United States v. Lindsey, No. 14-10004 (6-28-16)(Gould with Noonan and Friedland).  It was a "wild" time in the mortgage lending field, said defense counsel in his opening.  "Objection," said the prosecutor.  Sustained, ruled the court.  And so it went through the trial. The defense tried to mount a "negligence" defense, and even a recklessness on the part of the secondary lenders, arguing that no one was looking, and even willfully averted eyes.  It doesn't matter, ruled the trial court.  On appeal, after convictions for wire fraud based on lending practices, the 9th affirmed.  The 9th held that negligence and even intentional disregard of information as a defense in mortgage fraud.  The 9th found that the defendant was not denied the right to mount a defense.

The decision is here: 

https://cdn.ca9.uscourts.gov/datastore/opinions/2016/06/28/14-10004.pdf

United States v. Grovo, Nos. 15-30016, 15-30027 (Fisher with Watford and Walter (W.D. La.) --- The Ninth Circuit affirmed convictions for engaging in a child exploitation enterprise under 18 U.S.C. § 2252A(g) and conspiracy to advertize child pornography under 18 U.S.C. § 2251(d), but vacated the restitution awards and remanded with instructions to disaggregate the amounts in accordance with Paroline v. United States, 134 S. Ct. 1710 (2014), and United States v. Galan, 804 F.3d 1287 (9th Cir. 2015).

The defendants operated an invitation-only online bulletin board for sharing images of children, both pornographic and otherwise. It had about 40-45 members, only some of whom had access to post pornographic images in a separate part of the site reserved only for trusted members. The FBI infiltrated the site and, after identifying the operators, seized CP images from their personal hard drives.

The Ninth Circuit held that the government presented sufficient evidence at trial support the "acting in concert with three or more other persons" element of the § 2252A(g) charge. Drawing an analogy to drug conspiracies under 21 U.S.C. § 848. the court rejected the defendant's argument that they didn't act in concert with *three* other people because individual site members posted images at discrete times, implying that the operators acted in concert with only one person at a time whenever an image was uploaded to the site. It was OK to add up the number of people who posted to the site for purposes of proving this element. Nor was liability limited by counting only the number of people who operated the message board.

The court also held that the government presented sufficient evidence of advertizing under § 2251(d). This term was not limited to communications that were made through print or broadcast media, but included communications limited to a discrete subset of the public (here, people invited to join their message board). And the advertizements in question plainly related to the sharing of child pornography, even though the message board included discussion of other topics such as non-pornographic images and avoiding detection by law enforcement.

The court vacated one defendant's restitution award and remanded for computation using the methodology described in Galan.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/06/23/15-30016.pdf

Case o' The Week: The Ninth Goes Generic - Cisneros and Categorical Analysis of Oregon Priors

 Just another “generic” decision (happily!)

United States v. Cisneros, 2016 WL 3435389 (9th Cir. June 22, 2016), decision available here.

The Hon. Judge N.R. Smith

Players: Decision by Judge N.R. Smith, joined by Judges Goodwin and Ikuta. Big win for D. Or. AFPD Brian Butler.  

Facts: Cisneros was sentenced to an ACCA mandatory-minimum fifteen years. Id. at *2. He had six priors: conspiracy to deliver a controlled substance, three Oregon eluding felonies, and two first-degree Oregon burglaries. Id. The district court held that all six prior convictions qualified as predicates. Id. The Ninth upheld the sentence, but a G.V.R. (granting, vacating, and remanding) from the Supreme Court sent the case back to the Circuit.

Issue(s): “We must determine whether at least three of Cisneros's previous convictions are . . . violent felonies under ACCA.” Id. “[I]n order for ACCA's mandatory-minimum sentence to apply to Cisneros, both of his previous convictions for first-degree burglary under [Or. Rev. Stat.] section 164.225 2 must qualify as . . .  violent felonies. [T]hey do not have ‘as an element the use, attempted use, or threatened use of physical force.’ . . . ‘Therefore, we must determine whether Cisneros's convictions for first-degree burglary qualify as violent felonies under § 924(e)(2)(B)(ii)—i.e. whether a conviction for first-degree burglary under Oregon law is a categorical match to generic burglary under federal law.’” Id. at *3.

Held: “The government concedes that these prior [Oregon fleeing or attempt to elude police] convictions are not . . . violent felonies. We agree . . .” Id. at *2. 

  “Oregon's burglary statute is not a categorical match to generic burglary, because the Oregon statute defines building more broadly than does generic burglary and therefore criminalizes more conduct than generic burglary.” Id. at *4. ‘Oregon Revised Statutes section 164.225 is not divisible. This conclusion ends our inquiry; we need not proceed to step three. Cisneros's burglary convictions are not a categorical match to generic burglary, because the Oregon statute is overbroad and indivisible. Therefore, such convictions do not qualify as violent felonies under § 922(e)(2)(B) and ACCA’s mandatory minimum sentence is not applicable to Cisneros.” Id. at *6.

Of Note: Big week, for Johnson efforts – and all good news. In addition to the Ninth’s decision in Cisneros, the Supreme Court issued Mathis, 2016 WL 3434400 (June 23, 2016). Justice Kagan explains that the “underlying brute facts or means” make no difference when there’s a mismatch of elements between the prior and the generic offenses: even if the defendant’s conduct in the prior fits within the generic offense. Id. at *6. A big win for Iowa Fed. Defender James Whalen. 

   And back in the Ninth, an unusual event: a published decision from a Screening Panel (Judges Bea, Watford, and Friedland). In Orona v. United States, 2016 WL 3435692 (June 22, 2016), the per curiam opinion explains that the AEDPA clock is tolled when a petitioner files a SOS motion in the Ninth. Id. at *2. Good news for the Johnson brigades nervously checking SOS dockets, as the 1-year Johnson deadline loomed. See generally id. at *2. (“Given the large volume of second or successive applications our court must process each month, it frequently takes us longer—sometimes much longer—than 30 days to rule on such applications.”)  

How to Use: Mathis and Cisneros are welcome additions for our § 2255 oppositions that are soon due. Now, keep a nervous storm eye this week on the impending Voisine. See Professor Rory Little’s (gloomy) blog analysis here. 

  The good Prof. has been right before: here’s hoping his prediction is off the mark, this time.

                                               

For Further Reading: Paresh, your office is a mess! For a nice piece on all of our Johnson efforts, and a well-deserved shout-out for our Johnson hero, Paresh Patel, see One of Scalia’s Final Opinions Will Shorten Some Federal Prison Sentences, available here.

Image of the Honorable Judge N.R. Smith from http://dl9fvu4r30qs1.cloudfront.net/eb/8f/61678b0b4887866b0e92bd171f58/judge-nr-smith.R.%20Smith.jpg

Steven Kalar, Federal Public Defender, Northern District of California . Website at www.ndcalfpd.org

Two rulings in favor of criminal defendants today, both involving issues that follow in the wake of Johnson v. United States, 135. S. Ct. 2551 (2015). [Ed. note: I (Keith Hilzendeger) represent the petitioner in the second case summarized here.]

1. United States v. Cisneros, No. 13-30066 (NR Smith with Goodwin and Ikuta) --- Following a GVR in light of Johnson, the Ninth Circuit vacated an ACCA-enhanced sentence for felon in possession and remanded with instructions to resentence the defendant without the enhancement, because his prior convictions for eluding a police officer and for first-degree burglary under Oregon law are no longer "crimes of violence."

Congratulations to Assistant Federal Public Defender Brian Butler of Medford, Oregon.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/06/22/13-30066.pdf

2. Oroña v. United States, No. 16-70568 (June 2016 screening panel; Bea, Watford and Friedland) --- The Ninth Circuit granted a federal prisoner's motion for authorization to leave to file a second or successive § 2255 motion to challenge his ACCA-enhanced sentence based on Johnson. This result was preordained by Welch v. United States, 136 S. Ct. 1257 (2016), which held that Johnson applied retroactively to cases that are final on collateral review. The panel published to explain that equitable tolling of the § 2255 limitations period would be applied starting on the date on which the SOS motion was filed in order to protect diligent prisoners against the running of the limitations period while their applications are pending, because they have no way of controlling how long it will take the Ninth Circuit to adjudicate them.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/06/22/16-70568.pdf

Case o' The Week: Venn and the Art of Jurisprudential Maintenance - Davis and Fractured Supreme Court decisions

The Ninth gets all Venn on us.

United States v. Davis, 2016 WL 3245043 (9th Cir. June 13, 2016) (en banc), decision available here.

Players: Decision by Judge Paez, joined by Judges Fletcher, Rawlinson, Callahan, and Owens. 
  Concurring opinion by Judge Christen, joined by CJ Thomas, and Judges Tallman, Nguyen, and Hurwitz. 
  Judge Bea, dissenting. 
  Big win argued by ND Cal (and Jones Day) counsel Nathaniel Garrett.

Facts: Davis plead guilty to distributing crack, under a (c)(1)(C) deal. Id. at *2. The agreement acknowledged a guideline range and recommended a sentence below it. Id. Congress then passed the Fair Sentencing Act, and Commission adopted lower retroactive crack guidelines. Id. at *3. Davis filed a § 3582 motion to reduce his sentence. The district court held it was bound by Justice Sotomayor’s concurring opinion in Freeman, and found it lacked jurisdiction because Davis’s sentence was “based on” the (C) deal, not the guidelines. Id. at *4. A three-judge panel affirmed, and the case went en banc.

Issue(s): “[W]e must consider how to interpret the Supreme Court's fractured opinion in Freeman . . ., which addressed whether a defendant sentenced pursuant to a Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement is eligible for a sentence reduction under . . . § 3582(c)(2) . . .” Id. at *2 (citation omitted].

Held: “Revisiting Freeman and our application of Marks to fractured Supreme Court opinions, we hold that where we can identify no rationale common to a majority of the Justices, we are bound only by the result. In so holding, we join the D.C. Circuit, which concluded that Freeman lacks a controlling opinion ‘because the plurality and concurring opinions do not share common reasoning whereby one analysis is a logical subset of the other.’ . . . Bound only by Freeman’s specific result, the D.C. Circuit adopted the plurality opinion’s approach, which holds that “[e]ven when a defendant enters into an 11(c)(1)(C) agreement, the judge’s decision to accept the plea and impose the recommended sentence is likely to be based on the Guidelines; and when it is, the defendant should be eligible to seek § 3582(c)(2) relief.” . . . . We also adopt this approach and overrule Austin. Applying the plurality approach, we conclude that Davis is eligible to seek a sentence reduction under § 3582(c)(2).” Id. at *2 (citation omitted).

Of Note: Great result for drug resentencing – but the far bigger issue decided in Davis is how the Ninth deals with fractured Supreme Court decisions. Judge Paez provides a clear explanation of the two main approaches: one focusing on the reasoning of the various opinions, and the other focusing on the ultimate results. Id. at *5. 
  Judge Paez concedes that the Ninth’s own decisions on the fractured-Supremes conundrum have “not been a model of clarity.” Id. “To foster clarity,” this en banc decision “explicitly adopt[s] the reasoning-based approach to applying Marks.” Id.

  The Ninth imagines a Venn diagram with the plurality and concurring opinions: one can’t envision overlapping circles with Justice Sotomayor’s and the plurality opinion. Id. at *7.

  With this reasoning approach, the Ninth stands with D.C. and breaks with the approach of four circuits. Id. at *8. (But with our drifting 4-4 Supreme Court, query whether circuit splits are still as vulnerable to cert. calls?)

How to Use: “Even when a defendant enters into an 11(c) (1)(C) agreement, the judge’s decision to accept the plea and impose the recommended sentence is likely to be based on the Guidelines; and when it is, the defendant should be eligible to seek § 3582(c)(2) relief.” Id. at 10. 
  Scratch out § 3582(c)(2), substitute “§ 2255”, and our Johnson habeas clients are off to the races. During this Summer of Johnson Replies, turn to Davis for our (C) clients (and other “plea agreement” arguments in the gov’t Oppositions). Like a virus, the Guidelines infect all sentences: a deal’s recommendation won’t immunize a case from Johnson attack.

                                               

For Further Reading: Great timing, Davis: we may use it next week. Two big Supreme Court decisions are expected in very short order: Mathis, summary here, and Voisine, summary here. 

  Both cases are important for four Johnson efforts: decisions will start hit at 7:00 a.m. Monday June 20th.

Image of Venn diagram from http://jasminejonesy.tumblr.com/post/128324172173/11-funny-venn-diagrams-to-brighten-up-your-day

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

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