Amicus Curiae Brief — Toledo-Flores v. United States

O FILED

— JUN 16 2006

No. 05-7664 | OFFICE OF THE CLERK

SUPREME COURT, U.S.

In the

Supreme Court of the United States

REYMUNDO TOLEDO-FLORES, Petitioner,

Vv.

UNITED STATES OF AMERICA, Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF AMICI CURIAE OF THE

NATIONAL ASSOCIATION OF FEDERAL DEFENDERS

AND FAMILIES AGAINST MANDATORY MINIMUMS

IN SUPPORT OF PETITIONER

NATIONAL ASSOCIATION Henry J. Bemporad

OF FEDERAL DEFENDERS Deputy Federal Public Defender

Frances H. Pratt, Co-Chair, Counsel of Record

Amicus Committee Office of the Federal Public

Defender, W.D. Texas

FAMILIES AGAINST 727 East Durango Blvd, B-207

MANDATORY MINIMUMS _ San Antonio, TX 78206-1278

Mary Price, General Counsel Telephone: (210) 472-6700

Michael C. Holley

Research and Writing Attorney

Office of the Federal Public

Defender, M.D. Tennessee

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‘QUESTION PRESENTED

Whether 18 U.S.C. § 924(c)(2)’s definition of

“drug trafficking crime” includes only those

offenses punishable as felonies under the

Controlled Substances Act, 21 U.S.C. § 801 et seg.

TABLE OF CONTENTS

Page

Cente PORNO gon seis sb bed ecdaadepes beehes i

Fe A ins se eh hee indecent ele eees iv

Interest of Amici Curiae.............. cee eeeees 1

Introduction and Summary of Argument............ 3

pe PR EE SEES i FEY EG eng BY BEF 5

Any Ambiguity in the Statute Must Be Resolved in

the Petitioner's Favor Using the Rule of Lenity.. . . 5

A. Section 924(c)’s term “drug trafficking crime”

has a long and troublesome history of inconsis-

temt Iterprotetiom. ..... ccc ccc sscccccces 5

1. The Government-fostered interpretive split

FE 5 RIB eT LS PORES PEEP LT RY MIA ES 7

2. The consequences of the entrenched immi-

gration/criminal split................... 9

3. The trend towards textualism and leniency

jiidenah +s Sob waees Rukiade VoWae Cae vanes OE

iii

TABLE OF CONTENTS - Continued

1. The roots of the venerable rule.......... 12

2. The rule’s purposes in modern criminal

DRMNOGNGS Ciineiv Seco Cae es Cacaes 15

C. By its own actions, the Government has effect-

ively conceded that its current interpretation is

not clear enough to survive application of the

rule of lenity. .............. [eta weakea oe 18

D. The Government’s interpretation subverts the

rule of ienity and its underlying principles.... 21

1. The Court should avoid an interpretation of

a criminal statute harsher than that grasped

by commonsense.................-.4-. 21

2. The Court should avoid relying on general

policy statements to support an interpre-

tation that is harsher than clearly required by

PPIs o's Sunde das bosbere trues 22

E. The rule of lenity should have restrained courts

from adopting the State Felony Approach..... 24

EE Rah Ba a to ue Sagar Fae ney BS Se vag de 25

iv

TABLE OF AUTHORITIES

Page

CASES

Aguirre v. INS, 79 F.3d 315 (2d Cir. 1996).......... 7

Bifulco v. United States, 447 U.S. 381 (1980)....... 24

Bryan v. United States, 524 U.S. 184 (1998)........ 17

Castillo v. United States, 530 U.S. 120 (2000) ....... |

Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905

CPG Ge BOIS i. 6580.5 055 8 CRE CU A W ORUE KO 11

Commissioner v. Acker, 361 U.S. 87 (1959). ....... 12

Connally v. General Constr. Co., 269 U.S. 385

EUs Ld cheek reeves ahe eee eee eel 12

Crandon v. United States, 494 U.S. 152 (1990)

(ch sh REOEDK ae Ae Tes Ra ee 16, 17, 22

Dodd v. United States, 545 U.S. 353 (2005). ........ l

Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002).. 11,18

Gonzales-Gomez v. Achim, 441 F.3d 532

CP GE BOON bacabb cb bead 6 svcdeeees 11,18

Hallet v. Jenks, 7 U.S. 210 (1805)... ............. 21

Hughey v. United States, 495 U.S. 411 (1990). .. 16, 22

In re L- G-, 21 I. & N. Dec. 89 (BIA 1995).... 7, 8,19

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)...... 19

Leocal v. Ashcroft, 543 U.S. 1 (2004)........... 8,19

Liao v. Rabbett, 398 F.3d 389 (6th Cir. 2005)....... 11

Lopez v. Gonzales, 417 F.3d 934 (8th Cir. 2005),

cert. granted, 126 S. Ct. 1651 (2006)......... 2,11

Massaro v. United States, 538 U.S. 500 (2003)....... l

Matter of Barrett, 20 1. & N. Dec. 171 (BIA 1990).... 7

Matter of Davis, 20 1. & N. Dec. 536 (BIA 1992)..... 7

Vv

TABLE OF AUTHORITIES — Continued

Page

Matter of Hernandez-Casillas, 20 1. & N.

i rh SOR ees 6 Che weet ecedews 7

McBoyle v. United States, 283 U.S. 25 (1931)

Fete aap henweshs be kecuuebie keene a 14, 15, 16, 20

Moskal v. United States, 498 U.S. 103 st a be Sao 24

Prince v. United States, 352 U.S. 322 (1957). ... 18,19

Raley v. Ohio, 360 U.S. 423 (1959)............... 20

Rogers v. Tennessee, 532 U.S. 451 (2001). ........ 12

Simpson v. United States, 435 U.S. 6 (1978)....: 18,19

United States v. Amaya-Portillo, 423 F.3d 427

SG bs hbk 05.664 ROL s aeAR AS Ou h Kee ll

United States v. Arvizu, 534 U.S. 266 (2002). ....... l

United States v. Bass, 404 U.S. 336 (1971)... 11, 15, 16

United States v. Booker, 543 U.S. 220 (2005)........ 1

United States v. Briones-Mata, 116 F.3d 308

SE SEE ah ebadeackdaweawentsawd cuace 8

United States v. Cabrera-Sosa, 81 F.3d 998

Se ca. PAA Shae babbems buee 8

United States v. Granderson, 511 U.S. 39 (1994)

ees Pee eS tis ved eimimae eos 17, 23

United States v. Grubbs, 126 S. Ct. 1494 (2006)... .... l

United States v. Hinojosa-Lopez, 130 F.3d 691

DE BETES bcob ac cesedctecana essa 3,8

United States v. Ibarra-Galindo, 206 F.3d 1337

Ns Ste ua es nO ne bitis bewekat 11,21, 22

United States v. Kozminski, 487 U.S. 931 (1988). 15,17

United States v. Palacios-Suarez, 418 F.3d 692

i ea ih bh tbs obs A 644% 3,6, 11,18

vi

TABLE OF AUTHORITIES — Continued

Page

United States v. Pennsylvania Indus. Chem.

COs SEE We. Ge CAPT 6 8b Kies pcvcesevas 20

United States v. Pornes-Garcia, 171 F.3d 142

SEE SOPRA chen iaeces CU Ob edsmmee ne 9, 23

United States v. Restrepo-Aguilar, 74 F.>< 361

See Ge POPs ck caa ek mk ap ak tedwnee ans 8,22

United States v. R.L.C., 503 U.S. 291 (1992)

A TEP EG Gy SEP Re ae nT ee eye 12, 15, 16, 20

United States v. Robles-Rodriguez, 281 F.3d 900

CN at 60-4 cednird ou Sh4C deueeew ans 11

United States v. Simon, 168 F.3d 1271

CRUE GRE TODO 6 6 CECE ITN a RENE ee eEY 8-9

United States v. Standard Oil Co., 384 U.S. 224

SEU pos 66 a beep auReve su bacercabs on be 15

United States v. Thompson/Center Arms Co.,

SR ee Tee eee re ae 8,19

United States v. Vonn, 535 U.S. 55 (2002). ......... l

United States v. Wilson, 316 F.3d 506

SE GEES Wand.b Kock eheedn bb sacancenes 11

United States v. Wiltberger, 18 U.S. 76 (1820)... 13, 24

STATUTORY AND REGULATORY PROVISIONS

Dae © Slee oes veer sivevecs Sikes eevus 4, 8,22

ties 0 GEE mc cos Kn cdedveertpessveaccsene 10

BUBBA. § USAR. oo cccccdcccccavevcecvtsencee 10

SURE BUMS oo iexciiicccoskssadancie 10

Vii

TABLE OF AUTHORITIES -— Continued.

Page

18 U.S.C. § 924. ...... i, 3, 4, 5, 6, 8, 11, 18, 22, 23, 24

as Es ony btdbedncécacensobseanent l

SEs I bc nncad abscess dddaaeensees seein i

BE As EU owe bbb ads bedededaserecd eer oese 6

Gees Sek Eee a bac beeecwensdentass yeaedes 7

U.S. SENTENCING GUIDELINES AND PUBLICATIONS

is Sf ft 8h rae rere a 4, 8,9, 21, 23

Ae. CRONE WE cic cl cdc cwncstpcosbuens 23

OBS. CRO FOG, 6 is cbc ccecescensctsseude 23

U.S. Sentencing Commission, 1992 Annual Report. .. 9

U.S. Sentencing Commission, 1999 Sourcebook

of Federal Sentencing Statistics................ 9

U.S. Sentencing Commission, 2003 Sourcebook

of Federal Sentencing Statistics.............++: 9

OTHER

William Blackstone, Commentaries on

the Laws of England . .... 2... ..sccceccceess 13.

William N. Eskridge, Jr., Formalism and Statutory

Interpretation, 66 U. Chi. L. Rev. 671 (1999).... 17

Viii

TABLE OF AUTHORITIES — Continued

Page

Office of Immigration Statistics, U.S. Dep’t of

Homeland Security, 2003 Yearbook of -

Immigration Statistics, available at

http://uscis.gov/graphics/shared/aboutus/

statistics/2003 Yearbook.pdf.................+. 7

Herbert L. Packer, The Limits of the Criminal

Pt er a eee eee 12

Webster's Third New International

SRI (IDG oo asc kS ches decks pivstacea 21

l

INTEREST OF AMICI CURIAE'

The National Association of Federal Defenders was

formed in 1995 to enhance the representation provided

under the Criminal Justice Act, 18 U.S.C. § 3006A, and

the Sixth Amendment to the United States Constitution.

The Association is a nationwide, nonprofit, volunteer

organization whose membership includes attomeys who

work for federal public and community defender

organizations authorized under the Criminal Justice Act.

One of the guiding principles of the Association is to

promote the fair adjudication of justice by appearing as

amicus curiae in litigation relating to criminal-law issues,

particularly as those issues affect indigent defendants in

federal court. The Association has appeared as amicus

curiae in litigation before the Supreme Court and the

federal courts of appeals.’

' Pursuant to Rule 37.6, Amici Curiae certify that no counsel for

a party authored this brief in whole or in part and that no person or

entity, other than amici, their members, or their counsel, has made a

monetary contribution to the preparation or submission of this brief.

The parties have filed letters consenting to the filing of this brief

with the Clerk of the Court.

? Published decisions in which the Association has appeared as

amicus curiae in this Court include Castillo v. United States, 530

U.S. 120 (2000); United States v. Arvizu, 534 U.S. 266 (2002);

United States v. Vonn, 535 U.S. 55 (2002); Massaro v. United States,

538 U.S. 500 (2003); United States v. Booker, 543 U.S. 220 (2005);

Dodd v. United States, 545 U.S. 353 (2005); and United States v.

Grubbs, 126 S. Ct. 1494 (2006).

2

Families Against Mandatory Minimums Foundation

(FAMM) is a nonprofit, nonpartisan organization with

10,000 members and thirty chay ters nationwide. FAMM

does not oppose imprisonment, but urges that punishment

be proportionate to the offense and the culpability of the

offender. FAMM conducts research, promotes advocacy,

assists prisoners with securing pro bono counsel, and

educates the pubiic regarding the excessive cost of

mandatory sertencing. That cost is not limited to public

expenditures but includes the perpetuation of unwarranted

sentencing disparities, disproportionate sentences, and the

increasing reliance on lengthy periods of incarceration to

the detriment of other responses to crime. FAMM is

deeply interested in ensuring that prisoners spend no more

time incarceratcd than that authorized by law.

Amici Curiae file this brief because Petitioner Toledo-

Flores’s case’ raises an important question of statutory

construction that will impact sentencing for many indigent

federal defendants. That question potentially turns upon

the application of the rule of lenity. Amici Curiae offer

their view as to the role the rule of lenity could play in the

resolution of this question.

> Amici Curiae submit this brief on behalf of Petitioner Toledo-

Flores. His case has been consolidated for purposes of oral argument

with Lopez v. Gonzales, No. 05-547.

3

INTRODUCTION AND

SUMMARY OF ARGUMENT

The question in this case primarily concerns the portion

of 18 U.S.C. § 924(c) that defines a “Crug trafficking

crime” as “any felony punishable under the Controlled

Substances Act....” 18 U.S.C. § 924(c)(2). The lower

courts have split as to whether the term “felony” therein

refers only to offenses punishable as felonies under federal

law (the Federal Felony Approach) or whether it extends

to all offenses punishable as felonies under state law,

including those for simple possession of drugs (the State

Felony Approach). Compare, e.g., United States v.

Palacios-Suarez, 418 F.3d 692 (6th Cir. 2005), with United

States v. Hinojosa-Lopez, 130 F.3d 691 (Sth Cir. 1997).

Amici Curiae believe that the plain language of

§ 924(c)(2) reaches only felonies under federal law, as the

petitioners and other amici have explained. And, at the

very minimum, the statute forecloses the State Felony

Approach adopted by the Fifth Circuit. Because these

arguments are clear and the meaning of the statute is

unambiguous, no purpose would be served by revisiting

those points here. Amici Curiae focus instead on the rule

of lenity. Here, as it often does, lenity serves as a

secondary argument showing why the Court, even if it

were to decide that the statute is ambiguous, cannot adopt

the Government’s harsher interpretation of the statute.

The rule of lenity is deeply rooted in our justice system,

ensuring that fair notice is given, that laws are not enforced

4

arbitrarily, and that the executive, legislative and judicial

branches maintain their proper roles. To satisfy the rule of

lenity and its underlying concerns, the Court should reject

the Government’s argument for the State Felony

Approach. Thousands of potentially affected individuals

have been given actual notice of a contrary interpretation

by the Government. The State Felony Approach is

counterintuitive and impermissibly depends in part on

intimations as to general legislative policy rather than the

specific question of statutory construction. Applying the

rule of lenity will avoid reliance on anything but the clear

meaning of the legislation, and will allow for uniform,

nationwide application of 18 U.S.C. § 924(c), 8 U.S.C.

§ 1101(a)(43)(B), and U.S. Sentencing Guideline § 2L1.2.*

* Although it is not necessary for the Court to reach the issue to

resolve the case of either petitioner, Amici Curiae note that the

pertinent federal statutes should not be construed to reach every state

drug offense that could be punished as a felony under federal law.

As explained in other briefs before the Court, the Immigration and

Nationality Act’s term “aggravated felony” encompasses only state

drug offenses that (1) are felonies and (2) include an element of

trafficking. Amici Curiae fully support that interpretation and

believe that the rule of lenity requires its adoption.

5

ARGUMENT

ANY AMBIGUITY IN THE STATUTE MUST BE

RESOLVED IN THE PETITIONER’S FAVOR

USING THE RULE OF LENITY

Section 924(c) of Title 18 of the United States Code

defines “drug trafficking crime” as “any felony punishable

under the Controlled Substances Act... .” 18 U.S.C.

§ 924(c)(2). Petitioner Toledo-Flores persuasively argues

that the plain language of this definition does not reach a

state felony conviction for the simple possession of drugs.

Should the Court find the statute ambiguous, however, the

rule of lenity requires that it be construed in Petitioner

- Toledo-Flores’s favor. Lenity will defeat the inconsistent

interpretations that have been urged by the Government

and adopted by the lower courts, and it will ensure

uniform, nationwide application of the statute in all

contexts.

A. Section 924(c)’s term “drug trafficking crime”

has a long and troublesome history of inconsis-

tent interpretation.

Since 1990, interpretation of the phrase “drug

trafficking cnme” has vacillated between two inconsistent

readings. Tue first reading — the Federal Felony

Approach’ — interprets the term in its native context of

> Courts have sometimes called this the “Hypothetical Federal

(continued...)

6

Title 18 and section 924(c). Under this approach, a

conviction for simple possession of drugs will qualify as

an aggravated felony only if it is punishable as a felony

under the designated federal laws. The second reading —

the State Felony Approach — expands Title 18’s “drug

trafficking crime” by cross-referencing a definition of

“felony” found in Title 21. See 21 U.S.C. § 802(13).

Under that approach, a conviction for simple possession

_ will be a drug trafficking crime (and an aggravated felony)

whenever the offense involves a federally prohibited drug

and is classified as a felony by the state.

The vacillation between these approaches was in large

part fostered by the Government, which endorsed the

Federal Felony Approach in the immigration context while

urging the State Felony Approach in the criminal

sentencing context. Eventually, the case law splintered,

with some circuits interpreting the statute differently

depending on the context in which it arose. Such

inconsistency has led to disparate treatment for thousands

of persons facing deportation or imprisonment. It could

lead even to disparate treatment of the same person,

depending on the stage of litigation she faces. And while

the courts have more recently tried to interpret the statute

based on its text, serious problems of inconsistency

remain.

> (...continued)

Felony Approach,” see, e.g., United States v. Palacios-Suarez, 418

F.3d 692, 695 (6th Cir. 2005), but the shortened label will be used

here.

7

1, The Government-fostered interpretive split.

In a series of immigration cases from 1990 to 1995, the

Board of Immigration Appeals adopted the Federal Felony

Approach. Matter of Barrett, 20 I. & N. Dec. 171 (BIA

1990); Matter of Davis, 20 1. & N. Dec. 536 (BIA 1992);

In re L- G-, 21 1. & N. Dec. 89 (BIA 1995).° The United

States Attorney General had the authority to sua sponte

overrule Jn re L—- G— and to adopt the State Felony

Approach. 8 C.F.R. § 3.1(h) (1995); see, e.g., Matter of

Hernandez-Casillas, 201. & N. Dec. 262, 288 (A.G. 1991)

(reversing BIA and issuing binding precedent where “no

plausible understanding” of the law would support BIA’s

decision). The Attorney General could also have appealed

- the decision to federal court. See Aguirre v. INS, 79 F.3d

315,317 (2d Cir. 1996). The Attorney General did neither.

See id. Instead, the Attorney General let stand the Federal

Felony Approach, and, based on that interpretation, the

Department of Justice processed thousands of aliens

nationwide.’

* This interpretation took a fully nationwide effect when the

Second Circuit, in light of Jn re L- G—, changed course and adopted

the Federal Felony Approach in the immigration context. Aguirre v.

INS, 79 F.3d 315, 318-19 (2d Cir. 1996).

” Almost 80,000 people were deported in fiscal year 2003 on

crime-related grounds. Office of Immigration Statistics, U.S. Dep’t

of Homeland Security, 2003 Yearbook of Immigration Statistics 165,

Table 43, available at http://uscis.gov/graphics/shared/aboutus/stat

istics/2003 Y earbook pdf.

Federal prosecutors nevertheless argued for the State

Felony Approach in criminal cases turning upon precisely

the same question of statutory interpretation resolved in the

immigration context.’ This strategy succeeded in the First

Circuit, the first court of appeals to consider the issue after

the BIA had adopted the Federal Felony Approach. See

United States v. Restrepo-Aguilar, 74 F.3d 361, 363 (ist

Cir. 1996). The court addressed § 924(c)(2) in the context

of the “aggravated felony” definition of 8 U.S.C.

§ 1101(a)(43)(B) and U.S. Sentencing Guideline § 2L1.2.

The court adopted the State Felony Approach. Jd. at 364.

Referring to dicta from prior decisions, it held, “We adhere

to this established interpretation and reject the defendant’s

contrary construction.” Jd. at 364.° The court did not

address the rule of lenity, or the Attorney General’s

decision to let stand Jn re L- G-.

After becoming an “established interpretation,” the

First Circuit’s dicta snowballed. The next four circuits to

rule on the issue in the § 2L1.2 context followed the First

Circuit. United States v. Cabrera-Sosa, 81 F.3d 998, 1000

(10th Cir. 1996); United States v. Briones-Mata, 116 F.3d

308, 309 (8th Cir. 1997); United States v. Hinojosa-Lopez,

130 F.3d 691, 694 (Sth Cir. 1997); United States v. Simon,

* The interpretation of § 924(c)(2) must be the same regardless

whether the question arises in the immigration or criminal context.

Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004); see generally United

States v. Thompson/Center Arms Co., 504 U.S. 505, 517-18 (1992).

° See In re L- G-, 21 L. & N. Dec. at 97 n.5 (explaining the First

Circuit’s dicta).

9

168 F.3d 1271, 1272 (11th Cir. 1999). None of those

circuits offered an independent or close analysis of the text

interpreted; none addressed the Attorney General’s

decision to let stand the Federal Felony Approach in

immigration cases; and none mentioned the rule of lenity.

The inconsistency between the immigration cases and the

criminal sentencing cases deepened in United States v.

Pornes-Garcia, where the Second Circuit, which had

adopted the Federal Felony Approach in the immigration

context, decided to follow the State Felony Approach in

the criminal context, despite the intracircuit incongruity it

would create. 171 F.3d 142, 147 (2d Cir. 1999). And each

year, the inconsistency affected more defendants, as the

number of individuals sentenced under § 2L1.2 grew

exponentially.’

2. The consequences of the entrenched immi-

gration/criminal split.

As aresult of the disparate interpretations endorsed by

the Government, a consequential split developed. In the

immigration context, the Federal Felony Approach was

applied nationwide. But in the criminal context, the State

Felony Approach had been adopted by five circuits. Thus,

‘° Compare U.S. Sentencing Comm’n, 1992 Annual Report,

Table 24 (711 defendants sentenced under § 2L1.2), with U.S.

Sentencing Comm’n, 1999 Sourcebook of Federal Sentencing

Statistics, Table 17 (5,658 such defendants). By recent figures, over

one-fifth of all federal prison sentences are imposed on defendants

convicted of immigration offenses. U.S. Sentencing Comm'n, 2003

Sourcebook of Federal Sentencing Statistics, Table 3, Figure A.

10

for example, an alien with a state felony conviction for

simple possession could be advised in immigration

proceedings culminating in deportation that her prior

conviction was not an aggravated felony.'' But if that

same alien returned to the United States and was, like

Petitioner Toledo-Flores, prosecuted for illegal reentry,

then she was likely to receive a longer sentence based on

the conclusion that the very same simple possession

conviction was an aggravated felony. That is, this

individual would likely be subjected to a much longer

sentence at the behest of a Department of Justice official

whose position directly conflicted with that of the last

Department official to advise and act upon her.

'' Although an aggravated felony is often a basis for deportation,

there are several specific situations in which a deported alien could

have been advised by an immigration judge or official that his or her

prior simple possession conviction was not an aggravated felony.

For example, this could occur when: (1) the immigration judge or

official decided that a prior simple poSsession conviction was not an

aggravated felony and thus not a bar to applying for a discretionary

waiver to deportation, yet the alien was ultimately denied the waiver,

see 8 U.S.C. § 1229b(a); (2) the immigration judge or official

decided a prior simple possession conviction was not an aggravated

felony and thus not a bar to applying for asylum, yet the alien was

ultimately denied asylum, see id. § 1158(a); or (3) the immigration

judge or official decided that a prior simple possession conviction

was not an aggravated felony and thus did not trigger automatic pre-

hearing detention on that basis, yet the alien was ultimately deported,

see id. § 1226(c)(1)(B).

11

3. The trend towards textualism and leniency.

Beginning with Judge Canby’s dissent in United States

v. Ibarra-Galindo, 206 F.3d 1337, 1343 (9th Cir. 2000),

federal courts have performed a closer reading of the

statutory text when interpreting § 924(c)(2). Most of these

courts have either rejected the State Felony Approach, see

Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002); Cazarez-

Gutierrez v. Ashcroft, 382 F.3d 905 (9th Cir. 2004); United

States v. Palacios-Suarez, 418 F.3d 692 (6th Cir. 2005);

Gonzales-Gomez v. Achim, 441 F.3d 532 (7th Cir. 2006);

or, at times constrained by precedent, they have limited its

application, see United States v. Robles-Rodriguez, 281

F.3d 900 (9th Cir. 2002); Liao v. Rabbett, 398 F.3d 389

(6th Cir. 2005); United States v. Amaya-Portillo, 423 F.3d

427, 435-36 (4th Cir. 2005). But see United States v.

Wilson, 316 F.3d 506 (4th Cir. 2003) (adopting State

Felony Approach); Lopez v. Gonzales, 417 F.3d 934 (8th

Cir. 2005) (applying its previously-adopted State Felony

Approach in immigration context), cert. granted, 126 S.

Ct. 1651 (2006). In a case arising in the criminal context,

Judge Nelson opined that the rule of lenity should

decisively resolve the question in favor of the defendant.

Palacios-Suarez, 418 F.3d at 702 (Nelson, J., concurring).

B. The rule of lenity and its underlying principles.

The rule of lenity provides that “where there is

ambiguity in a criminal statute, doubts are resolved in

favor of the defendant.” United States v. Bass, 404 U.S.

336, 348 (1971). Or, in the context of determining the

12

proper punishment under a statute, “[wJhere it is doubtful

whether the text includes the penalty, the penalty ought not

- be imposed.” United States v. R.L.C., 503 U.S. 291, 309

(1992) (Scalia, J., concurring); see also Commissioner v.

Acker, 361 U.S. 87, 91 (1959) (stating that “one is not to

be subject to a penalty unless the words of the statute

plainly impose it”) (internal quotations omitted).

Lenity has profound implications for the interpretive

process because it derives from the principle of legality

itself — nulla poena sine lege (“there can be no

punishment without law”). See generally Herbert L.

Packer, The Limits of the Criminal Sanction 93 (1968)

(describing the rule of lenity and the vagueness doctrine as

“devices worked out by the courts to keep the principle of -

legality in good repair”); Connally v. General Constr. Co.,

269 U.S. 385, 391 (1926) (stating that enforcement of

overly vague criminal statutes “violates the first essential

of due process of law”). As explained below, lenity’s

underlying principles necessarily inform the interpretation

of penal statutes, and they promote consistency and

fairness in the application of the criminal code.

1. The roots of the venerable rule.

The rule of lenity has been called “venerable” because

of its age and the respect it commands. See R.L.C., 503

U.S. at 305; see generally Rogers v. Tennessee, 532 U.S.

451, 467-68 (2001) (Scalia, J., dissenting) (noting that “the

maxim nulla poena sine lege . . . ‘dates from the ancient

Greeks’ and has been described as one of the most ‘widely

13

held value-judgments in the entire history of human

thought’”) (brackets omitted). Blackstone commented on

the vigorous role it played in limiting criminal punishment

in sixteenth- and seventeenth-century English courts.

William Blackstone, Commentaries on the Laws of

England 88. He described the rule as one of strict

construction: “Penal statutes must be construed strictly.”

Id.

The rule of strict construction emerged in American

courts in United States v. Wiltberger, 18 U.S. 76 (1820),

which bears some resemblance to the instant case because

in both cases the government sought a broad interpretation

of the term in question based on a cross-reference to a

distinct statutory provision. Chief Justice John Marshall

stated that it was an “extreme improbability” that Congress

did not intend for the meaning based on the cross-

reference. Jd. at 105. Yet, writing for the Court, he

rejected the government’s argument. The Chief Justice

instead adhered to the rule of strict construction,

explaining that the rule’s underlying policies required a

narrow, consistent interpretive approach to penal statutes:

The rule that penal laws are to be construed

strictly, is perhaps not much less old than

construction itself. It is founded on the

tenderness of the law for the rights of

individuals; and on the plain principle that

the power of punishment is vested in the

legislative, not in the judicial department. It

14

is the legislature, not the Court, which is to

define a crime, and ordain its punishment.

Id. at 95. The Chief Justice acknowledged the courts’

natural temptation to apply a statute in a way believed best

to achieve the statute’s policy, despite textual limitations.

But yielding to such temptation did not provide persuasive

authority. To the contrary, if such an interpretive

maneuver had been executed previously, it must have been

“in cases of considerable irritation, which it would be

unsafe to consider as precedents forming a general rule for

other cases.” Id. at 96. |

In McBoyle v. United States, 283 U.S. 25 (1931),

Justice Oliver Wendell Holmes emphasized the fair-notice

rationale for the rule. Such notice must be provided even

if defendants did not actually read the United States Code:

Although it is not likely that a criminal will

carefully consider the text of the law before

he murders or steals, it is reasonable that a

fair warning should be given to the world in

language that the common world will

understand, of what the law intends to do if

a certain line is passed. To make the

warning fair, so far as possible the line

should be clear.

Id. at 27. Justice John Marshall Harlan II reiterated this

point thirty-five years later. “The policy thus expressed

[by the rule of lenity] is based primarily on a notion of fair

15

play: in a civilized state the least that can be expected of

government is that it express its rules in language all can

reasonably be expected to understand.” United States v.

Standard Oil Co., 384 U.S. 224, 236 (1966) (Harlan, J.,

dissenting).

2. The rule’s purposes in modern criminal

jurisprudence. i

Modern cases recognize that the rule of strict

construction — now known as the rule of lenity — has

three fundamental purposes: “to promote fair notice to

those subject to the criminal laws, to minimize the risk of

selective or arbitrary enforcement, and to maintain the

proper balance between Congress, prosecutors, and

courts.” United States v. Kozminski, 487 U.S. 931, 952

(1988). Each of these purposes is essential to the proper

functioning of our criminal justice system.

The first purpose is to ensure fair notice. Warning

must be given “‘to the world in language that the common

world will understand.”” United States v. Bass, 404 U.S.

336, 348 (1971) (quoting McBoyle, 283 U.S. at 27). And

although it is typicaily fictitious to assume that wrongdoers

read statutes, fair notice is nevertheless “required in any

system of law.” See United States v. R.L.C., 503 U.S.

291, 309 (1992) (Scalia, J., concurring). Indeed, as

explained above, fair notice is closely tied to the principle

of legality itself.

16

Two ramifications stem from this need for fair notice.

First, a premium is put on the commonsense meaning of a

statute. See, e.g., McBoyle, 283 U.S. at 27. Itis inherently

unfair to impose on “the common world” a statutory

interpretation that is overly obscure or clever. Second, a

_ premium is put on the text itself. Judges should not rely on

extratextual considerations to construe an unclear criminal

statute against a defendant. “Because construction of a

criminal statute must be guided by the need for fair

warning, it is rare that legislative history or statutory

policies will support a construction of a statute broader

than that clearly warranted by the text.” Crandon v. United

States, 494 U.S. 152, 160 (1990). The rule of lenity

“preclude[s] our resolution of [an] ambiguity against

petitioner on the basis of general declarations of policy in

the statute and legislative history.” Hughey v. United

States, 495 U.S. 411, 422 (1990).”

Lenity’s second purpose is to preserve the separation of

powers. See Bass, 404 U.S. at 348. “[B]ecause of the

seriousness of criminal penalties, and because criminal

punishment usually represents the moral condemnation of

the community, legislatures and not courts should define

criminal activity.” Jd. “This policy embodies the

'? There has been debate within the Court as to whether the rule

of lenity should play its decisive role before or after recourse to

legislative history. See R.L.C., 503 U.S. at 306 n.6 (plurality

opinion). Amici Curiae believe that this question regarding the

rule’s precise relationship to legislative history need not be resolved

here because, as argued in the principal brief, legislative history

strongly supports the less harsh interpretation.

17

instinctive distaste against men languishing in prison

unless the lawmaker has clearly said they should.” /d.

(citation omitted). “It is beyond our province to rescue

Congress from its drafting errors, and to provide for what

we might think, perhaps along with some Members of

Congress, is the preferred result. ... This admonition takes

on a particular importance when the Court construes

criminal laws.” United States v. Granderson, 511 U.S. 39,

68-69 (1994) (Kennedy, J., concurring) (internal citations

omitted). Lenity prevents the imposition of punishments

that are not clearly authorized by Congress, the only

branch of government competent to establish criminal

penalties.

Lenity’s third purpose is to avoid arbitrariness and

inconsistency in the enforcement of criminal statutes. See

Kozminski, 487 U.S. at 952. The rule of lenity responds to

this need by “fostering uniformity in the interpretation of

criminal statutes.” Bryan v. United States, 524 U.S. 184,

205 (1998) (Scalia, J., dissenting). It fosters uniformity

because, in each case of criminal statutory interpretation,

it requires courts to examine the text for ambiguity and to

resolve any such ambiguity in the same direction. See

generally id; Crandon, 494 U.S. at 175-78 (Scalia, J.

concurring); William N. Eskridge, Jr., Formalism and

Statutory Interpretation, 66 U. Chi. L. Rev. 671, 678-79

(1999) (suggesting that adherence to the rule of lenity

could “generate greater objectivity and predictability in

statutory interpretation”). Faithfully applied, the rule of

lenity prevents the sovereign from punishing individuals

18

based on an innovative or less-than-unambiguous reading

of the criminal code.

C. By its own actions, the Government has effect-

ively conceded that its current interpretation is

not clear enough to survive application of the

rule of lenity.

As explained at the outset, Amici Curiae do not believe

that the definition of “drug trafficking crime” in 18 U.S.C.

§ 924(c)(2) is ambiguous. The definition is clouded only

if one chooses to cross-reference the definition of “felony”

found in Title 21. That cross-reference is improper.

Gerbier v. Holmes, 280 F.3d 297, 309-10 (3d Cir. 2002);

United States v. Palacios-Suarez, 418 F.3d 692, 698 (6th

Cir. 2005); Gonzales-Gomez v. Achim, 441 F.3d 532, 534

(7th Cir. 2006). Even if it were permitted, however, any

ambiguity would have to be resolved under the rule of

lenity by adopting the reasonable interpretation most

favorable to Petitioner Toledo-Flores. This favorable

interpretation is particularly appropriate here, as it avoids

the unfairness occasioned by the Government’s

inconsistent applications of the statute.

In past cases, this Court has noted government

equivocation when resorting to the rule of lenity. See, e.g.,

Simpson v. United States, 435 U.S. 6, 14-16 (1978); Prince

v. United States, 352 U.S. 322, 327 n.7, 329 (1957). In

Simpson, the Court found it significant that the Department

of Justice had originally directed its attorneys to apply a

more lenient interpretation, which the government then

19

argued against in the case before the Court. 435 U.S.

at 16. Similarly in Prince, the Court found it significant .

that in a previous case the government had conceded that

the harsh interpretation it presently sought was erroneous.

352 U.S. at 327 n.7.

This case presents a similar scenario. Contrary to its

position before this Court, the Government previously has

accepted the Federal Felony Approach as a reasonable

interpretation. The Attorney General declined to reverse

or appeal the BIA’s decision in Jn re L— G-, thereby

permitting immigration cases nationwide to be adjudicated

based on the Federal Felony Approach. Federal

prosecutors nevertheless sought application of the State

Felony Approach at criminal sentencings. Such

inconsistent actions were contrary to the rule that the same

statutory provision must be given the same meaning in

immigration and criminal contexts. Leocal v. Ashcroft,

543 U.S. 1, 11 0.8 (2004); see generally United States v.

Thompson/Center Arms Co., 504 U.S. 505, 517-18 (1992).

But they were also a tacit acknowledgment that the BIA’s

interpretation was reasonable — and thus that there was at

least enough ambiguity for the rule of lenity to resolve the

question in a defendant’s favor."

The Government’s inconsistent interpretations also

strengthen the practical argument for applying the rule.

'? Notably, a rule of lenity exists in immigrat’on law that is

similar to the criminal rule. See, e.g., INS v. Cardoza-Fonseca, 480

U.S. 421, 449 (1987).

20

Typically, the concern for fair notice has weight only in the

abstract because it rests on the necessary fiction that

offenders read statutes. See McBoyle v. United States, 283

U.S. 25, 27 (1931); United States v. R.L.C., 503 U.S.

291, 309 (1992) (Scalia, J., concurring). But in this case,

the fair-notice problem is concrete. Many defendants

similarly situated to Petitioner Toledo-Flores received

actual notice from the Department of Justice in the course

of deportation proceedings that their prior simple

possession convictions were not aggravated felonies. Yet

when they reenter the United States, these defendants face

harsher penalties based on the opposite conclusion.

Accordingly, the fair-notice concern must weigh

especially heavily in favor of Petitioner Toledo-Flores.

While it is fundamentally unfair to punish an individual in

a way that a statute does not clearly provide, it is even

worse to impose that punishment when the Executive

deliberately has given actual notice of, and has adjudicated

thousands of cases under, a contrary interpretation of the

statute. See generally United States v. Pennsylvania Indus.

Chem. Corp., 411 U.S. 655, 674 (1973) (“Thus, to the

extent that the [administrative] regulations [stating a

contrary interpretation of the law] deprived PICCO of fair

warning as to what conduct the Government intended to

make criminal, we think there can be no doubt that

traditional notions of fairness inherent in our system of

criminal justice prevent the Government from proceeding

with the prosecution.”); Raley v. Ohio, 360 U.S. 423, 438

(1959) (reaching a similar conclusion).

21

D. The Government’s interpretation subverts the

rule of lenity and its underlying principles.

1. The Court should avoid an interpretation of

a criminal statute harsher than that grasped

by commonsense. |

Because it is important for criminal statutes to speak in

a language that the “common world” understands,

Petitioner Toledo-Flores’s argument concerning the

commonsense meaning of “drug trafficking crime” carries

special weight. Under the Government’s view, a drug

trafficking crime is committed by a person who possesses

even the smallest amount of a drug whenever the State

labels the offense a felony. This proposition is

counterintuitive. The commonsense meaning of “traffic”

is not simple possession but rather engaging in an activity

related to commerce. See, e.g., Hallet v. Jenks, 7 U.S. 210,

219 (1805) (Marshall, C.J.) (statutory prohibition on

trafficking with the French implied intentional commerce);

Webster’s Third New International Dictionary 2422 (1986)

(defining “traffic” as “commercial activity usu. involving

import and export trade”); U.S.S.G. § 2L1.2, comment.

(n.1(B)(iv) (similar definition for “drug trafficking

offense”)); see also United States v. Ibarra-Galindo, 206

F.3d 1337, 1341 (9th Cir. 2000) (Canby, J., dissenting)

(“[C]ommon sense rebels at the thought of classifying bare

possession of a tiny amount of narcotic as a drug

traificking crime... .”). Because the common world

cannot be expected to perceive the government’s

22

interpretation of “traffic,” the rule of lenity properly

requires the Court to avoid it."

2. The Court should avoid relying on general |

policy statements to support an interpre-

tation that is harsher than clearly required

by the statute.

Except in rare cases, it is improper to construe a

criminal statute against a defendant on the basis of general

policy statements. See Crandon v. United States, 494 U.S.

152, 160 (1990); Hughey v. United States, 495 U.S. 411,

422 (1990). But courts have relied on such general policy

statements when construing § 924(c)(2) against defendants

like Petitioner Toledo-Flores. Two instances of such

reliance bear comment.

First, courts have relied on a belief that the State

Felony Approach comports with a “foundational premise”

of the Sentencing Guidelines that, in the calculation of a

defendant’s criminal history category, “a defendant’s

history of criminal activity in violation of state law is to be

treated on a par with his history of crimes committed in

violation of federal law.” United States v. Restrepo-

Aguilar, 74 F.3d 361, 365 (lst Cir. 1996) (emphasis

omitted); see also Ibarra-Galindo, 206 F.3d at 1340. But

'* Furthermore, as urged by in other briefs before the Court, the

Court should interpret “trafficking” within the phrase “illicit

trafficking in a controlled substance,” 8 U.S.C. § 1101(a)(43)(B), to

mean precisely what it commonly means.

23

neither the INA’s definition of “aggravated felony” nor

§ 924(c)’s definition of “drug trafficking crime” were

written with any relation to the general policy for

calculating criminal history under Chapter Four of the

Sentencing Guidelines. Indeed, the application of these

definitions in Petitioner Toledo-Flores’s case involved a

Chapter Two enhancement. See U.S.S.G.

§ 2L1.2(b)(1)(C). Lenity prohibits reliance on that general

policy to resolve this specific question of statutory

construction.

Second, the Second Circuit has suggested that the

relatively harsh State Felony Approach is appropriate

because “[iJn recent years, Congress has substantially

increased maximum sentences authorized for the offense

of illegal reentry following felony convictions.” United

States v. Pornes-Garcia, 171 F.3d 142, 148 (2d Cir. 1999).

But, as this Court stated in an analogous situation, it is not

possible to “divine from the legislators’ many ‘get tough

on drug offenders’ statements any reliable guidance to

particular provisions.” United States v. Granderson, 511

U.S. 39, 49 (1994). Congress’s pursuance of a “get tough

on illegal reentry” policy from 1996 to 1999 cannot resolve

the specific question of statutory interpretation presented

by 18 U.S.C. § 924(c)(2). To the contrary, if the punitive

purpose of a penal statute were grounds for a broad

construction, then the rule of lenity would be turned on its

head.

24

E. The rule of lenity should have restrained courts

from adopting the State Felony Approach.

The rule of lenity is fundamentally a rule of judicial

restraint. The purpose of any penal statute is to punish

wrongdoers. And so judges aiming to advance that

purpose will be tempted to stretch the letter of criminal

statutes. United States v. Wiltberger, 18 U.S. 76, 96

(1820); Bifulco v. United States, 447 U.S. 381, 401-02

(1980) (Burger, C.J., concurring) (indicating that the rule

of lenity responds to “[our] temptation to exceed our

limited judicial role and do what we regard as the more

sensible thing”); Moskal v. United States, 498 U.S. 103,

132 (1990) (Scalia, J., dissenting) (“The temptation to

stretch the law to fit the evil is an ancient one, and it must

be resisted.”). But the rule of lenity counteracts that

temptation by requiring courts to hew to the text, eschew

arguments based on general policies, place a premium on

commonsense, and, of course, resolve any ambiguity in the

defendant’s favor. See id.

In the history of § 924(c)(2)’s_ inconsistent

interpretation, consideration of the rule of lenity and its

underlying principles is largely absent. Six circuit court

decisions between 1996 and 1999 established the State

Felony Approach after the BIA had adopted the Federal

Felony Approach. See supra at pages 8 to 9. None

addressed the rule of lenity. Cf Bifulco, 447 US.

at 400 n.17 (noting that failure to address rule of lenity

may render the lower courts’ relatively harsh interpretation

questionable). None fully addressed the BIA’s textual

25

interpretation, and most did not even mention the BIA’s

holding or any textual argument contrary to the State

Felony Approach. None noted that the Attorney General

had acceded to the Federal Felony Approach. Even if the

statute was ambiguous, the vexatious splits between

circuits, within circuits, and between criminal and

immigration courts could have been avoided by adherence

to the rule of lenity.

CONCLUSION

If the statutory meaning is unclear, the rule of lenity

mandates the adoption of the most lenient reasonable

interpretation of the statute. At a minimum, it requires the

Court to reject the State Felony Approach. It is

respectfully requested that the Court reverse the judgment

of the United States Court of Appeals for the Fifth Circuit.

26

Respectfully submitted,

NATIONAL ASSOCIATION _—- Henry J. Bemporad

OF FEDERAL DEFENDERS Deputy Federal Public Defender

Frances H. Pratt, Co-Chair, Counsel of Record

Amicus Committee Office of the Federal Public

Defender, W.D. Texas

FAMILIES AGAINST 727 East Durango Blvd, B-207

MANDATORY MINIMUMS San Antonio, TX 78206-1278 |

Mary Price, General Counsel Telephone: (210) 472-6700

Michael C. Holley _

Research and Writing Attorney

Office of the Federal Public

Defender, M.D. Tennessee

June 2006