Sunday, March 04, 2018

Case o' The Week: Ninth Not OK with No Mens Rea - Evans and Conditions of Supervised Released


  Probation’s “guilt by association” a Ninth no-go.
United States v. Evans, 2016 WL 2018 WL 1074736 (9th Cir. Feb. 28, 2016), decision available here.


Players: Decision by Judge M. Smith, joined by visiting District Judge John Bates. Dissent by Judge Ikuta.
 Admirable win for AFPDs Shilpi Agarwal and Appellate Chief Carmen Smarandoiu, N.D. Cal Federal Public Defender.

Facts: Evans, a felon, was shot five times. Id. at *2. Evans shot back at his assailant as the assailant fled. Id.
  Evans was convicted of being a felon-in-possession, and put on supervised release. Id.
  One condition of supervised release warned that if Evans was around gang members, the court would presume he was participating in gang activities. Id. at *5.

Issue(s): “Evans argues that the district court erred . . .  in imposing certain conditions of supervised release.” Id. “Evans argues that all of the challenged conditions are unconstitutionally vague.” Id. at *3.

Held: “[One condition] reads: ‘If [Evans] is found to be in the company of [gang members] or wearing the clothing, colors or insignia of the Down Below Gang, or any other gang, the court will presume that the association was for the purpose of participating in gang activities.’ This presumption explicitly removes the requirement that the government prove mens rea in a future revocation proceeding and therefore, if allowed to stand, would render the condition vague and overbroad . . . . Accordingly, . . . we remand for the district court to strike this final sentence.’ Id. at *5 (internal quotation and citation omitted).

Of Note: Evans also disputed Probation’s allegation that he previously had a gun. The court failed to resolve that dispute. Id. at *7. This unresolved dispute falls into an interesting procedural hole.
  Federal Rule of Criminal Procedure 32 requires a court sentencing on substantive counts to resolve factual disputes (or expressly deem the irrelevant). Id. at *7. Rule 32.1, however, covers revocation proceedings. Rule 32.1 doesn’t discuss matters that have to be resolved by the sentencing court.
  Does a sentencing court have to resolve disputes, or dismiss them as not relevant, at a revocation sentencing? While that question was squarely, the Ninth dodged the question in Evans. Id. at *7.
  Flag this dispute for a future fight –it is illogical that revocations aren’t entitled to the same procedural protections as “normal” sentencings.

How to Use: The core issue in Evans was not supervised release. The big fight was whether the Court correctly increased Evans’ substantive sentence for using a firearm in the commission of an aggravated assault under USSG § 2A2.2(a) and (b)(2)(A). Id. at *2. While Evans argued that the firing of his gun was in self-defense, the Ninth regrettably upheld the sentencing enhancement because the assailant was fleeing, after Evans had been wounded. Id.
  The opinion is still valuable, however. Judge Smith corrects the district court’s erroneous view of the burden for self-defense at sentencing. That burden properly rests on the government. Id. at *3.
  Invoke Evans to fight assault enhancements at sentencing. Though the government’s burden is admittedly by a preponderance of the evidence, id. at *3, it nonetheless remains a burden that the government must shoulder.
                                               
Georgetown Law Adjunct Professor William Otis
For Further Reading: Adjunct Professor William Otis has opined that it is “true” that “blacks and Hispanics are more violent than whites.” By contrast, the Professor asserts that “Orientals stay out of jail more than either whites or blacks [because] family life, work, education and tradition are honored more in Oriental culture than in others.” See “Crime and Consequences” blog here

  The Sentencing Commission, Professor Otis has explained, used to be the “900-pound gorilla of sentencing law.” After Booker, it is “an overfed lemur.” He wonders how long the Commission should survive, given its increasing irrelevance. See Congressional Testimony of William Otis, available here
  “By its incomprehensibly nonchalant attitude toward restoring the determinate sentencing system it was created to produce, the Commission has turned itself into an expensive anachronism. In the era of desperately needed government frugality, taxpayers shouldn’t have to continue to shell out millions for its sentencing suggestions.” Id. at 10.
  Last week, President Trump nominated Professor Otis to serve as a United States Sentencing Guidelines Commissioner. See NPR article here 



Image of Probation Officers from http://tularecounty.ca.gov/probation/


Image of overfed lemur from https://www.pinterest.com/mbrodzka1011/lemur/

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

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