Case o' The Week: Ninth Gives Two Bites at Appeal Notice - Shehadeh, Notices of Appeal, and Restitution Orders

  New Ninth jurist pens – "appealing" – decision.

The Hon. Judge Ryan Nelson

United States v. Shehadeh, 2020 WL 3278724 (9th Cir. June 18, 2020), decision available here.

Players: Decision by Judge R. Nelson, joined by visiting Judge Stiler and Judge Bybee.  

Facts: Shehadeh pleaded guilty to a thirty-year deal in an arson case. He moved for immediate sentencing without a PSR. Id. at *1.

  The district court obliged.

  Two months later, Shehadeh moved to withdraw his plea. Four months after that, the court held it lacked jurisdiction and denied the motion. Id. at *2.

   The court then entered an amended judgment with a restitution order. Id.

   Shehadeh appealed.

Issue(s): “’A defendant must file a notice of appeal within fourteen days of the entry of either the judgment or the order being appealed . . . Shehadeh contends his appeal was timely because he filed it within fourteen days of the district court’s entry of its amended judgment ordering restitution. The government argues Shehadeh’s appeal is untimely because he did not appeal within fourteen days of the district court’s entry of judgment announcing his custodial sentence.” Id. at *2.

   “The government argues that because deferred restitution cases involve two appealable judgments, not one, . . . Shehadeh was required to appeal within fourteen days of the district court’s entry of judgment on Shehadeh’s custodial sentence in February. Instead, Shehadeh waited to appeal until after the district court entered its amended judgment ordering restitution six months later.” Id. [The Supreme Court in Manrique v. United States, . . . 137 S. Ct. 1266 . . . (2017)] “only held that a notice of appeal filed after a sentence of imprisonment does not ‘spring forward’ to become effective to appeal an order of restitution entered later . . . The Court did not address the opposite issue presented here: is a defendant’s notice of appeal after an amended judgment ordering restitution timely to appeal the initial judgment of conviction and sentencing?” Id.

Held: “We hold that in these circumstances it is.” Id.

  “It is true that, after Manrique, Shehadeh could have filed an appeal within fourteen days after the initial judgment imposing his custodial sentence . . . But he was not required to do so. Our conclusion today is that, where a district court defers its restitution order, a defendant wishing to appeal his conviction and sentence of imprisonment may enter a notice of appeal either within fourteen days following the district court’s entry of the custodial sentence, or within fourteen days of the entry of the amended judgment, which includes the amount of restitution.” Id. at *2.

Of Note: Shehadeh waived the PSR in the district court, then complained there was no PSR on appeal. The Ninth shrugs and concludes PSRs are no longer required. “In light of the Supreme Court’s . . . holding in . . . Booker, . . . that the Sentencing Guidelines are advisory, Turner’s holding that a presentence report cannot be waived is no longer good law . . . Congress has not acted since Booker to prohibit waiver of a presentence report. We will not prohibit that waiver here, where the defendant knowingly waived his right to preparation of a presentence report and asked to proceed to sentencing as quickly as possible.” Id. at *5. Shehadeh deeming PSRs waivable is welcome news, as we’re forced to jam cases towards quick time-served sentencing (i.e., 98% of NorCal’s “Tenderloin” “$20 hand-to-hand” drug felonies that have plagued our federal courts).

How to Use: Shehadeh third holding is this: a district court does have jurisdiction to consider a motion to withdraw a plea of guilt, filed after the “primary” sentencing but before the (later) restitution order is imposed. Id. at *3.

  Mull this timing wrinkle: after Shehadeh, when there are many months between sentencing and the restitution order, there is much time for buyer’s remorse and a (perhaps imprudent) motion to withdraw . . .

                                               

For Further Reading: Last week S.F. D.A. Chesa Boudin announced that his office will not charge cases that rely on officers with serious prior misconduct. See S.F. D.A. policy here.

  Will the N.D. Cal U.S. Attorney’s office join in this admirable policy? Or will cross-designated federal officers just salvage cases with bad cops, that Boudin dumps from the Hall of Justice?

Image of the Honorable Judge Ryan Nelson from https://www.eastidahonews.com/2019/03/judge-ryan-nelson-honored-during-investiture-ceremony/

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

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