US v. Hernandez-Vasquez, No. 06-50198 (10-31-07). This is an important opinion on Sell forced medication. The defendant faced a 1326 charge, but was found incompetent. The government sought forced medication under Sell v. U.S., 539 US 166 (2003) and the district court granted the motion over objections, stating that "the method of treatment and type of medication to be used" was at the "discretion" of doctors within the BOP. The 9th held, in a lengthy analytical opinion, that to pass muster under Sell, the order must identify (1) the specific medication or range of medications; (2) the maximum dosages to be administered; and (3) the duration of time. In other words, the district court must engage and understand the ramifications of the medication and be conversant; there is no passing the decision to BOP or doctors. The 9th stresses the obligation of the court under Sell to monitor and oversee and to give parameters to the doctors in the context of Sell. This also puts the burden on the government to so identify. This opinion also addresses the standards of review for the various Sell factors. The 9th identifies the first factor -- the seriousness of the crime -- as a legal issue and thus reviewed de novo, while the other factors, such as governmental interests at stake, are reviewed for clear error. Finally, the 9th encourages the district court to undertake a Harper analysis as to dangerousness of the defendant to himself or others first.

US v. Preciado, No. 06-50649 (10-31-07). The 9th examines an enhancement for "use of a minor" in the context of smuggling drugs across the border. The defendant agreed to drive 150 pounds of marijuana across the border, and weeks later picked up the van with several of her children accompanying her. The youngest (age 2) was left with a sister. The defendant was caught at the border. The 9th affirmed the enhancement because the court did not err in finding that the children were used as decoys and were not just along for the ride or there because of necessity. The defendant had notice, this was planned, and there was available child care or someone to look after the children.

Case o' The Week: Winning the battle, losing the war - Salazar-Lopez and New Apprendi rule

Judge Clifton (center) delivers the battle to the Federal Defender of San Diego, but in a disappointing turn, gives the war to the government in a decision making new (and, we believe, incorrect) Apprendi law in the Ninth Circuit. See United States v. Salazar-Lopez, __ F.3d __, 2007 WL 3085906 (9th Cir. Oct. 24, 2007),decision available here.

Players: Righteous challenge by AFPD Carey Gorden, San Diego.

Facts: Salazar-Lopez was convicted at trial on illegal reentry charges. 2007 WL 3085906, *1. The stat-max for illegal reentry is two years, unless the alien had been removed after certain felony convictions. Id. In that event, the stat-max is ten years. Id.“The indictment did not allege that Salazar-Lopez had been previously removed subsequent to a felony conviction, nor did it allege a specific date for [his] prior removal.” Id. After trial, “Salazar-Lopez objected [to the PSR], arguing that only the two-year maximum under § 1326(a), and not the ten-year maximum provided for in § 1326(b)(1), was applicable to his case, because the facts necessary to sustain § 1326(b)(1)’s sentencing enhancement had not been charged in the indictment and proved beyond a reasonable doubt to a jury.” Id. (footnote omitted).

Issue(s): 1. Apprendi: “[F]or a defendant convicted of being a previously removed alien found in the [U.S.], in violation of [Section] 1326, we must resolve whether the dates of a previous felony conviction and of a previous removal from the [U.S.], subsequent to that conviction, must be alleged in the indictment and proved to a jury for the defendant to be subject to an increased sentence under [Section] 1326(b).” Id. at *1.

2. Standard of Review: “[W]e consider whether such an error, in a context that affects only sentencing, is subject to harmless error . . . .” Id.

Held: 1. Apprendi: “We answer that question in the affirmative.” [Apprendi requires that the date of a felony conviction and previous removal must be alleged in the indictment and proved to the jury, to trigger increased stat-max sentence.]

2. S.O.R.: “We answer that question in the affirmative, as well. Since we hold that the error here was harmless, we affirm the sentence imposed by the district court on this defendant.” Id.

Of Note: This interesting Apprendi decision requires the government to allege the dates of a prior conviction and removal to trigger an increased stat-max sentence in Section 1326 cases. This is good: AUSAs inevitably weasel around specifying priors and removals in indictments, to dodge defense challenges to both.

What’s bad – and frankly, unpersuasive – is the harmless error holding. In a new Ninth Circuit rule, Judge Clifton holds that Apprendi error at sentencing is reviewed for harmless error (instead of structural error). Id. at *4. To defend this rule, the Court (unsuccessfully) distinguishes a lead Ninth decision on challenges to the indictment, Du Bo. Id. The Court saddles Salazar-Lopez with harmless error review because his challenge came after trial, at sentencing. Id. When Salazar-Lopez went to trial, however, he faced a valid charge: one that carried a two-year max. The indictment wasn’t deficient. It properly alleged a crime (illegal reentry). As appellate guru Steve Hubachek has observed, this new Ninth rule runs directly contrary to Eleventh Circuit law. See United States v. Candelario, 240 F.3d 1300, 1305-06 (11th Cir 2001) (“Because it is the Government's duty to ensure that it has charged the proper offense, a defendant has no responsibility to point out that the Government could have charged him with a greater offense . . . . to preserve his constitutional [Apprendi] objection, a defendant need object only at sentencing.”) (emphasis added). Salazar-Lopez creates a huge, and important, circuit conflict – petitions are in the works.

How to Use: What is really unfair about this decision is its unanswered question, flagged by Hubachek: what was Salazar-Lopez suppose to do to earn structural error review? He couldn’t bring a pretrial challenge, because the indictment alleged a valid crime (just one with a lower stat-max than the AUSA thought). If you’re going to trial on illegal reentry charges against an AUSA foolish enough to still proceed on this type of indictment, e-mail me or Hubachek: this opinion presents many opportunities for defense mischief.

For Further Reading: Seven years ago three prescient authors flagged exactly this issue – and the importance of Du Bo for Apprendi challenges to indictments. See An Apprendi Primer: On the Virtues of a ‘Doubting Thomas,’ 24 Oct. CHAMP 18, 23 & n.53, 54. (2000). Interesting to see how settled law has – “evolved” – in seven years to accommodate Apprendi, yet avoid reversals.

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

US v. Rodriguez_Guzman, No. 06-10585 (10-22-07). The 9th (B. Fletcher joined by Hawkins) hold that although statutory rape is a per se crime of violence under the sentencing guidelines, the California statute, 261.5(c), is overly broad because it puts the age of consent at 18. The "common and accepted" definition of the vast majority of states and the model penal code set the age of consent at 16. Siler dissents from this, arguing that statutory rape is defined as sex with a minor, and it is up to the states to set the age. Siler points out that the minority of states that have a different age than 16 include some of the most populous, such as California, Texas, New York, Florida, and Illinois.

Congratulations to AFPD Michael Powell of the D. Nev. (Reno) for the win.

US v. Perez-Perez, No. 06-30341 (10-22-07). How to justify a sentence? Here, the sentencing court articulated reasons for a sentence within the guidelines. It did not explicitly discuss, or articulate the reasons, for not considering the 3553 factors to impose a lower sentence. The 9th holds that the sentencing court need only to state the reasons for a sentence so imposed, citing Rita v. U.S., 127 S.Ct 2456 (2007) and U.S. v. Plouffe, 445 F.3d 1126 (9th Cir. 2006). It need not, at least here, specifically discuss the rejection of the 3553 factors so long as it considered them. The 9th found that the district court "apparently" considered the mitigating reasons presented by defendant in its stating of the reasons for the guidelines sentence.

US v. Soltero, No. )6-50257 (10-19-07). This appeal raises several interesting sentencing issues. First, the 9th finds that the court must ensure that the defendant had read the PSR. The assurances by counsel that "we filed objections..." does not cut it. Although error occurred here, it was deemed harmless. Second, the 9th held that the condition on SR of not associating with a "disruptive group" was too broad. Although the 9th upheld conditions against associating with a specific gang, and with "known gang members," the broad prohibition sweeps to widely as it could cover labor unions and political organizations (or even FPDs?). Third, the 9th holds that it was an abuse of discretion to require the defendant to go by a surname he never really used ("What's in a name...."). Fourth, and finally, the 9th holds that the court can delegate to a probation officer the determination whether a defendant can pay for treatment. This follows U.S. v. Dupas, 419 F.3d 916 (9th Cir. 2005). The delegation is not for fines or restitution, but a part of the probation officer's determination. Dissenting from this, Hawkins argues that Dupas was a "plain error" case. Hawkins would draw a distinction, articulated in the 5th Cir., between a probation officer determining the ability to pay and the ordering to pay by the court. Here, the order left to the probation officer both functions.

Congratulations to AFPD Jonathan Libby of the L.A. Office (C.D. Ca) for the win.

US v. Salcido, No. 06-10546 (10-19-07). The 9th considered a sufficiency of evidence challenge to whether the images of minors in a child porn case were really minors. The 9th followed the other circuits in construing this as a sufficiency argument rather than an elements argument (i.e. failure to prove) and held that under the evidence presented, which included the images themselves and testimony by the detectives, met the standard.

Case o' The Week: Close Enough for Government Work, Saeteurn & Erroneous PSRs

"Close enough for government work" is close enough the Ninth in a disappointing decision. See United States v. Saeteurn, __ F.3d __, 2007 WL 2983806 (9th Cir. Oct. 15, 2007), decision available here. In Saeteurn (written by Judge Bea) the Court tolerates disputed and erroneous information in a PSR, unresolved by the district court -- despite the fact that this error will have a profound impact on the defendant's conditions of confinement. A very troubling decision that calls out for en banc review.

Players: Hard-fought appeal by ED Cal AFPD Tim Zindel.

Facts: Saeteurn pleaded guilty to drug crimes. 2007 WL 2983806, *1. The PSR (incorrectly) described him as a legal permanent resident. Id. Actually, the defense explained, Saeteurn was a citizen with a mother who had naturalized when he was minor. Id. at *1 n.1. The district court refused to resolve the defendant’s objection to the PSR, despite the fact that this error would affect Saeteurn’s conditions of confinement. Id.

Issue(s): “[I]s the sentencing judge required to resolve disputes regarding facts recited in the Presentence Investigation Report (“PSR”), when those facts do not affect the term of imprisonment imposed but may affect how the sentence is served, including a possible early release from prison?” Id.

Held: “We hold that there is no such requirement upon the sentencing judge.” Id.

Of Note: This case has the defense bar up in arms. Tim reports that the government never contested the defense objection – in other words, it was effectively conceded that the PSR was wrong. Moreover, this PSR error will have a huge impact on Saeteurn’s incarceration. Because of this alienage issue, he’ll be ineligible for a camp, will likely end up in a higher-security facility, won’t get into rehabilitative programs, and won’t be eligible for early release from prison. Id. There’s no shortage of information in a PSR that is often wrong, and that has a tremendous impact on a defendant’s incarceration: gang affiliation, conduct on pretrial release, and – most recently – allegations of prior sex misconduct. After Adam Walsh, BOP flunkies review every PSR, highlight all sex-related information, and shunt federal inmates to sexual predator civil commitment proceedings. Saeteurn is thus remarkably divorced from the reality of current practice: as PSRs become more and more critical to every aspect of an inmate’s term of custody, the Ninth responds by tolerating critical errors in the reports?

Judge Bea’s reassurance that the impact of a PSR’s error on incarceration can be corrected with a Section 2241 habeas is particularly frustrating. Id. at *4 n.12. (See DOJ's strategy for defeating 2241 habes here). While this habeas slowly grinds through the system, the inmate must wait in more-onerous conditions of confinement (based on a erroneous PSR?) Even from a pure resource-allocation perspective, this is a bad decision. Why not correct PSR errors when a defendant has counsel and everyone is prepared to litigate the issue at a sentencing hearing? Or is the Ninth hedging that by shifting the dispute from sentencing to habeas it will effectively moot many of these cases when discouraged (and unrepresented) inmates just give up?

How to Use: A petition for rehearing is brewing. In the interim, note that Saeteurn just holds that a district court can avoid resolving disputed PSR facts if these facts don’t affect sentencing. Of course, a district court retains discretion to correct PSRs – and a responsible judge will, particularly when BOP consequences are explained. Sentencing Resource Counsel Baron-Evans notes that Probation Monograph 107 provides authority to correct and amend a PSR – and has been used to black out or completely revise errors in reports.

For Further Reading: As noted above, Saeteurn hits a real nerve because BOP routinely uses PSRs to “certify” federal inmates for Adam Walsh civil commitment. Civil commitment is effectively a life sentence – and we’ve already seen examples where the PSRs of referred inmates have contained patently erroneous information about the inmate’s sexual history. Beware: every federal inmate is now being screened for civil commitment before release! See BOP Watch Blog (search “Re: Child Exploitation Conviction.”) Every federal practitioner should read the Adam Walsh Civil Commitment memo available here . This excellent memo demonstrates why pushing the district court for a “clean” PSR is so important - Saeteurn or no.

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

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US v. Saeteurn, No. 06-10401 (10-15-07). The PSR gets facts wrong, but the facts do not affect the term of imprisonment, but may affect how the sentence is served (i.e. early release). Does the court have a duty under Fed.R.Crim.P. 32 to resolve these disputes? The 9th (Bea joined by Hawkins and Tashima) hold "no." The case involved a defendant who may have derivative citizenship. The court refused to correct the PSR to so state, hedging that the defendant is either a legal resident or a citizen. The defendant argued this affected where he would serve his sentence, the conditions, and early release. The 9th grants this impact, but in analyzing Rule 32, and the PSRs, concludes that the requirement to resolve disputes focuses on the temporal element. Time is what matters; not how the time is served. The 9th also found the sentence to be reasonable, although the court engaged in weighing culpability of various codefendants, because the court examined individual background and circumstances in imposing a bottom of the guidelines sentence.

In so deciding, the 9th may have been concerned with the range of issues the court might have to face. Still, it seems to go against the thrust of the PSR being a reliable document under Rule 32. Perhaps it should not be treated as so trustworthy by the court any longer. The decision to take a pass on the PSR issue has implications. Of course it has a profound affect on citizenship matters, but also on sex offenses, and also on prior conditions. The PSR at a minimum should note the dispute and the court's decision not to resolve.

US v. Sutcliffe, No. 04-50189 (10-11-07). The defendant was a dissatisfied IT employee. He was let go by his company, and then SSNs started appearing on websites, and threats being made. The defendant apparently ignored a restraining order, and became increasingly hostile. He was eventually charged and convicted on interstate threats and transferring SSN numbers to facilitate a criminal activity. On appeal he raises numerous issues. the most interesting is the trial court's "implicit finding" that he waived counsel. He went through five appointed lawyers, suing them or attacking them or blatantly disregarding their advice. The court, exasperated, held that his actions were akin to his wanting self-representation, and the court so ordered, with an appointment of stand-by counsel. The 9th affirmed. The 9th held that the defendant's actions toward and relationship with appointed counsel made it clear that the district court did not err in finding self-representation. This finding was carried over to the defendant's argument that he should have had appointed counsel for sentencing. The 9th held that stand by counsel acted in the defendant's interests. This issue differs from trial representation, and once a conviction occurred, it could be argued that counsel was needed, especially with guidelines. The 9th however affirmed. Lastly, there was no Ameline error, because the 9th held that the sentence would have been the same. (This strikes one as being annoyed with appellant.)

US v. Richard, No. 06-10377 (10-12-07). The jury sends out a note, "We want to hear a portion of a witness's testimony." What's a court to do? Well, a good starting point would be this decision, where the 9th (Hawkins joined by Wardlaw) reverse a prohibited firearm possessor for the trial court's abuse of discretion in reading only a portion of a key witness's testimony about the weapon. The defendant was a passenger in a car, where a gun was found, and there was a lot of conflicting evidence about whose gun it was. The key witness had trouble identifying the defendant and there were credibility issues. The 9th grants that a trial judge has discretion, but delineates certain basic rules for reviewing testimony; namely, that it be in open court; that it be all the testimony, including cross; and that there be a limiting instruction. of course there might be exceptions, but the circumstances of the case are critical, and these factors usually should apply. They were not here. Dissenting, O'Scannlain argues that the abuse of discretion standard grants the court discretion, but that this new test transforms the standard into de novo, and imposes a strict test. The dissent would find that the circumstances here, even with the less than ideal playback conditions, did not create an undue emphasis on the testimony, and there did not appear to be error.

Congratulations to AFPD Anne Traum of D. Nev. (Las Vegas).

Bockting v. Bayer, No. 02-15866 (10-12-07). No. 15866 (10-12-07). This withdraws the decision and dissent of 9-27-07 and substitutes this opinion instead. the 9th (Wallace joined by McKeown) find that the admission of a child's out of court statements were trustworthy under the law as it existed pre-Crawford, and that the guarantees of trustworthiness were met. This was a child sexual abuse case, and the child victim became unavailable for testimony. Her statements to the detective and mother were let in and the state supreme court's decision was not unreasonable. In dissent, Noonan argued that the guarantees of trustworthiness were not met.

Case o' The Week: En Banc Vidal, Categorical and Modified Categorical Analysis

Judge Paez leads a (divided) en banc panel to an excellent new decision on the categorical/modified categorical analysis -- in this case, in the context of aggravated felonies for illegal reentry cases. United States v. Vidal, __ F.3d __, 2007 WL 2937015 (9th Cir. Oct. 10, 2007), decision available here.

Players: Great win by San Diego AFPD Vince Brunkow (with some mooting help by the members of the ND Cal FPD).

Facts: In 1994, Vidal plead in a California state court to “unlawful driving or taking of a vehicle,” a violation of Cal Veh. Code § 10851(a). 2007 WL 2937015, *1. This was a “West” plea, no facts about the crime were admitted, and there was no transcript. Id. In ‘03, Vidal was charged with and plead to federal illegal reentry charges. Id. At sentencing, the district court imposed an eight-level specific offense adjustment because Vidal had an “aggravated felony” – an aggravated “theft offense” (the ‘94 § 10851 conviction).

Issue(s): “[W]e consider whether a prior conviction for a violation of section 10851(a) qualifies as an aggravated felony within the meaning of USSG § 2L1.2(b)(1)(C) and 8 USC § 1101(a)(43)(G), which includes within the group of aggravated felony offenses ‘a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year.” Id. (footnote omitted).

Held: [Re: the categorical analysis]: “In sum, because section 10851(a) extends to accessories after the fact and because the generic theft offense only reaches principals and other similar offenders, we cannot conclude that the ‘full range of conduct’ covered by this California statute would sustain a generic theft conviction.” Id. at *10.

[Re: the modified categorical analysis:] “Because he did not plead guilty ‘as charged,’ and because we lack a memorialization of the terms of his plea bargain or even a judgment of conviction, the paltry record before the district court does not eliminate the possibility that Vidal was convicted as an accessory after the fact to theft, which we have concluded does not fall within the generic theft offense.” Id. at *12.

Of Note: Judge Paez spends a fair chunk of the decision staving off the dissent, by discussing the very specific – and unique – aspects of this state statute. This opinion is important beyond its narrow confines, however, because it is another benchmark in the analysis that focuses on the “practical effects and operations of statutes in the ordinary case under the categorical approach and [that] refrain[s] from speculating about the possible reach of the statute.” Callahan, J., dissenting, id. at *13. As we’ve noted before,“categorical / modified categorical” law is jurisprudential goo – and Vidal doesn’t make the prosecutor’s job any easier. Note that Judge Paez does not cite a single published decision reporting an “accessory-after-the-fact” prosecution under this California statute. By extension, it should not be necessary for the defense to actually cite a published decision with a problematic theory of prosecution, to prevail under the categorical analysis for future challenges to statutes.

How to Use: As noted above, Vidal is important because it illustrates that the defense needn’t point to an actual prosecution to prevail under a “categorical analysis” challenge. Vidal is also an important case because Judge Paez carefully surveys the permissible – and impermissible – evidence that can be used in the modified categorical analysis. Id. at *10. A charging document, written plea agreement, transcript of a plea colloquy, and any explicit fact-finding by the judge to which the defendant agreed – all fair game. Id. A minute order, a presentence report – they don’t cut it (indeed, the PSR can’t be used at all in the analysis.) Id. at 10, & n.25.

For Further Reading: Judge Paez is a (welcome) leader on Ninth Circuit criminal justice issues. He writes for the en banc panel here, in Vidal. He also was also the author of (many, many) versions of the thoughtful Ameline decision – an early Ninth Circuit Apprendi case. And of course, in one of his most memorable decisions he held that California’s Three Strike Law violated the Eighth Amendment’s prohibition on cruel and unusual punishment. Andrade v. Attorney General of State of California, 270 F.3d 743 (9th Cir. 2001), reversed (unfortunately) by Lockyer v. Andrade, 538 U.S. 63 (2003)


Steven Kalar, Senior Litigator. Website at www.ndcalfpd.org

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In re Morgan, No. 07-70201 (10-9-07). The district court rejected a Fed. R. Crim. P. 11(c)(1)(C) stipulated sentence because it did not allow a judge to judge. The rejection was "as a matter of law." Such pleas, reasoned the district court, reduced an article III judge to a mere formality. The charge was "assault resulting in serious bodily injury," there were two defendants, and the offense took place on the Hopi Indian Reservation in Arizona. The district court accepted the stipulated plea of the co-defendant (33 mos.) three weeks earlier because it was at the high end of the guidelines, but turned down this stipulated plea "as a matter of law." A stay was granted and the defendant sought mandamus to enforce. The 9th (Goodwin joined by Thomas and Bea) held that a court could not categorically reject stipulated pleas but must consider each plea individually on its facts and circumstances. The 9th reviewed at length the role of courts with sentencing bargains, Rule 11, and the power of the court to reject plea bargains under an abuse of discretion standard. The 9th concluded that the court could not categorically reject Rule 11 stipulated sentences. The court erred, but mandamus was not granted, and the plea was remanded for further consideration. This opinon is an important vindication of stipulated sentences, and pairs up with the requirement for individualized sentencing.

Congratulations to AFPD Craig Orent of D. Arizona (Phoenix) for the win.

US v. Vidal, No. 04-50185 (10-10-07)(en banc). The 9th, sitting en banc, held that a California Vehicle Code sec. 1085(a), criminalizing "theft and unlawful driving or taking of a vehicle" could not be categorically characterized as an aggravated felony for a sentence of over a year because it applies not only to principals, but also to accessories after the fact. Under the modified categorical approach, the defendant did not admit all the elements of a generic theft. Paez wrote for the court, joined by Schroeder, Reinhardt, Hawkins, Thomas, Wardlaw, Fletcher, Fisher and Gould. The analysis focused on the statute, and the use of statutory terms of "accessory" and what scope that gave the statute's reach. The majority concluded the scope was enough to take it out of a categorical definition. Callahan, joined by Kozinski, Tallman, Clifton, Bybee, and Bea dissent, arguing that the statute only applies to principals and accomplices, and that the state's jury instructions support this reading and that language stating "accessory" must be redundant. Kozinski also files a separate dissent, also joined by Clifton, Bybee and Callahan, argues that the Supremes in Gonzales v. Duenas-Alvarez, 127 S. Ct. 815 (2007) stress that a crime falling outside a generic definition must require a realistic construction, and not legal imagination.

Parle v. Runnels, No. 06-16780 (10-10-07). The 9th affirms the granting of habeas relief for cumulative evidentiary errors committed by the state trial court that resulted in a violation of due process. The petitioner killed his wife. It was a stormy relationship, with physical abuse on both sides. He argued that his state of mind was such that the conviction should be for second degree or voluntary manslaughter. The jury convicted of first. The trial court had erred in violating the psychotherapist-patient privilege, improperly excluding rebuttal testimony from a defense mental expert on bipolar or manic disorders, improperly excluded the victim's propensity for violence, improperly excluded demeanor evidence of the petitioner right after the crime, and improperly admitted character evidence against petitioner. The state courts found all these errors, but shrugged them off as harmless. The 9th (Hawkins joined by Tallman and Bea) held that such a culmination of errors was not harmless, and under Chambers v. Mississippi, 410 US 284 (1973), a culmination of evidentiary errors can violate due process when the trial is so infected with unfairness that the resulting conviction is a denial of due process. Precedent from the Supremes establish this, and in this case, the extent of the errors, the nature of the errors, and the one sided nature of the errors, all going to petitioner's state of mind, the state court's decision was unreasonable.

Congratulations to Vince Brunkow of the Federal Defenders of San Diego for the win.

0-3 On The Sentencing Certs That Matter The Most

Professor Berman is mourning denial of certiorari in one of his favorite sentencing cases and asked for nominations for other disappointing cert denials (here). The choice looks easy to me: The single most important sentencing issue, which is potentially involved in almost every federal sentencing, is whether judge-determined facts that increase the guidelines level should be found beyond a reasonable doubt, either under the Doctrine of Constitutional Avoidance or under the Fifth Amendment.

Since Booker, this huge issue has been, for the most part, ducked by the circuit courts, which tend to view the post-Booker world as if Blakely and Apprendi never happened. In Grier, the Third Circuit engaged in the first real debate on the reasonable doubt standard and shattered into five different opinions, three involving judges who believe that the reasonable doubt standard should apply. The Ninth Circuit in Pike, with considerably less analysis, has continued to underplay the issue of the Fifth Amendment’s reasonable doubt requirement, instead relying on pre-Booker caselaw to approve sentences that would be unreasonably harsh in the absence of findings made by a judge by only a preponderance of the evidence.

Both Grier and Pike were briefed to the Supreme Court in petitions for certiorari (here and here). In Grier, the Court called for a response by the Solicitor General, then on October 1st, among the piles of cert denials, both Grier and Pike ended on the cutting room floor. The reasonable doubt issue has never been addressed with any rigor in any circuit other than the Third. We need to keep raising and litigating the reasonable doubt issue, taking advantage of the analyses in the Grier and Pike cert petitions, as well as the dissenting and concurring opinions in Grier.

The reasonable doubt issue is one of the big three that the Supreme Court should address based on their exceptional importance. In Apprendi and Blakely, the Court accepted cert in the absence of any split in the circuits because of the importance of the principle behind those Sixth Amendment cases. To the same extent, the Supreme Court should accept certiorari on the Fifth Amendment question regarding reasonable doubt for sentencing factors, especially those constituting separate crimes.

The other two big Federal Defender issues the Supreme Court has ducked are the continuing viability of Almendarez-Torres (briefed here) and the construction of the good time statute (blogged here). On Almendarez-Torres, Justice Stevens and Justice Thomas sparred regarding the denial of cert in Rangel-Reyes, with Justice Stevens stating that the absence of a split was sufficient to demonstrate that no Supreme Court review is appropriate. Similarly, in Moreland, Justice Stevens asserted that the absence of a split regarding the interpretation of the good time statute – as ambiguous – made certiorari inappropriate, even though he agreed with the district court in Moreland that the statute was apparently being misinterpreted (at the expense of 36,000 years of cumulative federal prisoner time at the cost of over $800 million dollars).

Supreme Court Rule 10(c) specifically identifies questions that are important as appropriate for certiorari: where a circuit court “has decided an important question of federal law that has not been, but should be, settled by” the Supreme Court. The standard of proof for aggravation of almost every federal sentence, the amount of good time provided to over 95% of federal prisoners, and the requirement of proof of the timing, nature, and existence of prior convictions in thousands of illegal reentry and armed career criminal cases are at least important questions of federal sentencing law that the Supreme Court should finally resolve.

When I compare the cert grants regarding criminal law statutes and principles that involve maybe a handful of federal cases, it appears the cert grants are not efficiently allocating the Supreme Court’s resources to the issues that matter the most. We need to keep providing the Court the opportunity to grant certiorari in the three big issues that affect Federal Defender clients every day.


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

Case o' The Week: Microwave meth and MVRA, Brock-Davis

Microwave meth in Missoula, Montana motel makes for pretty good MVRA decision. See United States v. Rose Brock-Davis, __ F.3d __, 2007 WL 2828819 (9th Cir. Oct. 2, 2007), decision available here.

Players: Admirable win by Montana AFPD John Rhodes. Interesting opinion with some important new MVRA rules, by Judge Tashima.

Facts: A housekeeper discovered a suspicious substance in a Missoula, Montana, motel where Rose Brock-Davis and her co-D had checked-in. 2007 WL 2828819, *1. A bust revealed a microwave and microwave precursors in their car. Id. at 1. The co-D warned cops to check another motel room: in it, they found an ice box with meth chemicals, and other material associated with a meth lab. Id. at *2. Brock-Davis pleaded guilty to fraud and identity theft, and conspiracy to manufacture meth. Id. at *1. At sentencing, the owner of the second motel sought restitution for professional clean-up of the meth chemicals, lost rental value of the room, and for asbestos clean-up – required or suggested by the DEA. Id. at *2. Over defense objection, the Court issued a restitution order of $13,248.45 to the hotel for all of the above “losses.” Id. at *3.

Issue(s): “Brock-Davis contends, first, that there was no statutory authorization for the restitution imposed, because the MVRA does not authorize remediation costs for a motel room. Second, she argues that the motel was not a “victim” of her offense as defined by the MVRA. Third, she contends that there was an intervening cause of the loss to the motel that prevents her from being liable for restitution. Fourth, she urges that inconsistencies in the amounts requested invalidate them. Fifth, she argues that she should not have been liable for lost income. Finally, she contends that she should not have been held liable for costs related to asbestos testing performed at the motel because these costs were not directly related to her offense of conviction.” Id. at *1.

Held: “Brock-Davis’ first four contentions are unpersuasive but, as to the fifth and sixth issues, we conclude that the district court erred when it awarded restitution for the motel’s lost income from the motel room and when it required restitution for the total amount of the unsegregated bill, which included asbestos-related costs. Accordingly, the restitution order will be vacated and remanded as to the issues of lost income and asbestos-related costs.” Id.

Of Note: There’s a number of new Ninth Circuit rules for Mandatory Victim Restitution Act (MVRA) cases in opinion. Judge Tashima holds that the MVRA covers restitution for repair of property - like motel rooms - to their pre-crime state. Id. at *4-*5. Second - and of concern – the Court allows restitution for the second damaged hotel, even though Brock-Davis didn’t plead to the meth in that room. Id. at *6. Instead, as noted above, she plead to a conspiracy involving an entirely different “meth” motel. This is a disappointing expansion of the MVRA which sweeps in what is effectively “relevant conduct” (although this is a holding based on amendments to the MVRA). Third, the Court reaffirmed that consequential damages – like the inability to rent rooms – are not included under the MVRA, and reverses the restitution order on that basis. Id. at *9. Finally, the Court emphasized the need for a causal link between the crime and restitution ordered: here, “asbestos testing and removal” didn’t cut it. Id. at *8.

How to Use: AFPD John Rhodes admirably takes-on a restitution order on pretty unsympathetic facts: meth contamination of a motel room. The decision illustrates that the MVRA is not without its limitations, and restitution orders that seek recovery beyond damage caused by the crime are can be successfully attacked. Note also that John preserved a Booker challenge for Supreme Court review, id. at 1 n.1; an example worth following .

For Further Reading: How many Ninth Circuit decisions involve meth in a motel in Missoula, Montana? A bunch: United States v. Barragan, 263 F.3d 919 (9th Cir. 2001); United States v. Barragan-Espinoza, 350 F.3d 978 (2003); United States v. Dowd, 417 F.3d 1080 (2005), and of course, Brock-Davis. For some interesting stats on Montana “ice,” visit the Montana Meth project at http://www.montanameth.org/ .

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

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US v. Lujan, No. 02-30237 (10-2-07). The government extracts its pound of flesh, and the probation office joins in with a blood sample. This is a challenge to the DNA collection on supervised release. The defendant's SR terms did not include sample collection. The DNA Act came into effect, and she challenged collection. Alas, the 9th holds that Kincade, 379 F.3d 813 (9th Cir. 2004) (en banc) and Reynard, 473 F.3d 1008 (9th Cir. 2007) control. Reynard rejected an ex post facto challenge and Kincade rejected a Fourth Amendment challenge. The analysis in Reynard also forecloses a bill of attainder (punishment) challenge. The 9th, finally, also dismisses the separation of powers argument.

US v. Brock-Davis, No. 06-30565 (10-2-07). This is another sentencing restitution issue. Under the MVRA, the 9th holds that defendant could be ordered to pay restitution to a motel for damage to a motel room because of meth production (what, it wasn't in the minibar?). The 9th found that there was an intervening cause (Palsgraf checked out?), and that he motel fell under the definition of a "victim," testing for asbestos in the actual room related to the meth lab was permissible, and the discrepancies in the bill did not render the bill unreliable. However, the court erred in ordering lost income from the room and the unsegregated bill for asbestos testing of other rooms.

Congratulations to AFPD John Rhodes for a partial victory in this Motel Montana case.