Thursday, June 23, 2016

Two rulings in favor of criminal defendants today, both involving issues that follow in the wake of Johnson v. United States, 135. S. Ct. 2551 (2015). [Ed. note: I (Keith Hilzendeger) represent the petitioner in the second case summarized here.]

1. United States v. Cisneros, No. 13-30066 (NR Smith with Goodwin and Ikuta) --- Following a GVR in light of Johnson, the Ninth Circuit vacated an ACCA-enhanced sentence for felon in possession and remanded with instructions to resentence the defendant without the enhancement, because his prior convictions for eluding a police officer and for first-degree burglary under Oregon law are no longer "crimes of violence."

Congratulations to Assistant Federal Public Defender Brian Butler of Medford, Oregon.

The decision is here:

2. Oroña v. United States, No. 16-70568 (June 2016 screening panel; Bea, Watford and Friedland) --- The Ninth Circuit granted a federal prisoner's motion for authorization to leave to file a second or successive § 2255 motion to challenge his ACCA-enhanced sentence based on Johnson. This result was preordained by Welch v. United States, 136 S. Ct. 1257 (2016), which held that Johnson applied retroactively to cases that are final on collateral review. The panel published to explain that equitable tolling of the § 2255 limitations period would be applied starting on the date on which the SOS motion was filed in order to protect diligent prisoners against the running of the limitations period while their applications are pending, because they have no way of controlling how long it will take the Ninth Circuit to adjudicate them.

The decision is here:

Sunday, June 19, 2016

Case o' The Week: Venn and the Art of Jurisprudential Maintenance - Davis and Fractured Supreme Court decisions

The Ninth gets all Venn on us.
United States v. Davis, 2016 WL 3245043 (9th Cir. June 13, 2016) (en banc), decision available here.

Players: Decision by Judge Paez, joined by Judges Fletcher, Rawlinson, Callahan, and Owens. 
  Concurring opinion by Judge Christen, joined by CJ Thomas, and Judges Tallman, Nguyen, and Hurwitz. 
  Judge Bea, dissenting. 
  Big win argued by ND Cal (and Jones Day) counsel Nathaniel Garrett.

Facts: Davis plead guilty to distributing crack, under a (c)(1)(C) deal. Id. at *2. The agreement acknowledged a guideline range and recommended a sentence below it. Id. Congress then passed the Fair Sentencing Act, and Commission adopted lower retroactive crack guidelines. Id. at *3. Davis filed a § 3582 motion to reduce his sentence. The district court held it was bound by Justice Sotomayor’s concurring opinion in Freeman, and found it lacked jurisdiction because Davis’s sentence was “based on” the (C) deal, not the guidelines. Id. at *4. A three-judge panel affirmed, and the case went en banc.

Issue(s): “[W]e must consider how to interpret the Supreme Court's fractured opinion in Freeman . . ., which addressed whether a defendant sentenced pursuant to a Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement is eligible for a sentence reduction under . . . § 3582(c)(2) . . .” Id. at *2 (citation omitted].

Held: Revisiting Freeman and our application of Marks to fractured Supreme Court opinions, we hold that where we can identify no rationale common to a majority of the Justices, we are bound only by the result. In so holding, we join the D.C. Circuit, which concluded that Freeman lacks a controlling opinion ‘because the plurality and concurring opinions do not share common reasoning whereby one analysis is a logical subset of the other.’ . . . Bound only by Freeman’s specific result, the D.C. Circuit adopted the plurality opinion’s approach, which holds that “[e]ven when a defendant enters into an 11(c)(1)(C) agreement, the judge’s decision to accept the plea and impose the recommended sentence is likely to be based on the Guidelines; and when it is, the defendant should be eligible to seek § 3582(c)(2) relief.” . . . . We also adopt this approach and overrule Austin. Applying the plurality approach, we conclude that Davis is eligible to seek a sentence reduction under § 3582(c)(2).” Id. at *2 (citation omitted).

Of Note: Great result for drug resentencing – but the far bigger issue decided in Davis is how the Ninth deals with fractured Supreme Court decisions. Judge Paez provides a clear explanation of the two main approaches: one focusing on the reasoning of the various opinions, and the other focusing on the ultimate results. Id. at *5. 
  Judge Paez concedes that the Ninth’s own decisions on the fractured-Supremes conundrum have “not been a model of clarity.” Id.To foster clarity,” this en banc decision “explicitly adopt[s] the reasoning-based approach to applying Marks.Id.
  The Ninth imagines a Venn diagram with the plurality and concurring opinions: one can’t envision overlapping circles with Justice Sotomayor’s and the plurality opinion. Id. at *7.
  With this reasoning approach, the Ninth stands with D.C. and breaks with the approach of four circuits. Id. at *8. (But with our drifting 4-4 Supreme Court, query whether circuit splits are still as vulnerable to cert. calls?)

How to Use: “Even when a defendant enters into an 11(c) (1)(C) agreement, the judge’s decision to accept the plea and impose the recommended sentence is likely to be based on the Guidelines; and when it is, the defendant should be eligible to seek § 3582(c)(2) relief.” Id. at 10. 
  Scratch out § 3582(c)(2), substitute “§ 2255”, and our Johnson habeas clients are off to the races. During this Summer of Johnson Replies, turn to Davis for our (C) clients (and other “plea agreement” arguments in the gov’t Oppositions). Like a virus, the Guidelines infect all sentences: a deal’s recommendation won’t immunize a case from Johnson attack.
For Further Reading: Great timing, Davis: we may use it next week. Two big Supreme Court decisions are expected in very short order: Mathis, summary here, and Voisine, summary here
  Both cases are important for four Johnson efforts: decisions will start hit at 7:00 a.m. Monday June 20th.

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



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Tuesday, June 14, 2016

1.  Unites States v. Tyrone Davis, No. 13-30133 (6-13-16)(en banc)(Paez for majority; concurrence by Christen and others; dissent by Bea). In an en banc opinion, the 9th reconsidered the Supreme Court's fractured opinion in Freeman v. US, 564 US 522 (2011), which held that a defendant was eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2), when there was a retroactive guideline amendment.  The decision though had a plurality and concurrences, and not a single guiding rationale.  As a result, in US v. Austin, 676 F.3d 924 (9th Cir. 2012), the 9th used the narrowest interpretation on which a majority of justices agreed.  This is the approach of Marks v. US, 430 US 188 (1977), 

Reconsidering Freeman, Marks, and Austin, the 9th holds that where there is no rationale common to a majority of justices, the 9th is bound only by the result.  Thus, the 9th joins the DC Circuit in holding that when a defendant enters into an 11(c)(1)(C) plea, the court must necessarily consider the guidelines range to see if the plea should be accepted and sentence imposed.  As such, a defendant should be eligible to see a guidelines reduction under 3582.

The concurrences agree, but differ from the opinion in the assumption that a Marks analysis can make use of dissenting opinions.

Dissenting, Bea argues that the rationale in Freeman is that the plea agreement is examined first to see if it was based on the guidelines.

The decision is here:

2.  Unites States v. Beecroft, No. 12-10175 (6-13-16)(O'Scannlain with M. Smith and Morris, D.J.). This is a restitutions and forfeiture appeal.  The 9th affirms the order for restitution, finding the order did not err in the loss calculation, and that the restitution was not grossly disproportional excessive.  The 9th also found that forfeiture on substantive counts was not excessive.  However, the forfeiture on the conspiracy count was, and the amount was remanded for reconsideration.

The decision is here:

Monday, June 13, 2016

Case o' The Week: A Win Despite Murphy's Law - Murphy and Section 514 Jury Instructions

 Too bogus to fool the IRS, but real enough for conviction -- Murphy’s law is alive and well.
United States v. Murphy, 2016 WL 3201582 (9th Cir. June 9, 2016), decision available here.

Players: Decision by visiting District Sr. Judge Block, joined by Judges Clifton and Ikuta. Big win for former Federal Defenders of San Diego, Inc. AFD Ben Coleman, Coleman & Balogh LLP.

Facts: Murphy didn't pay his federal taxes. Id. at *1. After a number of inquiries by the IRS, Murphy contacted the agency with an offer to settle. Id. at *2. The offer - in peculiar legalese – was of four “bonded promissory notes.” Id. at *2. Wading through the dense language of the “notes,” it appears Murphy was offering to pay his taxes from the “secret accounts” held for U.S. sovereign citizens created after the U.S. left the gold standard. Id. at. *5 & n.1. Among other crimes, Murphy was charged with violating 18 USC § 514, fraudulently passing a false instrument purporting to be an actual security issued under the authority of the United States. Id. The jury was not instructed of the “under the authority” element, and found Murphy guilty. Id. at 4. The defense did not object to this instruction. Id. at *3.

Issue(s): “[Murphy] argues that the evidence was insufficient to support the § 514 convictions and, alternatively, that the district court erred by failing to instruct the jury on an element of that offense.” Id. at 4.

Held:Although the evidence that the ‘bonded promissory notes’ were issued under the authority of the United States is sufficient to avoid a judgment of acquittal, it is not sufficient to convince that the jury made the necessary finding, ….or that it would have done so had it been asked.” Id. at *6. (quotations and internal citations omitted). 

“We further conclude that we should exercise our discretion to correct the error. . . . Murphy was undeniably denied his constitutional right to have all of the elements of the crime submitted to the jury, while the government was concomitantly relieved of its obligation to prove very element beyond a reasonable doubt.” Id. (quotations and internal citations omitted).

Of Note: This is a welcome win on jury instructions challenges – with particular punch as a plain error reversal. It is interesting, however, that the Ninth did not bite on Murphy’s “sufficiency of evidence” challenge. Id. at 5. Can someone be convicted of offering fictitious instruments of the U.S., when the offered instruments are extraordinarily dubious “sovereign citizen” bonds – things that had no chance of actually conning the IRS? Yep. Even “bogus obligations that a prudent person might upon consideration be unlikely to accept as genuine” are criminalizes under this statute. Id. at 5 & n.1 (quotations and citation omitted).

How to Use: Scrambling to salvage the conviction, the government argued that §514 covers a wide array of fictitious instruments “and that Murphy was, at worse, convicted on a different theory of guilt than that charged in the indictment.” Id. at *6 & n.2. The Ninth is having none of it: switching theories of guilt from the indictment would be a fatal variance, and “((s)uch a conviction is just as constitutionally infirm as a conviction on fewer than all elements.” Id. “Fatal variances” are too often not as fatal as we'd like: look to footnote two as useful tool to pin the government down, and brush back attempts to resuscitate convictions through creative indictment interpretations.
For Further Reading: Is Johnson retroactive to the guidelines? Does guideline commentary (that does not interpret, and conflicts with the guidelines) somehow salvage the guidelines from Johnson attack? Our friend and Federal Defender Lisa Freeland has had these issues batting around the Supreme Court for months, in the Jones cert. petition. For an interesting description of the relist of Jones after last week’s Supreme Court conference (with a note of the recent and deepening split from the Fourth), see Relist Watch, available here

Steven Kalar, Federal Public Defender Northern District of California. Website at


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