Today, in United States v. Martinez-Cruz, the Tenth Circuit issued a published decision with very big ramifications for federal defendants with prior convictions under 21 U.S.C. Section 846. Also, by the way, you might notice that Caleb Kruckenberg is the listed attorney for Mr. Martinez-Cruz. I was both trial and appellate counsel in this case, so this one is near and dear to me.
Mr. Martinez-Cruz was convicted of re-entering the country following a prior deportation. Not only is this a felony (which is surprising to many reasonable people), but for people with prior convictions for “drug trafficking” crimes, the sentencing guidelines impose pretty significant penalties. In Mr. Martinez-Cruz’s case, he was previously convicted of violating 21 U.S.C. Section 846, which is a statute that prohibits conspiracies to possess with the intent to distribute a controlled substance. The government and the district court all believed that conviction was a “drug trafficking” offense. Because of that, Mr. Martinez-Cruz got an enhancement on his sentencing guidelines, which raised his sentencing range from 21 to 27 months to 33 to 41 months. Or, in non-guideline speak, he got an extra year in prison based on the old conviction.
Mr. Martinez-Cruz argued against the enhancement, saying his conviction should not count as a “drug trafficking” offense. The argument was pretty simple. When the guidelines says things like “drug trafficking” crimes, that is a reference to a generic crime. So, it is a reference to what most jurisdictions agree is a drug trafficking crime. For example, if a jurisdiction says possessing a dime bag of weed is “drug trafficking,” the sentencing enhancement wouldn’t apply because most jurisdictions wouldn’t consider that drug trafficking. That’s just possessing a small amount of weed. For a conspiracy conviction, you have to apply the same thinking. If a jurisdiction says something is “conspiracy,” but it doesn’t look like what most jurisdictions think is a conspiracy, then it doesn’t count.
In this case, Mr. Martinez-Cruz’s conviction was federal conspiracy under Section 846, but that statute doesn’t look like most jurisdictions’ idea of conspiracy. Most jurisdictions think a defendant is guilty of conspiracy only if he commits an overt act — does more than just think about committing a crime. Under Section 846, the feds can convict someone without proving an overt act. Because the prior conviction was non-generic, Mr. Martinez-Cruz argued he shouldn’t get the enhancement.
The district court was not swayed. In an opinion it described the argument as “absurd.” After all, two different circuit courts had already dismissed the same argument because it seemed like Section 846 probably should count as drug trafficking.
Not so fast, said the Tenth Circuit. In a published opinion, the Court basically adopted the analysis I just described. The Court also decided that the other circuit courts were just wrong. So they sent the case back for re-sentencing so that Mr. Martinez-Cruz can get the year taken off his sentence.
This decision is significant for a number of reasons. First, for Mr. Martinez-Cruz this means one less year of prison, and means that he will be re-united with his family much sooner. That’s probably good enough right there.
Second, this decision is a significant win for a lot of other defendants. The particular part of the sentencing guidelines that was at issue in this case, Section 2L1.2, has been amended and soon won’t have the same kind of enhancement. However, lots of other parts of the guidelines do. Probably the worst is the career offender guideline. Under Section 4B1.1, if a defendant has two prior drug trafficking convictions he can face an automatic guideline sentence of at least 15 years in prison. It has been pretty standard practice for basically forever to treat convictions under Section 846 as drug trafficking convictions. Now, however, that is not the case (at least in the Tenth Circuit). This means that some people who otherwise might face 15-year sentences could see half of that. Maybe this means that lots of people will get much shorter sentences. That’s huge.