U.S. v. Garcia-Hernandez, No. 08-50190 (6-25-09). The 9th (Ikuta joined by Kleinfeld and Bea) affirm a conviction for 1326 against a challenge for insufficiency of the indictment and admission of the statement. The indictment failed to allege the prior felony conviction. The 9th held that Almendarez-Torres controlled in that the prior conviction was not an element of the offense, and the judge can assess the prior at the time of sentencing. As for the statement, it was admissible, even with a McNabb-Mallory violation. The defendant had been apprehended on a busy day at the California (Calexico) border, and by the time his criminal record was run, it was past six hours. The delay was not unreasonable given the crush of apprehensions (five times as many) and that the delay was a result of administrative and then criminal processing rather than interrogation.

U.S. v. Cruz-Gramajo, No. 07-50381 (6-26-09) et al. In 1326 convictions, the Guidelines have no end of ways to hammer the defendant with criminal history adjustments. Points are added if they have been convicted of crimes after their return but before being found, and with committing the 1326 offense while under a state sentence even if they are found while serving that sentence. Defendants that got such adjustments attack them here on appeal, arguing that the adjustments are actually "relevant conduct" to the offense because it was during the continuing nature. In addition, defendants argue that it is error to get the adjustment for being under a sentence if they are serving the sentence while found. The 9th (Hall joined by N. Smith) reject the arguments. The focus was on the application notes, structure of the Guidelines, and the fact that the harm of 1326s are not continuing. The harm of 1326 is not related to a continuing or compounding harm. This accords with the approach of the 5th circuit. Dissenting, Pregerson argues that the Guidelines definition of relevant conduct should apply, and that the Supremes have rejected this definition in another similar statute that came from the 9th. Pregerson also looks to common sense and the fact that the defendant who gets a conviction while here illegally and serves a sentence has not, and cannot, leave to return and be found.

Although the appeals lost, the AFPDs from C.D. Ca (Los Angeles) made impressive arguments rooted in the Guidelines own statutory language.

U.S. v. Showalter, No. 08-50109 (6-26-09). The 9th rejects another attempt to get out of a plea for a fair and just reason. The 9th (Thompson joined by Pregerson and Fogel) hold that "new evidence" does not include here witnesses who were readily available at the time of the charge and plea decision. Also, a recalibration of the strength of the government's case is also not a fair and just reason. The 9th does remand for resentencing because the adjustment in this fraud sentencing for 50+ victims was not supported by evidence but was speculation.

Case o' The Week: Tran's-mission Not Clear, Says Ninth in Conspiracy Case

"Conspiracy is the darling of the prosecutor's nursery." Thankfully, the Hon. H.P. brings some well-deserved discipline to the little brat. United States v. Tran__ F.3d __, No. 07-30270, 2009 WL 1773149 (9th Cir. June 24, 2009) (decision available here).

Players: Decision by Judge Harry Pregerson (left), joined by Judge Canby; dissent by Judge Noonan.

Facts: ICE learned of a big pot operation distributed out of a warehouse. Id. at *1. One car that had left the warehouse – and stopped by ICE – was a silver Mustang driven by Nguyen, with Tran as a passenger. Id. at *1. The feds found 27 kilos of pot in the car. Id. Nguyen pleaded guilty and was called by the government at Tran’s trial. Id. at *1.

To the government’s chagrin, at trial Nguyen exonerated Tran. Id. at *2.

The government impeached Nguyen, over Tran’s objection, with an ICE agent who reported an inconsistent interview with Nguyen a week before the trial. Id. Nguyen was also impeached by his plea agreement, which said that he and Tran had picked up 70 pounds of weed for redistribution that night. Id. at *2. The government also introduced evidence that Tran had been involved in prior marijuana deals, to show his “knowledge.” Id. at *3. Tran was convicted.

Issue(s): “Tran argues that the government failed to prove that he participated in the conspiracy to possess marijuana for distribution.” Id. at *5.

Held: “The evidence presented against Tran and the reasonable inferences drawn from that evidence do not support even a slight connection between Tran and the conspiracy . . . . Tran’s presence as a passenger in the silver Mustang while the marijuana was transported, and his knowledge of marijuana and marijuana distribution was insufficient as a matter of law to establish his guilt on the conspiracy charge.” Id. at *6.

Of Note: Tran won the war, but lost several evidence battles. The Court held that Nguyen’s plea agreement was admissible as both a prior inconsistent statement, id. at *4, and as substantive evidence because it was ‘given under oath.” Id. at *5. But, note that the “given under oath theory” was not objected to at trial, and thus was subject to plain error review. Id. at *4-*5. Judge Pregerson was careful to emphasize that this theory was only reviewed for plain error – Tran does not stand for the blanket proposition that plea agreements are admissible as substantive evidence.

How to Use: While a huge defense victory, Tran is entirely consistent with a string of Ninth cases that hold that a defendant’s mere presence in a car with drugs is insufficient to support conspiracy charges. Id. at *6-*7 (discussing Sanchez-Mata and Herrera-Gonzales).

(Aside: Nice also to see that, unlike the recent Overton decision, Tran uses the proper de novo standard of review).

Tran is that rare published opinion that rigorously holds conspiracy theory to its own limits. See, e.g., id. at *6 (discussing and rejecting ‘guilt by association’ as a basis for conspiracy convictions). The opinion deserves heavy citation in conspiracy Rule 29 motions.

For Further Reading: What happened to Nguyen, the government witness who flipped his story at trial? Turns out his plea agreement was not a §5K1.1 deal (though he did do a safety-valve debrief). See PACER docket for United States v. Tam Phu Quy Nguyen, 2:06-cr-00296-JCC-9 (defense sent. mem.) Moreover, Nguyen was compelled to testify despite not having entered into a cooperation agreement. Id. at Docket #243. (A chilling prospect for any defendant just trying to plea and do his time without snitching).

Indeed, it seems from the docket that the government learned info it liked at a safety-valve debrief, then got an order of immunity and compelled Nguyen’s trial testimony. Spooky abuse of the safety-valve procedure if that’s what happened. If that is in fact what happened, the ensuing mess frankly serves the government right. (Nguyen ultimately ended up with a 24 month sentence).


Image of the Hon. Harry Pregerson from http://www.centuryhousing.org/about_us.htm

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


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U.S. vs. Tran, No. 07-30270 (6-24-09). Conspiracy, the fair-haired and frankly spoiled child of the prosecutors' nursery, received welcomed discipline by the 9th. In an opinion by Pregerson joined by Canby, the 9th looked at the evidence of a marijuana conspiracy and possession with intent. It was the usual tractor trailer, storing pot, and cars loaded and driven to a close by mall. The defendant was only a passenger. At trial, the driver of the car testified that the defendant had come along for a ride. The government went ballistic, and impeached him with the proffer interview and then the plea agreement's factual basis where he said that he and defendant had picked up and driven marijuana. The 9th found no abuse in the admission of the plea agreement for impeachment as a co-conspirator statement (yikes!) and under oath. Yet, the factual basis line was ambiguous. the other evidence was impeachment. Thus, the 9th found insufficient evidence and reversed convictions. The government had shown that the defendant was a passenger, but that was all. An amazing conspiracy opinion with a rare sensitivity to evidence. Noonan dissented, finding that there was sufficient evidence.

U.S. v. Calderon-Espinosa, No. 08-50092 (6-24-09). The 9th (Pregerson joined by D. Nelson and Singleton) remanded a 1326 defendant for resentencing. The district court erred in awarding criminal history points for the state conviction for "loitering for drug activities." The Guidelines in 4A1.2(c)(2) state that loitering and offenses known by these title shall not be counted.

Congratulations to AFPD Jonathan Libby of the C.D. Ca. (Los Angeles).

U.S. v. Paulk, No. 08-50229 (6-24-09). Per curiam, the 9th holds that crack retroactivity does not apply to mandatory minimum sentences. The amendment under 3582 does not trump 21 USC 841, but vice versa.

U.S. vs. Lopez-Velasquez, No. 07-30241 (6-23-09). The defendant was charged with 1326. He had been deported in 1994 but had not been informed of 212(c) discretionary relief. If he had been so informed, the district court believed he would not have waived his appeal because he had strong equities, including a citizen wife, and two citizen children. The court granted his motion to dismiss the indictment. The 9th (Reinhardt joined by Pregerson and Storm) agreed and affirmed the dismissal. The government had conceded that 212(c) relief was available, but that the defendant at that time would not have met the 7-year residency requirement. The 9th reasoned that he arguably might have (he was two months shy possibly at filing but arguments could be made that he was in the country longer than 7 years).

U.S. vs. Sanchez, No. 07-50564 (6-23-09). Circuit conflict! Remember in the days post-Booker when appeals from pre-Booker sentencings still were percolating? The 9th in Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc) had allowed limited remands to the district court for the court to determine whether it would have imposed a different sentence if at the time of sentencing the guidelines had been advisory and not mandatory. The 9th had implied that the standard would be generous. In this case, the defendant had been sentenced for mail fraud and money laundering related to a charity. On an Ameline remand, he argued that the court should consider his post-sentencing rehabilitation. The court allowed evidence, but then said it would not have changed its sentence. The 9th (Thompson joined by Peterson and Fogey) held that the 9th follows the 2nd Circuit, and the 6th and 7th, and will not consider post-sentence rehab in a sentencing in an Ameline remand. The remand is to determine at the time of the first sentencing whether the court would have, under those factors, impose a different sentence. This is in conflict with the 3rd and 4th (!) Circuits that have a full sentencing with all factors considered.

Keesee vs. Power, No. )7-56153 (6-23-09). The 9th (Grabber joined by Noonan and O'Scannlain) consider whether a state court's decision that a petitioner's committing a crime while on probation is akin to an Almederaz-Torres prior conviction and can be decided by a judge for sentencing enhancement purposes. Under AEDPA , the 9th has to follow a state court's "reasonable" interpretation of law, even if the 9th would have disagreed with it. Such is the case here.

Holley v. Yarborough, No. 08-15104 (6-16-09). The 9th issues habeas relief to a petitioner, vacating convictions for lewd acts with children. The 9th (Smith joined by Kleinfeld and T. Nelson) hold that petitioner's Sixth Amendment rights to confrontation were violated when the court prevented cross examination about a child's (11 years old) prior statements regarding sex and about how others had made sexual advances toward her. The 9th also questioned the admission of evidence that the petitioner had guns in the house, and the admission of several sexually explicit magazines. The facts of this case raised real questions of guilt, and the prosecutor's closing focused on the credibility of the child witness.

U.S. v. Leniear, No. 08-30199 (6-18-09). The 9th (Tallman joined by W. Fletcher and Gould) held that the district court lacked jurisdiction to amend or modify a crack sentence under amend. 706 because the guideline would not have changed. The guideline offense level would have stayed the same because of the multiple counts adjustment and grouping. The 9th did find that the appeal waiver of the plea did not bar appeal because the issue was whether the court had jurisdiction to modify the sentence, and it was not an attack on the imposition of the sentence.

U.S. v. Overton, No. 08-30075 (6-18-09). The 9th affirmed convictions for sexual exploitation of a minor and possession of child porn. The 9th (Tallman joined by M. Smith and Reavley) held there was sufficient evidence of exploitation (it was not abuse of discretion to let certain photos in). The 9th also found that there could be separate convictions for 2252(a) and 2255(b) (receipt and possession of child porn). The Blockburger test indicates two separate offenses. The sentence of 235 months was not unreasonable.

Case o' The Week: Lacivious Is as Lacivious Does, Overton and Child Pornography

"Bad facts make bad law," the chestnut goes. Pretty grim facts in this child porn case certainly don't help in an opinion that spawns a bevvy of new holdings in the field. United States v. Overton, __ F.3d __, No. 08-30075, 2009 WL 1694228 (9th Cir. June 18, 2009), decision available here.

Players: Hard-fought case by Montana Defender Anthony Gallagher. Decision by Judge Tallman (left).

Facts: Overton was charged with a number of child porn and sex offenses for sexual contact with his 17-year old step-daughter, and for taking nude pictures of her. Id. at 1. None of the five pictures at issue displayed sexual activity, but three of the images depicted the minor’s genitals or pubic area. Id. at *5. The district court denied Overton’s Rule 29 motion at the close of the government’s case during a bench trial, rejecting the defense argument that the pictures did not portray “sexually explicit conduct” required for conviction. Id. at *3. Overton was convicted and sentenced to 235 months. Id. at *3.

Issue(s): “Overton first claims that the Government’s proof was insufficient to sustain a conviction on the sexual exploitation counts [the child-pornography counts alleging violations of 18 USC § 2251(a).]” Id. at *4. “Overton’s only quarrel regarding his sufficiency of evidence claim is his continued insistence that the nude photographs he took of [the minor] do not depict ‘sexually explicit conduct’ within the meaning of 2251.” Id. at *5.

Held: “Here, the Dost factors, while not definitional, firmly substantiate the finding that these three images depict the lascivious exhibition of the genitals or pubic area.” Id. at *6.

Of Note: There’s many important little holdings for child porn cases in this opinion, none of them good. First, Judge Tallman decides what is apparently a matter of first impression by articulating the standard of review for a finding, at trial, that an image is “lascivious.” Id. at *6. The Ninth imports a standard from the (progressive) Fourth Circuit, and holds that the standard of review is the “significantly deferential, clearly erroneous standard.” Id. at *6. Not, in other words, de novo review. For that proposition, the opinion cites Wiegand, a Ninth Circuit case considering the standard of review for a Fourth Amendment motion – not a trial (and Overton doesn’t reveal that difference). Id. at *6.

The opinion also ignores the rule that review of a denial of a properly-preserved Rule 29 motion (as was done here) is reviewed de novo. See United States v. Gonzalez, 528 F.3d 1207, 1211 (9th Cir. 2008) (“When a claim of sufficiency of the evidence is preserved by making a motion for acquittal at the close of the evidence, this court reviews the district court's denial of the motion de novo.”) The S.O.R. seems off-kilter, here.

The opinion also has a new approach to the infamous Dost factors for determining what is child porn. (Dost is the district court case that set forth six factors for this analysis.) Id. at *5. Judge Tallman places much weight on the fact that Overton produced these images, and that he directed the minor’s poses, in concluding that the images were “lascivious.” Id. at *7. In other words, Dost has devolved into a subjective analysis of the intent of the defendant-photographer, instead of an objective analysis of the legal significance of the images. Whether that new approach is correct or not (and we think not), it is an important development to bear in mind when fighting allegations that a defendant possessed child porn that only qualifies under the “lascivious” statutory definition. See 18 USC § 2256(2)(A)(v).

How to Use: Overton will see the most play in Fourth Amendment challenges where agents base a search warrant on an image that doesn’t involve overt sexual conduct, but instead a nude minor. See generally United States v. Battershell, 457 F.3d 1048, 1051 (9th Cir. 2006). Unfortunately, the three images described in Overton will now presumably set the bar for “lascivious” images. Id. at *5. For better or worse, those Overton descriptions will now be a starting point for analysis of the “lascivious-ness” of an image under the federal child porn statute.

For Further Reading: Not all the news was bad for sex-crime cases this week. In Holley v. Yarborough, __ F.3d __, 2009 WL 1667867 (9th Cir. 2009), Judge Milan Smith wrote for a panel that granted habeas relief for improper limitation on the cross-examination of a sex-crime victim.



Image of the Hon. Richard C. Tallman from http://www.uscourts.gov/ttb/2007-09/newLeadership/index.html

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

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Nijhawan: Sixth Amendment Non-Event Based On Government Concession?

The Supreme Court in Nijhawan held that “aggravated felony” for civil immigration purposes includes statutes with “circumstance-specific” characteristics, as opposed to statutes strictly defined by categorical elements. Because “aggravated felony” has significance for immigration crimes, we need to be aware of the decision. However, Nijhawan’s effect in our § 1326 cases should be limited by the government’s concession that, for the prior conviction to constitute an “aggravated felony” in the criminal context, the characteristics necessary to the “aggravated felony” definition must be proved to the jury beyond a reasonable doubt.

The alien in Nijhawan had a fraud conviction that did not have an element of loss over $10,000.00, but he stipulated to millions in loss at sentencing. The definitional section of “aggravated felony” – 8 U.S.C. § 1101(a)(43) – outlines dozens of potential prior convictions that can have devastating immigration consequences. Most prior convictions are defined categorically, based on the judicially recognized facts established by the jury instructions, the plea colloquy, or other judicially recognized facts. This case involved a prior conviction with a characteristic not usually included as an element – the amount of loss. In a decision authored by Justice Breyer, the Court unanimously held that the immigration authorities could establish “circumstances-specific” characteristics of the prior conviction, thereby disqualifying the alien from immigration benefits based on an “aggravated felony.”

Constitutional criminal procedural protections would make this case seriously troublesome if applied to the increased sentences for “aggravated felony” prior convictions under 8 U.S.C. § 1326(b). However, two Supreme Court cases set the stage for a government concession that sought to take Apprendi issues off the table:

• In Leocal, the Supreme Court stated in footnote 8 that the definition of “aggravated felony” had to be the same for both civil immigration and criminal purposes; and

• In Shepard, the Supreme Court held that, in the criminal context of the Armed Career Criminal Act, characteristics of the prior conviction that are not judicially established cannot be considered because, under the Doctrine of Constitutional Avoidance, use of extrinsic police reports would create a Sixth Amendment problem.

The government resolved the problem by making a concession that defeated the petitioner’s argument in favor of Taylor’s modified categorical approach: “The Government, however, stated in its brief and at oral argument that the later jury, during the illegal reentry trial, would have to find loss amount beyond a reasonable doubt, eliminating any constitutional concern.”

The kinds of cases we are likely to see in the criminal context with “circumstance-specific,” as opposed to “categorical”, characteristics are relatively limited: fraud and tax losses greater than $10,000 (§ 1101(a)(43)(M)); faking passports with an exception for first offenders aiding family members (§ 1101(a)(43)(P)); certain sex crimes “committed for commercial advantage” (§ 1101(a)(43)(K)). These issues are open to full litigation in the first instance in § 1326 cases. The Court noted in Nijhawan the evidentiary effect of the defendant’s stipulation on amount of loss as sufficient under the clear and convincing standard for the purposes of the civil immigration proceeding. Counsel for aliens facing these types of charges need to include in their tactical considerations the future potential uses of the record as establishing a prior conviction for immigration and criminal purposes.

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

Case o' The Week: Fond Adieu, Rule 32 -- Cruz-Perez and Notice Before Above-Guideline Sentences

Notice anything odd about a district court doubling a guideline sentence without advance warning to the defense, or a continuance of the sentencing hearing? Judge Tallman doesn't (right), in United States v. Cruz-Perez__ F.3d __, No. 06-30343, 2009 WL 1607897 (9th Cir. June 10, 2009), opinion available here.

Players: Hard-fought case by E.D. Wa. & Idaho AFPD Kathleen Moran. Decision by Judge Tallman, joined by Judges Beezer and M. Smith.

Facts: Cruz-Perez pleaded guilty to his third § 1326 conviction, after receiving 24 month sentences for his previous two illegal reentry cases. Id. at *1. He acknowledged when he pleaded guilty that the stat max was twenty years for this crime. Id. (Ed. note: reading this fact in the first paragraph bodes ill for the rest of the decision. . .)

The PSR incorrectly put Cruz-Perez at 46-57 months, and the government recommended a sentence in that range. Id. The defense then won a Taylor challenge to the use of a California prior, lowering the guideline range to 21 to 27 months. Id.

At the same hearing, the district court explained that it was considering going above the guidelines; defense counsel did not request a continuance or object to lack of notice. Id. at *2. The district court then essentially doubled the guidelines and imposed a sentence of 48 months. Cruz-Perez appealed.

Issue(s): “Cruz-Perez argues that the district court erred in imposing a sentence above the Guidelines range without providing him adequate prior notice under Federal Rule of Criminal Procedure 32(h).” Id. at *2.

Held: “The district court appropriately exercised its discretion when it sentenced Cruz-Perez to 48 months, a sentence above the applicable Guidelines range. The grounds for the district court’s imposition of this above-Guidelines sentence were clearly presented in the PSR and explored by the parties in both their written submissions and oral arguments. No objection for untimely notice or request for continuance was made. Even assuming that the sentence imposed was subject to Rule 32(h), Cruz-Perez received sufficient advance notice of the factors that warranted the sentence imposed.” Id. at *4.

Of Note: The gravamen of the defense complaint is that it was given inadequate notice, and thus never had full chance to be heard by the district court before the sentence was essentially doubled without advance notice or a continuance. Given the nature of this challenge (that the defense never got a fair fight on the dramatic sentencing increase) it is unfortunately ironic that the Ninth submitted the case without oral argument. See id. at *1 n.1.

How to Use: This short opinion undertakes a brief analysis of Irizarry, then concludes that Federal Rule of Criminal Procedure 32(h) (the rule requiring notice before an upward departure) is essentially dead letter law: it remains in effect, but the justification for the rule no longer exists. Id. at *3. Judge Tallman assures us that it doesn’t matter whether the increased sentence is a guideline departure or a variance when the grounds for the above-guideline sentence were identified before the hearing and explored by the parties. Id. at *4.

It is important, however, to emphasize that this is a plain-error case: no defense objection was made at sentencing to the Rule 32(h) violation. (There is curiously little discussion of plain error in the decision, making it dangerously vulnerable to incorrect citation as a general Rule 32(h) holding). The first and best way to fight Cruz-Perez notice problems is to object at sentencing, and request a continuance if an above-guideline sentence is threatened or imposed.

For Further Reading: The Cruz-Perez decision incorrectly flips the lead Supreme Court decision’s name: the correct cite is Irizarry v. United States, __ U.S. __, 128 S. Ct. 2198 (2008), decision available here. See id. at *3. In Irizarry, Justice Breyer persuasively questions in dissent why Federal Rule of Criminal Procedure Rule 32(h)’s notice provisions would apply to upward departures, but not to upward variances. 128 S. Ct. at 2204. The ABA and the Rules Committee are now taking a look at amendments to Rule 32. Unfortunately, thanks to DOJ’s active involvement in the amendment process some of these amendment “cures” may be worse than the Rule 32 disease.

Image of "Chief" Judge Richard Tallman (?!?) from http://www.abanet.org/deathpenalty/recentevents/images/chief_judge_richard_tallman%20.jpg

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

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U.S. v. Cruz-Perez, No. 06-30343 (6-10-09). The court said that the sentence was going to be high, so what further notice do you need. That's the gist of this opinion authored by Tallman and joined by Beezer and M. Smith. The defendant plead to a 1326 charge. There was no plea agreement, it seems. He had prior reentries, for which he got 24 month sentences, and he had immediately returned. The PSR calculated him as an aggravated felony enhancement, and his guideline range as 46 to 57 months. The government filed a sentencing recommendation for a guideline sentence. The court had expressed concerns about his past. At the sentencing, the court found that the defendant was not a +16 under a categorical approach, and so his guidelines went down to 21-27 months. The court stated that the prior sentences obviously served no deterrent effect, and that the present guidelines were too long. After hearing argument, a 48 month sentence was imposed. Defendant appealed, arguing that he did not receive adequate notice and that due process was violated. Not really, opines the 9th, because under Irizarry, the court does not have to give notice for a variance because the defendant understands the guidelines are advisory and he knows the maximum sentence. As for Burns, and Rule 32, well, the 9th sidestepped, saying that it did not need to decide whether this was a variance or a departure because the important thing was that notice was given, and that each side knew what the arguments were for, and what sentences were being asked. The 9th said it was hard to imagine what else defendant could have argued, since he knew the cards on the table, and what the court was considering as well as the government. The court considered the 3553 factors, weighed and balanced, and the sentence was imposed considering facts already disclosed and argued about.

Case o' The Week: Prior Too Old is Sentencing Gold, United States v. Amezcua-Vasquez

A great decision by Judge William Canby (right) reverses an illegal reentry sentence as substantively unreasonable. United States v. Amezcua-Vasquez,__ F.3d __, No. 07-50239, 2009 WL 1508566 (9th Cir. June 1, 2009), decision available here.

Players: Big victory by San Diego Assistant Federal Public Defender Janet Tung.

Facts: Javier Amezcua-Vasquez, a Mexican national, became a permanent resident of the U.S. in ‘57 when he was two. Id. at *1. In ‘81, he stabbed someone in a bar fight and got four years on attempted voluntary manslaughter and assault charges. Id. In ‘06 – when he was 51 years old – he was ordered removed to Mexico because of his ‘81 convictions. Id. He was arrested two weeks later trying to reenter the U.S., and charged with attempted illegal reentry. Id.

He pleaded open, and was hit with +16 OL for the 25-year old conviction. Id. at *2. Only one of Amezcua-Vasquez’s priors was recent enough to count for criminal history calculations. Id. The district court imposed an in-guideline sentence of 52 months. Id.

Issue(s): “Amezcua contends that the sentence imposed by the district court is unreasonable because it is the product of a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A), which is predicated on a conviction that is too old to score under the Guidelines’ criminal history provisions.” Id. at *3.

Held: “It is not per se unreasonable to apply the enhancement when the conviction is too stale to be counted for purposes of criminal history . . . We conclude, however, that under the circumstances of this case, it was unreasonable to adhere to the Guidelines sentence, with its full 16-level enhancement under § 2L1.2(b), because of the staleness of Amezcua’s prior conviction and his subsequent history showing no convictions for harming others or committing other crimes listed in Section 2L1.2. We therefore vacate Amezcua’s sentence, and remand for resentencing.” Id. at *3.

Of Note: One can count on both hands the number of sentences that have been reversed as substantively unreasonable after Booker – in any appellate court. To have this sentence reversed sends a strong message that illegal reentry sentences are out of whack. See also id. at *5 n.5 (listing Supreme Court vacate-and-remand orders of illegal reentry sentences after Gall).

How to Use: The “critical question” in this decision is its discussion of prior convictions, recidivism, and the unusual sentencing scheme in the illegal reentry guideline. Id. at *4-*6. For better or worse, the Guidelines use prior convictions as a predictor of recidivism – hence the “Criminal History” axis of the guideline table. Because the predictive value of priors for recidivism decreases with time, however, there are time limits for Criminal History convictions. See USSG § 4A1.1. The illegal reentry guideline, by contrast, has no such time limits. Section 2L1.2(b) dramatically increases the offense level based on the seriousness of prior offenses with no link to the risk of recidivism. Id. at *4. Therefore, this guideline has no staleness restrictions on using priors. Id. The jewel of Amezcua-Vasquez is Judge Canby’s explanation that, because there are no time limits on priors in § 2L1.2, it is substantively unreasonable to increase “a defendant’s sentence by the same magnitude irrespective of the age of the prior conviction a the time of reentry.” Id. at *4 (emphasis in original).

We’ve been challenging § 2L1.2's unrestricted use of old priors to escalate the offense level for years. See United States v. Lara-Aceves, 183 F.3d 1007 (9th Cir. 1999) (rejecting challenge to guidelines’ counting of prior for illegal reentry guideline and rejection from criminal history). Now, after Booker, a district court is substantively unreasonable if it increases an illegal reentry sentence based on old priors without mitigating because of the age of the convictions. Potent stuff.

For Further Reading: U.C. Berkeley (Boalt) Prof Zimring (left) threw a few welcome bombshells about the guidelines at the Sentencing Commissions’ recent set of hearings at Stanford. See written testimony here. One interesting point was that the Guidelines use old parole approaches towards priors and sentencing – but don’t include the mitigating aspects of parole (like early release). As with much of the testimony criticizing the guidelines (and there was a lot of it), the Commission seemed (politely) unimpressed.

Image of the Hon. William Canby from http://www.law.umn.edu/lawreview/alumni/distinguished/canby.html

Image of Boalt Hall Professor Zimring from http://www.law.berkeley.edu/php-programs/faculty/facultyProfile.php?facID=127

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

U.S. vs. Ensminger, No. 08-30183 (6-3-09). Defendant plead guilty to a sex offender registration (SORNA) charge. As sentencing approached, a district court in the M.D. Fla held that SORNA was unconstitutional because it was outside of congressional commerce clause authority. The defendant sought to withdraw his guilty plea as this was a "fair and just" reason under Rule 11 and not a lark. "No" said the district court, sentencing him to 21 months, and scoffing at the other decision because it was out of district, out of circuit, and not convincing. The 9th (Tallman joined by W. Fletcher and Gould) found no abuse of discretion. The 9th discussed the standards for withdrawal. It recognized that a transformative decision, like from the Supremes, or circuit changes, present a fair and just reason. Here, though, the decision was non-precedential, non-binding, and from another court. The 9th noted that the constitutionality issue had been raised in other courts and circuits, and defense counsel was aware. The 9th only focused on whether the court abused its discretion to allow withdrawal, and explicitly did not decide the constitutionality of SORNA. That is left open for another appeal, and another panel.

Scott v. Schriro, No. 05-99012 (6-2-09). The 9th (per curiam -- Kozinski, Farris and Bea) holds that petitioner's IAC claims were not procedurally defaulted and were in fact exhausted. Petitioner had been convicted of being an accessory in a child murder. He raised IAC claims in his habeas focused on the failure to present mitigating evidence of brain damage, involuntariness of confession, and sentencing mitigation (including a proferred plea to second degree murder which the petitioner never read). The state court on post conviction denied an amendment to his petition on these claims because it believed amendment was barred by the procedural rules; it was not. The claims were presented then to the state supreme court. The 9th thus found that the claims had been presented, and perserved, and so no default and exhaustion took place. An evidentiary hearing was ordered, and the 9th strongly suggested that the district court consider the views of the victim's father, who did not want the death penalty for petitioner. This opinion presents an unusually clear discussion of the default and exhaustion doctrine.

Congratulations to AFPDs Michael Burke and Jennifer Garcia, D. Arizona (Phoenix) for the win.

U.S. v. Amezcua-Vasquez, No. 07-50239 (6-1-09). In an important sentencing decision, the 9th (Canby joined by Kleinfeld and Bybee) holds that the defendant's sentence for an illegal re-entry after deportation and enhanced by an aggravated felony was substantively unreasonable. The defendant had been in this country for almost 60 years. He had become a permanent resident in 1957. In 1981, when he was 26, he was convicted of aggravated assault in a gang-related bar fight. His 4-year sentence was suspended, but his probation was eventually revoked and he served a couple of years. He was removed to Mexico in 2006 at the age of 51. He was caught two weeks after his removal. At sentencing for illegal re-entry after removal, he was determined to be an aggravated felon, and got 52 months. The district court looked at his other criminal contacts that were too stale to count under criminal history (DUIs, battery, reckless driving) and determined that under 3553, the need for punishment and deterrence required the sentence. The 9th vacated. The 9th stressed that under these specific circumstances, the court's sentence failed to give due weight to the 3553 factors. The seriousness afforded the +16 adjustment was unreasonable given the staleness of the convictions (they were not aggravated felonies back in 1981), and other mitigation. The sentencing court could consider the nature of the prior and the criminal history, but had to mitigate or consider the staleness of it. This decision is not inconsistent with 9th precedent in U.S. v. Whitehead, 532 F.3d 991 (9th Cir. 2008) (per curiam) and U.S. v. Ruff, 535 F.3d 999 (9th Cir. 2008). The 9th reasoned that those cases looked at defendant-specific characteristics under 3553, while here, significantly, the focus should be on the offense-specific sentencing factor. That is, the bare adjustment nature of the guidelines. The 9th implies that the severity of the adjustment was Procrustean under these circumstances. The 9th states that the decision here is limited, and confined to the specific facts. However, the reasoning, and the analysis of defendant-specific versus offense-specific (and hence, guideline specific) is significant.

Congratulations to Janet Tung, Deputy Federal Defender, S.D. Ca (San Diego).

U.S. v. Begay, No. 07-10487 (6-1-09). The 9th (Reinhardt, Hug, and concurrence by Bright) vacated first-degree murder convictions for insufficient evidence and issued an order to show cause against the prosecutor for mis-citing the record. The case involved two murders on the Indian reservation. The defendant exchanged words with the driver and passenger of a stopped car, walked back to his car, got a shotgun, and proceeded to fire through the driver's side, killing the driver and the passenger. This was a terrible crime, but where was the evidence of premeditation? Put another way, why was it first degree and not second degree or manslaughter? On appeal, defendant argued that no evidence was produced to show premeditation. The evidence presented by the government was that the defendant was "pretty drunk," but nothing else about state of mind, demeanor, reflection, or planning. Other offenses (i.e. second degree) were equally plausible. The 9th agreed, and vacated the convictions. The gun counts remain. The 9th criticized the government heavily for arguing premeditation by describing the defendant as acting "calmly" and "methodically" with absolutely no evidence.

Congratulations to Dan Kaplan, an AFPD in the D, Arizona (Phoenix).