Be Sure to Argue Sentencing Issues in a Sentencing Memo; Unargued Claims are Forfeited
United States v. Zubia-Torres, ___ F.3d ___, 2008 WL 5274166 (10th Cir. 2008)
1. Defendant’s failure to challenge his prior conviction under Nevada law as not categorically a drug trafficking felony was a forfeiture, not a waiver of the argument. The COA tries to give better direction regarding the difference, and says because Defendant never made the argument he could not have “affirmatively abandoned” it–waiver is abandonment.
2. Defendant’s vague statement during allocution did not preserve the issue for de novo review, and the COA hints that only under unusual circumstances will allocution by a defendant preserve a sentencing issue–Rule 32 objections is the route.
3. The COA agrees that the Nevada law is broad and is not categorically a drug trafficking crime. However, by not raising the issue, D never gave the government or probation the opportunity to gather documents to demonstrate under a modified categorical approach whether it was a qualifying offense. The COA also faults the D on appeal: “Even on appeal, the defendant offers no evidence that his conviction was for mere possession rather than sale.” (The COA does not suggest how this might be done). All these burdens are laid at Defendant’s feet under the plain error standard: the Defendant must show that his substantial rights were affected, and cannot do so without showing a negative–that the government could not show (per Shepard) that the offense was a qualifying offense. Practice tip: prior convictions under a broad statute must be challenged as non-qualifying in the district court–the COA has made it a virtual impossibility to rescue the issue under a plain error standard.
1. Defendant’s failure to challenge his prior conviction under Nevada law as not categorically a drug trafficking felony was a forfeiture, not a waiver of the argument. The COA tries to give better direction regarding the difference, and says because Defendant never made the argument he could not have “affirmatively abandoned” it–waiver is abandonment.
2. Defendant’s vague statement during allocution did not preserve the issue for de novo review, and the COA hints that only under unusual circumstances will allocution by a defendant preserve a sentencing issue–Rule 32 objections is the route.
3. The COA agrees that the Nevada law is broad and is not categorically a drug trafficking crime. However, by not raising the issue, D never gave the government or probation the opportunity to gather documents to demonstrate under a modified categorical approach whether it was a qualifying offense. The COA also faults the D on appeal: “Even on appeal, the defendant offers no evidence that his conviction was for mere possession rather than sale.” (The COA does not suggest how this might be done). All these burdens are laid at Defendant’s feet under the plain error standard: the Defendant must show that his substantial rights were affected, and cannot do so without showing a negative–that the government could not show (per Shepard) that the offense was a qualifying offense. Practice tip: prior convictions under a broad statute must be challenged as non-qualifying in the district court–the COA has made it a virtual impossibility to rescue the issue under a plain error standard.
posted by Anonymous at 8:55 AM
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