Monday, November 17, 2014

United States v. Martinez, No. 13-10563 (Owens with Schroeder and Friedland).
Sykes alive, one can't run away from precedent. This is an ACCA case, where one prior -- California Vehicle Code § 2800.2 for vehicle flight from a pursuing peace officer -- determines whether the defendant gets the mandatory minimum 15 year sentence. The Ninth Circuit held that the prior flight conviction is a possible crime of violence under ACCA's residual clause. The Supreme Court in Sykes found that a similar Indiana state statute was a violent felony. The court rejected the argument that § 2800.2 doesn't qualify under the residual clause because it has a lower mens rea and fewer actus reus elements than the Indiana statute at issue in Sykes. Finally, the 9th rejects a vagueness and an Apprendi-based challenge to ACCA.

The decision is here:

United States v. Waters, No. 13-50332 (per curiam; panel was Kleinfeld, Graber, and Owens).

The Ninth Circuit affirmed the dismissal of a motion under 18 U.S.C. § 3582(c)(2) for a retroactive sentence reduction for possession of crack cocaine under Amendment 759 to the U.S. Sentencing Guidelines. It did so because the defendant was a career offender, so he isn't eligible for the reduction -- just as the court had held in his previous appeal. Furthermore, the amendment to U.S.S.G. § 1B1.10 that restricted the district court's ability to reduce the sentence below the new Guidelines range was not an ex post facto violation because the statement did not increase a sentence; it just limited the availability of a present reduction to a past sentence.

The decision is here:

Sunday, November 16, 2014

Case o' The Week: Raya Hope for (d) Challenges - Raya-Vaca and Due Process Rights in Expedited Removal Proceedings

The Hon. Judge Mary Murguia

 “A nation’s greatness is measured by how it treats its weakest members,” opined Ghandi.
  The Ninth measures up well, in a new due process decision (with teeth!) for an alien facing illegal reentry charges.  
United States v. Victor Raya-Vaca, 2014 WL 5802287 (9th Cir. Nov. 10, 2014), decision available here.

Players: Decision by Judge Murguia, joined by Judges Reinhardt and Fisher. Big win for Ass’t Federal Defender Chloe Dillon, Federal Defenders of San Diego, Inc.

Facts: Raya-Vaca went through expedited removal proceedings under 8 USC § 1225 and removed, was later found in the U.S., and was charged with illegal reentry under 8 USC § 1326. Id. at *1. Section 1225 was originally used for the expedited arrival of aliens “arriving” in the US, but the Dept. of Homeland Security has expanded the procedure for aliens discovered within 100 miles of the US border. Id. at *2. A Border Patrol agent had given Raya-Vaca a record of sworn statement, and the agent ordered him removed under Section 1225. Id. at *3. During the Section 1326 prosecution, Raya-Vaca challenged the validity of this Section 1225 removal. Id. at *4. In a sworn statement in support of his motion, Raya-Vaca explained that the sworn statement he signed was incomplete and that he did not understand what he was signing. Id. at *7. Raya-Vaca’s motion was denied, and he entered a conditional plea, preserving his right to appeal. Id. at *4.

Issue(s): “Raya-Vaca contends that his expedited removal proceedings did not comport with due process because, among other errors, the immigration officer who entered the removal order failed to provide Raya-Vaca with notice of the charge against him and an opportunity to respond. Raya-Vaca further asserts that he suffered prejudice as a result.” Id. at *1.

Held:We agree.” Id. at *1. “[W]e hold that Raya-Vaca was entitled to expedited removal proceedings that conformed to the dictates of due process.” Id. at *6. “[W]e conclude that any failure to inform Raya-Vaca of the charge against him and to provide him the opportunity to review the sworn statement constituted a violation of Raya-Vaca’s due process rights.” Id. at *6. “We further conclude that Raya-Vaca’s due process rights to notice and an opportunity to respond were indeed violated during his expedited removal proceedings.” Id. at *7. “[W]e hold that the immigration officer failed to advise Raya-Vaca of the charge against him and to permit him to review the sworn statement, in contravention of Raya-Vaca’s due process rights. In so holding, we reject the Government’s argument that in order to show the due process violation itself—the first prong of a showing of fundamental unfairness – Raya-Vaca must establish that he was prejudiced by the failure to comply with the regulation.” Id. 
  “[B]ecause Raya-Vaca could plausibly have been granted relief in the form of withdrawal of his application for admission, we hold that his 2011 removal order is invalid and cannot serve as the predicate for his conviction under 8 USC § 1326. We therefore reverse the denial of Raya-Vaca’s motion to dismiss the information and his conviction.” Id. at *13.

Of Note: Much to celebrate in this thoughtful opinion. Big picture, Judge Murguia holds that these “turn around” Section 1225 removals trigger due process protections for the aliens who are being questioned and removed. Id. at *6. It is a just decision that honors the dignity of aliens faced with the most cursory review “process” imaginable (though the Court wisely characterizes this holding as one compelled by Supreme Court precedent). The prejudice finding on Raya-Vaca’s facts is also worth a close read (and extrapolation into other Section 1326(d) challenges). Id. at *8-*9.

How to Use: In an admirable argument, the San Diego Defender threw the government’s own figures back at it in the prejudice fight. Id. at *11. Raya-Vaca well-illustrates the effective use of statistical arguments for the benefit of our clients (and Judge Murguia’s citation of the Supreme Court’s own use of stats helps as well). Id.
For Further Reading: Happy tenth birthday, Crawford. For a great piece on how the Court got it wrong with Roberts, and what the Supremes can do to get the doctrine back on track, see Crawford v. Washington, The Next Ten Years by Professor Jeffrey Fisher, available here

Image of the Honorable Judge Mary Murguia from

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


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Wednesday, November 12, 2014

US v. Raya-Vaca, No. 13-50129 (11-10-14)(Murguia with Reinhardt and Fisher). 

Due process in this 1326 case involving expedited removal is boiled down to "show and tell."   The agent has to inform the defendant of the charge and give him an opportunity to be heard.  Neither was done, to the 9th's satisfaction, in this matter.  The defendant swore he was never informed of the expedited process, and what that meant; and he was never allowed to respond.  The prejudice is that the defendant could have plausibly be given an opportunity to withdraw his admission application (a reach, but plausible).  The 9th agreed.  It reversed the denial to the motion to dismiss and vacated the conviction and remanded.

Congrats to Chloe Dillon of the Fed Defenders of San Diego.

US v. De La Torre-Jimenez, No. 13-50438 (11-07-14)(Graber with Ebel and Kleinfeld).

In an appeal of a 1326 sentence, the 9th holds that possession of cocaine for sale in violation of California's Health and Safety Code section 11351 is a drug trafficking offense under USSG 2L1.2(b)(1)(A) and an aggravated felony.   Under Coronado v. Holder, 759 F.3d 977 (9th Cir. 2014), the state statute is divisible under Deschamps and a modified categorical approach could be used.

US v. Huitron-Rocha, No. 13-50306 (11-7-14)(Graber with Ebel and Kleinfeld). 

Same as above in that in an appeal of a 1326 sentence, the 9th finds that California Health and Safety Code section 11352(a) (possession and transportation of cocaine for sale) is divisible.  The reasoning is the same as above.

US v. Brown, No. 12-10227 et al (11-7-14) (Hurwitz with Bea and Ikuta). 
In an appeal from a Ponzi scheme and bankruptcy fraud, the 9th affirms conviction; and affirms in part and vacates and remands in part sentences.  Essentially, the 9th holds that the district court could reject the government's 5K cooperation (!) motion, and sentence the defendant to the high end of the guidelines range.  The reasoning under 3553 was reasonable under Rita.  The 9th did find that adjustments for numbers of victims were error.  The government did prove the necessary numbers, and estimating doesn't cut it.

Sunday, November 09, 2014

Case o' The Week: Ninth Obstructs Obstruction Hit - Castro-Ponce and Obstruction of Justice

No obstruction, for stolen alfalfa.
United States v. Castro-Ponce, 2014 WL 5394061 (9th Cir. Oct. 24, 2014), decision available here.

Players: Decision by Judge Gould, joined by Judges Reinhardt and Berzon.

Facts: Castro-Ponce testified in his trial, as he faced meth and money laundering charges. Id. at *1. “His testimony included elaborate explanations for his purportedly suspicious activities.” Id. He explained that conversations on wiretaps referred to paying his mortgage, stolen motorcycle parts, or stolen alfalfa. Id. He explained frequent trips and brief stops (suspected drug deals) as buying and selling auto parts, or car trouble. Id. 
   Castro-Ponce was convicted, and at sentencing was hit with obstruction of justice. Id. The district court found that Castro-Ponce “’clearly lied on the stand with respect to activities that he testified about and the offer of innocent and not credible explanations for those activities.’” Id.

Issue(s): “On appeal, Castro-Ponce challenges the propriety of the district court’s imposition of the sentencing enhancement for obstruction of justice.” Id. at *2.

Held: “Because the district court did not make explicit findings that Castro-Ponce’s false statements were willful and material, we vacate the enhancement and remand for re-sentencing.” Id. “Here, the district court expressly found that the testimony was false, but did not explicitly find that the testimony was willful or material, saying only that Castro-Ponce ‘clearly lied on the stand with respect to the activities that he testified about and the offer of innocent and not credible explanations for those activities.’ For that reason, we conclude that the sentencing enhancement was incorrectly applied, and so the sentence must be vacated.” Id. at *2.

Of Note: The core issue in this case is whether there must be an express finding of materiality when an obstruction enhancement is applied. Id. at *2. Judge Gould clarifies any ambiguity: “we hold today that an express finding is required.” Id. A corollary issue is whether that finding must be made by the district court, or if the appellate court can make that determination. Judge Gould declines to “engage in such speculation [on the materiality of the false testimony],” and instead explains that the Ninth “require[s] the fact-finder to make those determinations explicitly for our review.” Id. It is a welcome holding, and brings the Ninth in line with the Sixth and Tenth Circuits which both require the district court to make any materiality findings if the obstruction enhancement is applied. Id.  

How to Use: District judges often bemoan the “vanishing trial,” or the lack of supervised release or Fourth Amendment evidentiary hearings, but few acknowledge the role the Guidelines have played in creating this problem. The Guidelines potentially exact a five offense-level toll for vigorously defending a case (three levels lost for acceptance, two levels at stake for obstruction). Small wonder trials are few.
 Judge Gould (joined by Judges Reinhardt and Berzon) ends the Castro-Ponce decision with a very good soliloquy on the potential impact of obstruction on chilling a defendant’s willingness to testify. Id. at *3. That last paragraph at Section IV merits some heavy quotation, when fending off efforts to punish a defendant with obstruction for having the audacity to testify on their own behalf.  
For Further Reading: What is the impact of Decamps, 133 S.Ct. 2276 (2013), on California drug statutes, such as Cal. H&S Code § 11352(a)? That was the issue before the Ninth last week in Huitron-Rocha, No. 13-50306 (9th Cir. Nov. 7, 2014). The answer? Section 11352(a) “is divisible and [ ] the modified categorical approach applies.” Id. at *5. Same now goes, by the way, for Cal. H&S Code § 11351, De La Torre-Himenez, No.
13-50438 (9th Cir. Nov. 7, 2014), and § 11377(a), Coronado v. Holder, 759 F.3d 977, 983-85 & n.4 (Ninth Cir. 2014). 

  On a much happier sentencing note, the recent passage of California’s Prop 47 may reduce felony convictions to misdemeanors for “millions of people” – 200,000 have already been identified. See Scramble to Implement Prop 47 Begins, available here
   That felony § 851 prior that the AUSA has been threatening if you go to trial? Could be a misdemeanor, now.

Image of Little Rascals character, “Alfalfa” from 

Images of the Honorable Judges Reinhardt, Gould, and Berzon from 

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


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