These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
Viewing entries tagged
conspiracy
The Eighth Circuit has determined that the object crime of a conspiracy is an element of the offense of the Iowa conspiracy statute. Therefore, conspiracy to commit willful injury causing bodily injury is a crime of violence.
The full text of United States v. McConnell can be found here: http://media.ca8.uscourts.gov/opndir/23/04/213759P.pdf
The Board of Immigration Appeals (BIA) has determined that the “offense clause” of the federal conspiracy statute (which criminalizes conspiracy to commit an offense against the United States) is divisible with respect to the object of the conspiracy. The BIA then concluded that conspiracy to sell counterfeited currency is a crime involving moral turpitude.
The full text of Matter of Al Sabsabi can be found here:
The Third Circuit has determined a conviction under 18 U.S.C. § 1959(a)(6) (conspiracy to commit assault with a dangerous weapon) is not a crime of violence aggravated felony, not a conspiracy-related aggravated felony (which requires an overt act, an element not required by the federal conspiracy statute), and not a racketeering offense. The court also remanded the petitioner’s claim for protection under the Convention Against Torture, which was premised on the harm he would suffer as a former gang member if he were to be deported to El Salvador. The court emphasized that the Salvadoran government may acquiesce to torture by gang members, even if it is actively opposing gang members, if it is unable to prevent the harm.
The full text of Quinteros v. Attorney General can be found here:
https://www2.ca3.uscourts.gov/opinarch/183750p.pdf
The Second Circuit has determined that a conviction for second-degree conspiracy to commit second-degree murder in New York constitutes an aggravated felony.
The Court noted that NYPL § 105.15 is not a categorical match to the federal definition of conspiracy, because under New York law, a person is guilty of conspiracy in the second degree when, with intent that conduct constituting a Class A felony be performed, he agrees with one or more persons to engage in or cause the performance of such conduct. The INA’s definition of conspiracy, however, requires that the conspiracy be to commit an “aggravated felony.” Because not all Class A felonies in New York are aggravated felonies, NYPL § 105.15 is not categorically an aggravated felony under the INA.
Nevertheless, the court went on to determine whether the “object crime” charged is an aggravated felony. "[W]here the judgment reflects only the statute for the inchoate offense, the agency may turn to the record of conviction to determine the object offense.” The court then concluded that New York second-degree murder is a categorical match to the federal definition of murder.
The full text of Santana-Felix v. Barr can be found here:
The Fourth Circuit, applying Matter of Beltran, has found that a New Jersey conviction for conspiracy is a controlled substance violation. The Court rejected that argument that a conspiracy charge must be analyzed under the categorical approach in the same way as any other conviction, because inchoate crimes suggest the commission of another offense. Instead, the Immigration Court may consult the record of conviction to determine what was the object of the conspiracy. In the instant case, the indictment indicated that the petitioner was conviction of conspiracy to distribute marijuana. As such, his conviction qualifies as a controlled substance offense.
The full text of Shaw v. Sessions can be found here:
http://www.ca4.uscourts.gov/opinions/171213.P.pdf
The court held that the definition of conspiracy within the Washington Criminal Code allows for a conviction when the other party to the conspiracy is a law enforcement officer or other government agent who did not intend that a crime be committed – applies to a conviction for conspiracy to distribute methamphetamine. Thus, the statute criminalizes conduct not criminalized by the federal conspiracy statute, and as such, is overbroad as compared to generic definition of a controlled substance offense.
The decision in US v. Brown can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/01/16/16-30218.pdf
The Ninth Circuit has determined that California's conspiracy statute (penal code section 182(a)(1)) is broader than the generic definition of a controlled substance violation because it criminalizes conspiracy to commit any crime, including ones unrelated to controlled substances. However, because California law requires jurors to agree unanimously on the object of the conspiracy, the statute is divisible. As such, the Court proceeded to the modified categorical approach, and determined that the petitioner was convicted of conspiracy to transport a controlled substance (health & safety code section 11352). This section itself is also divisible, with respect to the identity of the controlled substance. Because the criminal complaint only identified the controlled substance in the list of overt acts, the Court concluded that it was inconclusive as to whether the petitioner's conviction necessarily rested upon a controlled substance in the federal drug schedules. The Court further concluded that the petitioner could not demonstrate her eligibility for relief based on this inconclusive record of conviction, as she bore the burden of proving that she was not convicted of a controlled substance offense. The Court found that this conclusion was not inconsistent with the Supreme Court's decision in Moncrieffe v. Holder because Moncrieffe addressed the government's burden to prove the deportability of a lawful permanent resident, not a non-citizen's burden to prove eligibility for relief from removal.
This decision now deepens a circuit split with the First Circuit with respect to inconclusive records of conviction. One judge on the Ninth Circuit panel dissented with respect to the conclusion regarding the burden of proof and an inconclusive record of conviction.
Given the multiple past cases from the Ninth Circuit on this issue (with different outcomes each time), I expect this will not be the last we hear of inconclusive records from the court.
The full text of Marinelarena v. Sessions can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/23/14-72003.pdf
