Case o' The Week: The Final Depature of Guideline Depatures -- Ellis, CH Departures Now Get Booker Reasonableness Review

In 1988, fresh out of UCLA Law, Judge Sandra Ikuta (left) clerked for (now Chief) Judge Kozinski. It was right on the cusp of the full invasion of the federal sentencing guidelines -- odds are that during her clerkship she worked on Restrepo, the Ninth's big case on the constitutionality of the federal sentencing guidelines.

Twenty-three years later, now a Ninth Circuit Judge in her own right, Judge Ikuta pens a decision continuing a trend that (inadvertently, perhaps) undermines the guidelines' dominance. United States v. Ellis, 2011 WL 2043238 (9th Cir. May 26, 2011), decision available here.

Players: Hard fought appeal by CD Cal AFPD Jonathan Libby. Decision by Judge Ikuta.

Facts: Ellis robbed a few banks. Id. at *1. Well, maybe more than a few – he simulated a gun, put tellers in a closet in one robbery, and lead cops on a high-speed chase before being caught on unlucky number seven. Id. at *1. He pleaded guilty in a complicated deal that let him argue departures, and had the government agreeing to a guideline calculation. The agreement, however, allowed the government to argue for a sentence of up to 151 months under Booker, and/or argue for an upward departure in Ellis’s criminal history. Id. at *2.

The PSR came in at 97-121 months, in Criminal History Category II: at the government’s urging, the Court departed upwards one criminal history category, undertook a § 3553 analysis, and imposed a sentence of 151 months. Id. at *4. Ellis appealed, arguing – among other things – erred in its upward Criminal History Departure to CH III. Id. at *7.

Issue(s): How does the Ninth review departures from the Criminal History category, under USSG § 4A1.3?

Held: “[W]e hold that where a district court ‘has framed its analysis in terms of a downward or upward departure’ for a criminal history category, we will analyze such a departure as ‘an exercise of post-Booker discretion to sentence a defendant outside of the applicable guidelines range.” Id. at *8.

Of Note: Ever feel like we’re making up federal sentencing law as we go along? In United States v. Munoz-Camarena, 631 F.3d 1028 (9th Cir. 2011), the Ninth refused to let a district court insulate its guideline error with a shadow, “harmless error” Section 3553(a) sentence.“A district court’s mere statement that it would impose the same above-Guidelines sentence no matter what the correct calculation cannot, without more, insulate the sentence from remand, because the court's analysis did not flow from an initial determination of the correct Guidelines range. The court must explain, among other things, the reason for the extent of a variance . . . The extent necessarily is different when the range is different, so a one-size-fits-all explanation ordinarily does not suffice.” Id. at 1031.

In Ellis, by contrast, the Ninth doesn’t get around to deciding whether the district court “correctly applied the departure provision” when it departed upwards from the criminal history category. Id. at *8 (quoting with approval Tankersley). Why bother reviewing a guideline departure? It all just gets lumped into the “reasonableness” of a 3553(a) sentence anyway – and Ellis’s sentence was ultimately reasonable, explains Judge Ikuta. Id. at *8-*9.

How does one reconcile Ellis and Munoz-Camarena ?

Admittedly, there's a difference between an error in calculating the guidelines, and an error in departing from them -- the former would still be reviewed by the Ninth under the Zavala/Carty framework, and the latter is more akin to a Section 3553 analysis anyway. Moreover, Judge Ikuta is simply extending to Criminal History departures an analysis that had already been applied to offense level departures. Nonetheless, it still is a remarkable thing, to realize that the Ninth is now officially out of the business of reviewing departures as departures. Lots of folks have spent big chunks of their careers creating a body of law on guideline departures and their review on appeal: that line of authority is just a historical footnote, now.

The CD Cal USAO won the battle here, but Sentencing Commission and DOJ be warned: this type of analysis is costing the guidelines the sentencing war. When appellate courts don’t bother to check whether the guidelines are right – because § 3553(a) cures all – the guidelines are not just “advisory:” they’re slouching towards obsolescence.

How to Use: Ellis’s loss = addict’s gain. Ellis is a green light for district courts to Do The Right Thing, and dive downwards from the PSR’s Criminal History category. Flag Ellis for our many clients with too many CH points courtesy of driving violations, addiction/possession offenses and dusty old priors that nonetheless are snagged by the over broad time frames of USSG § 4A1.1. Generous downward departures from the Guidelines’ Criminal History category are now bulletproof on appeal: shaving off a CH category (or two) (or three) may have been an abuse of discretion in the old days, but will now never get flipped thanks to uber-tolerant Booker reasonableness review.

For Further Reading: As discussed above, Ellis can be read as another in the line of cases diminishing the importance of the guidelines. Two other recent Ninth cases have done the same, in different ways: Henderson and Apodaca. For a thoughtful essay on these child porn decisions, see blog here. As author Joshua Matz observes, the pair of cases “suggest[] that the Ninth Circuit has joined the Second and Third in its willingness to searchingly explore the underlying justification for child porn sentences in light of § 3553(a)’s framework.”


Image of the Honorable Sandra S. Ikuta from http://www.law.gwu.edu/News/newsstories/Pages/2010_VanVleck.aspx


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


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Emery v. Clark, No. 08-55249 (5-27-11) (per curiam with O'Scannlain, Silverman and Conlon, D.J.).

The issue in this petition was a state's interpretation of a special circumstance. The special circumstance was a street gang enhancement. It has an element of specific intent to promote, further, or assist criminal conduct by gang members. The question was whether the conduct was for other conduct apart from the crime of conviction. The 9th had certified the issue to the California Supreme Court, which accepted and then declined the request because it decided a case that specifically held that it could include the instant conviction. With that issue settled, and with AEDPA deference, the 9th upheld the denial of the petition. It found that there was sufficient evidence for a finding that the murder of a store clerk was gang related and for the furtherance of gang activities.

U.S. v. Ellis, No. 09-50652 (5-26-11) (Ikuta with Rymer and Callahan).

The 9th has decided to review departures for reasonableness in the first instance, and then, if reasonable, to treat an erroneous Guideline departure as harmless under post-Booker discretion. U.S. v. Mohamed, 459 F.3d 979 (9th Cir. 2006). The same approach is taken here for departures for under-representation of criminal history pursuant to 4A1.3(a)(1). In this case, the defendant, having pled guilty to seven bank robberies, received a departure because some prior criminal history was stale. The 9th stated that it did not have to examine correct application of a departure because it was looking at reasonableness, and the departure was reasonable under 3553. The court explained its basis and it made sense. The 9th also held that no violation of the plea agreement took place. In terms of sentencing jurisprudence, this case shows that, on appeal, departures are reviewed under a reasonableness variance standard.

Haney v. Adams, No. 09-16148 (5-26-11) (N. Smith with Goodwin and Collins).

A petitioner is precluded from raising a Batson claim if he failed to object to the state's use of peremptory challenges at trial.

Leavitt v. Arave, No. 08-99002 (5-17-11) (Kozinski with Rymer; dissent by Reinhardt).

The 9th reverses the granting of a writ for sentencing IAC. This was a gruesome murder/mutilation. Petitioner's seemingly unexplainable acts, it is now argued, resulted from an organic brain disorder. Petitioner's sentencing counsel, on remand, had decided not to ask the court for an MRI, despite a recommendation by the defense expert, a neurologist expert. Counsel's decision, explained the 9th, was defensible, as the trial court had denied an earlier request, and had indicated that mental testimony was secondary to other considerations at the re-sentencing. Characterizing the organic brain disorder as weak, the 9th also concludes, given the gruesome nature of the offense, that even if there was IAC, it was harmless. Dissenting, Reinhardt focuses on the fact that the organic brain disorder was the only way to explain the inexplicable: why a law-abiding citizen, husband, and father would act in such a terrible manner. The only explanation available must have been that there was something wrong in petitioner's brain. Yet, despite being pointed in that direction, counsel at the re-sentencing failed to make the motion, assuming that it would be denied, and went off on another strategy. This decision, concludes the dissent, is the essence of IAC.

U.S. v. Diaz-Ramirez, No. 10-10230 (5-23-11) (O'Scannlain with Trott and Campbell, D.J.).

In a case arising from "Operation Streamline" prosecutions in the District of Arizona (Tucson Division), and involving the Arizona FPD, the 9th found no Boykin error in the mass advisement of rights. The case arose from the practice of the magistrate court to advise groups of up to 70 defendants facing petty misdemeanor charges of their rights, charges, and consequences. This was followed later by individual questioning in smaller groups. Defendants allege a constitutional violation, in that this advisement violated due process because the record is silent as to whether they voluntarily and understandingly pleaded guilty as required by Boykin v. Alabama, 395 US 238 (1969). The case revolves around standard of review and burden production. The defendants contend that the record does not indicate their individual acknowledgement. The trial court and the 9th disagree. The 9th points to the efforts of the magistrate judge to ascertain whether everyone understood and the court asked that if anyone had questions, or wanted to go to trial, to so indicate. Counsel were present. There was, therefore, evidence of assent, and since there was no objection, the review was for plain error. Under this review, there was no constitutional violation. This issue does not involve Rule 11.

Williams v. Cavazos, No. 07-56127 (5-23-11) (Reinhardt with Kozinski and Whyte, D.J.).

Any opinion that starts with quoting the film "Twelve Angry Men" is a fair bet to conclude with relief. The odds are even better if the issue in the appealed case concerns a juror who wants to discuss what he considers a serious case (first-degree murder) in the face of the other jurors' impatience and frustration. Add a state trial judge who questions the jurors as to their votes, and the reluctant juror, and one should not be surprised that the 9th finds a Sixth Amendment violation. The petitioner here was charged with felony murder in a robbery that went bad. The case revolved around what petitioner's expectation was with the robbery. The jury started deliberation, and soon sent a note that one juror was being difficult. It seems that the juror said this was a serious case, disagreed with the felony murder rule (but would follow the law), and held the state to a very, very high standard. The trial court questioned the jurors, and then dismissed the hold out for being biased and substituted an alternate, who voted to convict. Initially, the 9th found that the state courts had not ruled on the Sixth Amendment issue, and that there were no bars or hurdles to consideration of the claim. Second, the 9th found a Sixth Amendment violation because (a) the court dismissed the juror not because he was biased (he was not), but because he was voting to acquit; and (b) there was no cause as the juror was deliberating, following the law, and was not improper. The petition was granted.

U.S. v. Lettiere, No. 10-30101 (Tashima with Kleinfeld and Silverman).

Things are different in Montana. The victim of the robbery here told the deputy sheriff on the scene that the defendant had robbed him of 5 lbs of marijuana and $12,000. The defendant was charged with robbery affecting commerce and use of a firearm in a crime of violence. The issue on appeal was whether the defendant had brandished the weapon. The defendant argued that he did not brandish; some of the evidence was that he did. He wanted an instruction defining it as flourishing menacingly. The court did not think brandishing was an element of the offense, but in light of the government saying it was (mistakenly), agreed. The definition the court gave, however, was the language in the statute, that the weapon had to be displayed in whole or part to intimidate. 18 U.S.C. 924(c). Of course, the 9th concluded, the statutory language trumped when clear. And clear it was. There is also a distinction between "use" and "brandish." In a concurrence, Tashima, who also wrote the opinion, explained that "brandish" was not an element of the offense; "use" was. "Brandish" is a sentencing factor to be found by the judge. However, because the government said it was an element, and shouldered the burden, charged it, and argued it, the court needs to treat it as an element. Here, the evidence supported the conviction.

Case o' The Week: FYI, BIA DOA: Hoang and Agg Felony Analysis

A great week: not a single criminal defendant lost in the Ninth on direct appeal. (Although, admittedly, no direct appeals from a criminal case were decided last week).

The slow week gives a chance to look at a great Judge Betty Fletcher immigration case that has ramifications for criminal defense (and that reminds us of the difficult challenges involved in our Padilla-advisement responsibilities). Hoang v. Holder, 2011 WL 1885989 (9th Cir. May 17, 2011), decision available here.

Players: Decision by Judge B. Fletcher, dissent by Judge Bybee.

Facts: Hoang, a Legal Permanent Resident (“L.P.R.”), pleaded guilty to the Washington offense of “rendering criminal assistance in the second degree,” a Washington state misdemeanor. Id. *1. His plea agreement conceded that he drove a fellow who committed the felony of a drive-by shooting. Id. Hoang was sentenced to one year imprisonment. Id. Five years later, the (then) INS charged Hoang as being a removable agg felon. Id. The Immigration Judge (“IJ”) ordered him removed, and the Bureau of Immigration Appeals (“BIA”) upheld the IJ”s decision. Id. Hoang petitioned the Ninth.

Issue(s): “This case requires us to determine whether petitioner’s state misdemeanor conviction for rendering criminal assistance is a crime related to obstruction of justice and thus constitutes an aggravated felony under . . . 8 USC § 1101(a)(43)(S).” Id.

Held: “In sum, Hoang’s conviction for a misdemeanor by rendering criminal assistance in violation of Washington Revised Code § 9A.76.080 lacks the necessary actus reus and is not categorically obstruction of justice according to the definition provided in In re Espinoza–Gonzalez, [21 I&N Dec. 889 (1999)]. Batista–Hernandez, [21 I&N Dec. 955 (1997)] does not control this case. Nothing in the record of Hoang’s conviction establishes that he provided assistance to an individual who was subject to a pending judicial proceeding or ongoing police investigation, and so his conviction does not qualify as obstruction of justice under the modified categorical approach. We GRANT the petition for review and REMAND for further proceedings consistent with this opinion.”

Of Note: In a thoughtful analysis, Judge Betty Fletcher walks us through the Taylor categorical analysis of the Washington statute. Id. at *2. Turning first to the categorical analysis, Judge Fletcher explains that no statute clearly sets forth the elements of the federal obstruction of justice crime. Id. She turns to the previous BIA decision in In re Espinoza-Gonzalez – endorsed by the Ninth – that found the generic offense required obstruction of judicial proceedings (by harming or threatening witnesses, for example). Id. The Washington statute didn’t have that element – and no facts cured this omission for the modified categorical analysis – so the BIA was wrong when it concluded this was an aggravated felony. Id. at *6-*7.

In a pointed dissent, Judge Bybee questions whether a another BIA decision – Batista-Hernandez – undermines Judge Fletcher’s analysis.

Happily, the third member of the panel, Judge Fernandez, agrees with Judge Fletcher to Hoang's gain and the BIA’s loss.

How to Use: Though not intended this way, Hoang is an object lesson in the pitfalls that await criminal defense counsel wrestling with immigration consequences – particularly in the post-Padilla world. Think about Hoang’s defense counsel’s situation, representing an LPR charged with involvement in a drive-by shooting. First, defense counsel pleaded the client to a misdemeanor, so no worries about the “agg felony” dangers of Section 1101(a)(43), right? Wrong: subsection (a)(43)(S) defines agg felony as an offense relating to obstruction of justice “for which the term of imprisonment is at least one year.” Id. at *1. Hoang did a year in custody, so his misdemeanor conviction could have counted. See generally id. at *1 & n2.

Moreover, a decade later the BIA and Ninth are still at odds as to whether this offense even qualifies as an agg felony – so how was defense counsel to have advised Hoang in 2000? In Padilla v. Kentucky, 130 S.Ct. 1473 (2010), the Supremes put the responsibility of advising our clients of immigration consequences squarely on our broad shoulders: Hoang illustrates just what a daunting responsibility that is.

For Further Reading: We’ve previously discussed the legendary friendship/feud of two Ninth titans: Chief Judge Kozinski and Judge Reinhardt. See picture above right, see also blog here. The pair rejoined their battle last week, in the capital habeas case of Leavitt v. Arave, 2011 WL 1844064 (9th Cir. May 17, 2011).

Don’t bother looking for the holding in Leavitt: just wince your way through the first paragraph of C.J. Kozinski’s majority decision and you’ll know which way the wind is blowing. Here's hoping dissenting Judge Reinhardt prevails in the en banc call.




Image of Chief Judge Kozinski and Judge Reinhardt from http://tsl.pomona.edu/new/images/photos/11-20/2009-11-12-Governing-with-a-Gavel-024.jpg


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


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U.S. v. Crawford, No. 09-17495 (5-13-11)(Fisher with Graber and Bybee).

This case sets out the procedure for challenging a bond determination. In Casas-Castrillon v. DHS, 535 F.3d 942 (9th Cir. 2008), the 9th held that aliens detained under 8 U.S.C. 1226(a), pending completion of their removal proceedings, are entitled to a bond hearing before an immigration judge to determine whether their ongoing detention is justified. This case answers what happens after the bond hearing, if the petitioner disagrees with the decision. The petitioner must file an appeal to the BIA, and if he disagrees with the BIA's decision, then he can file a habeas. Here, the petitioner was in habeas when Casas-Castrillon was decided. The district court remanded to the immigration judge for a hearing. The immigration judge detained the petitioner as a danger. Going pro se, the petitioner disagreed with the decision and filed a habeas again in the district court rather than appealing to the BIA. The petitioner alleged a failure to follow the court's order and a due process violation. The district court ordered a dismissal of the habeas because the immigration judge had held a hearing and so the order had been followed; and the district court felt it lacked jurisdiction to review due process violations under 8 U.S.C. 1226(e). On appeal, the 9th vacated the order and remanded with instructions to dismiss without prejudice. The 9th held that there was a failure to exhaust administrative remedies. The petitioner should have exhausted administrative remedies by appealing the IJ's order to the BIA. Now, if petitioner gores back and exhausts administrative remedies, he can then file a new habeas. The 9th rejected petitioner's contention that the district court should have heard the appeal to determine compliance with its remand order. By having a hearing and the IJ making a ruling, the order was followed.

Case o' The Week: An "Appealing" Restitution Case - Tsosie, Resitution, and Appellate Waivers

Restitution can be awkward business for everyone in the judicial process. Sometimes victims' claims can seem as fraudulent as our client's crimes -- and few AUSAs are keen to serve as a bill collector. There is no clear process for accurately determining restitution: claims are inevitably filed on the eve of sentencing, are never properly vetted through the presentence process, often have an emotional overlay, and rarely involve counsel. Claimants often want to speak at sentencing -- but are infrequently put under oath and are never cross-examined. Defense counsel for indigent clients rarely want to risk higher sentences by dickering over restitution claims that are very unlikely to ever get paid. And it is hard to advise about restitution: who knows at the guilty plea what restitution theories the victims will later come up with at sentencing?

In short, just the type of mess that should have an appeal available to sort it all out. Judge Berzon, happily, agrees. United States v. Tsosie, 2011 WL 1758785 (9th Cir. May 10, 2001), decision available here.


Players: Nice win for Az. AFPD’s Dan Kaplan and Sarah Stone, decision by Judge Berzon, partial concurrence and partial dissent by Judge Bea.

Facts: Tsosie pleaded guilty pursuant to a written plea agreement to abusive sexual contact with a minor, on a Navajo reservation. Id. at *1. The agreement jointly recommended 18 months (well-under 20% of the actual guideline range), but was silent on the amount of restitution. Id. At sentencing, the mother of the minor victim sought over $31,000 for expenses related to her repeated travel to a distant boarding school to visit her daughter. Id. at *2. This restitution request was supported by a long spreadsheet detailing the trips, and a declaration by a social worker filed the day before sentencing, explaining that the minor needed visits by a “loved family member to assist in the recovery process.” Id. at *2. The court sentenced Tsosie to eighteen months, and imposed the full restitution requested over defense objection. Id. Despite the plea agreement’s appellate waiver, Tsosie appealed the restitution order. Id. at *3.

Issue(s): “[Tsosie] contends that the appeal waiver was not knowing because he was not afforded notice of the amount of restitution to be ordered.” Id. at *3.

Held: “We agree with Tsosie’s . . . contention.” Id. “[W]e conclude that Tsosie’s waiver of appeal is ineffective as to the restitution order and so will consider his challenges to that order on their merits.” Id. at *5.

Of Note: Judge Berzon provides a persuasive explanation of why an appeal waiver is ineffective if there is no estimate of restitution. Unlike custodial terms – which are (theoretically) predictable thanks to statutory maximum sentences and the guidelines – the “sky is the only limit” to the potential restitution exposure of a defendant. Id. at *5. Therefore, the Ninth requires “a plea agreement to set forth the amount of restitution to which a defendant is exposed for the defendant to be able knowingly to waive his appeal of the restitution order.” Id. at *5. Here, notably, the restitution was far higher than anyone anticipated – even Probation didn’t recommend it. Moreover, Tsosie ultimately prevailed: the Ninth found insufficient evidence in support of the restitution order, and remanded for further findings. Id. at *7. The case gives Judge Berzon a nice illustration of why appellate waivers of restitution orders are unacceptable without some sort of notice of the amounts contemplated.

How to Use: Great decision, great holding, worrisome practical real-world impact (maybe). What if you have a fraud case, with a nice little negotiated loss amount calculated in a favorable plea agreement – and neither party really wants to describe hypothetical restitution amounts that don’t exactly jive with those plea agreement figures? (Particularly true for our indigent clients, where the likelihood of obtaining restitution is often nil.) In other words, is Tsosie’s requirement of restitution notice at the plea (in order to effectively waive appeal) going to muck with our negotiations over guideline loss amounts?

Maybe an “accurate and fairly circumscribed estimate of the range of the amounts” would be enough to lock-in the appellate waiver – although the panel neatly sidesteps that precise issue in this case. Id. at *3 n.4. Tsosie provides welcome appellate protection when the restitution order is unsupported or exceeds expectations – but beware that the decision may potentially complicate negotiated dispositions in unanticipated ways.

For Further Reading: Last week was a good one for the Arizona FPD. In United States v. Escalmilla-Rojas, 2011 WL 1797902 (9th Cir. May 12, 2011), the Ninth yet again looks askance at “Operation Streamline” – where fifty to seventy aliens are arraigned, plead guilty, and are sentenced en masse at a single efficient and dehumanizing hearing. Congrats to Arizona AFPD Jason Hannan and Defender Jon Sands (a fellow contributor to this blog), for fighting for the radical idea that a defendant should be advised of their rights at a plea colloquy less than two hours from being asked to surrender those rights.



Image of "Arizona Wins" from http://alexandluke.com/arizona


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

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U.S. v. Escamilla-Rojas, No. 10-10185 (5-12-11)(O'Scannlain with Trott and Campbell, D.J.)(Editorial note: This case arises from the Arizona FPD Office representation).

In the Tucson division of the District of Arizona, the court has adopted an en masse procedure for taking the pleas of up to 70 defendants as part of "Operation Streamline." Operation Streamline is a prosecutorial initiative that criminal charges all undocumented aliens who are arrested in a border sector. In U.S. v. Roblero-Solis, 588 F.3d 692 (9th Cir. 2009), the 9th, in a case from the same district, division and same AFPD, held that Fed R. Crim P. 11 (Rule 11) requires an individual and personal colloquy as to rights. The procedure changed as a result, with small groups of defendants being addressed and a personal exchange as to their understanding of the offense. Here, as it happened, the magistrate gave a general advisement to the group (66 defendants), advising them of the offense, the elements, their rights and the consequences of the guilty plea. The magistrate then called defendants up in small groups and asked whether they understood the crime, the elements of the offense, their rights, and the maximum penalty. After the defendant answered, sentencing followed. There was a two hour gap between the general advisement and the personal questioning. The 9th held that this was error. Rule 11 was not strictly followed. The mass advisement followed by a two-hour delay before questioning the defendant alone was not sufficiently "personal" as required by Rule 11. Although the procedure violated Rule 11, the 9th ultimately found the error harmless due to the facts that the defendant entered her plea knowingly and with knowledge of the consequences. Moreover, she did not allege she would have pleaded differently if advised individually. The 9th also held that the court's error in not asking whether the plea was voluntarily was not prejudicial under a plain error analysis. Lastly, the 9th did not find a due process violation nor a Sixth Amendment violation. Indeed, the 9th pointed to counsel's "superior" representation during the procedure. The bottom line is that the district court and magistrate judges now have to alter their en masse Rule 11 advisements to ensure that the Rule's requirement for a personal addressing of the defendant is followed. The 9th, in a note suggested, reducing the time gap, or written waivers. It will need to be seen. Procedural fairness is not a commodity one discounts in bulk; a court is not a Costco.

Congratulations to AFPDs Jason Hanna and Brian Rademacher, FPD Arizona (Tucson).

U.S. v. Tsosie, No. 10-10030 (5-10-11) (Berzon with Paez; concurrence and dissent by Bea)(Editorial note: This case is from the Arizona FPD office).

The issue here is restitution. Under a plea agreement, the defendant pled guilty to abusive sexual contact arising on the Navajo Indian reservation and was sentenced to 18 months (the guideline range was 97 to 121 months). He was also ordered to pay restitution in the amount of $31,994 to the victim's mother to cover costs incurred in making trips between her home and the victim's boarding school, 150 miles away. The defendant argued that such travel costs were not appropriate because they were not incurred by the victim under 18 U.S.C. 2244(a)(1); and that the restitution was ordered in violation of procedural and evidentiary requirements of 18 U.S.C. 3664. The 9th held that such costs were allowed by restitution but that procedure and evidence for the restitution was lacking. There was also no waiver of the appeal. The restitution, argued the victim's mother, was for travel to visit and see her daughter because of medical issues and for emotional support. (The PSR only recommended $200 because of lack of support). The 9th first considered whether the appeal was waived, and held it was not because the defendant did not get notice of the amount when he agreed to plea. The policy and precedent so compel because there is no guidance or set amount of restitution as there is, say, for a sentence or fine. Turning to whether restitution to the victim's mother falls within the statute, the 9th holds it does so long as the mother's actions or trips were for the victim and required, as apparently it was here by a counselor. The amount is vacated and the sentence issue remanded because the district failed to set forth its reasons for the restitution amount and failed to have the amount adequately supported by evidence. The proferred evidence, a spreadsheet showing trips over several years, was not a sworn statement, there were incosntitenciues and oddities, and some of the trips may not have been for treatment related to the abuse. The 9th believes that procedural due process mandates a stronger evidentiary link. Bea concurs in finding that the appeal was not waived and that the mother could seek restitution. He dissents however from the finding of inadequacy of evidence because he would hold that the spreadsheet was sufficient. Bea would excuse the "oddities" because one would expect a "few inaccuracies or confusing entries." Bea wanted more specific objections.

Congrats to AFPDs Dan Kaplan and Sarah Stone, Arizona FPD (Phoenix).

Velasquez v. Kirkland, No. 08-55823 (5-10-11)(O'Scannlain with W. Fletcher and Clifton).

The 9th decides a tolling issue. The petitioner was convicted of first-degree murder in California. His appeals and state habeas were denied, and he went to federal court. Under AEDPA, however, he was over time by 767 days. He argued that this was statutorily, or, in the alternative, equitably tolled. He argued that the state court's denial 'on the merits" and the state's requirement that his appeals be filed in a reasonable time both were enough to statutory tolling. The 9th found it was not because the Supremes have held that an indeterminate "reasonable" period was close to a determinate 30 to 60 days. Here, the delays were longer. There was also no equitable tolling due to Evans v. Chavis, decided after the petitions were filed, which held that an "on the merits" denial did not necessarily toll. The 9th held that federal courts independently determine what a state can find timely or untimely; that the petition could not have relied on the state's timely consideration even if he was untimely; and that counsel's failure to recognize that an 80 to 90 day delay would be considered untimely is not an external force. The petition is denied.

Case o' The Week: NSFW - Nosal and "Unauthorized" Access to an Employer's Computer

A slow week in the Ninth let's us reach back a bit to discuss an interesting, albeit disappointing, decision on the Computer Fraud and Abuse Act ("CFAA.") United States v. Nosal, 2011 WL 1585600 (9th Cir. Apr. 28, 2011), decision available here.

A warning, first: after Nosal, do NOT click here if you're viewing this on a work computer - quite possibly a federal crime, to do so .

Players: Decision by Judge Trott, hard-fought appeal by ND Cal appellate guru Dennis Riordan.

Facts: Nosal worked for a headhunter firm. When he left, he signed a non-compete agreement. Id. Despite this agreement, Nosal recruited three of the firm’s employees for his new, competing business: those employees allegedly transferred information from the old firm’s computer database to Nosal. Id. at *2.

The old firm had significant security measures on their computers: passwords, confidentiality stamps on all reports, and warnings against unauthorized access. Id. at *2.

Nosal and one of his accomplices were charged federally with violations of 18 USC § 1030(a)(4), the Computer Fraud and Abuse Act. Id. District Judge Marilyn H. Patel dismissed five counts on the defendant’s motion, concluding after the Ninth’s recent decision in LVRC Holdings v. Brekka that the CFAA only applied to hacking a computer (or directories) where the employee did not otherwise have no access. Id. at *3. The government took an interlocutory appeal. Id. at *1.

Issue(s): “The government contends . . . that Brekka counsels in favor of its interpretation of the statute – that an employee exceeds authorized access when he or she obtains information from the computer and uses it for a purpose that violates the employer’s restrictions on the use of that information.” Id. at *1.

Held: “Although we are mindful of the concerns raised by defense counsel regarding the criminalization of violations of an employer’s computer use policy, we are persuaded that the specific intent and causation requirements of § 1030(a)(4) sufficiently protect against criminal prosecution those employees whose only violation of employer policy is the use of the company computer for personal – but innocuous – reason.” Id. at *1. “Brekka held that a person accesses a computer without authorization ‘when the person has not received permission to use the computer for any purpose.’ 581 F.3d at 1135. Today, we clarify that under the CFAA, an employee accesses a computer in excess of his or her authorization when that access violates the employer’s access restrictions, which may include restrictions on the employee’s use of the computer or of the information contained in that computer.' Therefore, we REVERSE the district court’s decision . . . .” Id. at *8.

Of Note: With all respect to the majority, dissenting Judge Tena Campbell – a visiting D.J. from Utah – has the better argument. Id. at *8. She persuasively argues that the key phrase relied upon by the majority – “exceeds authorized access” has much broader meaning (without an intent requirement) in other parts of the same statute, making the majority’s decision unconstitutionally vague. Id. Congress meant this statute for hacking, she explains, and she worries (with reason) that the majority’s decision makes any unauthorized action on a employer’s computer a federal crime. Id. at *9-*10. (How many millions of apparent federal criminals were checking their brackets during March Madness this year, one wonders). Judge Campbell also doesn’t buy Judge Trott’s heavy reliance on one word in the statute, (“so”) to salvage the government’s interpretation. Id. at *10.

Worth noting that in another recent case (which just went en banc), a great dissent by a visiting district judge caught the Ninth’s eye: the majority decision will hopefully soon be corrected. See United States v. Leal-Felix, 625 F.3d 1148, 1151 (9th Cir. 2010) (Bennett, D.J, dissenting). Here’s hoping that Judge Campbell is as persuasive a visitor as Judge Bennett, and that Nosal gets some much-deserved en banc scrutiny.

How to Use: As noted above, Nosal’s novel holding deserves en banc review, and a PFR seems likely. Preserve pretrial challenges to § 1030(a)(4) charges – Nosal will hopefully not be the last word on this statute.

For Further Reading: Who was Nosal’s attorney? Joe Russoniello, at one point – ring a bell? (Picture left). For more on the Nosal saga, and why the ND Cal USAO is still in the case, see blog here.


Image of the March Madness brackets (obtained while at a home computer), from http://www.betvega.com/march-madness-printable-bracket/

Image of (former) United States Attorney / (former) David Nosal defense counsel, David Nosal, from http://informant.kalwnews.org/2010/08/web-extra-extended-interview-with-joe-russoniello/


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

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U.S. v Sanchez, 10-10229 (5-5-11) (Conti, DJ, with Schroeder and Thomas).

"No contact" is not the same as "no force" when it comes to the 922(g)(8) prohibited possessor bar. The defendant here had an order issued in state court forbidding contact with a domestic partner. He was arrested with a gun and charged with 922(g)(8). The 9th reversed the conviction, holding that a judgment of acquittal should issue. The statute requires an order barring force, attempted force, or threats. The order does not have to use these exact words, but "no contact" is not the same as force.

Doody v. Ryan, No. 06-17161 (5-4-11) (en banc) (Rawlisnson with Schroeder, B. Fletcher, Pregerson, Reinhardt, and Thomas; concurrence by Kozinski; dissent by Tallman with Rymer and Kleinfeld).

On remand from the Supremes in light of its Miranda decision in Powell, the 9th, sitting en banc, again holds that the confession to killing nine individuals, of whom six were Buddhist monks, violated petitioner's Miranda rights and was involuntary. The 9th carefully went through the facts, including the downplaying, deviations, and express misinformation in giving the Miranda warnings to a juvenile, with no criminal priors, and who was foreign. Powell, considering the wording of Miranda warnings, is not applicable when the police undermine and undercut the warnings in 12 transcript pages of downplaying the simple warnings. As for voluntariness, the 9th also considered the length of the questioning, stretching over 13 hours, by a tag team of officers, who, in a related matter, used the same techniques to squeeze false confessions out of four men later released. The petitioner was comatose for long periods, and subjected to relentless questioning. Yes, the Arizona state courts had found the warnings valid and the confession voluntary, but the state court was unreasonable in its factual determinations and unreasonable in its application of the law. As the 9th colorfully put it: "[I]f 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." The majority, in supporting its holding, calls out the dissembling of the dissent's reading of cases. Concurring, Kozinski discusses AEDPA and its deference, and using that standard, would defer to the state court's holding that the statement was voluntary, but would find that a Miranda violation did occur and that the state court's were unreasonable. In dissent, Tallman joined by Rymer and Kleinfeld, argue that AEDPA deference supports the state court's rulings. They focus on the reasons why it might be reasonable, and downplay the facts the majority found so convincing.

U.S. v. Li, No. 10-10079 (5-2-11) (Tashima with W. Fletcher and Berzon). No man is an island, entire of himself. And yet, when defendant tried to go from the Commonwealth of the Northern Mariana Islands to the Territory of Guam by boat, across international waters, they were charged with attempted entry at a time and place not designated by immigration officers under 8 USC 1325(a)(1). Only one problem: it was not a crime. The Commonwealth is considered part of the United States under 1325, and traveling across international waters from one part of the U.S. to another does not count as entry. Moreover, Congress does not appear to have sanctioned criminal charges for those who travel between the Commonwealth and Guam. The conviction is reversed.

U.S. v. Nosal, No. 10-10038 (4-28-11) (Trott with O'Scannlain; dissent by Campbell, Senior DJ, Utah). Do employees really read or follow employer's computer use policies? They had better start, because the 9th holds that such an intentional violation could well lead to criminal charges. Oh no, the 9th would say, an innocuous access to certain information, or access without intent, should be enough. We will see. Here, defendants got information from their employer's computer allegedly for the purpose of defrauding the employer and setting up a competing business. This violates the Computer Fraud and Abuse Act, 18 U.S.C. 1030. The statute states that someone who goes beyond set purposes of computer access is considered to have exceeded authorized access and thus violated the statute. This is a broad reading, but the 9th, in LVRC Holdings, LLC v. Bekka, 581 F.3d 1127 (9th Cir. 2009), seemed to interpret the statute as making irrelevant policy usage if the defendant had any access at all. If the defendant had any access, overstepping by itself could not be criminal. The district court in adopting this reading dismissed counts. The government appealed, and argues, successfully, that the overstepping is relevant, it violates the statute's clear language, and that it is a factor for consideration of specific intent. The 9th joins other circuits in using the employer's access policies and computer use policies to show possible intent. If such policies could not be used, what use would they be? The 9th states that if one steps over the use line, one could arguably have violated the statute. Dissenting, Judge Campbell thinks the statute is void for vagueness, and that statutory construction should limit it to those who are barred from any usage, rather than possible policy violation. The statute was written in the new age of computer usage, and the majority's interpretation is unrealistic as to how computer usage has developed at work.

U.S. v. Whitlock, No. 10-30124 (4-28-11) (Fisher with Graber and M. Smith). In a SR case, the 9th holds that post-revocation sentencing recommendations made by the probation office must be disclosed unless the local rules reads otherwise or the district court so orders. However, it is not a due process or equal protection violation if the recommendation is not disclosed by local rule or the court orders it not disclosed so long as the factual determinations and underpinnings are disclosed. Essentially, it would be nice if the recommendations were disclosed, but it is not a constitutional violation if they are not provided there is a local rule or the court orders, and the facts in the report are let out. Here they were, and so the SR revocation sentence is affirmed.

Kemp v. Ryan, No. 08-99030 (Callahan with Rymer and Ikuta). The 9th affirms denial of capital habeas. The petitioner argued that his statements were a result of constitutional violations; that there was insufficient evidence to show the requisite mental state necessary for imposition of the death penalty, and that his constitutional rights were violated by the admission of other bad act evidence, by late disclosure by the state, and by the failure to voir dire on the issue. Under AEDPA's deferential standards, the 9th holds that the Arizona Supreme Court's opinion affirming his conviction and sentence was not an unreasonable application of federal law nor an unreasonable determination of the facts.

U.S. v. Henderson, No. 09-50544 (4-29-11)(B. Fletcher with concurrences by Berzon and Callahan). "We therefore hold that, similar to the crack cocaine Guidelines, district courts may vary from the child pornography Guidelines, 2G2.2, based on policy disagreement with them, and not simply based on an individualized determination that they yield an excessive sentence in a particular case. See Spears, 129 S. Ct. at 843; Kimbrough, 552 U.S. at 109-10." (notes omitted). Opinion at 5613-14. The holding says it all. In this case, the defendant had a horrific abusive childhood and he suffers from extensive mental illness. At sentencing for possession of child porn, the district court was reluctant to accept an argument that he could vary based on a policy disagreement with the Sentencing Commission, instead giving a slight variance for individualized sentencing. On appeal, the 9th goes through the ratcheting up of the child porn Guidelines, concluding that the Guidelines have been extensively revised nine times in during 23 years, and that the revisions by and large have been a result of Congressional mandates and not the result of empirical study. the 9th then goes through the sentencing cases from the Supremes, stressing that sentencing courts have discretion, but that, on appeal for reasonableness, discretion to vary needs less explanation when it is individualized sentencing rather than when it is a policy disagreement with the Guidelines. This goes to appellate review of whether courts can vary simply because they feel that the Commission got the policy wrong. In porn cases, like crack, the policy is wrong. It therefore aligns with Kimbrough in allowing no deference to the Guidelines as sentencing policy statements. A variance from such Guidelines, in crack and here in child porn, is not suspect. Of course, each sentencing is different, and a court must individualize the sentencing. The court must consider all sentencing factors, and the court is not under an obligation to vary on policy grounds if they do not have a disagreement. A court must however consider its power to vary, and it can vary on policy grounds in this case, and in other cases for other crimes if explained. A remand is necessary to allow the court to exercise its discretion. Berzon, concurring, writes to emphasize how odd the Guidelines are in this case and makes no sense from a sentencing perspective. She cites an AFPD's study: Troy Stabenow, "Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines, Jan. 1, 2009 (unpublished comment) (available at http://www.fd.org/pdf_lib/child%20porn%20july%20revision.pdf (last visited Apr. 19, 2011)." Callahan, concurring, believes a remand is necessary, but does not join the majority in believing that the policy disagreement comes with the Kimbrough policy purview.

Congratulations to AFPD Jim Locklin and FPD Sean Kennedy of the Los Angeles FPD's office.

Case o' The Week: (De)construction Ahead - Henderson and Child Porn Guidelines

At a fundamental level, Apprendi, Booker, Kimbrough and Gall are skirmishes in a separation-of-powers war between Article III judges and Congress, arising from the politically-expedient policy decisions that have plagued federal sentencing for the last several decades. Plainly-stated, Congressionally-dictated sentencing guidelines flatly intrude on what judges do best: judge.

If you had to choose, who is one of the best jurists to bear the Bench's banner in this battle?

We think so, too. United States v. Henderson, 2011 WL 1613411 (9th Cir. Apr. 29, 2011) (Fletcher, B., J., writing majority opinion explaining child pornography guideline is squarely subject to Kimbrough deconstruction challenge and must be addressed by district court when raised), decision available here.

Players: Remarkable decision by Judge Betty Fletcher, equally good concurrence by Judge Berzon, additional concurrence by Judge Callahan. Important victory by CD Cal AFPD James Locklin.

Facts: An undercover FBI Agent discovered Henderson through Limewire and downloaded child porn from him; there followed a search and a full confession. Id. at *1. Over 8,000 files were recovered, as well as hard-copy pictures of actual female minors who had been brought into Henderson’s home. Id. (There were no allegations of sex with these minors).

Henderson pleaded guilty to possession of child porn, with guidelines in the 108-120 range. Id. at *2. Based on Henderson’s tragic history of childhood abuse and documented mental illness, the Probation Office recommended a departure to 70 months. Id. The district court departed downwards to 78 months, but balked on the defense recommendation of 36 months. Id. at *2-*3.

At sentencing, the district court refused to engage with the defense policy challenge to the child porn guidelines explaining, “I’m going to need direction from the Ninth Circuit before I accept those other arguments . . . .” Id. at *3.

Issue(s): “Henderson challenges the district court’s failure to exercise the discretion accorded it in Kimbrough v. United States, 552 U.S. 85 (2007) to vary from the Sentencing Guidelines based on policy disagreements with them and not simply based on an individualized determination that they yield an excessive sentence in a particular case.” Id. at *1.

Held: “We . . . hold that, similar to the crack cocaine Guidelines, district courts may vary from the child pornography Guidelines, § 2G2.2, based on policy disagreement with them, and not simply based on an individualized determination that they yield an excessive sentence in a particular case.” Id. at *7 (footnote omitted). “[A] district court commits procedural error when it fails to appreciate its Kimbrough discretion to vary from the child pornography Guidelines based on a categorical policy disagreement with them.” Id. at *8.

Of Note: “District judges who, after having considered § 2G2.2, conclude that it constitutes bad advice should be encouraged to reject it as such.” Id. at *9 (Berzon, J., concurring) (emphasis added). So explains concurring Judge Berzon, who reveals the “anomalous” history of a guideline that produces “unjust and sometimes bizarre results.” Id. at *8 (Berzon, J., concurring). Henderson is a must-read for anyone with a child porn case in the Ninth: it reflects the palpable distrust of the Commission’s child pornography guidelines by the federal bench, and is a beautifully-detailed chronicle of how this particular guideline is the by-product of Congressional -- intervention -- instead of a reasoned, empirical analysis by the Sentencing Commission.

How to Use: Almost any district judge will be more comfortable with a variance based on a defendant’s individualized factors, rather than a full-frontal assault on the Sentencing Guidelines. In reality, however, Henderson (and all Kimbrough policy attacks) can make those individualized variances more attractive: after all, a significantly substantial variance based on regular § 3553(a) factors can moot the defense pitch for a Kimbrough reduction.

For those admirable D.J.’s who are feeling their Article III oats, however, Henderson is the green light to gambol after years of chaffing under the guideline yoke. Judge Fletcher carefully explains how Henderson is right in line with Mitchell, which opened the season on the Career Offender guideline for Kimbrough policy attack. Id. at *7 n.5. What’s the next guideline to fall? Our nominee is § 2L1.2, the hated and often-arbitrary illegal reentry guideline. For a great attack on this lousy guideline, see article here.

For Further Reading: WD Mo. AFPD Troy Stabenow is a hero of the defense community for his early and exacting deconstruction of the child pornography guidelines. See Troy Stabenow, Deconstructing the Myth of Careful Study: A primer on the Flawed Progression of the Child Pornography Guidelines, Jan. 1, 2009, available here.

How good is Troy’s piece? It is cited very favorably in the first paragraph of Judge Berzon’s concurrence (and she is not the first appellate judge to do so). Id. at *8 (Berzon, J., concurring).

Image of the Honorable Judge Betty Fletcher from http://connect.in.com/betty-binns-fletcher/photos-1-1-1-360b4c8fe3b65f272bc434950f5b4467.html

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

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