In a decision released yesterday, the 5th Circuit provided attorneys some guidance on what constitutes a final conviction for purposes of the sentencing enhancement of 21 U.S.C. 844(a). See United States v. Morales, 854 F.2d 65, 69 (5th Cir. 1988) for an explanation of the direct review requirement, and citing Smith v. Gonzales, 468 F.3d 272, 277-78 (5th Cir. 2006) for the discretionary review requirement).
The Andrade-Aguilar Court emphasized that the burden of proving that the first conviction was final rested upon the government. Andrade-Aguilar, No. 07-41132, slip op. at 5 (citing United States v. Herrera-Solorzano, 114 F.3d 48, 50 (5th Cir. 1997)). According to the Court, “the Government failed to prove by a ‘preponderance of the relevant and sufficiently reliable evidence’ that Andrade’s July conviction was final and thus that his conviction for the November offense qualified for the enhancement imposed.” Andrade-Aguilar, No. 07-41132, slip op. at 5 (quoting Herrera-Solorzano, 114 F.3d at 50).
The Fifth Circuit also noted that the non-citizen’s sentence of “at least four months more than the longest sentence under the harshest Guidelines range for which he may have been eligible” was not harmless error. Andrade-Aguilar, No. 07-41132, slip op. at 7.