Case o' The Week: Shades of Gray - United States v. Gray and Rule 32 rights at Form 12 sentencings

   Probation may see black and white, but there are many shades of Gray.

  United States v. Gray, 2018 WL 4763175 (9th Cir. Oct. 3, 2018), decision available here.

Players: Per curiam decision with Judges Leavy, Hawkins and Tallman. 

   Nice win for AFPDs David A. Merchant II and Josyln Hunt, District of Montana.

Facts: Ashley Gray was charged with violations of supervised release. Id. at *1. Gray was arrested and the district judge then referred the case to the magistrate judge “for hearing, finding of facts, and recommendation.” Id. 

  At the revocation hearing before the magistrate judge, Gray admitted to all but one of the allegations. Id. The guideline range was 4-10 months: Defense counsel asked for three months of custody; the government, five. Id. 

  The magistrate judge recommended five months. Id. 

  The MJ advised Gray she had the right to appear before the district judge, but would have to file a written objection within two weeks to do so. Id. Gray didn’t file any written objections to the magistrate judge’s findings and recommendation. Id. at *2. 

  The Honorable District Judge Lowell then relied on a Probation Officer’s (confidential) sentencing recommendation of 20 months. Id. The district judge considered Gray's monitored jail phone calls that – according to Probation -- revealed a “lack of remorse.” Id. Without a hearing, the district court imposed Probation's recommended custodial sentence of twenty months. Id. 

   The district court’s twenty-month custodial sentence was “four times the length of the sentence recommended by the magistrate judge and the government.” Id. at *3 (emphasis in original).

Issue(s): “Gray contends that the district court violated Federal Rule of Criminal Procedure 32 by failing to disclose to her factual evidence on which it relied at sentencing.” Id. at *2.

Held: “The government concedes that the district court erred, and we agree.” Id. 

  “Rule 32 ‘require[s] the disclosure of all relevant factual information to the defendant,’ including ‘factual information underlying a probation officer’s confidential sentencing recommendation.’ . . . . In its order sentencing Gray, the district court relied on the probation’s officer confidential sentencing recommendation, which included factual information that had not been disclosed to Gray and to which she had no opportunity to respond before sentence was imposed. Accordingly, we must vacate and remand for resentencing.” Id.

Of Note: For many in the Ninth, this Montana procedure seems foreign: a District Judge delegated sentencing of a supervised release violation to a Magistrate Judge? Here, Gray consented and agreed to proceed before the MJ. Doesn’t matter, explains the Ninth. “In conducting proceedings based on an order of reference by a district court, a magistrate judge does “not possess the authority to impose sentence; only the district court possesse[s] that authority.” Rodriguez, 23 F.3d at 921. Thus, even if the defendant is given an opportunity to appear and speak before the magistrate judge, the district court must provide the defendant an additional opportunity before the actual sentence is imposed.” Id. at *3.  

How to Use: There’s an interesting waiver holding buried in Gray. Gray didn’t object to the Magistrate Judge’s findings and recommendation: why didn’t she lose her right to complain about the D.J.’s later sentence? 

  The Ninth held that Gray's general lack of objection to the MJ's recommendation wasn’t an “explicit waiver of her right to be present and allocute.” Id. at *3. Gray teaches that waiver of Rule 32 rights isn’t a casual thing: invoke it when the government hides behind a waiver argument in sentencing and allocution claims.

                                               

For Further Reading: In Gray, the defense, the M.J., and the AUSA were just months apart in their sentencing recommendations – and all were in or near the guideline range. Probation, by contrast, urged a custodial term four times the government’s recommendation and double the high-end of the guidelines. 

  Does the largely-unfettered discretion of Probation to initiate violation proceedings, or to recommend sentences, increase sentencing disparity? 

  For an interesting piece wrestling with that question, see Probation and Parole Officers and Discretionary Decision-Making: Responses to Technical and Criminal Violations, available here.

Image of Probation Officer badge from https://www.pinterest.com/pin/561964859745692847/

Steven Kalar, Federal Public Defender, N.D. Cal.

New website available at https://www.ndcalfpd.org/ (many thanks to creative web master AFPD Candis Mitchell!)

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Case o' The Week: Win on Loss -- Galan and Disaggregating Restitution Loss for Child Porn Restitution

  [“T”]his area, in which Congress has adopted a scheme that at least approaches the limits of fair adjudication despite attempts by the courts to avoid caprice, cries out for congressional solution.”

  United States v. Galan, 2015 WL 6736535, *3 (9th Cir. Nov. 4, 2015) (three footnotes omitted), decision available here.

Players: Decision by Judge Fernandez, joined by Judges Tashima and Bea. Admirable win for D. Or. AFPD Bryan Lessley.

Facts: Eleven years before before Galan possessed and distributed child porn, someone else abused “Cindy” and created those images. Id. The government sought restitution from Galan under 18 USC § 2259(a), (b)(3). Id.

Galan contested the government’s calculations, because there was no attempt to disaggrate the losses arising from the original abuse from the losses arising from Galan’s crimes. Id.

The district court agreed with the government’s restitution calcs; this appeal followed.

Issue(s): “[Galan] asserts that the district court erred when it failed to disaggregate losses caused to Cindy due to the crimes perpetrated against her by the original abuser and those caused to her by others who possessed or distributed images of the abuse which were made by the original abuser.” Id. at *1. “The question on which the parties join issue is whether it is proper to make the restitution calculation without excluding the ongoing losses to Cindy due to the actions of the original abuser.” Id.

Held: “We agree and vacate the restitution order and remand.” Id. “We hold that in calculating the amount of restitution to be imposed upon a defendant who was convicted of distribution or possession of child pornography, the losses, including ongoing losses, caused by the original abuse of the victim should be disaggregated from the losses caused by the ongoing distribution and possession of images of that original abuse, to the extent possible. The district court erred when it declined to limit the restitution imposed upon Galan in that manner.” Id. at *3.

Of Note: In the first (brief) Westlaw page, Galan is peppered with no less than a whopping ten footnotes. It is a notable style of legal writing, that is not to everyone’s taste. See Abner J. Mikva, Goodbye to Footnotes, 56 U. Colo. L. Rev. 647 (1984-1985) (“I consider footnotes in judicial opinions an abomination.”) 

In defense of the approach, however, the first paragraph of Galan’s “Discussion” section lays out the core concepts in a series of clean and clear phrases, with the necessary and routine citations tucked away in a series of footnotes. 2015 WL 6736535, at *1.

An interesting opinion from footnote fan J. Ferdinand F. Fernandez.

How to Use: Back the case goes, to the district court. 

Now what? 

The Ninth “express[es] no opinion about what portion of a victim’s ongoing loss should be attributable to the original abuser.” Id. at *3. However, Judge Fernandez suggests some factors that are sure to be seized upon by district courts: egregiousness of the original abuse, how the victim deals with this abuse when distribution of the images does not follow, and the victim’s own reaction to the traumas to which he or she has been subjected. Id. at *3. 

“We have no illusion that the task will be easy,” commiserates Judge Fernandez, “but the courts (and the government) cannot decline to make an effort to accomplish what Congress and the Court have required.” Id. The restitution scheme “cries out for congressional solution,” opines the Court, id. but until then the district court and the government must try to disaggregate restitution claims.  

                                               

For Further Reading: A routine allocution and sentencing appeal from San Diego doesn’t merit enough interest to even get oral argument. Then, presto chango, a sua sponte en banc call goes out -- and the case is suddenly on January’s en banc calendar!?! 

What’s the bee in the Ninth’s bonnet? Speculation abounds, but hard to say for sure – the Ninth declined supplemental briefing on whether the case should go en banc. Curious and curiouser.

For Chief Judge Thomas’s order on this mystery wrapped in an enigma, see United States v. Francisco Gasca-Ruiz, No. 14-50342 (9th Cir. Nov. 12, 2015) (Ord.), available here.

Image of “footnote” By Calle Widmann (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons, from https://commons.wikimedia.org/wiki/File%3AFootnote.jpg

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

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Case o' The Week: Crazy Talk (or Silence?) - Dreyer, Competency, and Allocution at Sentencing

 “In attempting to comply with this misguided decision, district courts are left to navigate the shoals of Scylla and Charybdis.” United States v. Dreyer, 2013 65430 (9th Cir. Jan. 7, 2013) (ord. denying rh’g en banc) (Tallman, J., dissenting), order and superseding opinion available here.

Or, to put it differently, the Ninth’s new competency case presents opportunities for the defense.

Players: Dissent from order denying rehearing en banc by Judge Tallman, joined by CJ Kozinski and Judges O’Scannlain, Bybee, Callahan, Bea, Ikuta, and N.R. Smith.

                     

Facts: Defendant Joel Dreyer suffered from diagnosed mental illnesses. Id. at *5 (superseding opinion). Because of the effect of this dementia on his behavior, Dreyer did not allocate at sentencing. Id. Without a competency hearing at sentencing, the district court proceeded – and the defense did not object. Id. 

In an opinion issued August 21, 2012, Judge Reinhardt wrote that the failure to order a competency hearing sua sponte was plain error. 693 F.3d 803, 813. Judge Wardlaw joined Judge Reinhardt, and Judge Callahan dissented. A Ninth Circuit judge sought rehearing en banc. 2013 WL 65430, *1 (ord).

Issue(s): Rehearing en banc?

Held: “The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc reconsideration.” Id. at *1.

Of Note: In August, we touted Dreyer and commended as a must-read for anyone representing mentally ill clients. See blog post here. 

The Dissenting Eight from the order denying rehearing agree with us (or at least, agree that Dreyer is a seminal decision). In his dissent from the order denying rehearing en banc, Judge Tallman complains that the opinion “adds to the existing standard of legal competence by requiring that the defendant be able to speak persuasively on his own behalf at sentencing.” Id. at *4. He explains that a district court “may rationally conclude that it must sua sponte order a hearing when any number of impairments are identified.” Id. at *4. Judge Tallman worries that the case will “wreak havoc on sentencing proceedings.” Id. at *1. In other words, defense opportunities await.

How to Use: Dreyer requires some thought. There are times where the greatest service an attorney can render his or her client is to convince them to stay mum at sentencing – indeed, that may have been the case in Dreyer. If a client has a diagnosed mental illness, that strategy of silence may prompt a district judge into ordering a sua sponte competency evaluation (often by a hostile BOP shrink fond of “anti-social personality disorder” diagnoses). 

Remember that a defendant has the Fifth Amendment right to remain silent at sentencing, and can’t be punished for asserting that right. Mitchell v. United States, 526 U.S. 314, 330 (1999) (“By holding petitioner's silence against her in determining the facts of the offense at the sentencing hearing, the District Court imposed an impermissible burden on the exercise of the constitutional right against compelled self-incrimination.”) Dreyer is certainly a defense win and is intended to protect the mentally ill, but will it occasionally run afoul of Mitchell by forcing our lovable loony clients to choose between a disastrous sentencing allocution or being forced to speak to a BOP shrink? Interesting litigation in our future.

                                               

For Further Reading: What is the base offense level in the Sentencing Guidelines for unlawfully hacking a government web page?

 Don’t bother looking for the answer on the Sentencing Commission’s web page – it was just hacked by Anonymous and then taken down by the Feds. See CNET article here.  

Fresco of the shoals of Scylla and Charybdis from http://en.wikipedia.org/wiki/File:Caught_between_a_rock_and_a_hard_place.jpg

 

Screenshot of the hacked USSG web page from http://webcache.googleusercontent.com/search?q=cache:sV8dPXftnTcJ:www.ussc.gov/+&cd=2&hl=en&ct=clnk

 

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

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