Tuesday, October 21, 2014

United States v. Hernandez, No. 13-50632 (per curiam with Pregerson, Tallman, and Bea).

In honor of Descamps, we should have a pledge of allegiance to precedent finding overbroad categorical approaches, where there is one statute, indivisible. In this case, the 9th vacates a sentence that added an aggravated felony enhancement in a § 1326 case for a California felon in possession. The 9th followed recent precedent in so ruling. In United States v. Aguilera-Rios, No. 12-50597 2014 WL 4800292 (9th Cir. 9-29-14), the court held in the immigration context that the California felon-in-possession statute was not a categorical fit for the federal felon in possession statute because the state statute did not have an antique-firearms exception. This overbroad approach also applies in the sentencing context, and so the aggravated-felony adjustment is not triggered.

Congrats to Jim Locklin, Deputy Federal Defender in the Calif. Central FPD (Los Angeles).

The decision is here:

Sunday, October 19, 2014

Case o' The Week: Ninth Finds No Value in "No Value" argument - Renzi and loss calculations

Rep. Rick Renzi

  $200,000 for Arizona wine?
United States v. Renzi, 2014 WL 5032356 (9th Cir. Oct. 9, 2014), decision available here.

Players: Decision by Judge Tallman, joined by Judges Callahan and Ikuta.

Facts: Before he was an Arizona Congressman, Renzi was friends and business partners with Sandlin. Id. at *3. After Renzi was elected, he sold Sandlin his share in a real estate company for a $800k promissory note. Id. 
   Sandlin also owned a tract of land near federal property in Arizona. Id. After Renzi became a Congressman, he got involved in a deal to trade federal land (something that requires Congressional action). Id. at *5. Renzi pushed the interested property group to buy Sandlin’s tract as part of this exchange – in exchange, Renzi promised to use his “free pass” to get a land trade through Congress. Id. at *5. 
  The property group accordingly bought Sandlin’s tract: Sandlin then promptly wrote a $200,000 check to “Renzi Vino,” an Arizona wine company owned by Renzi. Id. at *5. Sandlin later paid off the remainder of the $800k promissory note owed to Renzi. Id. at *5. 
  Renzi was later convicted of public corruption, insurance fraud, and racketeering; Sandlin was convicted of a subset of these counts. Id. at *5. At sentencing, the district court applied USSG § 2C1.1 and determined the value to determine the offense level was the $200k Sandlin paid to Renzi with the check to Renzi's Arizona wine company.

Issue(s): “Renzi and Sandlin challenge the district court’s calculation of values under § 2C1.1(b)(2). They content that the district court erred by concluding that the ‘value of the payment’ was $200,000 (the amount of the debt to Renzi that Sandlin paid off), rather than zero (the net value to Renzi).” Id. at *19.

Held: “[W]e hold that the district court did not err in imposing a ten-level enhancement under § 2C1.1(b)(2) to both Renzi and Sandlin.” Id. at *20.

Of Note: Guideline Section 2C1.1(b)(2) has four prongs to calculate value – the first, used here, is “the value of the payment.” Rep. Renzi argued that the guideline commentary, and the Ninth Circuit’s recent decision in White Eagle, means that the value for the guideline calculation is the net value of the benefit. Id. at *19. 
  Here, the payment (arguably) had no value: Sandlin simply owed the Congressman a debt, and paid it. Id. Judge Tallman doesn’t buy it, and concludes that while this “net value” principle may apply to other prongs in the guideline – it doesn’t wash with the first prong. Id. at *19-*20. As Renzi argued, this may create “anomalous results” in how the guideline is interpreted – but in the Ninth, prong one of this guideline is now carved out from the “net value” analysis.

How to Use: The Renzi decision is a tome, chock full of issues – none of which turn out well for the defense. One that may come up in indigent defense is “honest services” fraud. Id. at *8.
  The Ninth jury instructions recommend that the district court “specifically describe the thing of value just as it is described in the indictment to avoid a variance.” Id. at *8. Renzi complained that the district court failed to do so here, id. at *8, but the Judge Tallman counters that “the recommendation is just that – a recommendation.” Id. 
  This argument might have more traction if there actually was a variance from the “thing of value” identified in the indictment – the Ninth concedes that was the issue in its decision in Choy – but absent that error, a vague honest services instruction won’t get much traction on appeal. Id.
For Further Reading: Q: When is it good to have more drug offenders on Probation's list? 
  A: When it is a list of potentially eligible inmates, for a drug resentencing reduction. Through some great sleuthing, the ND Cal Office of Probation has bumped up the list of (potentially) eligible offenders in the district to around 600. The District Court has also helped with the resentencing effort, adopting a welcome new order that will help expedite appointments, triage eligible candidates, and make sure all inmates seeking relief will have counsel review their application. For a summary of the new ND Cal order, and a link to the order itself, see web page here.

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org .


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Monday, October 13, 2014

Case o' The Week: Bust a Deal, Face the Wheel -- Breach of 11(c)(1)(C) deals and Morales-Heredia

Bust a deal, face the (DJ) wheel.  
United States v. Morales-Heredia, 2014 WL 5018109 (9th Cir. Oct. 8, 2014), decision available here.

Players: Decision by Judge Wardlaw, joined by CJ Kozinski and Judge Fisher. Big win for CD Cal AFPD Jonathan Libby.

Facts: Morales-Heredia (“Morales”) plead guilty to a standard fast-track for illegal reentry. Id. at *4. Morales made standard concessions: early plea, proceed by Information, no pretrial motions, no appeal. Id. The gov’t promised to recommend -4 OL for a fast-track dispo, and to recommend low-end. The agreement also included 3 years of supervised release (despite USSG guidance against S/R terms for illegal reentry cases). Id. Both parties agreed not to seek a variance from this 11(c)(1)(C) deal. Id. At sentencing, the gov’t recommended the low end – but in the sentencing memo the AUSA detailed Morales’ criminal history, arguing it showed a “consistent disregard for both the criminal and immigration laws of the United States.” Id. at *5. Defense counsel complained to the AUSA of breach, but the government refused to withdraw its memo. Id. at *6. The district court busted the (c) deal and denied the defense motion for specific performance because of breach. Id. Instead, the district court imposed triple the agreed-upon sentence in the plea agreement: Morales appealed. Id.

Issue(s): “As the district court observed, we have not previously applied the principles governing the breach of plea agreements to Rule 11(c)(1)(C) agreements.” Id. at *8.

Held:The only logical conclusion, however, is that those principles apply with equal force in this context.” Id. 
  “The government breached its agreement . . . through its repeated and inflammatory references to Morales’s criminal history in its sentencing memorandum.” Id. at *9. “Whether intentional or not, the government breached the plea agreement by implicitly recommending a higher sentence than agreed upon.” Id. “[The government] also expressly promised in the plea agreement not to ‘seek, argue, or suggest in any way” that the district court impose a ‘sentence other than what has been stipulated to by the parties herein.’ We enforce the literal terms of this promise and require the government’s strict compliance with it.” Id. at *10 (emphasis in original).

Of Note: What’s the remedy for breach? In this case, Morales only appealed his sentence, so the Court vacated the sentence and remanded – with instructions to reassign to a different district judge. Id. at *12. Judge Wardlaw carefully lays out the procedures after a finding of breach – including an emphasis that this is not reviewed for harmless error, but instead “automatic reversal is warranted when objection . . . has been preserved.” Id. at *11. The opinion is a helpful primer on the mechanics of breach, and what remedies await if found on appeal.

How to Use: Morales-Heredia gives us a welcome new holding: breach jurisprudence applies to (c) deals. Id. at *7. It is also, however, an excellent opinion on the spirit of breach.
Hon. Judge Kim Wardlaw
   Here, the AUSA technically “honored” the deal with a low-end rec. Id. at *8. Judge Wardlaw, however, examines (and rejects) all possible rationales for the AUSA’s “inflammatory language” in the sentencing memo and holds the government still breached the express terms of the plea agreement. Id. at *10. Morales-Heredia describes a familiar problem in sentencing memos – and the automatic reversal, and reassignment to another judge, is a remedy with teeth.
For Further Reading: Judge Wardlaw, who hales from SoCal, shows a real understanding of the realities of fast-track dispositions. Morales-Heredia spends much time explaining these deals, with heavy citations to supporting docs (including fd.org sources). Id. at *3 n.13.
   Illustrates that the immigration guideline needs work – hopefully the Sentencing Commission will get around to real reform this cycle. See press release on Commission priorities here. 

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org


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Thursday, October 09, 2014

US v. Renzi, No. 13-10588 (Tallman with Callahan; special concurrence by Ikuta).
The 9th affirmed the convictions of former Arizona Congressmember Renzi for his actions of misappropriating insurance premiums to fund his congressional run; for extortion and "honest services" in pressuring businesses to buy land owned by a friend (and codefendant) to facilitate land exchanges; and for Hobbs Act racketeering. The 9th rejected challenges to jury instructions for not specifically identifying the acts of bribery; rejected a challenge based on Napue v. Illinois, 360 U.S. 264 (1959); and found no "honest debate" clause violation. Ikuta specially concurred for the § 1033 conviction (engaging in insurance fraud) but was concerned on the broad reading implied.

The decision is here: