Case o' The Week: The Maltese Falcon in San Diego, Fourth Amendment "Protective Sweeps"

It was a dark night in the City that Never Sleeps. It looked like Lemus was still living there, see? But if the copper remembered right, other family lived there too.

Could be just another Dashiell Hammett rag -- but it wasn't. It was United States v. Lemus, __ F.3d __, No. 08-50403, 2009 WL 2999361 (9th Cir. Sept. 28, 2009), decision available here.

Players: Decision by Judge Bybee, joined by Judges Gould and Rawlinson.

Facts: San Diego detectives had a history with Lemus, knew that he had been arrested with drugs and a drive-by shooting, and that he had cousins who had been arrested for violent crimes. Id. at *1. The detectives went to serve an arrest warrant at Lemus’s residence. Id. As they spoke with him he started to back through a sliding glass door of the apartment; the detectives seized him “before he could fully enter to doorway and retreat into his living room.” Id. at *2 (emphasis added).

Officers then went in (without a warrant) and “scanned” the house. Id. They saw what looked like the butt of a gun in a couch, lifted the cushion, and found a .9mm. Id. Lemus was charged with being a felon in possession. When the district court denied his suppression motion Lemus took a conditional plea and appealed.

Issue(s): “Juan Hernan Lemus appeals the district court's denial of his motion to suppress incriminating evidence discovered during a warrantless search of his apartment following his arrest.” Id. at *1.

Held: “Even assuming that there were no articulable facts which would warrant a reasonably prudent police officer to believe that Lemus’s apartment harbored an individual posing a danger to those on the arrest scene, we nevertheless affirm the district court's denial of the suppression motion. Because the area in which the police officers discovered the incriminating evidence ‘immediately adjoin[ed] the place of arrest,’ the officers were justified in conducting a search of that area without either probable cause or reasonable suspicion, Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), and anything in plain view that they discovered in the course of that search could be seized without violating the Fourth Amendment, Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990).” Id. at *1.

Of Note: This opinion is exceedingly odd. The fact section is written in a colloquial style that borders on pulp fiction; sounds like the Ninth is channeling Sam Spade. Id. at *1-*2. Maybe this is an innovative new style for Ninth Circuit opinions, or maybe the case is an inside joke. Whatever it is, the “omniscient narrator” technique is a peculiar way to lay down a fact pattern in an important Fourth Amendment decision.

How to Use: Harmonize this: if the cops arrest you and pull you out of a car, and you’re under their control, a “protective search” of the car is unreasonable under the Fourth Amendment. Arizona v. Gant, 129 S. Ct. 1710, 1729 (2009). But if the cops arrest you and pull you out of the doorway of your home, and you’re under their control, the cops can still search your home without a warrant? Pity that Lemus wasn’t arrested in his car instead of his home– there’s more Fourth Amendment protections on four wheels, it appears.

Even worse, Judge Bybee takes pains to explain that the cops didn’t even need articulable facts supporting the belief that there was danger in the room searched. Id. at *4. Here, because Lemus was arrested in an area “immediately adjoining” the living room searched, “a limited search of that room was proper without either reasonable suspicion or probable cause as a protective search incident to arrest.” Id.

Worse still, the Court appears to have latched onto this theory despite the fact the government never argued it and instead pitched the search as a “protective sweep.” Id. at *4 n.2.

Beware of the Lemus hurdle when cops rummage around homes after doorway arrests – and anticipate heated factual disputes on what was in fact “immediately adjoining.”

For Further Reading: For an interesting history of the “search incident to arrest” theory and the ebb and flow of Fourth Amendment protections in this area since Chimel v. California, see Peter W. Fenton and Michael B. Shapiro, Search & Seizure Commentary, 33-JUL CHAMP 50 (July 2009), available here.

Image of Sam Spade from http://www.cultcase.com/2007/07/from-sam-spade-to-harry-callahan.html


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


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U.S. v. Samueli, No. 08-50417 (9-24-09). The 9th (Gould joined by Fernandez and England) dismiss an appeal for lack of jurisdiction. The defendant had an 11(c)(1)(C) plea rejected by the court. He did not withdraw from his guilty plea, but sought interlocutory review, arguing that this disputed issue was final, that the issue evades review, and that it is separate from the merits. The 9th sidesteps the first prong (final order) because neither the second and third prongs had been met. The merits of rejection of the plea could wait until after sentencing in this case.

U.S. v. Sipai, No. 08-10300 (9-24-09). The defendant got a 3553 break when he was sentenced for crack. Despite the career offender status, and many criminal history points, the court went from 210-262 mos. to 144 mos. based on defendant's diminished mental abilities, nature of criminal record, the small amount of drugs involved, and similar sentences. Other sentences were run concurrent. The government and defense counsel seemed to concur. Subsequently, on Nov. 1, 2007, the Commission reduced the crack guidelines. The defendant now asked for a resentencing under the retroactive authority of 3582(c)(2). The district court held that it lacked jurisdiction to further reduce its sentence, and the 9th, on appeal (Hug joined by Bea and Edmunds) agreed. The 9th cited U.S. v. Leniear, 574 F.3d 668 (9th Cir. 2009), which held that for a retroactive reduction under 3582, the guidelines had to have been lowered, and that consistency with Commission policy statements is required. The policy statements read that if there is a non-guideline sentence under Booker, "generally" a further reduction is not appropriate. Here, the sentence was a non-guideline one. [Ed note: This opinion should not be read as meaning that once a non-guideline sentence was imposed, jurisdiction is lost. The court can determine what it considered in imposing the prior sentence, and if guidelines had entered into the equation, then the court could use its discretion under the "generally" language.]

U.S. v. Bragg, No. 08-10221 (9-23-09). Is a remand for "making a better record" a form of reasonableness determination light? It sure looks that way in this case. The defendant had tax problems in the year 2000. Okay, a bit more severe than just tax problems because he ran a business that was supposed to take care of employment taxes for businesses that subscribed. He paid state employment taxes of 8 million and zero for the feds. That certainly got the attention of the IRS. The defendant plead guilty to tax fraud. The PSR showed that he had two sex misdemeanors, four DUIs, and an obstruction of mail. He explained, though, that he had alcohol problems, but was now sober; that the tax problem was for one year; that he was Marine wounded in a classified incident (verified); that he did charitable work; that he worked for his father's company (employing 700), and that the company might fold if he was not there; and that he could pay back sizable chunks of restitution. The government wanted imprisonment for two years to send a message. The court observed that messages are worth about as much as the postage to deliver, and that he did not set great store by it. He was impressed with the defendant's efforts, and payments, and so put him on probation. The 9th had problems with the court's reasoning. The panel (Noonan joined by Berzon) thought that the court had to explain more, and it took issue with some of the court's reasoning. The panel said that the staleness of the offense was out of the defendant's control; that he did work for "Dad" and that the comments of "deterrence" had to be more than a "hunch" that it did not work. The panel cited the Commission as believing that deterrence in tax cases did work (ed note: questionable on that one). The sense is that the panel did not like the result, and wanted more explanation. Dissenting, N. Smith calls them on it. Under Whitehead, 532 F.3d 991 (9th Cir. 2008) (en banc), the district court is given great discretion. To Smith, the court examined the 3553 factors, weighed and balanced, discussed what was important to the court, and why the sentence served the ends of the statute. This was good enough.

U.S. v. Watson, No. 08-10385 (9-23-09). When you go to San Francisco, be sure to get the permission of your probation officer. A condition of SR here was that the defendant not return to San Francisco without the okay of his p.o. Why? Well, the defendant, convicted of carjacking, ran with a bad crowd, had little adult support, and made questionable friends. The court said that he should meet some nice people instead in Oakland or San Jose when he got out. Defense counsel objected, and after heated argument, the court said "take an appeal" and maybe it won't be waived. The 9th upheld the condition by dismissing the appeal. The panel (Clifton joined by Silverman and M. Smith) first held that there was not error in lack of notice. Sure, this condition was sprung upon defendant at sentencing but the court had advised of the penalties (could be severe) at the change of plea, and there was spirited discussion. A delay would not have changed much. As for the condition, well, it gave them pause; after all, one could leave one's heart in SF, especially if one's family was there (defendant's mother had been hospitalized). However, the p.o. could approve it, and the court had upheld geographical restrictions in the past if it comported with rehabilitation goals. The conditions here, as to the city, was to keep the defendant away from his prior unsavory friends, and for him to start a new life elsewhere, or at least for SR. With that, the panel also found that the condition was therefore not illegal, and the waiver of appeal acted as a bar. The comment by the court -- take an appeal -- was ambiguous(?) as to providing a right, and was not clear because the court had said that there was a waiver.

U.S. v. Lemus, No. 08-50403 (9-22-09). It was a room with a view. The question was whether the police could search it as adjacent to the site of arrest to protect themselves? The 9th said "yes." The police had an arrest warrant for the defendant. They drove to his apartment, which was in a small complex, where other family members lived. They saw the defendant, and called out to him that they were there with a warrant. He started to back into his apartment. The police arrested him either in his living room or just entering, with the sliding door open. The police then looked into the living room, adjacent. One officer saw what he thought was a butt of a weapon sticking from the couch; he lifted the cushion, and it was a firearm. He then got a warrant. The defendant argued that his arrest was outside the living room, and the police could not conduct a warrantless search. The 9th (Bybee joined by Gould and Rawlison) held that the police could search the room as a precautionary matter without reasonable suspicion or probable cause. Buie, 494 US at 334. The search was in the area immediately adjoining the area of arrest and one from which an attack could be immediately launched. These conditions were present here. The weapon's butt was in plain view and could be discerned.

In re Complaint of Judicial Conduct, No. 08-90211 (9-22-09). Kozinski dismisses a complaint alleging judicial misconduct filed by a defendant. The defendant alleged that the court conducted improper ex parte communications by meeting with the probation officer. Kozinski stated that such communications were a normal part of the administration of justice, and not improper. See Canon 3A(4). What is of note, though, is Kozinski reiterating that judges must "advise defendants of any facts conveyed by probation officers during off-the-record communications, if the judge plans to rely on those facts during sentencing." U.S. v. Gonzales, 765 F.2d 1393 (9th Cir. 1985). This is a point that should be emphasized if there are such meetings; it may sometimes be forgotten in practice.

U.S. v. Grajeda, No. 07-50387 (9-21-09). The 9th wrestled again with the categorical approach as it applied to a California statute -- assault with a deadly weapon or by means likely to produce great bodily harm (Calif. penal Code 245(a)(1) -- and whether it is a crime of violence under 2L1.2(b)(1)(A)(ii). The 9th (Paez joined by Fisher and Robart) held that it does. The focus was that the statute itself requires an element of force.

Chioino v. Kernan, No. 08-15265 (9-21-09). In Cunningham, 549 US 270 (2007), the Supremes told California that "Yes, Blakely really means that judges cannot decide facts that mandatorily enhance a sentence." The Sixth Amendment as applied to sentencing also applies to California. A shudder went through the state, and the state supreme court in People v. Sandoval, 41 Cal. 4th 825 (2007) held that the proper remedy was to have a new resentencing under a reformed sentencing scheme. The petitioner here had been sentenced to a higher aggravated term, and the district court found Cunningham error. Concerned with ex post facto issues, the district court ordered that the petitioner be sentenced to the mid-range, as was the statutory max determined by the Supremes under the determinate sentencing scheme. The state appealed, arguing that the court could not impose such a sentence, and that the matter should be remanded for resentencing to play out. The 9th (M. Smith joined by Silverman and Clifton) agreed. The reasoning was that the sentencing scheme was judicially reformed after Cunningham, and, see Booker, no ex post facto bar exists.

Case o' The Week: Don't Trust Prison Cooks - Contreras and the Abuse of Trust Adjustment

Do the cooks that make prison "food" enjoy a special "position of trust?" Not so much, says the Ninth in a good new sentencing case. United States v. Contreras,__ F.3d __, No. 08-50126, 2009 WL 2960623 (9th Cir. Sept. 17, 2009), decision available here.

Players: Decision by Judge Tashima, joined by Judges Hawkins and visiting Judge Bright.

Facts: Ms. Contreras was convicted of conspiracy drugs and was hit with a two offense level specific offense adjustment at sentencing for “abuse of trust.” Id. at *1 (citing USSG § 3B1.3). The adjustment was based on the access Ms. Contreras’ job as a prison cook gave her to her drug clients, the prison inmates. Id. She appealed.

Issue(s): “Prior to 1993, the Sentencing Commission offered little guidance on this question [of what constituted a ‘position of trust.’] . . . Operating under this spare formulation, we held that the hallmark of a position of trust was ‘the extent to which the position provide the freedom to commit a difficult to detect wrong.’ United States v. Hill, 915 F.2d 502 (9th Cir. 1990) . . . In 1993, however, the Sentencing Commission substantially reformulated application note 1 to better distinguish cases warranting the enhancement . . . .The new language of the application note places a significant limit on the types of positions subject to the abuse-of-trust enhancement.” Id. at *2-*3 (some internal quotations and citations omitted). “We cannot reconcile the two tests in this case . . . because the two are at loggerheads.” Id. at *4.

Held: “We conclude that to the extent Hill conflicts with application note 1 of § 3B1.3, Hill is no longer good law; it has been overruled by the 1993 amendments to § 3B1.3's commentary.” Id. at *5. “[W]e reverse and remand for resentencing without the imposition of the § 3B1.3 enhancement.” Id.

Of Note: One of the many reasons we admire Judge Tashima is that he can’t resist a good zing. In footnote four, he dryly observes that one previous Ninth Circuit panel had endorsed the old, broad Hill test in a memorandum disposition because Hill “comprehensively discussed” the amended “abuse of trust” guideline. Id. at *3 n.4.

The problem with this mem dispo is that the 1990 Hill case preceded the 1993-amended guideline by three years. Id.

A nice illustration of why mem dispos shouldn’t be cite-able.

How to Use: The good new rule on the “abuse of trust” guideline brings the Ninth up to speed on the amended guideline. There’s two other interesting aspects to this short opinion as well. First, Judge Tashima fully identifies – then artfully dodges – the unresolved question of the standard of review of a sentence on appeal. Id. at *1 n.2.

The other intriguing analysis is the panel’s defense of its power to articulate the new rule; note that this three-judge panel effectively overrules the old Ninth Circuit Hill case. Id. at *4. To accomplish this, Judge Tashima holds that the 1993 amendments overruled the old Hill case, and because no subsequent panel had attempted to reconcile Hill with the amended guideline the Contreras panel could acknowledge the overruling. That’s a handy principle to tuck away for future fights before three-judge panels.

For Further Reading: As we’ve observed before, Judge Tashima has long been a respected leader in the Ninth Circuit on tough issues of federal sentencing. He was impetus behind the brave (and correct, albeit overruled) decision that struck down the core federal drug statute as unconstitutional after Apprendi. See United States v. Buckland, 289 F.3d 558 (9th Cir. 2002) (en banc). He’s staunchly limited the expansion of the “modified categorical” approach when a conviction lacks an element of the generic offense. United States v. Jennings, 515 F.3d 980 (9th Cir. 2008). He understands the injustice of sentencing on acquitted conduct, and has given some pointers on how to tackle this travesty. United States v. Grissom, 525 F.3d 691 (9th Cir. 2008). And he’s always called ‘em like he sees ‘em: he’s scorned post-Booker appellate review as an “empty formality,” United States v. Carter, 560 F.3d 1107, 1124 (9th Cir. 2009), and has “curse[d] the opacity of the guidance [the Ninth Circuit has] received from above” in the post-Booker era. United States v. Autery, 555 F.3d 864, 878 (9th Cir. 2009).

For a collection of interesting cases from this always-interesting Judge, visit our blogs here.



Image of prison food from http://www.correctionsreporter.com/2009/06/09/fewer-meals-served-means-less-dollars-spent/

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

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Hamilton v. Ayers, No. 06-9908 (9-18-09). The 9th grants sentencing relief in this pre-AEDPA petition. The petitioner killed his wife for the insurance money. His trial lawyer had little experience (none capital) and mitigation and sentencing preparation appeared to be an afterthought. The 9th (Wardlaw joined by W. Fletcher and Paez) found IAC in the penalty phase, stressing the lack of investigation, preparation, and actual performance.

U.S. v. Contreras, No. 08-50126 (9-17-09). The 9th is over the Hill. That is, this panel has overruled U.S. v. Hill, 915 F.2d 502 (9th Cir. 1990), which required an adjustment for abuse of a position of trust if the defendant had "the freedom to commit an offense." Since Hill, the Guidelines Commission revised 3B1.3 commentary, emphasizing that the focus on abuse of position is whether the position involved any "professional or managerial discretion." In the case here, the defendant worked as a cook in a prison. She was only cursorily searched each day upon entering, and so used this freedom to smuggle in a buffet of drugs (heroin, meth, and marijuana) into the prison and dispense it to the inmates (seconds on the brownies?). At sentencing, she was given a two-level bump for abuse of position. The 9th (Tashima joined by Bright and Hawkins) reversed and remanded. The Hill test, the panel decided, was stale, and had been supplanted by new commentary. The 9th itself had chaffed under it, limiting its application, and the panel effectively said that Hill should have been tossed after 1993. Indeed, the panel looked to the 11th Circuit, which had a case on all fours (also a prison cook) where the abuse of position adjustment was not warranted because there, as here, the cook had neither professional nor managerial discretion. The 9th here clarifies the meaning of this adjustment, in that discretion means great leeway in making judgments that are given great deference. The defendant here had none.

U.S. v. Chaney, No. 08-10298 (9-15-09). Defendant asked the district court for a reduced sentence based upon the change in crack guidelines. The defendant had received a 103 month sentence rather than a 235 month sentence based on cooperation. The plea was a stipulation, in which the government had argued for the sentence against a PSR that had higher guidelines because the government felt a 9-year sentence was appropriate. The district court exercised its discretion and denied the motion for reduction. On appeal, the defendant argued that the district court could not just exercise discretion, but should be required to conduct a two-step analysis: what would the sentence have been if the amended guidelines were in effect; and then should the sentence be reduced. The 9th (Hawkins joined by Hug and B. Fletcher) rejected the two-step framework as not being required by the plain language of 18 U.S.C. 3582(c). The court had to simply determine if the amendment had reduced a sentence, look at the 3553 factors, and exercise discretion. The court did not have to recalcitrate the sentence it would have given then. In this case, the court exercised its discretion in looking at the original sentence and the reasons and its decision not to reduce the sentence was affirmed.

Schad v. Ryan, No. 07-99005 (9-11-09). The 9th (Schroeder and Reinhardt) remands a capital habeas for an evidentiary hearing to determine whether petitioner was diligent in his efforts to develop the state record during state post-conviction proceedings. There were a number of continuances as counsel sought to develop and gather evidence. It appears that the court looked at the length of time, rather than assessed whether is was reasonable. Here, the petitioner had to track down witnesses, work with recalcitrant family members, and get experts. The 9th also holds that if the court finds that petitioner's efforts to develop the post-conviction record were reasonable, then an evidentiary hearing should be held to determine if there was IAC at sentencing given that the evidence petitioner presented to the district court was stronger than what the state court considered. Rymer dissented from this, arguing that the petitioner's efforts were not reasonable and that AEDPA deference should occur. Rymer stresses the 34 continuances, the funding given, and the nearly four years of delay, plus the efforts that were undertaken at sentencing originally.

Nash v. Ryan, no. 06-99007 (9-11-09). The 9th (Paez joined by Reinhardt and Thomas) hold that a Rohan (competency) hearing was required. The 9th rejected the state's arguments that competency was not an issue on an appeal from a denial of petition. The 9th now holds that competency is required, and extends Rohan v. Woodford, 334 F.3d 803 (9th Cir. 2003) to the appellate state. The petitioner, by the way, is 94.

Congratulations to AFPD Paula Harms of the D. Az (Phoenix) for the win.

U.S. v. Johnson, No. 08-30094 (9-10-09). Appealing, to the 9th, means never having to say you're sorry, at least for the 3rd point under 3E1.1(b). The defendant here strolled into a bank and garnered the attention of the teller, and an off duty officer. Maybe it was the hood flipped up; maybe it was the whispering with another suspect; maybe it was the looking around. In any event, the defendant left when the officer approached. The officer followed them when they drove away, and stopped them. The officer and his partner asked the suspects to get out, and conducted a frisk, where weapons were found. The defendant filed a suppression motion, which lost in district court. He then entered a conditional plea. The government did not move for the 3rd point of super-acceptance under 3E1.1(b) because of the conditional plea and possible appeal. The district court declined to award the third point. On appeal, the 9th (Tallman joined by Beezer) affirmed the denial of the suppression motion, and the denial of the third point. The 9th reasoned that the PROTECT ACT gave the prosecutor the "power" but not the "duty" to so move, and that the prosecutor's decision was rational and not arbitrary because of the defendant's decision to contest his suppression issue with a conditional plea. The 9th stresses that the prosecutors make the call. M. Smith concurs in the judgment, but dissents from the analysis because he would still find that the court has the power to assess the third point if the conditions were met of agreeing to plea guilty before trial. Although this is a disappointing decision, the point can be made, and had, as a result of plea negotiations. If the prosecutor wants a plea and not a trial, the third point can be negotiated to still allow a conditional plea. After all, we are in a post-Booker sentencing world and a sentence outside the guidelines may be more of a worry to the prosecutor than the third point.

U.S. v. Juvenile, No. 07-30290 (9-10-09). The 9th (Reinhardt joined by Tashima and McKeown) holds that retroactive application of SORNA to juveniles violates the Ex Post Facto clause and therefore is unconstitutional. The 9th examined the historical underpinnings of juvenile determinations, purposes of juvenile deliquency findings, the lack of findings or comments in the AG's regulations making SORNA applicability to juveniles, the silence of Congress, and the pain and hardship that would be inflicted on former juvenile delinquents who had gone on with their lives.

Case o' The Week: No Acceptance for (Un)Appealing Decision, Johnson

In 2003, a Republican Congress turned the Sentencing Guidelines system on its head with the PROTECT Act and the Feeney Amendment - an amendment sponsored by then-freshman Representative Tom Feeney, who is now under a corruption investigation.

One of the most subtle, but insidious, aspects of the PROTECT Act was stripping the power to determine "acceptance of responsibility" from its traditional home with the judiciary. Instead, the PROTECT Act vests the power to grant the third acceptance "point" with the defendant's adversary - the prosecutor.

We in the defense bar immediately predicted widespread abuse by AUSAs and an unfair chilling effect on motions and appeals -- despite the fact that the amended guideline purported to limit itself to preserving the government's trial resources.

We were right. United States v. Johnson,__ F.3d __, No. 08-30094, 2009 WL 2883020 (9th Cir. Sept. 10, 2009), decision available here.


Players: Decision by Judge Tallman (upper right), dissent and concurrence by Judge M. Smith. Hard-fought appeal by Alaska AFPD M.J. Haden.

Facts: Johnson, a felon, and two colleagues were pulled over by U.S. Marshals after the trio acted suspiciously in a bank. Id. at *1-*2. The Marshals found a gun on Johnson and he then charged in federal court with a violation of 18 § 922(g)(1). Id.

The district court denied Johnson’s suppression motion. Eight days after the suppression motion was denied, Johnson entered a conditional plea. Id. at *2.

Apparently breaking ranks with the standard practice in the district, Johnson’s AUSA refused to move for a reduction of the third offense level for acceptance of responsibility under USSG § 3E1.1(b). Id. (Section 3E1.1(b) bestows on the government the power to move for the third “acceptance point” when the defendant’s timely acceptance of responsibility permits it to avoid preparing for trial -- see guideline here.) The government rationalized its refusal by pointing to the work that would be required by Johnson’s appeal of the suppression motion. Id. at *2.

The district court conceded that the government spent no effort preparing for trial, but nonetheless refused to give the third acceptance point. Id. at 2.

Issue(s): “The government did not file a § 3E1.1(b) motion for the third-level reduction, citing Johnson’s stated intention to appeal the suppression order. Accordingly, the issue before us is whether the allocation and expenditure of prosecutorial resources for the purposes of defending an appeal is a rational basis for declining to move for the third reduction point.” Id. at 6.

Held: “We hold that it is. When § 3E1.1(b) speaks of conserving government resources in the ‘prosecution’ of the defendant’s ‘misconduct,’ it means more than simply trial preparation.” Id. at 6.

Of Note: We are, shall we say, "unpersuaded" by this decision and start with the opinion’s core fallacy. Judge Tallman reassures us that “In the Commission’s view, the government is in the best position to evaluate whether the defendant has [accepted responsibility and preserved government resources.]” Id. at 5 n. 5 (emphasis added).

This claimed pedigree is not true.

The amended Guideline § 3E1.1(b) most certainly did not come from the Sentencing Commission, but instead was forced down the Commission’s throat by a Republican Congress in the regrettable PROTECT Act. See USSG § 3E1.1 comment. (“Section 401(g) of Public Law 108-21 directly amended subsection (b) . . .”) In short, this amendment is the same, suspect, Congressionally-dictated approach as the crack guidelines – and Rita / Gall taught us how little judicial deference those types of guidelines deserve.

We’ve cried foul since § 3E1.1(b) was first amended. Just as we’ve predicted, lazy or fearful prosecutors have consistently abused their new power, ignoring the words “for trial” and punishing defendants for preserving appellate rights. The government’s abuse of its third-point power has a dramatic and pervasive chilling effect on pretrial motions and on appeals – and all of this from an amendment that the Sentencing Commission never even considered, much less submitted to empirical study and comment.

In a persuasive dissent, Judge Milan Smith thoughtfully parses the actual words of the amended guideline, and rightly worries about the abuse of the government’s new power.

Johnson should go en banc: this issue has a much greater impact on a broad range of cases than those outside of the trenches realize. In effect, Johnson levies a one-offense level toll for bringing a suppression motion and preserving an appeal -- even if a trial date is never even remotely contemplated. That motion/appeal tax is going to let a great deal of very suspect investigation and police work fly under the radar, and all of this is being done under the guise of an amendment that expressly refers to trial resources. Those who care about the Fourth Amendment and Miranda rights should be very troubled by the unchecked growth of Section 3E1.1(b).

How to Use: If Johnson survives, one of two things should happen. Ideally, district courts will deconstruct § 3E1.1(b) to shreds, and will offset any withheld third acceptance point with a Rita / Gall § 3553(a) reduction.

If that does not happen, and the government withholds the third point to punish a defendant for preserving an appeal, don’t plead until the Friday before the Monday trial. The defendant is still entitled to the full two acceptance points from the court – even for a very late plea. See § 3E1.1(a). Show AUSAs what expending resources really means: let the government wade through in limine motions, disclose Brady and Jencks, identify snitches, and fly in all of its witnesses for trial. If the defendant is losing the third point anyway, why reward a bullying AUSA with an early plea?

For Further Reading: For our repeated warnings of § 3E1.1(b) abuse visit our blogs here.


Image of the Hon. Richard Tallman from http://law.cua.edu/News/2006%20Stories/Sutherland%20Cup%20Showing.cfm


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


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U.S. v. Charles, No. 08-50086 (9-9-09). The 9th considered a categorical challenge to a career offender determination. There are some interesting twists. The defendant pled to being a felon in possession and possession with intent. The court determined he was a career offender and sentenced him to 204 months. On appeal, the defendant challenged the use of a prior state offense (California's Health and Safety 11351.5 drug statute). He argued that in reviewing the elements of an offense, the court should also include common law defenses, such as entrapment, which the defendant bears the burden of proof. The 9th (Callahan joined by Canby and Wardlaw) first wrestles with the waiver. The 9th finds that the appeal was not waived because the plea agreement was ambiguous. The plea's waiver language dealt with if the court sentenced as a non-career offender, leaving open the possibility of appealing a career offender determination. Second, the 9th reviewed this under plain error because no objection was raised. Third, the 9th looked at the argument, and wrote that an argument could be raised, but that it fell short here. The precedent cited, Gomez v. Mendez, 486 F.3d 599 (9th Cir. 2007) raised the possibility, but there as here, it fell short. This panel stresses that the elements of an offense must be examined, and not defenses. Still, it may pay to look at exceptions for such elements.

U.S. v. Bride, No. 08-30266 (9-8-09). The defendant was sentenced in 2006 for crack offenses to a stipulated sentence under 11(c)(1)(C) of 19 years. His guideline range was at level 42 (360 to life), and the sentence was 11 years under the range because of 3553 factors. The defendant asked the district court to resentence under 3582(c)(2) because the guidelines for crack had been lowered. The district court declined because it lacked authority, and the 9th (B. Fletcher joined by Tashima and Thomas) affirms. The sentence was not connected to the guidelines, but arrived at through a 3553 analysis, and was binding. The sentence had been reached between the parties, seemingly apart from any anchoring or dependency on the guidelines, and so the subsequent lowering of the guidelines would not give the court authority to resentence. The 9th stresses that it is not enough that the guidelines were considered in a plea, but rather the plea terms must key on the guidelines and indicate that the sentence was based upon them. The plea here never linked the sentence explicitly to the guidelines, although a base offense level for quantity was mentioned. The sentence was a result of 3553 factors.

Smith v. Lockyer, No. 07-16875 (9-8-09). The 9th affirms the granting of a habeas petition. The petitioner faced charges of burglary, robbery, and a sex offense. The jury was deadlocked on the sex offense. The holdout believed the DNA may have been compromised. Apparently, the state judge was shocked with this, and leaned on the holdout juror. The court gave an Allen instruction, and then a modified Allen instruction, found out the numerical split, and culled certain testimony and directed the jury (hint hint) to look at it. The state courts found no coercive error but the district court, and the 9th (Schroeder joined by Berzon) did. Although the law on Allen instructions and the extent of judicial involvement is surprisingly limited, the state court has greater leeway. Still, in the 9th's analysis, the trial court went from judicial impartiality to advocacy in its pressure and use of evidence. As such, the state courts acted unreasonably. N. Smith dissents, urging a deference under AEDPA to state courts. Smith complains that it is not enough that error be found, but that the state courts could be said to have acted not unreasonably in finding no coercive effect in the commenting on evidence after knowing the division.

Case o' The Week: Deja Vu, All Over Again - Knight and Supervised Release Rules

In the 1993 comedy, "Groundhog Day," the hero (played by Bill Murray) finds himself waking up every morning to the exact same day, in the exact same place, over and over again -- never breaking free of the endlessly repeating loop.

Defendant Douglas Knight had a similar experience -- except his loop was supervised release and jail. United States v. Knight, __ F.3d __, No. 08-30372, 2009 WL 276189 (9th Cir. Sept. 2, 2009), decision available here.

Players: Decision by Judge Pregerson, joined by Judges Rymer and Tashima.

Facts: Douglas Knight was sentenced to 18 months custody for possession of stolen guns, and three years of supervised release. Id. at *1. Knight was revoked, then revoked, and revoked yet again, earning a total of forty-two months custody on revocations and tallying fifty-seven months of supervised release. Id. (The statutory maximum term of supervised release for this offense is three years, and the maximum custodial sentence for a revocation is two years). Id. at *1 & n.3.

Knight appealed, arguing that the district court improperly calculated the maximum terms of imprisonment and supervised release. Id. at *2.

Issue(s): Imprisonment: “1. Whether under the amended version § 3583(e)(3) the district court must reduce the maximum term of imprisonment to be imposed upon revocation of a defendant’s supervised release by the aggregate length of any and all terms of imprisonment imposed upon revocation of supervised release?”

Supervised Release Term: “2. Whether under the amended version of § 3583(h) the district court must reduce the maximum term of supervised release to be imposed upon revocation of a defendant’s term of supervised release by the aggregate length of any and all terms of imprisonment imposed upon revocation of supervised release.” Id. at *1 (emphases in original).

Held: Imprisonment: 1. “[U]nder the amended version of § 3583(e)(3), it is clear that defendants are not to be credited for prior terms of imprisonment imposed upon revocation of their supervised release.” Id. at *3.

Supervised Release: We “hold that the maximum term of supervised release to be imposed following multiple revocations of supervised release must be reduced by the aggregate length of any and all terms of imprisonment that have been imposed upon revocation of supervised release.” Id. at *6 (emphasis in original).

Of Note: In 2004, Knight’s original sentence was a year and a half with a three-year term of supervised release to follow. In 2009, he’ll have served nearly four years in custody on the supervised release violations alone. In Knight, the Ninth is forced to wrestle with the inanity that produces this result: the PROTECT Act of 2003.

The PROTECT Act, a Republican masterpiece of legislation, featured such components as the Feeney Amendment -- the sentencing straw that broke the Supreme’s back and that helped spark the Booker revolution. After the PROTECT Act was passed, Florida Representative Tom Feeney (right) went on to be named one of the most corrupt members of the House by the Citizens for Responsibility and Ethics in Washington ("CREW") and has been the subject of an FBI investigation relating to convicted lobbyist Jack Abramhoff. See CREW article here.

“Congress is presumed to know existing law,” observes Judge Pregerson in Knight. Id. at *5. Congressmen, however, may be a different matter.

How to Use: As Knight illustrates, our clients can – and do – get more custody time on supervised release violations in the aggregate than they received for the original substantive offense of conviction. These longer jail terms are imposed without a jury finding, and with minimal due process protections (multiple hearsay is admissible at revocation hearings, and the proof standard is only a preponderance). For our clients who may not be “amenable to supervision,” these realities of supervised release might change the cost-benefit analysis of a decision to go to trial.

For Further Reading: Dallas AFPD Douglas Morris has written a series of superb articles on supervised release. For his insightful discussion on the PROTECT Act's impact, see his piece in the Federal Sentencing Reporter, FYI: Supervised Release and How the PROTECT Act Changed Supervised Release, at 2006 WL 1895181, 18 Fed. Sent. R. 182 (Vol. 18, No. 3, Feb. 1, 2006).

Image of Representative Tom Feeney from http://projects.washingtonpost.com/congress/members/f000447/



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


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U.S. v. Knight, No. 08-30372 (9-2-09). The Knight may be darkest before the dawn, but under this holding, the dawn, free of SR, will be a long time coming. Here, the 9th considers the 2003 amendment to the SR statute, 3583, and whether a court, upon SR revocation, must reduce the maximum term of imprisonment by prior terms of imprisonment. The 9th (Pregerson joined by Rymer and Tashima) hold that the court does not. Thus, a court can revoke, sentence to, say, 24 months, and then sentence again to 24 months, and then again, all without credit subtracted from the maximum term of SR. (Think of this as Zeno's paradox in SR form). The good (?) news is that the 9th also held that the maximum term of SR to be imposed after revocation must be reduced by the terms of imprisonment, and the 9th said "yes." In its holdings, the 9th follows every other circuit in the first instance and the 5th Circuit in the second. As for the defendant here, he will end up serving possibly 42 months on a sentence he originally got 18 months on and 36 months SR (stolen firearms). The 9th remands for resentencing so the court can mix and match punishment and SR.

U.S. v. Hickey, No. 05-10004 (9-2-09). This was a real estate investment scheme that became fraudulent. The defendant sought very interlocutory appeals, which were rejected. From them, however, comes some interesting issues. First, the 9th chastises the district court for daring to proceed with the case while the 9th's mandate had not yet issued. The 9th (McKeown joined by Noonan and Reinhardt) let things go, because the matters were all calendar based, but it wags its finger at the district court and says, "don't do it again." Another interesting issue is whether a superseding indictment, missing one count, replaces the original indictment, so that the missing count's activities are not tolled and may be barred by the statute of limitations. The 9th says "no." Indictments toll the activities. In a concurrence, Reinhardt raises an eyebrow, wondering what the word "supersede" really means if not to replace. He recognizes that he is bound by precedent, but chafes at the precedential restraints when it comes to this interpretation. The 9th takes little time with the other issues, affirming conviction and sentence. It finds no abuse in the district court precluding a defense expert's opinion that the scheme, if allowed to keep going, would have become profitable. There is no requirement that there be a loss for fraud. There were also no sentencing errors.

U.S. v. Inzunza, No. 05-50902 (9-1-09). This is an appeal from a conviction of a former San Diego City Council member, and a government's appeal from acquittals and a new trial for another Council member (Zucchiet). The 9th (Canby joined by Bybee and M. Smith) hold that the convictions of Inzunza are affirmed. The 9th finds that there was evidence of a quid pro quo in an honest services charge, and that the honest services need not be for private gain (joining the majority of circuits). The 9th also finds improper the government rhetorical device, "Say it ain't so, Joe" (the Black Sox scandal and Shoeless Joe Jackson being asked by a young boy about his involvement). Although questionable, this does not require reversal or error for commenting on silence.