Case o' The Week: Ninth Not OK with No Mens Rea - Evans and Conditions of Supervised Released

  Probation’s “guilt by association” a Ninth no-go.

United States v. Evans, 2016 WL 2018 WL 1074736 (9th Cir. Feb. 28, 2016), decision available here.

Players: Decision by Judge M. Smith, joined by visiting District Judge John Bates. Dissent by Judge Ikuta.

 Admirable win for AFPDs Shilpi Agarwal and Appellate Chief Carmen Smarandoiu, N.D. Cal Federal Public Defender.

Facts: Evans, a felon, was shot five times. Id. at *2. Evans shot back at his assailant as the assailant fled. Id.

  Evans was convicted of being a felon-in-possession, and put on supervised release. Id.

  One condition of supervised release warned that if Evans was around gang members, the court would presume he was participating in gang activities. Id. at *5.

Issue(s): “Evans argues that the district court erred . . .  in imposing certain conditions of supervised release.” Id. “Evans argues that all of the challenged conditions are unconstitutionally vague.” Id. at *3.

Held: “[One condition] reads: ‘If [Evans] is found to be in the company of [gang members] or wearing the clothing, colors or insignia of the Down Below Gang, or any other gang, the court will presume that the association was for the purpose of participating in gang activities.’ This presumption explicitly removes the requirement that the government prove mens rea in a future revocation proceeding and therefore, if allowed to stand, would render the condition vague and overbroad . . . . Accordingly, . . . we remand for the district court to strike this final sentence.’ Id. at *5 (internal quotation and citation omitted).

Of Note: Evans also disputed Probation’s allegation that he previously had a gun. The court failed to resolve that dispute. Id. at *7. This unresolved dispute falls into an interesting procedural hole.

  Federal Rule of Criminal Procedure 32 requires a court sentencing on substantive counts to resolve factual disputes (or expressly deem the irrelevant). Id. at *7. Rule 32.1, however, covers revocation proceedings. Rule 32.1 doesn’t discuss matters that have to be resolved by the sentencing court.

  Does a sentencing court have to resolve disputes, or dismiss them as not relevant, at a revocation sentencing? While that question was squarely, the Ninth dodged the question in Evans. Id. at *7.

  Flag this dispute for a future fight –it is illogical that revocations aren’t entitled to the same procedural protections as “normal” sentencings.

How to Use: The core issue in Evans was not supervised release. The big fight was whether the Court correctly increased Evans’ substantive sentence for using a firearm in the commission of an aggravated assault under USSG § 2A2.2(a) and (b)(2)(A). Id. at *2. While Evans argued that the firing of his gun was in self-defense, the Ninth regrettably upheld the sentencing enhancement because the assailant was fleeing, after Evans had been wounded. Id.

  The opinion is still valuable, however. Judge Smith corrects the district court’s erroneous view of the burden for self-defense at sentencing. That burden properly rests on the government. Id. at *3.

  Invoke Evans to fight assault enhancements at sentencing. Though the government’s burden is admittedly by a preponderance of the evidence, id. at *3, it nonetheless remains a burden that the government must shoulder.

                                               

Georgetown Law Adjunct Professor William Otis

For Further Reading: Adjunct Professor William Otis has opined that it is “true” that “blacks and Hispanics are more violent than whites.” By contrast, the Professor asserts that “Orientals stay out of jail more than either whites or blacks [because] family life, work, education and tradition are honored more in Oriental culture than in others.” See “Crime and Consequences” blog here. 

  The Sentencing Commission, Professor Otis has explained, used to be the “900-pound gorilla of sentencing law.” After Booker, it is “an overfed lemur.” He wonders how long the Commission should survive, given its increasing irrelevance. See Congressional Testimony of William Otis, available here. 

  “By its incomprehensibly nonchalant attitude toward restoring the determinate sentencing system it was created to produce, the Commission has turned itself into an expensive anachronism. In the era of desperately needed government frugality, taxpayers shouldn’t have to continue to shell out millions for its sentencing suggestions.” Id. at 10.

  Last week, President Trump nominated Professor Otis to serve as a United States Sentencing Guidelines Commissioner. See NPR article here.  

Image of Probation Officers from http://tularecounty.ca.gov/probation/

Image of Adjunct Professor William Otis from http://www.slate.com/articles/news_and_politics/crime/2015/07/bill_otis_meet_the_last_man_standing_who_thinks_criminal_justice_reform.html

Image of overfed lemur from https://www.pinterest.com/mbrodzka1011/lemur/

Steven Kalar, Federal Public Defender Northern District of California. Website available at www.ndcalfpd.org

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Case o' The Week: Till the Guidelines Do Us Part - Hymas and Burden of Proof at Sentencing

In a successful marriage, couples share everything.

(Except relevant conduct loss amounts). United States v. Hymas, 2014 WL 1319543 (9th Cir. Mar. 25, 2015), decision available here.

Players: Decision by Judge Clifton, joined by Judges M. Smith and Hurwitz.

Facts: Aaron and his wife Tiffany co-owned housing businesses. Id. at *1. They submitted fraudulent mortgage loan applications, and ultimately pled guilty to wire fraud. Id. Aaron was on some mortgage applications, Tiffany was on others. Id. 

   The PSR for Aaron tallied the loss at $3.6 million, and included lender loss amounts for dismissed counts. Id. That loss amount increased the guideline range by eighteen levels. Id. at *2. Aaron objected to the loss amount and the burden of proof: a three day evidentiary hearing followed. Id. The court rejected Aaron’s argument that the clear and convincing standard of proof should apply, and used the preponderance standard. Id. Using that standard, the court agreed with the PSR’s guideline calculation (though it ultimately imposed a sentence roughly half of the guideline range). Id.

Issue(s): “Aaron appeals his sentence of 24 months’ imprisonment, contending that facts found by the district court should have been subject to the clear and convincing standard of proof rather than the preponderance of the evidence standard that the district court applied, because of the disproportionate impact of those facts on the sentence that was imposed.” Id. at *1.

Held: “The sentence imposed by the district court was not entirely based on the loan that was the subject of conviction . . . . The district court also used losses from other loans to calculate Aaron’s total offense level, increasing the total offense level by an additional 8 levels. Based on the principles articulated above, the clear and convincing standard of proof should have been applied to determine the amount of the losses from the other loans.” Id. at *4. “Inclusion of the losses from the other loans ultimately resulted in an increase of 8 offense levels, from 10 (based on the loss from the Count Four loan by itself) to 18. This additional 8-level increase more than doubled the Guidelines imprisonment range. Under our precedents, we conclude that the district court should have employed a heightened clear and convincing standard of proof with regard to the losses from other loans.” Id. at *4.

Of Note: Aaron did not win on his challenge to his count of conviction. Id. at *3. Because those losses “stemmed from conduct for which Aaron was convicted,” it “alleviat[ed] the due process concerns discussed above.” Id. That’s a key point --Aaron did not plead guilty to the dismissed counts that bumped up his loss, and he did not plead guilty to conspiracy. Id. at *5. Judge Clifton distinguishes precedent that did not require “clear and convincing” evidence when defendants had a chance to fully contest conspiracy charges at trial. Id. 

  Fair to guess that if Aaron had pled guilty to conspiracy to commit wire fraud with his wife, the loss amounts for these other counts would have only required the lower preponderance standard. Beware of conspiracy, in fraud plea agreements. Admitting that apparently innocuous charge (compared to substantive wire fraud allegations) may ultimately cost you the valuable “clear and convincing” standard at sentencing.

How to Use: The government argued that the court’s decision to use the wrong standard was harmless, because the court ultimately varied down from 41 to 24 months. Id. at *5. Judge Clifton has none of it: in the Ninth, get the Guidelines right first “and use that recommendation as the ‘starting point and initial benchmark.” Id. at *6. The Court thus concludes the error wasn’t harmless, and remands the matter to district court. Id. Another useful case for the proposition that a below-Guideline sentence doesn’t immunize a district court from review: if the Guideline benchmark is wrong, even a sentence well below that benchmark can be taken up.

                                               

For Further Reading: Mandatory minimum sentences are a terrible idea. We know it, judges know it, and two Supreme Court Justices know it. Last week Justices Kennedy and Breyer told a House Appropriations Committee that “the idea of total incarceration just isn’t working.” See Wall Street Journal article here. 

Image of the split wedding cake from http://i.telegraph.co.uk/multimedia/archive/00647/news-graphics-2007-_647104a.jpg

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

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Case o' The Week: (Not) Dancing the Two-Step, Valdez-Novoa and "Plausible" Voluntary Departure

  Like Savage and Hyneman, the Ninth asks: Plausible, busted, or confirmed?

  United States v. Valdez-Novoa, 2015 WL 831667 (9th Cir. Feb. 27, 2015) (Ord. & amend op.), decision available here. 

Players: Decision by Judge Bybee, joined by Judge Gould. Compelling dissent by Judge McKeown. Hard-fought appeal by Kristi Hughes and Lauren Cusick, Federal Defenders of San Diego, Inc.

Facts: Valdez-Novoa was ordered removed as an agg felon in 1999 by an IJ. Id. at *1. He was not advised of his apparent eligibility for voluntary departure. Id. There then followed years of entries and criminal conduct, set forth in detail by Judge Bybee. Id. at *2. In 2011, Valdez-Novoa was arrested, charged, tried and convicted for attempted reentry. Id. at *1.

Issue(s): “[Valdez-Novoa] collaterally attacks the underlying . . .  1999 removal order under 8 U.S.C. § 1326(d). He alleges that the IJ erred in concluding that he had been convicted of an aggravated felony and therefore violated his right to due process by failing to advise him of his apparent eligibility for voluntary departure relief.” Id.

Held: “We hold that even if the IJ should informed Valdez-Novoa of his apparent eligibility for voluntary departure, the failure to do so did not render the removal proceedings ‘fundamentally unfair’ under § 1326(d)(3) because Valdez-Novoa was not prejudiced by the alleged error.” Id. at *1.

Of Note: Valdez-Novoa is (unfortunately) an important case for illegal reentry defense, but not for the holding described above. The heart of the case is what constitutes “prejudice” for a § 1326(d) challenge, and how the burden is allocated to show that it is plausible that the IJ would have granted discretionary relief. Id. at *5-*6. Judge Bybee defines “prejudice” as when the defendant shows relief was “plausible, rather than merely conceivable or possible, that an IJ would have granted the relief for which he was apparently eligible.” Id. at *5. 

  The Court also clarifies a “different ambiguity” on the burden to make this plausibility showing. Id. at *6. Under Valdez-Novoa, the “prima facie showing of prejudice” required of the defendant means the defendant must show that it was “plausible that he would have received some form of relief from removal.” Id. at *7. The opinion effectively eliminates the two-part burden shifting inquiry, and instead simply describes the process as the burden to show prejudice rests upon the defendant. Id. at 7.

How to Use: Judge McKeown persuasively dissents. Id. at *16 (McKeown, J., dissenting). She complains that the majority elevates the Ninth’s benchmark for prejudice from “plausibility” to the “higher standard of either preponderance or probability.” Id. Judge McKeown turns to two Supreme Court cases to drive the point home – ponder her dissent when fighting a § 1326(d) battle and touting Raya-Vaca (see below).

                                               

For Further Reading: Last November we touted the great decision by Judge Murguia in United States v. Victor Raya-Vaca, 771 F.3d 1195 (9th Cir. 2014), see blog here. In Raya-Vaca, Judge Murguia examined the two-step § 1326(d) process to evaluate the plausibility of relief from removal, id. at 1206, and emphasized that a defendant need not prove that relief was probable. Id. Instead, a defendant need only show that there was only “some evidentiary basis on which relief could have been granted.” Id. 

   Interesting to read the two three-judge panel decisions in Raya-Vaca and Valdez-Novoa, and compare their different discussions of the plausibility analysis. (Raya-Vaca is not cited in the just-amended Valdez-Novoa decision). 

   The Feb. 27 order conveying the amended Valdez-Novoa decision reported that the petition for rehearing was denied. Any tension between these two cases remains a fertile field for exploration in the district courts.

Image of “Plausible” sign from http://i2.wp.com/www.whaleoil.co.nz/wp-content/uploads/2014/09/Plausible.jpg

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

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