1. US v. Briones, No. 16-10150 (7-9-19)(en banc)(Christen for majority; Bennett (joined by Ikuta) dissenting). Note: Az FPD was involved. 

This is an important Miller juvenile LWOP) decision. Sitting en banc, the 9th reversed the district court’s re-imposition of a LWOP juvenile sentence in a resentencing, holding the district court’s analysis was “inconsistent with the constitutional principles the Supreme Court delineated in Miller and subsequent case law[.]” (6). In so doing, the 9th set forth the test and factors to be followed, emphasizing that a life sentence for a juvenile is rare even extraordinary. It is for a small class of juvenile offenders who are truly corrupt, incorrigible, and irredeemable. They are beyond all hope.  “LWOP sentences are ‘disproportionate for all but the rarest’ juvenile offenders...”even when they commit terrible crimes.” A resentencing must reorientate the analysis for a sentence forward and the possibility of change rather than just backward looking at criminal history. “The key question is whether the defendant is capable of change.” (19).

Here, the district court tried to step into the shoes of the prior judge at that time of sentencing. The district court did not explain sufficiently its sentence nor apply factors set forth in Miller, Montgomery, and Pete. The defendant offered abundant evidence that he was not irreparably corrupt nor irredeemable. He had made tremendous strides in rehabilitation. The government moreover had offered a plea, at the time of the original offense in 1997, to a twenty-year sentence. The defendant was 17 years old at that time, and under the influence of his father, also a defendant, rejected the plea. 

Dissenting, Bennett focus extensively on the juvenile’s criminal history and acts, and would find that the district court resentencing, in less than two pages of transcript, to LWOP was constitutionally sufficient and supported by the record, in less than two pages of a transcript.

Congrats to CJA counsel Vikki Lyles and Easha Anand of Orrick Herrington. Special note should be made of the numerous amicus briefs on the defendant’s behalf, including AACJ, NACDL, many state NACDL affiliates, nonprofit advocacy groups, and law professors. Kudos to AFPD Keith Hilzendeger, FPD Az, who authored the amicus brief for the Federal Defenders of the 9th Cir.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/09/16-10150.pdf

 

2.  US v. Evans, No. 17-30185 (7-9-19)(O’Scannlain w/Bea & Friedland). Two defendants tried to get into the medical marijuana growing business. Entrepreneurs, they embarked on a growing and harvesting marijuana. Alas, they ran afoul of federal and state authorities, and were charged with federal offenses. They sought interlocutory relief, which the 9th heard, arguing that 538 prevented DOJ prosecution if they followed state law. The 9th remanded, ordering a hearing to see if they had strictly complied with the Washington state medical marijuana statute.  After a remand, and a denial of their affirmative defense under 538, they appealed, arguing again that DOJ could not prosecute them because they were following state law. The 9th concluded that the defendant’s were not in “strict compliance” with state law as they were not state designated providers, and they smoked pot (!) while growing and harvesting marijuana and were not qualifying patients. The 9th held too that in seeking to enjoin prosecution under 538, the burden was on the defendants to show compliance. Further, they were not entitled to a jury verdict of noncompliance.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/09/17-30185.pdf