Sunday, July 26, 2009

Case o' The Week: Unauthorized Search Does Not Compute - Payton, the Fourth Amendment and Computer Searches

We've often bemoaned the irony that the Ninth Circuit is home to so many cutting-edge technologies, yet the Ninth's Fourth Amendment jurisprudence on cyber searches lags years (or decades, or centuries) behind. See, e.g., Giberson blog here.

Happily, this week Judge William Canby (above, back row, second from right) gets the Ninth back on track in an admirable new Fourth Amendment decision on computer searches, United States v. Payton,__ F.3d __, No. 07-10567, 2009 WL 2151348 (9th Cir. July 21, 2009), decision available here.

Great win by ED Cal AFPD Eric Kersten. Decision by Judge Canby, joined by Judge Wardlaw.

Facts: Cops believed the residents of Payton’s home were selling drugs, and got a search warrant. Id. at *1. The warrant permitted a search for pay/owe ledgers and financial records, but did not explicitly authorize the search of computers. Id. The search revealed no evidence of drug sales. Id. A cop did, however, find a computer with an active screen saver. Id.

By moving the computer’s mouse the cop stopped the screen saver; he then clicked on a file icon and opened it. Id. That file was an image that ultimately lead to a federal child porn prosecution. When the district court denied a suppression motion Payton pleaded guilty pursuant to a conditional plea.

Issue(s): “The search warrant did explicitly authorize a search of Payton’s premises to find and seize, among other things, ‘sales ledgers showing narcotics transactions such as pay/owe sheets,’ and ‘financial records of the person(s) in control of the premises.’ The crucial question is whether these provisions authorized the officers to look for such records on Payton’s computer.” Id. at *3.

Held: “We conclude that, under our recent and controlling precedent of . . .Giberson . . ., as applied to the circumstances of this case, they did not.” Id.

“[T]he search of Payton’s computer exceeded the scope of the warrant and did not meet the Fourth Amendment standard of reasonableness. There is no question that computers are capable of storing immense amounts of information and often contain a great deal of private information. Searches of computers therefore often involve a degree of intrusiveness much greater in quantity, if not different in kind, from searches of other containers. Such considerations commonly support the need specifically to authorize the search of computers in a search warrant, as Officer Horn requested in the present case. Despite his request, the warrant did not explicitly authorize the search of Payton’s computer, and it incorporated Officer Horn’s affidavit only to support probable cause, not to describe the objects to be searched or searched for. The after-the-fact testimony of the issuing judge that he intended expressly to authorize the search of computers could not cure the failure of the warrant to authorize the search of computers. . . .” Id. at *2.

Of Note: We weren’t big fans of the 2008 Giberson decision on warrantless computer searches. See blog here. Payton, fortunately, helps bring the Ninth’s computer-search law back on par with the technological sophistication of this Circuit. In a particularly thoughtful decision, Judge Canby so thoroughly limits Giberson to its facts that the ‘08 opinion is now just an unfortunate Fourth footnote.

Payton provides three core principles that will resonate in future search cases. The first is the holding, quoted above, that computer searches reveal so much information, and such private information, that a reasonable computer search will often require specific authorization in a warrant. Id. at *2.

The second key holding is that computers are not always mere “containers” that can be searched if any evidence sought in the search warrant could be found within. A computer’s “bare capability” to contain evidence sought in a warrant is not – alone – sufficient to permit a search of a computer as a “container”(like a briefcase).
Id. at *3.

The third principle is a pretty clear endorsement of judge-imposed “limiting protocols” in search warrants for computers.
Id. at *5. (Note that the magistrates of the Northern District of California have created a protocol for computer searches that is required -- or rather, strongly encouraged -- for all federal search warrants in this district. This laudable approach gets a solid nod from the Ninth in Payton, and deserves to be emulated in other districts and in state courts. To get a copy of this protocol from an executed search warrant, contact the ND Cal FPD.)

How to Use: Payton’s core concept is that computers are not mere “containers” that can be reasonably searched without specific authorization in a warrant. Of course, there's an important caveat: if there are other “legitimating facts” suggesting that evidence may be within the computer a warrantless seizure may be “reasonable” – that’s Giberson (fake printed I.D.s laying around a computer). But Giberson should be the exception for computer searches, not the rule.

’s important rule limiting the "container" search theory should be pushed in other contexts, like smartphone and pager searches.

For Further Reading: DOJ has many policies in place for the search of computers: its manuals can be found here.

Image of Hon. William Canby from

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


Labels: , , , , ,

Friday, July 24, 2009

U.S. v. Nobari, et al., No. 06-10465 (7-24-09). So, in this drug conspiracy case, the 9th finds that the prosecution improperly argued racial stereotypes and ethnic generalizations, appealed to prejudice, and in argument asked the jury to send a message and not let the government down. Reversal? No, because of lack of prejudice given the supposed overwhelming nature of evidence. Harmlessness was found by the 9th (Clifton joined by Gould and Bybee) despite an entrapment defense, which explained the "caught red-handed" evidence the 9th stressed. Moreover, the 9th's reasoning that it also must be harmless because, after all, the jury rejected the entrapment defense makes one wonder whether the only prejudice can be with an acquittal. This was a meth conspiracy, where the prosecution raised multiple times the roles that certain ethnic or racial groups play in drug conspiracies ("middle Easterners" and "Mexicans"). The defense objected to these references, and to the references in closing about a 10-year old boy leaving a fast food restaurant where the deal took place and how the drugs would affect him, and also about not letting "the City of Turlock" down. All these things the 9th spends time, and cites, going over and finding error, and being "troubled," but in the end affirming the convictions and sentence. Although the convictions stand, the language and the analysis of the error can be used to prevent such prosecutorial references in the future.
U.S. v. Harris, No. 08-10370 (7-24-09) (per curiam). The 9th holds that Nevada convictions for robbery and attempted robbery categorically qualify as crimes of violence under the Guidelines' career offender definition. Conduct under the statute that did not fit the generic definition of robbery nonetheless would fit extortion. The Nevada statute tracks the California statute upheld in U.S. v. Becerril-Lopez, 541 F.3d 881 (9th Cir. 2008).

Thursday, July 23, 2009

U.S. v. Colson, No. 08-10287 (7-23-09). In an order, the 9th lowers the boom on Lowe, 136 F.3d 1231 (9th Cir. 1998). In Lowe, the 9th held that a district court's discretionary denial of a 18 U.S.C. 3582(c)(2) sentence reduction motion was unreviewable on appeal. Now, in light of Booker and Carty, 520 F.3d 984 (9th Cir. 2008) (en banc), Lowe is no longer good law because any element of a sentencing decision, discretionary or not, may be "unreasonable." Thus, sentence reduction decisions are now reviewable for abuse of discretion. The order was issued by a panel of Kozinski, Hawkins, and Gould.

Congratulations to AFPD Jason Carr of D. Nevada (Las Vegas) for the win allowing review.

U.S. v. Guzman-Padilla, No. 08-50114 (7-23-09). That deflating sound you hear in reading this opinion is Fourth Amendment protections. The case concerns a vehicle driving in a recreational area a couple miles from the Mexican border. The area is a valley, surrounded by sand dunes, which require special vehicle modification to enter, except if one comes in from Mexico, and hence illegally through that path. The border patrol saw this SUV's rate of speed (25 mph instead of 5 mph), without a recreational "flag" or pass, and going in too straight a direction. The Border Patrol decide to stop the vehicle and employed a "controlled tire deflation device" (CTDD), also known as spikes, to bring the vehicle to a halt. The resultant search turns up drugs. The district court allowed the stop and seizure and the 9th affirms. The 9th (Fogel joined by Pregerson (!) and Thompson) first classifies this as an extended border search. The 9th goes through an extended, and useful, discussion of the distinctions between a border search, an extended border search, and other searches, and the levels of certainty or suspicion that are needed for each. The opinion is a useful roadmap in this regard. The 9th decides this is an extended border search, and that the agents had reasonable certainty (more than probable cause but less than reasonable doubt) that the vehicle had entered illegally from the border. The 9th then decides that a stop was permitted, and allows it. As to the question of whether this was a seizure amounting to an arrest, the 9th concludes that it was not an arrest because an innocent motorist (!) would have felt, even with his tires -- all four -- spiked and deflated, that he was not under arrest. Indeed, the opinion states (p. 9453), that a motorist would simply have assumed that a mistake was made, and that this would be corrected and cleared up with communication with the police. Of course, the 9th continues, if the interactions later would lead one to assume that one was not cleared, then one could assume an arrest was in progress. The 9th though states that this was not the case here. The spikes, or CTDD, simply stopped the vehicle in a controlled manner. The opinion goes through the steps used, and that it was supposedly safe. Indeed, that using a CDTT can be safer than turning on the sirens and pursuing. The CTDD did not cause unacceptable or unreasonable damage to the vehicle (?) because the tires could be easily repaired or replaced. The 9th of course skips over the locale, and the fact that the vehicle was inoperable. The 9th further holds that the force was not excessive. Lastly, the 9th finds no Brady violation in the court denying the disclosure of the procedures for use of CTDD.

Tuesday, July 21, 2009

U.S. v. Payton, No. 07-10567 (7-21-09). Searching the computer under a warrant to search for drugs was outside the scope, and thus child pornography evidence found on the computer must be suppressed. This is an important Fourth Amendment decision in that it recognizes that the search of a computer not expressly authorized is unreasonable. It also limits the pernicious reach of Giberson, 527 F.3d 882 (9th Cir., 2008). Here, the police got a warrant to search for drug sales because of neighbors complaints about sales (really just one neighbor complaining about drug use) and additional investigation. The warrant allowed search for drug sales as well as ledgers, pay sheets, financial records, bank accounts, and so forth, but nothing about computers. The probable cause affidavit had asked for a computer search, but as the state court judge testified, it never made it into the warrant despite the court's intention to so include it. The 9th (Canby joined by Wardlaw and Mills) reasoned that there was nothing to indicate that drug records might be secured on the computer. In Giberson, involving false identifications, there was evidence besides the computer that indicated false identification documents might be located within the computer. Giberson argued for a categorical bright line that a computer must be named in a warrant. Under Giberson's circumstances, with evidence by the computer, and a seizure of the computer, but no search until a second warrant was issued, the seizure and search were upheld. Here, though the 9th would not say that any computer could be searched under a warrant because it might contain evidence of ledgers, or payouts, or records. There has to be a tie of circumstances; this is exactly what the Fourth Amendment is designed to ensure. That allowed the computer search under a warrant. Thus, the search here was unreasonable (even with screen saver on), and Giberson has been limited to its special circumstances.

Congratulations to AFPD Eric Kersten of the E.D. Ca (Fresno).

Sunday, July 19, 2009

Case o' The Week: Good win from Goodwin, Fourth Amendment and Hotel Searches, Young

It seems that for our indigent clients, hotel rooms are a frequent and important subject of Fourth Amendment litigation (particularly for meth, motels, and Montana). Thankfully, this week Judge Goodwin (left) gives us an important decision that emphasizes the privacy expectations of hotel guests. See United States v. Young,__ F.3d __, No. 07-10541, 2009 WL 2020126 (9th Cir. July 14, 2009), decision available here.

Players: Big win by N.D. Cal. AFPD Elizabeth Falk.

Facts: Young was given the wrong room key when he rented a Hilton hotel room. Id. at *1. The tenant of that other room later called and complained about stolen items. Id. Realizing the mistake, hotel security entered and searched Young’s correct room while he was gone. Id. Hotel security found a backpack, within which were checks (belonging to other folks) and a handgun. Id. They also found the card sleeve for the key to the other hotel room, but none of the stolen stuff. Id. They left the gun.

The Hilton “electronically locked-out” Young and flagged a cop, who intercepted and interviewed Young in the lobby. Id. (This interview revealed Young had been to prison). The cop handcuffed Young to a bench and called his sergeant, who told the cop that the hotel room could not be searched without a warrant. Id. So, the cop had hotel security enter the room, open the backpack, and show the cop (in the hall) the gun – who then seized it “in plain view.” Id. Young was charged with § 922(g)(1).

Northern District of California District Judge Jeffrey S. White suppressed the gun.

Issue(s): ‘The Government brings this appeal, arguing that Young did not have a reasonable expectation of privacy in the room because hotel staff had evicted him prior to the warrantless search. Alternatively, the Government argues that the search should not be found unlawful because it did not exceed the scope of the private search by the hotel staff that had occurred earlier. Finally, the Government posits that even if Young retained an expectation of privacy in the room and the police search was unlawful, reversal is necessary here because the firearm falls under the inevitable discovery exception.” Id. at *1.

Held: “[B]ecause the hotel did not actually evict Young, he maintained a reasonable expectation of privacy in his hotel room. We therefore AFFIRM the district court's order granting the motion to suppress.” Id. at *1.

Of Note: One wacky theory offered by the government to salvage this search was from the Supreme Court’s decision in Jacobsen. Recall that Jacobsen was a private search of a FedEx package that revealed drugs; the Court endorsed the authorities’ subsequent search because one doesn’t have a privacy interest in a FedEx’ed box containing only drugs. Id. at *8. Like Jacobsen, the government argued, the private hotel security here could search the backpack and then show it to the cops. Id. at *9.

The majority doesn’t buy it (and even dissenting Judge Ikuta steers clear). Judge Goodwin distinguishes Jacobsen with a “very restricted application,” because in the Young case the suspect had all sorts of other privacy interests – in the backpack, and in the hotel room itself. Id. at *9.

This flat rejection of the government’s novel Jacobsen approach is an important Fourth Amendment holding for the Ninth.

How to Use: Besides the Jacobsen discussion mentioned above, Young has two more important Fourth Amendment components. First, the Court spends a great deal of time explaining the privacy expectations of a hotel tenant – expectations similar to a “lessee of an apartment.” Id. at *4. Just because a hotel calls the police, or a hotel guest is arrested, that reasonable expectation of privacy is not destroyed. Id. By demanding clear evidence of eviction from a hotel, Judge Goodwin offers some welcome Fourth protection to hotel guests.

Equally welcome is the dialogue between Judge Goodwin and dissenting Judge Ikuta on inevitable discovery. Judges Goodwin and Kleinfeld reject the government’s “circular logic” – dryly observing that the only reason the discovery of the firearm was “inevitable” was because the officer “took a short cut, even light of the instruction from his sergeant that a search of the room was impermissible.” Id. at *10. This opinion offers much good, practical language to rebuff the government’s attempt to seek refuge in “inevitable discovery” when a cop is too lazy to get a warrant.

For Further Reading: For a classy and moving tribute to Judge Alfred T. (Ted) Goodwin, visit a report on his Honor’s birthday celebration in Portland, Oregon. See former clerk's blog here.

Image of the Hon. Alfred T. (Ted) Goodwin from

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


Labels: , , , , ,

Thursday, July 16, 2009

U.S. v. Noster, No. 07-50391 (7-15-09). Let's start with the dissent first. Written by a district judge sitting by designation, it is a warning against vigilantism, and a rebuke of law enforcement. The dissent acknowledges that the defendant was a bad guy, and that he indeed had stockpiles of pipe bombs and guns. However, the way he was snagged -- with a police officer manufacturing a crime from delinquent payments on a truck, smacks of "ends justify the means." The defendant had made the down payment, and had made several months of payments before stopping for the past several months. Neither the bank nor the dealer had instituted theft proceedings yet. The police officer was only too willing to nudge them to do it. Under Herring, which involved a mistake of data entry, both the majority and dissents agree that purposeful violation of the 4th amendment called for exclusion. That, to the dissent, occurred here. For this reason, the judge dissented. The majority (Callahan joined by Ikuta) focused its analysis affirming the denial of suppression on the fact that the defendant had not made car payments, and the car was thus no longer his but GMAC's, and should have been repossessed. He had stopped making payments, absconded, and when the dealers and bank were informed of the defendant's track record and non-payments, all said that the truck was now the bank's property. The detective did investigation, interviewed witnesses, and got a car theft report, and then plastered the neighborhood with "look for this guy" notices. The truck was found by the dealer who sold it, and he called it in. The search followed, which was upheld based on probable cause for the theft. The subsequent search of the truck was a valid evidentiary search, based on probable cause. As such, the evidence of guns and bombs comes in, and the conviction for unregistered weapons is affirmed.

U.S. v. Olander, No. 08-30180 (7-15-09). The offense of receiving child porn, 18 U.S.C. 2252A(a)(2)(A) does not also require the element of "intent to distribute." The 9th (W. Fletcher joined by Bea and Ikuta) affirm the denial of the motion to dismiss indictment.

Tuesday, July 14, 2009

U.S. v. Young, No. 07-10541 (7-14-09). One has an expectation of privacy in one's hotel room, even when locked out. The defendant here was suspected of stealing from another guest's room. Security locked him out of his, and when searching his belongings, found a weapon. The district court suppressed, and the 9th affirmed (Goodwin joined by Kleinfeld). The reasoning is that the defendant was never evicted, or told he was evicted. Moreover, he was never informed of the hotel's policy, not disclosed to the defendant or guests, about what happens when a defendant is suspected of criminal activity (lockout). The policy about firearms was also not told to the defendant. The 9th reasoned that the defendant expected his belongings to be safe. The argument about inevitable discovery, made by the dissent, is not controlling because the security personnel did not necessarily know the acts were illegal. Ikuta, dissenting, argues that the firearm would eventually have been turned over to the police anyway.

[Ed. note: This was the hotel -- the Hilton -- where FPD training was held several years ago].

Congratulations to AFPD Elizabeth Falk of the N.D. Ca (San Francisco) for the win.

Sunday, July 12, 2009

Case o' The Week: Not "Must," But Maybe "Can:" State/Federal Sentencing Disparity as Variance Basis, Ringgold

Must a district court consider the huge disparity between the maximum state exposure, and the federal guideline range, for identical conduct? No, explains Judge Thomas in United States v. Arnold Ringgold,__ F.3d __, No. 06-10492, 2009 WL 1927597 (9th Cir. July 7, 2009), decision available here.

But, carefully left open is the question of whether a federal court has the discretion to vary based on this disparity.

Players: Hard-fought case by our own N.D. Cal. AFPD Jerome Matthews. Decision by Judge Thomas.

Facts: Ringgold pleaded to felon-in-possession, a § 922(g)(1) charge. Because of (minor) state pot-sale priors, his guidelines skyrocketed up to 92-115 months (with acceptance). Id. at *1.

At sentencing, AFPD Matthews argued for a sixty-month sentence given the disparity between the federal guideline range and the maximum three-year state sentence for this crime. Id. The district court (former district court Judge Jenkins, now on the California Court of Appeal) refused to vary from the guidelines under Booker and sentenced Ringgold to ninety-two months. Id. at *1.

Issue(s): “This appeal concerns the question whether, after . . . Booker . . ., a district court abuses its discretion by declining to consider the disparity between a recommended Guidelines sentence and the maximum sentence a defendant would receive if convicted of the same conduct in state court.” Id. at *1.

Held: “Under the circumstances presented by this case, we hold that the district court did not abuse its discretion or commit procedural error in declining to consider such a disparity.” Id.

Of Note: Judge Thomas makes a central assumption early in the Ringgold decision: that § 3553's goal of avoiding “unwarranted sentence disparities” really means avoiding federal sentence disparities. Id. at *3. Of course, the statute itself doesn’t say that, so he then devotes several pages of the decision to bolstering that “federal” assumption. Id. at *3-*4.

The gist of the Court’s argument is that, by forcing federal sentencing courts to consider state sentences, there would be a greater federal sentence disparity because of differences among the states. Id. at *3. From a policy perspective, though, it is fair to ask whether there really is that much sentencing disparity among the states? If every state would sentence a felon-in-possession to a third of the federal guideline range, then taking that fact into account creates no new federal disparity.

The Sentencing Reform Act was adopted back when federal cases were truly federal, instead of state prosecutions on steroids. Now that AUSAs are just D.A.s in nicer suits, see article here, seems that the state-disparity angle is a fair approach to the new “federalization” of state street crime.

How to Use: Ringgold is about as good as one can get, while still losing the case. An important holding of the decision is that it is not an abuse of discretion for a district court to decline to consider the federal/state sentencing disparity when undertaking the § 3553(a) analysis. A more important caveat, however, is that Judge Thomas carefully explains that the Court is not addressing whether a district court can rely on that disparity at sentencing. Id. at *4 (“Because the district court did not rely on the federal-state sentencing disparity in this case, we need not address the government’s argument that a district court may never consider, in the course of its § 3553(a) analysis, the sentence a defendant would receive if convicted of similar conduct in state court.”)

In fact, Judge Thomas adds a helpful cite suggesting that in unusual cases the federal/state sentencing disparity would be a factor to consider in arriving at a reasonable sentence. Id. (quoting United States v. Clark, 434 F.3d 684, 687-88 (4th Cir. 2006)).

In sum, the federal/state sentencing disparity argument is still Booker fair game, and remains a viable sentencing argument.

For Further Reading: Does anyone care about the erosion of federalism by the federalization of state offenses? Massachusetts District Judge Nancy Gertner (right) does. For Professor Berman’s report on Judge Gertner’s fascinating order on the federal prosecution of a state offense, visit his sentencing blog here. And for an even more candid insight on the federalization of minor state offenses, enjoy Judge Gertner’s blog at Slate, here.

Image of the Hon. Judge Sidney Thomas from Image of the Hon. Judge Nancy Gertner from

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


Labels: , , ,

Friday, July 10, 2009

U.S. v., Gerritsen, No. 06-50552 (7-10-09). Defendant was a "pirate" in the sense of radio broadcasting. He kept interfering with official broadcasts, and when he interrupted a Homeland Security drill, the law came after him. He had other past state convictions, too. When charged, and a trial date set further than he wanted, he insisted on representing himself. Indeed, he represented himself six times previously in the state. The district court warned him that it would be dangerous, cautioned him, and laid out the pitfalls. Defendant would not be denied. The court had the prosecutor state the maximum sentence, which the prosecutor said was 22 years. It was not. It was "only" 20 years. At the superseding indictment, defendant was warned again, and given the correct sentence he faced. After trial, with guidelines of around 33 months, he got 84. On appeal, he argued that he was not given his full Faretta warnings, and that he was misinformed of the sentence. The 9th said he was not. Ikuta joined by Trott and Kleinfeld concluded that he knowingly and intelligently waived his right to representation. The opinion does a good job of setting out the standard.

Ramirez v. Yates, No. 07-15087 (7-10-09). In another equitable tolling case, the 9th (Hawkins joined by Hug and B. Fletcher) remand to see if the deprivation of the petitioner's legal files for one period constituted sufficient cause for tolling. The 9th held that petitioner's efforts for discovery and filing of other equitable writs did not merit equitable tolling.

Wednesday, July 08, 2009

U.S. v. Old Chief, No. 08-30317 (7-6-09). In a drunken fight, defendants stabbed a victim. One defendant held the victim, while the other defendant stabbed him three times. Each got 120 months. The interesting issue on appeal was whether an adjustment should have been added for restraint of victim. The argument was that stabbing supposes some restraint, and there should have been merger. The 9th (Goodwin joined by O'Scannlain and Fisher) disagreed. The 9th reasoned that the argument, based on a 4th Circuit homicide case, U.S. v. Mikalajunas, 936 F.2d 153 (4th Cir. 1991), differed from a stabbing in that homicide involves an ultimate restraint. Moreover, the circumstances here added to the basic crime: there may be some minimal restraint in every stabbing, but here there was pinning of arms behind back, and a grabbing while another stabbed three times.

U.S. v. Ringgold, No. 06-10492 (7-7-09). The 9th (Thomas joined by Wallace and Leavy) hold that a district court can avert its eyes from what the defendant would have gotten in the state. The defendant here was a felon in possession. At sentencing, the defendant pointed to the state and said "see what might sentence would have been there." It would have been much less. The district court said that it would not consider the disparity between state and federal sentences. On appeal, the 9th held that it was not an abuse of discretion. The district court was not compelled by 3553 to factor in the disparity between state and federal sentences. The 9th reasoned that compelling the requirement could undermine uniformity. The focus is on federal factors. Significantly, however, the 9th said that it would not consider the government's argument that the court should never ever consider such a disparity. Again, it falls within "discretion."

Ali v. Hickman, No. 07-16731 (7-7-09). In a state habeas raising a Batson claim, the 9th (Berzon joined by Tashima and Timlin) hold that the prosecutor had indeed violated Batson by striking the two African American prospective jurors. The prosecutor's reasons were highly implausible and were clearly pre-texual. Moreover, the state appellate courts were unreasonable in excusing such reasoning. The state courts, at that time, did not engage in comparative juror analysis, but in doing so now, it is clear that the prosecutor had race on his mind.

Saturday, July 04, 2009

Case o' The Week: "During" means "During" . . . Unless "During" an Illegal Reentry Offense - Cruz-Gramajo

"During" means a temporal relationship, when an event takes place while something else is going on -- unless you're an alien charged with illegal reentry. United States v. Cruz-Gramajo,__ F.3d __, No. 07-50381, 2009 WL 1813336 (9th Cir. June 26, 2009) (decision available here). A disappointing decision on a complex sentencing challenge, with a convincing dissent by Judge Pregerson.

Players: Hard-fought case by CD Cal. AFPDs Davina Chen, Michael Tanaka, and Gia Kim. Judge Hall authors the decision joined by Judge R. Smith, Judge Pregerson with a compelling dissent.

Facts: Gruz-Gramajo consolidates three cases. “The facts in each case are similar. Defendants are foreign citizens who were deported and then returned to this country without permission. After their illegal reentries - but before immigration authorities discovered them - Defendants committed and were convicted for various state law offenses, including burglary, driving under the influence, and evading police. At sentencing for their § 1326 offenses, the district courts held that Defendants’ intervening state law crimes constituted ‘criminal history’ for purposes of calculating their Guidelines ranges.” Id. at *1.

Issue(s): “Defendants attack these holdings. They note that the Guidelines exclude from ‘criminal history’ acts that are defined as ‘relevant conduct’ to the conviction offense. Relevant conduct, they argue, includes conduct occurring ‘during’ the conviction offense. Illegal reentry is a continuing offense that lasts from reentry until the violator is found by immigration authorities. Therefore, Defendants argue, the state law crimes they committed after returning to this country were still ‘during’ their § 1326 offenses and thus do not constitute ‘criminal history.’” Id. at *1.

Held: “Defendants’ argument ignores the context, structure and purpose of the Guidelines. We affirm the district courts' decisions to include Defendants' intervening state law crimes in the criminal history calculation.” Id. at *1.

Of Note: In addition to the disappointing primary holding of the case, Judge Hall also skirts another dangerous issue: socking an alien with extra criminal history points for violating § 1326 while under a criminal justice sentence (the USSG § 4A1.1(d) two-point bump). Id. at *1,*9. In this familiar scenario, an alien enters the U.S., later commits a state crime, and is found by ICE agents in state custody. The government typically argues for the § 4A1.1(d) bump even though the alien committed the continuing crime of “entry” long before, and even though the alien is almost always detected by ICE before the state conviction takes place.

In this decision, the majority dodges the issue as to one alien under a harmless error analysis, but holds it applies to the second. Id. at *9. Importantly, however, the alien to whom the points applied had a probation bench warrant out for him on an old case when detected on the federal case. Id. Thus, the key issue for the typical § 4A1.1(d) scenario remains unresolved: if the alien is not on parole or probation, enters, picks up a new state case and is detected by the feds before the state conviction, do the two points apply?

joins the recent, equally disappointing Lomeli-Mences decision that flirts with this frequent issue. See blog here.

Assignment of these two points in this setting is tremendously unfair, particularly because ICE routinely delays the initiation of federal prosecutions to maximize custodial time by avoiding concurrent sentences. See id. This guideline subsection deserves en banc scrutiny (of Lomeli-Mences, ideally), particularly because immigration offenses are now the majority of federal prosecutions.

How to Use: To shake the defense attack, Judge Hall undertakes an extensive and expansive discussion of relevant conduct. Id. at *3-*9. Much of that discussion involves the relation of relevant conduct, conduct used to enhance a specific guideline (as an adjustment or specific offense characteristic), and grouping. Id. That discussion deserves a close read: it is peppered with broad assertions that could help in other sentencing contexts.

For Further Reading: The better argument, we think, is Judge Pregerson’s dissent. Id. at *10. Relevant conduct says don’t count other offenses committed “during” a federal crime for criminal history points – and in illegal-reentry case, state crimes are clearly “during” the continuing federal illegal-reentry offense. How, asks the Hon. H.P., does the majority avoid that clear language, particularly when the Supreme Court interpreted “during” with the clean, traditional meaning in the recent Ressam case? Id. at *11. Judge Pregerson also is on the scent of the § 41.1(d) unfairness, with a flag on the recent Lomeli-Mences case. Id. at *12 & n.5.

Image of sign from

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


Labels: , , , , ,

Thursday, July 02, 2009

Bible v. Ryan, No. 07-99017 (7-1-09). The 9th (Gould joined by Clifton and Bybee) affirm the district court's denial of relief in this capital habeas. The 9th finds no IAC at the sentencing stage. The 9th stresses the nature of the crime (a child murder in a "heinious" fashion), and the speculative nature of the mitigation. The state supreme court had found one factor (the prior conviction) to have been error (it was not violent), but in the re-weighing, had decided that the aggravators had made any error harmless. Under the deferential AEDPA standard, the 9th defers and affirms.