Sunday, October 13, 2019

Case o' The Week: Ninth's Decision is Clear and Convincing -- Valle and Sentencing Standard of Proof

Hon. Judge Michelle Friedland

  Judge Friedland decides a continuous, ten year, debate. United States v. Valle, 2019 WL 5058604 (9th Cir. Oct. 9, 2019), decision available here.

Players: Decision by Judge Friedland, joined by Judge M. Smith and DJ Bastian. 
  Very nice victory for Deputy Federal Public Defender Brianna Mircheff, C.D. Ca. FPD.   

Facts: In ’98 and 2000, Valle was convicted of drug felonies and removed from the U.S. Id. In 2004, Valle was arrested for a DUI in California, but was not convicted or removed. Id. at *2.
  In 2017, Valle was again arrested by local police, he was charged with illegal reentry, and plead guilty. Id. The guidelines carried additional enhancements if his state drug convictions were within ten and fifteen years “of the start of his illegal reentry offense.” Id.
  Over defense objection, the PSR started the clock at the 2004 DUI arrest, despite the fact that there was no evidence about how many times Valle had departed and reentered the U.S. since that date. Id. This “start date” issue made a 30+ month difference in the guideline range, from the defense’s view of a range of 1-7 months to a PSR-urged term of over three years. Id.
  The government agreed with the PSR, and argued Valle’s previous use of California addresses and his family ties created a sufficient inference to conclude that he had continuously been in the US since 2004. Id. at *3. The district court agreed. Id. The court held as a matter of law that Valle’s continuous presence in the United States was not required [a legal error], and found that under a “preponderance of evidence” standard Valle had continuously been in the US from ‘04. Id. at *3 and *6.
  The court imposed a guideline sentence of 37 months. Id. at *3.

Issue(s): “This appeal requires us to evaluate the Government’s burden of proof in demonstrating the applicability of sentencing enhancements for an illegal reentry crime. Specifically, we consider whether the Government can establish by clear and convincing evidence a non-citizen’s continuous presence in the United States since the alleged time of reentry without submitting any direct evidence of where the non-citizen was for more than a decade.” Id. at *1.

Held: We hold that it cannot. We give some weight to the inference that a non-citizen who had previously returned after being removed and who had family in the United States would have made efforts to stay in the country. But that inference is not enough to carry the Government’s burden here to prove the thirteen years of continuous presence in the United States necessary to support the enhancements applied to . . . Valle’s sentence. We therefore vacate and remand to the district court for resentencing.” Id.
  “[B]ecause it was the Government’s significant burden to prove that Valle was continuously present, and it produced no evidence whatsoever about where he was for over a decade, the district court clearly erred in concluding that the Government had sufficiently proven that he remained in the United States.” Id. at *8.

Of Note: Valle won for now, the Ninth pointed to lower guidelines, but so what? Won’t the government just scrape together evidence of “continuous presence,” for re-sentencing?
  In a great holding, Judge Friedland concludes that because the government “failed to carry its burden despite an extensive factual inquiry below, it is not entitled to “a second bite at the apple.” Id. at *8. (internal citations and quotations omitted). Valle’s new range is 1-7, he’s been in for twenty, so the mandate was ordered transmitted “without delay” for immediate resentencing. Valle “second bite” holding is an interesting arrow for our appellate quivers.

How to Use: The key to this victory is the Ninth’s holding that the government’s sentencing burden was not by a preponderance, but by the higher “clear and convincing” standard. See id. at *4 - *5. In so doing, Judge Friedland carefully distinguishes other “preponderance” decisions. Id. at *5. Her analysis is invaluable for our future “clear and convincing” efforts -- turn to Valle when hunting for a heightened sentencing standard.  
For Further Reading: One out of three federal defendants sentenced last year was convicted of an immigration offense. 

So reports the Sentencing Commission, in its 2018 Annual Report. For a quick summary of the Feds’ new focus, see  article here

Pie chart of federal sentencing in 2018 from 2018 Annual Report and Sourcebook of Federal Sentencing Statistics. , reproduced here:

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


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Friday, October 11, 2019

US v. Valle, No. 18-50199 (10-9-19)(Friedland w/M. Smith & Bastian). In a 1326 sentencing, the district court concluded, as a legal matter, that the government was not required to continuous presence from police contact (2004) and his subsequent arrest in 2017. The court held that there was a strong inference he stayed. Thus, he was eligible for various enhancements.  He received a 37-month sentence (rather than a range of 1 – 7 without enhancements).

On appeal, the 9th found this inference to be error. The gov’t so conceded. The gov’t had to prove presence by clear and convincing evidence. US v. Jordan, 256 F.3d 922 (9th Cir. 2001).  It did not. US v. Garcia-Jimenez, 623 F.3d 936 (9th Cir. 2010). 

Here, the 9th usefully summarizes the factors for the “clear and convincing” standards (Jordan), and the increasing emphasis on the factors of enhancements (4) and length of sentence (doubles). Both were present here. The 9th also does a useful analysis on the types of evidence the gov’t needed to prove presence (Garcia-Jimenez). The 9th discounted the argument that “well, of course the defendant stayed in the US because his of ties, family presence, and where else would he go.”

The 9th vacated the sentence and ordered the mandate to immediately issue because of the guideline range applicable. He had already served 20 months. The 9th barred the gov’t from arguing new evidence because they already had a bite of the apple.

Congrats to Fuller Mircheff of the Cal Central (Los Angeles) FPD.

The decision is here:


Sunday, October 06, 2019

Case o' The Week: Read 'Em or Weep - Becerra and Structural Error

Prominent crim-law jurists tangle over knotty Weaver.

United States v. Becerra, 2019 WL 4582835 (9th Cir. Sept. 23, 2019), decision available here.

Players: Decision by Judge Berzon, joined by ED PA DJ Robreno.
  Dissent by Judge Graber.

Facts: Becerra was tried on drug charges. Id. at *1. At the pretrial conference, the district court explained that it would give the jury written instructions, would confirm that the jury read them, but the DJ would not actually read the instructions aloud unless the instructions later changed. Id. Neither party objected. Id.
  The district court read preliminary instructions to the jurors, but did not read the substantive instructions or explain the elements. Id. at *2. The court later confirmed with each juror that they had read the draft instructions, and – for a few new or modified instructions – the judge read the instructions aloud. Id. at *2. “The district court did not after the close of evidence read aloud any of the remaining twenty-seven instructions, or otherwise orally instruct the jurors as to the substantive law.” Id.
  Becerra was convicted of all counts. Id.

Issue(s): “Becerra [argues] . . . that the district court erred by not reading the jury instructions aloud to the jury. Becerra did not object in the district court . . . . We therefore review the failure to provide an oral jury charge for plain error.” Id. at *3.
  “[The government] recognizes that, as [Guam v. Marquez, 963 F.2d 1311 (9th Cir. 1992)] makes clear, the district court in this case erred by not reading the essential jury instructions aloud. Rather, the government’s central contention is that Marquez is not here binding as to its second holding—that the failure of the district court to read jury instructions aloud to the jurors in open court is structural error and so not subject to harmless error analysis.” Id. at *5.

Held: “[ ] Marquez is binding on us not only with regard to its substantive holding as to the necessity of oral jury instructions but also as to its second holding—that the district court committed structural error by failing to read an oral charge to the jurors.” Id. at *5.
   “A trial court does not satisfy its duty to instruct jurors in a criminal case just by providing those jurors with a set of written instructions to use during deliberations. . . . [A] trial court abdicates its responsibility to charge the jury orally as to the elements of the charged crimes, it commits structural error. . . . We . . . reverse the conviction . . .” Id. at *1 (internal citations omitted).

Of Note: So, District Judges have to read instructions to the jury. To be honest, that’s yesterday’s news – that’s been the clear rule for three decades.
 Far more interesting in Becerra is Judge Berzon’s thoughtful analysis of how to approach structural error.
  Structural error is critically important to protect, well, structural constitutional rights, but has been under increasing attack from the Supreme Court.
  Judge Graber presses this attack, arguing in dissent that this plain error was not structural, and was harmless. Id. at *8 (Graber, J., dissenting, citing Weaver, 137 S.Ct. 1899 (2017)).
  The core issue in Becerra, therefore, is whether SCOTUS decisions after the Ninth’s ’92 Marquez opinion undermined the Ninth’s rule that failure to orally advise the jury is structural error? Id. at *8.
  “Nope,” concludes the majority. Id. at *5.
  Writing for the Court, Judge Berzon carefully describes the case-by-case analysis necessary for structural error – an approach that jives with SCOTUS dictates.
   Appellate folks, this battle is worth a close read: the Berzon v. Graber debate over Weaver sets the stage for future structural error battles to come.

How to Use: Remember Becerra and object when a frazzled DJ wants to skip reading a new jury instruction at the end of a long trial. It is a rare, bright-line rule: written instructions alone won’t cut it.
For Further Reading: Weaver is referenced thirteen times, in Judge Berzon's and Judge Graber's debate. What does that Supreme Court decision mean? 
   For an interesting overview of Justice Kennedy’s opinion, see Prof. Rory Little’s piece here 

Steven Kalar, Federal Public Defender ND Cal. Website at


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Sunday, September 29, 2019

Case o' The Week: Hoping Ninth Gets Conjunctive-itus - E.B. Grant on Drug Conspiracy Jury Instructions

 “Or” no more, urge fans of “and.”

United States v. Robert Collazo, No. 15-50509, (9th Cir. Sept. 19, 2019), Ord. granting rehearing e.b., available here.

Players: Court-ordered brief for initial en banc consideration by former Federal Defender of San Diego, Inc. AFD, John Lemon.    

Facts: Appellants in Collazo were co-conspirators convicted of drug man-mins. They also suffered guideline enhancements, based on drugs distributed by co-conspirators in prison. See United States v. Rodriguez, Appellants’ Brief for E.B. Consideration, 2019 WL 3947844 at *1. 
  Defendant Rodriguez argued at trial that he did not distribute over 100 grams of heroin: he was an addict, and explained that he consumed “copious amounts” of the drug smuggled to him in prison. Id. at *4-*5. Rodriguez argued for a jury instruction that required that the heroin attributable to him must have been both jointly undertaken in furtherance of the conspirators’ agreement and reasonably foreseeable (i.e., the “conjunctive formulation.”) Id. at *2. 
  The district court refused. 
  The district court instead instructed in the disjunctive: the amounts of drugs must have either been jointly undertaken or reasonably foreseeable. Id. Using this disjunctive instruction, the jury found Rodriguez guilty of conspiracy, and that 100 grams or more of heroin was attributable to him. Id. at *7. 
  Rodriguez was sentenced to a whopping high-end sentence of 175 months, when the court relied on the jury’s findings on the amounts of heroin attributable to him. Id. 
  After briefing on appeal and oral argument, the Ninth issued an order and asked the parties to “address the proper jury instruction under 21 U.S.C. § 841(b) for determining the drug type and quantity involved in a conspiracy offense.” Id. at *2.
 On September 19, the consolidated Collazo cases went en banc.

Issue(s): How is the Ninth going to “sort the whole mess out”? United States v. Torres, 869 F.3d 1089, 1106 (9th Cir. 2017) (Clifton, J. concurring).

Held: T.B.D.

Of Note: Judge Clifton was right in Torres: the Ninth’s law on drug conspiracy is a “mess.” 
  The most straightforward path to victory is for the Ninth to follow its own (and the Supreme Court’s) clear precedent: guidelines and statutes are supposed to be interpreted consistently. See United States v. Becerra, 992 F.3d 960, 967 (1990); see also Dorsey v. United States, 567 U.S. 260, 264 (2012).
   The Ninth got off track because old guidelines handled drug-attribution in the disjunctive. See Becerra, 992 F.3d at 966. In 1992, however, the guidelines were amended to require the conjunctive. Torres, 869 F.3d at 1097 (“[T]he Sentencing Commission . . . amended the Guidelines in 1992 and adopted a conjunctive approach.”) 
  Despite that amendment, the Ninth never corrected its own law and jury instructions – that will change (we hope) with this en banc decision.

How to Use: Object, obviously, in a drug conspiracy trial, and demand the conjunctive formulation. The current problematic disjunctive language is in the “Special Verdicts” section of Ninth Model Instruction 9.19, available here
   Query, moreover, what grand juries have been told, as they’ve returned federal drug conspiracy indictments? Fed. Rule Crim. Proc. 6 disclosures of grand jury transcripts may be in order, for drug conspiracy cases heading for trial.
For Further Reading: The sure win is always the best defense approach: anticipate that Rodriguez will be hammering on the guideline and instruction dissonance in the argument to the en banc court.
  A more interesting argument, however, is Judge Berzon’s very thoughtful concurrence, and compelling conspiracy analysis, in Jauregui, 918 F.3d 1050, 1060 (9th Cir. 2019). Judge Berzon carefully explains how the Ninth’s mélange of conspiracy intent requirements have “muddied an already-confusing area of law.” Id. at 1063.
  For a description of Judge Berzon’s clarion call for en banc action on the Ninth’s conspiracy jurisprudence, see COTW blog entry here 

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


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Tuesday, September 24, 2019

US v. Shelby, No. 18-35515 (9-19-19)(Hurwitz w/Murguia & Zipps). The 9th follows the categorical approach mandated by the Supreme Court in holding that first-degree armed burglary under Or. Rev. Stat. 164.415 is not a violent crime for ACCA purposes. The 9th has held that this statute is not a COV for ACCA under US v. Strickland, 860 F.3d 1224 (9th Cir. 2017), and that it survives Stokeling v. US, 139 S. Ct 544 (2019). In Stokeling, the Court held that there was no distinction between substantial and minimal physical force.  Stokeling does require some force. It does not apply when there is no physical force.  The 9th in Ward v. US, No. 17-35563, slip op. at 9 (9th Cir. Sept. 3, 2019) noted that snatchings where there is no resistance as the robbery happens so fast  is not sufficient to fall under ACCA’s force clause. The state statute here is thus overbroad, as it allows for such no resistance snatchings, and thus the conviction is not a COV. This is true even if there is a deadly weapon. It could be covert.  The statute is also not divisible. Since the district court found it to be divisible, and sentenced for force, the sentence is reversed and remanded for resentencing.

Congrats to AFPD Elizabeth Daily of FPD Oregon (Portland).

The decision is here:

US v. Becerra, No. 17-30050 (9-23-19)(Berzon w/Robreno; Graber dissenting). Failure of the court to orally instruct the jury was structural error.  The 9th so held nearly thirty years ago in Guam v. Marquez, 963 F.2d 1311 (9th Cir. 1992) and reaffirms the holding here.  The majority goes through why orally reading is so critical, and what it connotes.  

Graber, dissenting, would find the error harmless. The guilt was overwhelming; the jury had correct written instructions; and the jurors affirmed with the court that they had read them.

Congrats to Michael Levine for the win.

The decision is here:


Sunday, September 22, 2019

Case o' The Week: (Not) Making a List, (Not) Checking it Twice - Garay and Listless Inventory Searches

Q: What does one call an “inventory” that neglects to actually inventory the items purportedly inventoried?

 A: An "inventory" search.
United States v. Garay, 2019 WL 4419679 (9th Cir. Sept. 17, 2019), decision available here.

Players: Decision by Judge Schroeder, joined by Judges Graber and DJ Watson.

Facts: Garay lead officers on a high-speed chase, crashed the car in a ditch, and fled on foot. Id. at *1-*2. When Garay was arrested, cash and drugs were found on him. Id. 
  The officers searched the car (without a warrant) before it was towed. Id. They found guns, ammo, and a cell phone attributed to Garay. Id. A later search revealed that the phone had pictures on it that tied Garay to one of the guns. Id. at *1. 
  Contrary to the Sheriff’s inventory policy, the officers who, well, rummaged through the car did not complete an inventory sheet listing the property recovered. Id. at *3. 
  State and, later, federal search warrants for the cell phone asserted that “that individuals who possess firearms take pictures of them and communicate via text messages to further their criminal activity.” Id. at *2. The federal warrant application added an assertion that the “‘collective experiences’ of law enforcement agents that felons prohibited from possessing guns use mobile phones to coordinate buying and selling guns.” Id. 
  The motion to suppress was denied. Id. at *1.

Issue(s): “Garay contends that the warrantless seizure of the phone itself was unreasonable and that the affidavits supporting the search of the contents of Garay’s phone were inadequate.” Id. at *2. 
   “Garay contends . . . that the officers used their authority to inventory the car’s contents here to unlawfully rummage for evidence. Inventory searches are consistent with the Fourth Amendment only if they are not used as an excuse to rummage for evidence.” Id.

Held: “[W]e see no reason to hold that the officers were rummaging for evidence. The contents of the wrecked car had to be removed and safeguarded before the car was towed from the site. That is the essence of an inventory search. Because the site was in effect a crime scene, the items in the car were sensibly treated as evidence. The searching officer complied with the department’s inventory-search policy in material respects. . . . . That the officer did not complete the inventory list that ordinarily would be completed as part of a department inventory search is not, on its own, a material deviation from policy.” Id. at *3.
  “Given the circumstances leading up to the search, the officers no doubt expected to find evidence of criminal activity inside the vehicle. But that expectation would not invalidate an otherwise reasonable inventory search.” Id. at *4.

Of Note: The Ninth’s holding on the “inventory” search is disappointing; its holding on the phone search doubly so.
  Garay persuasively argued that “the affiants’ belief on the basis of their ‘training and experience,’ unadorned by sufficient supporting details, cannot properly be considered in establishing probable cause. He argues that, before the affiants’ beliefs may be taken into consideration, the affiants must detail the nature of their expertise or experience and how that experience bears on the facts prompting the search.” Id. at *4.
  Judge Schroeder explains the Ninth’s “standards . . . are not so stringent.” Id.
  Bad facts make bad law: the high-speed chase, crash, drugs, wads of cash, guns, and ammo of Garay makee for a troubling opinion on search warrant affidavits.

How to Use: The only bright spot in a dark decision? Garay’s flight is not a threshold jurisdictional issue that prevents the Court from getting to his Fourth challenge. Id. at *2 (citing the Supreme Court's 2018 decision in Byrd). 
  Garay and Byrd can get our fleeing clients around any jurisdictional bars and to a Fourth Amendment analysis (although our quest for the suppression remedy may get a little complicated).  
For Further Reading: President Trump has nominated two more candidates to the Ninth (one without a California Blue Slip). See article here
  If these appointments are confirmed, the President will have nominated ten of the Ninth’s twenty-nine judges. See WSJ Op Ed here 

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


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Thursday, September 19, 2019

US v. Garay, No. 18-50054 (9-17-19)(Schroeder w/Graber & Watson). A traffic violation led to chase led to a crash, and then the inventory search, and further warrants to investigate cell phones.  The 9th affirmed the denial of the suppression motions, and affirmed the conviction for being a felon in possession.

Interesting facts include the 9th deciding not to decide if the defendant had in fact abandoned the car, after crashing into a ditch, and running.  The 9th held that Byrd v. US, 138 S. Ct 1518 (2018) did not require standing for jurisdiction, and so no need to decide.

More concerning was the warrant for the cell phones, where the officers said that their experience with gun traffickers is that selfies and photos are taken and stored to facilitate sales.  Really?  The 9th also permits “conclusory” statements on warrant affidavits so long as some facts are referenced, and relying on the experience of the officer or affiant.

The decision is here:
US v. Schopp, No. 16-30185 (9-16-19)(Berzon w/Tashima & Fletcher).  In a production of child porn case, 18 USC 2251(a), the 9th reverses defendant’s sentence and remands for resentencing. Applying a categorical approach, the 9th concludes that the defendant’s prior state convictions (Alaska) for sexual abuse and sexual assault with minors do not “relat[e] to the sexual exploitation of children.” The “exploitation” has to do with visual depictions of children engaging in sexual explicit conduct and does not include conduct that lack visual depictions. As such, the prior convictions cannot serve as predicate offenses under 2251. The defendant avoided the bar of an appellate waiver because the sentence was illegal: the multiple-convictions enhancement was illegal.  The error was plain.

Congrats to Myra Sun for the win.

The decision is here: