Professional Documents
Culture Documents
SESSIONS 131
Cite as 894 F.3d 131 (4th Cir. 2018)
,
er must show that a reversal of the money
laundering convictions would have changed
his sentence on remand.
5. Allmendinger summarily claims that, if we the outcome of the hearing.’’ Appellant Br. at
find ineffective assistance of appellate coun- 12. He offers no case law to support this
sel, it would violate his ‘‘right to due process contention. We reject it in the circumstances
to appear before a judge that has pre-decided presented here.
132 894 FEDERAL REPORTER, 3d SERIES
constitute a ‘‘punishment’’ or ‘‘penalty’’ un- punishment, and BIA addressed the argu-
der Immigration and Nationality Act. ment, explicitly agreeing with the Immi-
Petition granted. gration Judge’s determination that the rec-
ord of conviction showed alien was ordered
to pay $100 as a penalty for his conviction,
1. Aliens, Immigration, and Citizenship
therefore satisfying the Act’s ‘‘punishment
O335
or penalty’’ requirement. Immigration
If the government believes the alien and Nationality Act § 240A, 8 U.S.C.A.
seeking cancellation of removal does not § 1229b(b)(1)(C); Fed. R. App. P. 28(j).
satisfy all applicable cancellation criteria, it
may move to ‘‘pretermit’’ the alien’s appli- 5. Aliens, Immigration, and Citizenship
cation, thereby effectively requesting a de- O281(1)
termination that the alien is ineligible for Section of Immigration and Nationali-
cancellation. Immigration and Nationality ty Act providing that a conviction meant
Act §§ 212, 240A, 8 U.S.C.A. §§ 1182, that judge had ordered some form of pun-
1229b(b)(1)(C). ishment, penalty, or restraint on the alien’s
2. Administrative Law and Procedure liberty to be imposed employed the terms
O438(29) ‘‘punishment’’ and ‘‘penalty’’ in their plain
Aliens, Immigration, and Citizenship and ordinary sense, and required judge to
O404 order a punitive sanction—i.e., one that is
intended to discipline or deter and was
When only one member of the Board
proportionate to the underlying offense
of Immigration Appeals (BIA) issued the
conduct. Immigration and Nationality Act
underlying opinion, the opinion is not one
§ 101, 8 U.S.C.A. § 1101(a)(48)(A).
in which the BIA exercised its authority to
make a rule carrying the force of law and 6. Statutes O1091
thus is not entitled to Chevron deference.
In defining terms in a statute, the
3. Aliens, Immigration, and Citizenship Court of Appeals gives the terms their
O398 ordinary, contemporary, common meaning,
When the Board of Immigration Ap- absent an indication Congress intended
peals (BIA) issues its own opinion rather them to bear some different import.
than merely adopting the Immigration
7. Aliens, Immigration, and Citizenship
Judge’s underlying opinion, the Court of
O281(1)
Appeals reviews only the BIA’s opinion.
A monetary assessment amounts to a
4. Aliens, Immigration, and Citizenship ‘‘punishment’’ or ‘‘penalty’’ for purposes of
O388 the Immigration and Nationality Act if it is
In challenge to denial of cancellation principally intended to serve a punitive
of removal, alien, who was native and citi- purpose, that is, if a judge orders the
zen of El Salvador, administratively ex- monetary assessment to advance a puni-
hausted his claim that court costs under tive goal tethered to the defendant’s de-
North Carolina law did not satisfy the gree of culpability in light of her specific
relevant Immigration and Nationality Act actions. Immigration and Nationality Act
definitions; alien argued to the Board of § 101, 8 U.S.C.A. § 1101(a)(48)(A).
Immigration Appeals (BIA) that costs did
See publication Words and Phrases
not convert a prayer for judgment into a for other judicial constructions and
judgment because costs did not amount to definitions.
GONZALEZ v. SESSIONS 133
Cite as 894 F.3d 131 (4th Cir. 2018)
ting in Wake County, North Carolina.1 At Cabrera as its sole support, and therefore
that time, the state court entered a verdict dismissed Guzman’s appeal. Guzman time-
of ‘‘prayer for judgment continued’’ and ly sought relief in this Court.
assessed $100 in court costs. The court did
not impose restitution or order Guzman to
pay a fine. II.
1. The sole record of these state-court proceed- from the Wake County Clerk of Superior
ings is a citation-disposition form obtained Court in 2014.
136 894 FEDERAL REPORTER, 3d SERIES
2. Guzman also argues that because ‘‘a verdict administratively exhaust his claim that court
of ‘prayer for judgment’ does not constitute a costs under North Carolina law do not satisfy
conviction under North Carolina law,’’ his the relevant Act definitions. Assuming, with-
citation disposition cannot fall within the out deciding, that the government properly
Act’s ambit. Pet’r’s Br. 10. However, the Act, raised this argument, but see, e.g., United
not North Carolina law, governs the relevant States v. Ashford, 718 F.3d 377, 381 (4th Cir.
definition of ‘‘conviction.’’ See, e.g., In re Esla- 2013) (‘‘We do not countenance a litigant’s
mizar, 23 I. & N. Dec. 684, 686–87 (B.I.A. use of Rule 28(j) as a means to advance new
2004) (en banc). Accordingly, we reject Guz- arguments couched as supplemental authori-
man’s argument that North Carolina’s defini- ties.’’), we conclude it fails because Guzman
tion alone resolves this case. adequately raised the issue below. In particu-
lar, Guzman argued to the Board that ‘‘costs
3. When, as here, the Board issues its own TTT do not convert a [prayer for judgment]
opinion rather than merely adopting the Im- into a judgment’’ because costs do not
migration Judge’s underlying opinion, we re- ‘‘amount to punishment.’’ A.R. 14. The Board
view only the Board’s opinion. E.g., Martinez, addressed this argument, explicitly agreeing
740 F.3d at 908. with the Immigration Judge’s determination
‘‘that the record of conviction shows [Guz-
4. Five days prior to oral argument, the gov- man] was ordered to pay $100 as a penalty
ernment submitted a letter pursuant to Fed- for his conviction,’’ therefore satisfying the
eral Rule of Appellate Procedure 28(j) (‘‘Cita- Act’s ‘‘punishment [or] penalty’’ requirement.
tion of Supplemental Authorities’’), citing Id. at 4. Accordingly, Guzman adequately ex-
several long-established authorities and argu- hausted his administrative remedies prior to
ing, for the first time, that Guzman failed to petitioning this Court.
GONZALEZ v. SESSIONS 137
Cite as 894 F.3d 131 (4th Cir. 2018)
of ‘‘costs’’ under North Carolina law con- tion 1101(a)(48)(A) if it is principally in-
stitutes a ‘‘punishment’’ or ‘‘penalty’’ for tended to serve a punitive purpose—that
purposes of the Act. Conceding that this is, if a judge orders the monetary assess-
issue is one ‘‘of first impression for the ment to advance a punitive goal tethered
Fourth Circuit,’’ the government argues to the defendant’s degree of culpability in
that the ‘‘costs’’ assessed in Guzman’s case light of her specific actions.
are analogous to ‘‘fine[s] or restitution,’’ Black’s Law Dictionary and Merriam–
which courts have held, at least in the Webster define ‘‘penalty’’ and ‘‘punish-
criminal sentencing context, ‘‘constitute[ ] ment’’ in similar terms, often using one
a form of ‘punishment’ or ‘penalty’ ’’ under term to help give meaning to the other. A
the Act. Resp’t’s Br. at 16–17. We dis- punishment is ‘‘[a] sanction—such as a
agree. fine, penalty, confinement, or loss of prop-
To resolve Guzman’s petition, we must erty, right, or privilege—assessed against
address three issues: (1) the definitions of a person who has violated the law,’’ Pun-
‘‘punishment’’ and ‘‘penalty,’’ as those ishment, Black’s Law Dictionary (10th ed.
terms are used in 8 U.S.C. 2014), or ‘‘a penalty inflicted by a court of
§ 1101(a)(48)(A); (2) the import under justice on a convicted offender,’’ Webster’s
North Carolina law of a verdict requiring Third New International Dictionary 1843
payment of ‘‘costs’’ in conjunction with a (Philip Babcock Gove et al. eds., 2002)
prayer for judgment continued; and, (3) in [hereinafter Webster’s]. Similarly, a penal-
view of those substantive definitions, ty is ‘‘[p]unishment imposed on a wrong-
whether the imposition of costs assessed doer, usu[ally] in the form of imprisonment
attendant to a North Carolina disposition or fine,’’ Penalty, Black’s Law Dictionary
of prayer for judgment continued consti- (10th ed. 2014), or ‘‘the suffering in person,
tutes a ‘‘punishment’’ or ‘‘penalty’’ for pur- rights, or property which is annexed by
poses of the Act. We examine each issue in law or judicial decision to the commission
turn. of a crime or public offense,’’ Webster’s,
supra, at 1668. As the Ninth Circuit has
1. recognized, these largely coextensive defi-
nitions ‘‘require[ ] a ‘conviction’ [as defined
[5–7] Turning first to the Act’s defini-
in the Act] to have some punitive aspect.’’
tion of ‘‘punishment’’ and ‘‘penalty,’’ we
Retuta v. Holder, 591 F.3d 1181, 1188 (9th
analyze these terms ‘‘start[ing] with the
Cir. 2010) (emphasis added); see also Web-
plain language.’’ Crespo v. Holder, 631
ster’s, supra, at 1843 (defining punishment
F.3d 130, 133 (4th Cir. 2011) (quoting U.S.
as a judicially imposed sanction ‘‘aiming at
Dep’t of Labor v. N.C. Growers Ass’n, 377
either prevention, retribution, or reforma-
F.3d 345, 350 (4th Cir. 2004) ). In so doing,
tion’’ (emphasis added) ).
‘‘we give the terms their ‘ordinary, con-
temporary, common meaning, absent an [8] This punitive understanding of the
indication Congress intended [them] to meaning of ‘‘punishment’’ and ‘‘penalty’’ in
bear some different import.’ ’’ Id. (quoting Section 1101(a)(48)(A) conforms to the con-
North Carolina ex rel. Cooper v. Tenn. struction of those terms in other statutory
Valley Auth., 515 F.3d 344, 351 (4th Cir. provisions. For example, in construing the
2008) ). Applying this well-established in- term ‘‘penalty’’ in a federal statute of limi-
terpretive approach, we conclude that a tations, the Supreme Court appealed to
monetary assessment amounts to a ‘‘pun- longstanding precedent regarding the
ishment’’ or ‘‘penalty’’ for purposes of Sec- meaning of the term and held that ‘‘a
138 894 FEDERAL REPORTER, 3d SERIES
pecuniary sanction operates as a penalty wrongfulness of the crime. See, e.g., Solem
only if it is sought ‘for the purpose of v. Helm, 463 U.S. 277, 284, 103 S.Ct. 3001,
punishment, and to deter others from of- 77 L.Ed.2d 637 (1983) (‘‘The principle that
fending in like manner.’ ’’ Kokesh v. S.E.C., a punishment should be proportionate to
––– U.S. ––––, 137 S.Ct. 1635, 1642, 198 the crime is deeply rooted and frequently
L.Ed.2d 86 (2017) (quoting Huntington v. repeated in common-law jurisprudence.’’).
Attrill, 146 U.S. 657, 668, 13 S.Ct. 224, 36 And this Court and other courts have con-
L.Ed. 1123 (1892) ); see also Meeker v. cluded that a federal victim’s assistance
Lehigh Valley R.R. Co., 236 U.S. 412, 423, fund assessment constitutes a ‘‘punish-
35 S.Ct. 328, 59 L.Ed. 644 (1915) (holding ment’’ for purposes of the Assimilative
that the words ‘‘penalty or forfeiture’’ in Crimes Act because, among other reasons,
federal statute ‘‘refer to something im- the assessment ‘‘varies in severity with the
posed in a punitive way for an infraction nature of the crime committed.’’ See, e.g.,
of a public law’’ (emphasis added) ). And United States v. King, 824 F.2d 313, 316
even when a statute delineates a monetary (4th Cir. 1987); United States v. Mayberry,
sanction that is not expressly ‘‘define[d] 774 F.2d 1018, 1021 (10th Cir. 1985) (also
TTT in terms as a punishment or penalty,’’ noting that assessment was ‘‘penal in na-
if the sanction is imposed as retribution to ture’’).
the offender and to ‘‘operate[ ] as a warn- Because a punishment or penalty must
ing’’ to similarly situated individuals, then be proportionate to a defendant’s wrongdo-
the sanction is ‘‘a punishment or penalty’’ ing, courts generally refuse to treat a mon-
due to its punitive ‘‘character.’’ See Helwig etary assessment as a punishment or pen-
v. United States, 188 U.S. 605, 610–11, 23 alty when the assessment solely reflects
S.Ct. 427, 47 L.Ed. 614 (1903). the costs of compensating a private party
or the government for losses resulting
[9, 10] To properly advance these puni- from the wrongdoing. See Kokesh, 137
tive goals of retribution and deterrence, a S.Ct. at 1642 (distinguishing ‘‘penalty’’
particular punishment or penalty must ac- from judgments ‘‘compensating a victim
count for the culpability flowing from the for his loss’’); Gabelli v. S.E.C., 568 U.S.
actor’s underlying conduct. For instance, 442, 451–52, 133 S.Ct. 1216, 185 L.Ed.2d
punitive damage awards generally must be 297 (2013) (stating that ‘‘penalties TTT go
proportionate to the ‘‘reprehensibility of beyond compensation, [and] are intended
the defendant’s [specific] conduct.’’ See, to punish TTT and label defendants wrong-
e.g., BMW of N. Am., Inc. v. Gore, 517 doers’’); Johnson v. S.E.C., 87 F.3d 484,
U.S. 559, 575, 116 S.Ct. 1589, 134 L.Ed.2d 488 (D.C. Cir. 1996) (‘‘[W]e conclude that a
809 (1996); id. at 575 n.23, 116 S.Ct. 1589 ‘penalty,’ as that term is used in [28
(‘‘The flagrancy of the misconduct is U.S.C.] § 2462, is a form of punishment
thought to be the primary consideration in imposed by the government for unlawful
determining the amount of punitive dam- or proscribed conduct, which goes beyond
ages.’’ (internal quotation marks omitted) ); remedying the damage caused to the
see also Restatement (Second) of Torts harmed parties by the defendant’s ac-
§ 908 (1979) (‘‘Punitive damages are TTT tion.’’). For example, courts have recog-
awarded against a person to punish him nized that monetary interest imposed un-
for his outrageous conduct and to deter der the Internal Revenue Code ‘‘is not a
him and others like him from similar con- penalty but is intended only to compensate
duct in the future.’’). So too must a crimi- the Government for delay in payment of a
nal punishment be proportionate to the tax.’’ Springer v. Comm’r, 580 F.3d 1142,
GONZALEZ v. SESSIONS 139
Cite as 894 F.3d 131 (4th Cir. 2018)
1146 (10th Cir. 2009) (quoting Avon Section 1101(a)(48)(A) nowhere indicates
Prods., Inc. v. United States, 588 F.2d 342, that Congress intended to establish a defi-
343 (2d Cir. 1978) ). Likewise, courts have nition of penalty or punishment contrary
held that costs imposed to reimburse a to these long-standing and well-established
state professional regulatory body for ex- understandings of the terms. On the con-
penses incurred in holding a disciplinary trary, Section 1101(a)(48)(A)(ii) states that
hearing do not constitute a ‘‘penalty’’ for a ‘‘punishment’’ or ‘‘penalty’’ constitutes a
purposes of the Bankruptcy Code’s dis- component of a ‘‘conviction’’ only if the
charge provision. See In re Schaffer, 515 punishment or penalty is ordered by a
F.3d 424, 427, 433 (5th Cir. 2008); In re ‘‘judge.’’ By contrast, in other provisions in
Taggart, 249 F.3d 987, 991–93 (9th Cir. the very same subsection, Congress elect-
2001), superseded by statute, Cal. Bus. & ed to refer to orders of ‘‘a court.’’ 8 U.S.C.
Prof. Code § 6086.10(e) (West 2004), as §§ 1101(a)(48)(B) (‘‘[T]he period of incar-
recognized in In re Findley, 593 F.3d ceration or confinement ordered by a court
1048, 1052–53 (9th Cir. 2010). The distinc- of law.’’), 1101(a)(48)(A) (‘‘[A] formal judg-
tion between compensatory relief and pen- ment of guilt of the alien entered by a
alties harkens back to the days of the court.’’); cf. also § 1101(a)(48)(A)(i) (speci-
divided bench in our judicial system: fying ‘‘a judge or jury’’ as satisfactory
‘‘[r]emedies intended to punish culpable actors (emphasis added) ). By juxtaposing
individuals, as opposed to those intended ‘‘judge’’ with ‘‘court,’’ Congress evinced an
simply to extract compensation or restore intent that ‘‘penalties’’ and ‘‘punishments’’
the status quo, were issued by courts of in Section 1101(a)(48)(A)(ii) constitute dis-
law, not courts of equity.’’ Tull v. United cretionary acts of judgment as opposed to
States, 481 U.S. 412, 422, 107 S.Ct. 1831, the broader set of ministerial or adminis-
trative decrees or assessments a court may
95 L.Ed.2d 365 (1987).
impose. Cf., e.g., Decatur v. Paulding, 39
And because a penalty or punishment U.S. 599, 606, 14 Pet. 599 (1840) (Baldwin,
must be proportionate to a defendant’s J., concurring) (distinguishing a ‘‘judicial
wrongdoing, courts are more likely to treat act,’’ characterized as an ‘‘exercise [of] dis-
a monetary assessment as a penalty or cretion,’’ from a ‘‘mere ministerial act re-
punishment if the adjudicator is endowed quired by law’’); In re Soares, 107 F.3d
with discretion to determine both whether 969, 974 (1st Cir. 1997) (explaining that,
to impose the assessment and the amount for purposes of the Bankruptcy Code’s au-
of any assessment imposed. Compare tomatic stay provision, ‘‘when an official’s
Richmond v. N.H. Supreme Court Comm. duty is delineated by, say, a law or a
On Prof’l Conduct, 542 F.3d 913, 919 (1st judicial decree with such crystalline clarity
Cir. 2008) (concluding that ‘‘costs’’ as- that nothing is left to the exercise of the
sessed by state in attorney disciplinary discretion or judgment, the resultant act is
proceeding was a ‘‘penalty’’ for purposes of ministerial TTTT Such acts can usefully be
the Bankruptcy Act’s discharge provision visualized as the antithesis of judicial acts,
because the costs were ‘‘quite discretion- inasmuch as the essence of a judicial act is
ary,’’ rather than routine), with Taggart, the exercise of discretion or judgment’’).
249 F.3d at 991–94 (concluding that costs Likewise, other references to ‘‘penalties’’
imposed in attorney disciplinary proceed- in the Act correspond to the common puni-
ing were not a ‘‘penalty’’ for purposes of tive understanding of the term, providing
discharge provision because they were an adjudicator with discretion to impose a
‘‘mandatory’’ rather than ‘‘discretionary’’). sanction proportionate to the defendant’s
140 894 FEDERAL REPORTER, 3d SERIES
wrongdoing. See, e.g., 8 U.S.C. §§ 1306(a) ing that petitioner’s ‘‘deferred adjudica-
(section entitled ‘‘Penalties’’ for registra- tion’’ in Texas was a ‘‘conviction’’ under the
tion-related offenses, providing that alien Act because such adjudications grant
‘‘shall, upon conviction TTT, be fined not to judge discretion to ‘‘place the defendant on
exceed $1,000 or be imprisoned not more community supervision’’ or ‘‘impose a fine
than six months, or both’’), 1253(a) (provid- applicable to the offense,’’ and judge exer-
ing that alien ‘‘shall be fined under Title cised such discretion in imposing various
18, or imprisoned not more than four years conditions attendant to alien’s deferred ad-
(or 10 years if the alien is a member of any judication); Griffiths v. I.N.S., 243 F.3d 45,
of the classes described in paragraph 54–55 (1st Cir. 2001) (explaining that it
(1)(E), (2), (3), or (4) of section 1227(a) of could be ‘‘possible’’ to find that state judge
this title), or both’’); see also § 1324d(a) effectively imposed a ‘‘time-served’’ sen-
(providing that alien ‘‘shall pay a civil pen- tence because judge determined that a
alty of not more than $500 to the Commis- ‘‘past punishment’’ for the underlying of-
sioner for each day the alien is in violation fense conduct was sufficient ‘‘punishment
of this section’’). for the present charge’’). The government
That punishment and penalty refer to a does not point to—nor have we found—a
discretionary sanction imposed for a puni- case holding that a petitioner’s guilty plea
tive purpose is further borne out in the and subsequent payment of a mandatory
relevant caselaw. For instance, this Court assessment untethered from the petition-
has held that probationary conditions tai- er’s degree of culpability satisfies the Act’s
lored by a judge to the underlying offense ‘‘punishment’’ or ‘‘penalty’’ requirement.
conduct constitute a penalty or punish-
ment. See Jaquez v. Sessions, 859 F.3d In sum, we conclude that Section
258, 262 (4th Cir. 2017) (holding that state 1101(a)(48)(A) employs the terms ‘‘punish-
judge ordered ‘‘some form of punishment, ment’’ and ‘‘penalty’’ in their plain and
penalty, or restraint on TTT alien’s liberty’’ ordinary sense. This requires a judge to
when, given the offender’s plea of guilty to order a punitive sanction—i.e., one that is
cocaine possession, state judge ‘‘placed [of- intended to discipline or deter and is pro-
fender] on probation for one year and portionate to the underlying offense con-
mandated numerous conditions, including duct. This definition accords with dictio-
good behavior, full-time employment, and nary definitions, common understanding,
abstention from alcohol and drugs’’ (quot- the Act’s statutory context, and relevant
ing 8 U.S.C. § 1101(a)(48)(A)(ii) ) ); Dung caselaw.
Phan v. Holder, 667 F.3d 448, 452 (4th Cir.
2012) (drug-specific ‘‘conditions of proba- 2.
tion, backed by the specter of a suspended
prison sentence, are most certainly a form With this definition of punishment or
of punishment or penalty’’). Our sister cir- penalty in place, we next look to North
cuits similarly have focused on whether a Carolina law to determine the substantive
monetary assessment or other sanction character of the monetary assessment im-
was tailored to a defendant’s culpability posed in this case. See Cabrera, 24 I. & N.
and imposed at the discretion of a judge in Dec. at 460 (‘‘[W]e conclude that a uniform
determining whether the assessment or Federal definition should govern in deter-
sanction amounted to a penalty or punish- mining whether the assessment of costs
ment. See, e.g., Moosa v. I.N.S., 171 F.3d and surcharges constitutes a ‘penalty’ or
994, 1002, 1005–06 (5th Cir. 1999) (explain- ‘punishment,’ irrespective of how the State
GONZALEZ v. SESSIONS 141
Cite as 894 F.3d 131 (4th Cir. 2018)
might characterize them.’’ (emphasis add- one] in which the judge [i]s not involved in
ed) ). In assessing the state sanction at its disposition, the clerk, through his depu-
issue, it is not the state-law ‘‘label’’ for the ty or assistant, [may be] the proper official
monetary assessment that guides our to tax or assess costs.’’ Thigpen v. Piver,
analysis, but rather the substance of the 37 N.C.App. 382, 246 S.E.2d 67, 70 (1978).
assessment that dictates whether it falls [13–16] By contrast, under North
under the Act’s definition of penalty or Carolina law ‘‘restitution’’ serves to com-
punishment. See, e.g., Eslamizar, 23 I. & pensate an aggrieved party. See N.C.
N. Dec. at 687–88 (concluding Oregon’s Gen. Stat. § 15A-1340.35 to .36; Shore v.
‘‘use [of] the label ‘criminal’ to describe’’ Edmisten, 290 N.C. 628, 227 S.E.2d 553,
the relevant state proceedings must yield 559 (1976). To that end, in determining
to the substance of the actual state-law whether, and in what amount, to award
process); Griffiths, 243 F.3d at 53 (‘‘[T]he restitution, a judge must make findings
B[oard] assessed whether the guilty-filed regarding the amount of financial harm
disposition under Massachusetts law fell the defendant’s unlawful actions caused
within the category demarcated by the the aggrieved party. See, e.g., Shore, 227
[Act’s] second [conviction] prong.’’). S.E.2d at 559; State v. Killian, 37
[11, 12] In North Carolina, there are N.C.App. 234, 245 S.E.2d 812, 815 (1978)
three specific types of post-verdict mone- (‘‘[T]he [restitution] sum ordered or rec-
tary payments that might have been appli- ommended must be reasonably related to
cable in the instant case: ‘‘costs,’’ ‘‘restitu- the damages incurred.’’). Similarly, North
tion,’’ and ‘‘fines.’’ ‘‘Costs TTT are entirely Carolina defines ‘‘fines’’ as ‘‘pecuniary
creatures of legislation, and without this punishment exacted by the state and im-
they do not exist.’’ City of Charlotte v. posed in the discretion of the trial court
McNeely, 281 N.C. 684, 190 S.E.2d 179, for the purpose of punishing the defen-
185 (1972) (quoting Clerk’s Office v. dant.’’ Shore, 227 S.E.2d at 559. Again,
Comm’rs of Carteret Cty., 121 N.C. 29, 27 the imposition of a fine requires a judge
S.E. 1003, 1003 (1897) ). ‘‘[I]t follows a to determine, based on the facts and cir-
fortiori that ‘[c]ourts TTT have no power to cumstances of the offense, the appropriate
adjudge costs against anyone on mere eq- amount of monetary sanction necessary to
uitable or moral grounds.’ ’’ Id. (alterations punish the defendant and deter similar
in original) (quoting 20 C.J.S. Costs §§ 1, 2 misconduct in the future.
(1940) ). Instead, costs are tied to the
3.
‘‘[r]evenues and [e]xpenses of the Judicial
Department’’ incurred in adjudicating a [17] Having determined the meaning
defendant. N.C. Gen. Stat. ch. 7A, subch. of penalty and punishment in Section
VI; see id. § 7A-2(6). For example, the 1101(a)(48)(A)(ii) and the nature of ‘‘costs’’
statutory costs imposed at the superior under North Carolina law, we now turn to
court level include $15 for use of ‘‘pretrial whether the costs imposed in Guzman’s
release services,’’ $30 for ‘‘the use of the case amount to a penalty or punishment.
courtroom and related judicial facilities,’’ We conclude that they do not.
and $154.50 ‘‘[f]or support of the General As explained above, under North Car-
Court of Justice.’’ Id. §§ 7A-304(a)(2), (4), olina law, ‘‘costs’’ are not punitive in na-
(5). Additionally, a judge need not be the ture. Costs cannot be imposed ‘‘on mere
court official to assess them: even if a case equitable or moral grounds,’’ McNeely, 190
‘‘never reache[s] the trial calendar and [is S.E.2d at 185—i.e., as a discretionary judi-
142 894 FEDERAL REPORTER, 3d SERIES
cial act—but instead are imposed as a sentence, ‘‘from which the defendant may
ministerial act, pursuant to statute. Addi- appeal.’’ See Griffin, 100 S.E.2d at 51 (em-
tionally, the costs are designed to compen- phasis added). However, a ‘‘[p]rayer for
sate the North Carolina justice system for judgment continued upon payment of
the cost of adjudication. See N.C. Gen. costs, without more, does not constitute
Stat. § 7A-304 (imposing costs for various the entry of judgment,’’ N.C. Gen. Stat.
court or law-enforcement services and fa- § 15A-101(4a), and therefore ‘‘a require-
cilities). In providing this compensation, ment to pay the costs of court’’ does not
controlled substance violations do not trig- constitute a sentencing ‘‘[c]ondition[ ] TTT
ger any unique North Carolina criminal ‘amounting to punishment.’ ’’ State v. Popp,
costs. See N.C. Gen. Stat. §§ 7A-304, 7A- 197 N.C.App. 226, 676 S.E.2d 613, 614
320. And, unlike the judicial discretion in- (2009) (emphasis added) (quoting Brown,
herent in determining an appropriate fine 430 S.E.2d at 434). In other words, an
amount, costs are mandatory, see N.C. assessment of costs attendant to a verdict
Gen. Stat. § 7A-304, and therefore may be of prayer for judgment continued in no
assessed without any judicial input or ac- way alters the fact that entry of judgment
tion, see Thigpen, 246 S.E.2d at 70. In- is withheld ‘‘unconditionally,’’ i.e., with ‘‘no
deed, the record is devoid of any evidence conditions TTT imposed’’ upon the pleading
that the costs assessed against Guzman party. See State v. Pledger, 257 N.C. 634,
were imposed by a judge, rather than a 127 S.E.2d 337, 340 (1962).
clerk, as the Act requires. The Board nonetheless found that Guz-
man’s payment of costs satisfied the Act’s
[18–22] Furthermore, costs are partic- definition of penalty or punishment be-
ularly lacking in punitive character when, cause it conformed to the Board’s prior
as in Guzman’s case, they are assessed statement in Cabrera that the ‘‘imposition
attendant to North Carolina’s unique dis- of costs and surcharges in the criminal
position method of a prayer for judgment sentencing context constitutes a form of
continued. ‘‘When the prayer for judgment ‘punishment’ or ‘penalty’ ’’ within the
is continued there is no judgment—only a meaning of the Act. A.R. 2 (citing Cabrera,
motion or prayer by the prosecuting offi- 24 I. & N. Dec. at 462); see also id. at 41
cer for judgment.’’ State v. Griffin, 246 n.1 (same). Cabrera is meaningfully distin-
N.C. 680, 100 S.E.2d 49, 51 (1957). Absent guishable from Guzman’s case, however.
a final judgment, there can be no sentence. To begin, Cabrera dealt with whether
See Barbour v. Scheidt, 246 N.C. 169, 97 ‘‘costs and surcharges’’ imposed under
S.E.2d 855, 857 (1957) (explaining that a Florida law pursuant to a plea of nolo
verdict of prayer for judgment ‘‘is a mere contendere constituted a penalty or pun-
suspending of active proceedings in the ishment for purposes of the Act. 24 I. & N.
case,’’ therefore without ‘‘an immediate Dec. at 459–60. Accordingly, Cabrera did
sentence’’); State v. Crook, 115 N.C. 760, not address whether costs assessed pursu-
20 S.E. 513, 515 (1894); State v. Brown, ant to North Carolina law constitute a
110 N.C.App. 658, 430 S.E.2d 433, 434 penalty or punishment—the dispositive is-
(1993). To be sure, ‘‘when the court enters sue here. The difference in governing law
an order continuing the prayer for judg- is significant. Unlike the North Carolina
ment and at the same time imposes condi- costs taxed against Guzman, all of which
tions amounting to punishment (fine or were mandatory, some of the Florida costs
imprisonment) the order is in the nature and surcharges assessed against the defen-
of a final judgment,’’ with an attendant dant in Cabrera were not mandatory, but
FLOYD v. VANNOY 143
Cite as 894 F.3d 143 (5th Cir. 2018)
imposed as a matter of judicial discretion. murder, 435 So.2d 992, petitioner filed fed-
Id. at 460. Therefore, whereas North Car- eral habeas petition. The United States
olina costs are not punitive in character, District Court for the Eastern District of
the discretionary costs and surcharges at Louisiana, Sarah S. Vance, J., 2017 WL
issue in Cabrera were punitive in charac- 1837676, granted the petition, and the re-
ter. Because courts must look to the sub- spondent appealed.
stance of an assessment or sanction in
Holdings: On petition for rehearing en
determining whether it constitutes a penal-
banc, the Court of Appeals held that:
ty or punishment, see Eslamizar, 23 I. &
N. Dec. at 687–88, and because the Florida (1) petitioner demonstrated his actual in-
costs at issue in Cabrera were substantive- nocence and thus allowed court to con-
ly different than the North Carolina costs sider his time-barred Brady claims;
at issue here, Cabrera does not control this
(2) prosecution withheld under Brady fin-
case.
gerprint-comparison results that ex-
III. cluded petitioner and the two murder
In sum, we conclude that the $100 in victims from fingerprints collected
costs assessed attendant to Guzman’s from the scenes of both murders;
guilty plea and the North Carolina state (3) these fingerprint-comparison results
court’s entry of a verdict of prayer for were favorable to the defense under
judgment continued do not constitute a Brady;
‘‘punishment’’ or ‘‘penalty’’ within 8 U.S.C.
§ 1101(a)(48)(A)’s definition of ‘‘convic- (4) statement of victim’s friend that victim
tion.’’ We therefore grant Guzman’s peti- preferred sexual relations with black
tion, reverse the Board’s Order, and re- males was favorable to the defense un-
mand the case to the Board for further der Brady; and
proceedings consistent with this opinion. (5) the withheld fingerprint-comparison
PETITION GRANTED; REVERSED results and statement of victim’s friend
AND REMANDED were collectively material under Bra-
dy.
John David FLOYD, Petitioner– Jerry E. Smith, Circuit Judge, filed dis-
Appellee senting opinion.
v.
Darrel VANNOY, Warden, Louisiana
1. Habeas Corpus O842, 846
State Penitentiary, Respondent–
Appellant In a habeas corpus appeal, Court of
No. 17-30421 Appeals reviews the district court’s find-
ings of fact for clear error and its conclu-
United States Court of Appeals, sions of law de novo.
Fifth Circuit.
June 25, 2018 2. Habeas Corpus O603.19
Background: Following affirmance of his ‘‘Actual innocence,’’ as would over-
Louisiana conviction for second-degree come the time-bar for a federal habeas