If at first you don't succeed, try, try again.
And again. United States v. Forrester (III), No. 09-50029, __ F.3d __, (9th Cir. July 30, 2010) (Ord. & amend. op.), decision available here.
Players: Nice win rewards dogged litigation for former San Diego AFPD Ben Coleman (now of Coleman & Balogh, LLP).
Facts: This is the third published opinion on the Forrester case. Forrester I gave us some bad Fourth Amendment law on searches of IP addresses. See blog here. Forrester II gave us some bad law on wiretaps. See blog here. This latest decision is a revision of Forrester II, and gives us some good law on conspiracies.
Forrester was involved with a big ecstasy lab and represented himself in a federal trial. Slip Op. at 10920. He was misinformed of the stat max by the district judge during the Faretta hearing. Id. On his first round in the district court, he was sentenced to thirty years after being convicted at trial. Id. at 10921.
In Forrester I, the Ninth found that the defendant had not knowingly waived his right to counsel because of this mis-advisement; the case was remanded and Forrester entered a conditional guilty plea. Id.
At resentencing, a temporary amendment to USSG § 2D1.1 created a dramatically higher ecstasy base offense level. Id. at 10942. Forrester argued against this higher sentence based on a conspiracy end date that was not admitted in the plea agreement. Id. The district court rejected this argument, and gave him thirty again. Id. at 10921.
Forrester appealed again. Judge Milan Smith issued an opinion on January 5, 2010 (Forrester II); on July 30 the panel withdrew that opinion and issued a new one (Forrester III). Forrester III is the subject of this blog entry.
Issue(s): (Among many): “Forrester argues that subjecting him to a heightened sentence based on a conspiracy end date that was alleged in the indictment but not admitted in the plea agreement was improper.” Id. at 10942.
“Because the end date of the conspiracy was not pled to or found by a jury, this case presents a novel issue for this court: whether the end date of a conspiracy can be treated as relevant conduct, which in turn will determine which Guidelines version applies.” Id. at 10943-94.
Held: “We agree [with Forrester].” Id. at 10942. “[B]ecause the Guidelines clearly, if not explicitly, indicate that the end date of an offense is in a category of its own for ex post facto purposes, which seems to preclude treating the end date as relevant conduct, U.S.S.G. § 1B1.11 n.2, and certainly precludes using relevant conduct to determine which Guidelines to apply, id., we remand to the district court for resentencing under the November 2000 Guidelines.” Id. at 10946 (emphasis in original).
Of Note: Forrester is a sentencing wonk’s dream, wrestling with fine distinctions between elements, relevant conduct, and ex post facto concerns. Id. at 10943-44. This esoteric fight has a very real impact, though: this win over the guidelines’ version means a difference of five to fifteen years in prison. Id. at 10946 n.12. Moreover, it is not an infrequent issue. The Sentencing Commission (almost always) ratchets up, and it is a frequent fight in conspiracy cases on whether to use older, less-harsh guidelines.
Consider, for example, a conspiracy to commit mail fraud and the pre-2002 § 2F1.1 (fraud) guideline, which had some better loss calculations for the defense. The Forrester rule on the "end date of the conspiracy" could make a big difference in that setting. Similarly, as steroid guidelines get “pumped up,” we may be looking to Forrester to hook back to better calculations in the halcyon pre-BALCO days.
How to Use: Tucked away in a Forrester footnote is a handy quote for Guideline fights: “To the extent there is any ambiguity as to whether the end date can be used to justify the application of a harsher Guidelines version, we must tend toward a resolution that protects the defendant’s established constitutional rights. Cf. United States v. Santos, 128 S. Ct. 2020, 2025 (2008) (‘The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.’)” Id. at 10946 n.12.
For Further Reading: For a thoughtful and critical analysis of Forrester I and its disappointing Fourth Amendment analysis, see Schuyler Sorosky, United States v. Forrester: An Unwarranted Narrowing of the Fourth Amendment, available here.
Image of "Third Time's a Charm" Tattoo from http://cinematicroom.com/asin/B000TGKXFW/
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org