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
]
Medina-Carrasco
appealed.
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unpublished decisions, the Ninth has held the opposite of Medina-Carrasco – that this appellate waiver language is ambiguous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
.
Labels: Appellate Waiver, Graber, illegal sentence, Johnson, Waivers
0 Comments:
Post a Comment
<< Home