealing that his conviction was for a non-violent offense.

         The animating principle of the modified categorical approach, however, is that enhanced sentencing is improper unless the government proves that the defendant's criminal history justifies such severe punishment. As I have explained, requiring the defendant to disprove his eligibility for an enhancement creates a serious risk of a longer prison term than is justified. See id. at 856 (Lipez, J., concurring) (noting that Shepard materials revealing the nature of the conviction may be inaccessible or no longer exist, and thus would be unavailable to a defendant). It is an unnecessary risk. As other circuits have concluded, the simple, fair alternative is a remand for resentencing once the defendant shows that the court improperly lengthened his sentence in reliance on a conviction under a divisible statute without determining whether that conviction qualifies as an aggravating predicate on the basis of the appropriate documentation.

         Resentencing should virtually always occur in such cases because the court's unsupported assumption that a conviction under a divisible statute qualifies as a predicate constitutes error that easily satisfies all four prongs of the plain error inquiry. See id. at 856-57 (Lipez, J., concurring) (stating the requirements: (1) error that is (2) plain and (3) prejudicial, resulting in (4) a miscarriage of justice). The error is plain because the law is clear that a conviction under a divisible statute, unelaborated by the government with approved records, is unusable for enhancement purposes if the statute criminalizes both qualifying and non-qualifying conduct. See Descamps, 133 S.Ct. at 2283. The prejudice and miscarriage of justice are inescapable: the defendant has received additional prison time without a proper foundation.

         Moreover, as the Supreme Court has now expressly recognized, the burden on the court to remedy an error such as this is small. See Molina-Martinez, slip op. at 15 ("[E]ven when a Court of Appeals does decide that resentencing is appropriate, 'a remand for resentencing, while not costless, does not invoke the same difficulties as a remand for retrial does.'" (quoting United States v. Wernick, 691 F.3d 108, 117-118 (2d Cir. 2012), and United States v. Sabillon-Umana, 772 F.3d 1328, 1334 (10th Cir. 2014) (stating that the "cost of correction is . . . small" because "[a] remand for sentencing . . . doesn't require that a defendant be released or retried"). The government will have the opportunity on remand to produce supporting documents and seek reinstatement of the enhancement. If the government cannot do so, the enhancement cannot -- and should not -- be applied. See Davis, 676 F.3d at 8 ("If, after examination of the[] permissible documents, it is impossible to tell whether the defendant was convicted of a violent or non-violent offense, the conviction may not serve as a predicate offense." (internal quotation marks omitted)).

         Yet, under the approach applied by the panel, and supported by First Circuit precedent, a defendant must serve years of additional prison time unless he comes forward with proof that his conviction does not qualify as a triggering predicate. This shift of responsibility, allowing an enhanced sentence to remain in place if a defendant cannot disprove its correctness, turns on its head the Supreme Court's modified categorical approach, a methodology specifically ...

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