Case o' The Week: Ninth Plugs Safety Valve, Labrada-Bustamante

Thanksgiving week made for a slow criminal docket in the 9th. We’re therefore hopping back a week to look at Labrada-Bustamante in more detail. United States v. Labrada-Bustamante, __ F.3d __, Slip. Op. 15259 (Nov. 10, 2005), available here. In Labrada-Bustamante, Judge Rawlinson (left), rejects a barrage of attacks on Safety Valve – but some windows of opportunity remain . . . .

Players: Judge Johnnie Rawlinson writes for the Ninth Circuit, Judges Gould and Tallman join.

Facts: Defendants were convicted of a meth conspiracy; one of the two co-defendants had a prior. Id. at 15264. The district court made findings regarding safety valve eligibility. Id. at 15275. The court also allowed a collateral attack to a prior conviction – by knocking out those criminal history points, the court got to Safety Valve eligibility. Id. at 15279. {“Safety Valve” permits a defendant in Criminal History category I to get out from under a mandatory minimum sentence.}

Issue(s): 1. Safety Valve Unconstitutional? The defense claims “that the five factors enumerated in section 3553(f) [Safety Valve] are unconstitutional under Blakely because each requires a finding of fact by a judge rather than a jury.” Id. at 15275. 2. Collateral Attack on Criminal History Point Sentence: Did the district court err in permitting a collateral attack to a prior conviction for the purpose of calculating criminal history points? Id. at 15277.

Held: 1. Safety Valve Doesn’t Require Jury Findings: Before Safety Valve becomes an option, a jury must make findings triggering a mandatory minimum sentences. Id. at 15275. For example, a jury would have to make a finding of the triggering amount of drugs. Id. “Because mandatory minimum sentences under section 841(b) presuppose a jury’s determination of the underlying fats, their imposition does not offend either Apprendi or Blakely.” . . . Duarte would have us hold that facts allowing a decreased sentence below that mandatory minimum must be found by a jury beyond a reasonable doubt as well. Neither Apprendi nor Blakely compel such a holding.” Id. at 15276. 2. No Collateral Attack on Convictions in USSG Criminal History: “[A] defendant cannot collaterally challenge a prior conviction used to calculate criminal history points.” Id. at 15278 (internal citations and quotation omitted).

Of Note: Labrada-Bustamante involves issues only a real sentencing wonk could love, and the analysis in the decision is not particularly comprehensive. At a deeper level, however, the opinion involves some pretty profound questions. The (just) district court in Labrada allowed a collateral attack to a prior – this allowed him to knock the one conviction that precluded Safety Valve. Id. at 15277. What prevented the judge from doing this? The Safety Valve statute only permits relief if the defendant has one criminal history point. Id. at 15277 n.8. It is the guidelines, however, that dictate how criminal history points are calculated. Post-Blakely, the guidelines are advisory. If the guidelines are advisory, what is to prevent a district court in determining how it will calculate Criminal History? After Blakely, can’t a district court determine whether it will allow collateral attacks on prior convictions in determining Safety Valve eligibility? In other words, are the guidelines “advisory” as to both the final numbers spewed out of the calculations (the “product”), and as to how the court gets to those numbers (the “process”)? Labrada-Bustamante (thankfully, given the panel) doesn’t shed much light on this critical question.

How to Use: The Blakely “process” issue was not addressed in this case, because the defense conceded error. Id. at 15278. This Apprendi issue is still alive, and is worth arguing before a sympathetic district court reluctant to impose a draconian mandatory minimum sentence.

For Further Reading: Judge Rawlinson was the first African American woman appointed to the Ninth Circuit. See Ninth Circuit page here. Replacing Brunetti, Judge Rawlinson was appointed by Clinton and took the appellate bench in 2000. She rose to the Ninth from the district court, where she had served since 1998. Judge Rawlinson was a district attorney in Nevada for eighteen years. Id. Although a Clinton appointee, Rawlinson is most-frequently aligned with her conservative colleagues on criminal justice issues. See, e.g., Summerlin v. Stewart, 341 F.3d 1082 (9th Cir. 2003) (Rawlinson, O’Scannlain and Tallman, dissenting from Apprendi habeas relief), rev’d 542 U.S. 348 (2004).

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org