Taking A Break From Mens Rea And Looking At Sentencing Issues: A Victory For Those Who Like Keepin’ It Limited For Shepherd Documents

Yesterday was a good day for Mr. Solano-Hernandez, who’d been convicted and sentenced for illegal reentry in the Southern District of Texas. After the Supreme Court granted the defendant’s writ and remanded, the Fifth Circuit vacated the defendant’s sentence and remanded for resentencing in United States v. Solano-Hernandez, Nos. 15-41554/582 (5th Cir. Feb. 13, 2019) (unpublished).

All along, the reviewing courts said the case involved error. The problem was one of whether the error was plain. Originally, the Fifth Circuit found sentencing error, but said it wasn’t enough. The Supreme Court, however, granted cert, reversed the Fifth Circuit’s original judgment, and remanded for reconsideration in light of its rejection of the Fifth Circuit’s “shock-the-conscience” element of plain-error review in the recent Rosales-Mireles v. United States, 138 S. Ct. 1897, 1907-11 (2018).

On this current go around, the Fifth Circuit came out differently on the sentencing result, finding that imposition of the 12-level sentencing enhancement constituted plain error. The 12-level enhancement rested on a supposed prior crime of violence: a 1995 New Jersey conviction for endangering the welfare of a child. (Mootness was an extra issue in the case. Because the defendant remained subject to a term of supervised release, the case was not moot, even though the defendant had been released from Bureau of Prisons custody.)

The question boiled down to whether the district court had clearly erred in relying on a “statement of reasons” attached to a New Jersey state-court judgment to narrow the analysis of the statute of conviction. Essentially, the issue was one of Shepard documents and what courts can review under Shepard v. United States, 544 U.S. 13, 16 (2005). The Fifth Circuit reiterated that, unlike the charging document, the guilty plea, or the factual basis for the plea confirmed by the defendant, sentencing reasons and factors do not just define the charge and guilty plea. Rather, they frequently refer to facts neither alleged nor admitted in court. Reliance on a “statement of reasons” to analyze the scope of a prior conviction constitutes clear error.