Some Prop 47 Ideas – and Even One Opinion – Floating Around Out There

November 17, 2015
By Hanging Out with Carl Gunn


  • California’s Prop 47, which reduces simple possession from a felony to a misdemeanor and also allows already sentenced defendants to go back and have their convictions modified, can be used for our federal clients.
  • Among the arguments that can be made are that the prior conviction no longer qualifies as a prior felony for sentence enhancement purposes and no longer qualifies as a felony for purposes of impeachment under Rule 609 of the Federal Rules of Evidence.
  • A recent district court opinion by Judge Phillips in Riverside ordered resentencing for a defendant whose federal sentence had been enhanced based on a prior California conviction since reduced under Prop 47.



One of the mitigating statutes that’s been part of the better criminal law trend in the last few years is California’s Prop 47.  (By the way, and as an aside, for the significance of the number 47 at my alma mater, Pomona College, see the article linked here – or just generally Google “Pomona College and the number 47.”) As many, hopefully most, of you know, Prop 47 reduces simple possession of drugs from a felony to a misdemeanor and, even better, allows defendants who were previously convicted to go back to state court and have their prior convictions reduced from felonies to misdemeanors.

This has triggered thinking in our defense community about how, if at all, we can use this to help out our clients in federal court.  There’s a lot of ideas floating around out there, but I thought I’d share two of them that Dave McLane and Kevin Lahue here in my office are litigating, and a recent district court ruling in a different case by Judge Phillips in Riverside.  One argument is that the prior conviction, having been reduced to a misdemeanor, can’t support an enhancement under 21 U.S.C. § 841(b), because the enhancements under § 841(b) require “a prior conviction for a felony drug offense [that] has become final.”  (Emphasis added.)  A second argument is that the prior conviction can’t be used for impeachment purposes under Rule 609 of the Federal Rules of Evidence because it is no longer a crime “punishable . . . by imprisonment for more than one year.”

So you can see the arguments that can be made, I’m attaching – here, here, and here – Kevin’s and Dave’s briefing, as well as the government’s oppositions – here and here – so you can see what the government will argue in response.  (Credit should also go to the Federal Public Defender’s office, as Kevin tells me his briefing drew heavily on the Federal Public Defender briefing in the Judge Phillips case.)   But even better than just having arguments to make, of course, is a judge’s opinion that actually accepts the arguments.  So I’m attaching Judge Phillips’ opinion, entitled “Order Granting Motion for Resentencing,” here and offer a few tidbits from it.

Initially, because it’s in the form of a 2255 motion seeking to vacate the enhanced sentence in a prior federal case, Judge Phillips deals with the jurisdictional issue, which I won’t discuss here, but you can see in the linked opinion.  She then goes on to address the merits, in a way that should apply not just to 2255 motions but to pending cases in which the government is trying to rely on a California simple possession conviction that was formerly a felony and has since been reduced to a misdemeanor.  Judge Phillips starts by rejecting a government argument that all that matters is what the conviction was at the time the defendant was convicted.

The government’s premise here is that the enhanced sentencing is warranted if Petitioner committed his federal offense “after a prior conviction for a felony drug offense has become final,” and that this condition is a question of federal law, rendering subsequent changes in state law immaterial.
This argument is unpersuasive for several reasons.  First, while the construction of the terms “conviction” and “final” in the above-quoted language are questions of federal law, see, e.g., U.S. v. Norbury, 492 F.3d 1012, 1014-15 (9th Cir. 2007) [this a case relied on heavily by the government in Kevin’s and Dave’s case]; U.S. v. Suarez, 682 F.3d 1214, 1220 (9th Cir. 2012), the term “felony drug offense” is defined by explicit reference to state law, see 21 U.S.C. § 802(44).  Here, the California Superior Court determined that the offense for which Petitioner was convicted in [the prior state case] was, as a matter of state law, a conviction for a misdemeanor offense.

Order, at 8-9.  Judge Phillips then goes on to note that the Prop 47 statute “expressly applied retroactively to prior convictions” and quotes the relevant statutory provisions, including a subsection providing that any conviction that is modified “shall be considered a misdemeanor for all purposes.”  Order, at 9 (quoting Cal. Penal Code § 1170.18).  Finally she addresses a Third Circuit case cited by the government – which the government also cites in Kevin’s and Dave’s case – and explains how it is not only distinguishable but has “very instructive dicta” that actually supports the argument that the modified conviction can’t be treated as a felony under the federal enhancement statute.  Order, at 9-10 (discussing United States v. McGlory, 968 F.2d 309 (3d Cir. 1992)).

So think about using Prop 47 to help your federal clients in their federal cases.  There’s the two arguments Kevin and Dave have made, and there’s others out there to think about as well.  Maybe we can mitigate some past injustice in addition to preventing future injustice.