When Is A Felony Not A Felony?:
A New Approach to Challenging Recidivist-Based
Charges and Sentencing Enhancements
Alan DuBois
Senior Appellate Attorney
Federal Public Defender-Eastern District of North Carolina
A. Many offenses and sentencing enhancements require the existence of a prior
felony or conviction of a specific length:
1. Unlawful Possession of a firearm by a felon– 18 U.S.C. § 922(g)– requires
felony conviction.
2. Armed Career Criminal Enhancement– 18 U.S.C § 924(e)– requires a serious
drug offense with a stat max of at least 10 years or a violent felony.
3. Career Offender– U.S.S.C. §4B1.1– requires a crime of violence or controlled
substance offense punishable by a term exceeding one year.
4. Illegal Re-entry– U.S.S.C. §2L1.2– premises different punishments for re-entry
following conviction of felony, aggravated felony, etc.
This paper discusses ways to attack these charges and enhancements by showing
that the defendant’s predicate conviction does not qualify as a “felony” because, as to
this particular defendant, the conviction was not punishable by more than a year (or 10
years in the case of an ACCA serious drug offense).
B. What is a felony?
1. Ignore the Label: In determining whether a particular state conviction
qualifies as a predicate felony, the label the state places on the offense is irrelevant.
Some convictions a state calls “felonies” are not predicates, while other convictions a
state calls “misdemeanors” are predicates.
2. Look to the Stat Max: Most federal statutes define felony in terms of the
maximum punishment applicable to the offense. Generally, a felony is any crime,
regardless of how it is labeled, that carries a maximum sentence of more than twelve
months in prison.
3. Watch out for two year Misdemeanors: Several states, including
Massachusetts and North Carolina, have or had “misdemeanor offenses” that are
punishable by up to two years in prison; thus, despite the state label, they qualify as
“felonies” for federal sentencing purposes. It is entirely possible for a defendant to
qualify for the 15-year ACCA mandatory based on three state “misdemeanor”
convictions.
C. How do you determine the stat max?
This is where things get tricky. Historically, things were relatively
straightforward. There were fewer types of offenses and most had clearly defined
maximum punishments that were explicitly set out in the state’s criminal code.
However, with the rise of sentencing guideline systems and the increased use of
recidivist-based, career offender, habitual felon-type sentencing enhancements, things
got more complicated.
With guideline systems, a range of punishments is applicable to a particular
offense and that range can go up or down based on the presence of aggravating or
mitigating factors and the specifics of the defendant’s criminal history. Thus, the
maximum punishment applicable to a particular offense and defendant varies case by
case.
So for example, under the North Carolina sentencing guideline system,
possession with intent to distribute cocaine is a Class H felony. According to the North
Carolina sentencing chart, depending on the defendant’s past criminal record, the
maximum possible punishment for this offense could be as low as 10 months for a first
offender to as much as 30 months for the defendant with the worst possible criminal
record.
What, then, is the stat max for possession with intent to distribute cocaine in
North Carolina? To answer this question do we look to the maximum possible sentence
the particular defendant could receive? Or do we look to the maximum possible
sentence a hypothetical defendant with the worst possible record could receive?
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This is a question with huge consequences. Under the first approach, a first
offender convicted of this PWID offense could face no more than 10 months in prison.
So if this is deemed the stat max, this conviction could not later be used as a predicate
felony for § 992(g), etc, because the offense was not punishable by more than 12 months.
However, if the stat max is determined based on the maximum sentence any
defendant could receive (30 months), then a North Carolina PWID conviction would
qualify as a felony for every defendant, including our first offender even though he
personally could not have received a sentence of more than 10 months for this offense.
Similar questions arise when dealing with simple recidivism enhancements.
Suppose a state law imposes a 5 year maximum for a particular drug offense but a 10
year maximum if the conviction is for a second offense. Is the stat max for this offense 5
or 10 years? In other words, should any recidivism based enhancement be taken into
account in determining the stat max or do we only look at the maximum punishment
for the offense itself? Does the answer to this question change based on whether this is
the particular defendant’s first or second offense? Does it matter if the defendant was
technically eligible for the 10-year sentence but the state chose not to pursue the
enhancement?
Over the past several years, the circuit courts and, increasingly, the Supreme
Court have grappled with the surprisingly knotty issues regarding how to determine
what the statutory maximum is for a specific offense.
These cases provide the blueprint for attacking recidivist-based charges and
sentencing enhancements.
D. The Bad Law: The Stat Max Should be Determined Based on the Sentence
the Worst Possible Defendant Could Receive.
Several courts have held that an offense should be deemed a felony if any
defendant could receive a sentence of more than 12 months upon conviction. For
instance, in United States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005), the Fourth Circuit
held that “to determine whether a conviction is a crime punishable by a prison term
exceeding one year," courts should "consider the maximum aggravated sentence that
could be imposed for that crime upon a defendant with the worst possible criminal
history.” Harp reasoned that syntax dictates looking to the maximum aggravated
sentence because “‘punishable’ is an adjective used to describe ‘crime’ [and] [a]s such, it
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is more closely linked to the conduct, the crime, than it is to the individual convicted of
the conduct.” Id. (quoting United States v. Jones, 195 F.3d 205, 206 (4th Cir. 1999)).
This view was also adopted by the Tenth Circuit in United States v. Hill, 539
F.3d 1213, 1218 (10th Cir. 2008): “In drafting § 922(g), Congress focused on the crime,
not the individual defendant. The statute criminalizes the possession of firearms for
‘any person who has been convicted in any court of a crime punishable by
imprisonment for a term exceeding one year.’ On the question whether § 922(g) is
defendant-centered or crime-centered, the reasoning of the Fourth Circuit is persuasive:
‘§ 922(g) requires only that the crime be punishable by a term exceeding one year.”
(Citing Jones, 195 F.3d at 207).
The upshot of these cases is that a defendant could be deemed convicted of a
felony (i.e., a crime punishable by more than one year) even if there were no set of
circumstances under state law that would have permitted that particular defendant to
receive a sentence of 12 months or more.
In this analysis, the only relevant inquiry is whether any hypothetical defendant
convicted of the same offense could have legally received a sentence of more than a
year. See Carachuri-Rosendo v. Holder, 570 F.3d 263, 267-268 (5th Cir. 2009) rev’d 130 S.Ct.
2577 (2010). If so, the offense qualifies as a felony for all defendants.
E. The Sixth Circuit to the Rescue: The Stat Max Must Be Determined Based on
the Maximum Sentence Faced by the Individual Defendant Before the Court.
Thankfully for this paper, the Sixth Circuit considered and rejected the Harp
analysis and, instead, adopted an approach which focuses on the actual maximum
sentence a specific defendant could receive under the applicable laws of the state.
In United States v. Pruitt, 545 F.3d 416 (6th Cir. 2008), the court considered
whether the defendant’s two North Carolina convictions for possession with intent to
deliver marijuana were punishable by more than one year and thus qualified as career
offender predicates.
The court found that a defendant’s maximum sentence under the North Carolina
guideline system was determined based on both the circumstances of his offense and
his past criminal record. For Mr. Pruitt’s PWID marijuana conviction, a defendant with
the worst criminal record could receive a sentence of up to 15 months, in others words
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felony level punishment. However, the maximum punishment for defendants at lower
criminal history levels was less than 12 months, which was not felony level punishment.
The question before the Sixth Circuit was, in determining the stat max applicable
to the offense, did the court have to take into account Mr. Pruitt’s criminal history
category which, under state law, imposed an absolute limit on the length of the sentence
he could receive or could it simply look to the sentence that could be imposed on the
defendant in the highest criminal history category.
The Sixth Circuit held that a federal court must “take into account the
defendant's state criminal history (or lack thereof) at the time of his predicate North
Carolina convictions” in order to determine whether that predicate was “punishable by
. . . imprisonment for a term exceeding one year.” 545 F.3d at 417 (emphasis
added)(applying Career Offender guideline). It is reversible error for a federal court to
instead examine “the maximum sentence allowable for a hypothetical defendant with
the worst prior record level” when determining whether a North Carolina predicate
conviction is punishable by over one year. Id. at 418.
Pruitt noted that this result derives in large part from North Carolina’s
structured sentencing scheme which, “[u]nlike many substantive criminal statutes . . .
do[es] not prescribe a statutory maximum punishment for the offense,” but instead
“effectively tailors the statutory maximum punishment available to each individual
defendant.” Id. at 419-20. North Carolina’s sentencing law “reflects a clear legislative
judgment to vary a defendant's sentencing exposure based on criminal history.” Id. at
422. A North Carolina sentencing judge lacks the discretion or power to sentence a
defendant above the aggravated range supported by his prior record level. Id. “Thus,
under the North Carolina scheme, a defendant's criminal history has a significant effect
on the maximum sentence authorized.” Id. It is therefore reversible error for a “district
court not to consider [a defendant’s] prior record level in determining whether [that
defendant’s] convictions were for an offense ‘punishable’ by a term of imprisonment
exceeding one year.” Id.
F. The Supreme Court Weighs In, Creates Hope, Causes Confusion: United
States v. Rodriguez
In United States v. Rodriquez, 553 U.S. 377, 381-82 (2008) addressed the question
of what counted as a predicate “serious drug offense” conviction for purposes of the
ACCA. “Serious drug offenses” are ones “for which a maximum term of imprisonment
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of ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A). The Court held that
for purposes of § 924(e), a Washington state statute providing for a ten-year maximum
term for “[a]ny person convicted of a second or subsequent [drug] offense” prescribed a
maximum ten-year term of imprisonment. Id. at 380-81 (citing Wash. Rev. Code.
§§ 69.50(a)(1)(ii)-(iv) (1994)) (internal quotation marks omitted). In so holding, the Court
rejected the defendant’s argument that a “maximum term of imprisonment . . . is
determined without reference to recidivist enhancements.” Id. at 382..
In Rodriguez, the defendant was a second offender and thus subject to the
recidivist stat max of ten years. The Rodriguez Court did not directly answer the more
difficult question of what would be the stat max, for ACCA purposes, for a first
offender under the Washington penalty scheme. A Harp analysis would suggest that
because some offenders could receive 10 years for commission of the Washington drug
offense, the offense would qualify as an ACCA predicate for all offenders. However, the
Rodriguez court suggested (but did not formally hold) that this analysis may not be
correct.
In one section of the opinion, Rodriquez addressed the argument that, in practice,
“determin[ing] whether a defendant faced the possibility of a recidivist enhancement”
would “often be difficult to determine[.]” Id. at 388-89. The Court called any such
concern “exaggerate[d],” and demonstrated that, contrary to Harp, when it is criminal
history that determines the maximum punishment for an offense, the inquiry is
defendant specific, prosecutorial difficulties notwithstanding.
The Court’s in-depth discussion in Rodriquez of the difficulty of determining
whether a defendant was sentenced as a recidivist, and thus determining what term of
imprisonment the criminal statute “prescribed,” makes no sense under a Harp analysis.
If the law is that a court may look to the highest possible sentence at the highest possible
criminal history category, an entire section of the Rodriquez opinion is irrelevant to the
issue the Court decided in that case. The highest recidivist penalty would be the
universal stat max for the offense, there would never be a need to engage in a Shepardtype inquiry into the prior sentence, and the government would never have a need to
“establish that a conviction was for a qualifying offense,” let alone be “precluded” from
doing it. Rodriquez engaged in this analysis because, contrary to Harp’s holding, the
court must conduct a defendant-specific inquiry to determine whether a prior
conviction was punishable by over a year.
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Indeed, Rodriguez’s discussion about the need for a court to determine whether a
defendant was subject to a recidivist penalty (and thus subject to a higher stat max) was
the linchpin pin of the Sixth Circuit’s decision in Pruitt which held
there is no reasonable basis on which to distinguish the North Carolina
scheme's consideration of a defendant's prior record level and the
recidivism enhancement provision at issue in Rodriquez. Under each, the
prior criminal record of the defendant operates to increase the defendant's
sentencing exposure, reflecting a legislative judgment to authorize harsher
criminal penalties for persons who have previously engaged in criminal
activity. In Rodriquez, the Court made clear that two of the defendant's
prior Washington convictions carried a maximum sentence of ten years
because the defendant himself was subject to the recidivism enhancement.
In [North Carolina], the relevant substantive criminal statute does not
itself prescribe a maximum punishment. Instead, the maximum
punishment is derived under the North Carolina structured scheme.
Under that scheme, [a defendant]'s state prior record level dictates his
sentencing exposure and, consequently, it must be considered in
determining whether [that defendant]'s convictions were "punishable" for
a term exceeding one year.
Pruitt, 545 F.3d at 423.
However, not all courts read Rodriguez the same way. In fact, the Tenth Circuit in
Hill relied on Rodriquez to reach the exact opposite conclusion; i.e, that the applicable
statutory max is the longest term of imprisonment any defendant could receive. The
Tenth Circuit did not address the portion of the Rodriguez opinion relied upon by Pruitt
but instead relied upon a different section which rejected Rodriguez’s argument that the
top of his state guideline range should constitute his statutory maximum. Hill, 539 F.3d
at 1220-21. What the Tenth Circuit failed to note was that the Supreme Court’s rejection
of this argument relied heavily on the fact that, in many guideline systems, the top of
the range does not set a hard ceiling and thus does not constitute a true maximum
penalty. Rodriguez, 533 U.S. at 390-91 (noting that under Washington law, the court
could impose sentence above the top of the guideline range “for substantial and
compelling reasons justifying an exceptional sentence”). It did not address sentencing
systems where a court has no authority to impose a sentence higher than the top of the
applicable guideline range.
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G. The Smoke Begins to Clear, Our Side Wins?: United States v. Johnson and
Carachuri-Rosendo v. Holder.
Two recent Supreme Court cases strongly suggest Pruitt had a better reading of
Rodriguez and that statutory maximum penalties must be determined in relation to
maximum legal sentence faced by the specific defendant, not the maximum sentence
faced by the worst possible defendant.
United States v. Johnson, 130 S.Ct. 1265 (2010) reinforces Rodriquez’s defendantspecific approach to determining whether a crime is punishable by over a year when
state law assigns different punishments based on a defendant’s criminal history. In
Johnson, the defendant had a Florida conviction for simple battery, a conviction that the
government argued counted as an ACCA predicate violent felony. 130 S. Ct. at 1268. In
describing the conviction, the Supreme Court noted that the “conviction . . . under
Florida. . . ordinarily is a first degree misdemeanor.” Id. at 1269. Mr. Johnson’s
conviction became a third-degree felony under Florida law, the Court continued,
because he had a previous conviction for battery. Id. (citing Fla. Stat. § 784.03(2)).
If the Supreme Court had followed the court’s approach in Harp, it would have
simply noted that simple battery in Florida is a felony because “the maximum
aggravated sentence that could be imposed for that crime upon a defendant with the
worst possible criminal history” is over one year. Harp, 406 F.3d at 246 (emphasis altered).
The Supreme Court did not do that, however. Instead, it specifically inquired as to
Johnson’s criminal history in determining whether his conviction was for a felony. This
simply does not make sense if Harp was correctly decided.
An even more important case for our argument was also decided by the Supreme
Court last term. Carachuri-Rosendo v. Holder, --- S. Ct. ----, 2010 WL 2346552 (2010)
explicitly affirms the defendant-specific approach described in Rodriquez and Pruitt and
rejects the approach set out in Harp and Hill.1 Whereas Harp holds that a conviction is
1
It is very significant that in light of Carachuri-Rosendo, the Supreme Court
granted certiorari, vacated the judgment, and remanded the case in four cases from this
circuit that relied on Harp. See United States v. Smith, 354 F. App’x 830 (4th Cir. 2009),
(per curiam; unpublished), cert. granted, judgment vacated, and case remanded, 2010
WL 978690 (U.S. June 21, 2010) (No. 09-9611); United States v. Williams, 353 F. App’x 839
(4th Cir. 2009)(per curiam; unpublished), cert. granted, judgment vacated, and case
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punishable as a felony if felony punishment would have been authorized for any
defendant with the worst possible criminal history, Carachuri- Rosendo holds that a prior
conviction is punishable as a felony only if felony punishment is authorized for the
defendant himself with his particular criminal history.
In Carachuri-Rosendo, the defendant had two misdemeanor drug possession
convictions. Under the applicable law, the second misdemeanor conviction could have
been prosecuted as a felony if the prosecutor had given notice of the prior drug
conviction.
The question in Carachuri-Rosendo was whether Carachuri’s second conviction
thus constituted an “aggravated felony” for immigration purposes. See 2010 WL
2346552, *3-*4. The Fifth Circuit, applying what it called the “hypothetical
approach,”held that a conviction qualifies as an “aggravated felony” if the government
could have prosecuted a defendant for an aggravated felony, notwithstanding whether
or not it actually chose to do so. Accordingly, it held that Carachuri’s second conviction
was an “aggravated felony” even though in his particular case the charge was
prosecuted as a misdemeanor.
The Supreme Court rejected the hypothetical approach and reversed the Fifth
Circuit. The Court explained that because the statutory question was whether Carachuri
had “‘been convicted of a[n] aggravated felony,’” the Court had “to look to the
conviction itself as [its] starting place, not to what might have or could have been
charged.” Carachuri-Rosendo, 2010 WL 2346552, *8 (quoting 8 U.S.C. § 1229b(a)(3))
(emphasis in Carachuri-Rosendo). The Court expressly noted that Rodriquez
held that a recidivist finding could set the “maximum term of
imprisonment,” but only when the finding is a part of the record of
conviction. Indeed, we specifically observed that “in those cases in which
the records that may properly be consulted do not show that the
remanded, 2010 WL 753114 (U.S. June 21, 2010) (No. 09-9351); United States v. Simmons,
340 F. App’x 141 (4th Cir. 2009) (per curiam; unpublished), cert. granted, judgment
vacated, and case remanded, 2010 WL 2471064 (U.S. June 21, 2010) (No. 09-676); United
States v. Watson, 336 F. App’x 363 (4th Cir. 2009) (per curiam; unpublished), cert.
granted, judgment vacated, and case remanded, 2010 WL 2471071 (U.S. June 21, 2010)
(No. 09-8003).
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defendant faced the possibility of a recidivist enhancement, it may well be
that the Government will be precluded from establishing that a conviction
was for a qualifying offense.”
Id. at *8n.12 (quoting Rodriquez)(emphasis added). In other words, the proper inquiry is
not, as Harp holds, on the maximum punishment faced by any hypothetical defendant. It
is on the maximum punishment faced by the actual defendant before the court.
Carachuri-Rosendo also affirms the importance of considering procedural
safeguards when determining punishability. The Carachuri-Rosendo Court noted that a
second simple possession offense (like that sustained by Carachuri in Texas) may be
prosecuted as a felony in federal court only if certain procedures are followed. Among
other things, the government must give notice of its intent to prove the fact of the prior
conviction before it can prosecute the offense as a felony. Carachuri-Rosendo went on to
say that “[m]any state criminal codes, like the federal scheme, afford similar deference
to prosecutorial discretion when prescribing recidivist enhancements.” Id. at 86. In
Carachuri’s case, the Texas prosecutor specifically elected to ”‘[a]bandon’ a recidivist
enhancement under state law.” Id. (alteration in the original). “Were we to permit a
federal immigration judge to apply his own recidivist enhancement after the fact so as
to make the noncitizen’s offense ‘punishable’ as a felony for immigration law
purposes,” the Court said, “we would denigrate the independent judgment of state
prosecutors to execute the laws of those sovereigns.” Id.
Interestingly, the Fourth Circuit largely anticipated the Carachuri-Rosendo opinion
in its 2003 decision in United States v. Williams, 326 F.3d 535 (4th Cir. 2003). There, in
an opinion strongly at odds with its later decision in Harp, the Fourth Circuit examined
whether a defendant’s prior conviction for a New Jersey drug offense was an offense
with a ten-year maximum and therefore could be used as a predicate for sentencing Mr.
Williams as an Armed Career Criminal. Id.
Mr. Williams had two prior New Jersey drug convictions under statutes that had
a five-year maximum punishment for defendants without a prior drug conviction, and a
ten-year maximum for defendants with a prior drug conviction. Id. at 538-39 (citing
New Jersey statutes). The court did not, as the holding in Harp would compel, hold that
Mr. Williams’ New Jersey predicates were “serious drug offenses” because they were
punishable by ten years for “a defendant with the worst possible criminal history.”
Harp, 406 F.3d at 246. Instead, Williams looked to the individual defendant in the case
and how the statute at issue applied to him when he was sentenced in state court. It also
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noted, critically, that New Jersey did not apply the enhanced ten-year maximum
sentence on a defendant automatically, but only after the New Jersey district court
imposed certain procedural requirements, one of which was establishing prior
convictions by the prosecution at a sentencing hearing. Williams, 326 F.3d at 539.
Because the prosecution for Mr. Williams’ 1993 New Jersey convictions did not meet
these procedural requirements, he was not (as a matter of New Jersey law) subject to a
ten-year maximum sentence. Id. As the court noted, holding otherwise would not only
mis-apply the ACCA, but also implicate Constitutional concerns: “[t]o subject Williams
to an enhancement now, based upon a sentence that he could have received only after
the exercise of procedural safeguards, would compromise not only Williams's statutory
rights, but his due process rights as well.” Id.
Carachuri-Rosendo and Williams thus stand for the proposition that if the
procedural requirements for subjecting a defendant to a higher statutory maximum
penalty are not satisfied then the higher statutory maximum is simply not applicable to
the defendant, even if he, in fact, met all the requirements for the elevated penalty.
Harp and Hill simply cannot be reconciled with the Supreme Court’s treatment of
recidivism enhancements in Rodriguez, Johnson, and Carachuri-Rosendo. It is Pruitt which
provides the correct analysis and provides the best argument for attacking convictions
or enhancements based on prior convictions where the particular defendant could not
have been legally sentenced to more than 12 months in prison.
H. When and How to Deploy this Argument.
This section is designed to help you identify cases where you can employ this
argument.
1. Does the case involve a charge or enhancement that requires a prior felony
conviction or conviction of a certain length? For example, the argument may be
available in § 922(g), ACCA, career offender, immigration, child porn and drug cases.
2. Did the defendant actually receive less than 12 months for his predicate
conviction? If the defendant received a sentence of more than a year (or 10 years in the
case of an ACCA serious drug offense), his conviction was obviously punishable as a
felony as to him and this argument is not available. However, if the actual sentence was
less than a year, further investigation is warranted.
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3. What was stat max applicable to the defendant under the law of state of
conviction? This requires research into the specific sentencing system of the convicting
state. If the state sets a single stat max for each offense and grants the court discretion to
impose a sentence up to the stat max, the answer to the question is easy: the conviction
is a felony if it allows a sentence of more than 12 months. However, in states with
mandatory guideline systems with limited judicial discretion, it is important to
determine the guideline range based on the defendant’s offense level and criminal
history. If that range is less than 12 months, this conviction may not qualify as a felony
even some other defendant with a worse record convicted of the same charge could
have received more than 12 months.
4. Did the defendant qualify for a recidivist enhancement? As Rodriguez and
Carachuri-Rosendo show, a state recidivism enhancement may elevate a misdemeanor
conviction into a felony under certain circumstances. However, in these cases, the
recidivism-based felony can be used as federal predicate only if the defendant qualified
for the enhancement. It is not enough that offense could be a felony as to some other
defendant, it must be a felony as to your defendant.
5. Even if your defendant met the requirements for a stat max raising recidivist
enhancement, did the state actually seek to impose the enhancement on the
defendant? Procedural requirements matter. Both Carachuri-Rosendo and Williams
suggest that even if the defendant met the requirements that would transform a state
misdemeanor into a felony, his conviction will not be deemed a felony unless the state
actually proves the facts that make the conviction a felony. For instance, suppose a state
misdemeanor is punishable as a felony if the state provides proof that it is the
defendant’s second drug conviction. If the state fails to provide such proof, the
conviction is a misdemeanor for federal predicate purposes, even if it is clear the
defendant did in fact have a prior conviction the state could have proven if it wanted to.
This idea is similar to idea behind the § 851 enhancement in federal drug cases: if the
government fails to file the § 851 notice of prior conviction, the defendant is simply
ineligible for the enhancement even if it is clear that he has qualifying predicate
convictions.
If, after going through this checklist, it appears that your defendant’s predicate
was not punishable by more than 12 months, how do you raise and preserve this issue?
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1. In the case of an offense such as § 922(g), you must file a motion to dismiss.
File a motion seeking to dismiss the case on the ground that the defendant does not
actually have a qualifying felony conviction.
2. If the motion is denied, do not plead guilty. A regular guilty plea will waive
this argument and the denial of the motion to dismiss will not be reviewed on appeal.
3. Instead, go to trial or enter a conditional plea. If the facts of the possession are
clear cut and the only issue is whether or not the defendant has a qualifying felony, a
bench trial may be appropriate. Even better would be if the government would agree to
allowing the defendant to enter a conditional plea which reserved the right to challenge
the denial of the motion to dismiss. Note, if you do go to trial, do not forget to renew
your request to dismiss via a Rule 29 motion at the close of the evidence.
4. For sentencing issues, career offender, ACCA, etc., file timely objections to
the presentence report. This issue can be raised and preserved like any other sentencing
objection to the guideline calculations or statutory sentencing enhancements.
5. If you think you have a good claim, plead straight up if possible, do not
waive your appellate rights. Especially while the law is unsettled in this area, do
everything you to preserve your right to appeal this issue in the event it is rejected by
the district court.
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