Case o' The Week: Ninth's Had its Fill of "Harmless" Sentencing Error - Munoz-Camarena

Judge Susan Graber has been an important figure in the Circuit's development of post-Booker sentencing law: first, with the very good Menyweather decision, and this week with the equally good Munoz-Camarena opinion (finding Menyweather overruled!) United States v. Munoz-Camarena, 2010 WL 3448100 (9th Cir. Sept. 3, 2010), decision available here.

Players: Admirable win for SD Cal AFPDs Erica Zunkel, Steve Hubachek, and Kristi Hughes. Per curiam by Judges B. Fletcher, Pregerson, and Graber.

(Note that Judge Graber wrote the Ninth Circuit's very good Menyweather decision, which this panel holds has been overruled by intervening Supreme Court authority).

Facts: After being convicted for attempted illegal re-entry, Munoz-Camarena was sentenced under 2008 guidelines. Id. at *1. The district court equated Munoz-Camarena’s three prior drug possession felonies as being equivalent to a conviction for federal recidivist possession (which is an aggravated felony). Id. As a result, the court gave an eight offense-level bump at sentencing, and imposed a sentence of sixty-five months. Id. (It is only a four-level bump if the priors don’t constitute an “aggravated felony").

Between sentencing and the appeal, the Supreme Court decided Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010), which held that a second possession conviction does not become an “aggravated felony” when the “state conviction is not based on the fact of a prior conviction.” Id.

Issue(s): “The Government argues that a remand is unnecessary because the district court’s error was harmless. The district court stated that it was going to sentence Munoz-Camarena to 65 months regardless of whether the four- or eight-level enhancement applied and also stated that it would apply the same sentence if the Ninth Circuit were to order resentencing. In United States v. Menyweather, 447 F.3d 625 (9th Cir 2006), we held that it was not an abuse of discretion for the district court to depart downwards from the Guidelines sentence . . . . We further held that, even if the district court erred, ‘any error was harmless . . . in view of our belief that the court would impose the same sentence again, having steadfastly maintained its position in the face of two opportunities to revise its sentence.’” Id.

Held: “Since Menyweather was decided, the Supreme Court has made clear that the district court must correctly calculate the recommended Guidelines sentence and use that recommendation as ‘the starting point and the initial benchmark.” Id. . . . Therefore, subsequent Supreme Court authority has effectively overruled application of the harmless error analysis employed in Menyweather to the miscalculation of a Guidelines sentence.” Id. (quotations and citation omitted)

Of Note: Belts & suspenders: we predicted it when § 3553(a) got in full swing, and many district court have since resorted to it to insulate their sentences. The idea is for a district court to stave off reversal by building-in harmless error with the trope, “I’d give the same § 3553(a) sentence regardless of the guideline calculations.” We liked that tactic when the defense was protecting a favorable sentence, see Menyweather blog here, but it was frustrating when a court was imposing a (high) incorrect or unfair guideline sentence.

From a neutral, policy perspective, this cynical approach was bad judging and made for sloppy sentencing for all: why bother really getting the guidelines right or engaging in a meaningful § 3553(a) analysis, when a district court could effectively immunize a sentence from appellate review by intoning the “same result regardless” mantra? This brief little Munoz-Camarena gem puts a definitive end to that bad habit: if the district court gets the guidelines wrong, the case is coming back for resentencing despite the court’s assurances that it would impose the same sentence under Section 3553(a). This is a big win with important ramifications for both trial and appellate sentencing practice.

How to Use: Munoz-Camarena ups the value of a sentencing appeal for guideline error, because a district court can no longer insulate an incorrect guideline sentence by rubber-stamping an identical § 3553(a) term on top. For cases with novel or disputed guideline issues, this decision just increased the value of an open plea with no appellate waiver.

For Further Reading: Five Justices have stated that Almendarez-Torres is wrong, and that Booker should apply to sentences increased by virtue of prior convictions. So when will A-T be reversed, already? Carachuri-Rosendo, the Supreme Court case at the heart of this week’s Munoz-Camarena decision, may have put the kibosh on that dream, for now. See Prof. Berman’s blog, here.



Image of Judge Graber's chamber's door from http://abovethelaw.com/susan-graber/


Steven Kalar, Senior Litigator N.D. Cal FPD. Website at www.ndcalfpd.org

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Case o' The Week: Ninth Avoids Constitutional Avoidance, Grisel

In an unusual, but welcome, alliance, Judge Graber (Right) authors a good en banc decision joined by Judges Pregerson, Reinhardt (Left), Berzon and others. United States v. Grisel, __ F.3d __, Slip. Op. at 6735 (9th Cir. June 5, 2007) (en banc), decision available here. In Grisel, the Ninth undertakes an exacting analysis of the Taylor definition of burglary, reverses an earlier decision, and holds that Oregon Second Degree burglary is not a categorical predicate for the Armed Career Criminal Act (ACCA). The only dark cloud in this sunny picture is the Ninth's rejection of Steve Sady's attack using the doctrine of constitutional avoidance (more briefing available here).

Players: Judge Graber authors, Judge Bea dissents. Big amicus assist by Oregon Chief Deputy FPD Stephen Sady.

Facts: Grisel pleaded guilty to felon in possession, 18 USC § 922(g)(1). Slip Op. at 6739. At sentencing, he objected to the use of seven prior second degree Oregon burglary convictions. Id. The district court overruled his objections, and sentenced under ACCA to the 180 mand-min term. Id.

Issue(s): 1. “First, Defendant urges that the doctrine of constitutional avoidance required that we not apply the rule of Almendarez-Torres. . . , that prior convictions need not be alleged in an indictment, proved to a jury, or admitted by a defendant, because recent Supreme Court cases have called into question its validity.”

2. “We took this case en banc primarily to reexamine the validity of United States v. Cunningham . . . In Cunningham, we held that second-degree burglary under Oregon law is a categorical offense under the analysis required by Taylor . . . .” Id. at 6738-39.

Held: 1. [Re: Almendarez-Torres and “doctrine of constitutional avoidance”]: “The fact that the Supreme Court has expressed some ambivalence about its own jurisprudence does not give us the power to change it.” Id. at 6741.

2. “[S]econd degree burglary under Oregon law is not a categorical burglary for purposes of the ACCA because it encompasses crimes that fall outside the federal definition of generic burglary. We therefore overrule our contrary holding in Cunningham . . . .” Id. at 6748.

Of Note: Grisel hurts: it essentially avoids the doctrine of constitutional avoidance. Id. at 6739-41. Readers of the Ninth Circuit blog know that this attack has long been Stephen Sady’s crusade. Still worth raising Sady’s excellent challenge? Yep. Remember that Olano plain error is what clobbered many of our post-conviction clients in the immediate wake of Apprendi. Little harm in preserving this objection in open-plea cases: who knows if and when the other Almendarez-Torres shoe will drop?

How to Use: Grisel helps in categorical-analysis cases. The dissent (Judges Bea, Kleinfeld and Tallman) complain that this analysis is just “technicalities” – the Supreme Court, and Congress, would want Grisel’s Oregon priors to count as ACCA predicates. Id. at 6750 (A worrisome red cape before the Supreme Court bull, this dissent).

In any event, the majority opinion is useful because it refuses to second-guess Congressional intent: it reads the Supreme Court’s exact definition of burglary in Taylor, and (correctly) finds that Oregon’s definition is broader – too broad, in fact. Demand this same depth of analysis in your next categorical challenge to a state prior at sentencing.

For Further Reading: It is rumored that Ninth Circuit judges have referred to the categorical/modified-categorical goo of jurisprudence as a “judicial crisis.” The Court seems to have decided to do something about the mess, if recent slip ops are any indication. The day after Grisel, Judge Beezer authored United States v. Navaraez-Gomez, Slip. Op. 6845 (9th Cir. June 6, 2007), decision available here. In that case, the Ninth concludes Cal Penal Code § 245 – shooting a gun at an inhabited house or dwelling – is not a categorical crime of violence because it can include reckless conduct. Id. at 6857.

In United States v. Beltran-Munguia, Slip. Op. 6873 (9th Cir. June 7, 2007), decision available here, decided two days after Grisel, Judge Berzon explained that Oregon Second Degree sexual abuse is not a categorical crime of violence under USSG § 2L1.2 [the illegal reentry guideline]. Id. at 6884.

In sum, the defense bar was 3-0 last week (even in the Ninth, we rarely have weeks that good -- when we do, they're worth of noting).

The N.D. Cal. FPD has put together a chart of the jumble of Ninth Circuit categorical holdings, for California state offenses and ACCA, § 2L1.2 and § 4B1.2. We’ll be distributing this chart at our June 16 CJA conference; defense counsel who don’t attend can contact our office for a copy.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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