Post-Leocal litigation: pruning back overly-expansive definitions of "aggravated felony"

In many districts, immigration offenses are among the most commonly prosecuted federal crimes. Between 1993 and 2003, the number of federal immigration sentencings increased from 2,008 to 15,081. In representing this expanding class of clients, federal criminal defense lawyers need to be increasingly cognizant of the work of the civil immigration bar and to collaborate in their efforts, especially regarding the definition of what constitutes an "aggravated felony."

Immigration and criminal defense lawyers share a common frustration with government interpretations of "aggravated felony" that extend far beyond what can reasonably meet that description. In immigration proceedings, the government often asserts stale convictions for relatively minor crimes as "aggravated felonies," which disqualifies otherwise eligible aliens from a wide array of benefits. In the context of criminal prosecutions for illegal reentry after deportation, prior minor crimes – when labeled "aggravated felonies" – call for major increases in guideline sentences or harsher treatment under fast track programs.

The good news is that the Supreme Court in Leocal unanimously rejected the "aggravated felony" classification for driving while intoxicated. Beyond the core holding, Leocal’s reasoning will help cut back the over-expansive definitions of aggravated felony that have infested the case law.

Since Leocal, immigration attorneys from a number of national organizations have indicated an interest in coordinating with federal defenders in narrowing the scope of "aggravated felony." For example, Manny Vargas of the Immigrant Defense Project has made available a great website with resources summarizing issues and case law relevant to review of the validity of prior deportations and the labeling of prior convictions, and this alert calling for collaboration on specific aggravated felony issues. Manny and others such as Dan Kesselbrenner of the National Lawyers Guild's National Immigration Project , Lucas Guttentag of the ACLU’s Immigrant Rights Project (405 14th Street, Suite 300, Oakland, California, 510-625-2010) and Mary Meg McCarthy of the Midwest Immigrant and Human Rights Center (MMccarthy@heartlandalliance.org) will consider consultation and amicus support on issues of common concern. And we should continue to coordinate with our local immigration bars, who are usually networked through the American Immigration Lawyers Association. Leocal provides us with an important opening for coordinated litigation in which prior negative precedent has been superseded by the intervening reasoning of Leocal.

But let’s get to the basics. The term "aggravated felony" is only found in the immigration statutes, where it is defined in 8 U.S.C. § 1101(a)(43). This definitional section has evolved from its original 1988 form – which listed only murder, drug trafficking, and weapons trafficking – to its present form – which includes twenty-six sections and subsections that reference fifty other sections of the United States Code. As extensive as it is, the government has pushed and pushed to extend "aggravated felony" to minor offenses such as drug possession and misdemeanors. Then along came Leocal.

The Supreme Court granted certiorari to resolve a conflict among the Circuits regarding the treatment of drunk driving resulting in injury under the immigration statutes. The definition of "aggravated felony" includes "crimes of violence," so the question was whether drunk driving constituted a crime of violence. The unanimous Court held the offense was not a crime of violence and therefore was not an aggravated felony.

Leocal provides a great wedge into previous precedent that over-expanded the scope of "aggravated felony." Two areas come immediately to mind as including precedent that should not survive Leocal: 1) the conflicted case law (previously blogged here and here) regarding simple drug possession as constituting drug trafficking, thereby becoming an "aggravated felony;" and 2) the contradictory approach of calling certain types of misdemeanors "aggravated felonies."

Two aspects of Leocal’s reasoning provide advocates with bases for arguing that precedent must be re-examined in light of Leocal. First, the Court looked to the term being defined itself to aid in construction. The Court found that "crime of violence" did not "naturally" and by its "ordinary meaning" encompass driving while intoxicated. Similarly, "possession" does not ordinarily and naturally mean "trafficking"; "misdemeanor" does not ordinarily and naturally mean "felony."

Second, Leocal’s footnote 8 states that there can only be one statutory meaning for § 1101(a)(43) terms, not differing definitions in the criminal and non-criminal contexts. The rule of lenity applies to any ambiguity, regardless of whether the term is construed in the civil or criminal context. The Court later in the Term again emphasized that statutes have a single meaning in Clark v. Martinez, where Court held that the same words in the indefinite detention statute could not mean one thing for deportable aliens and another for inadmissible aliens. At the very least, Leocal and Martinez should bring an end to the Alice-In-Wonderland construction that simple possession constitutes "drug trafficking" in criminal but not in administrative proceedings.

Following Leocal's footnote 8, favorable administrative law decisions should be applied in the criminal context. For example, the Ninth Circuit's recent administrative holding that the California sex-with-a-minor statute is not categorically a "crime of violence," and therefore is not an "aggravated felony," means that such convictions do not trigger enhancements under U.S.S.G. § 2L1.2 (Valencia v. Gonzales). To stay up to date on immigration law developments, Kathy Brady has a useful website for the Immigrant Legal Resource Center and also recommends the Norton Tooby website.

Federal defenders and Criminal Justice Act panel attorneys should be working closer with the civil immigration bar to assure that "aggravated felony" issues are spotted and properly litigated. Federal criminal defense lawyers can benefit from expertise and support from the civil side, just as the civil side benefits from cases, such as Palacios-Suarez, litigated by federal defenders. And it's a two-way street on amicus support: the National Association of Federal Defenders amicus committee (chaired by Paul Rashkind, Fran Pratt, and Henry Bemporad) has agreed to provide support for certiorari on the possession-as-aggravated-felony issue being litgated in the adminstrative law context.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon

Espinoza-Matthews, No. 04-56805 (12-28-05). The 9th finds equitable tolling in this habeas case. The petitioner was convicted of state crimes. He pursued state appeals and post-conviction. When time came for his federal petition, he found himself in state admin. segregation because he was assaulted by another prisoner. He made efforts to get his legal materials, but the prison officials foot-dragged and stonewalled, basically saying that he would get the materials when he was released from admin. seg. He finally filed his petition but in the wrong court. If he is given the benefit of the "mailbox" rule, he'd still be 82 days over the statute; if not, he'd be 120+ days. It doesn't matter, though, because the 9th finds that equitable tolling applies. Petitioner made numerous efforts to obtain his file, and the intransigence of the prison prevented him from getting it. He needed the file to file, and his prevention was beyond his control.

US v. Fifield, No. 04-30299 (12-30-05). The 9th ventures into 5G1.3 jurisprudence, and when state and federal sentences run concurrent. The posture here is more procedural as the issues raised relate to procedure the court must follow. The defendant was on state probation for assault and possession when he was busted with guns. His state sentence was revoked, and he was convicted of being a felon in possession federally, and that sentence ran consecutive to the state. Defendant argued that the court had to give notice under Fed R Crim P 32 of the running of a federal sentence consecutively, and must state the reasons on the record. The 9th held that the guidelines, specifically 5G1.3(c) allow a sentence to be run either concurrently or consecutively, and that discretion doesn't amount to a departure, requiring notice under Burns, when it runs consecutive. There is no explicit or implicit requirement in Rule 32. In discussing 5G1.3, the 9th finds this falls under (c), discretionary, and that the conduct was not relevant conduct or accounted for in the state matter. The 9th also parsed the statement of reasons given by the court, and held that the reasons proffered for the sentence were sufficient, with reference to the state judge giving the defendant a prior break, and that this sentence addresses the 3553 factors.

US v. Southwell, No. 04-30521 (12-30-05). This is an important decision regarding jury instructions and affirmative defenses. The 9th (Kozinski) holds that a jury must unanimously reject an affirmative defense, in this case insanity. The defendant was charged with arson. he raised insanity. The court instructed on the charge, and on insanity. During deliberations, the jury asked a question whether they could convict if they all found him guilty of the charge but were not unanimous on sanity. The court refused (!) to answer, referring the jury back to the instructions. The 9th found that the instructions were unclear on what to do, and that there was, strangely, no controlling precedent. The Supremes seemed split on this. The 9th reviewed various state courts, and concluded that the requirement was that an affirmative defense had to be unanimously rejected. The jury couldn't find guilt on the element, and then a split on the affirmative resulted in a conviction. A jury united on guilt but divided on an affirmative defense is hung. A very nice opinion.
Congrats to AFPD Kim Deater of the E.D. Wa.

Motley v. Parks, No. 02-56648 (12-30-05)(en banc). This is a 1983 action. The 9th holds that"before conducting a warrantless search pursuant to a properly imposed parole condition, law enforcement officers must have probable cause that the parolee resides at the house to be searched." The 9th found such probable cause here, and affirmed the qualified immunity. Dissenting, Reinhardt and others would find there was no probable cause. The issue of whether the officers also need particularized suspicion of wrong-doing before conducting a search was sidestepped because the Supremes granted cert on that in another case. The 9th found for this case that the issue was not clearly established.

Burnett v. Lambert, No. 04-35305 (12-27-05). Unsurprisingly, the 9th finds moot a habeas due process challenge regarding denial of state parole. The Oregon State Parole Board denied petitioner twice previously. While the habeas was pending, petitioner was paroled, and almost immediately violated, landing him back in the pen. This subsequent reoffending after his release moots the challenge that he should have gotten out sooner since any relief is unattainable. The court did not have the issues before it to decrease his sentence nor to decrease his sentence after the parole violation.

Ferrizz v. Giurbino, No. 03-56137 (12-23-05). Petitioner was a roofer, who, when the homeowner was away, burglarized the house and committed grand theft of lost property, when he took owner's wedding ring. This was petitioner's third strike, and he got 35 years. In a habeas challenge, he argued that the two verdicts -- burglary and grand theft of lost property -- were inconsistent and so must be vacated. The 9th held that the two verdicts could be reconciled: petitioner could have burglarized the house, and then found the ring as he left (he argued that he had found the wedding outside the master bedroom window). The 9th stressed that the jury deliberations, and questions, show that the verdicts were both unanimous, and the state courts' decisions were not contrary to federal law.

US v. Pacheco-Navarette, No. 04-10396 (12-23-05). The 9th dismissed appeal for lack of jurisdiction. Defendant had waived his appeal rights when he entered into a stipulated sentence (at a stat max 120 mos) and had other charges dropped. On appeal, defendant argued that subsequent changes (Booker) undercut the voluntariness of the plea and made it involuntary. The 9th rejected this, holding that subsequent changes does not render a plea involuntary, especially in this context with a stipulation for other consideration.

US v. Ladwig, No. 04-30393 (12-27-05). The 9th holds that making a harassing call that is a felony under State of Washington law is a violent felony for federal ACCA purposes. The felony of harassing calls required a "threat of death", and that threat makes the conviction having a threatened use of force. Moreover, the state prior is characterized as a federal violent crime even though state precedent holds that it is nonviolent. The 9th also looks for support in an 11th Circuit case that likewise held harassing calls to be violent priors.

Case o' The Week: Whrenewed Problems with Traffic Stops -- Willis

Remember Whren, that terrible Supreme Court decision that allowed for pretextual traffic stops? The only Fourth Amendment protection left after that case was a requirement that the traffic violation had actually occurred. Even that small hurdle was sidestepped in Willis, when the Ninth finds facts to support a traffic stop despite contrary findings below – findings which the government did not contest. See United States v. Mark Willis, __ F.3d __, 2005 WL 3454681 (9th Cir. Dec. 19, 2005), available here. Great dissent by Judge William Fletcher (left).

Players: Judge Willie Fletcher calls it like it is in a compelling dissent.

Facts: A Las Vegas cop saw a car make a rapid turn in a high-crime area, make two more quick turns, and stop. Willis got out, ran up to an apartment, returned, come back to the car, and made an “illegal” U-turn. Id. at *1. A computer check produced a missing person’s report associated with the car. Id. The cop requested backup, ordered Willis to put his hands up, asked the defendant if he had a gun, and recovered it when Willis answered “yes.” Id. Charged with § 922(g)(1), Willis challenged the stop. The magistrate found no reasonable articulable suspicion of criminal activity to support a Terry stop, but upheld the stop based on a “community caretaking function.” Id. at *2. The district court adopted the recommendations, Willis appealed. Id.

Issue(s): Was there reasonable suspicion to make the stop?

Held: “We decline to determine whether the community caretaking function, or the emergency aid doctrine, justified the officers’ detention of Willis. Instead, we hold that the detention came within the scope of a valid traffic stop, because Officer Boehmer had at least reasonable suspicion – if not probable cause – to stop Willis for violating the traffic laws.” Id.

Of Note: Judge Bybee spends much time on Whren, emphasizing that even a pretextual traffic stop is OK if there is reasonable suspicion of a traffic violation. Id. at *3. So be it – that’s settled law. What’s disappointing is that there was not reasonable suspicion for a traffic stop. As Judge (Willie) Fletcher points out in a thoughtful dissent, Willis had voluntarily pulled over before the police approached so this was not a Whren traffic stop. Id. at *5 (Fletcher W., J., dissenting). Moreover, the magistrate made factual findings on the merits of the traffic stop and found it was not warranted – and that finding was not contested by the government! Id. Finally, this was not the “run-of-the-mine” traffic stop tolerated in Whren. Id. There were not “specific, articulable facts” of a traffic violation – so the stop was not legal. As Judge Fletcher laments, “If, on these assumed facts, Officer Boehmer provided ‘specific, articulable facts’ to support a reasonable suspicion that Willis had broken the traffic laws, ‘reasonable suspicion’ has lost much of its meaning.” Id. at *13.

Willis is a little case that is a big deal for those committed to indigent defense. Just as the defense bar warned, Whren opened the floodgates to pretextual traffic stops and to the inevitable race-based targeting that follows. The only (slim) protection after Whren is the requirement that a stop is actually legitimate – that some traffic offense must have actually been committed. Given the huge potential for abuse after Whren, federal courts bear a heavy responsibility to play it straight when evaluating the facts of a traffic violation: at minimum a cop must actually articulate specific facts meriting the stop. Judge Fletcher is right – in Willis, the Ninth shirked that responsibility.

How to Use: Willis is so bad it is hard to find the silver lining. The best one can hope for is to emphasize the majority’s proclamation that there were traffic offenses – an illegal U-turn, for example. Id. at *4. Then try to push the district court in your case to make factual findings that there were not facts demonstrating an actual traffic violation.

For Further Reading: Did you take the California Bar? If so, Professor William Fletcher probably taught you “remedies” in Bar-Bri. A Rhodes Scholar, Supreme Court clerk, and Boalt Hall professor, Judge Fletcher was appointed by his former roommate Clinton, and took the bench in 1999. See Boalt Webpage here. Because he is the son of Judge Betty Fletcher, she took senior status when he took the bench. As his former students know (undersigned included), Judge Fletcher read Supreme Court decisions before he was in college – every one of them.
Though W. Fletcher is to the right of B. Fletcher, he is to the left of many of his Clinton class. In cases like Willis, one detects the beloved Betty spark.

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

Boothroyd: the gun bump and the safety valve

David Boothroyd received a 60-month mandatory minimum sentence for growing marijuana, even though his guideline range was 24 to 30 months. Retained counsel did not seek the safety valve, or advise David of its potential availability, because he thought that a .22 rifle, which was located in an outbuilding closet adjacent to the grow room’s entrance, qualified for the two-level gun bump under § 2D1.1(b) of the Guidelines. The safety valve, 18 U.S.C. § 3553(f), allows a sentence without regard to the mandatory minimum sentence. Trial counsel neither investigated nor argued the safety valve because "he assumed petitioner lacked a credible argument that the Marlin rifle was not possessed in connection with the crime." Counsel also did not provide advice regarding a truthful disclosure of the relevant facts, another prerequisite for the safety valve.

Represented by Assistant Federal Public Defender Francesca Freccero, Mr. Boothroyd sought relief under 28 U.S.C. § 2255 based on ineffectiveness of counsel in failing to investigate and to advocate for safety valve treatment. Three days after the evidentiary hearing, Chief Judge Ancer Haggerty granted the motion to vacate the sentence and ordered Mr. Boothroyd’s immediate release. In the published opinion at United States v. Boothroyd, 2005 WL 3370832 (D.Or. Dec. 9, 2005)(slip opinion available here), Judge Haggerty set out three important practice tips for federal defense advocates.

First, the court focused on the need for reasonable investigation. "The Supreme Court has emphasized the importance of counsel’s investigation and production of mitigating evidence in analyzing the effectiveness of counsel." Judge Haggerty found the first prong of the test for ineffective assistance of counsel – representation that fell below the objective standard of reasonableness – based on counsel’s failure to conduct any investigation on petitioner’s eligibility for the safety valve.

Second, the court outlined the critical distinction between the gun bump and the safety valve. In contrast to the gun bump, "the safety valve requires a lesser burden and quantum of proof." Judge Haggerty surveyed the case law holding that the defendant has the burden by a preponderance, not the higher standard of proving a connection to the crime was "clearly improbable," and that, to be ineligible for the safety valve, there must be a "closer degree of connection" between the weapon and the crime. The court then agreed with the evidence marshaled by the defense to find that the hunting rifle was intended to protect livestock from predators and other nuisance animals, not to further the drug crime.

The third piece is the safety valve’s requirement of truthfully providing statements to the government regarding the offense. The government relied on Mr. Boothroyd’s statements prior to the federal indictment that he would not cooperate. The court found that truthful statements (distinct from substantial assistance) would have been forthcoming if Mr. Boothroyd had been advised regarding the safety valve. And under the safety valve, such statements can be provided at any time up to the sentencing hearing.

So Mr. Boothroyd is home for Christmas, and we have a great reminder on several of the many fine points of federal sentencing law.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon

US v. Menyweather, No. 03-50496 (12-16-05). The 9th comes out with an important analytical framework in determining what is a "reasonable" sentence. The defendant was an admin employee at the US Atty's office in LA, where over the years she embezzled between $350,000 and $500,000. (No wonder they have such trouble finding Brady material!) Defendant was psychologically evaluated and found to be suffering from diminished capacity and that she had extraordinary family responsibilities (single mother in extenuating circumstances). This was a Judge Real case. He departed eight levels and placed the defendant on probation. It was remanded twice in unpublished opinions, and this is the third appellate review. The 9th upholds the departure. Graber, writing the opinion, uses a highly deferential "abuse of discretion" standard for the lower court's judgment. Setting out the Booker analysis, with the 3553 factors, the 9th turns to pre-Booker precedent to approve the bases of departure under the guidelines (diminished capacity and family responsibilities). The 9th state s that it may have viewed things differently, but that abuse of discretion weighs in not second guessing the court, especially given the fact-finding and prior precedent. The 9th also states that any error is rendered harmless under Booker and the advisory guidelines. In dissent, Kleinfeld argues that the 9th has abdicated its review responsibilities, and that the sentence is unreasonable.
Steve Kalar's "Case of the Week" analysis is instructive. This case provides a framework on how to argue for departures, using the guideline system and the other 3553 factors. It is important to be sensitive to the fact though that this is a "straddle" case (decided pre-Booker), and the 9th was using pre-Booker precedent to justify the sentence. This leads to the tension of almost assuming that a guideline sentence is in itself "reasonable" which is a position defense counsel have been fighting. The preference is that the guidelines are but one factor in a constellation, and that the reasonableness is not ordained by the sentence being a guideline one. There is also a concern that the deferential standard of review could undercut review of a bad sentence (beware of what one wishes). In that case, a rereading of the dissent would help.

US v. Speelman, No. 04-30067 (12-16-05). A plea agreement drafted by the US Atty Office in Montana stated that the defendant waived his right to challenge the conviction or sentence in a post-conviction proceeding. The defendant plead to several child porno and sex abuse charges and then appealed. The waiver language was found to only apply to post-conviction, and not to direct appeal. The gov't failed to put in the obvious, and so was out of luck, at least for the jurisidiction argument. The 9th goes through an analysis of what is meant by "post-convic tion" and that it is essentially habeas and the extraordinary writs. The gov't should have used tighter language. However, on the merits, the 9th finds that the court didn't improperly use the various cross-references, and could in fact use cross references for porno that the court in fact had no jurisdiction over as relevant conduct. There didn't seem to be a challenge for the standard of proof, which, it can be argued, could rise to clear and convincing if various factors are met under 9th precedent ( de Meza and Hooper).

US v. Willis, No. 04-10079 (12-19-05). This is another "Whren-ching" decision involving a traffic stop. The defendant made a sharp turn on a Las Vegas street, accelerated,a nd stopped before an apartment. This caught the attention of a police officer, who noted that there was a "flag" on the license plate for a missing person. Defendant got back in the car, supposedly made an illegal U-turn, accelerated a couple blocks and stopped again. The defendant got out, the police asked if he had "anything" they should be concerned about, and the weapon was found on his person. He was a prohibited possessor. The magistrate judge and district court found there was no legitimate traffic stop, and sidestepped the credibility issue of the officer's testimony as to the driving. They found the basis for the Terry stop proper under the "community caretaker function" or the "emergency aid" doctrine, because of the missing person report (she was a girlfriend who was in the apartment and not at all missing). The 9th tortures these facts in an opinion by Bybee, finding that there was indeed a traffic stop, and so Whren applies. Because Whren allows a traffic stop when it is probable that an officer believes a traffic violation occurs, the questioning about a gun was allowed. The 9th focuses on the erratic turns, the acceleration, and the supposedly illegal U-turn. In dissent, W. Fletcher take s the majority to task, arguing that they find a traffic stop when the two triers of fact, the mag judge and the district court, did not, and that the officer had to have probable cause that a violation occurred, and that standard wasn't met. First, the officer never specified what traffic violations took place (the Nev. statute allows safe U-turns), and the supposed erratic driving didn't seem to have occurred in the space and time where this occurred (a 4 block area). Moreover, there were real questions of credibility between the defendant and the officer. It appears that the defendant may be the n more credible. Fletcher concludes that there reasoning expands what is a permissible traffic stop to something with no standards.

US v. Hernandez-Hernandez, No. 02-30429 (12-16-05). The 9th considers a case remanded from the Supremes in light of Booker. This is a 1326 illegal reentry. The 9th (Tallman) makes short shrift of the elements challenge. It gets interesting though when the 9th finds that Shepard's modified categorical approach allows a court to consider a pleading filed by the lawyer on behalf of the client challenging the facts in the charge. In California this challenge is known as a 995 Motion, which takes the facts as true for challenging a charge. In the subsequent change of plea, the parties stipulated to the facts set forth in the 995 motion, and the court asked counsel if that was the basis of the plea. Counsel said "yes." The defendant did not affirm. Yet, this is enough to be used for a false imprisonment conviction as an agg felony (it is one of those overinclusive statutes). In dissent, Kleinfeld (yes, Kleinfeld) argues that the majority misinterpreted Shepard, and that it had to be read narrowly for any modification. Such modification of a categorical approach needed to be a plea agreement, a transcript, or facts that the defendant admitted. Here, the pleading was lawyer drafted, and lawyer stipulated. The majority counters by citing cases where a lawyer's stance is taken to be the defendant's but the dissent replies that in this instance, it must be just the few instances identified in Shepard. The decision also finds that "threat to harm" is not the same as "disorderly conduct" given the different elements and the different penalties (the former is a misdemeanor and the latter a petty) for guideline counting purposes.

Case o' The Week: Menyweather & Booker Sentencing

A great Booker decision comes from an unexpected front: Judge Susan Graber (left). See United States v. Dorothy Menyweather, __ F.3d __, 2005 WL 3440800 (9th Cir. Dec. 16, 2005). In Menyweather, the Ninth upholds a dramatic departure by Judge Real on both guideline and Booker grounds.

Players: Judge Manuel L. Real. ‘Nuff said.

Facts: Ms. Menyweather was a USAO clerk who embezzled a lot of money – spending it on trips, gifts, computers, etc. 2005 WL 3440800, *1; *9 (Kleinfeld, J., dissenting). Judge Real departed eight levels pre-Booker, going beyond the defense-recommended sentence. Id. at *1. Unfazed by two appeals and two remands, Judge Real stuck by his sentence of five years probation with forty days in a jail-type situation. Id.

Issue(s): “The government objects to the district court’s eight-level downward departure for mental and emotional condition, diminished capacity, and extraordinary family circumstances, a departure that the district court has reimposed twice after remands from this court.” Id. at *1.

Held: “We conclude that the district court did not abuse its discretion by downwardly departing from the Guidelines. Moreover, even if the district court strayed from the departure authority available under the Guidelines, any error was harmless in view of the sentencing factors listed in 18 USC § 3553(a) (which the district court can now consider after Booker) and in view of our belief that the court would impose the same sentence again, having steadfastly maintained its position in the face of two opportunities to revise its sentence. Finally, we conclude that the resulting sentence was reasonable, and we affirm.” Id.

Of Note: This case is now the definitive decision in the 9th for post-Booker sentencing. It is too full of bon mots to fully summarize here: consider it a must-read for federal practitioners. Judge Graber explains how a district court is to consider the guidelines after Booker, and how the Circuit will review that decision. Id. at *3-*4. She upholds departures (under a guideline analysis) for dim cap and for the defendant’s family situation. Id. at *4-*6. The Court notes that even under Booker, a district court must articulate its reasons for its sentence. Id. at *6. Finally, there is very broad and very deferential language on a district court’s discretion to impose a Booker sentence – and wide latitude for that sentence under “reasonableness” review. Id. at *7. One curious note is the Court’s “reasonableness” analysis – it evaluates a Booker sentence by comparing it to pre-Booker departures that had been upheld. Id. at *8. This may be a worrying trend. If that approach gains traction, it would limit the brave new Booker world to the muddy limitations of guideline practice. We should characterize that language in Menyweather as an analytical aid, but not a limitation on Booker sentencing.

How to Use: In a heated dissent, Judge Kleinfeld points out the seriousness of the Menyweather’s crimes and the weaknesses of the departure. Id. at *9. One fact in support of Kleinfeld’s argument is that Judge Real surpassed even the defense recommended sentence! Id. at *10-*11. Judge Kleinfeld’s dissent is a defense holiday gift: quote his parade of bad facts heavily to show that if the Booker sentence was reasonable in Menyweather, surely it is reasonable in your (much less dramatic) case.

For Further Reading: What more could one ask for from a Booker case? How about it being authored by a judge who not a traditional defense ally? Judge Susan Graber received her commission in ‘98 after being nominated by Clinton. See profile here. She has been described as following a “strong law-and-order course in criminal matters.” See article here. “She was not what we considered our best friend on the court,” says Oregon State Deputy Public Defender Groom, “She was definitely ‘tough on crime.’” Id. Some speculate that her view on criminal cases may be influenced by the brutal carjacking and murder of her father. Id. In any event, she is one of the most prolific judges on the Ninth. Hopefully, the fact that Menyweather was penned by Judge Graber will stave off en banc rumblings – despite Judge Kleinfeld’s dissent.

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

Retroactivity of Apprendi and Blakely: Supreme Court review needed

The federal lower courts have been providing inadequate protection against Sixth Amendment violations: the failure to apply Apprendi and Blakely retroactively calls for the Supreme Court’s intervention. As reported by Professor Berman here, the courts have not batted an eye at denying relief for timely filed post-conviction actions in which the petitioner is serving a sentence greater than the statutory maximum based on controverted facts that were only found by a judge by a preponderance of the evidence. To echo Justice Thomas’s Shepard concurrence, such prisoners have been unconstitutionally sentenced "despite the fundamental imperative that the Court maintain absolute fidelity to the protections of the individual afforded by the notice, trial by jury, and beyond-a-reasonable-doubt requirements."

So how have so many courts gone so wrong on retroactivity? The answer seems partly to lie in two errors of legal analysis and a policy on finality that needs to be reexamined based changed facts that provide plenty of protection for finality interests.

First, the courts have ignored or misread the Supreme Court precedent holding that cases requiring proof beyond a reasonable doubt apply retroactively. The two cases upon which Apprendi is built both were explicitly held to apply retroactively: in Ivan V., the Court held that Winship applied retroactively; in Hankerson, the Court held that Mullaney applied retroactively. And the Supreme Court in Tyler found that the combination of prior decisions could result in a holding that a decision has been found to be retroactive by the Supreme Court.

The second area of legal error is the misreading of Summerlin. In Ring, the Court held that the Arizona death penalty factors were covered by Apprendi, requiring the vacation of death sentences based on judicial – rather than jury – findings beyond a reasonable doubt. In Summerlin, the Court refused to apply Ring retroactively because the judicial application of the reasonable doubt standard supplied adequate protection against inaccurate adjudications. But the Circuits citing Summerlin against retroactivity of Apprendi and Blakely miss a critical distinction: the controverted facts in the cases relying on Apprendi and Blakely were only established by a preponderance of the evidence. And the Supreme Court has required that constitutional decisions enforcing the reasonable doubt standard apply retroactively. Summerlin, with its emphasis on the saving importance of the reasonable doubt standard, supports retroactivity for Apprendi and Blakely.

Lastly, retroactivity doctrine needs a new look because the policies underlying its present articulation have been superseded by legislative and decisional law. Teague and its progeny rest on the need to balance important constitutional rights against the need for finality. The balance in favor of finality was premised on federal habeas corpus law that had no time limit on when a petition could be filed. Since the Anti-terrorism and Effective Death Penalty Act of 1996, the federal proceedings must be filed within one year of the proceedings becoming final. During the same epoch, the Supreme Court has sharply limited the types of cases in which relief could be granted: in Dodd, the Court required filing within a year of the case recognizing the right; in Felix, the Court eliminated the relation back doctrine; in Blakely, the Court required that the issue be controverted; and in Brecht, the Court placed a diluted burden on the State to establish the error was harmless.

In this context, the interests of the individual should receive greater weight than the mere year at issue on finality. Any petitioner who survives the procedural minefield should have the case heard on the merits. The unmentioned underlying rationale for the cases denying retroactivity is the old floodgates fear. The reality is that there is no flood of petitioners who were both illegally sentenced after Apprendi and Blakely and meet all the habeas procedural requirements – and those who do deserve to have their constitutional rights protected.

Let’s not forget: all Circuits approved illegal sentencing under § 924(c) until Bailey; all Circuits approved enhancement of sentencing factors by a preponderance until Apprendi; all Circuits found no problem with guideline enhancements by a preponderance until Blakely. Retroactivity doctrine – properly understood – applies directly to our clients who should benefit under Apprendi and Blakely and – in light of statutory and case law developments – the retroactivity doctrine’s rationale provides even stronger support for the Supreme Court to rule in our favor.

We need to continue to push this issue until the only Court that can finally resolve this issue grants a writ of certiorari. The memo linked here provides a starting point for briefing the issue, which has been previously blogged here and here. In addition to the Harvard Law Review article cited in the memo, two other journal articles, linked by Professor Berman (here), have come out favoring retroactivity and should be mined for theories and citations.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon

US v. Leal-Cruz, No. 04-50519 (12-9-05). The 9th considers whether requiring the defendant to prove duress is burden-shifting. The circumstances arose from a 1326 illegal reentry case where the defendant argued that he was fleeing from corrupt Mexican police who had beaten him up two weeks previously. The evidence he presented warranted a duress instruction, but did not negate the specific intent of attempted reentry. The standard 9th Cir. instruction, 6.6, placed the burden on the defendant by a preponderance of evidence. The 9th holds that it is not a due process violation. "Duress" does not negate an element of an offense, it offers a legal justification or excuse for the actions. The opinion goes through the various precedents, including holding that duress does not violate due process in a general intent offense of reentry. It is the same even for a specific intent crime, such as attempted reentry.


Edwards v. LaMarque, No. 04-55752 (12-12-05). Perhaps wedding vows should have a discussion of the marital privilege? The 9th affirms the granting of a habeas petition for IAC due to a misunderstanding of the marital privilege. The petitioner and victim joined in an insurance scam involving victim's car. Disagreements followed, and one day the petitioner's wife sees him scrubbing his hands and appearing agitated. The defense theory was that he said he was agitated because the dog messed the carpet. The wife said he confessed to the murder. Oh yes, it was the wife's tip, five years later, that had the police investigate and arrest petitioner. At trial, defense counsel raised in limine an objection to the marital communications. The trial court ruled that the wife could give limited testimony as to the insurance fraud under the "future crimes" exception and about his behavior. She could not testify about any other communications. Defense counsel at trial asked about conversations. The prosecutor objected that it would "open the door" and the defense counsel withdrew the query. When the petitioner took the stand, counsel asked about the conversations with the spouse. The prosecutor objected, and the court told defense counsel he had waive d the privilege. Counsel subsequently, could not provide any authorities about his interpretation of the marital privilege, and appeared confused about the extent. He apparently thought that he could get petitioner to disclose his version, but that the privilege would be applied against the spouse. When the court ruled he had waived the privilege, counsel said that it was clear he was ineffective, and that he made a mistake. The trial hung! (one juror used a racial epitaph and that allegedly made the another juror hold out). New counsel was appointed, who raised the privilege issue, but the court found it had been waived.. There was a conviction at the second trial. On habeas, the district court granted relief, and on appeal, the 9th affirmed. The 9th held that even with AEDPA's deference, the state court determination that it was a strategic decision was unreasonable. The record supports the counsel's confusion over the privilege, and the 9th stated that the questions asked by counsel supported no defense (see note 5). The state court said that if it was wrong, there was prejudice, and so the 9th took him at his word. Thus, the two prongs of Strickland were satisfied: the performance undermined the right to counsel, and it prejudiced the petitioner. In dissent, Rymer argued that the state court judges were not unreasonable in finding some strategy for the decision, perhaps by giving an explanation for the handwashing. (It does seem like a stretch, and Rymer's willingness to embrace the state's finding of strategic reasoning would seem to eviscerate any possible federal IAC so long as a court said there was some reason, no matter how lame or ludicrous).


Valencia v. Gonzales, No. 03-72028 (05-12-05). The 9th considers again the issue of whether sexual intercourse with a person under 18, who was more than three years younger, is a categorical agg felony. The state (Calif) statute does not have an element of force. 18 USC 16 requires a substantial risk of force while a guideline approach has potential risk of force under 4B1.2. A prior 9th Cir. precedent, US v. Granbois, 376 F.3d 993 (9th Cir. 2004) held that such an offense was a crime of violence, focusing on the guideline. The 9th's panel here felt bound by Granbois, and had to follow it, but there was grumbling. In a concurrence, Bea urges the Supremes to take this up, stating that the 7th and 5th Circuits, which found such statutory rape offenses not to categorical crimes of violence, to be much more persuasive. See US v. Thomas, 159 F.3d 296 (7th Cir. 1998); US v. Houston, 364 F.3d 243 (5th Cir. 2004). The reasoning is that absent an element of force, there is no evidence of substantial injury in consensual intercourse if, for example, between a defendant just 20, and a victim just a day shy of 17. It can still be a felony due to age, but the agg nature may be questioned.

Case o' The Week: ICE search for GBL OK, says CA9

Sure, border searches require a lower “cause” showing, but what if an international package makes it far into the U.S. and the Post Office – and not Customs – initiates the search? "Doesn’t matter," says the Ninth: the feds just need to meet the lower “reasonable suspicion” showing. United States v. Andrew Putra Sahanaja, __ F.3d. __, Slip. Op. 16065 (Dec. 8, 2005), available here.

Players: A nauseous mailman.

Facts: A letter carrier tried to deliver a package labeled “videos” at a California address. Slip Op. at 16069. No one was there, and the postal worker felt sick after handling the package. Id. Defendant Sahanaja’s girlfriend then tried to pick the package up at the post office, but failed when she refused to sign for it. Id. at 16070. Similarly, a call from the defendant about the box was unsuccessful. Id. Finally, the post office called Customs (ICE) about the package. The box was shipped to a Customs lab where it was opened and two gallons of GBL was found. The defendant was later busted, challenged the search, and entered a conditional plea – preserving the 4th amendment issue for appeal. Id. at 16069,71.

Issue(s): Was the “search of the package by Customs agents . . . legal under the agents’ broad authority to search international mail after it has arrived in the United States if there is reasonable cause to suspect criminal activity[?]”

Held: “Because we conclude that the search of the package was lawful under the extended border search exception, we affirm the conviction.” Id. at 16069. “Cardona and the authorities upon which it relies apply a “totality of the circumstances test” in determining whether a search pursuant to § 482 is constitutional . . . In this case, the package remained unopened, in its original condition, and never left official custody at any time before the search; it is immaterial whether it sat on a shelf in a Customs office or in a post office. Under these circumstances, it is difficult to see how the mere passage of a short period of time – even when considered together with the fact that [the city where the package was opened] is some distance from the border – is a factor of constitutional significance.” Id. at 16077-78 (internal citation omitted).

Of Note: This case is a depressing reminder of how the “Border” and “Fourth Amendment rights” are never to be used in the same sentence. The controlling statute for the case is 19 § 482, which requires only “reasonable cause” – instead of “probable cause” – to search international mail away from the border. Hence, the issue was i) when the box is a long ways from the border, and ii) when the Post Office (who would need a warrant) does a pitch-off to Customs, can the government still get away with the (very-low) “reasonable cause” standard for a border-related search of mail? Sahanaja says yes. Seems unfair and unnecessary: the Post Office wasn’t that far from establishing probable cause anyway. If the drugs in the box were enough to make a postman sick, couldn’t someone have done chemical tests outside of the box and just established P.C. for a warrant? This case creates a little Fourth Amendment free-zone around international mail: ship something far into the U.S., hand it off to Customs, and the feds don’t need to bother with the hassles of probable cause and a warrant.

How to Use: There are two important factual limitations in this case. First, this was an ICE search – not a general law enforcement search (for example, by the FBI). If Customs wasn’t involved, the search might have required the higher probable cause standard. Slip op. at 16078, discussing United States v. Soto-Soto, 598 F.2d 545 (9th Cir. 1979). Second, no one fooled with the box before Customs got to it. Id. at 16077. If it had been opened before ICE examined it, presumably P.C. would have kicked in. Keep an eye out for these factual limitations in international mail search cases.

For Further Reading: Sahanaja was importing GBL, had lots of KOH in his house, and appears to have been creating GHB – three kilos of which were found in his house. What is this alphabet soup of controlled substances? GHB is “liquid E” or “liquid ecstasy,” popular at raves. See Recipe here. GBL and KOH are two ingredients for making this drug, which allegedly “induces a pleasant state of relaxation and tranquility . . . a feeling of emotional warmth, wellbeing, and pleasant drowsiness.” Id.




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

Cuevas-Gaspar, No. 03-73562 (12-7-05). This immigration opinion has two interesting holdings with 1326 applicability. First, the 9th (Tashima) holds that burglary under the Washington State statute is not a crime of moral turpitude. The 9th reasoned that breaking and entering might be, or might not be, a morally reprehensible act; it depends on the mischief or crime you intend to commit once you cross the threshold. Entering a barn, for example, to play poker in an illegal gambling foray is different from entering a home to commit a serious crime. The state statute is overbroad in that it make breaking and entering with intent to do another crime a burglary, and so under Taylor's categorical approach, a burglary by itself is not a crime of moral turpitude. However, under Shepard's modified approach, the colloquy for the offense plea read that he accompanied someone who burglarized, and who took things from a home, and so that made it a crime of moral turpitude. The 9th noted that the petitioner did not raise the issue of whether an accomplice differed from a principal, and so that issue was left for another day. Petitioner then sought to cancel removal under 8 USC 1229b because his parents had lawfully been admitted to the US and were legal permanent residents for the continuous residence requirement (7 years) and their status could be imputed to him. He could only have the 7 years if their time was imputed to him. This was an issue of first impression, although the 9th in Lepe-Guitron, 16 F.3d at 1024, had imputed residency of parents to their minor children under 212(c). The 9th does so for 1229b as well. In a well reasoned and comprehensive opinion, the 9th looks at the statute, the policy implications, and the agency's interpretation. The 9th notes that children in the immigration context have always been saddled with the parents' decision (i.e. the fact that parents mess up in residency and leave the US affects the kids too), and that a contrary interpretation would treat LPRs worst than nonpermanent residents. Legislative intent would also favor such an interpretation. Petitioner does get relief. In dissent, Fernandez said "bah humbug," disagreeing with the majority's holding that burglary under the state statue was overbroad; he would find that it was a crime of moral turpitude because of the violation of the dwelling. He also would adhere to the strict reading of the statute that the person himself had to be in the US for a continuous 7 years, irrespective of parents. He ends his dissent with: "It is not for us to listen to the susurrant promptings of our own convictions rather than the stentorian proclamations of the legislature."

US v. Monzon, No. 03-30497 (12-7-05). This is another example of what could go wrong in a plea colloquy. Here the defendant plead to a count of distribution and use of a gun. The statement in the colloquy was that he basically had the gun in his room because he got it cheap. There was no connection between the gun and the drugs. The 9th reverses the conviction. It held that such a plea colloquy was Rule 11 error, and that it affected defendant's rights because such a plea made him ineligible for safety valve. It was reversed and remanded. In dissent, Callahan makes the point that the defendant got a windfall, and that the plea should be vacated and the charges reinstated. The parsing, to her, doesn't make sense. She also questions the so-called prejudice.

US v. Bailon-Santana

No. 04-50079 (12-6-05). This presents an interesting issue as to whether an attorney's representation that he translated a jury waiver form for his Spanish-speaking, non-English speaking, client obviates the need for an in-court waiver colloquy. The 9th (Kozinski) opine that such an in-court waiver is necessary, and that the defendant's conviction on a drug conspiracy charge was vacated and remanded. The 9th discusses the requirement that a court interpreter be certified, and what that means for fluency. Given the high standards Congress insisted on, and due process requirements, a certified court interpreter. Here, there was no translation of the jury waiver form,. and there was no colloquy in court as to a knowing and voluntary waiver. A colloquy is required apparently when the waiver is not read by a certified interpreter and discussed with counsel. This case is supported by Duarte-Higareda, 113 F.3d 1000 (9th Cir. 1997), which requires a colloquy although it didn't discuss what would happen if someone else translated it. The 9th took pains to stress that the lawyer stated he translated it, but there is no assurance as to the lawyer's fluency nor whether the defendant actually understood it. This opinion, going to jury waiver, may be applicable in other contexts, and counsel should be attentive. Rawlison dissented, arguing that the lawyer avowed he was fluent, and that the defendant, on the day of trial (two weeks later) confirmed that he waived the right to jury. There was no surprise or confusion. To the dissenter, the waiver was knowingly and voluntary under these circumstances.

Case o' The Week: Can't go to jail when you want to, Lombera-Valdovinos

A great decision on weird facts: Judge Raymond Fisher (left) finds a defendant did not have the necessary mens rea for attempted illegal reentry when the alien entered with the intention of being incarcerated. See United States v. Lombera-Valdovinos, __ F.3d. __, 2005 WL 2005 WL 3183734 (9th Cir. Nov. 30, 2005), available here.

Players: Judge Raymond Fisher writes; Rymer vigorously dissents.

Facts: Lombera-Valdovinos wanted incarceration when he attempted to illegally reenter the United States. 2005 WL 3183734, *1. He walked up to a border guard after crossing the border, asked to go to an immigration judge, and said he wanted to go to jail. Id.

Issue(s): “We consider the question of whether it is possible to convict a previously deported alien for attempted illegal reentry into the United States under 8 U.S.C. § 1326 when he crosses the border with the intent only to be imprisoned.” Id.

Held: “We conclude that it is not, because attempted illegal reentry is a specific intent crime that requires proof of intent to enter the country free from official restraint. The government, operating under a misconception about the meaning of official restraint, failed to introduce evidence to support a finding of such intent, so we must reverse.” Id. at *1. “With this proper understanding of the scope of official restraint in mind, it is clear that an alien who is under official restraint from the moment of crossing, and who never intended to avoid or change that status, cannot therefore have the necessary intent to be guilty of attempted illegal reentry. This precisely describes the defendant's actions and intent here – as the prosecution itself argued to the jury, but on the faulty premise that intent to go to jail was intent to be free of official restraint.” Id. at *3.

Of Note: Oddly, attempted illegal reentry is one of the few meaningful bastions of mens rea requirements in federal criminal law. See, e.g., United States v. Gracidas-Ulibarry, 231 F.3d 1188 (9th Cir.2000) (en banc) (holding that attempted reentry in violation of 8 U.S.C. § 1326 is a specific intent crime). Being “found in” the United States, by contrast, has no specific intent provision. Pena-Cabanillas v. United States, 394 F.2d 785, 790 (9th Cir. 1968). Good luck explaining to your illegal reentry client why, if caught coming in, he may have a mens rea defense – but not if he’s caught further away from the border.

How to Use: The best mens rea opinions in the Ninth, of late, have been attempted illegal reentry cases. See e.g, Gracidas-Ulibarry, 231 F.3d 1188; United States v. Smith-Baltiher, 424 F.3d 913 (9th Cir. 2005). If you’re lucky enough to be defending a specific intent crime, take a look at this line of cases for some great language. For example, in the present case – Lombera-Valdovinos – dissenting Judge Rymer is appalled that this conviction doesn’t stick. 2005 WL 3183734, *3. The opinion is, however, consistent with all of the previous mens rea attempted reentry decisions. Thus, use this line of authority to show that when specific intent is an element, it has bite: the Ninth has shown great deference to that mens rea element in attempted reentry cases.

For Further Reading: Judge Raymond C. Fisher took the bench in 2000 after his appointment by Clinton. A Supreme Court clerk and Heller Ehrman attorney, Judge Fisher had served in the number three spot at DOJ under Clinton. See Ninth Circuit article here. Some Clinton appointees who have come out of prosecutor’s offices seem more hostile to the criminal defense bar than their conservative, Bush-appointed, colleagues. Judge Fisher, however, has proven an interesting exception. He has lobbied hard for better legal proceedings for immigrants. See article here. He is active in dispute resolution activities. See article here. And Fisher would have let a cop sue his Police Department, when the officer was fired for selling internet porn of himself masturbating. see article here.

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

US v. Gonzalez

No. 03-50414 (12-1-05). Don Henley, in "Boys of Summer', sings "A little voice inside my head said, 'Don't look back. You can never look back'./I thought I knew what love was/What did I know?Those days are gone forever/I should just let them go." In litigating 1326 cases though, looking back is sometimes all that we have left. In this case, defendant argued that 8 USC 1228 deprived him of his ability to seek discretionary relief from deportation under 212(h), and that his waiver of appeal was invalid and prejudicial. Defendant had pled to two robbery counts and received a three year sentence in the CYA. He was subsequently deported twice, and this third time argued that he would have had grounds for discretionary relief if he had been told of it in his waiver. The 9th denied the claim, It distinguished St Cyr, where the findings were that the five year trigger resulted in plea negotiations for a lesser amount and a settled expectation of the possibility of discretionary relief under 212(c). Such an expectation was not present here, because there was no trigger for deportation, and the odds were low for such discretionary relief under 212(h). The 9th applied the bar of 1182 retroactively and found support in Alvarez-Barajas, 418 F.3d 1050 (9th Cir. 2005) that made ineligibility retroactive for agg felons who were LPRs.

US v. Lombera-Valdovinos

No. 04-50390 (11-30-05). This raises the "official restraint" defense to an attempted reentry under 1326. This defense is basically that one can't be convicted of reentering if he is not at liberty to reenter because he is effectively under gov't surveillance or control when he tries to come in. It has been used for some time (and the FPD in the Southern District has made some excellent law). Here, in a twist, the defendant was spied standing across the border, and 15 seconds later, the gov't agent sees the defendant walking toward him. The defendant gets to the agent, and announces that he wants to go back to prison. The 9th holds that a Rule 29 should have been granted for the 1326 because the gov't presented no evidence that the defendant entered the country free of official restraint (the specific intent element). The gov't argues, and it was taken up in Rymer's dissent, that it was a ploy by the defendant who knew the jig was up. The only problem, and one defense frequently encounters, is that there was no evidence presented of this.