Friday, April 24, 2015

[Ed. note: I am counsel for the defendant in the second decision summarized here.]

United States v. Hornbuckle, Nos. 12-10541, 12-10615 (Christen with Fletcher and Davis (CA4)) ---
The court affirmed the sentences of two sisters who pleaded guilty to child sex trafficking, in violation of 18 U.S.C. § 1591. The court held that the sentencing judge properly applied two enhancements under U.S.S.G. § 2G1.3, one for "commercial sex acts" and one for undue influence over the victims.

The defendants, who are sisters, along with other siblings and their mother, ran a prostitution ring that employed both adults and children. After one of the child prostitutes came to the attention of the FBI through a confidential source, the sisters were indicted on 13 counts, including 10 counts of child sex trafficking. They pleaded guilty in exchange for dismissal of all but two of the child sex trafficking counts. The district court held an extensive sentencing hearing at which three witnesses testified -- one of the sisters' adult employees, one of their child employees, and a government "expert on prostitution culture." Based on the evidence at the hearing, the judge computed the sisters' Guidelines ranges based on two enhancements -- one under U.S.S.G. § 2G1.3(b)(2)(B) for undue influence over the children, and one under § 2G1.3(b)(4)(A) because the minors had engaged in a sex act. One sister got 151 months, and the other 188 months, both at the low end of their respective Guidelines ranges.

On the undue-influence enhancement, the court held that the record "easily" supported it. The sentencing judge heard "abundant" evidence of the sisters' use of violence, intimidation, and control over the minor victims. One of the sisters "forced all three victims to work when they did not want to and controlled every aspect of [their] lives, including time and place of work, choice of clothing, and access to money and food." The other sister, for her part, may have been less violent, but she meted out more punishment to the victims. Nor did evidence that the victims engaged in prostitution voluntarily undermine the sentencing judge's finding, because there was ample evidence that the victims were not free to leave once they began working for the sisters.

The court's explanation of why the other enhancement was proper is somewhat technical. The upshot is that there was no double-counting, because no element of a § 1591 violation requires proof that the minors actually engaged in sex acts.

The decision is here:

United States v. Alvarez-Ulloa, Nos. 13-10500, 13-10501 (Tashima with Paez and Block (EDNY)) ---

The court affirmed a conviction following a jury trial for illegal reentry and a related supervised-release revocation. The court held that the defendant did not show purposeful discrimination for any one of his three Batson challenges; that the trial judge's supplemental instruction about the insanity defense was legally correct and not unduly coercive; and that the instruction did not constructively amend the indictment by expanding the temporal scope of the offense.

The defendant was, for 12 years, an amateur and professional boxer; after being knocked out in a fight, his behavior began to change, and his legal troubles began. He was also a Mexican citizen, having been born in Nogales, Sonora, although he grew up and lived most of his life in Phoenix, Arizona. He was deported in 2010, and nine months later was arrested at a resort in Phoenix after attempting to sneak into the place where a professional football team was staying. Charged with illegal reentry, he raised an insanity defense, arguing that brain damage made it impossible for him to appreciate the nature of his actions (specifically, that he was not permitted to remain in the United States).

During voir dire, the prosecutor struck three Latino prospective jurors, and the judge rejected the defendant's Batson challenges on the ground that the prosecutor's proffered reasons for striking them were "facially neutral." During jury deliberations, the jury deadlocked about how to apply the insanity defense to the continuing offense of illegal reentry. To break the deadlock, the judge instructed the jury that the insanity defense would be negated if the defendant ceased to be insane for a long enough period of time to reasonably leave the United States, and then he knowingly remained. The jury returned with a guilty verdict 37 minutes after receiving this supplemental instruction.

The court faulted the trial judge for not reaching the third step of Batson -- whether the defendant had shown that the prosecutor purposefully discriminated against a racial minority through the use of a peremptory strike. But the record was well-developed, and so the court proceeded to examine the record to see if the defendant could carry this burden. In the court's view, he could not. The court did not see any similarly situated non-Latino jurors that were not subjects of peremptory strikes, and so held that the trial judge correctly overruled the defendant's Batson challenges.

On the jury-instruction issue, the court first held that it was legally correct. Illegal reentry is a continuing offense, and so the court approved the idea that an illegal-reentry defendant who raises an insanity defense must show that "he was legally insane for virtually the entire duration of his illegal stay." Moreover, the instruction was not coercive, because it did not suggest that the jury should view the evidence unfavorably to his side and was not directed at any particular juror's difficulty.

Nor was there a constructive amendment of the indictment. Circuit law was plain to the court that the indictment need not allege the entire period of time during which the defendant was illegally present in the United States, because the "found in" element encompasses this entire period of time.

The decision is here:

United States v. Walls, No. 13-30223 (Bea with Fisher and Murguia) ---

The court rejected a challenge based on the Commerce Clause to entirely local sex-trafficking offenses under the Trafficking Victims Protection Act, 18 U.S.C. § 1591.

The defendant was tried on numerous counts, including four counts under § 1591, which prohibits sex trafficking "in or affecting interstate or foreign commerce." There was evidence presented at trial that the victims' services were advertized on Craigslist, which had servers in California, and that they used condoms manufactured in Virginia to service clients in Washington state. At the government's request, the jury was instructed that "an act or transaction that crosses state lines is 'in' interstate commerce," and that "an act or transcation that is economic in nature and that affects the flow of money in the stream of commerce to any degree 'affects' interstate commerce." Defense counsel did not object to this instruction. The jury convicted, and the defendant received a 23-year sentence.

The defendant's argument was premised on the idea that the Supreme Court's recent decision in Bond v. United States, 134 S. Ct. 2077 (2014), might have taken away Congress's ability to regulate the purely local aspects of sex trafficking. The court disagreed, because sex trafficking affects interstate commerce in the aggregate, and so Congress was exercising the fullest extent of its commerce powers when it enacted § 1591. The jury instruction was thus proper under Gonzales v. Raich, 545 U.S. 1 (2005). Nor did the instruction direct a verdict on the interstate-commerce element of the crime; it merely defined the terms "in" and "affecting" interstate commerce, without creating a presumption that the jury had to find that element proved. (The court noted at the outset that the claim was subject to plain-error review, but since it didn't find any error it didn't need to reach the other prongs of the plain-error standard.)

The decision is here:

Sunday, April 19, 2015

Case o' The Week: Mail Theft Defendant hit with Murphy's Law - Gonzalez Becerra and Guideline Mail Theft Victims

 No monetary loss, no fraud guideline victim?
 No dice.
United States v. Gonzalez Becerra, 2015 WL 1637864 (9th Cir. Apr. 14, 2015), decision available here.

Players: Decision by visiting 10th Senior Circuit Judge Michael Murphy, joined by Judges Gould and Tallman. Hard-fought appeal by CD Cal AFPD Michael Tanaka.

Facts: A traffic stop lead to a search; the search ultimately produced stolen mail from 250 individuals. Id. at *1. Gonzalez Becerra ultimately pleaded guilty to possessing stolen mail. Id. The court imposed a four level bump because the offense involved “50 or more victims” under USSG § 2B1.1(b)(2)(B) – despite the fact that the victims did not sustain any actual monetary loss. Id. The defense made a “narrow, fact-based challenge” to the increase – focusing on whether the mail had in fact been delivered. Id. at *3. On appeal, the defense made a legal argument that that the commentary’s definition of victim in § 2B1.1 was inconsistent with the guideline itself. Id.

Issue(s): “[Gonzalez-Becerra] contends the district court committed legal error when it applied the definition of ‘victim’ set out in Application Note 4(c) to conclude his offense involved at least fifty victims. In particular, he asserts the district court erred in applying the definition from the commendatory because the commentary is inconsistent with the text of § 2B1.1.” Id. at *3.

Held:The special definition of the term ‘victim’ set out in Application Note 4(c) regarding the theft of undelivered mail is perfectly consistent with the use of the that term in the text of § 2B1.1. Thus, the district court did not err, let alone plainly err, in increasing Gonzalez Becerra’s offense level by four levels because he possessed the stolen mail of at least fifty individuals. USSG § 2B1.1(b)(2)(B).” Id. at *5.

Of Note: While the standard of review ultimately doesn’t matter here (see the holding above), the opinion’s musing on plain error is worth a read. Id. at *3 - *4. Judge Murphy goes to fair lengths to characterize the sentencing objections to the guideline in the district court as factual objections – but characterizes the defense’s appellate argument about “victim” as a legal objection. Id. Judge Murphy then concludes, “[b]ecause the record makes clear the legal issue Gonzalez Becerra advances was not raised below, he can only obtain relief on appeal by demonstrating the district court committed plain error.” Id. at *4. Because “plain error” review is one of the government’s favorite gambits to dodge our appellate arguments, this interpretation triggering that standard is worth reflection (and is a reminder to argue broadly in district court objections).

How to Use: The gist of the defense argument was that § 2B1.1 is a fraud guideline, so the term “victim” should refer to someone who suffered monetary loss. Id. at *4. That argument didn’t get much traction: the Court concludes that the 2001 rewrite of the guideline expanded it beyond the fraud context. Id. Once the Court views § 2B1.1 views more broadly, it finds it “easy to reject [the defense’s] assertion that the term ‘victim’ is tied exclusively to pecuniary loss.” Id. at *5. For better or worse, Gonzalez Becerra contains a fairly in-depth discussion of what constitutes a guidelines “victim” for mail theft cases: dig through the case when your next sad meth addict gets nabbed with a postal key.  
For Further Reading: The Ninth isn’t the only one mulling fraud victims. As noted in an early memo, the Sentencing Commission has adopted proposed amendments to § 2B1.1 that purport to focus more on the harm to the victims, rather the number of victims. For a broad and accessible article describing the changed guideline, see the Reuters piece here. For a much more detailed, and very helpful discussion of these (and other) amendments, see the work of the National Sentencing Resource Counsel here.

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


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Monday, April 13, 2015

U.S. v. Sahagun-Gallegos, No. 13-10095 (Christen with Noonan and Fletcher) ---
The statements of defense counsel during a plea colloquy, with only the defendant's assent, cannot be used in a modified categorical analysis under Descamps v. United States, 133 S. Ct. 2276 (2013). This case involved a 1326 and an enhancement for a COV. The COV was an AZ aggravated assault. However, the aggravated assault had been found to be overbroad and the intent could be simple recklessness, not any kind of heightened recklessness. Under Descamps, for a COV, if a statute is divisible, a modified categorical approach can look at court documents to determine the divisible variant of the statute under which the defendat was convicted, and whether an element of that crime involves heightened recklessness. Here, although defense counsel laid the factual basis at the change-of-plea hearing on the prior conviction, the defendant did not agree and there was not even a reference to the divisible statute. The 9th held that such use of the statement was plain error.

The court reached this issue of plain error in order to provide guidance to the district court, to which the sentence was remanded because of another issue to which the government had confessed error -- the withholding of the third point for acceptance of responsibility because the defendant refused a plea agreement in order to preserve his right to appeal. Previous Ninth Circuit law had allowed this, but over two years ago the Sentencing Commission changed the Guidelines to disapprove of the Ninth Circuit's approach to the issue. Many cases pending on appeal have already been remanded for resentencing based on this issue alone. So what took this case so long? The issues in this appeal were flagged by the court's independent review of the record after prior appellate counsel filed an Anders brief.

Congratulations to Davina Chen, formerly of the FPD in Los Angeles.

The decision is here:
U.S. v. Urrutia-Contreras, No. 14-50113 (Gettleman, DJ, with Gould and Kleinfeld) ---
The government gets to weigh in on a revocation sentence, just like it does at the initial sentencing hearing. Here, the court sentenced the defendant on a new illegal reentry charge and a revocation. The revocation was for a SR term attached to a sentence all agreed was erroneous, and for which the defendant served more time than necessary. Defense counsel argued for a short consecutive sentence. The court moved to sentencing. When defense counsel objected, that the government should be heard, arguably to support defendant's position, the court stated that it, not the government, sentenced. On appeal, the 9th vacated and remanded. The 9th held that as the government had a right to be heard at sentencing under Fed R Crim P 32, so too should it be heard in revocation proceedings under Fed R Crim P 32.1. Rule 32 "fills in the gaps."

Congrats to Kent Young of Federal Defenders of San Diego, Inc.

The decision is here:

Sunday, April 12, 2015

Case o' The Week: Ninth Not Content without Assent - Sahagun-Gallegos, Decamps, and Taylor Analysis of Prior Plea Transcripts

Hon. Judge Morgan Christen
  Attorneys often speak for their clients.
  Thankfully, however, attorneys can’t concede for their clients (at least, can’t concede plea facts that haunt later Taylor analyses).
United States v. Sahagun-Gallegos, 2015 WL 159446 (9th Cir. Apr. 10, 2015), decision available here.

Players: Decision by Judge Christen, joined by Judges Noonan and Fletcher. Big win for former CD Cal AFPD Davina Chen.  

Facts: Sahagun-Gallegos was deported and reentered the US. Id. at *1. He pleaded guilty in Az. to aggravated assault, and was deported again. Id. He reentered, was arrested, and convicted of illegal reentry. Id. The PSR recommended a +16 OL bump, characterizing the agg assault as a felony “crime of violence.” Id. He refused to waive his appellate rights, and was denied the third point for acceptance. Id. With no defense objection, the Court found the guidelines correctly included the +16 OL increase. Id. His attorney filed an Anders brief, but the Ninth found two bases for an appeal: the +16 increase and the government’s refusal to grant a third point for acceptance. Id. at *2. New counsel was appointed. Id.  

Issue(s): “We consider in this case whether, consistent with Descamps v. United States, 133 S. Ct. 2276 (2013), a sentencing court conducting the modified categorical approach may rely on a defense attorney’s statement of the factual basis for a guilty plea and use the process of elimination to determine which subsection of a divisible statute the defendant pleaded guilty to violating.” Id. at *1.

Held: “We conclude that it may not, and vacate and remand the case for resentencing.” Id.

Of Note: Some anonymous Ninth staff attorney earns a grateful shout-out for catching these issues in an Anders brief. The case actually gets reversed for the third point issue – the Commission changed the acceptance guideline and put an end to that inane government policy while the case was on appeal. Id. at *2. The real issue in the case, however, is the factual showing underlying the Taylor analysis. Id. at *3. All agree that the agg assault statute at issue was both overbroad and divisible. Id. at *4. At the underlying plea colloquy for the Arizona conviction, Sahagun-Gallegos’ attorney stated that his client had pointed a sawed-off shotgun at a cashier in a fast food restaurant. Id. However, nothing in the transcript revealed Sahagun-Gallegos assented to his attorney’s factual description. Id. at *5. 
  Even if he had, that factual concession in a plea can only (possibly) be used to negate all possible statutory alternatives. Id. & fn. 6. 
  The decision joins another post-Descamps Ninth opinion, Marcia-Acosta, in a welcome line limiting the government’s expansive fact-roving to try to make its Taylor showing.

How to Use: Descamps¸you will recall, is the 2013 Supreme Court decision guiding the application of the Taylor modified categorical approach. See Steve Sady’s excellent Q&A on Descamps, here. 
   Sahagun-Gallegos is the Ninth’s continued interpretation of Descamps. Take a particularly close look at the opinion if i) a prior is causing an offense level increase (usually in Section 1326 cases, but also common in Section 922(g) sentencings and other crimes), ii) the underlying statute is divisible – it has elements that can constitute a crime, but that don’t meet the “generic” definition of the guideline prior, and iii) the government relies on a plea colloquy transcript to argue the prior qualifies.
For Further Reading: In other sentencing news, last week the USSG adopted proposed amendments to the fraud guidelines. You can find reader-friendly versions of these amendments here
   The amendments also include changes to relevant conduct principles, and the hydrocodone guideline. These amendments become effective Nov. 1, 2015, barring any contrary action by Congress.

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


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