Sentence Enhancements Held Not Elements of Offense

Wednesday, February 6, 2013

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Sentence Enhancements Held Not Elements of Offense

Ninth Circuit Panel Holds State High Court Ruling Entitled to Deference

By JACKIE FUCHS, Staff Writer

Federal law does not require a state court to consider sentencing enhancements when determining if one offense is a lesser included offense of another, the Ninth U.S. Circuit Court of Appeals held yesterday.

The panel unanimously held that since U.S. Supreme Court cases have not clearly established whether sentencing enhancements constitute an element of an offense, especially outside the context of capital cases, the California Supreme Court’s determination that they do not—for purposes of the Double Jeopardy Clause—does not violate “clearly established federal law.”

The judges upheld Steve Allen Smith’s 2005 conviction of infliction of corporal injury on a spouse, with special findings of great bodily injury involving domestic violence and use of a deadly weapon and assault with a deadly weapon—the weapon in each instance being a telephone—and four other related counts.

Prosecutors presented evidence that Smith brutally beat his wife with his fists and the telephone, leaving her with multiple serious injuries, including a broken nose, brain injuries, and a stroke caused by an injury to her carotid artery, which left her partially paralyzed.

Smith appealed his conviction in state court claiming, among other grounds, that his conviction for assault with a deadly weapon, when coupled with the great-bodily-injury enhancement, was a lesser-included offense of his conviction for infliction of corporal injury on a spouse coupled with the deadly weapon enhancement. Therefore, he said, his rights under the Double Jeopardy Clause of the Fifth Amendment were violated.

The state courts disagreed, and after exhausting his state-law remedies, Smith filed a federal petition for a writ of habeas corpus under the Antiterrorism and Effective Death Penalty Act of 1996, based on its first prong, which provides that a writ of habeas corpus may be granted to a state prisoner if the state-court decision was “contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court.”

Smith relied on Apprendi v. New Jersey, 530 U.S. 466 (2000), Texas v. Cobb, 532 U.S. 162 (2001), and Sattazahn v. Pennsylvania, 537 U.S. 101 (2003), in which a fragmented high court ruled that the entry of a life sentence by the judge after a jury deadlocked on murder charges was not an acquittal so as to bar the state from seeking the death penalty at his retrial.

Ninth Circuit Chief Judge Alex Kozinski, sitting by designation on the U.S. District Court for the Eastern District of California, denied relief. He reasoned that it was not clear under Sattazahn whether sentencing enhancements must be considered as an element of an offense for purposes of the Double Jeopardy Clause or whether the decision is limited to the capital sentencing context.

As a result, the California appellate court’s decision did not violate clearly established federal law and was entitled to deference under AEDPA, Kozinski said.

The Ninth Circuit panel agreed, citing the familiar rule that where a fragmented court decides a case and no single rationale explaining the result enjoys the assent of five justices; its holding may be viewed as that position taken by the justices who concurred in the judgments on the narrowest grounds.

On that basis, Judge Jay Bybee concluded, the Supreme Court “has not squarely addressed the issue and fair-minded jurists could disagree as to the constitutional principle.” Thus, the panel held, a state court could not be expected—much less required—to defer to federal law which is not clearly established, and the cases cited by Smith were insufficient to entitle him to federal habeas relief.

Senior Judges Jerome Farris and Ferdinand F. Fernandez concurred in the opinion.

The case is Smith v. Hedgpeth, 11-16858.