Case o' The Week: Ninth Won't "Pucker Up to Kiss the Great Writ Goodbye:" Doody, Miranda, and Voluntariness of Confessions

Thanks to the Supremes, Miranda is battered and bruised - with another lousy decision coming out just last week. Thankfully, Miranda protections still having real meaning in the Ninth, as evidenced by an important new en banc decision by Judge Johnnie B. Rawlinson (right). Doody v. Schriro, __ F.3d __, 2010 WL 653441 (9th Cir. Feb. 25, 2010) (en banc) (decision available here).

Players: Decision by Judge Rawlinson, dissent by Judge Tallman.

Facts: Nine people - including six monks - were murdered inside of an Arizona Buddhist temple. Id. at *1. The Phoenix team of detectives investigating the case interrogated four men, who confessed and charged with murder. Id. Those confessions were false; the murder charges were dismissed. Id. & n.1.

The same task force eventually seized on Doody, a seventeen-year old boy. Id. They took Doody in and questioned him overnight for over twelve hours, used tag-team interrogation, sat him in a hard, straight-backed chair, after giving him long and garbled Miranda “warnings. Id. at *1-*10.

Doody confessed to being present during the murders, was charged, unsuccessfully moved to suppress his statements in state court, and was convicted of first degree murder. Id. at *11. His appeal was denied by the state appellate court, his habeas was denied by a three-judge Ninth panel, and the case went en banc. Id. at *12.

Issue(s): “Although Doody eventually confessed to participating in the nine murders, he now challenges his confessions, asserting that the Miranda advisements he was given were inadequate and that his confession was involuntary.” Id. at *1.

Held: “We agree on both counts. Specifically, we conclude that the advisement provided to Doody, which consumed twelve pages of transcript and completely obfuscated the core precepts of Miranda, was inadequate.” Id. at *1.

Of Note: Doody is an admirable piece of legal writing, with exhaustive discussion of the factual record and a detailed analysis of controlling (and distinguishable) authority. It is also clearly heartfelt, as revealed in Judge Rawlinson’s shot across Judge Tallman’s bow:

The dissent would prefer that we simply parrot the findings made during the state court proceedings and call it a day. However, if we succumb to the temptation to abdicate our responsibility on habeas review, we might as well get ourselves a big, fat, rubber stamp, pucker up, and kiss The Great Writ good-by.

Id. at *14.

How to Use: Doody will be remembered as a Miranda case, but to be honest Miranda warnings are rarely butchered as badly as by the Arizona detectives in this case. The real potential value of the opinion is in its comprehensive discussion and analysis of the voluntariness of the confession – separate and apart from the Miranda warnings. Id. at *16 - *29.

Judge Rawlinson patiently wades through – and effectively distinguishes – each of the cases tossed up by the dissent, making Doody an excellent primer on the voluntariness issue. Of particular interest is the opinion’s correct insistence that the “voluntariness” inquiry must on weigh all of the factors around an interrogation in totality, and a court cannot simply tick-off (and dismiss) factors in isolation. Id. at *19-*23. Doody will be a lead case in the Ninth: it should figure prominently in any motion challenging the voluntariness of a custodial interrogation.

For Further Reading: The 800-pound gorilla (for any post-AEDPA, Ninth Circuit opinion) pounded its chest in a most-unwelcome way this week. In Maryland v. Shatzer, __ S. Ct. __, 2010 WL 624042, *8 (U.S. Sup. Ct. Feb. 24. 2010), the Court permitted law enforcement to re-initiate custodial interrogations two-weeks after a suspect asserts Miranda protections. Shatzer comes about a year after Montejo v. Louisiana, 129 S.Ct. 2079 (2009), where the Court permitted law enforcement to initiate post-appointment interrogation of represented defendants.

When you read of the really abusive interrogation of a minor in Doody (by the same Phoenix task force that had managed to grind out four false confessions in the same case) it makes the Supreme Court’s recent Miranda missteps all the more troubling.

Image of the Hon. Johnnie B. Rawlinson from http://www.pepperdine.edu/pr/images/solgrad07rawlinson.jpg

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


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U.S. v. Other Medicine, No. 09-30020 (2-26-10) (Fisher joined by Paez and Moscowitz). This is an Indian law issue. The defendant was convicted under the Major Crimes Act, 18 USC 1153, for "felony child abuse." The defendant severely beat his 9-year old stepson with a belt, causing contusions, abrasions, and welts that the school nurse said were the worst she had seen in 25 years. On appeal, defendant argues that "felony child abuse" should not be defined and punished by state law, which is used when there is no federal defined offense, because there was a federal misdemeanor, Assault on a Minor. The 9th reasoned that there was a difference between a misdemeanor and felony, and that there was no federal "trumping" in this case. Moreover, assault on a minor is different from child abuse. The 9th also holds that the offense is not constitutionally vague given the circumstances.

U.S. v. Garrido, No. 08-10398 (2-25-10) (D. Nelson joined by Farris and Bea). The 9th affirms a conviction for a Hobbs Act robbery and use of a firearm in a game room in Guam. It vacated the sentence and remanded for consideration of acceptance of responsibility. The offense was an armed robbery, where the security guard recognized the defendant, and testified that a firearm was pointed in his face. The defendant argued that he did not use an actual firearm. He offered to plead to the robbery, which was rejected. The 9th affirmed the conviction, affirming the district court's allowance of lay testimony that the gun used was an actual firearm under FRE 701 and 702. A fact witness could identify. At sentencing, the district court had denied acceptance because the court said that he had to accept responsibility for all the counts. This was error, the 9th decided, because the defendant only had to accept responsibility for counts that were grouped. The 924(c) was not grouped, nor could the defendant receive acceptance for it (a mandatory 7 years). The 9th stressed that the defendant could receive acceptance after trial if he admitted the elements, and showed remorse, for the grouped counts. This accords with other circuits.

Doody v. Schriro, No. 06-17161 (2-25-10) (en banc) (Rawlison for majority; concurrence by Kozinski; dissent by Tallman, Rymer and Kleinfeld), decision available here. This was a horrible crime, with the petitioner helping to shoot six Buddhist monks in a robbery of their compound (nine victims were killed in total). A month later, the crack sheriff's department arrested four men, who gave confessions. These confessions turned out to be false because, subsequently, two youngsters were arrested when evidence was found that linked them to the murders and they confessed. One of them, the petitioner here, was 17-years old at the time. He was interrogated for 13 straight hours, and was sleep deprived. His Miranda rights were marginalized, mangled, and mischaracterized. The Arizona state court of appeals found them sufficient. The district court denied the petition, but the 9th reversed, only to have it taken en banc. In this decision, the 9th firmly states the Miranda rights of the petitioner were violated and that the confession was involuntary. The 9th stressed that it simply could not acquiesce to the state's findings under AEDPA, stating "The dissent would prefer that we simply parrot the findings made during the state court proceedings and call it a day. However, if we succumb to the temptation to abdicate our responsibility on habeas review, we might as well get ourselves a big, fat rubber stamp, pucker up, and kiss The Great Writ good-bye." (Rawlison!) Kozinski concurs, finding that the Miranda violation should have ended the inquiry. Dissenting, Tallman, joined by Rymer and Kleinfeld, try to parse the words of the 12 page transcript where the rights were given to find that the unintelligible was somehow intelligible to a teenager, exhausted, questioned in tag teams, over the course of 13 hours. The dissent would give great deference to the state court's review.

Robinson v. Schriro, No. 05-99007 (2-22-10) (B. Fletcher joined by Berzon; dissent by Rawlinson). The 9th reversed the district court's denial of petitioner's claims regarding the capital aggravator of cruel, heinous or depraved; and of IAC. The 9th concluded that the aggravator of cruel, heinous, and depraved was arbitrarily found here because no evidence was presented that the petitioner was in the house when the murders took place; nor that he had ordered the murders; nor that he even could have foreseen the murders. The IAC was for the penalty phase, where counsel failed to investigate petitioner's background, childhood, mental and emotional abuse, his low IQ, his mental condition, nonviolent nature, and his potential for rehabilitation. Dissenting, Rawlinson would find the aggravating factor procedurally barred and that there was no prejudice in the IAC.

U.S. v. Jennen, No. 09-30146 (2-24-10) (Gould joined by Tallman and Benitez, D.J.). The defendant entered a conditional plea, challenging the anonymous tip and then the buy by the CI that lead to the issuance of a warrant. The anonymous tip reported that the defendant was selling cocaine and meth from his house, using drugs in front of his children, had guns, and a surveillance camera. This lead the Seattle police to a controlled buy by a CI. The CI had been convicted of a crime of dishonesty and was receiving compensation. A second controlled buy was refused by the defendant. The 9th found that the anonymous tip had sufficient details to identify the defendant, and that the CI, who had proved dependable in the past, met the standard of probable cause. In sentencing, the 9th found that Washington's 2nd degree assault with a dangerous weapon was a crime of violence.

U.S. v. Guerrero, No. 09-30066 (2-18-10) (Tallman joined by Beezer; dissent by Gould). This appeal revolves around a Batson challenge. The defendant raised Batson for a strike on a prospective juror. Defense counsel pointed out that the struck juror appeared Native American or Hispanic. The court and prosecutor both said that they did not recognize her as a minority, and the challenge was denied. After lunch recess, the court stated that the questionnaire indicated she had a connection to Hawaii, and may be Hawaiian. The court then turned to the prosecutor, who said that he did not notice her as being a minority, and had not paid attention to her background. The court agreed, and then denied the Batson challenge. On appeal, the 9th affirmed the district court's ruling that the defendant failed to state a prima facie case for discrimination because, apparently, the prosecutor and court had not recognize her as a minority. The 9th explained that the district court had confused Batson's three-step process (a cognizable minority, peremptory strike used, and a totality of circumstances analysis), but that defendant's contention that steps 2 and 3 were not carried out is not the point: the court had ruled that no prima facie case had been made. The judge had seen the strikes, and the circumstances. Under a clear error standard, the decision not to see the juror as being a minority was not illogical, implausible, or without support.

Dissenting, Gould argues that the opinion (a Tallman decision again) "makes a new and ill-advised doctrine" that should be resolved with a remand. Gould says this new rule -- that a Batson challenge fails if the prosecutor says he or she does not recognize the juror as a minority -- is inconsistent with Batson. The prosecutor can evade the Batson analysis and process by merely stating that he did not think race was involved. Gould also takes issue with the consequences for the record, since the focus was on the prosecutor's subjective intent. Gould argues that the reasoning that the juror did not look like a minority is troublesome because the juror was noticed by defense counsel, and self-identified as an Hawaiian/Pacific Islander. The third step of Batson should be followed.

Case o' The Week: Supremes Get Confrontational With Ninth: Norwood and the Confrontation Clause

In 2009, the defense in Norwood argued that an affidavit created by a state-employee for trial, and introduced without her testimony, was testimonial hearsay barred by Crawford and the Confrontation Clause.

"You're wrong," countered the Ninth.

"You're wrong," trumped the Supremes. The Supreme Court granted Norwood's petition for cert., vacated, and remanded the Ninth's first Norwood decision. On remand, the Ninth (and the government) now finally concede that Crawford applies to a broader scope of hearsay. A victory for the Confrontation Clause (though a "harmless error" loss for Mr. Norwood). United States v. Norwood, 2919 WL 537497 (9th Cir. Feb. 17, 2010), decision available here.

Players: Decision by Judge M. Smith (above left), joined by Judge Tallman and visiting Judge Reavley.

Facts: After responding to a domestic violence call police found Norwood lying in bed, the smell of marijuana in the air. Id. at *1. A search of Norwood revealed .86 grams of crack and over $2,500; a later search of his home and car turned up another $7,000 in cash (in duct-taped $1k bundles), 7+ grams of crack, a digital scale with residue, marijuana, and a gun. Id.

Norwood went to trial on crack and § 924(c) charges. Id. At trial, the government introduced an affidavit by a state employee claiming there were no wage records for Norwood. Id. “[T]he court admitted her affidavit as circumstantial evidence that Norwood had no legal source for the large amounts of cash that were found on his person and in his car.” Id. at *2.

The Ninth upheld the conviction. See 555 F.3d 1061 (9th Cir. 2009). The Supreme Court granted, vacated, and remanded the Ninth’s opinion in light of its decision in Melendez-Diaz v. Massachusetts, 129 S. Ct 2527 (2009). The Norwood case discussed in this memo is the Ninth’s decision on remand.

Issue(s): “Norwood alleges that his Sixth Amendment right to confront his accusers was violated when the district court admitted into evidence a written affidavit without requiring the affiant to testify on the stand.” Id. at *2.

Held: “[T]he government concedes that under Melendez-Diaz, [the] affidavit, prepared for use at Norwood’s trial to prove the absence of any record of Norwood having legitimate employment, should not have been admitted without [the employee] presenting herself at trial for examination.” Id. at *3.

[However,] disregarding the affidavit entirely, the evidence against Norwood on the elements of the offense of possession of cocaine base with intent to distribute was sufficient to establish his guilt beyond any reasonable doubt.” Id. at *4. (Therefore, this was harmless error).

Of Note: While Norwood is primarily a Confrontation Clause case, it also unfortunately contributes to the factual morass of § 924(c) law. Here, although Norwood didn’t have the gun (it was hidden in the bed), and although there were very small amounts of drugs, and while there was not much trafficking-paraphernalia, the Ninth stretches earlier § 924(c) analyses to salvage the conviction. Id. at *7 (discussing Krouse). Beware of Norwood when crafting your Rule 29 motions in Section 924(c) cases.

How to Use: One spin-off of the 2004 Crawford decision is litigation over what is – and isn’t – a “business record” exempt from the ban on “testimonial” hearsay. In the original decision, the Ninth tried to patch up the affidavit as a “business record” (which is exempt from the Crawford rule): the Supremes didn’t buy it and reversed. Recall that the (hearsay) lab analyses in the Supreme Court’s Melendez-Diaz decision didn’t cut Crawford muster. From that holding it is clear that the state-employee affidavit used in Norwood was also “testimonial” and prohibited.

After Crawford, Melendez-Diaz, and Norwood, when the government starts cramming hearsay into the business record exception defense antennae should start quivering. See generally United States v. Ray, 930 F.2d 1368, 1370 (9th Cir. 1990) (discussing Fed. R. Evid. 803(6) and foundation requirements for business record exception).

For Further Reading: “Nada. Gar nichts. Rien du tout. Bupkes.” 2010 WL 548042, *1 (9th Cir. Feb. 18, 2010) (dissent from ord. denying rehearing en banc).

That’s Chief Judge Kozinski describing how many circuits (outside of the Ninth) have approved a police invasion of a home based on no showing whatsoever. Read Judge Kozinski’s funny, persuasive, and infuriating dissent from the denial of rehearing en banc in Lemus (decision available here). He laments the death of the Fourth Amendment protections in the home in the Ninth; a dissent joined, remarkably, only by Judge Paez. Where are all the lefties (and individual-rights conservatives) when the C.J. sounds the Fourth alarm?

Image of the Hon. M. Smith from http://blog.oregonlive.com/mapesonpolitics/2008/07/this_smith_brother_made_the_di.html

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

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U.S. v. Norwood, No. 08-30050 (2-17-10) (M. Smith joined by Reavley and Tallman).

On remand from the Supremes for reconsideration in light of Melendez-Diaz (confrontation), the 9th again affirms the conviction and sentence. Defendant was charged with drug trafficking and possession of a firearm in furtherance of the drug trafficking. The 9th holds that the defendant's right of confrontation was violated at trial when the government introduced an affidavit from the state Department of Economic Security, which certified that no wages from defendant had been reported during 3 years. This was relevant because the defendant was found with close to $10,000 in cash (on person and in car) when arrested. Although the 9th found error, it was harmless because the error was not an element of the offense, but on a circumstantial inference that went to the cash. The 9th also found that the prosecutor's reference to the defendant in not explaining the testing of marijuana also found in the house was a fair response to the defense implication of misconduct. Even if the reference was error, it was cured by the sustaining of the defense counsel's objection and the curative instruction. The 9th also found there was sufficient evidence to support the gun conviction: it was in the same room as the drugs. The 9th also rejected a due process challenge to the crack mandatory sentence.

U.S. v. Borowy, No. 09-10064 (2-17-10) (Per Curiam: B. Fletcher, Canby, Graber).

Forgetting to reset or engage a feature that makes a computer secure from prying eyes does not lead to an expectation of privacy that affords suppression of evidence. Defendant was part of a file sharing service called LimeWire. A trolling FBI agent, using search words like "Lolitaguy" chanced upon the defendant's file sharing and noted several that were flagged for child pornography. He downloaded the files, discovered child porn, and got a search warrant. The 9th affirmed the denial of the motion to suppress, reasoning that the defendant's computer and files were open to the world through his failure to engage the security feature. He had used it, and then forgot to reset it later. The subjective intent did not rise to the objective expectation of privacy. The 9th also held that the plea was not invalid despite the fact that the plea colloquy under Rule 11 mis-stated the term of supervised release. At sentencing, the defendant was aware of the difference (lifetime supervision) and argued that his sentence should be lower because of it.

U.S. v. Edwards, No. 08-30055 (2-16-10) ( Pregerson joined by M. Smith; dissent by Bea). The defendant reached a bankruptcy settlement, and then was convicted of bankruptcy fraud. The district court sentenced him to probation, despite a prior fraud in Arizona, lots of loss, and a guideline range between 27 and 33 months. The court went through the 3553 factors, discussed each, and thought that the guidelines over-represented loss because of "intent" rather than actual. This case had gone up and down to the 9th because of Booker and then Ameline. Now, the 9th affirms the sentence, holding that the sentence was reasonable because the district court had exercised its discretion, explained its reasoning, and grounded it on the relevant facts. Bea dissents on this, arguing that white collar defendants are getting too many breaks, and that the sentence is unreasonable because of the defendant's past. Bea comes close to arguing that the guidelines take into account the 3553 factors, and so a non-guideline sentence seems to need greater justification, which would run counter to Gall. The whole panel agreed that the restitution order, imposed in this latest sentence, was not collaterally estopped by the bankruptcy settlement because different issues were litigated.

Congratulations to AFPD John Rhodes, (Missoula, Montana) for the win.

Case o' The Week: Dias Infaustus = Defense Delight, Ressam and 3553 Analysis

Those admirable attorneys (including many JAG officers) who long have argued that different rules for terrorism prosecutions will undermine our entire legal system were right --- and were right in ways that they couldn't have anticipated. In the recent Ressam decision, the Ninth reverses a sentence of twenty-two years for a cooperating attempted-terrorist as "substantively unreasonable." United States v. Ressam, __ F.3d __, 2010 WL 347962 (9th Cir. Feb. 2, 2010), decision available here.

In a forceful dissent, Judge Fernandez warns that Ressam is ultimately an ends-driven decision; an opinion that opens wide the door for the Circuit to freely muck about with district court sentencing discretion. He's right: a tough break for Mr. Ressam provides great sentencing and appellate opportunities for other federal defendants.

Players: Hard-fought case by W.D. Wa. Defender Thomas Hillier and AFPD Lissa Shook. Decision by Senior Judge Alarcón; dissent by Judge Fernandez.

Facts: Ressam was convicted at trial of plotting to bomb LAX. His guideline range was 65 years to life. Id. at *1. He began cooperating post-conviction, gave information about terrorism and alQueda, and testified. Id. Two years into his cooperation he stopped, then began recanting. Id.

He was sentenced to 22 years; the parties cross-appealed. Id. The case went up to the Ninth, to the Supremes, and back down. On remand the district court imposed 22 years again. Id. The government appealed. Id.

Issue(s): “[The Government] contends that when the relevant § 3553(a) factors are applied to the facts of this case, the sentence imposed is insufficient to accomplish the purposes of the statute, which directs that ‘[t]he court shall impose a sentence sufficient but not greater than necessary’ to accomplish the purposes of 18 USC § 3553(a)(2).” Id.

Held: “We vacate the sentence and remand for resentencing by a different district court judge because we conclude that the district court committed procedural error in failing to address specific, nonfrivolous arguments raised by the Government in imposing a sentence that is well below the advisory Sentencing Guidelines range.” Id.

“We hold that we must review sentencing decisions for procedural error, even where no claim of procedural error is raised.” Id. at *17 (emphasis added). “Where the district court imposes a sentence significantly outside the Guidelines range, and it appears from the record that the district court did not remain cognizant of the Sentencing Guidelines throughout the sentencing process, it has committed procedural error.” Id. at *19 (quotations and citations omitted).

Of Note: Judge Fernandez (not a traditional defense ally) pens a must-read dissent. Id. at *36. He briefly, bluntly, and accurately ticks off each of the steps that the district court did correctly. Id.

Why, then, reversal? He writes, “[I]t seems to me that the majority just does not like the fact that this terrorist is to sit in prison for a mere twenty-two years.” Id. at *37.

The dissent (correctly) warns, “this case is not just about what befalls Ressam; it reflects another entry by appellate courts into territory that always lures them, but is always forbidden to them. Society, we, and the district courts will someday regret the results of our case-by-case trespassing onto lands we should stay out of; the day this decision becomes law will, indeed, be a dies infaustus.” Id. at *37.

Judge Fernandez is right: there’s much defense mischief to be made from this new sentencing opinion. Below are a few suggestions.

How to Use: There’s so much defense treasure to be mined from Ressam that we’ll simply list some handy propositions for use at sentencing and in appeals:

● A district court’s near-decade of experience with the case, and its explicit assurances that it had considered all the § 3553 factors, does not insulate it from reversal on procedural error. Id. at *14.

● The appellate court must review for procedural error sua sponte , even if procedural error is expressly disclaimed by the parties. Id. at *6 - *17.

● (For challenges to upward departures) - Merely calculating a guideline range correctly (twice, in separate hearings) and discussing the guidelines three times during the sentencing hearing is still insufficient to show that the district court remained “cognizant of the Guidelines throughout the sentencing process.” Id. at *26 - *27.

● A district court’s failure to expressly mention a § 3553 factor urged by a party can result in reversal, even if the sentencing court assures that it has considered the § 3553 factors. Id. at *31.

● An appellate court may reverse a district court’s sentence as substantively unreasonable if it simply disagrees with the relative weight given to the § 3553 factors. Id. at *33.

For Further Reading: Ressam’s cooperation went poorly. He spent years in solitary, cooperated, testified, went nutty, stopped, and recanted his prior testimony in an excruciating pro se exchange. Id. at *10-*12. Safe to predict that he’ll get more than 22 on remand.

As Umar Farouk Abdulmutallab – the “Christmas Bomber” – begins his snitching sorjourn, the Ressam experience and opinion are not exactly reassuring for his defense counsel. See article here.


Image of Ahmed Ressam from http://www.cbc.ca/news/background/osamabinladen/ressam_timeline.html, by CP Picture Archive/Le Journal de Montreal . Image of Umar Farouk Abdulmatallab from http://www.newstimeafrica.com/archives/9866

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

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U.S. v. Vongxay, No. 09-10072 (2-9-10). Defendant was convicted of being a felon in possession of a firearm in violation of 922(g)(1). He argued that Heller, 128 S. Ct 2783 (2008) invalidates prohibitions against his constitutional right to bear arms. The 9th finds that his arguments misfire as nothing in Heller casts doubt upon the constitutionality of 922(g)(1). The panel (M. Smith joined by Bright and Hawkins) went through Heller, and found that it recognized that the Second Amendment could be limited, and that nothing in the opinion was to be taken to cast doubt on prohibitions against felons in possession. The 9th's precedents on this matter also continue to hold sway. The 9th joins the other courts that have considered this issue. As for the search claim, the 9th affirms the district court's finding that the defendant, by raising his hands, had consented to the search that led to a gun being found in his waistband.

Case o' The Week: A Sentencing Septimana Infaustus: Terrell-ible Decision on ACCA Residual Clause

Is a prior burglary of a vending machine a "crime of violence" that triggers the draconian mandatory-minimum and guidelines of the Armed Career Criminal Act? It can be in the Ninth, thanks to a very disappointing decision in United States v. Terrell, 2010 WL 347914 (9th Cir. Feb. 2, 2010), decision available here.

Players: Decision by Judge Bybee, joined by Judges Tashima and Graber.

Facts: Terrell was convicted of being a felon in possession of a gun. Id. at *1. The indictment alleged he had previously been convicted of three felonies:

i. an Arizona Second Degree burglary,

ii. an Arizona sexual assault, and

iii. a second-degree burglary in Missouri.

(Ed. note: Curious that the priors were alleged in the indictment).

The district court found Terrell to fall within the Armed Career Criminal Act (ACCA), which raised his stat-max from ten to fifteen years. Id. He was sentenced to 188 months. Id. at *2.

Issue(s): “Terrell argues that the district court erred in imposing an enhanced sentence under the ACCA, contending that his prior felony convictions do not qualify as ‘violent felonies.’” Id.

Held: 1. Sexual Assault: “[W]e hold that Terrell’s prior sexual assault conviction qualifies as a ‘violent felony’ under the ACCA’s residual clause because it involves conduct that presents a serious potential risk of physical injury to another . . . and is roughly similar to the enumerated offenses in that it typically involves purposeful, violent, and aggressive conduct.” Id. at *6 (internal quotations and citations omitted).

2. Burglary: “We hold that, although Terrell’s prior burglary offenses do not fit within the enumerated offenses, they do fit within the residual clause.” Id. at *7.

3. ACCA? “Because the district court correctly held that Terrell had been convicted of at least three ‘violent felonies’ at the time he committed his felon in possession offense, we affirm the district court’s decision to enhance Terrell’s sentence under the ACCA.” Id. at *10.

Of Note: Terrell has sparked much debate among defense experts as to what exactly is wrong with the opinion. Among other problems with the case is Judge Bybee’s expansive reading of the Supreme Court’s Begay opinion and the ACCA residual clause, particularly as it applies to state burglary crimes. Id. at *10. He interprets Begay to mean that “a state burglary offense is almost always at least ‘roughly similar’ to generic burglary, even if the state offense is somewhat broader.” Id. (emphasis added).

To get there Judge Bybee concludes that because there’s a risk of violent confrontation during an Arizona Second Degree burglary, it is “similar to” an “enumerated” burglary in the ACCA statute. That’s all well and good, except that this Arizona statute also defines “burglary” as breaking into a vending machine. Id. at *6. Is “burglaring” Doritos really the type of “violent criminal” that Congress had in mind when passing the ACCA?

Terrell casts the categorical net so broadly that it rends Taylor irrelevant – any state statue named the same as an enumerated ACCA crime will be deemed “close enough.” Terrell’s take on Begay will sweep many undeserving defendants into the ACCA’s fifteen-year mandatory minimums (and even higher guidelines): the case deserves en banc review.

How to Use: Undaunted, CJA appellate attorney Dan Drake has just begun to fight and has been hitting up the defense bar for ideas for his en banc petition. Preserve challenges to ACCA enhancements despite Terrell. There is much afoot in the Ninth on these issues (see below), and Terrell will hopefully not be the last word on the issue.

For Further Reading: Busy and bad describes this week in the Ninth. In the notorious Ressam case, Judge Alarcon weighed-in on a terrorism sentence and inadvertently created a bevy of defense opportunities for sentencing appeals. See 2010 WL 347962 (9th Cir. Feb. 2, 2010). As dissenting Judge Fernandez quipped, the broader impact of the case will make the day it was delivered a, “dies infaustus.” Id. at *37 (an “unlucky day.”)

And in another blow, on February 3rd the Ninth granted the government’s petition for rehearing en banc in Aguila-Montes de Oca, that wonderful Judge Thompson decision that excluded California burglaries as “crimes of violence” for the illegal reentry guidelines. See blog here.



Image of the vending machine from http://www.fooducate.com/blog/tag/vending-machine/ .

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

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U.S. v. Ressam, No. 09-30000 (2-2-10). In a decision that smacks of disagreement with the sentence, the 9th vacates a 22-year sentence of a convicted terrorist because the district court, in sentencing, supposedly committed procedural error in failing to specifically address the government's Guideline and 3553 arguments. The 9th (Alarcon joined by Clifton) remanded to a different judge for resentencing. Dissenting, Fernandez argues that the majority simply disagreed with the sentence, arrived at by a district court with long familiarity with the case, and the cooperation rendered, and decided that there was error when there was not.

This case involved the defendant plotting to detonate explosives at LAX on the eve of the millennium. He was caught, and after trial, began cooperation. He later stopped cooperating, recanted, and was sentenced to 22 years. The case then went up to the 9th, and to the Supremes on an issue of conviction, and back down to the 9th, which vacated the sentence because of failure to calculate the Guidelines. Back on appeal now, after the district court had sentenced with explanations, the majority still finds procedural error. Specifically, the majority points to the district court's failure to "remain cognizant" of the Guidelines throughout the process of arriving at a sentence (which means that the further a court departs -- here from 65 years to 135 years down to 22 years -- the explanations have to be more extensive and compelling); that the district court failure to explain why it rejected the government's argument as to the value of the cooperation and the impact of defendant's recantation; the district court's crediting of defense expert's assessment of defendant's life history contrary to the PSR's findings; and the district court's failure to address the government's argument about why a longer sentence was required to protect public safety. The district court needed to specifically address each argument. Although U.S. v. Carty, 520 F.3d 984 (9th Cir. 2007) (en banc) does not require a court to give a lengthy explanation or even any explicit explanation for an in guidelines sentence in a typical or straightforward case, in a departure case, there has to be sufficient reasons stated. The failure to provide such reasons, and to remain cognizant of the guidelines, will be procedural error. In other words, the departure has to adequately address the guidelines not to be procedurally flawed. Likewise with the other arguments raised by the government. The majority, to maintain public trust, remands to a different judge for resentencing.

In dissent, Fernandez argues that this district court followed procedure, knew the case, knew the defendant, and gave adequate reasons. Fernandez concludes that: "Simply put, it seems to me that the majority just does not like the fact that this terrorist is to sit in prison for a mere twenty-two years."

Would I give Ressam that "light" a sentence? I somehow doubt it, but that is not
the point. The point is that there are many sites within the borders of reasonable sentencing territory, and our job is to patrol those borders to assure that the district court has not slipped over them into the land of abuse of discretion. That will rarely happen; it did not happen here. Unfortunately, this case is just not about what befalls Ressam; it reflects another entry by appellate courts into territory that always lures them, but is always forbidden to them. Society, we, and the district courts will someday regret the results of our case-by-case trespassing onto lands we should stay out of; the day this decision becomes law will, indeed, be a dies infaustus.

In short, the sentence was neither procedurally erroneous nor substantively unreasonable. See Carty, 520 F.3d at 993. Even if we have to grit our teeth to do so, we should let it be.

U.S. v. Napulo, No. 08-10190 (2-1-10). The 9th vacates one special condition on SR, and vacates and remands a second to determine if it promotes deterrence, rehabilitation, or public safety. The first condition forbade the defendant from associating with anyone who has a misdemeanor conviction. The second concerns having any contact whatsoever with her life partner. The 9th (Reinhardt joined by Thomas and Paez) puzzle at the first condition, as many people can be law abiding and yet still have misdemeanor convictions for a variety of small offenses. There did not seem a tie to the ends of SR. The second condition concerning the life partner needed more fact-finding. Although the partner may have been a bad influence in the past, there were also good attributes put forward. Given the time that had elapsed from the original conviction, and various SR violations and this revocation, more of a factual record is required.

U.S. v. Terrell, No. 08-10560 (2-2-10). In an ACCA case, the 9th affirms the sentence enhancement for three prior felonies. The 9th finds that the prior convictions of sexual assault (Arizona), second-degree burglary (Arizona), and second degree burglary (Missouri) qualify under ACCA's residual clause in that they involve conduct that presents a serious potential risk of physical injury to another. The 9th (Bybee joined by Tashima and Graber) examine ACCA and these priors in light of the Supremes decision in Begay v. U.S., 128 S.Ct. 1581 (2008), which holds that ACCA's enumerated offenses (burglary, arson, extortion, and explosive crimes) apply not to all offenses that have a risk of violence, but only to offenses that are "roughly similar" to the enumerated by involving purposeful, violent, and aggressive conduct. The offenses here all qualify. The burglaries meet the definition because of the risk of face to face confrontation, even if the burglary includes that of a movable object.

U.S. v. Loew, No. 09-30032 (2-2-10). The 9th (Tallman joined by Beezer and Gould) affirm an upward adjustment for restraint of victim. The defendant was convicted for interstate harassment, obscene telephone calls, stalking, telephone threats, and violations of protective orders. The defendant's co-conspirator had threatened and kidnapped the victim. He also sexually assaulted her. The defendant argued that the co-conspirator's actions were not foreseeable because he just wanted the co-conspirator to intimidate the victim. The district court made factual findings that the defendant had induced the co-conspirator to threaten and kidnap the victim, which led to her being bound and assaulted. The 9th had no trouble in finding that the district court's factual findings settled the matter, and were not clearly erroneous. There was no intervening cause because of the defendant's own inducement.

U.S. v. Contreras, No. 08-50126 (2-2-10) (en banc). In a per curiam en banc opinion, the 9th adopted the three-judge panel's opinion in U.S. v. Contreras, 581 F.3d 1163 (9th Cir. 2009) involving abuse of position under 3B1.3. This was a clarification that limited the scope of the adjustment, excluding, for example, ordinary bank tellers who took bank funds. The original panel had found that the prior precedent had been, in effect, overturned by the Guideline amendment. The en banc panel disagreed with its analysis of overturning the prior precedent, and so took that portion out of the opinion while adopting the rest. Concurring, Tashima takes note that he believes the panel's mode of analysis was correct, and with that caveat, joins the opinion.