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Finally, the Government is held to the same standard(s) as criminal defendants on appeal…

Talk to anyone lucky enough to earn his/her livelihood through criminal appellate practice, and you’ll likely hear some version of the following complaint: the Government is never held to the same standard as the criminal defendant on appeal.  Whether it’s waiver during the trial-level proceedings, or a purported waiver during oral argument or in the briefing, it often seems like appellate courts give the Government a degree of latitude that is not usually afforded to the defense.  This case is an exception and a refreshing reminder to the Government that not dotting i’s and crossing t’s can have some meaningful consequences.

In United States v. Reyes-Rivas, the defendant/appellant argued during sentencing and on appeal that he did not meet the criteria for a “career offender” enhancement under section 4B1.1 of the Sentencing Guidelines.  Specifically, he argued one of his priors – a Puerto Rico conviction for fourth degree aggravated battery – did not qualify as a “crime of violence.”  He also argued that the conviction could not qualify as a “crime of violence” under the residual clause of section 4B1.1.  He reasoned that the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015) applied to the career offender enhancement because the residual clause language in the Armed Career Criminal Act was almost identical to the residual clause language in the Sentencing Guidelines.

Michael Brownlee is board-certified as an appellate expert by the Florida Bar.  He is a First Circuit CJA attorney and practices in federal appellate courts around the country.  He is also the founding member of The Brownlee Law Firm.  To learn more, visit or email Mike at 

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The Government disagreed, arguing that his Puerto Rico prior, did, in fact, constitute a “crime of violence” under the categorical analysis prescribed by Taylor v. United States, 495 U.S. 575 (1990).  The Government agreed that Johnson applied to the residual clause language of the Sentencing Guidelines, but argued the Puerto Rico conviction qualified under the “force clause.”  At sentencing, the Government introduced a Spanish-language copy of the defendant’s Puerto Rico conviction.  The Government requested 10 days to file a certified translation of the conviction to comply with the Jones Act and the district court granted the Government’s request.  But the Government never filed a translation.

After the defendant filed his notice of appeal, the Government filed a “motion requesting certification and forwarding of a modified record on appeal.”  In that motion, the Government stated that it failed to file a certified translation and requested supplementation of the record on appeal pursuant to Federal Rule of Appellate Procedure 10(e)(2)(B).  The district court granted the motion before the defendant had a chance to object, so following the district court’s ruling, the defendant/appellant moved for reconsideration.  He argued Rule 10(e)(2)(B) was an “inadequate procedural vehicle for curing violations to the Jones Act’s English-language requirement.”  The district court agreed with the defendant/appellant and vacated the order.

On appeal, Defendant/Appellant argued that his sentence should be vacated because of the Jones Act violation.  The Government responded that no Jones Act violation occurred, but failed to make any argument that if there was, in fact, a Jones Act violation, that the sentence could still somehow stand.  Moreover, the Government changed its position on appeal regarding the “career offender” enhancement.  It abandoned the argument it made below – that the conviction qualified under the “force clause” – and instead argued on appeal that in light of Beckles v. United States, 137 S. Ct 866 (2017), which was decided after defendant/appellant’s sentencing, the conviction qualified under the residual clause of section 4B1.1.

The First Circuit’s opinion is wonderful.  The Court finds there was an obvious Jones Act violation.  And because the Government made no argument on appeal that the sentence might be valid notwithstanding the Jones Act problem, the First Circuit held the sentence had to be vacated and remanded for resentencing.  Moreover, because the Government argued for the first time on appeal that Beckles applied, but failed to explain in its briefing how the Puerto Rico conviction qualified under the residual clause of the Sentencing Guidelines, the First Circuit refused to consider the argument.  But the best part is the First Circuit’s instructions on remand.  First, the Government would not be permitted to use the untranslated version of the conviction due to the Jones Act violation.  Second, because the Government abandoned on appeal the argument it made during sentencing – that the conviction qualified under the “force clause” – at resentencing, the Government would only be able to argue that the residual clause applied.  Finally, the Court noted that five months prior to the defendant/appellant’s original sentencing, the U.S. Sentencing Commission voted to adopt an amendment that eliminated the residual clause from the “crime of violence” definition under the Guidelines.  Even though the adopted version that eliminated the residual clause was not implemented until 5 months after the defendant/appellant’s original sentencing, according to the First Circuit, the “district court would have been aware of upcoming change.”  Thus, according to the First Circuit, it was for the district court ” to determine in the first instance what impact, if any, those actions by the Commission should have on” resentencing.  In other words, the First Circuit gave the district court a not-so-subtle hint that it might take a dim view of application of the residual clause on resentencing.  Basically, the First Circuit described why the Government was hamstrung (due to its own strategy on appeal) to the residual clause argument on resentencing, and then gave the district court a heads-up that a residual clause argument should not be well-received.  Kudos to the First Circuit for applying the same rules to the Government as appellate courts routinely apply to criminal defendants on appeal.

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