Case o' The Week - Funky Cold Medina - Medina-Carrasco and Appellate Waivers
Tone-Loc, Funky Cold Medina.
United States v. Medina-Carrasco, 2015 WL 7740633 (9th Cir. Dec. 2, 2015), decision available here.
Players: Decision by Judge Graber, joined by Judge Watford.
Very compelling dissent by visiting D.C. District Judge Paul L. Friedman.
Facts: Medina-Carrasco pleaded guilty to an Arizona “fast track” plea agreement. Id. at *1. There was a waiver that precluded an appeal of “any aspect of the defendant’s sentence.” Id.
The PSR hit the defendant with a +16 OL “crime of violence” for an aggravated assault prior. Id. [Ed Note: Notably, the Ninth Circuit just held that a New Jersey aggravated assault conviction was not a "crime of violence" two weeks ago. See generally Garcia-Jimenez, blog here ]
Issue(s): “Defendant argues that the waiver is unenforceable for two related, but distinct, reasons. First, he argues that the requirement that he be sentenced ‘in accordance with’ the plea agreement is ambiguous, such that his waiver was not knowing and voluntary. Second, he contends that he was not sentenced ‘in accordance with’ the plea agreement because his aggravated assault conviction was not a conviction for a crime of violence.” Id. at *3.
Held: “The requirement that Defendant be sentenced ‘in accordance with’ the plea agreement is not ambiguous.” Id. at *3.
“Defendant’s second contention – that he was not sentenced ‘in accordance with’ the plea agreement because the district court’s ‘crime of violence’ determination was incorrect – is similarly unavailing. We need not reach the merits of the ‘crime of violence’ question because, regardless of the correct answer to that question, Defendant was sentenced ‘in accordance with’ the plea agreement.” Id. at *4.
Of Note: In a whopping five unpublished decisions, the Ninth has held the opposite of Medina-Carrasco – that this appellate waiver language is ambiguous and unenforceable absent sufficient judicial clarification. See id. at *4 & n.2 (Friedman, D.J., dissenting and collecting cases).
|Hon. Judge Paul L. Friedman|
In these mem dispos, twelve Ninth jurists -- Judges Bybee, Christen, Fernandez, Fisher, Noonan, Nguyen, McKeown, M. Smith, N.R. Smith, Paez, Rawlinson, and Schroeder -- have all held that this waiver language (or language like it) was ambiguous and have refused to enforce the waiver, or have relied on clarification in a colloquy to save it. See id.
Moreover, Medina-Carrasco’s holding on appeal waivers is of particular concern, because of the opinion’s (two paragraph) preclusion of what may have been a constitutional Johnson claim as to the “agg assault” and “crime of violence.” Id. at *4. Very worrisome, just two weeks after the Ninth delivers the great Garcia-Jimenez decision on (Jersey) agg assaults.
Hundreds of Ninth Circuit inmates may potentially find their constitutional Johnson claims unfairly precluded by Medina's brief discussion. Medina-Carrasco is a troubling decision, is at odds with the Ninth’s trend on these appellate waivers, and may raise Johnson ramifications far beyond the case’s narrow facts. The outcome is also contrary to DOJ’s laudable over-incarceration concerns – will Justice allow US Attorney Offices to seek to enforce these appeal waivers against Johnson constitutional claims?
Knock wood that the case gets a close look for review by the Ninth Circuit sitting en banc.
How to Use: In Castro-Verdugo, 750 F.3d 1065 (9th Cir. 2014), the Ninth refused to correct an illegal sentence on appeal for an alien defendant. As in Medina-Carrasco, Judge Graber authored the Castro decision. See blog here.
|Hon. Judge Charles Breyer|
District Judge / Sentencing Commissioner Breyer disagreed with Judge Graber in a terrific dissent. See 750 F.3d at 1073.
Johnson counsel – re-read footnote one of Judge Breyer’s dissent, collecting cases that refuse to uphold appellate waivers of illegal sentences. Id. at 1072-73 & n.1. If Medina-Carrasco stands, we may be mining Judge Breyer’s dissent, testing the Ninth’s tolerance of illegal Johnson sentences, and exploring the depth of a circuit split on appeal waivers.
For Further Reading: On the subject of Johnson litigation -- is Johnson retroactive?
Only one Court’s opinion really matters – and SCOTUS may be forced to decide that issue soon.
For a fascinating take on some highly unusual Supreme Court litigation, see Prof. Vladeck’s recent essay here.
Image of “funky cold medina” from http://hamptonroadshappyhour.com/funky-cold-medina
Image of the Hon. Paul L. Friedman from https://en.wikipedia.org/wiki/Paul_L._Friedman
Image of the Hon. Charles Breyer from https://en.wikipedia.org/wiki/Charles_R._Breyer
Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org