U.S. v. Snyder, No. 10-30148 (6-30-11) (Bea with Ikuta; Tashima concurring).

You can run but you can't hide from Supreme Court precedent. That is basically the holding here, where the 9th vacates a sentence and remands for imposition of a mandatory ACCA term. The defendant plead to being a felon in possession. One prior felony was an attempt to elude police under an Oregon statute. The 9th holds that U.S. v. Sykes, affirming the 7th Cir, 2011 WL 2224437 (June 9, 2011), is close enough to control. Sykes involved fleeing police was a violent offense, and so the 9th concludes is this one. The 9th also holds, for another prior, that a no contest plea has the same effect as a guilty plea. It also concludes that while the 9th has recognized that Oregon's burglary statute is broader than the Taylor categorical burglary, the burglary here, under a modified categorical approach, can be categorized as a burglary of a building because the indictment listed an address. Concurring, Tashima states that he is bound by U.S. v. Stephens, 237 F.3d 1031 (9th Cir. 2001), where a street address and a "building" are sufficient for a finding of a modified categorical approach. Tashima points out that an address and a "building" could be a ten-acre plot full of trucks, RVs, booths, and sheds. Use of an address and a term "building," to him, does not narrow the broad category to an acceptable Taylor category.

U.S. v. Chapman, No. 10-10338 (6-27-11) (Rosenthal, D.J. with B. Fletcher and Thomas).

The 9th previously upheld a dismissal of a prosecution with prejudice as a result of Brady and Giglio violations. The 9th also previously affirmed a denial of the appellants' request for an award under the Hyde amendment for attorneys' fees and costs. Appellants subsequently sought to reopen their claim under Fed. R. Civ. P. 60(b)(3) because of an internal government memo written after the district court's dismissal of the indictment. The district court denied their motion. The 9th affirmed, finding no abuse of discretion. The original dismissal was for failure to disclose and not on the merits for innocence.

Schleining v. Thomas, No. 10-35792 (6-27-11) (Bea with Kozinski and Ikuta).

A federal inmate is not eligible for federal "good conduct" for the time he served in state custody on state charges before being sentenced on a related federal charge in federal court.

Case o' The Week: Better to Lose than Tie -- Flores-Perez and Interlocutory Appeal of Rule 29 After Hung Jury

Cirilio Flores-Perez had the bad luck to hang his federal jury, 9-3 for acquittal.

If he wanted review of the denial of his Rule 29 motions, explains the Ninth, he should have gone for a conviction. United States v. Flores-Perez, 2011 WL 2450984 (9th Cir. June 21, 2011), decision available here.


Players: Hard-fought and clever appeal by San Diego Assistant Defender Devin Burstein. Decision by Senior District Judge Mills (C.D. Illinois).

Facts: Flores-Perez hung a federal jury on a one-count indictment alleging an attempt to transport an undocumented alien. Id. at *1. (Nine to three in favor of acquittal, by the way). Id. The district court denied his Rule 29 motions brought at the close of the government's case and after the jury hung. Id.

The government then re-indicted with four counts, including the "attempt count." Id. Flores moved the district court to dismiss the superseding indictment on double jeopardy grounds. Id. His motion was denied, and Flores-Perez appealed. Id.

The government challenged the appeal for lack of jurisdiction. Id.

Issue(s): [Ed. note: The ‘84 Supreme Court decision Richardson v. United States, 468 U.S. 317 (1984), effectively eliminated defense double jeopardy challenges on interlocutory appeal, after a mistrial or hung jury.]

“[U]nder Richardson, double jeopardy claims asserting termination of jeopardy due to a hung jury and associated mistrial are no longer colorable.” Id. at *2. "Flores argues that Richardson and its progeny are not controlling because he is appealing the denial of his motion to dismiss the superseding indictment, not his Rule 29 acquittal motion.” Id.

Held: “We hold that the filing of a superseding indictment after mistrial does not raise a colorable double jeopardy claim.” Id. at *3. “[W]e lack jurisdiction to review the district court’s denial of the motion for acquittal.” Id. at *4.

Of Note: Senior, out-of-circuit, district Judge Mills creates a new Ninth rule in this case. The San Diego Defender cleverly argued that it wasn’t challenging the Rule 29 motion (barred on interlocutory appeal); it was challenging the superseding indictment that followed the jury hang. Id. at *3-5. Judge Mills rejects the challenge and makes a new Ninth rule along the way: “the issuance of a superseding indictment does not nullify the original indictment, and . . the issuance of a superseding indictment does not terminate the original jeopardy.” Id. at *4.

This is one of those simple new rules that has complex ramifications. Judge Mills favorably quotes authority that explains that all a superseding indictment does is create another choice for the government to proceed upon a trial – the original indictment, or the superseding. Seems the prudent move for the defense (and the district courts) is to now insist that earlier indictments be dismissed by the government when a superseding indictment is obtained, to prevent prosecutors from leap-frogging among charges before trial.

How to Use: Consider this case in the context of Allen charges. The decision on whether to ask for an Allen charge is always a tough choice for the defense. Remember than an Allen charge is that “dynamite” jury instruction designed to push a hung jury towards unanimity. Flores-Perez reminds us why this is such a hard call. If you’ve lost a truly righteous Rule 29 motion in the district court and end up with a hung jury and mistrial, you can kiss your appeal good-bye.

Is it actually better, in that setting, to get the Allen charge, risk the conviction, and preserve the right to appeal the denial of the Rule 29 motion? Flores-Perez is a good cases to tuck next to the Allen instruction tab on your trial binder, as a reminder of the appellate issues at stake.

For Further Reading: The Supreme Court’s Richardson decision created a particularly galling rule. To see the Richardson rule in action, consider James: a case out of the ND of Cal.

In the first round of this bank robbery case, the government flat-out forgot to introduce proof of FDIC insurance. The district court erroneously denied the Rule 29 motion, and the jury convicted on three out of four counts – hanging on the fourth. Jeopardy attached, the bank robber appealed, the denial of the Rule 29 was reversed by the Ninth, the defense celebrated. United States v. James, 987 F.2d 648, 652 (9th Cir. 1993).

But, as noted above, on the fourth count the jury hung. Because jeopardy didn’t attach, no interlocutory appeal was available and the bank robber never got the FDIC / Rule 29 issue from the fourth count before the Ninth. See United States v. James, 109 F.3d 597 (9th Cir. 1997). James was tried again and convicted. Id. at 598. Hence, after Richardson, the clearly-guilty – who have the good fortune of getting convicted – enjoy appellate review of their Rule 29 motion. Defendants facing weaker proof, who hang their juries, are out of luck in the Ninth.


"Hung jury" logo from http://www.hungjurytheband.com/


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

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U.S. v. Renzi, No. 10-10088 (6-23-11) (Tallman with Callahan and Donlon, D.J.).

Daresay that we will see little use of this precedent in indigent defense. The 9th denies dismissal of an indictment against a former Congressman, who argued that the Speech and Debate Clause of the U.S. Constitution barred prosecution of him. The allegations involved a quid pro quo buying of land by a former business partner who owed defendant a debt in exchange for future support of public land exchanges. The defendant argued that he did not even have to defend himself against these charges because his acts as a legislator fell under the Speech and Debate protection. No, said the 9th, the the clause does not shield against public corruption and the acts here were not protected.

Reina-Rodriguez v. U.S., No. 08-16676 (6-22-11) (Thomas with B. Fletcher and Gertner).

In a habeas petition, the 9th retroactively applies Grisel, and vacates a sentence in a 1326 underlying conviction. The district court had found a Utah 2nd degree burglary conviction to be a "crime of violence" under a categorical approach and due to a sua sponte investigation of public records. The conviction was affirmed on appeal. The 9th subsequently in U.S. v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc) overruled precedents suggesting state statutes satisfied Taylor's categorical inquiry when burglary was defined to include non-buildings adopted for overnight accommodation. A modified categorical approach was needed. In habeas, the 9th analyzes Teague and Grisel, finding that Grisel was a substantive non-constitutional decision that deserved retroactive application. In looking at the sentence, and conviction, the 9th found that a modified categorical analysis was not properly conducted. The case was remanded for resentencing.

Congratulations to AFPDs Chris Kilburn and Brian Rademacher of the Arizona FPD (Tucson) office.

U.S. v. Martinez, No. 08-50141 (6-22-11) (Noonan with Wardlaw and Korman, Sr. D.J.).

The 9th affirmed convictions and sentences in a RICO conviction with life sentences involving the Mexican Mafia. The 9th went through the requirements of RICO, and found that evidence was presented that satisfied the convictions, that the use of a FBI agent as a fact witness and an expert on the Mexican Mafia was not an error, and that the life sentences were reasonable.

U.S. v. Flores-Perez, No. 10-50246 (June 21, 2011) (Mills, D.J., with Wallace and Graber).

This is a double jeopardy issue. The defendant faced a transporting aliens charged. There was a mistrial, with the jury hanging 9 to 3 to acquit. The court had denied the defendant's Rule 29 motions. In the meantime, the government superseded with a four-count indictment, alleging the same offense and adding conspiracy, attempt, and bringing in for financial gain. The defendant appealed, arguing double jeopardy because the court should have granted his Rule 29 motions. The 9th dismisses for want of jurisdiction. The 9th first held that it lacks jurisdiction to consider the double jeopardy claim. The Supreme Court's decision in Richardson v. U.S., 408 US 317 (1984) controls. Second, because the mistrial meant that there was no termination of the original charge, the superseding indictment is just that: superseding the still original charge. It does not create a colorable double jeopardy claim nor does it end the original jeopardy.

U.S. v. Park, No. 09-50609 (6-17-11) (Wallace with Graber and Mills, D.J.).

In a felon in possession case and sentencing, the 9th considered a prior conviction and holds that California's first degree burglary statute is a crime of violence pursuant to the residual clause of USSG 4B1.2(a). See Cal. Penal Code 460. The 9th so holds because the statute requires entry into an inhabited dwelling with an intent to commit a theft or felony. In a two-step analysis of the categorical approach, the first step presents a serious potential risk of physical injury; and the second step is roughly similar to enumerated offenses in the Guideline's residual clause's first section. Since the district court held that the offense was not a crime of crime, the sentence is vacated and remanded for correct Guideline calculation.

U.S. v. Wiles, No. 10-30224 (6-17-11) (Tashima with Kleinfeld and Silverman).

The 9th holds that a prior conviction for attempted sexual assault under Montana law is a predicate offense that triggers an enhanced sentence. This case extends U.S. v. Sinerius, 504 F.3d 737 (9th Cir. 2007), which held that a prior conviction for sexual assault enhanced a federal conviction for transporting or receiving child pornography.

Case o' The Week: Ninth Holds Park Burglary a C.O.V. -- Park, Cal Burgs, and Crime of Violence

Still no word, yet, on whether a California first degree burglary conviction is a "crime of violence" for the illegal reentry guideline -- still waiting for both Aguila Montes de Oca and Godot.

This week did, however, bring unfortunate clarity on whether a Cal burg is a "crime of violence" for the Career Offender definition. United States v. Park,__ F.3d __, 2011 WL 2418906 (9th Cir. June 17, 2011), decision available here.

Players: Decision by Judge Wallace (left) , joined by Judge Graber and visiting D.J. Richard Mills.

Facts: Park pleaded guilty to being a felon in possession. Id. at *1. At sentencing, the district court found that his prior California burglary felony was not a “crime of violence” that increased his guideline range under § 2K2.1. Id.

To define “crime of violence,” the gun guideline (§ 2K2.1) turns to the definition used for Career Offender in USSG § 4B1.2(a). Id. That definition characterizes conduct as a “crime of violence” as “any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that – [is an enumerated offense],. . . or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id.

The government appealed.

Issue(s): “The only question raised in this appeal is whether California first-degree burglary categorically falls within section 4B1.2(a)(2)’s ‘residual clause,’ in that it ‘involves conduct that presents a serious potential risk of physical injury to another.’” Id. (quoting USSG § 4B1.2(a).

Held: “A violation of California’s first-degree burglary statute is a ‘crime of violence’ under U.S.S.G. § 4B1.2(a)’s residual clause.” Id. at *5.

Of Note: Judge Wallace let no moss grow on the Supreme Court’s latest Taylor opinion, Sykes v. United States, 2011 WL 2224437 (S. Ct. June 9, 2011). Sykes’s is cited throughout Park, which came out just eight days later.

Unfortunately, Sykes is a lousy decision which holds that a felony “flight by offender” conviction is categorically a “crime of violence” offense for the Armed Career Criminal Act (ACCA). Justice Scalia’s critique of Sykes applies, perhaps, with equal force here in Park:

As was perhaps predictable, instead of producing a clarification of the Delphic residual clause, today’s opinion produces a fourth ad hoc judgment that will sow further confusion. Insanity, it has been said, is doing the same thing over and over again, but expecting different results. Four times is enough. We should admit that ACCA’s residual provision is a drafting failure and declare it void for vagueness.”

Sykes, 2011 WL 2224437, *17 (Scalia, J., dissenting).

If you’re confused and secretly irritated by the many conflicting standards from the Taylor categorical analysis of the “crime of violence” definition, take heart: you’re not the only one.

How to Use: June has been a bad month for our poor lads with – colorful – pasts. Park makes California burglary a “crime of violence” for the federal gun guideline, Section 2K2.1 – cranking up the guideline’s base offense levels. Hate to concede it, but Park also almost certainly means that a Cal burg is a "crime of violence" for Career Offender – the same defining guideline is used for both Section 2K2.1 and the Career Offender guideline (USSG § 4B1.2(a)). As noted above, Sykes makes felony “flight by offender” a crime of violence for the ACCA. And, as Judge Wallace explains in Park, ACCA “crime of violence” precedent weighs heavily in the Career Offender analysis. In short, defense counsel should re-work their red flag cheat sheets and maybe revisit some sentencing advisement letters.

For Further Reading: Daniel Hyun Park’s guideline range has now probably doubled thanks to this case: luckily, on remand his district judge can and should Do The Right Thing and § 3553(a) right back down to a three-year sentence.

Unfortunately, ACCA defendants don’t get that shot at a just sentence – picayune parsing of their crime of violence definitions can trigger fifteen-year mandatory minimum sentences. As the good Prof Berman observes, “detailed mandatory sentencing systems can often get bogged down pursuing a (false and confusing) form of highly formalized consistency based on the interpretation of opaque legal rules rather than staying focused on producing a (transparent and understandable) form of substantive punishment justice for each individual offender.”

For Berman’s (and a guest contributor’s) full take on the systemic injustice of Sykes and the Taylor categorical approach generally, see his blog on the opinion here.


Image of the Honorable Judge Clifford Wallace from http://www.ncuscr.org/?q=programs/judicial-reform-china-american-perspective-new-york


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


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U.S. v. Holmes, No. 09-30211 (6-16-11) (Kozinski with Ikuta; concurrence by Kleinfeld).

The 9th (Kozinski) starts the opinion with: "What does it mean to destroy land?" That is the issue. The defendant, a volunteer fireman, was convicted of starting six fires. He burnt nearly 1,000 acres covered by sagebrush. Does this count, under the Guideline 5K1.4(a)(1) as destruction of a place of public use? If so, as the district court found, the base offense level is 24; if it is endangerment, it is far less. In an engagingly written opinion, featuring references to Ming vases, spilt milk, Jimmy Choos, and even the theory of relativity, the 9th remands for a determination of what the extent of damage was, and whether the land was actually destroyed. Grass will grow again, and wildlife will return; just not next year. The error was procedural in the sense that the parties did not get a chance to argue. Concurring, Kleinfeld agrees. His basis for a remand is that the Guideline, designed for such acts as attempting to destroy airports and train stations, should not apply to this act.

U.S. v. Landa, No. 09-10429 (6-15-11)(Tallman with Fernandez; dissent by W. Fletcher).

California makes it an offense to be driving under the age of 21 with a BAC of 0.05. (This is not an offense for someone over 21...an important distinction for the dissent). When the defendant was barely over 18, more than 6 years ago, he was convicted of this misdemeanor offense, placed on probation, and fined, which he paid early. Subsequently, when he was older if not necessarily wiser, he pled to a federal drug charge that carried a mandatory minimum five year sentence. He was not safety valve eligible because the court did not consider the offense a juvenile status offense not to be assessed points under 4A1.2 note 5 (there was also another minor conviction that got him 1 point). On appeal, the 9th crafted a test for whether a juvenile matter qualifies as a juvenile status offense never to be counted based on (1) the defendant was younger than 18; (2) his conduct would be lawful if adult; and (3) it was not serious in nature. The 9th found the first two factors to weigh for him (although older than 18, he was considered by the state to be underage). Underage drinking and driving the 9th considered serious and akin to a DUI. It goes through the risks, and harms, and comes out for counting. In dissent, W. Fletcher argues that the nature was not serious, there was no possible jail time, and analogized to underage smoking. The emphasis was on the fact it was not a crime for an adult.

Case o' The Week: Tashima Finds Plain Error -- By the Panel Majority: Gonzalez-Aparicio and Plain Error Review

We're not just saying that Judge Wallace Tashima (right) wrote the book on federal appellate practice -- he literally did. This well-respected guru of Ninth Circuit appellate review is, to put it mildly, unimpressed with a new approach towards plain error review created to salvage a high attempted illegal reentry sentence. United States v. Gonzalez-Aparicio,__ F.3d __, 2011 WL 2207322 (9th Cir. June 8, 2010), decision available here.

Players: Decision by Judge Cowen, a Senior, Third Circuit, Judge sitting by designation. Majority decision joined by Judge Silverman, vigorous dissent by Judge Tashima (right).

Facts: Gonzalez-Aparicio pleaded guilty to attempted illegal reentry after deportation. Id. at *1. The PSR hit him with a sixteen offense level, specific offense increase, for a felony conviction of the Arizona crime of sexual conduct with a minor. Id. The defense did not object to the PSR or at sentencing.

Facts floating around the sentencing hearing suggest that Gonzalez-Aparicio had been in his mid-twenties at the time of his previous crime, and the female victim was fourteen or fifteen years old. Id. The district court found the prior conviction to be a crime of violence under the illegal entry guideline, adopted the plus 16 OL guideline calculation and sentenced the defendant to 51 months. Id. at *3.

Issue(s): “Gonzalez-Aparicio contends that the District Court committed reversible procedural error by applying a 16-level increase to the offense level pursuant to USSG § 2L1.2(b)(1)(A)(ii).” “Gonzalez-Aparicio contends that the generic federal definition of ‘statutory rape’ has, as one of its elements, proof that there is at least a 4-year age difference between the perpetrator and the victim. It is undisputed that [the Arizona statute of conviction in this case] lacks any such age difference requirement.” Id. at *5.

“[T]he government argues that this Court must apply the well-established plain error standard of review with respect to alleged sentencing errors not raised below . . . Gonzalez-Aparicio asserts that the Court should not do so because we are purportedly confronted with a pure question of law and the opposing party would suffer no prejudice as a result of the failure to raise the issue below (although he further contends that he satisfies the plain error standard in any case.)” Id. at *5 (citations omitted).

Held: “[W]e possess the discretion to refrain from applying the default plain error standard of review in certain circumstances. . . . We find that it is not appropriate to exercise this discretion in light of the specific circumstances of the current appeal.” Id. at *6.

Of Note: Judge Tashima, to put it charitably, ain’t buying it. “Today the majority announces a new and startling method of selecting a standard of review, one in which the panel, at its sole option, selects which standard of review to apply. Because this standard of review is no standard at all, I respectfully dissent. If the majority had applied our long-established standard of review, it would be required to reverse and remand for resentencing.” Id. at *13.

Judge Tashima is right: this opinion seems to plows new ground for appellate review and creates a bad new rule for appellate practice in the Ninth. Traditionally, plain error review is not appropriate for pure questions of law where the government wasn’t prejudiced by a failure to develop factual issues below. Despite that long-standing rule, Judge Cowen appears to take a new approach, deciding that the Ninth can pick and choose when to apply the (almost-always fatal) plain error standard.

It is a regrettable and dramatic new standard for appellate review in the Ninth, and this new rule deserves en banc review.

How to Use: It is far too complicated to explain in depth here, but if your client’s statutory rape prior impacts the federal sentence, read Gonzalez-Aparicio. Judge Cowen and dissenting Judge Tashima have a long debate over what is the real “generic” definition (or definitions?) of statutory rape, what the absence of an “age difference element” in stat rape statutes means for the categorical analysis, and whether the modified categorical approach can ever cure that missing element.

To further complicate things, if Aguila Montes de Oca is ever decided (it has now been fifteen months since the en banc oral argument, by the way), that decision will almost certainly control the stat rape issue debated here.

For Further Reading: Are visiting judges good for the Ninth? Do they pull their weight? Do out-of-circuitjudges undermine the uniformity of decisions within the circuit? Are they more deferential, and less likely to dissent? For an interesting statistical analysis and discussion of the impact of the visiting judge, see Sara C. Benesh, The Contribution of “Extra” Judges, 48 Ariz. L. Rev. 301 (2006).


Image of the Honorable Judge Wallace Tashima from http://s253.photobucket.com/albums/hh64/michellencomeau/?action=view&current=2007-05Michelleswearingin.jpg&newest=1


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

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Ocampo v. Vail, No. 08-35586 (6-9-11) (Berzon with Canby and Noonan).

In a lengthy and comprehensive opinion, the 9th finds a violation of Crawford and the right of confrontation. The police testified as to statements made by an identifying witness who did not appear at trial. The general nature of the testimony rather than explicit detail (regarding the investigation and an alibi defense) did not excuse the Crawford violation. It was prejudicial. And under AEDPA, the state's interpretation was unreasonable.

Thompson v. Runnels, No. 08-16186 (6-9-11) (Berzon with Goodwin; dissent by Ikuta; dissent from order denying rehearing and en banc).

This opinion replaces the opinion filed on Sept. 8, 2010. The 9th found a Seibert / Miranda violation in a state murder case. Ikuta dissented, arguing that Seibert was decided after the state appellate court issued an opinion. The dissent from the order denying en banc reads as a petition for cert to the Supremes for review.

U.S. v. Scott, No. 07-50020 (6-8-11)(Per curiam with Rymer, Callahan and Ikuta).

The 9th affirms a RICO conviction and sentence. It is an interesting, and disturbing opinion, as to what happens when a trial judge has his own way of doing things. A sample: "Although many of the judge's comments and interventions were inconsistent with standards of judicial decorum," writes the 9th, "we nevertheless conclude that they do not rise to a level that requires reversal." Here, in an Aryan Brotherhood RICO case, the trial judge (Hon. Manuel L. Real) interrupted or admonished defense counsel over 100 times. Still, the interruptions fell under the supervisory role of a trial judge, as did the jury instructions that explained that the court had to interrupt or comment but that a jury should not infer anything from it. Also falling within the court's discretion was its decision not to allow note-taking in a complex case, barring certain questions on cross examination about race in an AB trial concerning a "war" against a Black prison gang. There was no showing of prejudice by the court's giving a copy of the proposed instructions and only giving nine minutes to review them. There was no error in not giving a self-defense instruction or an imperfect self-defense instruction. And yes, the 9th affirmed the sentence.

Foot "note" (editorial complaint): Is it not troubling to the 9th that a court can say "no" to all note taking? The arguments against note taking -- distracting from the evidence or over reliance -- sure sound weak.

U.S. v. Gonzalez-Aparicio, No. 09-10447 (6-8-11)(Cowen with Silverman; dissent by Tashima).

The issue of categorical "statutory rape" as a "crime of violence" arises in the context of a 1326 sentencing. The defendant had a prior for such an act, but the state code had no age exception (the usual "within four years of age"). Does this make the state (Arizona) statute missing an element, and therefore not a crime of violence? Alas, we will never really know here because defense counsel did not object, and so review is under plain error. The 9th (written by a visiting Judge from the 3rd Circuit) rejects defendant's argument that this should be de novo review, as it is a pure legal question. The 9th also rejects the government's argument for abuse of discretion. It settles on plain error. And under plain error, the 9th found that the government was arguably prejudiced because it never had a chance to possibly use a modified categorical approach to show that the defendant had been outside the 4-year "window." The 9th even said that there existed tension, conflict, and confusion in the 9th circuit precedents about statutory rape. Dissenting, Tashima decries the fashioning of a "new and startling" method of selecting a standard of review: what does the panel want? Tashima argues that this is a pure legal issue, there is no need to use plain error or abuse, and that the court could decide it, and decide it in favor of the defendant.

Styre v. Adams, 09-15782 (6-6-11)(Wallace with Kozinski and Silverman).

The Supremes in Swarthout v. Cooke, 131 S. Ct. 859 (2011) took the federal courts out of assessing whether a state's properly applied its due process procedures to parole decisions. In the words of the Court, it "is no part of the Ninth Circuit's business." The decision makes clear that the federal courts only assure that there are procedures. This decision applied to parole board decisions and in this case, now applies to the Governor's decision reversing the parole board as to the suitability for parole.

Sessoms v Runnels, No. 08-17790 (6-3-11)(Tallman with Rawlinson; dissent by B. Fletcher).

This is a very disturbing opinion concerning a Miranda request. "Get me a lawyer" is found, under AEDPA, review, to not really mean "I want a lawyer." The petitioner has been convicted of felony murder in California. He now argues in habeas that his request to "get me a lawyer" should have stopped questioning. It did not; nor his statement that his father was looking for counsel for him; nor the fact that five days earlier he had, in fact, invoked to different police under a different crime. In the second interview, after petitioner asked about counsel, the police said he would record the interview to allay any concerns, and then, after setting up the recorder, stated that the petitioner would have to assert the claim. The police then helpfully explained that the co-defendants surprisingly did not assert their rights; and that attorneys sometimes advised clients not to make statements. The police then read the Miranda rights and the petitioner made statements. Challenging them here, the 9th (Tallman and Rawlinson) look through an AEDPA deferential lens, and upholds the denial, in a close question, because the state court's decision was not unreasonable as an unclear request. To the majority, Davis (where Souter wrote that a defendant did not have to speak with the discrimination of an Oxford Don) did not apply (!) because it involved post-Miranda questions and here the question or statement was pre-Miranda. The 9th also found that the statement could be construed as equivocal(!). The 9th deferred to the state's finding that request was not a request for a lawyer, but rather a statement of what his father advised him (tell them to get you a lawyer) and was not unequivocal. The 9th also held that the police were not limited to clarifying questions after the statement, because Davis, here, does not apply. Dissenting, B. Fletcher argues that the deferential lens used by the majority distorts Miranda and Edwards. She accuses the majority of waving a wand to make Miranda disappear. This is a deeply disturbing opinion.

Case o' The Week: Baptist Fails to Convert Reinhardt, et al -- FSA and Retroactivity

The good news? The picture to the right shows President Obama at the Fair Sentencing Act (FSA) signing ceremony on August 3, 2011. The FSA reduces terrifically unjust sentencing disparities between crack and powder cocaine.

The really good news? Lyndon "L-Dog" Baptist, who sought Ninth Circuit relief under the FSA, drew a panel of Judges Betty Fletcher, Reinhardt, and Wardlaw -- three of the Circuit's (and, we think, the country's) best jurists.

The bad news? Baptist's small crack transaction, his federal sentencing, and the five-year mand-min sentence imposed at that sentencing, all preceded the effective date of the FSA. United States v. Baptist, 2011 WL 2150993 (9th Cir. June 2, 2011), decision available here.

Players: Judge B. Fletcher, Judge Reinhardt, and Judge Wardlaw, per curiam.

Facts: “L-Dog” Baptist orchestrated a 14 gram crack sale between an informant and his cousin. Id. at *1. Critically, the sale, his plea, and his federal sentence all took place before August 3, 2010: the date President Obama signed the Fair Sentencing Act into law. Id.

Had the sale taken place on August 4th, no mandatory minimum sentence would apply (the new trigger for a five-year mand min is 28 grams). Id. Because the sale took place before August 3rd, however, CD Cal District Judge Robert Whaley was forced to impose a five year term – saying it “made his stomach hurt,” that he “did not believe” five years was a “just sentence,” that it was “too much,” it was “disproportionate” and “wrong from a moral sense.” Id.

Issue(s): “[Baptist] seeks to have his pre-enactment sentence for his pre-enactment transaction vacated with instructions for resentencing pursuant to the Fair Sentencing Act. He argues that the Act should be applied retroactively to reduce the harsh and unfair sentence imposed on him before the Act’s passage of the version of § 841 that Congress has since modified.” Id.

Held: “Supreme Court precedent requires us to uphold Baptist’s sentence, which was imposed under the former sentencing regime, unless the Fair Sentencing Act expressly or impliedly provides for its reduction.” Id. at *2. “Like every other circuit court to have considered this question, we can find no evidence that Congress intended the Fair Sentencing Act to apply to defendants who had been sentenced prior to the August 3, 2010 date of the Act’s enactment.” Id. at 3.

Of Note: How do three of the Ninth’s Best and Brightest really feel about the blatant injustice of Baptist’s sentence? “As individual judges, we believe that the result that we reach in this case – affirming a sentence of sixty months’ imprisonment for a minor drug offense under a law that Congress appears to have concluded was groundless and racially discriminatory – subverts justice and erodes the legitimacy of the criminal justice system . . . We are without power, however, to undo the injustice that we are compelled to authorize when we affirm the congressionally mandated sentence that the district judge understandably declared made his 'stomach hurt[ ]' because it was ‘disproportionate [with respect to] African Americans’ and ‘wrong from a moral sense.’ We agree wholeheartedly with the district judge. Nevertheless, unless the Supreme Court revises its view of the effect of the General Savings Statute as it applies to ameliorative sentencing laws, only Congress is able to achieve the Fair Sentencing Act’s promise ‘[t]o restore fairness to [f]ederal cocaine sentencing,’ by amending the Act so as to make it retroactive for all defendants whose sentences had not become final as of the date of its enactment.” Id. at *4 (fn. omitted).

Amen.

How to Use: Baptist was sentenced before the FSA came into effect. What about defendants whose conduct preceded the FSA, but who were sentenced after it went into effect? The panel gives us some dicta on steroids for that setting: “It would be especially egregious to require judges ‘to continue to require that courts impose unfair and unreasonable sentences on those offenders’ who have not yet been sentenced. Id. at *4 & n.2 (citations omitted).

For clients in this procedural posture, Baptist footnote 2 should be front and center for your sentencing memos and appeals.

For Further Reading: Last week AG Holder testified that the FSA should be retroactive!

Well, sort of. DOJ supports retroactivity of the FSA to the crack guidelines.

Well, sort of. Defendants with guns are out, and also excluded are defendants with “significant” criminal histories as well.

Finally, Holder opposes FSA retroactivity as to mandatory minimums. For a summary of this – nuanced – position from the DOJ, with many interesting links, see Professor Berman’s post here.


Image of the FSA signing ceremony from http://en.wikipedia.org/wiki/File:Obama_signing_the_Fair_Sentencing_Act.jpg


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


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U.S. v. Buckles, No. 08-36031 (6-2-11) (W. Fletcher with Fisher and Bury, D.J.). In this habeas appeal, the 9th holds that recalling a mandate does not restart the ticking clock of 90 days to seek cert. The mandate was recalled to allow appellant to seek appointed counsel, but it did not alter the judgment. Petitioner is out of time, and out of luck, on this argument. Petitioner also argues that he is entitled to equitable tolling because his retained counsel did not act on his request to seek cert. The 9th denies this claim because, assuming arguendo that the counsel did in fact do nothing, this still does not excuse the lateness of the 2255 motion. However, all is not lost, because petitioner contends that a clerk of the court informed his sister, inaccurately, that the clock would restart. If so, then he might be entitled to equitable tolling. Certain facts help petitioner, including the language of the order denying cert. To develop the record, the matter is remanded to the district court.

Congratulations to AFPD David Ness of the Federal Defenders of Montana (Great Falls). It was also a very good win for the Montana Defenders, getting another 9th Circuit win and getting an acquittal in a jury trial. Congrats to the office.

U.S. v. Baptist, No. 09-50315 (6-2-11) (Per curiam with B. Fletcher, Reinhardt, and Wardlaw). In sentencing the defendant to a 5-year mandatory minimum sentence for a crack sale, the district court railed against the law, bemoaned the injustice of the sentence, and decried the impact on African Americans of the crack 100:1 ratio. The district court was clearly disturbed by the sentence. While this appeal was pending, President Obama signed into law the Fair Sentencing Act, that made the injustice of crack sentencing a little less unfair. On appeal, defendant argues that the FSA should apply to him. The 9th was sympathetic, but powerless. In heartfelt language, the per curiam opinion notes the unfairness of the sentence, but concludes that the panel is powerless to make retroactive this statute when there is no indication Congress wanted it to be retroactive. The 9th regretfully affirms.

U.S. v. Rodriguez-Castro, No. 10-50273 (6-2-11) (Clifton with Tallman; concurrence by Silverman).

The defendant was caught coming across the border with 33.46 kilos of cocaine. The defendant explained that a co-worker convinced him to register a car in his own name, take it on several trips across the border, and then transport drugs for between $3,500 and $4,000. The defendant entered into a plea, where the government recommended a minor role adjustment. At sentencing, the court refused to give the minor role adjustment. The court explained that the defendant was not entitled to a minor role because the had taken significant steps, and was in possession of a large amount of drugs, that belied his minor role status. The court also chastised the government for its practice of offering to recommend a minor role early in the plea process, before it had all the facts. The government's practice did not bind the court. On appeal, the 9th affirmed the sentence. The court did not categorically refuse to give such reductions in such cases. It grounded its refusal on the steps the defendant took, and the amount of drugs; these findings were not clearly erroneous. The court also did not err in finding the defendant had not carried its burden. Lastly, the court held that the sentence was not unreasonable. Concurring, Silverman added that the district court could not rubber stamp the recommendations of the parties but had the obligation to calculate the Guidelines correctly, which it did. The parties should not expect a court to just accept the recommendations.