Thursday, June 21, 2018

1. US v. Reinhart, No. 16-10409 (6-18-18)(Murguia w/Gould & Freudenthal). 

The 9th affirms – it’s a good thing -- the district court's finding that a defendant was not subject to a mandatory ten year sentence for possession of child porn.  The defendant had prior state misdemeanor convictions for possession of child porn and sexual exploitation of a child.  Cal Penal Code 311.11(a) and 3(a).  Applying the categorical approach, the 9th held that California's state convictions were overbroad and did not categorically match the federal convictions.  They were also indivisible. The 9th rejected the government's argument that the statute's language of "relating to" for priors overrode the categorical approach.  The 9th affirmed the 78 month sentence.

Congrats to AFPD Ned Smock of Cal Northern (Oakland).

The decision is here:

 

2. US v. Espino, No. 16-50344 (6-18-18)(Bataillon w/Callahan & Nguyen).

The defendant was charged with lying to a grand jury.  The defendant supposedly made two false statements as a tax preparer. The jury verdict form, after much discussion to simplify, read that the jury had to find the defendant not guilty beyond a reasonable doubt to acquit.  There was no objection.  On appeal, the 9th held that of course this was error. However, the error was harmless.  The jury instructions as a whole made clear the government had the burden.

The decision is here:


http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/18/16-50344.pdf

Sunday, June 17, 2018

Case o' The Week: Tennis Shoes as "Dangerous Weapons" a Tough Outcome to Swallow - Swallow and Assault Guideline Enhancement


  Shoes: "dangerous weapons," in the Ninth.



United States v. Swallow, 2018 WL 2771044(9th Cir. June 11, 2018), decision available here.

Players: Decision by Judge Watford, joined by Judge Tallman and D.J. Boulware II.
  Hard-fought appeal by AFPD Colin Prince, Federal Defenders of Eastern Washington & Idaho.

Facts: After a tiny meth deal went bad, Swallow and his victim fought in a casino parking lot. Id. *1. The victim ended up on the ground, and Swallow – while wearing tennis shoes – “proceeded to kick the victim . . . . At first, the victim kicked back and attempted to defend himself. But after Swallow landed several vicious kicks to the victim’s torso and head, the victim lay motionless, apparently unconscious. Rather than walk away, Swallow continued to kick the victim in the head with full force, as though he were kicking a football. Swallow then stomped on the victim’s head with the bottom of his shoe, crushing the victim's head into the pavement. The victim was hospitalized as a result of the attack and suffered permanent cognitive impairment.” Id.
  Swallow pleaded guilty to assault resulting in serious bodily injury, then was hit with a four level increase under for using a “dangerous weapon” during the commission of the offense (the tennis shoes). Id.


Issue(s): “[Swallow] challenges the . . . calculation of his sentencing range under § 2A2.2 . . . . [and] challenges two enhancements . . . . : (1) a four-level increase under § 2A2.2(b)(2)(B), which applies if ‘a dangerous weapon (including a firearm) was otherwise used’ during commission of the offense; and (2) a two-level increase under § 2A2.2(b)(5), which applies if ‘the assault was motivated by a payment or offer of money or other thing of value.’ Id. at *1.

Held: “[T]he district court properly applied the first enhancement but erred by imposing the second.” Id. at *1. “[T]he Guidelines define the term ‘dangerous weapon’ as ‘an instrument capable of inflicting death or serious bodily injury.’ U.S.S.G. § 1B1.1 cmt. n.1(D)(i). There is no dispute that the victim suffered serious bodily injury as that term is defined in the Guidelines . . . The only question is whether Swallow used an ‘instrument’ capable of inflicting such injury with the intent to injure his victim.” Id. at *2.


  “[T]he district court did not abuse its discretion in concluding that Swallow's tennis shoes qualify as dangerous weapons, given the manner in which they were used. Although tennis shoes are not inherently dangerous, Swallow undoubtedly used his shoes to augment the force of the kicks and the stomp he delivered to the victim's head; the shoes enabled Swallow to inflict greater harm than if he had delivered the kicks and stomp with his bare feet. And Swallow used his shoes to commit the assault in a manner capable of producing serious bodily injury.” Id. at *2.
  “[A]n object that is not inherently dangerous can constitute a dangerous weapon if the defendant used the object to augment the force of the assault, in a manner capable of inflicting serious bodily injury. Id. at *3.

Of Note: At least the panel rejects the second enhancement: + 2 O.L. for an assault motivated by an offer of payment or money. Id. at *3. Judge Watford explains this enhancement is intended for “assault for hire” cases – here, Swallow stomped his victim after being egged on by his wife. Id. A good limitation on § 2A2.2(b)(5).

How to Use: This “tennis shoe” holding has an important limitation. The shoes only qualified as “dangerous weapons” because (the Court found) they “augmented the force of the assault.” Id. at *3. 
  Don’t let your P.O. convert every mundane object into a “dangerous weapon” – this holding should be limited to the egregious facts of this case, where the victim’s head was “stomped” into the pavement, and permanent damage resulted.
                                               
The Hon. District Judge Richard Boulware
For Further Reading: The DJ on the Swallow panel, the Judge Richard Boulware, has more than a passing interest in Guideline matters. A former AFPD, Judge Boulware was nominated by President Obama to the Sentencing Commission in 2015. See White House press release here
  ND Cal District Judge Breyer was also nominated to the Commission by the President that round.
  The latter nomination panned out: the former, not so much.




Image of Judge Boulware from http://lasvegas.cbslocal.com/2014/06/11/las-vegan-appointed-to-federal-bench/




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

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Wednesday, June 13, 2018

US v. Swallow, No. 16-30224 (6-11-18)(Watford w/Tallman &Boulware).

The 9th upholds a four-level enhancement for use of a "dangerous weapon" in an aggravated assault under the Guidelines 2A2.2.  The "dangerous weapon"?  Tennis shoes. 
The defendant did stomp on the victims head.  The stomping and kicking happened after a fight concerning failure to return with some drugs.  The 9th affirmed the enhancement because, supposedly, the use of tennis shoes added to the force of the stomp, Although the tennis shoes were not inherently dangerous, like guns and knives, the tennis shoes could be dangerous in the manner of use, like stomping. The 9th found it was not an abuse of discretion because the tennis shoes made a kick or stomp more dangerous than with just bare feet. 

The 9th pointed to precedent, where it had upheld using a shoe to beat a child, and where it held that using bare hands were not a dangerous weapon, although shoes might.  The 5th, 8th, and 10th all have held that the use of shoes, even tennis shoes, can be a dangerous weapon depending on the circumstances.

The 9th did vacate the enhancement for "motivated by payment" for lack of evidence.   No one paid the defendant for the assault; he was egged on by his wife because the victim had failed to provide the paid for drugs.
Tough decision on the shoes but at least Colin Prince, Fed Defenders of E. Wash (Spokane), got a vacation, remand, and now a resentencing.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/11/16-30224.pdf
US v. Edling, No. 16-10457 (6-8-18)(Watford w/Thomas and Rawlinson).

The 9th vacates and remands a Guidelines sentence for being a felon in possession under 2K2.1. The district court found three prior offenses of “crimes of violence.” This raised the defendant’s offense level using a categorical approach.

On appeal, the 9th determines that: (1) assault with a deadly weapon under Nevada assault statute was a COV given the element of use or threatened use of violence; however, neither (2) robbery nor (3) coercion were COVs. The former —robbery — was not a categorical match as it involved violence against property as well as person.  It swept too broadly. Coercion was not a COV because state courts have defined “force” in other statutes as not necessarily requiring violence or causing bodily pain or harm.

Winning two out of three ain’t bad.  Thus, with only one COV, the sentence is vacated and remanded and the offense level is reduced from 24 to 20.

Congrats to AFPD Cullen Macbeth with AFPDs Amy Cleary and Christen Thayer of the FPD Nev Office (Las Vegas).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/08/16-10457.pdf
King v. US, No. 17-10006 (6-4-18)(Mueller w/Wallace & Berzon).

What makes a supervised release appeal moot? Here, the 9th held that the unconditional release from custody mooted the appeal from the revocation of SR and term of imprisonment.  King argued it was not moot because of collateral consequences. In revoking, the district court found he committed statutory rape. As such, King feared he could be forced to register as a sex offender, or that visitation with his children could be affected.

The 9th recognizes the novel aspects.  What are collateral consequences, and how certain must they be?  In Spencer v. Kemna, 523 US 1 (1998), the Supremes found release from parole and sentence mooted the alleged appeal to an erroneous revocation.  The 9th extends Spencer to SR, as does the 1st, 2nd, 3rd, 4th, and 5th.  For there to be collateral consequences, there must be continuous and continuing injury. The future possibility of registration being extended to a finding made by preponderance of evidence is just a possibility: there is nothing on the horizon and no threat at present. It is not a continuous or continuing injury.  The possibility, now, is mere speculation. 

Well fought appeal by AFPDs Carmen Smarandoiu and Dan Blank of FPD Cal N (San Francisco).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/04/17-10006.pdf

Sunday, June 10, 2018

Case o' The Week: Ninth Nixes Extortion Contortions - Edling and "Crime of Violence" Under Guideline Definition


  Did Tony Soprano extort by threatening “physical injury” to his victim's iPad?



  (Yeah, the Ninth doesn’t think so, either.)
United States v. Edling, 2018 WL 2752208 (9th Cir. June 8, 2018), decision available here.

Players: Decision by Judge Watford, joined by C.J. Thomas and Judge Rawlinson. 
  Big win for AFPDs Cullen Macbeth, Amy Cleary, Cristen Thayer, the D. Nevada FPD, and the entire Ninth Circuit Johnson brain trust.  

Facts: Edling pleaded guilty to being a felon in possession of a gun. Id. at *1. Under USSG § 4B1.1(a), a “crime of violence” increased his guideline range. Id. 
  One prior at issue was robbery, under Nevada Revised Statutes § 200.380. Id. That statute prohibits taking personal property from the person of another, by – among other means – force, violence, or fear of injury against the person or property. Id. at *3. 
  The district court held that offense was a “crime of violence” as defined under the Guidelines. Id.

Issue(s): “[ ] Edline contends that [Nevada robbery does not constitute] a ‘crime of violence’ as that term is defined in the Guidelines.” Id. at *1.

Held: “[In] 2016 . . . the Sentencing Commission amended the enumerated offenses clause by adding for the first time a definition of ‘extortion.’ That definition provides: “‘Extortion’ is obtaining something of value from another by the wrongful use of (A) force, (B) fear of physical injury, or (C) threat of physical injury.” . . . . The question posed here is whether this new definition still encompasses threats of injury to property. We conclude that the Guidelines’ new definition of extortion narrows the offense by requiring that the wrongful use of force, fear, or threats be directed against the person of another, not property. That is the most natural reading of the text of the definition, particularly its reference to ‘physical injury’—a term that, when used on its own, is typically understood to mean physical injury to a person.” Id. at *3 (emphasis added).
  “Robbery under Nevada law is not a categorical match under either the elements clause or the enumerated offenses clause of § 4B1.2(a). The district court therefore erred in treating Edling’s robbery conviction as a crime of violence.” Id. at *4.

Of Note: Oregon AFPD Steve “Rule of Lenity” Sady is happy. You’ll recall that this venerable rule of statutory construction gives the tie to the defendant – “where the statute is ambiguous” courts should not interpret the statute to increase the penalty on the defendant. Id. at *4. 
  To the extent any ambiguity remained as to this Guideline, Judge Watford invokes the R.O.L. and joins the Tenth Circuit with the right result: the Guideline’s definition of extortion excludes injury and threats of injury to property. Id.

How to Use: Nice win for Edling – four offense levels off, ultimately (for this and another non-COV prior), and for all defendants with Nevada robbery priors
  Huge win for California, however, and for the far greater number of federal clients with Cal. Penal Code § 211 robbery priors. Edling should mean lower guidelines, and many years of custody avoided, for our many Cali federal clients with § 211 priors.
  Will Edling’s holding on Nevada robbery control the question for CPC § 211 priors, now up in the Ninth? Well, the government thinks so – it has proclaimed to the Ninth that “There is no substantive difference between California’s robbery statute and N.R.S. § 200.380.” See United States v. Harris, 08-10370, 2009 WL 3639779 (Feb. 17, 2009), Appellee’s Answering Brief.
   Fight tooth and nail against any AUSA or PO claim that CPC § 211 is a crime of violence under USSG § 4B1.2 -- particularly after Edling, it ain’t.
                                               
For Further Reading: Before the Ninth now is United States v. Howard Nickles, III, No. 17-10206 – Judges Wallace, Berzon, and Callahan will decide whether CPC § 211 is a “Crime of Violence.” 
  Last March, we flagged the remarkably frank oral argument on that issue, as this panel struggled to interpret the Commission’s “C.O.V.” intent in the amended Guideline. See “For Further Reading” here
  Do you have a CPC § 211 issue perking in your case? If so, read Edling, hit the Nickles III argument, and knock wood for another great Ninth decision soon. See Nickles III argument here 



Image of “What is Extortion” from https://www.youtube.com/watch?v=4qGNAAephuk

Steven Kalar, Federal Public Defender. Website at www.ndcalfpd.prg



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Sunday, June 03, 2018

Case o' The Week: Whren is for the Birds -- Mark Johnson and Subjective Intent in Administrative Searches


 Ninth ignores defense arguments, relies on cops’ assertions –



    and reverses for a suppression win!
United States v. Mark Johnson, 889 F.3d 1120 (9th Cir. May 14, 2018), decision available here.

Players: Per curiam opinion: Judges O’Scannlain, Paez, and Bea. Special concurrence by Judge O’Scannlain, joined by Judge Bea. Special concurrence by Judge Paez.

Facts: Deputies found Johnson, who was wanted for a warrant. Id. at 1123. They surveilled him at his house, let him drive away from the home, then at an intersection they boxed his car and stopped him. Id. The cops ordered the parked car towed. Id. 
  Before the tow, they did an inventory search and found (among other things) a backpack. Id. They got a warrant and found meth and evidence of drug dealing in the backpack. Id. at 1124. 
  Johnson was charged federally and moved to suppress. Id. The motion was denied, Johnson was convicted after trial, and sentenced to 188 months. Id.

Issue(s): “We must decide whether the trial court erred in failing to suppress evidence that was seized by . . .  police officers during their inventory search of a criminal defendant and the car he was driving at the time of his arrest.” Id. at *1123. 
  “Johnson contends that the officers in this case impounded and searched the car he was driving not for any legitimate inventory purposes, but rather as a pretext to look for evidence of wrongdoing. He urges that both the officers’ actions leading up to the stop and search of his car and their conduct in carrying out that search show that they were subjectively motivated by an improper desire to find incriminating evidence against him.” Id. at 1125.

Held: “We . . . must determine whether Johnson has produced evidence that demonstrates the officers would not have searched and seized items from the car he was driving but for an impermissible motive.” Id. at *1126. 
  “[W]e need not consider the merits of [Johnson’s] arguments—or whether any such violations of [the tow] policy would require suppression of the evidence found —because the officers themselves explicitly admitted that they seized items from the car in an effort to search for evidence of criminal activity.” Id. at 1127 (emphasis in original).
  “In light of our decision in Orozco, we conclude that the officers' search and seizure of such evidence cannot be justified under the inventory-search doctrine. See Orozco, 858 F.3d at 1212–16. Because the government has not offered any justification for the seizure of such property other than the inventory-search doctrine, we conclude that the district court erred in denying Johnson’s motion to suppress.” Id. at 1128.

Of Note: In a special concurrence, Judges O’Scannlain and Bea waive a red flag at the SCOTUS bull. Id. at 1129 (O’Scannlain, J., specially concurring). The real issue in Johnson is whether the officers’ subjective intent is relevant when considering an inventory search. Under the Ninth’s (correct) Orozco decision, the cops’ intent matters. See generally blog post hereJudge O’Scannlain, however, argues that Orozco parts way with Supreme precedent. Id. at 1131. 
  In a compelling concurrence, Judge Paez strongly disagrees – noting that the "vast majority" of sister circuits have agreed that subjective motive is relevant when assessing administrative searches. Id. at 1135. 
  Judge Paez has the better argument, questioning Judge O’Scannlain’s reliance on a mem dispo in the sister-circuit count. Id. at 1136 n.3. Nonetheless, in uncertain times, this attack on established law for administrative searches is unsettling.

How to Use: Cops are so used to hiding behind the Whren “objective” shield, they get sloppy and are honest about their real subjective intent in administrative searches. That phenomenon is precisely what happened here in Johnson, producing the facts that lead to the suppression win. 
  Consider that Whren-pulse when prepping for evidentiary hearings – this win was handed to the defense by the cops.
                                               
For Further Reading: Justice Scalia, the big Whren Friend, is no longer with us. And Justice Ginsburg – who joined Whren – may be having second thoughts. For a fascinating piece supporting Judge Paez’s view that subjective intent is increasingly relevant for SCOTUS, see “A Crack in the Whren Wall,” available here.





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

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Sunday, May 27, 2018

Case o' The Week: "Damned be him that first cries hold, enough" custodial time -- A Toughy for McDuffy


“Lay on, MacDuff, and damned be him that first cries hold enough.” MacBeth, Act 5, Scene VII.




United States v. McDuffy, 2018 WL 2207243 (9th Cir. May 15, 2018), decision available here.

Players: Decision by Judge N.R. Smith, joined by Judges Carlos Bea and D.J. Nye.  

Facts: McDuffy robbed a bank while brandishing a handgun. Id. at *1. When a customer tried to grab the gun,  McDuffy shot him in the chest (he later died from the wound). Id. McDuffy was arrested, charged with several federal bank robbery offenses, and went to trial. Id.
  One charge at trial was Section 2113(e) of Title 18; that statute requires “an enhanced punishment for an individual who kills a person in the course of committing a bank robbery.” Id. at *1. McDuffy argued for an instruction that would require the government to prove he “knowingly” killed a person in the course of a bank robbery. Id. (There was some evidence introduced at the trial that McDuffy accidentally discharged the gun. Id. at *1 & n.2.) The court rejected that request, and gave the standard general intent instruction instead. Id.
   McDuffy was convicted and, as required by § 2113(e), was sentenced to life. Id.

Issue(s): “McDuffy appeals, claiming the district court misstated the law when it instructed the jury that § 2113(e) applies to accidental killings.” Id. at *2.

Held:On de novo review, we find § 2113(e) does not contain a separate requirement that the defendant intend the killing which results from his bank robbery (hereafter, the ‘mens rea requirement’). Thus, the enhancement applies even if a bank robber accidentally kills someone in the course of a bank robbery..” Id. at *2.
  “[T]he district court did not err in instructing the jury that § 2113(e) applies as long as the bank robber kills someone in the course of the bank robbery, regardless of whether the killing was accidental. The only mens rea required is the mens rea necessary to commit the underlying bank robbery
.” Id. at *5.

Of Note: Troubling business, when a life sentence results from a general intent offense. The die was cast, however, in Dean v. United States, where CJ Roberts quipped: “Accidents happen. Sometimes they happen to individuals committing crimes with loaded guns.” 556 U.S 568, 570 (2009). 
  Judge Smith tracks the Dean holding requiring minimal mens rea showings for enhanced sentencing under Section 924(c)(1)(A)(iii). Id. at *3-*5. Dean, the Ninth concludes, controls the mens rea issue for Section 2113(e): Congress didn’t intend a higher scienter requirement for this statute, and the Ninth won’t either. Id. at *4. 
  Admittedly not a surprising result – the 7th, 8th, and 10th have the same rule – but disappointing nonetheless.

How to Use: Section 2113(e) is high-stakes sentencing statute for our clients. As held in McDuffy, the government has distressingly low mens rea requirements needed to obtain a life sentence. Note the death of a victim is not the only way to trigger that statute – the enhancement can also be imposed if the robber forces anyone to “accompany him without the consent of such person.” See Section 2113 here.  
  Judge N.R. Nelson explains that the Ninth doesn’t get to that aspect of the statute in McDuffy, id. at *2 & n.3: that fight may be available for another day (although a theory of “accidental” kidnapping does seem a tough row to hoe).
                                               
For Further Reading: In the old days, the “force and violence” prong of the federal bank robbery statute did not require intentional violent force. See e.g. United States v. Alewelt, 532 F.2d 1165 (7th Cir. 1976) (upholding conviction when a teller was pushed to the floor). 
  Bewilderingly, in United States v. Watson, 881 F.3d 782 (9th Cir. 2018), the Ninth nonetheless held that armed bank robbery is a crime of violence that meets Johnson requirements – the intentional use of violent force. 
  Let’s take Watson at its word, revisit bank robbery jury instructions, and require the new Watson / Johnson elements. For a historical look at the origins of the current, weirdly inconsistent status of bank robbery mens rea, see, “Take the Money and Split: The Current Circuit Split and Why Actual Force and Violence or Intimidation Should Not Be Required Under Section 2113(a) of the Bank Robbery Act,” available here. 





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



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Sunday, May 20, 2018

Case o' The Week: Ninth Affirms an LWOP Flop -- Briones and Miller Sentencing of Juvenile Offenders


“The majority accuses me of retrying Briones’s case rather than reviewing it as an appellate court should.  . . . But it is the majority that has invented a basis for the sentence which cannot be found in the record. The reason courts of appeals accord great deference to a district court’s sentencing decision is that “[t]he sentencing judge has access to, and greater familiarity with, the individual case and the individual defendant before him than ... the appeals court.” Rita, 551 U.S. at 357–58, 127 S.Ct. 2456. Unlike the majority, I would take advantage of that expertise by remanding for an actual determination of Briones's incorrigibility  rather than attempting to divine one by reading a transcript through squinted eyes.”

United States v. Briones, 2018 WL 2223819, *13 (9th Cir. May 16, 2018) (O’Scannlain, J., concurring in part and dissenting in part), decision available here.

The Hon. Judge Diarmuid O'Scannlain

Players: Decision by Judge Rawlinson, joined by D.J. Ezra. 
  Partial concurrence and partial dissent by Judge Diarmuid O’Scannlain.  

Facts: Briones was a gang leader. Id. at *1. When he was 17, he planned the robbery of a restaurant that resulted in a homicide (although he was not the shooter). Id. He also planned a Moltov cocktail assault on a rival gang member’s home: he didn’t throw them, no one was killed. Id.
  He was prosecuted on multiple offenses, and the Feds offered him 20 years -- the deal fell through because his father, a co-D, rejected the deal. Id.
  At sentencing, the district judge imposed a LWOP sentence. Id.
  Fifteen years later, the Supreme Court decided Miller v. Alabama, and rejected mandated LWOP sentences for juveniles. Id. Briones filed a Miller § 2255 petition. Id. The district court vacated the mandatory life sentence and conducted a re-sentencing hearing. Id.
  At the Miller resentencing, Briones described his parents’ drug and alcohol abuse, the family’s history of criminality, the challenges he faced as a Native American attending school off of the reservation, and his inability to challenge his father when the father rejected the twenty year deal. Id. at *2. Briones explained that he had started drinking at 12, and had used cocaine and LSD as a minor before the offenses of conviction. Id. at *3. The defense urged a thirty-year sentence.
  The district court instead re-sentenced Briones to life. Id. at *3.

Issue(s): “We must decide whether the district court appropriately rejected a juvenile offender’s argument that he should not receive a sentence of life without parole.” Id. at *1.

Held: “On this record, we cannot honestly say that the district court’s imposition of a sentence of life imprisonment was illogical, implausible, or without support in inferences that may be drawn from facts in the record. . . . In other words, no error occurred and without error there can be no plain error.” Id. at *8 (internal quotations, citations, and footnotes omitted).

Of Note: In an important concurrence and dissent, Judge O’Scannlain questions the majority’s tolerance of a sentencing that does not appear to have grabbled with the core Miller question, and that again produced a life sentence for this juvenile offender. Id. at *9 (O’Scannlain, J., concurring in part and dissenting in part). The dissent is well-grounded in the Supreme’s admonition that LWOP sentences are barred “for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” Id. at *9 (citation omitted).
  Judge O’Scannlain explains that he “cannot agree . . . with the majority’s holding that the district court sufficiently considered Briones’s claim that he was not in that class of rare juvenile individuals constitutionally eligible for a life-without-parole sentence.” Id. at *9. He writes, “The majority reads too much into the district court’s cursory explanation of its sentence, and it divines that the district court must have adopted the rationale for its sentence suggested by the government on appeal. Although a sentencing court need not pedantically recite every fact and legal conclusion supporting its sentence, it must provide enough explanation for a court of appeals to evaluate whether or not the decision to reject a defendant's argument is consistent with law. The sparse reasoning of the district court in this case gives me no such assurance.” Id. at *10.
  To fully appreciate the significance of this remarkable dissent, take a look at another Judge O’Scannlain dissent, from an order denying rehearing en banc. United States v. Paul, 583 F.3d 1136 (9th Cir. 2009) (ord. denying rehearing en banc) (O’Scannlain, J., dissenting); see also blog entry here. The Paul dissent is written by a jurist who is generally skeptical of Circuit meddling with district court sentencing decisions.
  If Judge O’Scannlain is this troubled by Briones, the Ninth should be as well. This opinion cries out for en banc review.

How to Use: Have you represented a juvenile hammered with LWOP in federal court? If so, contact the FPD in your district – we can help explore options for a Miller § 2255.
                                   
For Further Reading: Who exactly are the “rare juveniles” the deserve LWOP sentences?
  For an accessible piece giving a general overview of that open question, see “Life After Miller: Retroactive Sentencing and the Rare Juvenile,” available here.



Image of the Honorable Judge Diarmuid F. O’Scannlain from https://www.nationalreview.com/2017/01/ninth-circuit-judge-oscannlain-senior-status/

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

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