United States v. Jorge TorrezUnited States v. Jorge Torrez
Lead Opinion
Affirmed by published opinion. Judge Thacker wrote the opinion, in which Judge Diaz concurred. Judge Diaz wrote a separate concurring opinion. Judge Floyd wrote an opinion concurring in part and dissenting in part.
Jorge Avila Torrez (“Appellant”) was convicted of first-degree murder and sentenced to death. In this appeal, he raises a host of challenges to his conviction and death sentence. We find the challenges to his conviction to be without merit. As for sentencing, we focus on three specific challenges: (1) whether Appellant’s death sentence was unconstitutional because it was based solely on post-offense conviction ag-gravators; (2) whether the district court erred in failing to apply the categorical approach to state convictions that made him death penalty eligible; and (3) whether the district court erred by allowing Appellant to forego a mitigation defense without conducting a second competency evaluation and hearing. For the reasons explained below, we find no reversible error in the sentencing proceedings. Accordingly, we affirm Appellant’s conviction and sentence.
I.
Factual Background
We view the facts in the light most favorable to the Government, the prevailing party at trial. See United States v. Said,
A.
The Murder
On July 13, 2009, Amanda Snell was found dead in her room at Joint Base Myer-Henderson Hall, a residence hall on a military base located near Arlington, Virginia. When the 20-year-old Navy Intelligence Specialist did not show up for duty on Sunday night, July 12, two officers investigated and discovered her body in her room early the next morning. She was lying in an unnatural position at an angle on the floor of a wall locker, with her knees pressed into her torso and her feet pushed against a drawer. Her head was covered by a pillowcase and pushed down into her chest.
The Naval Criminal Investigative Service (“NCIS”) arrived at 7:45 a.m. on Monday, July 13, and began its investigation. Agents conducted a walk-through and inventory, took the temperature of the room and Snell’s body, took photographs, and took impressions of shoeprints in the vinyl floor in front of the wall locker. The agents noticed that the bed was made, with only a fitted sheet and a comforter, and the room was clean. Based on the information gathered on the morning of July 13, the medical examiner believed Snell had been dead for 24 to 36 hours or more. After conducting an autopsy, the examiner listed the cause of death as “undetermined.” J.A. 4099.
Appellant lived down the hall from Snell. He, like others who lived near Snell, complied with NCIS’s request to complete a personal data sheet, in which he indicated that he did not know Snell and had never been in her room. He also consented to a search of his room and gave, a DNA sample.
B.
The Arlington Crimes
Snell’s murder remained unsolved until 2010, when Appellant was arrested for other crimes in Arlington County, Virginia. On February 10, 2010, Appellant attempted to abduct and assault M.N., a 26-year-old female who was walking to her boyfriend’s house in Arlington County. Appellant approached her from behind, grabbed her jacket, showed her a gun, and told her to keep quiet and keep walking. M.N. told Appellant, “[J]ust take my bag,” but he kept pushing her toward a tan Dodge Du-rango. J.A. 3631. He also pulled out a knife and “urge[d] [her] along to get into the car.” Id. at 3634. M.N. dropped her bag and ran away. Once she reached a nearby friend’s house, her friends called the police, but' neither Appellant nor M.N.’s bag was located.
A little more than two weeks later,, on February 27, 2010, two female graduate students, J.T. and K.M., were walking to KM.’s house in Arlington County. As they stopped in front of the house, Appellant emerged from behind a parked car. He moved his sweatshirt to the side to show the women he had a gun and demanded their- wallets. After the women told him they had no money, he forced them into KM.’s hoüse and ordered them to kneel down next to the couch, He bound their hands with a vacuum cord. At one point when Appellant left the room, the women were able to loosen their hands. Appellant returned to the room- with a knife and retied J.T.’s hands with an iron cord, and ordered the women to go to the bedroom. They complied, and when Appellant left the room again, J.T. managed to grab her cell phone and call 911. Appellant returned to the room, threw the cell phone against the wall, and then grabbed J.T. and led her outside to his SUV. He “showed [her] [his] gun” again and told her to get in his vehicle. J.A. 3649. After he drove for some time, he stopped, got in the back seat with J.T., and told her he was going to rape her. .He forced her to perform oral sex on him, and then he put on a condom (saying, “I’m not an idiot”) and raped her. Id. at 3652, He forced .her to perform oral sex again, and then covered her face with packing tape. He drove to a secluded area and forced J.T. to perform oral sex one more time. He then took J.T.’s scarf anti tightened it around her neck until she was unconscious. When she regained consciousness, she was face down in the snow with her hands above her head. Eventually, a passerby found her and called an ambulance.
Based on the description of Appellant’s vehicle and the similarities and locations of the two Arlington crimes, officers arrested Appellant on February 27, 2010, at Joint Base Myer-Henderson Hall.
Appellant was convicted in Arlington County Circuit Court for abduction with intent to defile, robbery, use of a firearm in a felony, abduction, rape, breaking and entering while armed, and forcible sodomy. On December 10, 2010, the circuit court entered judgment, imposing five life sentences, followed by consecutive sentences totaling 168 years.
C.
The Zion Crimes
Five years prior to the'Arlington crimes, on May 8, 2005,- two young girls (Laura Hobbs and Krystal Tobias) were murdered in a park in Zion, Illinois, Appellant’s hometown. One witness saw the girls talking to someone who looked like Appellant, who at the time was 16 years old. When the girls did not return home that evening, a search party was deployed, and Hobbs’s father and grandfather eventually found the girls the next morning in a wooded area of the park. Authorities arrived and confirmed the girls were dead; their bodies had sustained multiple stab wounds. Hobbs was stabbed 20 times, including wounds to her abdomen, side, back, and horizontal stab wounds perforating her eyelids. One of the wounds punctured her liver. Officials also discovered a significant amount of male DNA in Hobbs’s right hand. .Tobias was stabbed 11-times, in her stomach,- intestines, liver, neck, windpipe, and cervical spine, causing significant hemorrhaging in her neck.
Within' days, officials arrested and charged Jerry Hobbs, Laura Hobbs’s father, who had a felony record. But after evidence collected during the autopsy was sent to the crime laboratory, Jerry Hobbs was excluded as a suspect based on DNA analysis. The lab also tested semen found on Hobbs’s clothing, vagina, rectum, and mouth, but officials were unable to determine a source. The DNA records were put into a nationwide database, and periodically, the state-DNA forensic examiner would check for a match. In June 2010, after Appellant was arrested for the Arlington crimes and his DNA entered into the system, the examiner found he was a potential match. Further testing showed that Appellant was' indeed a match for the clothing and 'vagina DNA, as only one in every 985 quadrillion individuals would be expected to have the same profile. He also could not be excluded as the source of the other DNA found in Hobbs’s right hand, anus, and mouth.
' D.
Osama El-Atari
While he was awaiting trial for the Arlington crimes, Appellant was held in the Arlington County Detention Facility. Because , police officers suspected Appellant was planning to threaten and/or intimidate witnesses in the Arlington case, they arranged, for a federal inmate, Osama El-Atari, to act as a confidential informant and record conversations between the two of them. El-Atari recorded conversations over the course of approximately one week
He told El-Atari that Snell was a random victim and he murdered her “for the adrenaline,” J.A. 4347; because “[he] got bored,” id. at 4377; and simply “because [he] could,” id. at 4322. He accurately described how he placed her body in the wall locker, except he told El-Atari he put a bag over her head, rather than a pillowcase. See id. at 4360 (“[S]he wouldn’t fit laying flat. I had to bend her fucking knees and make her like she’s sitting down, ’cause it’s a small closet.”). He said after he killed Snell, he made the bed and thoroughly cleaned the room. Appellant said he removed one of the bed sheets, but he left the fitted sheet.
Upon hearing this information, NCIS expedited testing of the fitted sheet, and technicians discovered a semen stain consistent with Appellant’s DNA. State police had also seized Appellant’s Nike shoes after his arrest for the Arlington crimes. Based on Appellant’s statements to El-Atari, officials asked that those shoes be compared to the footwear impressions found in front of Snell’s wall locker. A government latent print examiner testified that the shoes that made the impressions were “consistent in size, design, and wear” with Appellant’s shoes. J.A. 3508.
Additionally, NCIS again interviewed Appellant. This time, he acknowledged knowing that Snell lived near him, but still said he had never been in her room.
II.
Procedural History
A.
Guilt Phase
On May 26, 2011, a federal grand jury returned an indictment charging Appellant with one count of first-degree murder of Amanda Snell. See
On February 29, 2012, the Government filed a notice of its intent to seek the death penalty. See J.A, 75-83 (the “Notice”). The Notice listed two statutory aggravating
Trial commenced on March 31, 2014. The Government called more than 30 witnesses over the course of four days and introduced hundreds of pages of exhibits. Appellant’s counsel cross-examined the Government’s witnesses, but only presented one witness, a former Marine who lived at Myer-Henderson Hall and testified that he had been in Snell’s room at one time, but lied about it because of a rule that members of the opposite sex should not be in a room together with the door closed. The jury returned a guilty verdict on the sole first-degree murder count on April 8, 2014.
B.
Penalty Phase
The district court bifurcated the penalty phase into (1) an eligibility phase, during which the jury determines whether a defendant is eligible for the death penalty based on statutory factors; and (2) a selection phase, during which the jury considers aggravating and mitigating factors and decides whether the death penalty is warranted. The eligibility phase began on April 21, 2014. As explained in more depth below, during that phase, the same jury that convicted Appellant found him eligible for the death penalty based on two statutory aggravating factors. The jury then proceeded to the selection phase, where it considered both statutory and non-statutory factors and unanimously recommended a sentence of death. Appellant chose not to present mitigating evidence. On May 30, 2014, the district court adopted the jury’s recommendation and sentenced Appellant to death. He noted this appeal the same day.
III.
Challenges to Murder Conviction
Appellant raises five challenges to his first-degree murder conviction: (1) whether the district court improperly limited Appellant’s confrontation rights when it conditioned the cross-examination of Osa-ma El-Atari on the admission of evidence of the Zion crimes; (2) whether the district court violated Rule 404(b) when it admitted evidence of the Arlington crimes and Appellant’s electronic media showing violent pornography; (3) whether the district court committed reversible error in allowing expert testimony on shoeprint analysis; (4) whether Appellant was denied his right to an impartial jury when the district court refused to allow him to ask potential jurors whether they would consider a sentence of life upon hearing evidence that Appellant had murdered two young children and sexually abused one of them; and (5) whether the Government’s use of cell site location information (“CSLI”) against Appellant violated his Fourth Amendment rights.
A.
Cross-Examination of El-Atari
Part of Appellant’s defense strategy was to demonstrate that he was lying or exaggerating during the course of his jail con
We hold that the district court did not abuse its discretion. To be sure, the main reason defense counsel would have wanted to introduce Appellant’s exaggerations and falsities was to show that everything he told El-Atari could have been false and mere boasting, including the information he gave about Snell’s death. The Government was entitled to rebut that argument with information Appellant gave to El-Atari about a crime he committed that was arguably true. Indeed, defense counsel acknowledged as much. See- J.A. 3843 (defense counsel “agreeing]” that asking El-Atari about the other crimes Appellant did not commit “opens up Zion ... wide”).
However, even if the district court erred in this regard, the error was harmless. See United States v. Madden,
—El-Atari’s prior convictions for crimes involving deception;
—El-Atari’s attempts to deceive Appellant about why and how long he was in prison;
—El-Atari’s alleged failure to follow instructions from law enforcement;
—El-Atari’s desire to get out of prison.
And on direct examination, El-Atari testified about the inconsistencies in Appellant’s statements about the Snell murder, and he also testified that Appellant said he was deliberately making false statements so their discussions would be unable to be used against him.
Under these circumstances, it is difficult to fathom how cross examining El-Atari about additional falsities Appellant relayed to him would have made much difference, given that the jury already knew to approach Appellant’s statements to El-Atari with caution, knowing that he deliberately (and admittedly) lied at certain points in his jailhouse conversations. For these reasons, Appellant’s argument on this point fails.
Rule 401p(b) Evidence
Appellant next argues that admitting evidence of the Arlington crimes, and Appellant’s electronic media, which contained violent pornography, violated
(1) The evidence must be relevant to an issue, such as an element of an offense, and must not be offered to establish the general character of the defendant.... (2) The act must be necessary in - the sense that it is probative of an essential claim or an element of the offense. (3) The evidence must be reliable. And (4) the evidence’s probative valué must not be substantially outweighed by confusion or unfair prejudice in the sense that it tends to subordinate reason to emotion in the factfinding process.
United States v. Queen,
The Government produced evidence of pornographic videos showing violence against women who were sleeping, unconscious, or restrained. This evidence was admitted to show intent and motive, as well as modus operandi since Snell was murdered in the early morning in her bed, and officials discovered Appellant’s semen on her bed sheets. See, e.g., United States v. Blauvelt,
As for the Arlington crimes, the circumstances surrounding the offenses against M.N., J.T., and K.M. mere months after Snell’s murder were relevant and necessary to demonstrate Appellant’s mo-dus operandi, motive, and intent, These offenses resembled Snell’s murder in the following ways: (1) they- all involved assaults on women Appellant did not know (well or at all) in their early to mid 20s; (2) they all took place in the early morning hours; (3) the motive appeared to be sexual, as evidenced by the semen on Snell’s bed, the rape of J.T., and Appellant’s forcing of M.N. to get into -his. car; (4) the Snell murder (based on statements Appellant made to El-Atari) and the February 27 offense both involved tying up women with cords from electronics found in the victim’s living space; (5) the Snell murder (based on statements Appellant made to El-Atari) and February 27 offense both involved strangling; (6) there.was no semen found in Snell, but it was found on her bedsheet, and on February 27, Appellant used. a
Although the crimes were certainly not identical, they “need not be”; rather they “must be similar enough to be probative of intent.” United States v. Van Metre,
Nor was the evidence more prejudicial than probative. This court has held “bad acts evidence, admissible under
C.
Shoeprint Analysis
Appellant next challenges the district court’s admission of testimony from a latent print examiner. That expert testified that the shoes that made the impressions on the vinyl floor in front of Snell’s wall locker were “consistent in size, design, and wear” with the Nike shoes taken from Appellant in February 2010. J.A. 3508. Even assuming the district court should have excluded the shoeprint analysis testimony, we can say with fair assurance that the judgment was not substantially swayed by the error. It is simply not probable that this evidence affected the jury’s verdict, given that the jury also knew Appellant’s DNA was on Snell’s bed sheet, and Appellant described to El-Atari in great detail how he killed Snell and shoved her in the wall locker. Thus, we reject this claim under harmless error review. See United States v. Hedgepeth,
D.
Voir Dire
Finally, Appellant claims he was denied his Sixth Amendment right to an impartial jury when, in voir dire, the jurors were not asked this question, proposed by Appellant:
2. The government in this case may introduce evidence that Jorge Torrez committed a sexual assault and murder of an eight-year-old girl as well as the murder of a nine-year-old girl.
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b. If you find Mr. Torrez guilty, then in the penalty phase of trial, would this evidence affect your ability to fairly weigh the aggravating factors against the mitigating factors and return a sentence of life without the possibility of release, or would you find it difficult to vote for life without the possibility of release?
J.A. 1799-1800 (bold type omitted).
The district court did not abuse its discretion in rejecting Appellant’s proposed voir dire question. See Rosales-Lopez v. United States,
district courts must conduct “adequate voir dire” to enable them “to remove prospective jurors who will not be able impartially to follow the court’s instructions and evaluate the evidence.” Because “[a]ny juror who would impose death regardless of the facts and circumstances of conviction cannot follow the dictates of law,” the Supreme Court has held that “[a] defendant on trial for his life must be permitted on voir dire to ascertain whether his prospective jurors function under such misconception.”
There, we upheld the district court’s choice to ask, “Are your feelings about the death penalty such that you would always vote for a sentence of death as a punishment for someone convicted of a death penalty eligible offense, regardless of the facts and circumstances?,” Caro,
E.
Conclusion
For the foregoing reasons, we hold Appellant’s challenges to his conviction to be without merit and therefore affirm his conviction.
■IV.
Challenges to Death Sentence
In reviewing a capital sentence, we must (1) “address all substantive and procedural issues raised on the appeal of a sentence of death”; (2) “consider whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor”; and (3) “consider whether the evidence supports the special finding of the existence of an aggravating factor required to be considered under [18 U.S.C. § ] 3592.”
A.
Use of Post-Offense Conduct as Statutory Aggravator
We first consider Appellant’s argument that the death penalty was unconstitutionally imposed bécause it was based on conduct and convictions that occurred after the Snell murder. We review this issue de novo. See United States v. Runyon,
1.
Under the Federal Death Penalty Act (“FDPA”), once the jury finds the defendant guilty of an offense for which a death sentence is provided, the trial proceeds to the penalty phase. In a homicide case, the jury must make certain determinations before it can impose the death penalty. Some courts, including the district court in this case, choose to bifurcate the penalty phase into an “eligibility” phase and a “selection” phase — which, along with the guilt phase, result in an overall trifurcated proceeding.
In the eligibility phase, the jury must find beyond a reasonable doubt that the defendant;
(A) intentionally killed the victim;
(B) intentionally inflicted serious bodily’injury that resulted in the death of the victim;
(C) intentionally participated in an act, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and the victim died as a direct result of the act; 'or
(D) intentionally and specifically engaged in an act of violence, knowing thatthe act created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reckless disregard for human life and the victim died as a direct result of the act[.]
Once the above requirements are satisfied, the defendant is eligible for the death penalty, and the proceedings continue in the selection phase, where jurors consider the presence of aggravating and mitigating factors and decide whether to recommend the death penalty. The jury must determine whether aggravating factors, both statutory and non-statutory, “sufficiently outweigh” the mitigating factors presented by the defendant to justify a death sentence, “or, in the absence of a mitigating factor, whether the aggravating factor or factors alone are sufficient to justify5’ that sentence.
In the case at hand, Appellant’s murder conviction provides for a sentence of death. See
• The defendant “has previously been convicted of a Federal or State offense punishable by a term of imprisonment of more than 1 year, involving the use or attempted or threatened use of a firearm ... against another person”; and
• The defendant “has 'previously been ■ convicted of 2 or more .,, State offenses, punishable by a term of .imprisonment of more than 1 year, committed on different occasions, involving the infliction of, or attempted infliction of, serious bodily injury or death upon another person.”
• Appellant killed Krystal Tobias and Laura Hobbs on May 8, 2005, stabbing Krystal 11 times and Laura approximately 20 times, including in both eyes.
• Appellant sexually assaulted Laura Hobbs on May 8,2005.
.• Appellant stalked females with the intent of sexually assaulting them during the late night hours of February 4 and the early morning hours of February 5, 2010, in Arlington County, Virginia.
• On February 5, 2010, Appellant purchased a Glock semiautomatic pistol to use in abducting, robbing, and sexually assaulting female victims.
• On February 10, 2010, Appellant abducted M.N. at gunpoint, brandished a knife, robbed her,, and tried to - force her. into his Dodge Durango.
• On February 27, 2010, Appellant abducted K.M. and J.T. at gunpoint and demanded money from them. He then forced - them inside KM.’s house, where he tied them up.
• On February 27, 2010, Appellant grabbed J.T. and forced her at gunpoint out of the house into his Dodge Durango. After driving for a while, he forced h¿r to perform oral sex, bound her hands, raped her, and . again forced her to perform oral sex.He then bound her mouth and head with tape and pushed her to the floor.
• On February 27, 2010, Appellant drove with J.T. on the floor of his vehicle and stopped in a wooded area. He again forced J.T. to perform oral sex on him.
• On February 27, 2010, Appellant attempted to kill J.T. by strangulation (wrapping a scarf around her neck and tightening it). J.T. lost consciousness. Appellant dumped her in the woods, but J.T. regained consciousness and was able to flag down a car. She was seriously injured.
• On February 27, 2010, Appellant was arrested. He was found in possession of a stun gun and tape in his vehicle, along with J.T.’s personal property.
• While incarcerated and awaiting trial for the Arlington crimes, Appellant plotted to have the victim witnesses against him killed.
• While incarcerated and awaiting trial for the Arlington crimes, Appellant possessed a “shank,” commonly used by prisoners to kill others.
• Appellant has displayed no remorse for Snell’s murder; rather, he bragged about it.
• Appellant “poses a future danger to others in that he is likely to commit, and direct others to commit, additional acts of violence in any setting, including acts of violence and threats of violence against witnesses who have testified against him.”
• Appellant caused injury, harm, and loss to the victim and victim’s family and friends, “as evidenced by the victim’s personal characteristics and by the impact of her death upon the victim’s family and friends.”
J.A. 5235-38. Despite the fact that Appellant chose to present no mitigating evidence, seven of 12 jurors found one mitigating factor: that Appellant “was under the age of 18 at the time Laura Hobbs and Krystal Tobias were killed.” Id. at 5239.
2.
Appellant contends he was not actually eligible for the death penalty, as the only statutory aggravating factors found by the jury “cannot qualify as ‘previous convictions’ because they occurred after commission of the [capital] offense.” Appellant’s Br. 15 (capitalization omitted). The district court, however, rejected Appellant’s motion to strike these factors, concluding that any predicate convictions occurring prior to sentencing would satisfy
a.
This court addressed and rejected this very argument in United States v. Higgs. See
One of the myriad arguments Higgs raised was that his drug conviction, rendered after the murder but before sentencing, was not actually a “previous[]” conviction that could qualify as a statutory aggravator. See
We affirmed, holding, “[T]he
Although it easily could have done so, Congress did not specify that either the prior offense or conviction had to occur before the death penalty offense. On the contrary, the entire section speaks in terms of those things that must be considered when the death sentencing hearing is conducted and the petit jury begins its weighing process. And, we note that where Congress has intended a different practice in other circumstances, it has made that intent clear.
Higgs,
The district court in this case relied heavily on Higgs in concluding that (c)(2) and (c)(4), which use very similar language,
b.
Appellant’s attempts to distinguish Higgs are unavailing. To begin, he claims that the Higgs court “was not asked to decide the constitutional arguments implicated in this case, so [it] cannot be said to have decided them.” Appellant’s Br. 34-35. While the nuanced ex post facto, Eighth Amendment, and Fifth Amendment arguments raised 'here (explained in depth, m-
Appellant also contends the district court failed to recognize two “critical distinctions” between Higgs and this case. Appellant’s Br. 35. We address each in turn. -
i.
First, Appellant contends that at the time of the trial in Higgs, the Supreme Court had not yet decided Ring v. Arizona,
As a matter of background, in Ring, the Supreme Court held that statutory aggra-vators that increase the punishment for a crime “operate as ‘the functional equivalent of an element of a greater offense,’ [and] the Sixth Amendment requires that they be found by a jury.”
Before Ring, however, the Supreme Court had concluded that the fact of a prior conviction which increases the maximum penalty for a crime is not an element of a separate crime; rather, it is a “penalty provision” that merely “authorizes an enhanced penalty.” Almendarez-Torres v. United States,
Both the certainty that procedural safeguards attached to any “fact” of prior conviction, and the reality that Almen-darez-Torres did. not challenge the accuracy of that “fact” in his case, mitigated the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a “fact” increasing punishment beyond the maximum of the statutory range.
Against that backdrop, the defendant in Higgs asked this court to find his indictment fatally flawed in part because it did not list the prior conviction aggravating factors applicable to his death sentence.
We also discussed the impact of Ring, which had been decided during the appeal of Higgs’s convictions and sentences. Although we recognized “Ring [may have] placed on shaky ground the Almendarez-Torres proposition that prior convictions that increase the maximum penalty need not be alleged in the indictment,” we nonetheless concluded that “[u]ntil the Supreme Court overrules Almendarez-Torres, we are bound to follow its holding.” Id. at 303; see also United States v. Bullette,
On Appellant’s view, Higgs concluded that the prior conviction aggravators in that case functioned as “sentencing factors” only because other valid aggravating factors existed to make Higgs death eligible (i.e., murder during the commission of another offense). Appellant’s Br. 37. In Appellant’s exceedingly rare case, though, another valid aggravator did not exist, which Appellant says makes all the difference. Whatever the merits of Appellant’s claim in the abstract, it need not detain us here, for the Government in this case did list the two prior, conviction statutory ag-gravators in the indictment, and the jury found the existence of those aggravators béyond a reasonable doubt. Thus, the only issue for us is whether to apply Higgs’ interpretation of
ii.
Second, Appellant notes that in Higgs, the sentencing proceeding was bifurcated, rather than trifurcated. However, there is no indication that Higgs’ s conclusion hinged on the fact that all of the aggrava-tors were considered together in one proceeding. Appellant’s argument on this point assumes that the prior convictions were treated only as selection factors, not as statutory aggravators bearing on eligibility. This assumption is wrong. While it is true that Higgs stated — in the context of Higgs’s Fifth Amendment indictment challenge — that as long as one valid statutory aggravator is alleged in the indictment, any additional factors “can be fairly viewed as sentencing considerations,” it nonetheless analyzed the post-offense conduct statutory argument as if Higgs’s prior drug conviction were a statutory aggravator, Higgs,
c.
Appellant’s remaining constitutional challenges to his death sentence are foreclosed by the language and operation of the FDPA and our precedent.
i.
Ex Post Facto Claim
Appellant contends that “[a]llow-ing an element of the offense to occur post-offense and retroactively render a pri- or murder ... capital murder would violate ex post facto principles.” Appellant’s Br. 29. Article I, section 9 of the United States Constitution provides, “No ... ex post facto Law shall be passed.”
Nothing about
ii.
Eighth Amendment Claim
Appellant also claims the use of post-offense conduct to make a defendant eligible for the death penalty violates the Eighth Amendment, which provides that “cruel and unusual punishments [shall not be] inflicted.”
First, using post-offense convictions would narrow the class of defendants convicted of murder. Although Appellant argues that the previous conviction aggrava-tors can expand the class of murderers subject to capital punishment if the offender later commits another crime, that is not the focus of the Eighth Amendment analysis. Instead, the focus is on whether the class of offenders is narrowed from all murderers, not the class of offenses. Cf. Higgs,
Second, as to whether
A more challenging aspect of this inquiry is whether the statute imposes the death penalty on these recidivists in a non-arbitrary and unambiguous way. Along these lines, a court “must first determine whether the statutory language defining the [aggravating] circumstance is itself too vague to provide any guidance to the sen-tencer.” Tuilaepa v. California,
We acknowledge that permitting post-offense' convictions to qualify as statutory aggravators may allow for prosecuto-rial manipulation of the timing of charges in order to make an earlier offense death eligible. But Appellant presents no "such evidence in this cáse. Moreover, prosecutors have “wide discretion over whether, how, and when to bring a case,” United States v. Segal,
And as.-to whether (c)(2) and (c)(4) are unconstitutionally vague, Higgs again provides the answer. Examining the language and structure of the FDPA, we explained that “Congress did not specify that, either the prior offense or conviction had to occur before the death penalty offense.” Higgs,
iii. •
Fifth Amendment Claim
Finally, Appellant claims his sentence violates the Fifth Amendment because it fails to provide fair notice and violates double jeopardy guarantees. The Fifth Amendment, provides in relevant part, “No person shall be ... subject for the same offence to be twice put in jeopardy of life or limb; ... nor [shall he] be deprived of life, liberty, or property, without due process of law.” U.S. Const, amend. Y. The Due Process Clause prohibits the Government from “taking away someone’s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” Beckles v. United States, _ U.S. _,
These arguments also fail. Appellant cannot claim he' had no notice of potential consequences of his actions.
As .for double jeopardy, there are no such concerns here. The imposition of a death sentence was not above the author
B.
Whether the Arlington Crimes Satisfy
We next address Appellant’s argument that the Arlington crimes do not qualify as previous convictions under
1.
Categorical Approach
Appellant argues that Congress contemplated application of the categorical approach to
a.
The categorical approach was first announced in Taylor v. United States,
■ Determining whether to apply the categorical- approach requires an exercise in statutory interpretation. See Ritchie,
Higgs addressed the question of whether courts must apply the categorical approach in determining whether, a prior conviction involved the use of a firearm under
We rejected this argument for two reasons. First, we explained that because the language of
Since Higgs, the Eighth Circuit has concluded the categorical approach should not apply, this time to
Rather than relying on the term “involving,” the court turned to examine the structure and language of
Next, the FDPA “mandates a fact-intensive process in death-eligible proceedings.” Rodriguez,
Some district courts have followed Rodriguez’s reasoning and have held that the categorical approach is inappropriate as applied to
Our research has turned up a single decision holding that the categorical approach should apply to prior conviction aggravators in the eligibility phase. See United States v. Smith,
b.
Smith notwithstanding, we find the reasoning of the majority view to be most persuasive.
The categorical approach was born out of the ACCA, and the Supreme Court has
a sentencing judge may look only to the eleinents of the offense, not to the facts of the defendant’s conduct.
That simple point became a mantra in our .... ACCA decisions. At the risk of repetition (perhaps downright tedium), here are some examples. In Shepard [v. United States]: ACCA “refers to predicate offenses in terms not of prior conduct but of prior ‘convictions’ and the ‘element[s]’ of crimes.” 544 U.S. [13,] 19 [125 S.Ct. 1254 ,161 L.Ed.2d 205 ] [ (2005) ] (alteration in original). In James v. United States: “[W]e have avoided any inquiry into the underlying facts.of [the defendant’s] particular offense, and have looked solely to the elements of [burglary] as defined by [state] law.”550 U.S. 192 , 214 [127 S.Ct. 1586 ,167 L.Ed.2d 532 ] (2007). In Sykes v. United States: “[W]e consider [only] the elements of the offense[,] without inquiring into the specific conduct of this particular offender.”564 U.S. 1 , 7 [131 S.Ct. 2267 ,180 L.Ed.2d 60 ] (2011) (quoting James,550 U.S. at 202 [127 S.Ct. 1586 ]; emphasis in original). And most recently (and tersely) in Descamps [v. United States]: “The key [under ACCA] is elements, not facts.” [_ U.S. _] 133 S.Ct. [2276], 2283 [186 L.Ed.2d 438 ] [ (2013) ].
_ U.S. _,
i.
First, while Descamps states that when it comes to the ACCA, “the key is elements, not facts,” the FDPA stands for the converse: the key is facts, not elements. See Caro,
• The FDPA mandates “a separate sentencing hearing to determine the punishment to be imposed.”18 U.S.C. § 3593(b) .-
• At the hearing, no presentence report is prepared; instead, “information may be presented as to any matter relevant to the sentence,” which includes both aggravating and mitigating factors “required to be considered.”Id. § 3593(c) .
• The Government may present “any information relevant to an aggravating factor.”Id. § 3593(c) .
• (‘Information is admissible regardless of its admissibility under the rules governing admission of evidence at criminal trials except that information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury,” Id.
•' “The burden of establishing the exis- . tence of any aggravating factor is on the government, and -is not satisfiedunless the existence of such a factor is established beyond a reasonable doubt.” Id.
• “The jury ... shall consider all the information received during the hearing [and] shall return special findings identifying any aggravating factor or factors set forth in [§ 3592 ] found to exist....” Id. % 3593(d).
It is obvious Congress’s intent was that information relevant to the particular defendant and his or her particular sentence is fair game in the entirety of the sentencing hearing. Applying the categorical approach, even to one phase of that hearing, flouts this intent.
On this point, Appellant attempts to liken the text of (c)(2) to the type of language Taylor held to invoke the categorical approach. But Taylor itself distinguished a definition of violent felony that contained the phrase “has as an element,” which refers to the elements of statute, from one using the word “involves,” which likely refers to “the facts of each defendant’s conduct.”
Moreover, under Appellant’s reading of
ii.
Second, unless the defendant directs otherwise, the sentencing hearing must be conducted before a jury; therefore, disallowing a judge’s legal determination at the outset of the eligibility phase skirts any potential Sixth Amendment problem contemplated by Mathis. See
iii.
Our dissenting colleague believes employing the categorical approach would result in a fairer sentencing process, noting the gravity and seriousness of a death sentence. See post at 333-34. He admits that his approach “may render certain defendants who would otherwise be death eligible no longer able to be considered for capital punishment.” Id. at 338. In our view, however, any perceived fairness conferred to a defendant by use of the categorical approach in the FDPA context must be weighed against Congress’s obvious intent, careful delineation of the stages of death penalty sentencing, and the overall purpose of the FDPA.
Appellant and our dissenting colleague believe we should view the eligibility and selection phases in separate vacuums: although they recognize the FDPA’s emphasis on an individualized sentence, they attempt to confine that emphasis to the selection phase only. But the idea that an individualized analysis has no place in the eligibility phase is neither present in, nor contemplated by, the FDPA. For starters, the FDPA does not mandate trifurcated proceedings, meaning that courts are not required to separate the eligibility and selection inquiries into two separate hearings. In fact, we have held the Constitution does not require trifurcation. See Booth-El v. Nuth,
And holding that the categorical approach should apply in this case, but not a case with a bifurcated proceeding, like Higgs, could have untoward (and ultimately unfair) consequences. Generally, instead of requiring the Government consent to trifurcation, courts have followed normal motion practice procedure, taking each side’s arguments in turn. There are many reasons a defendant would desire trifurcation and an eligibility hearing first; for example, in the case at hand, evidence of the Zion crimes only came in at the selection phase, decreasing the potential for prejudice in the eligibility phase. But holding that the categorical approach should apply as a matter of law in the eligibility phase would surely discourage any zealous prosecutor from consenting to a trifurcat-ed proceeding. See, e.g., United States v. Bolden,
Finally, we cannot ignore the Supreme Court’s admonition that the statutory ag-gravators “must genuinely narrow the class of persons eligible for the death pen
The death penalty is reserved “for the most culpable defendants committing the most serious offenses,” Miller v. Alabama,
iv.
Finally, we address the Supreme Court’s decisions in James v. United States,
It is true that Higgs relied on the term “involv[e]” to demonstrate that a fact-specific inquiry was warranted, while James held that crimes defined by types of conduct “involved,” especially within the ACCA, are susceptible to the categorical approach. See James,
As for Johnson, that decision stated, “Taylor explained that the relevant part of the [ACCA] refers to ‘a person who ... has three previous convictions’ for — not a person who has committed — three previous violent felonies or drug offenses,” and “[t]h[e] emphasis on convictions indicates that Congress intended the sentencing court to look only to the fact that the defendant had been convicted of crimes falling within certain categories, and not to the facts underlying the prior convictions.”
In any event, our analysis does not rise and ‘fall on the Higgs decision. As the Eighth Circuit stated, the meaning of “involving” simply “does riot resolve the issue.” Rodriguez,
2.
Application
Having decided the categorical approach does not apply, we conclude that the Arlington crimes clearly qualify as pri- or convictions of violent felonies involving a firearm pursuant to § 3592(c)(2). For the events occurring on February 27, 2010, Appellant was convicted of, inter alia, use of a firearm in a felony, and breaking and entering while armed. Any challenge Appellant brings regarding whether these convictions “involved] the use or attempted or threatened use of a firearm ... against another person” is basically a sufficiency challenge that must fail. § 3592(c)(2).
Both J.T, and K.M. testified that Appellant had a firearm, and we' have held, “Eyewitness testimony is sufficient to prove that a person used a firearm.” Unit
C.
Competency Evaluation
Appellant also contends that the district court erred by allowing him to forego challenges to the Government’s eligibility and selection phase evidence and allowing him to waive a mitigation defense without “first determining his competency to make those decisions.” Appellant’s Br. 112. We review a court’s failure to conduct a competency hearing or evaluation for abuse of discretion. See United States v. Mason,
During-the course of the pre-trial proceedings, Appellant persistently urged the court to allow him' to represent himself, citing disputes with counsel. In early 2013, the district court sua sponte ordered a ■competency evaluation, the1 results of which were outlined in a letter to the district court on February- 19, 2013, approximately one year before trial began.
Psychiatrist Richard Ratner conducted the evaluation, which was comprised of a three hour jail interview with Appellant and lengthy discussions with three attorneys who knew or had worked with Appellant. Dr. Ratner did not conduct an extensive evaluation of Appellant’s previous psychiatric history or his developmental, family, social, educational, occupational, legal, and substance use history. Dr. Rat-nér’s letter mentions that Appellant had been examined by two other mental health professionals, but he neither requested nor had access to the results of that' testing. Nonetheless, Dr. Ratner concluded that Appellant did not suffer from a diagnosable mental illness, was fully competent to stand trial, and had the requisite mental and psychological capacity to represent himself.
Notably, Dr. Rainer’s letter explained that Appellant had a strong aversion to discussing his personal history and a strong opposition to pursuing a mitigation defense. He questioned Appellant’s judgment on these points, but explained that his choices should not have as significant an effect on the guilt phase. He noted, however, that if a question of competency was raised at the penalty phase, the court could deal with that issue at a later time.
Three days after the competency evaluation letter was written, the district court held a hearing in which Appellant himself stated it was probably “not in my best interests [sic] to represent myself.” Appel-
After Appellant was found guilty, he again clashed with counsel over whether to present mitigation evidence in the penalty phase. The district court held an ex parte hearing and asked defense counsel, “Have you seen a change in the mental health of Mr. Torrez over the last year?” Counsel responded that he and his co-counsel were “unable to file an affidavit that says [Appellant] is not competent.” J.A. 4400-01. The district court also stated that it had “checked with the Alexandria Detention Center to see whether there were any kind of incidents or any notes regarding a change in [Appellant’s] mental health, and they could not identify any.” Id. at 4401. The court then directed counsel to outline the mitigation case it would present, questioned Appellant at length, and ultimately found Appellant to be competent and allowed him to go forward with standby counsel present at the penalty phase.
Appellant now contends that the district court should have ordered a second competency evaluation and hearing before allowing Appellant to proceed to sentencing with only standby counsel and before he made the choice to present no mitigation evidence whatsoever.
At any time prior to sentencing a defendant, the district court “shall order [a competency] hearing on its own motion, if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him.”
Appellant contends that the district court was presented with several facts that mandated a court-ordered competency evaluation and hearing: defense counsel’s alleged “somewhat equivocal opinion” that Appellant was competent, Appellant’s Br. 114; defense counsel’s view that Appellant’s decision to forego a mitigation defense was irrational; the 2013 competency evaluation applied only to the guilt phase, and Appellant’s mental state in 2014 was “exacerbated by the stress of a capital trial,” id.\ the Government recommended another competency evaluation in the event of an appellate waiver; and there were “red flags” that Appellant was not competent, id. at 116.
We have reviewed these circumstances and conclude the district court did not abuse its discretion in failing to order a second evaluation and hearing. Defense counsel’s opinion about Appellant’s competency was unequivocal, and we have recognized a defendant can make a “rational choice” to forego a mitigation defense. Chandler v. Greene,
In addition, the Government’s request for a second competency evaluation came in its Position on Sentencing, and was made in the distinct context of a potential appellate waiver. Indeed, in that filing, the Government acknowledged, “[N]o ... showing [of a mental disease or defect] has been made with respect to the defendant.” J.A. 5246 n.l. Finally, the “red flags” mentioned by Appellant were either present before the 2013 evaluation, mentioned in the context of a wholly different issue in the case, or wholly non-probative of Appellant’s mental state. Therefore, Appellant has failed to demonstrate that the district court “ignored facts raising a bona fide doubt” regarding his competency, and we reject his arguments on this point, Walton,
D.
Other Sentencing Arguments
We have reviewed Appellant’s remaining sentencing arguments: whether Appellant’s Fifth Amendment rights were violated when the Government submitted and failed to correct allegedly false or misleading evidence in the eligibility phase; aside from the competency issue discussed above, whether the district court otherwise erred in allowing Appellant to waive his right to contest or rebut the Government’s case in the eligibility and selection phases of the sentencing trial; and whether the Eighth Amendment barred the admission of evidence of the Zion' murders in the selection stage. We find each of these arguments to be without merit.
V.
Conclusion
For the foregoing reasons, we find no reversible error as to the issues raised by Appellant. We are also satisfied that (1) the evidence clearly “supports the special finding of the existence of an aggravating factor required to be considered under section 3592,” and (2) the sentence of death was not “imposed under the influence of passion, prejudice, or any other arbitrary factor.”
AFFIRMED
Notes
. Citations to the "J.A." refer to the Joint Appendix filed by the parlies in this appeal.
. Two Arlington County police officers had observed someone matching Appellant’s description and driving a Dodge Durango stalking women from his car for long periods of time from February 4 through 6, days before the first Arlington crime.
. Appellant was eventually indicted for the • Zion murders in Illinois before the sentencing hearing in this case.
. Appellant also confided to El-Atari about the murders of Laura Hobbs and Krystal To-bias. He told him he killed two girls when he was 16 years old, and when the father of one of the girls confessed, "I was like, Damn.... I’m clean. I’m good. I ain’t got shit to worry about.” J.A. 5081. Appellant recounted the murders in excruciating detail, and his story corresponded with the autopsies of the girls. But again, he changed his story about his motive. See, e.g., id. at 5092 (stating it was ''[r]andom”); id. at 5115 (stating he did it for “no reason”); id. at 5140 (suggesting the girls saw him deliver drugs). He also claimed he did not have sexual contact with either one of them.
. Appellant acknowledges that his CSLI argument is foreclosed by this court’s en banc decision in United States v. Graham,
. Although this is, for all intents and purposes, a challenge to Appellant’s sentence, see Appellant’s Br, 179 n.73, we address it here because the voir dire occurred at the outset of trial, and Appellant contends the jurors were not “qualified to serve in a capital case,” see id. at 178.
. By its plain language, the FDPA does' not require a trifurcated proceeding; rather, it requires, after the guilt phase, "a separate sentencing hearing” and thus a bifurcated proceeding at minimum.
. Subsections (c)(2) and (c)(4) require that the defendant "has previously been convicted," whereas (c)(12) requires he "had previously been convicted.”
. To be sure, Almendarez-Torres's holding has become "shak[ier]” in the years since Higgs. See Alleyne v. United States, _ U.S. _,
. Although we recognize that we are constrained by Higgs on this issue, we nonetheless observe the merit of Appellant’s statutory argument. Unbound by Higgs, one could read the phrase ‘.‘has previously been convicted” in (c)(2) and (c)(4) as ambiguous and invoke the rule of lenity. And notwithstanding the lingering viability of Almendarez-Torres, the rule of lenity need not apply only to elements of a conviction, but can also apply to sentencing factors. See United States v. Hall,
. Smith also distinguished Higgs, explaining that Smith was originally charged with an aggravated robbery conviction but pled guilty to a robbery conviction; that is, "[i]n effect, he pled out from the alleged use of a firearm.” Id. at 717, In Higgs, however, Higgs "admitted as part of the guilty plea colloquy” that he used a firearm, telling the court at the plea colloquy that the prosecutor accused him of using the wrong gun. See id. This led Smith to hold that, even apart from the propriety of the categorical approach, "allowing evidence of Smith’s use of a firearm to prove the statutory aggravating factor alleged, in light of Smith’s guilty plea to a lesser charge which did not have firearm use as an element nor as part of the factual basis of the plea, would be unfair, unduly prejudicial and confusing to the jury.” Id. at 718.
. The dissent observes that even if a judge determines a prior conviction involves the use of a firearm, a capital jury must still determine “whether the government has sufficiently proved that the prior convictions exist,” thus retaining some role, albeit perhaps a "perfunctoiy” one. Post at 332 & n.6. Under the dissent’s view, however, the capital jury’s role in the eligibility phase is reduced to superficiality, and we fail to see how this satisfies the "jury’s prescribed function” as set forth in § 3592(c) and
. We take issue with the dissent's suggestions that it is “bizarre,” “especially strange,” and somehow "twists death penalty jurisprudence” to hold both (1) that permitting post-offense convictions to qualify as previous convictions can "narrow the class of all murderers to only murderers with previous convictions,” and (2) that the categorical approach does not "genuinely narrow" the class of persons eligible for the death penalty. Post at 333-34. Believing the former certainly does not preclude believing the latter. Higgs has already decided that using post-offense convictions genuinely narrows the class of murderers to those murderers who received a qualifying conviction before sentencing. See Higgs,
. The dissent also states that the word involving "on its own" cannot signify that the categorical approach is inappropriate. Post at 326, But Higgs did not rely on that word alone; it also noted the "individualized determination" required in the death penalty context. See
Concurrence Opinion
concurring in part and dissenting in part:
I agree with my colleagues in the majority that none of Appellant Jorge Torrez’s complaints with respect to his trial merit
I.
The majority opinion adequately lays out the facts and the basic premises of the Federal Death Penalty Act (FDPA),
•The government proceeded against the Appellant Jorge Torrez in this FDPA case on the exclusive basis of those two statutory aggravating factors. Torrez was convicted and found death eligible by the jury on the basis of these two statutory aggrava-tors, and subsequently the jury recommended he be sentenced to death.
II.
Although I have concerns about the appropriateness of using post-offense conduct as “previous convictions,” I share the majority’s view that we are bound by United States v. Higgs,
A.
The categorical approach was first announced in Taylor v. United States,
Section 924(e)(1) refers to “a person who ... has three previous convictions” for — not a person who has committed— three previous violent felonies or drug offenses.Section 924(e)(2)(B)(i) defines “violent felony” as any crime punishable by imprisonment for more than a year that “has as an element” — not any crime that, in a particular case, involves — the use or threat of force.
Id. The Court went on to further find that the legislative history “show[ed] that Congress generally took a categorical approach to predicate offenses,” and that there would be “practical difficulties and potential unfairness” in applying a factual approach to determining whether previous convictions fit within the defined “violent felonies” in the ACCA. Id. at 601-02,
In rejecting the categorical approach for
However, three and half years after our decision in Higgs, the Supreme Court issued "its opinion in James. In James, the Court expressly stated that it would apply the categorical approach of Taylor in determining whether an offense was one that “involves conduct that presents a "serious potential risk of physical injury to another.”
Subsequently, in Johnson, the statutory language that had been at issue in James was deemed unconstitutionally vague.
The majority concludes that the holdings of James and Johnson have not implicitly overruled our holding in Higgs. Ante at 319-20. I cannot agree. Our holding in Higgs was that the (c)(2) aggravator contains the word “involving,” which precludes application of the categorical approach.
As the majority points out, some statutes using the word “involving” are analyzed under the categorical approach, and some statutes using the word “involving” are not. See ante at 319-20.
The majority cites to the Eighth Circuit’s decision in United States v. Rodriguez,
Further, at least one district court has expressly called into question our holding in Higgs, declining to rely on it due to the Supreme Court’s holding in James. See United States v. Basciano,
At bottom, Higgs relied exclusively on the fact that the previous conviction for a firearm offense aggravator at (c)(2) includes offenses that “involv[e] the use or attempted or threatened use of a firearm ... against another person.” The Supreme Court in James and Johnson has disavowed the idea that the word “involve” alone can render a sentencing enhancement provision immune from the categorical approach. Accordingly, I would find that James and Johnson have implicitly overruled our conclusion in Higgs that the categorical approach does not apply to (c)(2), and start my analysis on this issue from a blank slate.
B.
Turning now to whether the categorical approach applies to previous convictions for the aggravators in
1.
To provide context for why I do not agree with the view of the majority opinion here, I briefly review the Supreme Court’s death penalty jurisprudence. The Court has broken down the penalty phase of capital sentencing into two different phases — eligibility and selection. Tuilaepa v. California,
2.
In reaching its conclusion, the majority relies on opinions from courts that reject the categorical approach by relying on the Supreme Court’s requirement that death penalty sentencing be individualized. See ante at 314-15; Rodriguez,
The only court to appreciate and give meaning to this distinction is the opinion of the district court in United States v. Smith,
[A]- state capital sentencing system must: (1) rationally narrow the class .of death-eligible defendants; and (2) permit a jury to .render a reasoned, individualized sentencing determination based on .a death-eligible defendant’s record, personal .characteristics, and the circumstances of his crime.
Marsh,
The majority resists this conclusion, and instead finds that that the legal distinction between eligibility and selection “is neither present in, nor contemplated by, the FDPA.” Ante at 318, I cannot agree. Although hot expressly laid out, the FDPA first requires a unanimous finding by-the jury of at least one statutory aggravator in order to consider whether the defendant may be sentenced to death. See
Thus, I cannot agree with the majority’s conclusion that the FDPA does not provide for a difference between eligibility and selection. Rather, I believe that- those are two different issues, involving distinct burdens and types of evidence available for consideration, and the jury must be instructed accordingly on what it may consider and how to reach each conclusion.
3.
Having concluded that there is a meaningful difference between the eligibility and selection phases that must be factored into this decision, I now move on to the question of whether we should apply the categorical approach to the (c)(2) and (c)(4) statutory aggravates. I conclude that we should.
As the majority discusses, the ACCA is the original source of the categorical approach. See ante at 315-16. But the categorical approach is not limited to the ACCA. It applies in the context .of immigration cases, see, e.g., Gonzalez v. Duenas-Alvarez,
Determining whether the categorical approach should be applied is a matter of statutory interpretation. In interpreting the statute, we examine the text to determine whether Congress intended to “re-ferí] to a generic crime, or .. :■ to the specific way in which an offender committed the crime on a specific occasion.”' Nijhawan v. Holder,
The Supreme Court has often explained the rationales for applying the categorical approach to the ACCA, doing so most recently in Mathis v. United States, _ U.S. _,
a.
I turn first to the text. When a statutory scheme “asks what offense the [defendant] was ‘convicted’ of,” our focus must move to an elements-based approach, as “ ‘[Conviction’ is. ‘the relevant statutory hook.’ ” Moncrieffe v. Holder,
By eliding the difference between eligibility and selection, the majority reads the FDPA to require a fact-intensive inquiry. See ante at 316 (citing United States v. Caro,
The text of the FPDA clearly focuses on a person’s having been convicted, and not on the committed conduct. A comparison of the statutory language in the FDPA and that in the ACCA and the INA — where we do apply the categorical approach — is illuminating:
• “[T]he defendant has previously been convicted of a Federal or State offense punishable by a term of imprisonment of more than 1 year, involving the use or attempted or threatened use of a firearm (as defined in section 921) against another person.”18 U.S.C. § 3592(c)(2) (emphasis added) (FDPA).
• “The defendant has previously been convicted of 2 or more Federal or State offenses, punishable by a term of imprisonment of more than 1 year, committed on different occasions, involving the infliction of, or attempted infliction of, serious bodily injury or death upon another person.”Id. § 3592(c)(4) (emphasis added) (FDPA).
• “In the case of a person who violates section 922(g) of this title and has three previous convictions by any court ... for a violent felony or a serious drug offense, or both ... such person shall be fined under this title and imprisoned not less than fifteen years.... ” Id. § 924(e)(1) (emphasis added) (ACCA).
• “Any alien who is convicted of an aggravated felony at any time after admission is deportable.”8 U.S.C. § 1227(a)(2)(A)(iii) (emphasis added) (INA).
There can be no meaningful textual difference between “has previously been convicted” as is found in the FDPA, “has ... previous convictions,” as is found in the ACCA, and “is convicted” as found in the INA. The majority focuses on drawing out distinctions between the FDPA and the ACCA, but never addresses the stark textual similarity that exists between the FDPA and the INA.
Further illustrating the importance of this textual analysis are the Court’s holdings in Nijhawan v. Holder,
In Nijhawan, the Court had considered the second part of that definition — the “loss” clause. The Court concluded that the “loss” clause required circumstance-specific analysis, and thus did not require application of the categorical approach.
Later, in Kawashima, the Court considered the first part of the definition — the “fraud or deceit” clause. When considering that part of the definition, the Court “employed] a categorical approach by looking to the statute defining the crime of conviction, rather than to the specific facts underlying the crime.”
Additionally, the majority focuses on the specifics of the sentencing hearing in order to conclude that the text of the FDPA does not support applying the categorical approach. Ante at 316-17. The majority concludes that because aggravating and mitigating evidence may be presented during the sentencing hearing, this indicates that the categorical approach cannot be applied. Id. This emphasis is misplaced not only for the reasons explained above regarding eligibility versus selection, but also because it ignores what actually happens in an ACCA case.
In an ACCA case, once the court applies the categorical approach to determine whether the mandatory minimum sentencing enhancement applies, that does not conclude the sentencing process. The court must still go through the Guidelines, determine whether there should be changes to the offense level, and determine an appropriate sentence guided by the sentencing factors in
Finally, in rejecting the textual argument, the majority fears that employing the categorical approach would be unwieldy, because the meaning of the (c)(2) and (c)(4) aggravators “would carry different meanings throughout the penalty phase.” Ante at 317. This is an overstated fear, and internally inconsistent with our approach to the FDPA sentencing process. Other statutory language from FDPA has different meanings in the eligibility and selection phases, and this has not proved problematic. For instance, the plain text of the FDPA requires only that the jury “identify! ] any aggravator factor or factors set forth in
In sum, I find the text supports and mandates that we apply the categorical approach to the (c)(2) and (c)(4) aggrava-tors.
b.
Turning next to concerns between judge and jury, I recognize that the same Sixth Amendment concerns that exist in the ACCA context, are not present in the FDPA context, as the statute requires the sentencing decisions to be rendered either by the jury or the court upon the defendant’s motion and the government’s approval. See
Applying the categorical approach would be entirely consistent .with the role of the jury in the FDPA. The judge would first determine whether the prior convictions categorically qualify under (c)(2) and (c)(4). Then, the jury would determine at eligibility whether the government has sufficiently proved that the prior convictions exist.
Further, in expressing its concerns regarding the role of the jury, the majority ignores the way in which we already use this scheme under the ACCA for offenses committed under
Therefore, while recognizing a lessened Sixth Amendment concern on this issue, I conclude that the jury would retain a meaningful role in the assessment of eligibility factors under the categorical approach.
c.
Finally, the issue of perceived unfairness weighs in favor of applying the categorical approach. The majority concludes that because the FDPA does not require bifurcated sentencing proceedings, there can be no perceived unfairness to the defendant. Ante at 318. The majority further concludes that the categorical approach would fail to genuinely narrow the class of death eligible defendants. Ante at 318 — 19. I disagree on both points.
In responding to both conclusions from the majority I am again guided by the significant difference that must exist in the eligibility and selection phase of sentencing. Even if conducted in one unified hearing, there are still different standards guiding the jury regarding what evidence may be considered at each phase, a point I make in great detail in Sections II.B.2 and II.B.3.a, sitpra, and need not repeat here.
The second conclusion additionally twists death penalty jurisprudence completely. It is quite bizarre to find that applying the categorical approach to these aggravators somehow runs afoul of the Eight Amendment requirement that statutory aggravators “genuinely narrow the class of persons eligible for the death penalty.” Zant,
Moreover, the majority also argues that the categorical approach would prevent a jury from giving a sentence of death to “the most culpable defendants committing the most serious offenses,” Miller v. Alabama,
Additionally, this concern is completely unfounded. Congress has made clear who the “most culpable” defendants are — those who satisfy the statutory aggravators. It is not for us to make a moral judgment about who should and should not be considered the “most culpable;” it is for us to interpret the statutory aggravator as written by Congress and determine whether a defendant actually falls within that aggravator. Further, so long as the defendant’s prior convictions qualify, nothing about applying the categorical approach at the eligibility phase would prevent information about the specifics of the prior convictions from being introduced at the selection phase. Additionally, if there are other ag-gravators that make the defendant death eligible, the categorical approach to the prior convictions statutory aggravator does not matter for the purposes of eligibility, and the information could be presented to the jury as a non-statutory aggravator during selection.
The real issue in determining unfairness to the defendant is the inequity that would occur if non-elemental facts were used to render the defendant death eligible. Using such facts is inherently unfair, for “Statements of ‘non-elemental fact’ in the records of prior convictions are prone to error precisely because their proof is unnecessary.” Mathis,
At trial, and still more at plea hearings, a defendant may have no incentive to contest what does not matter under the law; to the contrary, he “may have good reason not to” — or even be precluded from doing so by the court. When that is true, a prosecutor’s or judge’s mistake as to means, reflected in the record, is likely to go uncorrected. Such inaccura<-cies should not come back to haunt the defendant many years down the road by triggering a lengthy mandatory sentence.
Id. (citations and footnote omitted). But in the FDPA context, this does not trigger a lengthy mandatory sentence; instead, it triggers a defendant’s actual life and right to continued existence being put in jeopardy. There can be no greater unfairness.
Therefore, I find that perceived unfairness to the defendant also weighs in favor of applying the categorical approach.
C.
Finally, I would assess the convictions used by the government to determine whether they satisfy the (c)(2) and (c)(4) aggravators. In order for Torrez’s death
1.
Torrez’s prior convictions under Virginia law cannot make him death eligible under (c)(2). To qualify as a prior conviction under (c)(2), the prior conviction must involve “a firearm (as defined in section 921 [of Title 18]).”
Torrez’s conviction and the (c)(2) aggra-vator present the same problem. The (c)(2) aggravator specifically links the definition of a firearm to
The statute under which Torrez has four convictions, Va. Code § 18.2-53.1, prohibits the use, attempted use, or display of “any pistol, shotgun, rifle, or other firearm” in connection with certain felonies. As the Supreme Court of Virginia has held, this statute criminalizes not only “the use or display of an actual firearm that has the capability of expelling a projectile by explosion,” but also “an instrumentality that has the appearance of having the capability of an actual firearm.” Startin v. Commonwealth,
Torrez also has one conviction for common law burglary under Va. Code § 18.2-89, which has a grading enhancement if the defendant “was armed with a deadly weapon at the time.” Although no case from the Supreme Court of Virginia has defined “deadly weapon” for the purposes of this burglary statute, there have been lower court opinions defining the term
Because Virginia criminalizes even the use of toy guns that look like real ones unjler Va. Code § 18.2-63.1 and the use of any deadly weapon during a burglary under Va. Code § 18.2-89, neither crime requires the use of “a firearm (as defined in
Accordingly, Torrez has no convictions that satisfy the (c)(2) aggravator.
2.
In order for thé (c)(4) aggravator to be met, the prior offenses must (1) be committed on at least two separate occasions, and (2) “involvfe] the infliction of, or attempted infliction of, serious bodily injury or death upon another person.”
Torrez was convicted of committing robbery in violation of Va. Code § 18.2-58 and abduction with nefarious intent in violation of Va. Code § 18.2-48 on February 10, 2010, in connection with his attack on M.N. I would find that neither offense can satisfy (c)(4).
The requirement in (c)(4) of “seriously bodily injury or death” is similar to what we know as the “force clause” contained in the definition of “violent felony” under the ACCA and the definition of “crime of violence” under the career offender sentencing guideline,
a.
First, we look at Torrez’s conviction for common law robbery. Recently, in United States v. Winston,
b.
Because Torrez’s robbery conviction fails to satisfy the (c)(4) aggravator, the abduction offense must do so in order for the death sentence to be upheld. It does not. Torrez was conviction of abduction with nefarious intent in violation of Va. Code § 18.2-48. This offense raises the issue of divisibility under the categorical approach, because it lays out five different options for violating the statute.
If a statute “set[s] out elements in the alternative and thus create[s] multiple versions of the crime,” we consider the statute divisible and apply what we call the modified categorical approach. United States v, Montes-Flores,
I need not decide whether the offense set out in Va. Code § 18.2-48 is divisible; I can assume it is for the purposes of this analysis. Assuming divisibility and looking to the jury’s actual verdict form, Torrez was convicted of “abduction .,. with the intent to defile and/or the intent to extort money or gain pecuniary benefit” in violation of Va. Code § 18.2-48. J.N. 257. Thus, it is entirely unclear from the verdict form if the intent agreed upon by the jury was “intent to defile” or “intent to extort money or gain pecuniary benefit” with respect to his abduction of M.N. Assuming the least culpable criminal conduct under the categorical approach, the jury could have found Torrez guilty of abduction with intent to extort money. Extortion requires no force, let alone the actual or threatened infliction of serious bodily injury or death. As a result, the abduction offense does not qualify under the (c)(4) aggravator. Therefore, no February 10, 2010, offense qualifies, and thus (c)(4) cannot be satisfied because the only qualifying crimes were all committed on February 27, 2010.
Because I find that our holding in Higgs with respect to the categorical approach has been implicitly overruled by the Supreme Court, I would consider the issue anew and find that the categorical approach should apply to the aggravators found at
The death penalty is a complicated area of our law, especially when dealing with what makes a defendant eligible for capital punishment. I do not question the wisdom of Congress in passing the FDPA, nor do I question the wisdom of this nation’s vaunted prosecutors from using all available tools in their zealous prosecution of crime. But capital punishment must be effected fairly, consistently, without prejudice, and with the opportunity for mercy. Although the categorical approach may render certain defendants who would otherwise be death eligible no longer able to be considered for capital punishment, applying this understanding hews to the language of the statute as drafted by Congress.
For these reasons, I respectfully dissent from the majority’s holding with respect to Torrez’s sentence.
.
. In joining the majority's conclusion in Part IV.A, I- note that the holding from Higgs on this issue appears contrary to our conclusions in other contexts. See, e.g., United States v. Pressley,
. James was later overruled on other grounds by Johnson v. United States, _ U.S. _,
. The majority reasons that Congress used the word "involved” in other aggravators that are clearly not susceptible to the categorical approach. Ante at 319-20. This point, while correct, is inapposite, Both of the aggravators that do so —
. Because of the differences between the eligibility and selection phases, separate proceedings — as took place here — are, if not required, at least recommended, See Tuilaepa,
. To the extent this is open to criticism that this would be a perfunctory role for the jury to perform, I note that we require it of the jury in the context of an
. Having found that Higgs's holding was implicitly overruled, I do not reach the issue of drawing a distinction between- the unitary sentencing proceeding that occurred in Higgs and the bifurcated sentencing proceeding that occurred below. Thus, I do not respond to the majority’s arguments on this point.
. Torrez does not concede that the February 27, 2010 offenses qualify, see Appellant's Br. at 73, but as the government rightly responds, failure to- present an argument as to those offenses in the opening brief constitutes waiver, see Appellee’s Br, at 84-85.
. See 18 U.S.C, § 924(e)(2)(B)(i) ("[T]he term 'violent felony’ means any crime ,,. that has as an element the use, attempted use, or threatened use of physical force against the person of another..,.”) (emphasis added); U.S.S.G. § 4B 1.2(a)(1) ("The term ‘crime of violence’ means any- offense ,.. that has as an element the use, attempted use, or threatened use of physical force against the person of another.,..”) (emphasis added).'
Concurrence Opinion
concurring:
I concur in Judge Thacker’s thorough opinion in this case, save for footnote 10. Specifically, I see no need to second-guess our previous holding in United States v. Higgs that conduct occurring after the commission of a capital offense can make a defendant eligible for the death penalty. In my view, Higgs presented compelling justifications, rooted in the Federal Death Penalty Act’s language, for considering all conduct occurring before the sentencing phase of a capital case.