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Opinions – 11/19/14: 4th U.S. Circuit Court of Appeals

Criminal Procedure

Sentence enhancement 

BOTTOM LINE: Where defendant had previously been convicted of first-degree burglary in California, district court, in sentencing defendant for a crime committed in North Carolina, properly applied a sentence enhancement for defendant’s prior conviction for an aggravated felony.

CASE: United States of America v. Mario Vasquez Avila, No. 13-4606 (decided Nov. 4, 2014) (Judges King, Shedd & AGEE). RecordFax No. 14-1104-60, 17 pages.

COUNSEL: Michael E. Archenbronn, Winston-Salem, NC, for Appellant. William Michael Miller, Office of the United States Attorney, Charlotte, NC, for Appellee.

FACTS: Mario Vasquez Avila had a history of illegally entering the U.S. and engaging in criminal activity while here. In 1990, Avila was arrested for shoplifting and voluntarily returned to Mexico. After reentering again, Avila was convicted of assault in 1993. At the conclusion of his sentence, he was removed to Mexico. Reentering the U.S. almost immediately, Avila was arrested in 1994 in California and charged with multiple offenses. He pled guilty to first-degree burglary. He was again removed to Mexico upon completion of his release. Avila again illegally returned and, following further contacts with the criminal justice system in North Carolina, pled guilty to assault and communicating a threat in North Carolina state court.

The United States Probation Office prepared a presentence investigation report (“PSR”), which calculated Avila’s total offense level at fourteen and his criminal history category at V, resulting in a guidelines sentencing range of thirty to thirty-seven months incarceration. In computing Avila’s offense level, the PSR included an enhancement under U.S.S.G. §2L1.2(b)(1)(C), which provides for an eight-level increase to the base offense level of any defendant who “previously was deported, or unlawfully remained in the United States, after…a conviction for an aggravated felony.” Over Avila’s objection, the probation office determined that his 1994 California conviction for burglary qualified as an aggravated felony.

At sentencing, Avila argued that his California burglary conviction should not qualify as an aggravated felony for the eight-level increase because it is not a crime of violence. The district court overruled Avila’s objection and adopted the recommended guidelines range in the PSR.

Avila appealed to the 4th Circuit, which affirmed.

LAW: Section 2L1.2 of the Sentencing Guidelines provides for an eight-level increase to the base offense level of any defendant convicted of illegal reentry who “previously was deported, or unlawfully remained in the United States, after…a conviction for an aggravated felony.” U.S.S.G. §2L1.2(b)(1)(C). Application Note 3 to §2L1.2 provides that the term “‘aggravated felony’ has the meaning given that term in 8 U.S.C. 1101(a)(43).” Id. §2L1.2 cmt. 3(A). That statute defines “aggravated felony” by listing a series of qualifying offenses, including, in relevant part, “a crime of violence (as defined in section 16 of Title 18)[.]” See 8 U.S.C. §1101(a)(43)(F). “Crime of violence” is defined as: “(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” 18 U.S.C. §16.

A categorical approach was employed to assess whether Avila’s California burglary conviction was an aggravated felony, focusing on the elements of the statute of conviction rather than the conduct underlying the offense. See Descamps v. United States, 133 S. Ct. 2276, 2282-83 (2013) (holding that courts must apply the categorical approach to statutes like California burglary “that contain a single, ‘indivisible’ set of elements”); United States v. Aparicio-Soria, 740 F.3d 152, 154 (4th Cir. 2014) (en banc) (“As required by the categorical approach, our analysis is restricted to the fact of conviction and the statutory definition of the prior offense.”).

Although the “aggravated felony” sentencing enhancement at issue here included “burglary” as a qualifying offense, see 8 U.S.C. §1101(43)(G), the parties agreed that subsection did not encompass Avila’s California burglary conviction because the California burglary statute is broader than the “generic” burglary offense as defined by the Supreme Court. See Taylor v. United States, 495 U.S. 575, 598 (1990). Accordingly, it was necessary to determine whether Avila’s conviction for California first-degree burglary instead qualified under the more generalized “crime of violence” definition in 18 U.S.C. §16.

Avila’s conviction for first-degree burglary under California law required proof of three elements: (1) entry into a dwelling; (2) that was inhabited at the time of the entry; (3) with the intent to commit a theft or any felony. See People v. Anderson, 211 P.3d 584, 589 (Cal. 2009). For purposes of this crime, a structure “need not be occupied at the time; it is inhabited if someone lives there, even though the person is temporarily absent.” People v. Little, 142 Cal. Rptr. 3d 466, 471 (Cal. Ct. App. 2012).

Section 16 “relates not to the general conduct or to the possibility that harm will result from a person’s conduct, but to the risk that the use of physical force against another might be required in committing a crime. The classic example is burglary. A burglary would be covered under §16(b) not because the offense can be committed in a generally reckless way or because someone may be injured, but because burglary, by its nature, involves a substantial risk that the burglar will use force against a victim in completing the crime.” Leocal v. Ashcroft, 543 U.S. 1, 10 (2004).

Given the inherent risks associated with burglary of a dwelling, courts have come to the conclusion that first-degree burglary under California law is indeed a crime of violence under 18 U.S.C. §16(b). See, e.g., Lopez-Cardona v. Holder, 662 F.3d 1110, 1112 (9th Cir. 2011); United States v. Echeverria-Gomez, 627 F.3d 971, 976 (5th Cir. 2010). Likewise here, it was concluded that California first-degree burglary qualifies as a crime of violence under the residual clause in 18 U.S.C. §16(b). Thus, the district court correctly applied the eight-level enhancement under U.S.S.G. §2L1.2(b)(1)(C) when it calculated Avila’s sentence.

Accordingly, the judgment of the district court was affirmed.

Criminal Procedure

Sentencing 

BOTTOM LINE: In sentencing defendant for violating the conditions of his supervised release from prison, district court correctly applied the original sentencing statute, which was amended after defendant committed the underlying offenses for which he was originally convicted but before he engaged in the conduct that led to the revocation of his supervised release, because the original version of the statute was in effect when defendant committed the underlying crimes.

CASE: United States v. Ward, No. 13-4683 (decided Nov. 3, 2014) (Judges Wilkinson, Duncan & KEENAN). RecordFax No. 14-1103-60, 22 pages.

COUNSEL: Frances Pratt, Office of the Federal Public Defender, Alexandria, VA, for Appellant. Robert Bradenham, Office of the United States Attorney, Newport News, VA, for Appellee.

FACTS: In December 1994, George Ward pleaded guilty to several felony charges, including three counts of being a felon in possession of a firearm, in violation of 18 U.S.C. §§922(g)(1) and 924, two counts of distribution of crack cocaine, in violation of 21 U.S.C. §841, and one count of use of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). The district court sentenced Ward to a prison term of 260 months, followed by a five-year period of supervised release.

Following his release from prison in October 2010, Ward was sentenced to a term of 20 months’ imprisonment for violating the conditions of his supervised release. This sentence was the mandatory minimum term required by a former version of the supervised release statute, 18 U.S.C. §3583(g), which Congress amended in 1994 to eliminate the statute’s mandatory minimum sentencing provision. The amended statute was enacted after Ward committed the underlying offenses for which he was originally convicted, but before he engaged in the conduct that led to the revocation of his supervised release.

Ward appealed his conviction and sentencing to the United States Court of Appeals, 4th Circuit, arguing that the district court erred in failing to apply the amended version of §3583(g). The 4th Circuit Court of Appeals held that the district court correctly applied the former version of §3583(g) and affirmed the judgment of the district court.

LAW: Ward contended that the former version of the sentencing release statute was not applicable because the statute was amended before he originally was sentenced and before he committed the acts in violation of his conditions of release.

In Johnson v. United States, the Court addressed whether a provision of former §3583 that had not been enacted at the time of the petitioner’s underlying offense was applicable in his supervised release revocation proceeding, when his conduct in violation of the conditions of release occurred after the statute was amended. Johnson v. United States, 529 U.S. 694, 697-702 (2000). The Court held that the defendant was subject to the sentencing provisions of the pre-amendment statute in effect when the initial offense was committed. Id. at 701-02.

In reaching its conclusion, the Johnson Court expressly rejected the argument that revocation and reimprisonment should be characterized as punishment for a violation of the conditions of supervised release. Id. at 700-01. Instead, the Court held that post-conviction penalties relate to the original offense Id. at 701. In light of this conclusion, the Court considered whether Congress intended that the amended version of §3583 apply retroactively, and held that , in the absence of any clear congressional intent, amended §3583(h) applies only to cases in which that initial offense occurred after the effective date of the amendment. Id. at 702.

In the present case, Ward committed his underlying offenses between December 1993 and June 1994, before Congress amended former §3583 in September 1994. Thus, absent clear congressional intent to the contrary, the former version of §3583(g) was controlling in Ward’s supervised release revocation proceeding. See id. There was no evidence that Congress intended the amended version of §3583(g) to have retroactive application. United States v. Fareed, 296 F.3d 243, 245 n. 2 (4th Cir. 2002). The fact that Ward was not sentenced for his crimes until after the statute was amended was immaterial because the “relevant conduct” in determining whether §3583(g) applied was the “initial offense.” Johnson, 529 U.S. at 702. As such, the district court properly applied former §3583(g) in determining Ward’s revocation sentence.

Accordingly, the judgment of the district court was affirmed.

Family Law

Custody 

BOTTOM LINE: In a custody dispute over two children, a German court which held that the children’s mother did not unlawfully remove the children to Germany did not misinterpret the Hague Convention on the Civil Aspects of International Child Abduction by failing to make a habitual-residence determination before addressing the mother’s defense of consent, because the German court’s decision did not turn on habitual residence or custodial rights; therefore, a Maryland court properly accorded comity to the German court’s decision.

CASE: Smedley v. Smedley, No. 14-1414 (decided Nov. 5, 2014) (Judges Niemeyer, DUNCAN & Thacker). RecordFax No. 14-1105-60, 17 pages.

COUNSEL: Clifton Humphrey, Gaylor, Edwards, Vatcher & Humphrey, LLP, Jacksonville, NC, for Appellant. Thurston Webb, Kilpatrick Townsend & Stockton LLP, Winston-Salem, NC, for Appellee.

FACTS: Mark and Daniela Smedley married in 2000 in Germany, where Mark was stationed as a member of the United States Army. Their children, A.H.S. and G.A.S., were born in 2000 and 2005, respectively. Except for approximately one year spent in Tennessee, the family lived in Bamberg, Germany, until August 2010, when Mark was transferred to North Carolina. He bought a house in Swansboro and brought the family with him.

Daniela claimed that marital tensions, which had surfaced in Germany, were exacerbated in Swansboro by her homesickness, leading to discussion of divorce. Daniela then took the two children to Germany, where they stayed with her. She claimed she did so with Mark’s consent. Subsequently, during the children’s one-month visit to North Carolina to see their father, Mark decided to keep the children with him.

In each instance, the parent not housing the children (i.e., first Mark and then Daniela) petitioned for the children’s return under the Hague Convention on the Civil Aspects of International Child Abduction, a treaty designed to return children wrongfully removed from their “habitual residence.” A German court denied Mark’s Hague petition, crediting a family advocate’s allegations that Mark had physically abused A.H.S. and finding that returning the children to North Carolina would expose them to a serious risk of harm, one of the defenses under Article 13 of the Hague Convention. A German appellate court affirmed. As a result, Daniela did not have to return the children to North Carolina.

After Mark decided to keep the children following their visit with him, a North Carolina district court accorded comity to the German appellate court’s decision. It therefore granted Daniela’s Hague petition, ordering the children’s return to Germany.

Mark appealed to the 4th Circuit, which affirmed.

LAW: The issue on appeal was whether the district court properly accorded comity to the German court’s ruling that Daniela did not unlawfully remove the children to Germany. Mark argued that the German court clearly misinterpreted the Hague Convention because it failed to make a habitual-residence determination before addressing Daniela’s defense of consent. He argued that the order of analysis mattered because, according to him, the German court would have been compelled to find that the children’s habitual residence was North Carolina, and such a finding might have made the court more reluctant to find that the defenses of Article 13 applied.

Mark’s contention that the German court would necessarily have found North Carolina to be the children’s habitual residence was pure conjecture, and he cited no authority for the proposition that a court must decide habitual residence before addressing defenses. In Asvesta v. Petroutsas, the 9th Circuit criticized a Greek court for failing to make a habitual-residence determination where the Greek court had decided that the respondent’s retention of the child in Greece was not wrongful because the petitioner was not exercising his custodial rights at the time. Asvesta v. Petroutsas, 580 F.3d 1000, 1016-17 (9th Cir. 2009). However, in Asvesta it was necessary to determine the child’s habitual residence because that country determines custodial rights; as such, the Greek court could not have addressed custodial rights without first knowing the child’s habitual residence. See Asvesta, 580 F.3d at 1017.

In the present case, by contrast, the habitual-residence question was not dispositive or even helpful, as the court’s conclusion did not turn on habitual residence or custodial rights. Even if the German court had assumed that the children were habitual residents of North Carolina when Daniela took them to Germany, the finding that Mark consented to that move would have still provided her with an affirmative defense to wrongful removal. Thus, the German Court did not misinterpret the Hague Convention by failing to first make a habitual-residence determination.

Accordingly, the judgment of the district court was affirmed.

Immigration Law

Removal 

BOTTOM LINE: Board of Immigration Appeals committed legal error in affirming the ruling of an immigration judge (“IJ”) that alien, who applied for asylum and withholding of removal, was ineligible for a waiver of inadmissibility under federal immigration statute for having made willful misrepresentations to procure an immigration benefit, based solely on IJ’s adverse finding of petitioner’s credibility, because IJ erroneously conflated adverse credibility with willful misrepresentation.

CASE: Yang v. Holder, No. 13-1682 (decided Oct. 29, 2014) (Judges Motz, KING & Davis). RecordFax No. 14-1029-60, 30 pages.

COUNSEL: Joshua Bardavid, Bardavid Law, New York, New York, for Petitioner. Kerry Monaco, United States Department of Justice, Washington, for Respondent.

FACTS: Xing Yang, a native of China, entered the United States without inspection on January 20, 1993, and he had since resided in Maryland. He had two children who were both American citizens. Chao Yang, the mother of Yang’s children, was not an American citizen. Zheng and Yang never married.

In March 1993, Yang applied to the Immigration and Naturalization Service for asylum and withholding of removal. In an initial decision, an immigration judge (“IJ”) denied Yang’s requests and made an adverse finding as to Yang’s credibility. In a second decision, an IJ found that Yang was inadmissible for a waiver under §212(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §1182(i), for having made willful misrepresentations to procure an immigration benefit. Such a waiver requires a showing by the alien that his deportation would cause sufficient hardship to a qualifying relative.

After the Board of Immigration Appeals affirmed the denial of Yang’s various applications for relief from deportation, Yang petitioned the 4th Circuit, for review of the BIA decision. The 4th Circuit granted the petition for review, vacated the BIA decision, and remanded for further proceedings.

LAW: Under §1182, an alien may be deemed “inadmissible” – and therefore ineligible for an adjustment of status by the Attorney General – for a variety of reasons. Pursuant to §1182(a)(4), an alien who seeks an adjustment of status is inadmissible if, at the time he applies for the adjustment, he is likely to become a “public charge.” In order to show that the alien will not become a public charge, the qualified relative must submit an affidavit demonstrating the means to maintain the intending immigrant at an annual income of at least 125% of the federal poverty line. 8 C.F.R. §213a.2(c)(2).

An alien who seeks to procure an immigration benefit by “fraud or willfully misrepresenting a material fact” is also inadmissible. 8 U.S.C §1182(a)(6)(C)(i). That bar to admissibility may be waived, however, in the discretion of the Attorney General, pursuant to §212(i) of the INA. A §212(i) waiver is available only to those aliens who have been found inadmissible pursuant to 8 U.S.C. §1182(a)(6)(C)(i) for seeking an immigration benefit by fraud or willful misrepresentation.

An adverse credibility ruling impacts the evidence an alien must produce in order to meet his burden in proving eligibility for asylum. See Djadjou v. Holder, 662 F.3d 265, 273 (4th Cir. 2011). The INA provides that an alien may establish an asylum claim through testimony alone, without corroborating evidence, if the trier of fact finds the alien’s testimony to be credible and persuasive. See 8 U.S.C. §1158(b)(1)(B)(ii). If discrepancies cannot be viewed as attempts by the applicant to enhance his claims of persecution, they have no bearing on credibility. Ceraj v. Mukasey, 511 F.3d 583, 591 (6th Cir. 2007).

Meanwhile, under the INA, a willful misrepresentation ruling impacts whether an alien is admissible to the United States. The government bears the burden of showing, by clear and convincing evidence, that the alien fraudulently or willfully misrepresented or concealed some material fact, and that such fraud or misrepresentation was used to seek a visa, documentation, or entry into this country. See Ortiz-Bouchet v. U.S. Attorney General, 714 F.3d 1353, 1356 (11th Cir. 2013). Here, however, the second IJ decision based the willful misrepresentation ruling solely on the credibility ruling, applying an erroneous legal standard.

The IJ failed to articulate any of the requirements that must be shown by clear and convincing evidence in order to apply 8 U.S.C. §1182(a)(6)(C)(i), including the intent to deceive required for fraud, or the deliberateness and voluntariness necessary for willful misrepresentation. Rather, the IJ simply recounted the inconsistencies on which the credibility ruling was based, conflating adverse credibility with fraud and willful misrepresentation, thereby committing legal error. Given that the IJ’s willful misrepresentation ruling was rendered by erroneously equating adverse credibility with willful misrepresentation, the BIA repeated the IJ’s legal error in affirming the second IJ decision. Given that Yang was not inadmissible under 8 U.S.C. §1182(a)(6)(C)(i), he had no need for a §212(i) waiver.

Accordingly, Yang’s petition for review was granted, and the BIA decision was vacated and remanded to the BIA for further proceedings.