Sunday, March 30, 2014

Case o' The Week: A Great Session(s) in the Ninth - Vargem, Guideline Error, and Relevant Conduct

Hon. Judge William K. Sessions, III

 AFPD Candis Mitchell argued the guidelines still matter.
 (Former Sentencing Guideline Commission Chair) Judge William Sessions (sitting by designation), agrees.
United States v. Vargem, 2014 U.S. App. LEXIS 5824 (9th Cir. Mar. 28, 2014), decision available here.

Players: Decision by visiting DJ (and former Sentencing Guideline Commission Chair) Sessions, joined by Judges Reinhardt and Thomas. Big win by ND Cal AFPD Candis Mitchell and R&W Attorney Steven Koeninger.  

Facts: Represented by private counsel, Vargem was sentenced for possession of an unregistered machine gun. Id. at *1. The case started with a protective order against Vargem, issued after his wife reported an assault. Id. at *2. The protective order prohibited Vargem from having guns. Id. at *2. Cops then learned that Vargem had 12 guns registered in his name. An officer called Vargem, told him about the protective order, and told Vargem he had to surrender the guns. Id. at *3. Officers then went to Vargem’s house and saw him loading stuff into a van. Id. at *4. Vargem drove away, the van was stopped, a pistol was discovered. Id. A later search of Vargem’s house revealed an unregistered machinegun (and 27 other guns). Id. at *X. The district court imposed a six level adjustment under § 2K2.1(b)(1)(C) for multiple guns. The defense did not object to the guideline calcs. Id. at *5. Vargem appealed, with FPD counsel. Id. at *5.

Issue(s): “[There is] a six-level increase under § 2K2.1(b)(1)(C), which applies to ‘offenses’ involving between 25 and 99 firearms.” Id. at *14. Under relevant conduct rules, “offenses” include charged or uncharged offenses that “were part of the same course of conduct or common scheme or plan as the offense of conviction.” Id. at *15 (quoting § 1B1.3(a)(2)). “Echoing the language of § 1B1.3(a)(2), the government asserts that all 28 weapons were part of a common scheme or plan and the same course of conduct.” Id. at *15.   

Held: “[T]he government concedes that Vargem was not a prohibited person [from possessing a firearm] under federal law . . . [based] upon the current record, there is no evidence to support the conclusion that each of Vargem’s other 27 firearms was illegal. Accordingly, it was error for the district court to have included all 28 firearms under § 2K2.1(b)(1).” Id. at *19. “We . . . vacate Vargem’s sentence, and remand . . . .” Id. at *19.

Of Note: On the surface, this seems like a guideline-bound decision on a unique fact pattern. Read carefully, however, Vargem is an important case for the hot topic of relevant conduct. The government argued that Vargem lied to an officer to conceal weapons from seizure due to the protective order – an argument which “may have surface appeal.” Id. at *16. (Former Commission Chair) Sessions, however, rejects that expansive reading of relevant conduct: “it obscures the crux of the relevant conduct analysis, which is the relationship to the offense of conviction.Id. at *14. This careful reading of relevant conduct may resonate in cases where guideline tables drive big offense level figures (think fraud). A great relevant conduct case.

How to Use: Wait – the (incorrect) guidelines were 70-87, but the district court gave Vargem thirty months. Does this guideline mistake rise to “plain error?” Yup (to the government’s chagrin). Because the district court engaged with Vargem’s mitigating factors, there is a reasonable probability that the court would have imposed a different sentence had it known the correct range. Id. at *9. Vargem teaches that Booker and variances do not immunize a sentence from reversal when there is guideline error: a welcome arrow for the defense quiver.
Hon. C.J. Patti Saris
For Further Reading: This was a big week for Sentencing Commission Chairs. Current Chair (Chief Judge Patti Saris) just gave a terrific speech on federal drug sentences. Her must-read comments are available here.   
(“[W]e are overdue as a society and as a federal criminal justice community to reconsider our approach to federal drug sentencing. The Sentencing Commission hopes to continue playing a leading role in this important discussion that can begin to move the country toward rational and necessary changes.”)

Picture of the Honorable William K. Sessions III, District Judge for the District of Vermont, from 

Picture of the Honorable Chief Judge Patti Saris, Chair, Sentencing Guideline Commission, from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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Sunday, March 23, 2014

Case o' The Week: Bowlegged Ban - Montes-Ruiz and Consecutive sentences

Fed + State, federal district judge can order sentence be consecutive ("bowlegged") to second, not-yet-imposed state sentence.

Fed + Fed, not so much . . .
United States v. Montes-Ruiz, 2014 WL 1099504 (9th Cir. Mar. 21, 2014), decision available here.

Players: Decision by Judge Rawlinson, joined by Judges Gould and DJ Lemelle.  

Facts: [Ed. note: the various convictions and revocations in this case are complicated. Reported here are charges relevant to the main appellate issue].
  In 2007, Montes-Ruiz was convicted of attempted entry after deportation. Id. at *1. Removals, reentries, and revocations followed. Id. In 2012, Montes-Ruiz attempted to enter again, with false documents and with individuals hidden in the trunk of his vehicle. Id. Two cases ensued. Judge Burns proceeded over revocations proceedings, Judge Lorenz over the new substantive Section 1326 case. Id. Judge Burns tried to delay the revocation sentencing to follow the new Section 1326 sentencing, but the defense asked Judge Burns to go forward. Id. Judge Burns imposed 24 months of custody on the revocation, “to be served consecutively to the anticipated sentence to be imposed by Judge Lorenz for the substantive offense.” Id. at *2. Judge Lorenz later imposed an 18 month sentence on the new substantive offense, consecutive to the revocation sentence previously imposed by Judge Burns. Id. Montes-Ruiz appealed Judge Burns’ consecutive, 24-month revocation sentence. Id.

Issue(s): “Javier Montes-Ruiz appeals the district court’s decision to impose its sentence to run consecutively to an anticipated, but not-yet-imposed, federal sentence in a separate case.” Id. at *1.

Held: “We vacate and remand the first sentence [the revocation sentence] imposed to ensure compliance with the provisions of 18 U.S.C. § 3584.” Id. “We are persuaded by the language of the statute, the rationale of our prior decisions, the decisions from our sister circuits, and dicta from the Supreme Court that § 3584 does not permit a federal sentencing court to impose a sentence to run consecutively to another federal sentence that has yet to be imposed.” Id. at *6.

Of Note: Confusing stuff, this. In a nutshell, in Setser the Supreme Court rejected a previous line of Ninth law and held that a district court has a common law power to order that a federal sentence run consecutively to an anticipated, but not-yet-imposed state sentence. Id. at *3 (discussing Setser v. United States, 132 S. Ct. 1463 (2012)). Because of the limitations of Section 3584, however, Judge Rawlinson here concludes that a district court does not have the same common law power to order that a federal sentence be run consecutively to an anticipated, but not-yet-imposed federal sentence. Id. at *5 (discussing similar holdings in the Fourth and Fifth Circuits). The result is a remand, so Judge Burns can take another look at the first, revocation sentence.

How to Use: Good outcome here – maybe Mr. Montes-Ruiz has a shot at reducing that stiff (consecutive) revocation sentence on remand. And good to have limits on anticipatory consecutive sentences for federal cases. The complication, however, is when the defense wants a federal sentence concurrent to a not-yet-imposed federal term in another case. (For example, if trying to resolve minor federal charges in your district, while heavier charges await in another). Presumably, a concurrent sentence to a not-yet-imposed federal term is verboten under Montes-Ruiz. Yet another twist in the Byzantine rules on concurrent versus consecutive federal time.
For Further Reading: As of March 24, the N.D. Cal. will be a large urban district with no federal pretrial detention facility. FDC Dublin has been suddenly and unexpectedly shut down by the BOP. “Dublin” offered our clients a law library, decent food, reasonable outdoor time, good visiting facilities – basic amenities missing in the county jails where federal defendants are held pretrial. In ‘88, we’re told, the FPD, the ACLU, and Morrison & Foerster sued over the lack of federal pretrial detention facilities in the district. Any district vets involved in that old litigation please be in touch – it may be time to dust off those pleadings and get NorCal on the MDC list. See List of MDC facilities here

Cartoon from

Steven Kalar, Federal Public Defender N.D. Cal. FPD. Website at


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Friday, March 21, 2014

United States-Montes-Ruiz, No. 12-50398 (Rawlinson with Gould and Lemelle (EDLA)) ---
In Setser v. United States, 132 S. Ct. 1463 (2012), the Supreme Court held that a federal judge may impose a sentence consecutive to a sentence that has yet to be imposed by a state judge.  The question in this appeal is this: May a federal judge impose a sentence to run consecutive to a sentence that has yet to be imposed by another federal judge in a different case?  Consistent with Setser and its prior cases, the Ninth Circuit held that a federal judge cannot do this.  It therefore vacated such a sentence and remanded for further proceedings on an open record.

The fact pattern here is familiar -- a combination of a new illegal-reentry charge and an alleged supervised-release violation on an old one.  Rather than resolving both cases at the same time in front of the same judge, these cases were handled separately; Judge Burns of the Southern District of California was handling the supervised-release violation, while Judge Lorenz was handling the new case.  Judge Burns's case went first, and while at first he demurred to Judge Lorenz's case, the defendant insisted that Judge Burns go first.  He imposed a 24-month sentence to run consecutive to the sentence that Judge Lorenz would impose in the new case.  Judge Lorenz then imposed a sentence of 18 months, to run consecutive to the sentence imposed by Judge Burns.  The defendant then appealed the sentence that Judge Burns imposed.

Before Setser, the Ninth Circuit had held that federal judges may not direct that a sentence be either consecutive to or concurrent with an as-yet unimposed state sentence.  Setser changed this rule in light of the traditional discretion that judges had at common law to direct whether multiple sentences should run concurrently or consecutively.  For federal sentencing, the relevant statute is 18 U.S.C. § 3584, which limits the common-law discretion that judges have in this arena but confirms that the discretion belongs to judges (and not, say, the Bureau of Prisons).  But § 3584 allows a federal judge to exercise the concurrent-versus-consecutive discretion only with respect to a sentence that has already been imposed.  In Setser the Supreme Court suggested that when two different federal sentences are concerned, the rule would be different than when a federal and a state sentence are concerned.  This let the Ninth Circuit rely on its prior reasoning -- that a federal judge cannot order a sentence to run either concurrent with or consecutive to a sentence that another federal judge has yet to impose.  Decisions from the Second and Fourth Circuits bolstered the court's conclusion here.  Accordingly, Judge Burns's sentence was the result of an abuse of discretion insofar as he imposed it to run consecutive to a sentence that had not yet been imposed.  On remand, Judge Burns was free to reconsider that decision now that Judge Lorenz's sentence had been imposed. 

Moreover, the 24-month term was properly imposed under 18 U.S.C. § 3583(e).  Finally, the appeal was not moot because, on remand, Judge Burns was free to impose a sentence less than 24 months, or impose a concurrent term.

The decision is here: