Monday, January 16, 2017

Case o' The Week: Doubting Thomas - Joel Leon Thomas Jr., Guideline variance, and Mand-Mins

DJ wanted to give shorter sentence.
DJ could have given shorter sentence.
Ninth agrees.
Yet half-century sentence stands?
United States v. Joel Thomas, 2016 U.S. App. LEXIS 22625 (9th Cir. Dec. 20, 2017), decision available here.

Players: Decision by Judge Schroeder, joined by Judge Wallace. Dissent in part by Judge Kozinski.

Twenty-four years old when sentenced, Thomas will be 73 when released.
Facts: Thomas was a bank teller. Id. at *3. Using insider information, he worked with a crew that robbed a string of banks. Id. at *4. 
  Convicted after trial, Thomas was hit with stacked Section 924(c) counts and a mand-min sentence of 32 years. Id. at *6-*7. The district court then added 210 months for the conspiracy and robbery counts, for a total sentence of 49.5 years. Id. at *7.

Issue(s): “On appeal . . . Thomas contends the resulting sentence was substantively unreasonable. He argues that a 49.5 year sentence is disproportionate to the crimes for which he was convicted.” Id. at *14. “The . . . issue is the reasonableness of Thomas’s sentence under 18 U.S.C. § 3742, the statute authorizing appellate review of sentences. Thomas argues that his sentence was unreasonably high. In imposing the 49.5 year sentence, the experienced district judge was well aware of the impact of the mandatory minimum sentences. Indeed, the district judge expressly said that he believed that the total 32 year mandatory minimum for use of a firearm in this case was excessive, but recognized that he had no discretion with respect to its imposition. Thomas agrees. In imposing the sentence on the robbery and conspiracy counts themselves, the district judge concluded that the within-range 17.5 year sentence, under all the circumstances, was not unreasonable.” Id. at *9-*10.

Held: “We agree, but Thomas does not.” Id. at *10. “The troublesome issue in this case arises because the mandatory minimums must be combined with the sentence imposed on the underlying crimes, to create a very long sentence. Yet this does not make the sentence unreasonable . . .” Id. at *17.

Of Note: In dissent, Judge Kozinski compellingly details the district court’s fundamental misunderstanding of its discretion to vary downwards. Note that Thomas was only 24 years old when he was sentenced, with no real criminal history, and wasn’t even present for two of the robberies. Id. at *19. With the sentence imposed, Thomas will be 73 when he gets out of prison. Id. In fact, Thomas got a dozen years more than a terrorist who plotted to blow up LAX. Id. at *23.
  Do you feel bad about that half-century of incarceration? So did the district judge.
  The D.J. complained the sentence was “too much. I wouldn’t impose that sentence if I had the discretion. But I don’t.” Id. (emphasis in original?) As Judge Kozinski observes, “The district judge mistakenly believed he was required to calculate the Guidelines portion of the sentence as if it were a stand-alone sentence, rather than as one component of a combined sentence. There is, at the very least, a serious risk that the district judge meant what he said: He imposed a 49.5 year sentence because he believed he had no discretion. This is a major procedural error that requires reversal.” Id. at *21-*22.
  What happened in this case? It appears the D.J. didn’t understand that he could vary downwards on the guideline component of the sentence – all the way down as far as the 32 year mand-min, if he wanted. As Judge Kozinski observes, the erroneous resulting sentence is far “greater than necessary” – a tragic result from a fundamental sentencing mistake, that stands uncorrected by the Ninth.

How to Use: That infernal tangle of mand-mins and guidelines will be coming more frequently to a court near you, soon. Before that happens Thomas is worth a close read to understand how those two components interrelate -- Judges Schroeder and Kozinski both agree on the variance that could have happened in this case.
For Further Reading: Inauguration on Friday. How will President Trump affect the Ninth? For an interesting early analysis, see How Big a Deal are Four 9th Circuit Vacancies that Await Trump?, available here.

Image of Mr. Thomas from

Steven Kalar, Federal Public Defender. Website at


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Sunday, January 08, 2017

Case o' The Week: End of the Line - Acevedo-De La Cruz and "Crime of Violence" in (the old) Reentry Guidelines

The Hon. Judge Sandra Ikuta

A long era of highly-contested sentencing and appellate litigation ends: the Ninth issues its last illegal reentry sentencing guideline opinion.
  (More or less).
  United States v. Acevedo-De La Cruz, 2017 Westlaw 56299 (9th Cir. Jan. 5, 2017), decision available here.

Players: Decision by Judge Ikuta, joined by Judge Bea and DJ Restani.

Facts: Acevedo-De La Cruz was convicted of Cal. Penal Code § 273.6(d), for a violation of a protective order involving an act of violence or credible threat of violence. He was then deported. Id. at *2.
  He reentered the U.S., was convicted of Section 1326(a), and was sentenced in April 2015. (Ed. Note: NB, before the new § 2L1.2 guideline went into effect on Nov. 1, 2016).
  The district court held that the “violation of a protective order” prior was a “categorical crime of violence” warranting the +16 OL hit under the (old) reentry guideline. Id. at *2.

Issue(s): “This appeal raises the question whether a violation of a protective order involving an act of violence or credible threat of violence in violation of section 273.6(d) . . . is a categorical crime of violence for purposes of § 2L1.2(b)(1)(A)(ii) of the United States Sentencing Guidelines . . . .” Id. at *1.

Held: “We review de novo the district court’s determination that Genaro Acevedo-De La Cruz’s prior conviction constitutes a crime of violence . . . and we affirm.” Id. at *1 (citation omitted). 
  “While Acevedo-De La Cruz correctly notes that dictionaries have provided other definitions of ‘violence,’ including the expression of vehement feelings, he fails to point us to any ‘cases in which the state courts in fact did apply [section 273.6(d)] in the special (nongeneric) manner for which he argues.’ . . . Nor has he otherwise demonstrated that there is’a realistic probability, not a theoretical possibility’ that California would deem the term ‘violence’ to include rhetorical vehemence, without more, for purposes of aviolation of section 273.6(d) . . . . Therefore, Acevedo-De La Cruz’s contention that the California legislature intended ‘violence’ under section 273.6(d) to mean the expression of vehement feeling without physical force relies on ‘legal imagination.’ . . . . We conclude that ‘a credible threat of violence’ under section 273.6(d) does not criminalize more conduct than the threatened use of physical force for purposes of § 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines. We therefore hold that a conviction under section 273.6(d)of the California Penal Code is a categorical crime of violence for purposes of § 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines. The district court did not err in adding a 16-level enhancement to Acevedo-De La Cruz's sentence.’ Id. at *3.

Of Note: This case is three days old and is already yesterday’s news. After herculean efforts to drag out sentencings past Nov. 1, 2016, all of our § 1326 clients are now in the new § 2L1.2 world. See the new guideline here.
  Acevedo-De La Cruz, by contrast, is interpreting the crime of violence definition of the pre-Nov. 1, 2016 guideline definition. “Crime of violence” remains in the new guideline, but only in the context of misdemeanor crimes of violence. See, e.g. § 2L1.2(b)(2)(E).
  As a new administration (and a new DOJ) ramps up immigration prosecutions, it is worth revisiting the significant changes from the Sentencing Commission to the old reentry guidelines. For a Commission worksheet on how to unpack the new specific offense characteristics of the 11/1/16 reentry guideline, see here

How to Use: More interesting than the holding in this opinion is the Court’s approach in concluding that Section 273.6(d) is categorically a “crime of violence” (at least, under the old reentry guideline). Id. at *3. Judge Ikuta’s narrow reading of “violence” is worth cautious consideration for Johnson folks – another piece of the C.O.V. puzzle. Id. at *2-*3.
For Further Reading: NorCal, god bless her, is admirably rich in sanctuary cities. Can a new administration force our sheriffs to warehouse aliens in local jails until ICE agents mosey over for their (unMirandized) interviews, § 1326 referrals, and federal detainers?
  For an interesting discussion of the federalism and funding fights on the horizon, see a Politico article here.
  Litigation coming soon, to a ND Cal DJ near you . . . .

Image of the Honorable Judge Sandra Ikuta from , By United States Courts -, Public Domain,

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

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