Sunday, July 20, 2014

Case o' The Week: Ninth Turns Up Nose at State Action and Federal Sentences - Lizarraga-Carrizales and Safety Valve

Lizarraga may have obtained the termination of his probation in hope of affecting his sentence for the federal offense, thus risking an odor of gaming the federal sentencing system.” United States v. Lizarraga-Carrizales, 2014 WL 2958614, *5 (9th Cir. July 2, 2014), decision available here.

Players: Decision by Judge Callahan, joined by Judges Trott and District Judge Bennett. Hard-fought appeal (following some admirable pre-sentencing litigation) by AFD James Fife, Federal Defenders of San Diego, Inc.

Facts: Lizarraga-Carrizales was caught on the border with 7 kilos of heroin, and convicted of drug importation. Id. at *1. That triggered a ten-year mand-min under 21 U.S.C. § 960(b). Id. 
  The district court rejected his arguments for Safety Valve, finding him ineligible because he had too many criminal history points (five, instead of the maximum of one). Id.  

Issue(s): “Lizarraga claims that the district court improperly engaged in judicial fact-finding in denying him safety valve relief from the mandatory minimum sentence and misapplied the Sentencing Guidelines.” Id. at *1. “Lizarraga’s primary contention on appeal is that the facts underlying the safety valve determination must be submitted to a jury under Apprendi . . . . and Alleyne . . . . We have yet to decide in a published decision whether the safety valve determination implicates Alleyne . . . .Id. at *2 (internal quotations and citations omitted)..  

Held:We hold that the safety valve determination under 18 U.S.C. § 3553(f) does not implicate Alleyne v. United States . . .  133 S. Ct. 2151 . . . (2013), because it does not increase the statutory minimum sentence.” Id. at *1. “We agree with the First Circuit that the denial of safety valve relief does not increase the statutory maximum or minimum such that Alleyne is implicated . . . . Accordingly, the factual predicate for denying safety valve relief need not be proven to a jury.” Id. at *3.  

Of Note: Lizarraga-Carrizales is a buffet of unappetizing entrees for counsel slugging away for their Safety Valve-(ish) clients. Through some clever and aggressive litigation, two of the state probation terms that caused unwanted points in this case were ended early, nunc pro tunc, in state court. Id. at *4. 
  The Ninth resuscitates these dead probationary terms, concluding that the key issue was whether the defendant was on probation at the time of the offense – not at the time of the federal sentencing. The tone of the opinion takes umbrage at state court’s tinkering with facts underlying a federal sentence. Interesting to contrast this federal supremacy theme to the remarkable deference shown to state courts in AEDPA habeas litigation, where state rulings on criminal law issues seem to reign supreme.

How to Use: A client gets a CH point only if the actual probation sentence imposed is more than a year. What if a Safety Valve aspirant gets that state probationary term reduced to less than a year, nunc pro tunc, after the federal arrest? That’s one narrow little issue left unresolved in Lizarraga-Carrizales. See id. at *5. There’s some tension in Ninth law on this issue – take a look if a sympathetic state judge is open to some help on a probationary term.
For Further Reading: The -2 offense level reduction in the drug guidelines is fully retroactive! See Press Release here.  The Sentencing Commission voted on Friday July 18 to make their amendment to the drug guideline fully retroactive. On average, this change will save 25 months off of a federal sentence. Id.
 Sentencing Commissioners in office of Hon. Senator Durbin
Barring Congressional action, judges can start considering petitions for reductions after November 1, 2014 (though no inmate will be released before November 1, 2015). 
  In the ND Cal, new SF AFPD Shilpi Agarwal will be spearheading the effort to get the district’s CJA clients retroactive relief – stay tuned for more news and updates on these efforts. 
  Finally, NorCal’s own Judge Breyer was one of the Commissioners who voted for full retroactivity of this amendment – much credit due to the Hon. CRB (and his fellow Commissioners) for this remarkable USSG development.

Image of man holding nose from, Image of Commissioners at the office of the Honorable Senator Dick Durbin from

Steven Kalar, Federal Public Defender, ND Cal Website at


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Monday, July 14, 2014

United States v. Ruiz, No. 13-30003 (Christen with Fisher; dissent by Gould).

"Can't trust the confidential informant", concludes the 9th, "and the cops mislead," BUT not enough to dismiss. The CI here identified the defendant in a suspected shooting as "McDog." The CI had given some information, but seemed evasive. The police found she was being investigated on drug charges, and she became a whole lot more cooperative with a deal. The police did not inform the magistrate, who signed the search warrant, about these facts. The 9th criticized the misleading, and were concerned about the purported photo line up "identification" that was less than certain and involved factors such as cross ethnic, and lighting issues. Yet, for all the problems, dissembling, and omissions, there was just enough corroborating evidence to prevent a dismissal. Gould in dissent would dismiss for a Franks violation. There was insufficient cooroboration. The majority makes the mistake of hindsight instead of a clear eyed view.
[Ed. note -- Sorry for the delay; Jon and I were both out late last week.]

United States v. Hsuing, No. 12-10492 (McKeown with Thomas and Kendall, D.J.).

This appeal arises from a rare criminal antitrust prosecution. Taiwanese and South Korean individuals and companies conspired in violation of the Sherman Anti-Trust to fix prices on LCDs. The defenses revolved around the reach of the antitrust offense off shore and venue. The 9th affirmed the convictions and sentence. The 9th found that there was global reach of jurisdiction if it affected US consumers. Venue was also proper. The 9th also found invited error in the jury instructions.

Sunday, July 13, 2014

Case o' The Week: Ninth Finds McDog Unappetizing -- Franks, PC, and Search Warrants

Q: What happens when a cop omits that his search-warrant witness is a lying, drug-dealing snitch, appropriately named “Scales?”
  A: A stern rebuke (and search upheld . . .  .)
United States v. Ruiz, 2014 WL 3377345 (9th Cir. July 11, 2014), decision available here.

Players: Decision by Judge Morgan Christen, joined by Judge Fisher. Dissent by Judge Gould.

Facts: Cops went to a trailer home where a man, Mills, had been shot in the knee. Id. at *1. A man named “McDog” had knocked on the door, tussled with Mills, while another man with a mask and an assault rifle stood by. Id. Mills’ girlfriend, Scales, was there and gave an “evasive” account to the cops. Id. They searched the trailer, found a meth pipe, discovered Scales was a suspected dealer, and made a controlled by from her later in the day. Id. at *1-*2. She started snitching, identified two guys in a six-pack phot lineup, and eventually settled on Ruiz. Id. at *2. The cops got a warrant for Ruiz (aka “McDog,”) but didn’t reveal in the warrant application that Scales had prior meth drug sales, that she had lied about the meth in the trailer, her interest in being a snitch, or her statement that the shooting had been related to drugs and money. Id. at *2. A search of Ruiz’s residence produced a shotgun - he was indicted federally. Id. In a Franks hearing, the district court found that Detective John Plaza had recklessly omitted material facts in the application, but upheld the search in light of the full record. Id. at *3.

Issue(s): “Ruiz appeals his conviction for Unlawful Possession of a Firearm . . . contending that the district court erred by denying his motion to suppress a shotgun seized during the execution of a search warrant at his residence. Ruiz argues that reckless omissions by the search warrant affiant fatally undermined the magistrate judge’s finding of probable cause.” Id. at *1.

Held:We . . . affirm the district court’s denial of Ruiz’s motion to suppress.” Id. at *1. “We share the district court’s concern about the police conduct in this case, but we conclude there is enough evidence in the record corroborating Mill’s and Scale’s statements to diminish the adverse effect of their credibility issues in the context of the probable cause inquiry . . . In light of the full record, there was a ‘fair probability’ that evidence of the shooting would be discovered at Ruiz’s residence. . . .  The district court properly denied Ruiz’s motion to suppress evidence . . . . Id. at *8 (internal quotations and citation omitted).

Of Note: In a compelling dissent, Judge Gould warns that “we should exercise caution on the side of the Fourth Amendment and improved police practices, rather than a strained
theory of harmless error.” Id. at *9 (Gould, J., dissenting). Judge Gould ticks off the omissions – the Mag Judge didn’t know of Scale’s recent history of drug sales, statement to police that the shooting was related to drugs and money, her sale of meth to police on the afternoon of the shooting, leading to her role as a narc informant. Id. “The majority permits law enforcement to omit all of these essential facts on a theory of harmless error, even where the corroborating evidence is weak and largely comes from Scales, the very interested party whose credibility is challenged.” Id.

How to Use: The best we can do with Ruiz is to entangle it in its own facts. Judge Christen spends a fair amount of time comparing these facts to those of other warrant / Franks cases, id. at *4-*5, and relies heavily on other corroborating evidence relating to the shooting, id. at *6. Using that corroboration, she distinguishes cases where the only detailed description of the facts for the warrant came from the informant. Id. at *6. Use this discussion to keep Ruiz fact-bound when faced with a lying cop in a search warrant application.
For Further Reading: Clemency is heating up. Clemency trainings will be held on July 15 and July 16 and are available to all counsel interested in helping. See link here. 
  We’ll soon have decent figures for eligible petitioners, and we’re expecting more D.C. developments soon. 
   Add the Sentencing Guideline Commission’s vote on -2 drug retroactivity, see article here, and this will be a particularly important week for our incarcerated clients.

Image of the Honorable Judge Gould from  Image of “McDog” from

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


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