Case o' The Week: Jury Finding Not So Binding - Hardiman and Pimentel-Lopez challenges

 Per curiam coal, in the defense stocking . . .

   United States v. Hardiman, 2020 WL 7350248 (9th Cir. Dec. 15, 2020), decision available here.

 Players: Per curiam opinion with Judges Paez and Owens, and Sr. D.J England, Jr. Hard-fought appeal by ND Cal CJA stalwart James Thomson, along with Ethan Stone.

 Facts: At trial, a jury found Hardiman responsible for distributing at least 28 grams, but less than 280 grams, of crack. Id. at *1. At sentencing the district court rejected the jury’s finding, held Hardiman responsible for more than 280 grams, and imposed a guideline sentence. Id. 

 After Hardiman’s direct appeals were final, the Ninth decided United States v. Pimentel-Lopez, 859 F.3d 1134 (9th Cir. 2016). In Pimentel-Lopez, the Ninth held “that a district court is not entitled to make a drug quantity finding in excess of that found by the jury in its special verdict.” 2020 WL 7350248, *1 (internal quotations and citation omitted); see generally blog here. 

  After Pimentel-Lopez, the district court denied Hardiman’s § 2255 and § 3582(c)(2) motions.” Id.

 Issue(s): Issue One: “Hardiman argues that the district court erred by denying his § 2255 motion because, under Pimentel-Lopez, the court violated his Sixth Amendment rights when it found for sentencing purposes that he was responsible for distributing a higher amount of drugs than the jury specifically found.” Id.

 Issue Two: “Hardiman also argues that the district court erred by denying his § 3582(c)(2) motion in light of Pimentel-Lopez. Hardiman filed a § 3582(c)(2) motion to reduce his sentence based on Amendment 782 to the Guidelines. . . . The district court determined that Amendment 782 retroactively reduced Hardiman's base offense level and that he was eligible to be resentenced pursuant to a new Guidelines range, but that the 18 U.S.C. § 3553(a) factors and the circumstances of his case did not warrant a sentencing reduction.” Id. at *3.

 Held:  Issue One: “[W]e hold that Pimentel-Lopez does not apply retroactively to cases on collateral review under Teague v. Lane . . . .” Id. at *1. “Pimentel-Lopez announced a ‘new’ rule of criminal procedure which is not retroactive under Teague. Accordingly, Pimentel-Lopez is inapplicable to Hardiman's § 2255 motion, and the district court did not err by denying the motion.” Id. at *3.

  Issue Two: “Hardiman’s arguments about Pimentel-Lopez “were not affected by” Amendment 782 and therefore are outside the scope of the proceeding authorized by § 3582(c)(2) . . . Moreover, even under Pimentel-Lopez, a district court has the discretion in its assessment of the § 3553(a) factors to consider a drug quantity higher than the amount specifically found by the jury. . . .” Id. at *3 (footnote, quotations and citation omitted).

 Of Note: Should the § 3582(c)(2) decision be reviewed for abuse of discretion, plain error, or de novo? The Ninth dodges this standard of review – note that the standard of review issue remains open. Id. at *3 & n.4.

 How to Use: The Ninth doesn’t mention that Mr. Hardiman is serving 188 months – despite the fact that the jury found lower drug amounts than the sentencing court. There’s no habeas help, and no drug resentencing love. Do any options remain? Mull whether there is there any Compassionate Release action, litigation that permits revisiting unjust sentences imposed under laws that have since changed? (Note that Compassionate Release is a different subsection of § 3582).                                            

For Further Reading: The science is clear: inmates should be near the front of the line for the COVID vaccine. For a compelling podcast explaining why, see NPR piece here. 

  California is one of the few states that has prisoners in the list for vaccine in the next three months. See LA Times article here. 

  The CDC votes today on the next round of the vaccine schedule – here’s hoping our poor incarcerated clients don’t get washed out by the massive lobbying effort now underway. See CNN article here.  

 

Image of coal in stocking from https://middlesexconsulting.com/will-your-head-of-services-get-an-ipad-pro-or-a-lump-of-coal/

Image of COVID vaccine from https://www.insurancejournal.com/news/national/2020/10/30/588822.htm

 

 

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

 

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