After a lousy week for federal employees it is a pleasure to be writing with some particularly good news: United States v. Valencia-Mendoza.

This is a huge case. The narrow holding is that a particular Washington state prior doesn’t count in that case to increase an illegal reentry sentence under the guidelines.

The much bigger implications, however, are for the general use of state priors to enhance federal sentences. The Ninth in Valencia-Mendoza held that when analyzing whether a state prior “counts,” one doesn’t look at the state statute’s stat max – instead, what matters is the actual maximum possible term permitted under the state’s sentencing scheme.

Washington’s scheme in this case had an actual sentencing-range-max of six months for Valencia-Mendoza’s prior. The Washington prior thus it didn’t count as a “felony” for the federal sentencing guidelines.

What other states have sentencing schemes producing effective max’s below the reported “stat max?”

Alabama (guidelines, beginning in 2013, drug and certain property offenses)

Arizona (statutory)

California (statutory)

Colorado (statutory)

Florida (former guidelines – before 1998, GL system not materially different from Oregon)

Massachusetts (statutory)

Michigan (guidelines)

Minnesota (guidelines)

Ohio (statutory)

Pennsylvania (guidelines)

Tennessee (statutory, 1989-2005)

In the “How the Use,” section the attached memo reels off federal guidelines and statutes that may be vulnerable to this new attack.

Who penned this masterpiece? Judge Susan Graber – not a traditional defense ally. Very good news for the long-term health of the opinion, as the government frets over an en banc effort.

Many thanks to Sentencing Resource Counsel Amy Baron Evans, Oregon Chief Deputy Public Defender Stephen Sady, and ND Cal FPD Appellate Chief Carmen Smarandoiu, who flagged this big win and who have provided much of the analysis repeated in this email and in the attached COTW memo.

Finally, a hearty congratulations to William Miles Pope, a Fellowship Attorney at the Federal Defenders of Washington & Idaho. (Miles is soon heading to the Idaho FPD as an R&W Attorney).  Miles, and his former colleague, Fellowship Attorney Ben Flick (who preserved this issue, and who is now working at the D.C. FPD), have earned us all a win that will hopefully save our clients many decades of custody, for many years to come. (Also a feather in the cap of Executive Director Andrea George, who has developed a robust fellowship program in her Eastern Washington shop).

source: Steven Kalar – Federal Public Defender, N.D. Cal.