Tuesday, November 24, 2015

United States v. Bare, No. 14-10475 (11-24-15)(Tallman with Rosenthal, D.J.; Kozinski dissenting). 
As an editorial note, this is an AZ FPD case. The 9th affirms a sentence and conditions of SR in a felon in possession case.   Some interesting aspects are presented and a dissent by Kozinski regarding overbroad SR conditions.  This case arises from the non-Indian defendant shooting a gun on the Navajo reservation during an altercation with a disgruntled pawn store customer.  The pawn store was run by the defendant from his house and it was not exactly "authorized."  The defendant's sentence was increased because his acts constituted felony disorderly conduct under the state statute.  He argued that because it occurred on the Reservation, it could only be a misdemeanor.  The 9th held the enhancement of +4 was warranted because felon in possession was a general crime, and it included the Reservation; the assimilative crimes act (ACA) also imported state offenses to non-Indians, which the defendant was.
As for SR conditions, the court imposed a "search of computers." The 9th affirmed, holding that the condition only required "some nexus" to the goals set forth in 3553.  The nexus was that the defendant had run a pawn shop, using paper ledgers, but in the future, could use a computer.

Kozinski dissented from this affirmance of the SR conditions.  He basically said "come on!"  He argues that the condition allows the probation officer to search computers for some reason or no reason, despite the fact that the offense did not require a computer, the defendant did not own a computer, and the so-called nexus is really no nexus, as anyone, at any time, could use a computer to do some offense.  Kozinski also states that the majority misuses memorandum decisions for precedent, and that the decision itself runs counter to other precedent.
The decision is here:


Sunday, November 22, 2015

Case o' The Week: The 411 on 211 - Cal Robberies not Violent Felonies for ACCA - Dixon

The Hon. Judge Carlos T. Bea

  In Anderson, the California Supreme Court upheld a robbery conviction under California Panel Code Section  211 – even though the use of force was accidental, and not intentional.  A good decision for D.A.s. 

  Not so hot, it turns out, for AUSAs.

United States v. James Dixon, No. 14-10318 (9th Cir. Nov. 20, 2015), decision available here.

Players: Decision by Judge Bea, joined by Judges W. Fletcher and Berzon.

Facts: Dixon, who had nine prior felonies, plead guilty to Section 922(g)(1) (“felon in possession.) Id. at 4. 

The district court found that three convictions were “violent felonies” under the ACCA: two of those were California Penal Code (“CPC”) § 211 robberies. Id. 

Dixon was sentenced to the mand-min 15-year sentence. Id.

Issue(s): “Dixon appeals only his sentence, claiming, as he did in the district court, that he did not have three ‘violent felony’ convictions, as defined by the ACCA, and thus does not qualify for the mandatory minimum sentence.” Id.

Held:We conclude that CPC § 211 is not a categorical match because it criminalizes conduct not included within the ACCA’s definition of ‘violent felony.’” Id. at 7. 

“[W]e turn next to whether CPC § 211 is divisible into violations that meet the ACCA’s definition of ‘violent felony’ and others that do not. We have little trouble finding that CPC § 211 is not divisible.” Id. at 10. 

“Because CPC § 211 criminalizes conduct not included in the ACCA’s definition of ‘violent felony’ and is not divisible, a conviction for violating CPC § 211 cannot serve as a predicate ‘violent felony’ conviction for the application of a mandatory minimum sentence under the ACCA . . . . As a result, we vacate the district court’s imposition of the mandatory minimum sentence and remand this case to the district court for resentencing.” Id. at 12.

Of Note: Dixon is an admirably clear, textbook analysis of a state statute’s viability as a “violent felony” under Johnson. Judge Bea first determines that this is not a categorical match, distinguishing precedent in the context of other guidelines with different definitions. Id. at 7-8. He looks at state law, and finds California permits § 211 robbery convictions beyond the key and core limiting requirements of Johnson: (i) Johnson-eligible priors must involve the use of violent force, or force capable of causing physical pain or injury, and must involve (ii) the intentional use of force. Id. at *9. 

Judge Bea then examines the divisibility of CPC § 211, correctly observing that the disjunctively worded phrases in this statute describe alternative means, not alternative elements. Id. at 11. 

Read Dixon for the very welcome outcome, but also take a close look at this blueprint for mounting Johnson attacks on other state priors.

How to Use: Unfortunately, CPC § 211 priors may still count as a “crime of violence” under the current illegal reentry guideline, USSG § 2L1.2(b)(1)(A)(ii). See id. at 7 (discussing the different definition in the reentry

guideline and Ninth authority holding that § 211 qualified as “crime of violence” in that context). 

Notably, however, the identical ACCA definition of “violent felony” is used in the Career Offender guideline, USSG § 4B1.2(a)

And that Career Offender definition is then incorporated by reference into the “gun” guideline, USSG § 2K2.1 comment. n.1

The punchline? 

After Johnson and Dixon, it is all but certain that CPC § 211 “Cal robbery” priors are not “crimes of violence” triggering Career Offender exposure, or generating those big offense level jumps for felon-in-possession cases (up to Offense Levels 20 – 26). Invoke Dixon and contest Cal Robbery priors as “crimes of violence” for those guideline provisions.  
For Further Reading: The timing of Dixon is impeccable. Just three days before the Ninth’s decision, the District Court, Northern District of California, presumptively appointed the Federal Public Defender and the CJA panel to handle Johnson habeas litigation. See Misc. Order 2015.11.17, available here.

The FPD has received and is reviewing lists of (hundreds) of potentially eligible candidates from the Sentencing Commission – NorCal folks should look for updates on the Johnson procedures and reports on petitioner eligibility in the weeks and months ahead.  

Image of the Honorable Judge Carlos Bea from (the interesting) http://abovethelaw.com/2012/02/benchslap-of-the-day-say-my-name-say-my-name/

Image of the federal sentencing guidelines manual, 2014-2015 edition, from http://ecx.images-amazon.com/images/I/41VwL1OpxqL._SX384_BO1,204,203,200_.jpg  

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


Labels: , , , , , ,

Friday, November 20, 2015

United States v. Dixon, No. 14-10318 (11-20-15)(Bea with Fletcher and Berzon). This is an ACCA case where the 9th holds that California robbery is not a "crime of violence."  Under Taylor, California robbery under CPC 211 does not meet the categorical generic definition of "robbery" required for ACCA.  The state conviction contains conduct that is may not be "violent force" or may not be intentional (i.e. reckless or accidental).  The statute is not divisible.
The decision is here:

Shirley v. Yates, No. 13-16273 (11-20-15)(Reinhardt with Thomas and Christen). Habeas relief is granted because of a Batson violation.  The Batson violation occurred in the narrow set of cases where the prosecutor, in this robbery case, cannot remember why he struck prospective jurors.  The prosecutor stated that he was confident there was a race neutral reason.  However, such a statement, without corroborating evidence, is alone cannot overcome Batson's step 3. Note the 9th reverses the district court where Kozinski sat as the D.J.

The decision is here:

United States v. Garcia-Jimenez, No. 14-10484 (11-19-15) (Berzon with Fletcher and Bea). 
Reversing and remanding a +16 level increase, the 9th Circuit holds that a New Jersey's aggravated assault conviction is not a "crime of violence."  The state statute is broader than the federal generic offense: it includes "extreme recklessness or indifference." In addition, the state "attempt" definition is broader than the federal offense because it embraces solely preparatory steps and rejects the concept of "probable desistance," which means that the act will unequivocally go forward unless independent forces intervene.  The 9th also finds that the error was not harmless.  The court had said that it would sentence the defendant to 46 months, even if the prior was not a categorical COV.  The 9th stated that the length of sentence, three times as long as the guideline range if the prior was not a COV, meant that a reconsideration and resentencing was in order.  A district court's assurance that the sentence would be the same cannot cure the prejudice; cannot make the harm harmless.

Congrats to CJA appellate counsel Davina Chen for the win.

The decision is here:


Sunday, November 15, 2015

Case o' The Week: Win on Loss -- Galan and Disaggregating Restitution Loss for Child Porn Restitution

  [“T”]his area, in which Congress has adopted a scheme that at least approaches the limits of fair adjudication despite attempts by the courts to avoid caprice, cries out for congressional solution.”

  United States v. Galan, 2015 WL 6736535, *3 (9th Cir. Nov. 4, 2015) (three footnotes omitted), decision available here.

Players: Decision by Judge Fernandez, joined by Judges Tashima and Bea. Admirable win for D. Or. AFPD Bryan Lessley.

Facts: Eleven years before before Galan possessed and distributed child porn, someone else abused “Cindy” and created those images. Id. The government sought restitution from Galan under 18 USC § 2259(a), (b)(3). Id.

Galan contested the government’s calculations, because there was no attempt to disaggrate the losses arising from the original abuse from the losses arising from Galan’s crimes. Id.

The district court agreed with the government’s restitution calcs; this appeal followed.

Issue(s): “[Galan] asserts that the district court erred when it failed to disaggregate losses caused to Cindy due to the crimes perpetrated against her by the original abuser and those caused to her by others who possessed or distributed images of the abuse which were made by the original abuser.” Id. at *1. “The question on which the parties join issue is whether it is proper to make the restitution calculation without excluding the ongoing losses to Cindy due to the actions of the original abuser.” Id.

Held: “We agree and vacate the restitution order and remand.” Id.We hold that in calculating the amount of restitution to be imposed upon a defendant who was convicted of distribution or possession of child pornography, the losses, including ongoing losses, caused by the original abuse of the victim should be disaggregated from the losses caused by the ongoing distribution and possession of images of that original abuse, to the extent possible. The district court erred when it declined to limit the restitution imposed upon Galan in that manner.” Id. at *3.

Of Note: In the first (brief) Westlaw page, Galan is peppered with no less than a whopping ten footnotes. It is a notable style of legal writing, that is not to everyone’s taste. See Abner J. Mikva, Goodbye to Footnotes, 56 U. Colo. L. Rev. 647 (1984-1985) (“I consider footnotes in judicial opinions an abomination.”) 

In defense of the approach, however, the first paragraph of Galan’s “Discussion” section lays out the core concepts in a series of clean and clear phrases, with the necessary and routine citations tucked away in a series of footnotes. 2015 WL 6736535, at *1.

An interesting opinion from footnote fan J. Ferdinand F. Fernandez.

How to Use: Back the case goes, to the district court. 

Now what? 

The Ninth “express[es] no opinion about what portion of a victim’s ongoing loss should be attributable to the original abuser.” Id. at *3. However, Judge Fernandez suggests some factors that are sure to be seized upon by district courts: egregiousness of the original abuse, how the victim deals with this abuse when distribution of the images does not follow, and the victim’s own reaction to the traumas to which he or she has been subjected. Id. at *3. 

“We have no illusion that the task will be easy,” commiserates Judge Fernandez, “but the courts (and the government) cannot decline to make an effort to accomplish what Congress and the Court have required.” Id. The restitution scheme “cries out for congressional solution,” opines the Court, id. but until then the district court and the government must try to disaggregate restitution claims.  
For Further Reading: A routine allocution and sentencing appeal from San Diego doesn’t merit enough interest to even get oral argument. Then, presto chango, a sua sponte en banc call goes out -- and the case is suddenly on January’s en banc calendar!?! 

What’s the bee in the Ninth’s bonnet? Speculation abounds, but hard to say for sure – the Ninth declined supplemental briefing on whether the case should go en banc. Curious and curiouser.

For Chief Judge Thomas’s order on this mystery wrapped in an enigma, see United States v. Francisco Gasca-Ruiz, No. 14-50342 (9th Cir. Nov. 12, 2015) (Ord.), available here.

Image of “footnote” By Calle Widmann (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons, from https://commons.wikimedia.org/wiki/File%3AFootnote.jpg

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


Labels: , , , , , ,