Case o' The Week: A Wobble Bobble? - Christopher Johnson, Claims vs. Arguments, and Rule 32 on Appeal

  Priors may wobble, but they don’t fall down (in the Ninth).

United States v. Christopher Johnson, 2019 WL 1523106 (9th Cir. Apr. 9, 2019), decision available here.

Players: Decision by Judge Mark Bennett, joined by Judges M. Smith and Nguyen. 
  Hard-fought appeal by AFPDs Amy Cleary and Cullen Macbeth, D. Nevada FPD.

Facts: Johnson pleaded guilty to being a felon in possession of a firearm. Id. at *1. The DJ assigned a base offense level of 20, based on prior “crime of violence” felony priors. Specifically, Johnson had been convicted in California for assault with a deadly weapon (not a firearm), in violation of CPC § 245(a)(1). Id. at *2. Johnson had been sentenced to six months in county jail for that offense. Id. 

  In federal court, the defense objected to the use of this assault prior as a “crime of violence” because it lacked the necessary men rea. Johnson did not, however, object to its classification as a felony. Instead, in its sentencing memo, the defense stated Johnson had two prior felony convictions. Id. 

  The district court counted this Cali prior as a felony crime of violence: Johnson appealed.

Issue(s): “On appeal, Johnson argues that the district court erred by applying a crime-of-violence enhancement to his offense level. We first consider whether Johnson’s concessions in the district court foreclose his newly minted argument that his underlying conviction for violation of California Penal Code (‘CPC’) § 245(a)(1) was not actually a felony under California law. Reviewing de novo, we also examine Johnson’s CPC § 245(a)(1) conviction to determine whether it truly was for a felony, and if so, whether, in light of Moncrieffe v. Holder, 569 U.S. 184, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013), a felony conviction for violating CPC § 245(a)(1) can be a predicate offense for a crime-of-violence enhancement.” Id. at *1.

Held: “Because the answer to all three questions is yes, we affirm Johnson’s sentence.” Id.

Of Note: The troubling holding Christopher Johnson is not really the “crime of violence” holding -- though disappointing, this holding on Cali assault is old news. The real problem is the Ninth’s rejection of a new defense argument on a preserved claim that the crime-of-violence enhancement was improper as to a particular prior. Id. at *2. 

  On appeal, Johnson argued that this § 245(a)(1) prior was actually a “wobbler;” a uniquely Californian breed of offense where felonies can be “wobbled” down to misdemeanors. Id. The Ninth didn’t buy it. “We reject Johnson’s belated attempts to characterize his underlying California conviction as a misdemeanor.” Id. Because trial counsel didn’t dispute the PSR’s characterization of the prior as a felony, appellate counsel was stuck with that “fact” on appeal – even though the defense had asserted a claim in the district court that the prior didn’t qualify as a felony crime of violence. Id. at *4.

 The law in the Ninth has long been that parties can waive claims, but not arguments . Notably, in its briefing the Nevada FPD cited United States v. Pallares-Galan,359 F.3d 1088 (9th Cir. 2004) for that proposition. See AOB, 2018 WL 2234305 at *15-16. Yet the Ninth doesn’t cite or address Pallares in Christopher Johnson. As the NorCal appellate brain trust has observed, this is particularly troubling given the Ninth’s fondness for this “claim / argument” distinction when it salvages the government’s new arguments on appeal. See, e.g., United States v. Blackstone, 903 F.3d 1020, 1025 & n.2 (9th Cir. 2018); see also “How to Use” discussion here. 

  Beware of Christopher Johnson – the “claims / arguments” line of authority may have a PSR-objection carve-out, now. The decision is worth a close read for its great emphasis on Fed. R. Crim. Proc. 32 ramifications in the district court, and the corresponding encroachment on the claims/argument distinction on appeal.

How to Use: Despite the waiver holding discussed above, the Ninth does go on to hold in the alternative that this wobbler prior was not actually a mido. Id. at *5.

  For better or worse, Christopher Johnson is now a lead case on the analysis of Cali wobblers -- turn to the discussion at *5-*7 when your client has California “wobbler” priors at issue (and object in the district court!)

                                               

For Further Reading: What’s a wobbler?

  For a brief and accessible summary, written for a federal practitioner, see California ‘Wobblers’: How to Determine Whether a Prior California Conviction Was a Felony or Misdemeanor, by former CD Cal AFPD Davina Chen, available here. 

Image of “Weebles Wobble” from https://me.me/i/weebles-wobble-but-they-wont-fall-down-22833010

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

.