Case o' The Week: One to Savor, on Appellate Waiver --Torres, Appellate Waivers, and Illegal Sentences

 The government cannot coerce a defendant to waive the right to appeal an illegal sentence.

 (Troubling that our government tries: reassuring that the Ninth rebuffs).

   United States v. Jimmy Torres, 2016 WL 3770517 (9th Cir. July 14, 2016), decision available here.

Players: Decision by Judge Murguia, joined by Judges Wardlaw and W.

Hon. Judge Mary H. Murguia

Fletcher. Big win for D. Nev. AFPDs Rachel Korenblat, Alina Shell and Amy Cleary.

Facts: Torres pleaded guilty pursuant to a conditional plea to § 922(g)(1). Id. at *3. The conditional plea allowed an appeal of the denial of a motion to suppress. Id. He was sentenced to 92 months; Torres did not object to the use of priors to increase his guideline range. Id. at *7. In fact, Torres stipulated in his plea agreement to a range that included a big bump for prior “crimes of violence.” Id. On appeal, Torres challenged the use of the “crimes of violence” to enhance his sentence, arguing that the Supreme Court’s 2015 Johnson decision rendered the guideline definition of “crime of violence” unconstitutionally vague. Id.

Issue(s): “Torres . . . challenges his sentence on the grounds that the district court incorrectly enhanced his offense level under section 2K2.1 of the . . . Guidelines, in light of the Supreme Court's . . . . decision in Johnson. . . Johnson held that the ACCA's catch-all “residual clause,” . . . was unconstitutionally vague because it failed to specify the crimes that fell within its scope sufficiently clearly to satisfy the dictates of due process. . . . Torres argues that section 2K2.1(a)(2)’s identically worded residual clause is likewise unconstitutional. Because Torres did not object . . ., we will generally reverse only if we find plain error in his sentence.” Id. at *7. “Before we can decide whether Torres is entitled to relief on his sentencing claim, we must first determine whether his appeal is precluded by his plea agreement, in which Torres knowingly and expressly waive[d]: (a) the right to appeal any sentence imposed within or below the applicable guidelines range as determined by the Court, with the exception of preserving the right to appeal a determination that the [he] qualifies as an Armed Career Criminal; 5 (b) the right to appeal the manner in which the Court determined that sentence on the grounds set forth in 18 U.S.C. § 3742; 6 and (c) the right to appeal any other aspect of the conviction or sentence.’” Id. at *8.

Held: “Here, the Government asserted . . . that it believes Johnson applies to the Sentencing Guidelines. . . . Based on the Government's concession, we assume without deciding that Johnson’s holding nullifies § 4B1.2(a)(2)'s identically worded residual clause. We . . . accept the Government's concession that the district court sentenced Torres pursuant to a provision in the Guidelines that is unconstitutionally vague. This renders Torres's sentence ‘illegal,’ and therefore the waiver in his plea agreement does not bar this appeal. See Bibler, 495 F.3d at 624. And, because the government agrees that Torres’s prior convictions do not justify the imposition of § 2K2.1(a)(2)’s crime-of-violence enhancement absent the residual clause, we vacate Torres's sentence and remand for re-sentencing.” Id. at *9.

Of Note: Does Johnson apply to the Guidelines? Yep, says the government (and thus the Ninth) in Torres. 

   Is Johnson retroactive for guideline cases? Yep, says every Circuit to have considered the issue – except for that renegade Eleventh. See generally petition for cert. at 21-21, available here. (collecting cases – (plus the Fourth’s Hubbard!)).  

  What are the prospects for the Eleventh’s stubborn outlier? Not so hot – the Eleventh's decision was the one slapped with a cert. grant. See Beckles SCOTUS blog summary here. 

How to Use: Bibler lives (whew!). The Ninth confirms in Torres that it won’t allow the government to immunize illegal sentences from appellate review through appellate waiver. 

  Use Bibler and Torres when thinking about sentencing appeals, to cast off some of those coerced appeal-waiver shackles USAOs demand in their pursuit of “efficiency.”  

                                               

For Further Reading: New York robbery is not a “crime of violence,” holds the Second Circuit in United States v. Corey Jones. 

  Why do we care about a Second Circuit decision and New York robbery, way out here in the Ninth? Because Hobbs Act robbery was expressly modeled on New York robbery, the Ninth has explained. See United States v. Aguon, 851 F.2d 1158, 1164 (9th Cir. 1988) (en banc) (“Congressman Hobbs said explicitly that the definitions of robbery and extortion were modeled on the New York Penal Code.”), overruled on other grounds by Evans v. United States, 504 U.S. 255 (1992).  

  The Second Circuit's decision in Jones vindicates our claim that Hobbs Act robbery is not a crime of violence after Johnson. 

  (Our sympathies to the Marble Rye lady, but Jerry ain’t a “violent felon.” See blog entry here (and congrats to AFPD Matt Larsen)).

Image of the Hon. Judge Mary Murgia from http://www.azflse.org/azflse/newsletter/ 

Image of the Hobbs Act from https://covers.openlibrary.org/b/id/5805000-M.jpg

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

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