Sunday, July 24, 2016

Case o' The Week: One to Savor, on Appellate Waiver --Torres, Appellate Waivers, and Illegal Sentences

 The government cannot coerce a defendant to waive the right to appeal an illegal sentence.
 (Troubling that our government tries: reassuring that the Ninth rebuffs).
   United States v. Jimmy Torres, 2016 WL 3770517 (9th Cir. July 14, 2016), decision available here.

Players: Decision by Judge Murguia, joined by Judges Wardlaw and W.
Hon. Judge Mary H. Murguia
Fletcher. Big win for D. Nev. AFPDs Rachel Korenblat, Alina Shell and Amy Cleary.

Facts: Torres pleaded guilty pursuant to a conditional plea to § 922(g)(1). Id. at *3. The conditional plea allowed an appeal of the denial of a motion to suppress. Id. He was sentenced to 92 months; Torres did not object to the use of priors to increase his guideline range. Id. at *7. In fact, Torres stipulated in his plea agreement to a range that included a big bump for prior “crimes of violence.” Id. On appeal, Torres challenged the use of the “crimes of violence” to enhance his sentence, arguing that the Supreme Court’s 2015 Johnson decision rendered the guideline definition of “crime of violence” unconstitutionally vague. Id.

Issue(s): “Torres . . . challenges his sentence on the grounds that the district court incorrectly enhanced his offense level under section 2K2.1 of the . . . Guidelines, in light of the Supreme Court's . . . . decision in Johnson. . . Johnson held that the ACCA's catch-all “residual clause,” . . . was unconstitutionally vague because it failed to specify the crimes that fell within its scope sufficiently clearly to satisfy the dictates of due process. . . . Torres argues that section 2K2.1(a)(2)’s identically worded residual clause is likewise unconstitutional. Because Torres did not object . . ., we will generally reverse only if we find plain error in his sentence.” Id. at *7. “Before we can decide whether Torres is entitled to relief on his sentencing claim, we must first determine whether his appeal is precluded by his plea agreement, in which Torres knowingly and expressly waive[d]: (a) the right to appeal any sentence imposed within or below the applicable guidelines range as determined by the Court, with the exception of preserving the right to appeal a determination that the [he] qualifies as an Armed Career Criminal; 5 (b) the right to appeal the manner in which the Court determined that sentence on the grounds set forth in 18 U.S.C. § 3742; 6 and (c) the right to appeal any other aspect of the conviction or sentence.’” Id. at *8.

Held:Here, the Government asserted . . . that it believes Johnson applies to the Sentencing Guidelines. . . . Based on the Government's concession, we assume without deciding that Johnson’s holding nullifies § 4B1.2(a)(2)'s identically worded residual clause. We . . . accept the Government's concession that the district court sentenced Torres pursuant to a provision in the Guidelines that is unconstitutionally vague. This renders Torres's sentence ‘illegal,’ and therefore the waiver in his plea agreement does not bar this appeal. See Bibler, 495 F.3d at 624. And, because the government agrees that Torres’s prior convictions do not justify the imposition of § 2K2.1(a)(2)’s crime-of-violence enhancement absent the residual clause, we vacate Torres's sentence and remand for re-sentencing.Id. at *9.

Of Note: Does Johnson apply to the Guidelines? Yep, says the government (and thus the Ninth) in Torres
   Is Johnson retroactive for guideline cases? Yep, says every Circuit to have considered the issue – except for that renegade Eleventh. See generally petition for cert. at 21-21, available here. (collecting cases – (plus the Fourth’s Hubbard!)).  
  What are the prospects for the Eleventh’s stubborn outlier? Not so hot – the Eleventh's decision was the one slapped with a cert. grant. See Beckles SCOTUS blog summary here

How to Use: Bibler lives (whew!). The Ninth confirms in Torres that it won’t allow the government to immunize illegal sentences from appellate review through appellate waiver. 
  Use Bibler and Torres when thinking about sentencing appeals, to cast off some of those coerced appeal-waiver shackles USAOs demand in their pursuit of “efficiency.”  
For Further Reading: New York robbery is not a “crime of violence,” holds the Second Circuit in United States v. Corey Jones
  Why do we care about a Second Circuit decision and New York robbery, way out here in the Ninth? Because Hobbs Act robbery was expressly modeled on New York robbery, the Ninth has explained. See United States v. Aguon, 851 F.2d 1158, 1164 (9th Cir. 1988) (en banc) (“Congressman Hobbs said explicitly that the definitions of robbery and extortion were modeled on the New York Penal Code.”), overruled on other grounds by Evans v. United States, 504 U.S. 255 (1992).  
  The Second Circuit's decision in Jones vindicates our claim that Hobbs Act robbery is not a crime of violence after Johnson
  (Our sympathies to the Marble Rye lady, but Jerry ain’t a “violent felon.” See blog entry here (and congrats to AFPD Matt Larsen)).

Image of the Hon. Judge Mary Murgia from 
Image of the Hobbs Act from

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


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Sunday, July 17, 2016

Case o' The Week: The Sixth & the Ninth - Pimentel-Lopez, Jury "Drug Amount" Verdicts, and Guideline Sentences in Drug Cases

 Here’s a radical Sixth Amendment wish: respect the crucial role of juries, by constraining the guideline calcs of sentencing judges with the findings in a jury’s verdict.
  (Wish granted).
United States v. Pimentel-Lopez, No. 14-30210 (9th Cir. July 15, 2016), decision available here.

Honorable Judges W. Fletcher, Kozinski, and Fisher
 Players: Decision by Judge Kozinski, joined by Judges Fletcher and Fisher.  

Facts: Pimentel-Lopez was convicted of possession with intent and conspiracy to distribute meth. Id. at *3. The jury completed a form, provided with the consent of the parties, that attributed to Pimentel less than 50 grams of a substance containing a detectible amount of meth. Id. 
  At sentencing, the district judge found the actual quantity was over 4 kilos, with a guideline range of 235-293 months. The judge imposed 20 years. Id. at 5. Without the court’s “over 50 gram” determination, the guideline range would have been 63-78 months. Id.

Issue(s): “The jury in defendant’s criminal case made a special finding that the quantity of drugs involved was ‘less than 50 grams.’ We consider whether the district judge may nevertheless calculate defendant’s sentence based on the judge’s finding that the quantity involved was far in excess of 50 grams.” Id. at 3. 
  “The principal question presented is whether the district judge was entitled to make a drug quantity finding in excess of that found by the jury in its special verdict. The district court believed it was entitled to do so because ‘[t]here is no increase in the statutory maximum sentence beyond the 20 years or 240 months that is charged in the [i]ndictment.’” Id. at 5.

Held: “The jury found “beyond a reasonable doubt [that] the amount of [methamphetamine] attributable to Jesus Pimentel-Lopez [is] . . . [l]ess than 50 grams.” This is not a case where the jury failed to find a fact under the exacting standard applicable to criminal cases . . . . Where this happens, the district judge is free to find the same fact under a less stringent standard of proof. Id. Rather, what we have here is a case where the jury made an affirmative finding, under the highest standard of proof known to our law, that the amount of methamphetamine attributable to defendant is less than 50 grams. The district court cannot attribute more than that amount to defendant without contradicting the jury on a fact it found as a result of its deliberations. District judges have many powers, but contradicting juries as to findings of facts they have been asked to make is not among them.” Id. at 6 (internal citation omitted).
  “In our case, the jury was asked to find the upper limit of the quantity of illegal drugs involved in Pimentel-Lopez’s crimes, and it did just that: ‘[T]he amount of [methamphetamine] attributable to Jesus Pimentel-Lopez [is] . . . [l]ess than 50 grams.’ This was not a gratuitous finding added by the jury of its own accord . . . . The parties presented evidence on point and the jury was instructed that this was a permissible finding. In such circumstances, the finding is binding, no matter how inconvenient it may be in subsequent proceedings.” Id. at 7 (internal citation omitted).

Of Note: Judge Kozinski muses that it might have been a “blunder” for the government to agree to this “amount” verdict form. Id. at 10. If it was a blunder, it was an understandable one – the Ninth Circuit recommends an instruction nearly identical to the one given! See 9.16, Determining Amount of Controlled Substance,” available here. 
Ninth Cir. Model Criminal Jury Instruction 9.16
 Read Ninth Circuit Model Criminal Jury Instructions 9.15, 9.16, and Pimentel-Lopez together. If the government wants drug mand-mins, it appears to need the Ninth’s 9.16 “amount” jury form . . . but if the jury then finds a lower drug amount, the district court’s guideline calcs are later constrained by the jury’s findings.  

How to Use: A sentencing judge’s guideline calcs are constrained by the drug amounts found by the jury. Mull pages 9-10 of Pimentel-Lopez carefully, and that seems to be the inescapable holding. Ninth Instruction 9.16 and Pimentel-Lopez, together, may make it worthwhile to go to trial solely to seek a jury finding of a lower drug amount – a finding that will constrain a later guideline range. 
For Further Reading: Does this all seem a little . . . muddled? It is. This morass arises from the Ninth’s regrettable refusal to recognize that drug amounts and drug types are really just Apprendi elements of Section 841 and 846 offenses. See United States v. Buckland, 289 F.3d 558 (9th Cir. 2002) (en banc). 
 For a rational analysis of what should happen, if “writing on a clean slate,” consider Judge W. Fletcher’s concurrence in United States v. Jefferson, 791 F.3d 1013, 1019 (9th Cir. 2015), available here
  (And for extra credit, consider the logical extension of the Pimentel-Lopez's "jury-respect" principle to the damnable practice of using acquitted conduct at sentencing -- a practice lambasted by another notable Ninth Circuit Fletcher. See blog on United States v. Mercado, here.)

Image of the Honorable Judges Fletcher, Kozinski, and Fisher from

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

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