US v. Mendez, No. 05-10205 (10-30-06). The 9th suppresses a gun found in a traffic Terry stop. The police stopped the car, had the defendant get out, and while running his out of state driver's license, engaged him in discussion about other activity: his gang membership (evidenced by a tattoo) and his prior record. The questions lead to asking the defendant whether he had a gun, to which he basically said "yes." On appeal, the gov't argued that the two factors of gang membership and prior record was sufficient particularized suspicion to ask about other criminal activity. The gov't didn't argue officer safety. The 9th (Reinhardt writing, joined by Paez), reasoned that gang membership and a prior record are not sufficient for allow further questions about activity outside thes cope of the traffic stop (expired temporary registration). The opinion takes each basis, discusses at length in Reinhardtian fashion, and reasons that the officers need more. Tallman, dissenting, clashes with the majority, accuses them of "pigeon-holing" the reasons, and not taking the "totality of circumstances." Tallman argues for the gov't (don't you like it when the court does that) that officer safety is at issue (although never raised), and this point, combined with the others, creates sufficient particularized suspicion. Can Tallman take this argument to the en banc? It is an interesting debate in approaches.

Blog Summary

Here are my blogs to date arranged by subject matter.

Reasonable doubt at sentencing

• Booker: reasonable doubt survives
• Booker: reasonable doubt update
• Huerta-Rodriguez: reasonable doubt required
• Judge Gertner on reasonable doubt
• Okai: doctrine of constitutional avoidance requires that federal sentencing statutes be construed to require proof beyond a reasonable doubt
• Reasonable doubt advisory opinion?
• Dupas redux: reasonable doubt at sentencing is an open question
• Kandarikis: reasonable doubt, constitutional avoidance, and more
• Staten: missed issues on ex post facto and burden of proof at sentencing
• Grier: reasonable doubt at sentencing through constitutional avoidance

Sentencing appeals

• Guidelines Appeal: the presumption of reasonableness and reasonable doubt
• Zavala: trial court's treatment of guidelines as the presumptive sentence constitutes reversible error
• Guidelines Appeals: why within guidelines sentences are presumptively unreasonable
• En banc question in Carty and Zavala

Confrontation at sentencing

• Crawford Meets Booker: the right to confrontation at sentencing

Shepard in general

• Shepard: where do we go from here?
• Almendarez-Torres: dead letter after Dretke v. Haley?
• Ngo & Nobrigo: two critical pieces of the post-Shepard jigsaw puzzle

Firearms crimes

• Blakely Meets FOPA: an important step in the analysis of firearms cases
• Washington: Shepard plus Booker equals no enhancement under firearms guideline
• Murillo: FOPA faux pas, or how an actual state sentence of twelve months becomes a crime punishable by imprisonment exceeding one year
• Thompson: the Fourth Circuit demonstrates the need for reinterpretation of the ACCA under the doctrine of constitutional doubt
• Weiland: ACCA statutory argument finds support in strange places
• Boothroyd: the gun bump and the safety valve
• Browning: another reason to apply the Doctrine of Constitutional Avoidance to the Armed Career Criminal Act
• Young: the Sixth Amendment, constitutional avoidance and 922(g)(8)

Immigration crimes

• Leocal Plus Booker: drug possession is not an aggravated felony
• Kwan: An approach to erroneous immigration advice in criminal cases
• Palacios-Suarez: breakthrough on "aggravated felony" and drug possession
• Post-Leocal litigation: pruning back overly-expansive definitions of "aggravated felony"
• Cert granted on simple drug possession as aggravated felony

BOP litigation

• Leocal and Martinez: an end to BOP misinterpretation of the good time statute?
• Moreland: road map to good time victory
• Castellini: BOP enjoined from terminating boot camp
• BOP Litigation update (June 10, 2005)
• Paulsen: BOP violation of the APA creates an opening for prisoners formerly disqualified from the DAP sentence reduction (June 27, 2005)
• Boot Camp Update

Minor role

• Minor role: a barrier removed

Ex Post Facto

• Booker: ex post facto independent of due process
• Dupas: continued post-Booker litigation needed on Ex Post Facto Clause and reasonable doubt

Retroactivity

• Seigelbaum: first step to Blakely/Booker retroactivity
• Schardt: misreading of Schriro undermines reasonable doubt retroactivity
• Retroactivity of Apprendi and Blakely: Supreme Court review needed
• Supreme Court to determine Blakely's retroactivity

Search and seizure

• Search and seizure update

Right to counsel

• Bergeson: Ninth Circuit protects continuity of counsel for the indigent accused

Guantanamo

• Hamdan: doesn't the government's interpretation of the DTA make it a classic Bill of Attainder?

Supreme Court review

• 2004-05 Term: lessons in post-Apprendi litigation

General

• Good Citations No. 1
• Good Citations No. 2
• Habeas Resources

Here is a link to all other defender blogs

Case o' The Week: AZ. D.V. not § 16 D.V.

When is an Arizona Domestic Violence conviction not an Immigration Domestic Violence conviction? When the conviction's elements include "recklessness," and when the case goes en banc in the Ninth. See Fernandez-Ruiz v. Gonzalez, __ F.3d __, 06 Cal. Daily Op. Serv. 17851 (9th Cir. Oct. 26, 2006) (decision available here).

Players: 6-4 decision, with Kozinski concurring. Bea (left) authors the decision (!?!), Clifton (!?!) in the majority with Shroeder, Reinhardt, Noonan and Hawkins.

Facts: Fernandez-Ruiz was a L.P.R. (lawful permanent resident) who was ordered removed after committing several crimes. Id. The conviction of interest in this appeal was an Arizona misdemeanor domestic violence prior. Id. at 17857. The Immigration Judge (I.J) treated that conviction to be a “crime of domestic violence” as defined (ultimately) in 18 USC § 16, and ordered removal. Id. A three-judge panel upheld that order, and the case then went en banc to resolve an “inter- and intra- circuit conflict as to whether, under Leocal . . . crimes involving the merely reckless use of force can be crimes of violence.” Id. (emphasis added).

Issue(s): “This case calls upon us to decide whether the petitioner’s 2003 Arizona conviction for domestic violence was a ‘crime of domestic violence’ under a federal statute that triggers removal of a legally admitted resident alien from this country.” Id. at 17856.

Held: “The federal statute [18 U.S.C. § 16], as interpreted by the Supreme Court in Leocal v. Ashcroft, 543 U.S. 1 (2004), covers only those crimes involving intentional conduct. Because the relevant Arizona statute permits conviction when a defendant recklessly but unintentionally causes physical injury to another, and because the petitioner’s documents of conviction do not prove he intentionally used force against another, we conclude the federal statute does not apply.” Id. (emphasis added).

Of Note: Judges Bea and Clifton have both been profiled in these Case o' The Week memos; Clifton, just last week as the author of the good Nguyen “nolo” decision. Both judges, W. Bush appointments, broke with Wardlaw, O’Scannlain, Bybee and Callahan to make the six-judge majority in this case.

The majority is correct here as a matter of law – as Kozinski observes, the Ninth joins five other circuits that have considered the issue. Id. at 17878. Nonetheless, aliens who commit domestic violence are not the most sympathetic of appellants – it is noteworthy and commendable that Clifton joined the majority, and that Bea felt strongly enough to author the decision.

How to Use: The narrowest use of Fernandez-Ruiz is in illegal reentry cases involving domestic violence priors – obviously, check to see if the state statute permitted a conviction for merely reckless conduct. The decision could have a much broader impact, however. The reasoning of the opinion, and its interpretation of Leocal, could apply to any state prior that could be accomplished through merely reckless conduct. This may narrow the field of “crimes of violence” under 18 USC § 16, meaning that some aliens were improperly removed, and that some illegal reentry defendants should not face the draconian sixteen-level specific offense adjustment of USSG § 2L1.2(b)(1)(A)(ii).

The Ninth itself has been in internal conflict on this issue since the 2001 decision in Trinidad-Aquino and the 2005 decision in Lara-Cazares. See id. at 17862. If the Circuit has been confused for this long, be on guard for erroneous decisions by the I.J.s and by referring ICE agents regarding priors that could encompass “reckless” conduct.

For Further Reading: Don’t let the title of a previous conviction discourage you in an illegal reentry case: in the Ninth, a “crime of violence” is defined narrowly by the statutory terms. In this opinion, the removal statute at issue was 8 USC § 1227(a)(2)(E)(i), which in turn looks to the definition of crime of violence in 18 USC § 16. Id. at 17859. The Ninth has been increasingly careful (and narrow) in its interpretation of Section 16. For example, in Ortega-Mendez v. Gonzalez, __ F.3d. __, No. 03-74711, 06 Cal. Daily Opinion Serv. at 6623 (9th Cir. June 15, 2006), Judge Berzon held that a simple battery in California wasn’t a “crime of violence.” See blog here.

There have been some proposals to broaden the definitions of Section 16. These proposals have drawn the opposition of, among others, the Heritage Foundation. See Heritage Foundation post here.

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

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US v. Santiago, No. 05-30584 (10-23-06). Even in the age of Booker, guidelines are still critical, and effective representation still requires battling errors in the PSR. This case underscores this point. Defendant plead guilty, apparently with no agreements as to relevant conduct. The PSR comes in at relevant conduct between 17 and 104 kilos of meth. This is based on interviews with codefendants and others. Defense counsel never objected. At sentencing the court expressed concern with the amount attributable (hint-hint) but still no objection. The court sized up the amount, and sentenced defendant to 300 mos. On appeal, the factual findings of the PSR are challenged. "Sorry," says the 9th, "but review is for plain error because there was no objection." The error here was not plain, or even reviewable as an error because the PSR was accepted. If there is no objection, the court cannot be said to err on relying on the PSR's findings. The PSR's findings are accepted. The defendant here failed to object, and the PSR's guidelines are accepted without error by the court.

Smith v. Baldwin, No. 04-35253 (10-24-06). The petitioner faced a life sentence for a felony murder conviction. He faced procedural hurdles, but the 9th (Reinhardt & Hug) hold that the Schlup "actual innocence" gateway is available because the prosecutor engaged in misconduct in preventing the key witness who allegedly recanted from testifying at post-conviction proceedings by threatening him with charges, and other bad acts. The 9th frames the issues as to whether the misconduct would open the gateway, and found that it did, and then assumed the allegations were true for the purposes of assessing whether a reasonable jury could acquit, and found that it could indeed. The prosecutorial misconduct does not lead to a reversal on the merits, but only to a hearing on the petition's merits. Dissenting, Bybee vigorously disputes the majority's analysis, including prosecutorial misconduct, and believes that the remedy is extraordinary, and the most, the case should be sent back for the district court with a grant of immunity for the witness rather than assuming truthful allegations and getting a hearing on the merits. The dissent believes that the Schlup gateway is closed because the petitioner is guilty of felony murder with no affirmative defense.

Congrats to AFPD Tom Hester, D. Ore.

US v. Black, No. 05-10640 (10-26-06). The call to the police was for a "welfare check." The caller was a victim of domestic abuse, she was going back to the apartment to pick up clothes, and she would meet the police outside. She said that her boyfriend, defendant, beat her up and had a gun. The police got there, but couldn't find the caller. Around the back, they encountered defendant, got a key from him, and entered the apartment. They did so, they said, to see if the caller was hurt or there. In the sweep, they saw a gun. Defendant was convicted of being a felon in possession, and challenges the search. The 9th (B. Fletcher[writer] and district judge) upheld, reasoning that the police were concerned with the caller, and were afraid she may have gone back, and was hurt. The 9th recognizes this "welfare" exception, and that the police acted objectively reasonably. Dissenting, Berzon takes issue with the rationale, because the police arrived at the apartment so quickly that the harm that was feared could not have possibly occurred. rather, the police had time to secure a warrant.

Fernandez-Ruiz v. Gonzales, No. 03-74533 (10-26-06)(en banc). The 9th, en banc, held that an Arizona domestic violence conviction was not a "crime of domestic violence" under the federal statute that triggers removal of a legal resident. The 9th reasons (Bea joined by Schroeder, Reinhardt, Noonan Hawkins, and Clifton) that the federal statute as interpreted by the Supremes in Leocal, 543 US 1 (2004) covers only those crimes involving intentional conduct. Under a Taylor approach, Arizona's statute would permit a possible conviction with reckless but unintentional physical injury. Thus, the fed statute would not apply. The 9th joins five other circuits. Kozinski concurs and dissents, joining the majority, and rejecting the dissent's argument for a special domestic violence exception. Kozinski would send the case back to allow the gov't to present evidence before the IJ on the modified categorical approach. Wardlaw, dissenting (with O'Scannlain, Bybee, and Callahan), would find an exception and hold that domestic violence is a categorical crime of violence. The tone is set with the opening sentences: "Men do not beat their wives by accident. Blind to this truth, the majority ignores the realities of domestic violence and disregards congressional intent... ."

Case o' The Week: Nguyen Win, No Solo Nolo

An innovative challenge by Alaska AFPD Kevin McCoy gets a conviction reversed in United States v. Dal Van Nguyen, __ F.3d. __, 06 Cal. Daily Op. Serv. 17631 (9th Cir. Oct. 18, 2006), opinion available here. Writing for the panel, Judge Clifton (left) rejects the use of nolo pleas (albeit, in this case's limited context).

Players: Another innovative challenge by veteran AFPD Kevin McCoy of Alaska.

Facts: Nguyen, an immigrant, was ordered removed to Vietnam but couldn’t be deported because there was no repatriation agreement with that county. Id. at 17635. He was released from ICE custody. Id. A condition of his supervision under the release statute was that he not “commit any crimes” while on supervision. Id. (emphasis added). While on this supervision, Nguyen pleaded nolo contendere to two state misdemeanors. Id. He was then charged federally with wilful failure to comply with the terms of the release order, in violation of 8 USC § 1253(b). Id. at 17636. At the jury trial, the government proved their case by submitting certified copies of the two judgements of conviction arising from the nolo plea. Id. Nguyen objected, but the evidence was nonetheless admitted and he was convicted.

Issue(s): “Nguyen argues on appeal that, because a nolo contendere plea is not an admission of guilt to the underlying crime, a conviction based on such a plea does not prove that he ‘commit[ted] any crimes.’ He further argues that his state convictions should not have been admitted into evidence in his trial on the federal charges.” Id.

Held: “Nguyen’s conviction must be reversed. The misdemeanor nolo contendere convictions were legally insufficient to support Nguyen’s conviction for violation 8 U.S.C. § 1253(b). Moreover, the convictions should not have been admitted under Rules 410, 803(22), or 803(8) for the purpose of proving that Nguyen actually committed the underlying crimes charged.” Id. at 17642.

Of Note: This case does not, however, stand for the proposition that all nolo pleas are inadmissible. Instead, the panel (Clifton, joined by Reinhardt and McKeown) look at the plain language of the supervision terms. Nguyen’s supervision said he could not commit another crime – and a nolo plea is not an admission of committing a crime. Id. at 17638. The Court also considered the admissibility of these convictions – and held they were not properly admitted. Id. at 18638. Along the way, the panel made a good new rule in the Ninth Circuit: the government cannot admit misdemeanor convictions under FRE 803(8) [the public records exception] to actually prove that the defendant committed the prior crime. Id. at 17641.

How to Use: Nguyen itself obviously involves narrow factual circumstances. Its principle, however, may prove useful in other contexts – such as supervised release or probation violations. If the Form 12 allegation is that a defendant committed a crime, an order of judgement and commitment from a nolo plea is presumably not sufficient. Where there may be some defenses to the actual crime alleged, Nguyen may strengthen a defendant’s hand when facing Form 12 allegations.

For Further Reading: Nguyen is a non-continental case: defense counsel McCoy is from Alaska, and Judge Clifton is from Hawaii. An infrequent author of criminal opinions, Clifton is a W. Bush nominee who was confirmed in July 2002. See article here. He is a former partner of the largest law firm in Hawaii, Cades Schutte Fleming & Wright. Id. Judge Choy was the first Hawaiian judge to serve on the circuit: Clifton started his career as Choy’s law clerk. See article here.


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

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US v. Nguyen, No. 06-30011 (10-18-06). Is a "nolo" conviction sufficient evidence of a wilful failure to comply with supervision release terms that state that the defendant not "commit any crimes."? The 9th (Clifton) says "no." Here, defendant is a Vietnamese who was ordered deported because of a misdemeanor drug possession conviction. Vietnam has no repatriation treaty, and so the defendant was released under supervision terms. he subsequently plead nolo contendre to two state misdemeanor charges, assault and mischief. The gov't charged him with wilful noncompliance, and he got a year in jail for the conviction. The 9th reverses, holding that evidence of a "nolo" conviction was legally insufficient to support a conviction for violating 8 USC 1253(b). "Nolo" is not the same as a conviction for proof of "commit other crimes." A nolo plea is not an admission. The nolo plea also does not come in under FRE 410, 803(22), or 803(8) for the purpose of proving commission of the offense. The gov't is further barred from retrying defendant. It had its one bite.
Congrats to AFPD Kevin McCoy, D. Alaska, for the win.

Velzquez-Herrera v. Gonzales, No. 04-72417 (10-19-06). The 9th (per curiam) remands to the BIA so they can figure out, and issue a precedential opinion, as to what is the definition of "child abuse" under the state (Washington) statute. The state statute covers conduct that is detrimental to the physical, mental, and moral well being of the child, and could conceivably deal with matters as trivial as spitting or slight touching. The 9th ordered the BIA to define the act, and then use a Taylor/Shepherd approach to see if defendant's acts fit.

Case o' The Week: No furniture supports 924(c) conviction, Mosley

Writing for a unanimous panel, Judge Tallman upholds a Section 924(c) conviction from a defense "in furtherance" attack. See United States v. Mosley, __ F.3d __, 06 Cal. Daily Op. Serv. 17511 (9th Cir. Oct. 11, 2006), decision available here. A loss for the defendant, but the restrained language in the decision may be a win for the Defense.

Players: Hard fought appeal by D. Alaska AFPD Michael Dieni.

Facts: After Mosley had a car accident a chain of events lead to two searches of his apartment. Id. at 17514-15. In the apartment, cops found a loaded, cocked .22 Beretta pistol (left) on a shelf near the door, two loaded pistols in a bag with cocaine powder on it, gear to make crack cocaine, crack, and seven grand. Id. at 17516. At trial, Mosley moved for a Rule 29 on the § 924(c) count – use of a gun “in furtherance” of a felony. Id. at 17517.

Issue(s): “To prove that Mosley [committed a] . . . violation of § 924(c)(1)(A), the government must show . .. Mosley’s possession of the firearm was ‘in furtherance’ of the drug trafficking crime . . . . Mosley contests only whether the government’s evidence sufficed to establish the third ‘in furtherance’ element.” Id. at 17517-18.

Held: “Here, we are presented with a factual situation that falls between those in Krouse, Mann, and Rios. We hold that the evidence suffices to support a conviction under § 924(c)(1)(A). There can be little doubt that Mosely’s apartment was the base of operations for crack cocaine production and packaging. The substantial sums of cash and the general lack of furniture and personal items support the government’s theory that the apartment was a textbook example of a stash pad. To determine, however, whether the evidence sufficed to establish the requisite ‘nexus’ between the three firearms, and Mosley’s illegal drug trafficking requires us to consider the totality of the circumstances based on the evidence submitted at trial.” Id. at 17522.

Of Note: Writing for the panel, Judge Tallman conceded that “Many cases, including this one, involve more subtle factual situations [than in other § 924(c) decisions], and whether certain facts support a conviction under § 924(c)(1)(A) is sometimes ambiguous under current circuit precedent.” Id. at 17519. This is not the last word on the § 924(c) “in furtherance” inquiry – this is one of precious few federal statutes where there still survives some ambiguity subject to defense challenge.

How to Use: If the Section 924(c) “in furtherance” cases make up a spectrum, Mosley falls pretty squarely into the “bad facts” side of this range. In this case, there was a loaded and cocked gun by the apartment entrance, a scale and other crack-manufacture paraphernalia in the apartment, and not much furniture: all facts emphasized by the Ninth. As Tallman explained, “[W]e reiterate that this inquiry is fact specific, and, as in Krouse, we decline once again to adopt a checklist approach. There are simply too many possible factual scenarios likely to defy any test we may prognosticate based on so few cases in our jurisprudence.” Id. at 17523. There’s still plenty of room to fight a § 924 charge after Mosley – read the decision’s descriptions of the Circuit’s other “in furtherance” cases: Krouse, Mann, and Rios.

For Further Reading: Judge Berzon was part of the unanimous panel in this decision (Kozinski was the third). Interestingly, Judge Berzon also wrote the great Rios decision, rejecting a § 924(c) charge in a sawed-off shotgun case. See blog here. While Mosley is a loss for the defense, the opinion pretty carefully limits its holding to the facts of this case and avoids any broad new rules for the “in furtherance” inquiry. Perhaps Judge Berzon hated to see her great language in the Rios decision undermined, and was a moderating influence in the language of the final decision?

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

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US v. Hungerford, No. 05-30500 (10-13-06). The defendant was a mentally disturbed, barely functioning, easily led and victimized 52 year old woman, with no prior record, whose husband of 26 years had recently left her. She fell under the sway of a "new boyfriend" and conspired in a series of robberies. She never touched a gun. She spent money from the robberies and helped with cover-ups and driving the car. Convicted of conspiracy, and seven counts of using a gun, her sentence imposed was 159 years. The 9th (Graber) affirms, finding that the evidence was sufficient to affirm the convictions, and bound not to find that the 924(c) gun counts were unconstitutional. In a anguished concurrence, Reinhardt cries out that mandatory sentencing is unfair, and is a "broken system" that is shocking to the conscience. He calls on Congress to amend such stringent laws. Reinhardt also makes the point that the prosecutor held all the cards, and decided to prosecute this case aggressively even though the defendant was clearly less culpable than the principal and clearly mentally ill. The codefendant and principal actor got a sentence of only 32 years. The defendant's mental illness led her not to accept a plea, and she could only say that she was guilty of being "stupid." Reinhardt asks the judges be allowed to be judges.

US v. Paopao, No. 05-10653 (10-10-06). Its a gamble when you're a felon and you have a gun. It becomes a high stakes gamble when you're in an illicit gambling room. Suspects were committing robberies of poker rooms. The police got a tip that the suspects were in fact in a gambling room, and a robbery might be in progress. The police went to the apartment. The defendant left, saw the police, and went back in, where he dropped a bag he was carrying behind a sofa. The police subsequently did a protective sweep of the place, and saw in the unzipped bag what he thought was a gun and jewelry. Defendant was charged as a felon in possession. He argued that the search was illegal. The 9th found that he didn't have standing, since the apartment was not his residence, and he didn't have an expectation of privacy. On the merits, the 9th would find that the sweep was reasonable given the circumstances, the concern about another robber hiding in the rooms, and the place, and entered the apartment.

US v. Mosley, No. 05-30488 (10-11-06). Defendant had a car accident. He appeared nervous, sweating, and under the influence. He was also wanted on a warrant. The police arrested him, and while the car was being towed, "found" a plastic lid of a coffee grinder outside that appeared to be have mixture of meth and marijuana. It tested positive, and not just for espresso. Using this information, a search warrant was gotten to find the coffee grinder in the apartment. Well, the search for the daily grind also yielded a treasure trove of drugs and many guns. Charged with "possession of a firearm in furtherance of drug trafficking,' defendant argued that the guns were not in furtherance of the drug deals. The 9th held that the argument missed the mark, because a jury could find that the loaded weapons, types of weapons, and presence of guns facilitated drug transactions. The 9th declines to make a checklist or articulate factors, but would rather use a totality of circumstances approach.

Case o' The Week: Zavala / Carty En Banc October 6, 2006

The Booker rubber finally hits the road as the Ninth wrestles with key sentencing issues in the Section 3553(a) era. A fascinating oral argument in the most important en banc case of the year. Download oral argument here.

Players: Masterfully argued by Sidley Austin partner Jeff Green (left) and CJA Counsel Dennis Charney (right). The panel included (in no particular order), Judges Reinhardt, Berzon, Paez, Thomas, (Chief Judge) Shroeder, Wardlaw, McKeown, Gould, Silverman, Bybee, Kozinski, Kleinfeld, Bea, Tallman, and Rymer.

Facts: Zavala was a drug dealer who got a 30-year sentence, down from “life” guidelines. The district court judge started with the guideline sentence, however. See blog here. Carty committed a sex crime and got low-end of the guidelines; the judge didn’t articulate the Section 3553 factors. See blog here.

Issue(s): The Ninth took the cases en banc, and invited amicus briefing on a half-dozen issues. See blog with questions here. The two big questions: is a guideline sentence presumptively reasonable? And, must a district court repeat all Section 3553(a) factors at sentencing, and articulate the reasons for the sentence – even for an in-guideline sentence?

Predicted Outcome: Spectators from the east side of Courtroom 4 have a prediction: e-mail me if curious.

Of Note: The biggest surprise of the argument was the conciliatory tone of the Deputy Solicitor General of DOJ, Michael Dreeben. (By the way, what a nice gesture from Justice – sending out a hired gun who has argued sixty-four Supreme Court cases, including Koon. (Just in case the 9th had forgotten about SCOTUS). Gestures like this, however, might backfire in the independent West.)) Nonetheless, one must concede that Mr. Dreeben argued eloquently for the government.

In any event, listen to the oral argument – one would be hard-pressed to hear Dreeben defend the “presumption of reasonableness” for a guideline sentence. The government seems more concerned with retaining the ability to attack out-of-guideline sentences on appeal – demanding “compelling” reasons for such sentences. Maybe it was just the government’s back-door way of seeking the same “‘reasonableness” presumption, but one gets the sense that counsel on all sides were fighting hard for the middle ground (and for the “moderate” swing judges) in this case.

Some of the most thoughtful – and most difficult – questions came from Judge Kozinksi, who pressed both sides for plain-spoken answers. Kozinski wondered if the Defense position is that a district court judge can “pierce” the guidelines and look at the reasonableness of the Commissions’ conclusions for any given guideline? (Like the inequitable “crack” guidelines). As dearly as we in the defense bar would love to pierce (and prod, and sever, and shred) the guidelines, Jeff Green was wary of this question – key moderate judges (and Congress, and SCOTUS) may not be too keen on the idea.

From Mr. Dreeban, Kozinski pressed – several times – for the precise text of § 3553(a) that directs that the guidelines factor gets greater weight. (Ed. note: it doesn’t exist). Dreeban fumbled with “organizational principles” and the “Commission’s needs” . . . i.e., he never answered the question. Kozinski’s key question – and it is a central one – is how much weight is a district court to give the guidelines in any given, individual case, and how will the Ninth review that decision?

Judge McKeown was also an active participant – she’s wrestling through some of the thorny practical aspects of the case. For McKeown, the appellate standard of review for a Booker sentence was a key question.

Judges Wardlaw and Reinhardt both emphasized Justice Breyer’s actual text in Booker; nothing in the remedial opinion said anything about greater weight for the guidelines factor. Reinhardt delivered the most memorable line, mock-admiring Breyer’s skill in convincing other Justices to abandon the holding that they had just reached in Justice Steven’s constitutional opinion, and to join him in the remedial Booker decision.

Another humorous moment was Chief Judge Schroeder’s invitation to Mr. Dreeben to quantify on a scale of 1 to 10 the weight the guidelines should play in the § 3553(a) analysis. After his artful dodge and refusal to do so, the Chief (a bit wryly) suggested that he give the Court “a range.”

For Further Reading: To hear the oral argument, navigate to: http://www.ca9.uscourts.gov/ca9/media.nsf/Media%20Search ?OpenForm&Seq=1 . It seems that all sentencing appeals have been stayed pending the outcome of Zavala/Carty -- it'll be an uncertain Fall, as practioners wait to see the final (hopefully) word on Booker practice in the Ninth.

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

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US v. Galena-Mendoz, No. 04-73100 (10-6-06). The 9th holds that a state domestic battery misdemeanor conviction (Calif. Penal Code 243(e)) does not qualify as a crime of moral turpitude. The 9th uses a categorical approach and finds that the California statute would sweep in conduct was that violent but also such conduct as spilling a soft drink on a spouse or tapping a pencil against a partner. Concurring, Callahan cautions that a modified categorical approach could, in other cases, find conduct that qualifies as moral turpitude.

Stokes v. Schriro, No. 04-16454 (10-6-06). Apprendi finds its way to state habeas. Petitioner received an "aggravated" recidivist sentence that raised his sentence from 20 to 25 years based on a judicial finding of "aggravation" and other factors. The 9th held this violated Apprendi, and that it was not harmless.

Congrats to AFPDs Jennifer Garcia and Mike Burke of Arizona for the win.

US v. Nichols, No. 05-30503 (10-6-06). A sentencing court applied a four level adjustment in a felon-in-possession case because a firearm was used in another felony. The firearm used in the felony however was NOT listed or charged in the indictment. No matter, said the court, the guidelines said "any firearm" under 2K2.1(b)(5). The 9th agrees. The 9th however doesn't look at the plain language of the guideline but employs instead a relevant conduct analysis under 1B1.3. Wallace, concurring, wouldn't go this far, but would use the plain language as the 8th Circuit did in Mann.

Cart/Zavala en banc was argued on 10-6-06 before a 9th Circuit en banc. The argument was spirited, and defense counsel acquitted themselves well. We'll see.

US v. Rodriguez, No. 04-30397 (10-5-06). The 9th continues to find that a recidivist statute does not transform a felony into a qualifying felony for ACCA purposes. Here, defendnat was a felon who wanted to do a friend a favor and get rid of a gun. Unfortunately, the defendant was a felon, on escape status, with drugs in the ap't, and four outstanding warrants. He got arrested, and the 9th wasted little time with the "bad search" arguments. Rather, the 9th turned most of its attention to the gov't's cross appeal that the defendnat should have been ACCA eligible. He had state drug priors that had a stat max of 5 years, but would be ten years if he had a prior drug conviction. he did. The 9th though used Corona-Sanchez to find that in using a Taylor approach, a court looks at the statute of conviction for the offense without the recidivism enhancement.

US v. US District Court for the E.D. Ca. ex real Allen Harrod, No. 06-72498 (10-3-06). The 9th (per curiam) grants a mandamus and rules that the gov't must consent under Fed R Crim P 23 for jury waiver. The case arises from multicount interstate travel resulting in sexual abuse charges. the details are lurid and tragic. Defendant sought to waive a jury and try the case to the court on the sole issue of intent. The gov't objected. the court overruled the objection, believing that the only way to ensure a fair trial would be to dispense with the jury. The Supremes in Singer v. US, 380 US 24 (1965) seemed to require gov't agreement, although a little wiggle room was left with the language that there may be circumstances so compelling that a judge trial was the only way to ensure a fair trial. Over the years, this wiggle room has shrunk to nonexistent. The circuit cases come pretty close to finding that the rule is absolute. The 9th looks at history, the policy arguments for jury trial, and considered this exception, but found that it need not see if this was one such case. Instead, the 9th held that it was sure an experienced and able judge can ensure a fair jury. The 9th then listed five (5) such steps -- extensive voir dire and questionnaires, limiting "bad act" evidence, limiting cumulative evidence, limiting witnesses, stressing jury instructions. These "instructions" are a handy check-list to use in other cases to ensure fair juries (would that courts used the checklist more).

Correll v. Ryan, No. 03-99006 (10-2-06). The 9th Cir (Thomas joined by Schroeder) held that there was IAC in the capital sentencing. Defense counsel conducted scant investigation into mitigation, even though he knew there was evidence of classic mitigation to be found. In addition, what investigation he did conduct was cursory and shallow. The district court found IAC, but held that it was harmless The 9th disagreed, especially because under the Arizona system, aggravators without mitigators (the so-called balancing system) meant that death had to be imposed. There was plenty of "Wiggins" room to mount mitigation. The opinion was written by Thomas, Schroeder joined, and O'Scannlain dissented.

Congrats to AFPD Dale Baich and Paula Harms of the Capital Habeas Unity of the D. Az FPD for the win.

Case o' The Week: Sweet Sixteen Win for Baza-Martinez, Agg Felony Decision

Great win on agg felony issue, but nagging problem with government's abuse of discretion with the third acceptance point. United States v.Baza-Martinez, __ F.3d. __, 06 Cal. Daily Op. Serv. 11951 (9th Cir. Sept. 26, 2006), decision available here.

Players: Great win by Arizona crew Michaela Portillo, Brian Rademacher, and Defender Jon Sands.

Facts: An illegal reentry defendant pleaded open with a North Carolina prior for “indecent liberties with a child.” Id. at 11954. The district court gave the +16 offense level bump for reentry after an agg felony. Id.

Issue(s): “Baza-Martinez contends that the imposition of a sixteen-level sentencing enhancement was not justified because his prior felony conviction . . . for taking indecent liberties with a child, is not ‘sexual abuse of a minor,’ a ‘crime of violence’ under United States Sentencing Guidelines . . . § 2L1.2(b)(a)(A)(ii).” Id. at 11594.

Held: “Employing the categorical approach and considering the full range of conduct criminalized by [the North Carolina statute], we hold that a conviction under that statute is not necessarily a ‘crime of violence . . . .” Id. at 11955.

Of Note: The important win for Baza-Martinez – and his F.P.D. team – was to knock out the 16 level enhancement. The troubling aspect of the opinion, however, is that the AUSA withheld the third point for acceptance – for no apparent reason. Apparently, the AUSA was reassured the defendant wasn’t going to trial, there were no pretrial motions filed, and the defendant timely entered a plea. The government appears to have withheld the recommendation for the third offense level because the defendant decided to keep his rights to appeal his sentence and file a collateral attack. The audacity. How preserving a sentencing appeal relates to permitting the government “avoid preparing for trial” (the language of the acceptance guideline) is a mystery. Nonetheless, this AUSA gets a pass because “[n]othing in the record suggests that the prosecutor’s motive was retaliatory.” Id. at 11956.

The third acceptance point has become the refuge of lazy and fearful prosecutors. As predicted, when the government got the discretion to recommend whether that point was warranted, it quickly abused its power and expanded acceptance far beyond avoiding trial – here, preserving a sentencing appeal cost the third point! What’s even worse is that, here, the defendant was right! The North Carolina prior, turns out, was not an agg felony.

When a court tolerates the government’s misuse of the third-acceptance point recommendation, it undermines the judicial system by building in tolerance for erroneous legal decisions. In this case, for example, had the defendant not had the chutzpah to sacrifice the third point and take the case up, that erroneous decision on the agg felony would still stand. This little point is a Big Point: the government’s abuse of the third point recommendation unfairly and inappropriately chills the exercise of appellate rights. Baza-Martinez illustrates this problem in a very dramatic way. The source of all this mischief is the wrongly-decided Espinoza-Cano decision: that case cries out for en banc review.

How to Use: Baza-Martinez reinforces an old lesson: even the most unlikely felony priors may escape the agg felony designation with a little pushing. Old priors or out-of-state priors should set off a red flag that maybe the paperwork has gone missing, making the “modified categorical” approach impossible for determining whether a statutory offense is an aggravated felony.

For Further Reading: There was a rumor that this third acceptance-point debacle in the PROTECT Act was first cooked up by some young hack at DOJ who resented working on pretrial motions on his weekends. USSG 3E1.1(b) is thus the “PROTECT AUSA Weekend” amendment. Letting an AUSA determine "acceptance" is letting the fox guard the hen house -- except a fox is canny and charming.

As a sign of how flagrantly this “acceptance discretion” is abused, the issue has now cropped up in other circuits. See United States v. Sloley, __ F.3d __, 2006 WL 2642113 (2d Cir. Sept. 15, 2006), blog entry here; see also Espinoza-Cano blog here.

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


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