Case o' the Week: Overbreadth Done if you Stash A Gun -- King and Overbreadth in Search Warrants

Not a good sign of great things to come, when an opinion begins: 

Firearms seized in search of King's residence

“While searching Sheldon King's home pursuant to a warrant, Fresno police discovered a medley of firearms.”

United States v. Sheldon King, 985 F.3d 702 (9th Cir. Jan. 14, 2021) (emphasis added), decision available here.

Players: Decision by Judge Bumatay, joined by Judge Callahan and D.J. Presnell. 

Hard-fought appeal by former CD Cal (and Alaska!) AFPD Carlton Gunn.  

Facts: A man assaulted a woman, and threatened her with a silver and gold revolver. Id. at 706. In a jail call, the assailant asked the victim to get the “thing” (the gun) to “Dubs” – (aka, the defendant in this case, Sheldon King). King was a felon. Id. Cops got a search warrant for King’s residence, to search for any firearm. Id. The search turned up a “medley of firearms.” Id. He was charged with Section 922(g)(1), and his suppression motion was then denied. Id. King entered a conditional plea preserving an appeal on the suppression motion.  

Issue(s): “King now brings this appeal . . . challenging the validity of the search warrant. Specifically, he argues that the warrant was overbroad—that there was only probable cause for the silver and gold revolver, and no other firearms.” Id. at 707.

Held: “[W]e conclude that the warrant here did not violate the Fourth Amendment. In the affidavit, a police officer detailed his investigation, his training and experience, and his suspicion that King was a felon in possession. The affidavit noted that King had two prior felonies . . . . Despite this criminal history, the affidavit sets out that King took possession of the “large silver & gold revolver” of unknown caliber shortly after it was used in a violent domestic dispute. The officer also explained how he suspected that other weapons might be present at King’s residence since other “individuals [may] arrive at the scene of [the] search” and that, in his experience, “many of these individuals are found to be in possession of weapons.” Moreover, the officer explained that, as a felon, any firearm found in King's possession would constitute evidence of a felon-in-possession offense. The officer expressed his belief that King was in violation of the felon-in-possession statute. These facts, taken together, provided the judge with a substantial basis to authorize the broader search for “any firearm.” Id.

 Of Note: The Ninth assures us there was probable cause for any firearm based on an assertation: that King’s willingness to hold a gun for a friend made it likely that he would also have other guns. See id. at 709 (“We doubt that the domestic-abuse suspect would have given the firearm to someone completely inexperienced in possessing firearms, especially a firearm that was just used in a crime. It's fair to think that serving as an illicit depository of another person's firearm makes King's possession of other firearms likely.”)

We may question that logic, but the unfortunate principle probably holds after King: the “stash-it” guy is likely now subject to broader search warrants than just the specific [gun/ammo/drugs ] awkwardly referenced in a jail call.

How to Use: “Gunner” Carl Gunn found a problem with the Career Offender sentence imposed in this case, and took it up to the Ninth. Unfortunately, a sentencing appeal was not carved out in the conditional plea. Judge Bumatay enforces the plea agreement’s waiver of sentencing appeals (although it looks like this potential problem may have cost Mr. King six offense levels). Id. at 711.

The rules around federal sentencing feel like they are changing daily – take a close look at this discussion in King when weighing whether a plea agreement waiving an appeal is worth it.                                               

For Further Reading: In 2016, SFPD Officer Nicholas Buckley, Star # 528, was caught by AFPD Ellen Leonida when a (surprise) surveillance video contracted every relevant fact of his testimony. 

When District Judge Charles Breyer explained that he was “deeply saddened” by what he saw in this hearing, the federal case was promptly dismissed. See blog entry describing evidentiary hearing here. 

Unbelievably, Officer Buckley is now back on patrol in San Francisco. See San Francisco Examiner article here. 

  There is no more potent example of toothless police discipline in San Francisco, than Buckley back on the beat.  

 

 

 

Image of firearms seized from Mr. King’s house from https://www.fresnobee.com/news/local/crime/article224126235.html

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

 

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Case o' The Week: Ninth Nixes Class Action - Chavez-Diaz and Appeals after Unconditional Pleas

The Honorable Judge Daniel Bress

  Class dismissed.

United States v. Chavez-Diaz, 2020 WL 562292 (9th Cir. Feb. 5, 2020), decision available here.

Players: Decision by Judge Bress, joined by Judges Collins and Bea. 

  Hard-fought appeal by AFD Kara Hartzler, Federal Defenders of San Diego.  

Facts: Chavez-Diaz was one of the thousands of aliens swept up in the new border policies in San Diego. Charged with illegal entry, he and other aliens were segregated into separate court calendars with mass arraignments, pleas, sentencings and immediate removals. Id. at *2. He and other Section 1325 defendants were shackled during proceedings, forced to meet with counsel in the presence of U.S. Marshals in a converted garage, and suffered delays in presentment due to their detention in Border Patrol stations. Id.

  Chavez-Diaz raised equal protection and due process objections to these procedures, pleaded guilty without a plea agreement, and during the plea expressly asserted that he was “not waiving his appellate rights. He is not.” Id.

  After being sentenced by the magistrate judge he appealed to the district court. The district court held that Chavez-Diaz had not waived his constitutional challenges, but rejected them on the merits. Id.

Issue(s): “Because Chavez-Diaz did not enter a conditional plea expressly preserving his right to appeal particular issues, the threshold question in this case is whether Chavez-Diaz’s unconditional guilty plea waived his ability to raise the constitutional claims that he now advances.” Id. at *1.

Held: “We hold that Chavez-Diaz waived his right to appeal these claims, and that the district court’s conclusion otherwise rested on a misinterpretation of Class v. United States, . . . 138 S. Ct. 798 . . . (2018). We therefore reverse and remand with instructions to dismiss the appeal.” Id.

  “Chavez-Diaz through his guilty plea plainly waived his right to appeal his equal protection and due process claims. . . [T]hese are challenges to the constitutionality of case-related government conduct that takes place before the plea is entered.” . . . Chavez-Diaz waived his ability to raise these claims by pleading guilty.” Id. at *4 (internal citations and quotations omitted).

Of Note: Wait – Chavez-Diaz expressly stated that he preserved his appeal when he pleaded guilty, but the Ninth slammed shut its courthouse doors and refused to tackle the merits. Can’t he now withdraw his guilty plea as involuntary?

  Nope.

  Judge Bress concludes that despite the express assertion of appellate rights at the plea, the plea was still knowing and voluntary. Id. at *6.

How to Use: The heart of this battle is the scope of the Mena-Blackledge exception, for appeals after unconditional pleas of guilt. That exception “allows for constitutionally-based appeals – despite an unconditional guilty plea – where the appeal, if successful, would mean that the government cannot prosecute the defendant at all.” Id. at *4 (emphasis in original). It was that exception upon which SCOTUS relied in Class, where it permitted a Second Amendment appeal to move forward despite an unconditional plea of guilt.

  Judge Bress distinguishes the Supreme’s Class decision from Chavez-Dias (and limits the Mena-Blackledge exception along the way). While both Class and Chavez-Diaz involved constitutional challenges that did not contest factual guilt, in Chavez-Diaz alone the defendant could still be retried even if his constitutional claims prevailed. That fact cost Chavez-Diaz his appeal, because he entered an unconditional plea of guilt below.

  In short, if you are hoping to raise a constitutional appeal after an unconditional plea of guilt, Chavez-Diaz merits a very close read.

                                               

For Further Reading: What appeals can one take, despite an unconditional plea of guilt? For an interesting overview of the circuit split on this question, see Class v. United States: an Imperfect Application of the Menna-Blackledge Doctrine, at 78 MDLR 382 (2019), available here.

Image of the Honorable Judge Daniel Bress from https://www.wsj.com/articles/judicial-make-up-call-11569020023

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

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Case o' The Week: The Ninth Gets Cross at Christmas (Cross-References, that is!) - Wang and Sentencing Guidelines

  Steven Wang contemplated the snowy hills around FCI Herlong while mulling his 2025 release date  -- the end of his 114 month sentence.

  Then a week before Christmas, he gets this call from his Federal Public Defender . . . 

   United States v. Steven Wang, 2019 WL 6835332 (9th Cir. Dec. 16, 2019), decision available here. 

Hon. Judge Milan Smith

Players: Decision by Judge M. Smith, joined by Judges Graber and Watford. 

  Admirable win for CD Cal AFPD Gia Kim.  

Facts: Wang facilitated visa fraud in Guam, by mailing I-129 petitions to Immigration that contained false statements. Id. at *2. Among (many) other counts of conviction, Want pleaded guilty to mail fraud, under 18 USC § 1341. Id. at *4. At sentencing, the district court applied USSG § 2B1.1 – the guideline for general fraud offenses – to the mail fraud convictions. The district court imposed consecutive sentences, resulting in a 114 month term. Id.

Issue(s): “[Wang] appeals his sentences imposed in two cases that the district court sentenced in the same hearing. In the first case, Wang pleaded guilty to mail fraud, visa fraud, money laundering, and willful failure to pay over tax. In the second case, Wang pleaded guilty to conspiracy to commit visa fraud. The key issue in these appeals is whether the district court properly calculated the offense level for Wang’s mail fraud conviction pursuant to the United States Sentencing Guidelines. . . .” Id. at *1. “The district court applied § 2B1.1—the offense Guideline that covers general fraud offenses—to Wang’s mail fraud conviction pursuant to 18 U.S.C. § 1341. By applying § 2B1.1, the court ultimately calculated a Guidelines imprisonment range of 46 to 57 months. The court imposed a 57-month term in Wang’s first case, and a consecutive 57- month term in his second case, resulting in a total sentence of 114 months. Wang challenges the district court’s application of § 2B1.1 to his mail fraud conviction and the imposition of consecutive sentences.” Id.

Held: “We hold that the district court erred by applying § 2B1.1 to calculate the offense level for Wang’s mail fraud count of conviction. The allegations underlying this count established an immigration visa fraud offense expressly covered by § 2L2.1. Therefore, the district court should have followed the § 2B1.1(c)(3) cross-reference and applied § 2L2.1. The district court’s error was plain, and it substantially affected the Guidelines range the court used to sentence Wang. We reverse . . . and remand for re-sentencing.” Id. at *2.

Of Note: The Ninth corrects, on plain error, the district court’s failure to cross-reference to the correct (and much lower) immigration visa fraud guideline. Judge Milan Smith strongly signals along the way that the consecutive sentences imposed were un peu trop. Id. at *8. 

  Wade through the Guideline morass, and the ultimate holding in this opinion is a great holiday outcome: a corrected guideline range that is probably 25% of the “plainly erroneous” original sentence.

How to Use: In a Grinch-ish gambit, the government tries to dodge plain error by arguing that Wang waived this guideline argument. 

  Judge M. Smith is unimpressed. 

 The Ninth “reject[s] the Government’s suggestion that Wang affirmatively waived his objection. If a defendant has intentionally relinquished or abandoned an objection, we do not review for error, plain or otherwise . . . . We require 'actual evidence' that the defendant knew of his rights and nevertheless chose to relinquish them. . . . Wang’s failure to raise his objection to the district court is not actual evidence of intentional abandonment.” Id. at *3 & n.6 (internal citations and quotations omitted).

  When the government next tries to ruin the Whoville Feast, remember the Judge Smith's waiver-saver in footnote 6.

                                               

For Further Reading: Tragic opioid deaths have sparked a trend of federal prosecutions, as addicts are charged with mand-min offenses. See  generally Press Release here. 

  Turns out, however, that the massive federal resources poured into prosecuting addicts don't actually reduce the rate of fatal overdoses. 

  For a thoughtful piece on the true realities of heroin and fentanyl offenses, see Vaidya Gullapali, Seeing the Humanity of People Who Sell Drugs, available here. 

Image of the Honorable Judge Milan Smith from https://www.marshall.usc.edu/news/law-and-business

Image of “The Grinch” from https://jambareeqi.com/2018/11/08/how-the-grinch-stole-christmas-1966-tv-movie-review/

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

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Case o' The Week: A BEAutiful Appellate Waiver Case - Dailey and SORNA Registration Requirements

Give thanks, for the Ninth's limitations on appellate waivers.

United States v. Dailey, 2019 WL 5688814 (9th Cir. Nov. 4, 2019), decision available here.

Players: Decision by Judge Bea, joined by Judges Gould and Friedland.  

Facts: Jazzmin Dailey was charged with the prostitution of a minor in Las Vegas. Id. at *1. She charge-bargained to violating the “Travel Act,” which criminalizes travelling in interstate commerce with the intent to commit unlawful activity (including non-sexual criminal activity). Id. at *2; see also 18 U.S.C. § 1952(a)(3).

   Her plea agreement contained an appellate waiver.

  In an admirable decision, Chief District Judge Gloria Navarro varied downwards and sentenced Dailey to no imprisonment and three years of probation. Id. at *3.   The sentence included a provision that Dailey had to comply with the Sex Offender Registration and Notification Act (SORNA) as directed. Id. at *3. 

  Dailey was required to register as a sex offender in her state of residence, Arizona. Id.

Issue(s): “On appeal, Dailey makes three arguments challenging the legality of the condition requiring her to register as a sex offender. First, she argues the district court imposed an illegal sentence by requiring her to register as a sex offender because she was not convicted of a ‘sex offense.’ Next, she argues the district court did not provide her adequate pre-sentencing notice that she would be required to register as a sex offender under SORNA. And finally, she argues the district court delegated the Article III power to impose a criminal sentence by leaving the determination whether Dailey would be required to register as a sex offender to the probation office or state officials.” Id. at *1.

Held: “[W]e reject all three arguments, conclude that the sentence was legally imposed, and dismiss the appeal based on the enforceable appellate waiver in Dailey’s plea agreement.” Id.

Of Note: The core issue of Dailey is whether the residual clause in SORNA is subject to the categorical approach, (on the issue of whether an element of the statute of conviction required that the victim was a minor). Id. at *6-*7. Judge Bea concludes it is not: “the statutory text and structure are clear.” Id.

  The Ninth joins the 4th, 5th, and 8th Circuits and holds that a non-categorical approach to the SORNA registration requirements is appropriate. Id. at *7.

  This is bad news for our clients – the non-categorical approach cast a much broader net, and will ensnare defendants like Dailey in the SORNA registration requirements.

How to Use: There’s lots of words, in Dailey, for a case that ultimately upholds an appellate waiver. Judge Bea explains that the familiar Bibler exceptions to appellate waivers includes an unlawful sentence – and that unlawful probation conditions fall within this exception. Id. at *3 (citing United States v. Watson, 583 F.3d 974, 987 (9th Cir. 2009)). Judge Bea then works through each of the challenges to the registration requirement, to consider whether it was lawful. Because the terms of probation were finally concluded to be lawful, the Ninth ultimately enforces the appellate waiver.

  From the defense perspective, this appellate waiver turns out to be a de minimis barrier to full Ninth review of the legality of the conditions of probation (and the same theory applies to supervised release!)

  Consider Dailey when conditions of probation or supervised release get your goat, but there’s an appellate waiver in the plea agreement. If your Ninth challenge goes to the legality of the supervision conditions, an appellate waiver in a plea agreement is essentially a meaningless term: appeal away. If the probation (or supervised release) conditions are unlawful, the plea agreement’s appellate waiver is unenforceable: our clients win. If the conditions are lawful, the waiver is enforced – but our client has had full appellate review of their legality.

                                               

For Further Reading: Two more of President Trump’s Ninth nominees, Mr. Lawrence VanDyke and Mr. Patrick Bumatay, cleared another Senate hurdle last week. See article here.  

Image of turkey urging waiver from https://mainesport.com/turkey-ride/

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

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Case o' The Week: When in Doubt, File it Out - Fabian-Baltazar and Duty to File Notice of Appeal

  Hard to savor waiver favor.

United States v. Fabian-Baltazar, 2019 WL 3418449 (9th Cir. July 30, 2019), decision available here.

Players: Per curiam decision with Judges Rawlinson, Bea, and Hurwitz. Win for ED Cal AFPD Peggy Sasso.    

Facts: Fabian-Baltazar pleaded guilty to possession for distribution of over 50 grams of meth. Id. at *1. His plea agreement had waivers of the right to appeal and collateral attack. Id. 

   After sentencing, he nonetheless filed a § 2255. The habeas motion alleged (among other things) that his trial counsel committed IAC by failing to file a notice of appeal. Id. The district court’s dismissal, based on the plea agreement waivers, was affirmed by the Ninth. Id.

   The Supreme Court granted cert., vacated, and remanded, in light of Garza v. Idaho, 139 S. Ct. 738 (2019). 

  The government declined to enforce the collateral attack waiver on remand, to the Ninth, so the Circuit analyzed the case “as involving only an appeal waiver.” Id. at *2.

Issue(s): “The parties agree that a remand is required in light of Garza but disagree about the scope of the remand. Fabian-Baltazar argues that we should simply reverse the district court’s order and direct it to address the merits . . . . The government argues that, before proceeding to the merits, the district court must first determine whether Fabian-Baltazar requested his attorney to file a notice of appeal.” Id. at *2.

Held: “Fabian-Baltazar’s § 2255 motion contends that he expressly instructed his attorney to file a notice of appeal. But, the government has never had the opportunity to challenge that assertion, because . . . . prior rulings held that the collateral attack waiver nonetheless barred the § 2255 motion. The district court therefore should determine on remand whether such an instruction was given, and if not, whether counsel failed to consult, and if so, whether that failure constituted deficient performance.” Id. at *2.

Of Note: On their surface Garza and Fabian-Baltazar are nice outcomes: the defendants may get to file appeals, despite appellate waivers. 

  Counsel in the trenches, however, worry about breach: will the government start backing out of deals when a defendant demands an appeal despite an appellate waiver? See generally Garza, 139 S. Ct. at 756 (Thomas, J., dissenting) (discussing potential life sentence – instead of imposed ten-year term -- if Garza breached plea agreements by filing an appeal).

  The facts of Fabian-Baltazar illustrate the cost-benefit conundrum. Mr. Fabian-Baltazar was caught with 2,636 grams of meth. See D.Ct. Ord. Denying Habeas Mot., 2015 WL 1497537, *5. The government kept its side of the plea-agreement bargain, and recommended five offense levels off for Acceptance and Safety Valve. The district court varied down an additional 15 months from the guideline range, to a ten-year term. See id. 

  Fabian-Baltazar’s habeas, however, complains that he didn’t get below the mand-min of ten years (a promise not made in the plea agreement). Id. at *4.

  Will Mr. Fabian-Baltazar's long quest to file an appeal ultimately end in an Anders brief and breach exposure?

  Garza may vindicate appellate rights, but it adds real challenges to defense counsel charged with advising and protecting indigent clients.   

How to Use: Beware of Fabian-Baltazar’s lessons:

1. It is per se IAC to not file an appeal when expressly requested by our clients – even if there is an appellate waiver;

2. If you “consult” with the client after sentencing (consult means, “advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant’s wishes,”), it is only IAC to not file notice of an appeal if we are expressly told to file by our client;

3) If you do not “consult” with your client about filing an appeal (even if there is an appellate waiver), it may be IAC.

  Id. at *2.

The punchline? Consult with clients about filing an appeal, even if there is an appellate waiver (and wise to document that discussion in a letter or memo).

                                               
For Further Reading: Rather than fuzzy law on our duties, IAC claims over alleged failures to notice appeals, and messing with habeas evidentiary hearings, wouldn’t it be simpler just to eliminate appellate waivers altogether?

  Don’t scoff: there seems to be a growing judicial skepticism to the things. In 2018, for example, the Second Circuit refused to enforce a waiver where no consideration was apparent in the plea agreement. See Second Circuit blog here. 

Image of “waiver” from https://tmcls.co.uk/faulkner-v-director-of-legal-aid-casework/

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

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Case o' The Week: A Wobble Bobble? - Christopher Johnson, Claims vs. Arguments, and Rule 32 on Appeal

  Priors may wobble, but they don’t fall down (in the Ninth).

United States v. Christopher Johnson, 2019 WL 1523106 (9th Cir. Apr. 9, 2019), decision available here.

Players: Decision by Judge Mark Bennett, joined by Judges M. Smith and Nguyen. 
  Hard-fought appeal by AFPDs Amy Cleary and Cullen Macbeth, D. Nevada FPD.

Facts: Johnson pleaded guilty to being a felon in possession of a firearm. Id. at *1. The DJ assigned a base offense level of 20, based on prior “crime of violence” felony priors. Specifically, Johnson had been convicted in California for assault with a deadly weapon (not a firearm), in violation of CPC § 245(a)(1). Id. at *2. Johnson had been sentenced to six months in county jail for that offense. Id. 

  In federal court, the defense objected to the use of this assault prior as a “crime of violence” because it lacked the necessary men rea. Johnson did not, however, object to its classification as a felony. Instead, in its sentencing memo, the defense stated Johnson had two prior felony convictions. Id. 

  The district court counted this Cali prior as a felony crime of violence: Johnson appealed.

Issue(s): “On appeal, Johnson argues that the district court erred by applying a crime-of-violence enhancement to his offense level. We first consider whether Johnson’s concessions in the district court foreclose his newly minted argument that his underlying conviction for violation of California Penal Code (‘CPC’) § 245(a)(1) was not actually a felony under California law. Reviewing de novo, we also examine Johnson’s CPC § 245(a)(1) conviction to determine whether it truly was for a felony, and if so, whether, in light of Moncrieffe v. Holder, 569 U.S. 184, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013), a felony conviction for violating CPC § 245(a)(1) can be a predicate offense for a crime-of-violence enhancement.” Id. at *1.

Held: “Because the answer to all three questions is yes, we affirm Johnson’s sentence.” Id.

Of Note: The troubling holding Christopher Johnson is not really the “crime of violence” holding -- though disappointing, this holding on Cali assault is old news. The real problem is the Ninth’s rejection of a new defense argument on a preserved claim that the crime-of-violence enhancement was improper as to a particular prior. Id. at *2. 

  On appeal, Johnson argued that this § 245(a)(1) prior was actually a “wobbler;” a uniquely Californian breed of offense where felonies can be “wobbled” down to misdemeanors. Id. The Ninth didn’t buy it. “We reject Johnson’s belated attempts to characterize his underlying California conviction as a misdemeanor.” Id. Because trial counsel didn’t dispute the PSR’s characterization of the prior as a felony, appellate counsel was stuck with that “fact” on appeal – even though the defense had asserted a claim in the district court that the prior didn’t qualify as a felony crime of violence. Id. at *4.

 The law in the Ninth has long been that parties can waive claims, but not arguments . Notably, in its briefing the Nevada FPD cited United States v. Pallares-Galan,359 F.3d 1088 (9th Cir. 2004) for that proposition. See AOB, 2018 WL 2234305 at *15-16. Yet the Ninth doesn’t cite or address Pallares in Christopher Johnson. As the NorCal appellate brain trust has observed, this is particularly troubling given the Ninth’s fondness for this “claim / argument” distinction when it salvages the government’s new arguments on appeal. See, e.g., United States v. Blackstone, 903 F.3d 1020, 1025 & n.2 (9th Cir. 2018); see also “How to Use” discussion here. 

  Beware of Christopher Johnson – the “claims / arguments” line of authority may have a PSR-objection carve-out, now. The decision is worth a close read for its great emphasis on Fed. R. Crim. Proc. 32 ramifications in the district court, and the corresponding encroachment on the claims/argument distinction on appeal.

How to Use: Despite the waiver holding discussed above, the Ninth does go on to hold in the alternative that this wobbler prior was not actually a mido. Id. at *5.

  For better or worse, Christopher Johnson is now a lead case on the analysis of Cali wobblers -- turn to the discussion at *5-*7 when your client has California “wobbler” priors at issue (and object in the district court!)

                                               

For Further Reading: What’s a wobbler?

  For a brief and accessible summary, written for a federal practitioner, see California ‘Wobblers’: How to Determine Whether a Prior California Conviction Was a Felony or Misdemeanor, by former CD Cal AFPD Davina Chen, available here. 

Image of “Weebles Wobble” from https://me.me/i/weebles-wobble-but-they-wont-fall-down-22833010

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

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Case o' The Week: Waver in Disfavor - Depue, Waiver and Forfeiture of Appellate Claims

  An en banc court of the Ninth has found that a defendant forfeited his challenge to a guideline sentence.

  Hooray!

United States v. Depue, 912 F.3d 1227(9th Cir. Jan. 14, 2019) (en banc),

decision available here.

Players: Decision by Judge Berzon, joined by CJ Thomas, and Judges Fletcher, Paez, Berzon, M. Smith, Ikuta, Christen, Nguyen, Watford, Hurwitz, and Friedland. 

  Federal Defender Amicus effort by AFD’s Vince Brunkow and Michael Marks, Federal Defenders of San Diego, Inc.  

Facts: Depue, who represented himself, was convicted of mortgage fraud after a jury trial. Id. at 1230. The government recommended a whopping OL 39, based on its loss theories. Id. at 1231. The PSR parroted this calculation: pro se defendant Depue didn’t object. Id. 

  Depue was sentenced to over twenty-one years. 

  He appealed, arguing that the loss calculations were erroneous. Id. A three-judge panel held Depue waived his objections to the alleged Guideline errors. Id. at 1231-32. 

  The case went en banc.

Issue(s): “We are asked to explain when a defendant is entitled to plain error review of challenges to his sentence that he failed to raise in the district court. Our cases have consistently held that a defendant waives his rights and precludes plain error review only when there is evidence that he knew of his rights at the time and nonetheless relinquished them. Twenty-one years ago, we explained this point in an en banc opinion. United States v. Perez, 116 F.3d 840 (9th Cir. 1997) (en banc).” Id. at 1229.

Held: “We reaffirm today this distinction between waiver and forfeiture.” Id. 

  “Confining our en banc consideration to Depue’s challenge to the Guidelines calculations, we hold that Depue’s failure to object to the Guidelines calculations at sentencing constitutes forfeiture subject to plain error review, but that there was no plain error.” Id. at 1230 (emphasis added).

Of Note: The Ninth reviewed Depue’s claims for plain error. The threshold issue for Olano “error” is whether the claim was “intentionally relinquished or abandoned.” Id. at 1232. As Judge Berzon explains, “forfeited claims are reviewed for plain error, while waiver precludes appellate review altogether.” Id. (emphasis added).  

  What makes for a “waiver?” Evidence that the defendant knew what they were giving up – a mere failure to object isn’t enough. 

  Judge Berzon writes that “The relevant question is whether Depue knew the substantive legal rules underlying the particular challenges to the Guidelines calculation he raises on appeal, and knew that the district court’s calculation violated those rules.” Id. at 1233-34. The en banc court holds that Depue didn’t know what he was giving up, so he didn’t waive. This distinction “between waiver and forfeiture is particularly important in the sentencing context.” Id. at 1234. A critically important holding, particularly for the extraordinarily complex Guideline (and Taylor analysis) sentencing process – it gives us a shot at plain error review, and getting a botched sentence fixed, on direct appeal. 

  This is a thoughtful opinion, buttressed by policy considerations, and is just flat-out fair: no surprise that all eleven e.b. votes signed onto the outcome.

How to Use: The defense in Depue won an (important) battle, but Depue himself lost the war. The Ninth held that, if there were legal or factual errors in the guideline calcs, they didn’t rise to level of plain error. 

  The take-away? Forfeiture and plain error review is better than waiver and getting kicked out of the Ninth -- but a nice record heavily peppered with clear objections is better than both.

                                               

For Further Reading: The national defense community generally, and NorCal specifically, has suffered a tremendous loss with the untimely death of San Francisco Public Defender Jeff Adachi.

   The only elected public defender in California, Jeff was a tireless and fearless advocate for his own clients, for resources for his office and for indigent defense, and for reform of the criminal justice system.

  

Our deepest condolences to his family, and to our PD brothers and sisters: we’ve all lost a good friend and great leader. See SF Chronicle Article here.

Image of “Ralph Wiggum” waver from https://tenor.com/search/waving-gifs

Image of Jeff Adachi from https://abc7news.com/society/san-francisco-public-defender-jeff-adachi-dies-at-59/5152699/

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

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Case o' The Week: No Ammo Dough? A Ninth No-Go - Soto and Forfeiture of Substitute Property

 Forfeiture forfeited.

United States v. Soto, 2019 WL 489065 (9th Cir. Feb. 8, 2019), decision available here.

  

 Players: Decision by (visiting Sixth Circuit) Judge Gilman, joined by Judges Paez and Owens.

Facts: Soto, along with twenty other defendants, was indicted for crimes relating to exporting guns and ammo to Mexico. Id. at *1. She pleaded guilty to a count of attempting to export ammo, and a count of conspiracy to export guns and ammo. Id. 

  At sentencing, she was hit with a forfeiture order for substitute property worth around $7,000, for ammo that had been transferred. Id. at *2.

   Soto didn’t object to the forfeiture order at sentencing. Id. After she filed her appeal, Soto filed a Rule 35(a) motion to correct “clear error” at sentencing. The district court denied her motion. Id.

Issue(s): “Soto argues that the district court’s forfeiture order was improper because the crimes for which she was convicted do not authorize forfeiture. She also contends that the notice of forfeiture in the indictment was inadequate because it cited an inapplicable statutory provision.” Id. at *1.

  “Soto argues that criminal forfeiture is available only if a federal forfeiture statute expressly references the criminal statute under which a defendant is convicted. Because Soto was convicted of violating 18 U.S.C. §§ 371 and 554(a), and these statutes are not expressly mentioned in any federal forfeiture statute, she argues that forfeiture is unavailable in this case.” Id. at *2.

Held: “Soto’s argument fails because she overlooks 18 U.S.C. § 924(d)(1), which provides that “[a]ny firearm or ammunition involved in or used in any ... violation of any other criminal law of the United States ... shall be subject to seizure and forfeiture ....” Id. 

  “The requirements of § 853(p) were met in this case because Soto had ammunition that was subject to forfeiture and she transferred that ammunition to a coconspirator. Accordingly, the district court committed no error, much less plain error, in ordering the forfeiture of  substitute property up to the value of the ammunition that was transferred.” Id. at *2.

Of Note: In a third issue on appeal, Soto also argued that she was given inadequate notice of the forfeiture because the government cited the wrong statute in the indictment. Id. at *4. Putting aside some waiver problems, the Ninth warns that it would have not found this to rise to plain error. Id. As Judge Gillman explains, “[E]ven though the indictment cited the wrong statute, Soto was nevertheless provided with adequate notice of forfeiture. The district court therefore did not commit plain error regarding the adequacy of notice.” Id. 

  Practically speaking, if the wrong forfeiture statute is alleged, that’s a challenge that has to be made in the district court (where, of course, the government can supersede after you’ve educated them on their error!)

How to Use: Looking for a cite to brush back on a government argument not raised in its opening brief? Look to Soto, where the “wrong forfeiture statute” was raised for the first time in the reply. Id. at *4 (“[T]his challenge first appears in her reply brief. Because Soto did not challenge the adequacy of the notice of forfeiture in the indictment before the district court or in her opening brief, the challenge is not reviewable.”)

                                   

For Further Reading: In 2018, the Ninth delivered the troubling Briones decision, on Miller and LWOP for juveniles. See blog entry here. 

  The case upheld a life sentence, after Miller re-sentencing, for a Native American defendant who had suffered childhood addiction and who was 17 when he committed the federal offenses of conviction. 

The Hon. Judge Diarmuid O'Scannlain

   In Briones, Judge O’Scannlain penned a compelling dissent, refusing to “divine incorrigibility” by “reading a transcript through squinted eyes.” Id.

  Happily, others on the Ninth shared Judge O’Scannlain’s concerns: on February 13, Briones went en banc. See order here. 

   Here’s hoping for an e.b. flip.

Image of ammo from: https://www.fnherstal.com/products/ammunition 

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

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