Case o' The Week: The 411 on 211 - Bankston and California Robbery and Guideline "Crime of Violence" (CPC 211)

The Hon. Judge Marsha Berzon

  “Why the hell did [the Sentencing Commission”] do it this way? It’s ridiculous!” . . .  “I feel like calling them up and asking them!”

  So fumed Judge Berzon when wrestling with the 2016 amendment to the guideline definition of “crime of violence.” See Nickles, III oral argument, here.

  Happily, Judge Berzon now gives the Commission a welcome interpretation assist.

United States v. Bankston, 2018 WL 4016853 (9th Cir. Aug. 23, 2018), decision available here; see also United States v. Nickles III, 2018 WL 4018144 (9th Cir. Aug. 23, 2018).

Players: Decision by Judge Berzon, joined by Judges Wallace and Callahan. 

  Important win for AFPDs Grace DiLaura (argued) and Todd Borden on the briefs, Northern District of California FPD.

Facts: In 2015 Bankston pleaded guilty to being a felon in possession of a firearm. Id. N.D. Cal District Judge Illston agreed with the defense, and held that the “crime of violence” section of Guidelines §§ 4B1.2, 2K2.1 was unconstitutionally vague. Id. at *2. 

  Judge Illston accordingly rejected the PSR’s pitch to characterize the two Cal. Penal Code § 211 (robbery) convictions as “crimes of violence.” Id. The government appealed. Id.

Issue(s): “In this case, we reevaluate whether California robbery constitutes a ‘crime of violence’ under the United States Sentencing Guidelines [after Amendment 798.”].” Id. at *1.

Held: “We hold that, under Amendment 798 to the Sentencing Guidelines, California robbery is not a ‘crime of violence.’” Id. “Under Amendment 798, Guidelines-defined extortion does not criminalize extortion committed by threats to property; California robbery does. California robbery is thus no longer a categorical match to a combination of Guidelines-described robbery and extortion, and Becerril-Lopez’s holding to the contrary no longer controls.’” Id. at *3.

Of Note: Unfortunately for Mr. Bankson, paired with this great new robbery holding was a disappointing refusal to find the amendment retroactive. As Judge Berzon explains, “Bankston was sentenced six months before the effective date of Amendment 798—and, as we now hold, the portion of that amendment applicable here is not retroactive. Bankston’s efforts to avoid the consequences of that lack of retroactivity are valiant but unpersuasive.” Id. at *1. 

  Put differently, going forward Cali robbery is not a crime of violence under the Sentencing Guidelines (for felon-in-possession cases, for example, or Career Offender sentencing). However, there’s no retroactive amendment relief for folks sentenced before 798’s effective date (Aug. 1, 2016).

How to Use: Bankston won the guideline battle but lost the appellate war: his case was remanded and sentencing is now scheduled for October. The defense argued to the Ninth that any error was harmless: Bankston suffered a tragic childhood, battled addiction, lost a beloved family member, and lacked mental health counselling – the 33 months was thus a fair sentence regardless of the retroactivity technicality. Id. at *7.

  While the Ninth was conspicuously sympathetic to these arguments, the panel reluctantly conceded that “[A] one-size-fits-all explanation ordinarily does not suffice in light of a Guidelines calculation error—and it does not suffice here . . . As we cannot say with certainty that the district court’s sentencing error was harmless, we must remand for resentencing.” Id. at *7. Use Bankston against the government when it tries to dodge a remand– it’s the rare case that will avoid a trip back to the district court when the guideline calcs are wrong.  

                                               

For Further Reading: How should federal courts, as an institution, deal with huge and anomalous re-sentencing events? It is a question that was squarely presented by the tsunami of Johnson litigation that has hit the federal system over the last three years.

  In November 2015, an enlightened District Court for the Northern District of California appointed the Federal Public Defender and Criminal Justice Act panel attorneys to represent inmates seeking Johnson relief. See Misc. ord. 2015.11.17, available here. 

  Working closely with Probation, the NorCal FPD reviewed over 1,900 cases for eligibility. Ultimately, over 100 Johnson Sec. 2255 motions were filed by the FPD and the CJA panel.

  By our count, our collective Johnson efforts have resulted in a reduction of over 40 years of federal prison time in the Northern District alone! The general appointment order from the ND Cal District Court allowed the stakeholders to work “proactively and collaboratively,” resulting in efficient litigation of the Johnson deluge (and just outcomes for the Johnson petitioners).

  An important new analysis compares Districts that did (and did not) appoint the Defender for the Johnson effort, confirming that the NorCal Court got it right. See Caryn Devins, Lessons Learned from Retroactive Resentencing After Johnson and Amendment 782, 10 Fed. Cts. L. Rev. 1 (Winter 2018), available here. 

Image of the Honorable Judge Marsha Berzon from http://www.spokesman.com/blogs/boise/2014/sep/08/judge-berzon-train-has-left-station/

Image of “Surviving the Tsunami” from http://www.pbs.org/wgbh/nova/earth/surviving-tsunami.html

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

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