Estrella v. Ollison, No. 10-56203 (12-29-11) (D. Nelson with Gould and Ikuta).

The petitioner argued that the state judge enhanced his sentence upon finding that he was on parole for a violent offense at the time of the instant offense. This violated Apprendi. The state courts said "no" because being on parole fit into the Apprendi prior conviction exception. The 9th disagreed, holding that parole terms can be modified or terminated by a court after sentence, and precedent in Butler recognized this for probation, which is analogous. There was error. Alas, for petitioner, the error was harmless. The 9th held that a jury would have easily found that the parole was for a violent offense. The 9th also concluded that the analysis included all the materials the court examined, including the probation report.

U.S. v. Valenzuela-Espinoza, No. 10-10060 (12-28-11)(B. Fletcher with Reinhardt and Tashima).

"Because the delay in presenting the defendant to a magistrate was unreasonable, his statements made more than six hours after his arrest must be suppressed" under McNabb and Mallory. The defendant here was arrested during a drug bust of his house, where marijuana was stored and where guns were present. He was arrested around 11:15 A.M. but did not see a judge until the next day at 2:00 P.M., despite the fact that the court was ten miles away and the agents were "sitting" on the house to secure it. The district court reasoned that the agents were doing law enforcement activities and were within the six-hour safe harbor of McNabb. Moreover, paperwork had to be completed for the defendant to appear at the 2:00 P.M. Tucson magistrate court hearing. The 9th reversed and suppressed. The defendant could have been brought, and it was unreasonable to simply sit at the house to secure the scene and wait for the warrants. There were nine officers present. The internal agreement between the court and the prosecutor and law enforcement for paperwork to be done by 10:30 A.M. for a 2:00 P.M. hearing cannot trump what is reasonable and cannot trump the federal rules. Under McNabb and Mallory, the statements must be suppressed for unreasonable delay.

This decision has obvious implications for the Tucson court procedures regarding recent arrests in the vicinity.

U.S. v. Shetler, No. 10-50478 (12-28-11) (Reinhardt with Berzon and Kennelly, D.J.).

The prosecution did not carry its burden of showing that the defendant's statements were not the product of the concedely illegal search of his house and garage. The 9th reverses the denial of the suppression and remands. The defendant here was arrested when he came out of his garage. The police had probable cause to believe drug-making (meth) was afoot. They did a quick sweep of the garage, legally, and then held the defendant for five hours while they illegally searched his house and garage again. He was confronted with evidence and confessed later. The government conceded the subsequent searches were illegal. The 9th then examined whether the statements were a result of the illegal search. They were. The subsequent searches produced more specific evidence of meth dealing. Moreover, in a good overview of the analysis of the law pertaining to statements resulting from illegal searches, the 9th finds that being confronted withs specific evidence, and knowledge that the evidence was found, all supported connecting the statements to the result of the illegal search. There was still enough evidence for avoid a judgment of acquittal and so the case was remanded.

Congratulations to AFPDs Lilianna Coronado and Ashwim Shrikrishna Mate of the FPD Office of the Central District of California (Los Angeles).

Parker v. Small, No. 10-17128 (12-27-11) (Per curiam with Wallace, Thomas, and Albritton, Sr. D.J.; concurrence by Thomas).

In a habeas case arising from a California state conviction, the 9th affirms the denial of a petition arguing that the extra instructions the state court gave to a deadlocked jury were coercive. The 9th's decision was under AEDPA 's deference standard, and the state courts' decision was not unreasonable and the state courts had examined the totality of circumstances and the context. The facts here, however, were still disconcerting. The state jury stated it was deadlocked several times (five times!) on a murder charge. The judge kept sending them back, even when a note said that one juror was holding out because he did not believe the prosecutor's witnesses. Finally, the court gave the state's version of an Allen charge, upheld in the state case of Moore. That instruction did the trick and a conviction was returned with a LWOP sentence. The 9th said that the state courts had looked at the context and found the instruction was not coercive. The decision must be given deference. In a concurrence, Thomas stresses that deference must be given but that it depends on the state courts examining all the circumstances and the context.

Case o' The Week: New Counsel? Post-Trial -- Beltran Valdez and Interlocutory Appeals of Motions for New Counsel

After Booker, can the Chair of the Sentencing Commission make mandatory law? Can he make sure that district courts follow his guidance, with none of this newfangled "advisory" nonsense?

Sure -- just come out West and sit by designation in the Ninth. United States v. Beltran Valdez, 2011 WL 5839671 (9th Cir. Nov. 21, 2011), decision available here.


Players: Decision by Vt. District Judge William K. Sessions III (Chair of the United States Sentencing Commission) (right). See newsletter here.

Facts: Beltran Valdez was charged with illegal reentry and appointed counsel. Id. at *1. Relatively early in the case, he requested and was appointed new counsel. Id. at *1. Six months later, on the eve of trial, Beltran Valdez again requested appointment of another new attorney. Id. The district court denied that request, but allowed the defendant to represent himself with the CJA attorney remaining as advisory counsel. Id. Before the trial, Beltran Valdez filed a notice of appeal of his denial of a motion for new counsel. Id.

Issue(s): “The government moved to dismiss the appeal for lack of jurisdiction on the grounds that the order was not final, and does not satisfy the requirements of the collateral order doctrine.” Id. at *1. “In order to qualify for review under [the collateral order doctrine], an order ‘must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.” Id. “We have not addressed the issue of whether an order denying appointment of replacement counsel is immediately appealable.” Id. at *2.

Held: “[T]he order fails to satisfy the third element.” Id. at *2. “Post-conviction review of asserted Sixth Amendment deprivations such as denial of a right to represent oneself, denial of appointment of counsel, or denial of counsel’s request to be replaced because of a conflict of interest, is fully effective.” Id. “We join [the Second, Third, Fourth and Eight Circuits] and hold that the collateral order doctrine bars the immediate appeal of an order denying a request to appoint replacement counsel. Accordingly, we lack jurisdiction under the collateral order doctrine.” Id.

Of Note: When appellate jurisdiction is iffy, the defense Hail Mary is the petition for a writ of mandamus – a shot of getting in front of the Ninth when there are “sufficiently exceptional circumstances.” Id. at *1. See generally Kerr v. United States District Court, 426 U.S. 394 (1976), decision available here.

Mandamus was a popular gambit during the early Apprendi era, when we were challenging § 1326 indictments. In a promising sign in this case the Court directed the parties to brief whether it should construe the appeal as a petition for writ of mandamus. Id. at *1. Sadly, the panel’s interest was a tease: the Court ultimately “decline[d] to treat the appeal as a petition for mandamus.” Id. at *2.

How to Use: Beltran Valdez is a familiar scenario for any experienced CJA counsel who has tried to stand between a client and the buzz saw of trial on a hopeless case. Here, this § 1326 defendant was (trying) to get his third appointed attorney, and ultimately went pro se on the eve of trial. Id. at *1. The opinion isn’t a surprising result, from an institutional perspective: the Ninth is loathe the gum up the gears of justice with interlocutory appeals on the eve of trials.

From the defense perspective, however, it is a lousy rule: a defendant can only appeal a motion to fire counsel after getting hammered in a trial – with the higher sentence that results. That is a big price to pay to preserve a core Sixth Amendment issue. Bear Beltran Valdez in mind if chained to an unhappy client and forced together through a trial: make sure to make the record of the client’s dissatisfaction, because that Sixth Amendment issue can only be raised on direct appeal after the train wreck of a trial.

For Further Reading: Another chapter in the tragicomic “birther” saga closed last week, with Drake v. Obama, et al., 2011 WL 6415354 (9th Cir. Dec. 22, 2011). In Drake, Judge Pregerson wrote for the panel considering whether Obama was “constitutional ineligible to be President of the United States” because he was (allegedly) not born in Hawaii. Id. at *1. The district court denied the plaintiffs’ civil suit for lack of standing. Id. at *2.

Judge Pregerson and the panel affirmed, and adopted what appears to be a new rule in the process: candidates don’t have “competitive standing” to sue if their claim comes after the election. Id. at *6.

Will be interesting to see how the Drake "competitive standing" rule affects election litigation in the months leading up to Tuesday November 6, 2012 . . . .



Image of the Honorable William Sessions III from http://www.fcpablog.com/blog/tag/respondeat-superior?currentPage=4
President Obama's long-form birth certificate from http://www.whitehouse.gov/sites/default/files/rss_viewer/birth-certificate.pdf


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

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Case o' The Week: Rudd and Residency Restrictions

A slow week in the Ninth lets us reach back to a very good case on residency requirements as conditions of supervised release -- and the sentencing record needed to support such conditions. United States v. Rudd, 2011 WL 5865897 (9th Cir. Nov. 23, 2011), decision available here.

Players: Decision by Judge Wardlaw (left), joined by Judges Berzon and visiting ND Cal DJ Whyte.

Facts: Rudd, a USAID contractor, had sex with young boys in Bangladesh. Id. at *1. He pleaded guilty to a § 2423(c) count (illegal sexual conduct in foreign places). Id.

Rudd’s Rule 11(c)(1)(C) plea agreement let him appeal any special condition of supervised release. Id. One such condition, recommended by Probation, was that Rudd couldn’t reside within 2,000 feet of – essentially – any placed “used” by minors. Id. Rudd objected in his sentencing memo, but didn’t specifically object at sentencing. Id. The district court imposed the 2,000 feet restriction without elaborating on why the condition was necessary.” Id. at *2.

Issue(s): “[Rudd appeals the district court’s imposition of a residency restriction as a special condition of supervised release . . . .” Id. at *1.

Held: “Because the district court did not provide any explanation for its imposition of the 2,000 foot residency restriction, and none is apparent from the record, the district court committed procedural error. Thus, we vacate the special condition and remand to the district court to explain or reconsider the 2,000 foot residency restriction . . . Id. at *1. “A greater explanation of reasons is particularly necessary for procedural soundness where the district court is choosing among several sentencing options.” Id. at *4.

Of Note: This is a terrific opinion on “procedural reasonableness” at sentencing, and on residency restrictions. It is also, however, a welcome case on plain error review. Id. at *2. Note that Rudd didn’t specifically object at the sentencing hearing, regarding this specific condition. Judge Wardlaw stresses, however, that Rudd objected to Probation’s recommended conditions in his sentencing memo and argued for the conditions reflected in the plea agreement. He also specifically preserved his right to appeal conditions in his plea agreement. Id. Therefore, “it was both unnecessary and futile for Rudd to further object.” Id. Judge Wardlaw accordingly rejects the government’s plain error pitch, in an analysis that should worth adding to an appellate attorney’s quiver.

How to Use: The Court in Rudd is conspicuously skeptical of this (frankly unrealistic) residency restriction, though it doesn’t (yet) get to the “substantive reasonableness” of the condition. Id. at *5. As Judge Wardlaw cautions, “There remain significant questions regarding the substantive reasonableness of residency restrictions, including whether they too stringently restrict where a defendant can reside, or whether they play a role in increasing the likelihood of recidivism . . .” Id. at *6.

Indeed, “[s]everal courts have . . . found that similar residency restrictions subject defendant to a state of ‘constant eviction’ because the prohibited locations could potentially move or open in new places.” Id. at *6.

Yes, this is only dicta – but forceful dicta – and it merits heavy citation in sentencing memos.


For Further Reading: If you lie about your weight in your Facebook profile, have you committed a federal crime? Judge McKeown wants to know – and the government can’t give her a clear answer.

You’ll recall the regrettable Nosal 3-judge decision criminalized an employee’s unauthorized use of a computer. Blog on original decision here. Happily the case has gone en banc, and was argued on December 15.

It is a fascinating debate, where the judges wrestle with a troubling and expansive theory of criminal liability in the context of an old hacking statute. A video of the en banc argument is available here .

Nosal is a Big Deal for anyone who – well, frankly, for anyone who uses a computer at work. It has the good folks over at the Electronic Frontier Foundation properly riled up. See postings here. Fourth Amendment Guru Prof Kerr is equally spooked by the 3-judge opinion, and hopes the en banc court sides with Nosal. See blog here.


Image of the Honorable Kim Wardlaw from http://lawweb.usc.edu/news/article.cfm?newsID=3647

Image of the Honorable M. Margaret McKeown from http://www.wired.com/threatlevel/2011/08/warrantless-wiretapping-argument/


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

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Merolillo v. Yates, No. 08-56952 (12-12-11) (Navarro, D.J., with Schroeder and Gould).

The issue at trial was causation: did the trauma to the victim's head lead, in 30 days, to her death by aortic aneurysm. The pathologist said it did, at a preliminary hearing, but did not testify at trial (he was no longer employed by the county). His testimony was allowed in over a confrontation objection. All courts agreed that there was error -- the witness was not shown to be unavailable. The state courts found it to be harmless, as did the district court. The 9th reverses, and remands with instructions to grant the writ. There was clear error -- all courts agreed -- but the 9th found it to be prejudicial. The test for AEDPA prejudice, stressed the 9th, was laid by the Supremes in Fry v. Pliler, which held that Brecht is applied without regard to the state's harmlessness determination. That is the case here, where the testimony was prejudicial because it went to the crux of the case, it was given great weight, the testimony itself was confused, contradictory, and inconsistent, and the jury seemed to focus on it. It was also not cumulative, as the experts disagreed on the cause. The finding of prejudice also met the higher Chapman standard of harmless beyond a reasonable doubt.

Case o' The Week: Grant Deeds -- Rehabilitation, Custody, and Supervised Release, United States v. Grant

"We make a child behave by telling him to go to his room, and we make an adult behave by telling him to go to his room, only his room has bars. Hopefully both the child and the adult will internalize a sense of wrongdoing attached to whatever conduct caused their confinement." United States v. Grant, 2011 WL 6016182, *5 (9th Cir. Dec. 5, 2011), decision available here.

Just don't give that BOP "time-out" to "rehabilitate" a defendant on supervised release. . . Id.

Players: Good decision by Judge Kleinfeld, joined by Judges Beezer and Graber.

Facts: Grant got a pretty good sentence for relatively minor bank fraud. Id. Mistakes were made, on supervised release: drug and alcohol dirties and some mental health issues earned Grant three months of custody and a (second) roughly five-year stint of supervised release. Id.

Another round of violations came several months after his second release, but Grant’s violation sentence was held in abeyance. Id.

A few months later Grant ran into his Probation Officer in a sushi bar. Grant denied drinking, but a waiter snitched him out and reported Grant had bought a large glass of sake (Grant also blew a dirty test for alcohol). Id. The defendant skipped his drug test the next day. Id. Back on another Form 12 with a violation guideline range of 3-9 months, the court departed upwards to 24 months of custody. Id. The district court explained that it felt “under the unique and rather unusual circumstances here that a variance from the guidelines is warranted because it is imperative that he receive a significant enough term of incarceration that he is able to actually receive meaningful treatment and also to . . . help him break his cycle of abuse of substances.” Id. at *2. “The court sentenced Grant to more time in prison than he otherwise would have, not only to protect society while Grant was in jail, but also to protect both society and Grant after his release. The judge’s express purpose was to improve Grant’s ability to deal with the drug and alcohol problems that contributed to his recurrent criminal conduct.” Id. at *3.

Issue(s): “We address whether rehabilitation can be considered for purposes of imposing imprisonment upon revocation of supervised release.” Id. at *1. “The question before us is whether Tapia is limited to imprisonment at initial sentencing, or if it extends to imprisonment on revocation of supervised release.” Id. at *3.

Held: “We conclude that Tapia applies to imprisonment regardless of whether imprisonment is imposed at initial sentencing or on revocation.” Id. at *3.

Of Note: Grant is an interesting opinion. It is an important defense win, and puts the Ninth on the right side of a growing circuit split on whether rehabilitation can be the basis for custody on a supervised release violation. Id. at *5.

Judge Kleinfeld, however, is clearly sensitive to what the district judge was trying to do in this case – a fair reading of the facts suggests that Mr. Grant does have some real some dual diagnosis needs (though Reentry Court would be a far better solution than the BOP).

Moreover, Judge Kleinfeld candidly observes that a district judge may thinking about rehabilitation when imposing a sentence – but instructs judges not to say that’s the reason for a custodial term. Id. at *5 (“When a judge imposes prison, he may wisely believe that it will have rehabilitative benefits, but those benefits cannot be the reason for imposing it.”) Grant is an potent little illustration of a big problem with appellate sentencing review: while the Ninth can try to instruct a district court what not to do at sentencing, there’s a danger that district judges often simply learn what not to say, when a court reporter is around.

How to Use: Give Grant to your favorite probation officer, who views a custodial sentence for supervised release violations as an “opportunity” for your client to “dry out” and “get on track.” After Tapia and Grant, those tired “for the good of the defendant” chestnuts are not valid bases for custody on a Form 12 violation.

For Further Reading: Imagine this: after the Ninth Circuit holds for the government on a sentencing appeal, the Supreme Court takes cert. and reverses, chiding the Ninth to cut the defendant a break.

(Hey, it can happen. Tapia v. United States, 131 S.Ct. 2382 (2011)).

Last week Judge Reinhardt took up the Tapia case on remand from the Supreme Court, in a very good opinion that finds plain error and sends the case back for resentencing. Tapia, 2011 WL 6091308 (9th Cir. Dec. 8, 2011).

Tapia II is a welcome decision for plain error review, and a big win for San Diego Deputy Federal Defenders Michelle Betancourt and Doug Keller.


Image of child in time out from http://worldradio.ch/wrs/programmes/kids/kids-in-mind-parenting-styles~print.shtml


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


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U.S. v. Tapia, No. 09-50248 (12-8-11) (Reinhardt with Schroeder and Hudson, D.J.).

The Supremes reversed and remanded the 9th in Tapia, 131 S. Ct 2382 (2011), holding that a district court could not consider a defendant's rehabilitative needs in imposing a sentence of imprisonment. The remand was to determine whether the consideration constituted "plain error." The 9th holds that it does constitute plain error, especially as the error may have increased the sentence. The sentencing court imposed a sentence that afforded enough time to complete the BOP drug program (RDAP). In looking at plain error, the focus is on "reasonable probability" rather than the higher "more likely than not" standard (20899). The statements here by the district court as to giving her a chance to deal with substance abuse meets the "reasonable probability" standard.

Congratulations to Federal Defenders Michelle Betancourt, Doug Keller, and James Fife, Federal Defenders of San Diego.

Johnson v. Finn, No. 10-15641 (12-8-11) (Reinhardt with B. Fletcher and Tashima).

The 9th reverses a denial of a Batson claim in a habeas petition, and remands for the district court to conduct an evidentiary hearing or accept the magistrate court's credibility determinations. The petitioners raised a Batson challenge in state proceedings. When it reached federal court, the magistrate court conducted an evidentiary hearing and determined that the prosecutor had discriminated. The court made lengthy credibility conclusions. The district court rejected the conclusions and denied the petition. The 9th held this was error, because there has to be credibility determinations in jury selection, especially in a Batson challenge, and so determining credibility is a matter of constitutional due process. The 9th also finds that AEDPA deference does not apply because the state court apparently used a wrong legal standard, citing a case that equated "reasonable inference" with ""strong likelihood." This was incorrect. "Reasonable inference" is a lower standard. The 9th also stresses that if AEDPA does not apply, because , for example, of a wrong legal standard, then the Pinholster bar to new evidence also falls. See note 1.

Congratulations to AFPD David Porter and FPD Dan Broderick of the ED Calif FPD Ofc (Sacramento).

Gonzalez v. Wong, No. 08-99025 (12-7-11) (Clifton; partial concurrence and partial dissent by W. Fletcher; partial dissent by O'Scannlain).

This is a notable decision discussing Pinholster and what it means for newly discovered evidence. The petitioner was sentenced to death for the murder of a police officer attempting to search the petitioner's house. A jailhouse informant reported that the petitioner told him he was waiting for the officer so he could bag a cop. Here the new evidence was Brady impeachment of a key state witness - the jailhouse informant. The impeachment involved numerous prison mental health reports that concluded the witness was mentally ill and a liar. The state did not disclose this Brady evidence, and stonewalled its disclosure throughout the state appellate process. While the 9th concludes that Pinholster bars it's consideration of the new evidence in the Brady claim since review is limited to what was before the state court, it has to do something with this bombshell of new evidence. If it is considered a new claim, then exhaustion issues are raised. However, drawing upon Breyer's concurrence, the 9th concludes that it should remand the issue to the district court with instructions to stay and abey the habeas proceedings to allow the petitioner to present to state court his Brady claim with the subsequently disclosed materials. This allows the state court to channel the claim and take first crack at the new evidence. Once the state court has decided, then the petitioner can return to federal court. W. Fletcher concurs, but dissents as to the remand here because, under these facts, this court should decide. He argues this because of the state's stonewalling and efforts to hide the evidence and the state court's decision not to require disclosure leaves the issue to the federal courts. This is due to the specific facts here. O'Scannlain dissents, arguing that Pinholster bars any consideration by the federal court of the subsequent evidence. He believes that the evidence is not material and that the petitioner somehow delayed discovery.

U.S. v. Grant, No. 10-10245 (12-5-11) (Kleinfeld with Beezer and Graber).

The Supreme Court in Tapia held that rehabilitation, and specifically an opportunity for rehabilitation, cannot be considered in imposing imprisonment at the initial sentencing. This falls outside of 3553. What about at supervised release revocation? This case considers whether Tapia applies to imposing imprisonment upon a supervised release revocation. The 9th holds that it does. Upon a SR revocation, a court cannot consider rehabilitation in imposing imprisonment. This case involves a defendant who had several chances on SR and kept violating for drug violations. One of the last instances involved the defendant encountering his supervising officer at a California sushi restaurant (!). The officer probably thought something was fishy and asked the defendant if he had been drinking. The defendant, for goodness sake, said he had not had a drink. On a tip, the waiter confirmed that the defendant had ordered a sake. The defendant then failed a breathalyzer test. A violation was filed. At the SR disposition hearing, the court said he needed 24 months to afford the defendant an extended chance at rehabilitation. This consideration, concluded the 9th, is contrary to Tapia and the Supreme Court analysis that rehabilitation is not part of the statutory imprisonment calculus. The 9th recognizes that this may be difficult for the court, but the court cannot consider what imprisonment will do for rehab prospects. This is a BOP concern. This decision adds to a circuit conflict between the 1st and 9th versus the 5th.

Case o' The Week: Ninth, En Banc, Gets its "Citations" Right -- Leal-Felix and Sentencing Guidelines

Were you "arrested" when got that that (well-deserved) speeding citation south of Barstow, on your way to Vegas?

Judge N.R. Smith doesn't think so, either. United States v. Leal-Felix, 2011 WL 596602 (9th Cir. Nov. 30, 2011), decision available here.


Players: Big victory for CD Cal. Deputy Federal Public Defender Michael Tanaka. Decision by Judge N. Randy Smith (left).

Facts: Leal-Felix pleaded guilty to illegal reentry. Id. at *1. His criminal history reflected (among other things), two citations for driving with a suspended license, issued two days apart. Id. He had been sentenced for both citations on the same date, receiving concurrent sentences. Id.

Probation hit the defendant with Criminal History (“CH”) points for both of the citations. Id. Leal-Felix objected, arguing under USSG § 4A1.2(a)(2) that the two citations should get one set of points – they were both sentenced on the same day, and were not separated by an intervening arrest. Id. Instead, the events were separated by an intervening citation. The district court disagreed, both events were assigned CH points, Leal-Felix wound up in a higher category. Id. A three-judge panel affirmed, agreeing with the Seventh Circuit that a traffic citation was an “arrest” under the guideline. Id. at *1. The case went en banc.

Issue(s): “The definition of an ‘intervening arrest’ is the subject of our interpretation here. Under this Guideline, if a citation is equivalent to an arrest, then Leal–Felix's two citations for driving with a suspended license must be counted separately. Counting each citation as an arrest, and adding two points for each, would place him in criminal history category VI, with a Guidelines range of 21–27 months. However, if a citation is not an intervening arrest, his citations would be counted together and he would be included in criminal history category V, with a Guidelines range of 18–24 months.” Id. at *2.

Held: “In Sentencing Guidelines § 4A1.2(a)(2), we interpret the term ‘arrest’ to require that the individual be formally arrested; the mere issuance of a citation, even if considered an arrest under state law, is insufficient. Therefore, we vacate the sentence imposed by the district court and remand for resentencing.” Id. at *1.

Of Note: In a well-written opinion Judge NR Smith carefully explains the obvious – a “citation” is not an “arrest.” Interestingly, a considerable chunk of his analysis relies on the interpretation of “arrest” in the Fourth Amendment context. Id. at *4-*5. The sole dissenter, Judge Rawlinson, is unpersuaded: in her view, the majority decision “improperly imports Fourth Amendment analysis into calculation of a sentence under the Sentencing Guidelines . . . .” Id. at *7.

Meanwhile, in an entertaining concurrence, Judge McKeown highlights “the most compelling reason” to conclude that a citation isn’t an “arrest:” common sense. Id. at *6. Someone who got a traffic ticket for speeding isn’t going to disclose that they were “arrested” when applying for a job, or filling out a college application, or completing adoption papers. Id.

How to Use: This case is good news for folks on the cusp of a criminal history category; it may mean one bump down in the CH category, and in this case it saved Leal-Felix three months on the low-end range. This is great news, however, for Safety Valve candidates. Recall that Safety Valve is that precious opportunity to get below a mandatory-minimum drug sentence, if a defendant has – among other things – no more than one Criminal History point. See generally USSG § 5C1.2(a)(1). Before Leal-Felix, the following criminal history would have precluded Safety Valve eligibility:

* Traffic stop and release,

* Then second traffic citation,

* Then later resolution of both offenses in one joint concurrent sentence

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= 2 CH points.

After Leal-Felix, under the same scenario the defendant would have 1 point, and would still eligible for Safety Valve. Bear Leal-Felix in mind for drug defendants with minor criminal histories; the case should broaden the reach of Safety Valve eligibility.

For Further Reading: Chief Deputy Fed. Public Defender Steve “Rule of Lenity” Sady is happy. Sady has been a tenacious advocate for this rule of construction, which instructs that an ambiguous term in a statute, or guideline, should be interpreted in favor of the defense. Judge N.R. Smith caps off his (correct) statutory analysis in Leal-Felix with the (correct) observation that the Rule of Lenity also requires that the guideline’s use of the term “arrest” excludes “citations.” Id. at *5.

For a survey of the Ninth’s use (and abuse) of the Rule of Lenity, visit the collection of blog entries here.



Image of the Honorable N. Randy Smith from http://isuvoice.com/wp-content/uploads/2011/09/SmithRandy2x3.jpg Image of CHP traffic citation from http://www.ocregister.com/news/drivers-297537-percent-cell.html



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


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