Sunday, December 28, 2014

Case o' The Week - The Gov't Was Right - Freddy Reyes and Relevant Conduct

  “Critics charge that relevant conduct, and specifically section (a)(2),
Hon. Judge Mary H. Murguia
encompasses too much unconvicted conduct, that sentences can be driven by unconvicted conduct, and as a result the full constitutional protections surrounding the criminal justice system, for practical purposes, are lost. These critics point out that there is no grand jury review of relevant conduct, no need to set out relevant conduct in a charging document, and lesser procedural or evidentiary protections surrounding its proof.”
    Discussion Paper, Relevant Conduct and Real Offense Sentencing, Sentencing Commission Staff, available here

   The critics are right. United States v. Freddy Reyes, 2014 WL 6600420 (9th Cir. Nov. 21, 2014), decision available here.

Players: Decision by Judge Murguia, joined by Judge Reinhardt and Fisher.

Facts: Reyes was part of a large smuggling ring: he ran the stash houses in the U.S.. Id. at *1. Undocumented aliens detained in one of these houses got a note out asking for help. Id. Raids by ICE then revealed two minors within. Id. at *2. Reyes pleaded guilty, pursuant to a Fed. R. Crim. Proc. 11(c)(1)(B) deal, to “harboring and concealing illegal aliens for financial gain.” Id. at *1. Probation busted the deal, and recommended that Reyes’ sentence be increased for harboring unaccompanied minor aliens. Id. at *2. The PSR recommended this enhancement under the relevant conduct guideline at USSG § 1B1.3(a), “which holds a defendant accountable for reasonably foreseeable actions or omissions of others committed in furtherance of a jointly undertaken criminal activity.” Id. at *3. At sentencing, both the defense and the government argued against the enhancements. Id. The court sided with Probation, rejected the deal’s (and the government’s) recommendations, and sentenced Reyes to the high-end of the enhanced guidelines: 96 months. Id.

Issue(s): 1. “Gamez Reyes does not dispute that unaccompanied minors were found at the . . . stash house. Instead, he disputes whether it was reasonably foreseeable to him that the unaccompanied minors would be there. In particular, he contends that, rather than applying the ‘reasonably foreseeable’ standard, the district court effectively applied a ‘strict liability’ standard, because it relied chiefly upon the sheer volume of aliens smuggled annually to conclude that it was reasonably foreseeable unaccompanied minors would also be smuggled.” Id. at *4.

Held: “We conclude that the district court applied the proper legal standard and did not clearly err in imposing the unaccompanied minor enhancement, despite the government’s argument at sentencing that it was not reasonably foreseeable to Gamez Reyes that unaccompanied minors would be smuggled.Id. at *4 (emphasis added).

Of Note: The government was right: the district court’s rationale for imposing the unaccompanied minor enhancement is a stretch. There was no direct evidence that Reyes knew the two minors were travelling alone, or knew that was the practice of the conspiracy leaders to smuggle unoccupied kids. To its great credit, the government (properly) argued against the enhancement at sentencing. The Ninth nonetheless holds that it was “plausible” that Reyes “could reasonably have foreseen” that others “might” have smuggled unaccompanied kids, “by act or omission.” Id. at *5 (an impressive string of speculation). The Relevant Conduct guideline is overbroad and unjust, and is inconsistent with the broad sentencing principles of Apprendi and Booker. Thankfully, the “use of relevant conduct in offenses involving multiple participants” is a priority for the Sentencing Commission in its next cycle – here’s hoping we’ll see an amended § 1B1.3(a) in the New Year. See Commission Final Priorities here.  

How to Use: What is the standard of review for the district court’s application of the Guidelines to the facts? Who knows? Judge Murguia flags the intracircuit split on whether the proper standard of review is de novo, or for abuse of discretion. Id. at *3 (citing Tanke, 743 F.3d 1296, 1306 (9th Cir. 2014)). The panel in Reyes doesn’t try to reconcile the conflict, explaining that its decision would be the same under either standard of review. Which of the two standards of review should you argue on appeal? Depends on whether you’re attacking, or defending, a district court’s sentencing decision: as things currently stand, the S.O.R. is dealer’s choice.
   Note also footnote 6 of the opinion, where Judge Murguia deals with the government’s beef that the defense didn’t make certain legal arguments about the “unaccompanied minors” enhancement before the district court. Reyes, 2014 WL 6600420 at 3 & n. 6.  Not a waiver or forfeiture, explains the Court, “”We may consider new legal arguments raised by the parties relating to claims previously raised in litigation.” Id. (quoting Thompson v. Runnels, 705 F.3d 1089, 1098 (9th Cir. 2013)). A useful paragraph to fend off “plain error” claims by the government.
For Further Reading: The defense bar hates the expansive Relevant Conduct guideline. Turns out we’re in good company: the Sentencing Commission staff hates the guideline too! 
   For a very candid discussion of this “most troublesome” guideline, see the staff’s “Simplification Draft Paper” available here

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



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