Case o' The Week: Ninth Revs Up ICE-Breaker - Bail Reform Act not Trumped by Imigration Detainers

 

Hon. Judges Kozinski and Schroeder

If the United States Attorney’s Office – Article II of the federal government – is unable to control ICE, who can?

  The Ninth Circuit Court of Appeals.

United States v. Santos-Flores, 2015 WL 4480561(9th Cir. July 6, 2013) (Ord.), decision available here.

Players: Order from motions panel of Judges Schroeder, Canby and Kozinski.

Facts: Santos-Flores, a native and citizen of Mexico, was charged with illegal reentry. Id. at *1. When arrested at the border, he presented false IDs and falsely claimed to be a U.S. citizen. Id. He was detained by the magistrate judge and “appealed.” Id. (Ed. Note: Acknowledged that taking up the Mag. Judge decision to the district court is not technically an “appeal,” see 18 USC Sec. 3145(b), but is term used in this Order.) The district court found that if Santos-Flores was released, he would be unlikely to appear at trial because he would be detained and removed by ICE. Id.

Issue(s): Is the existence of an ICE detainer, or the possibility that ICE will issue a detainer and remove an alien, a categorical basis for denial of release under the Bail Reform Act?

Held: “We hold that the district court erred in ordering pretrial detention based on the likelihood that, if released pending trial, Santos-Flores would be placed in immigration detention and removed from the United States, pending his appearance for trial.” Id. at *1.

“If the government, by placing Santos–Flores in immigration detention or removing him, jeopardizes the district court's ability to try him, then the district court may craft an appropriate remedy . . . . The court may not, however, substitute a categorical denial of bail for the individualized evaluation required by the Bail Reform Act.” Id. at *3.

Of Note: Is Mr. Santos-Flores a free man, pending his illegal reentry trial? Sadly, no: the Court upheld the district court on other grounds. Mr. Santos’ false I.D.s, false claim to U.S. citizenship, previous failure to appear, violation of supervised release, multiple unlawful entries, and “severity of the potential punishment and strength of evidence against him” made him a “voluntary flight risk.” Id. at *3. Bad facts in this case – but the essential point is that this is an individualized assessment, not a flat ICE-detainer bar. For other alien defendants – and with a different individualized analysis -- the government won’t be able to meet its burden and will be unable to hide behind an ICE hold to seek detention in federal court.

How to Use: The Honorable District Judge Simon (with admirable advocacy from D. Or. AFPD Christopher Schatz) lead this bail trend with the groundbreaking Trujillo-Alvarez decision in 2012. See order here.  

   Notably, Trujillo-Alvarez is cited with approval by the panel in the Santos-Flores order. Id. at *3. The Panel in Flores-Sanchez affirms a simple truth that we’ve long argued: if the government doesn’t want our client deported when released on bail, the government can forego reinstatement and removal. Id. at *2. And if the federal government (Article II) can’t manage to control its own federal agency (ICE), the district court can then “craft an appropriate remedy.” Id.

                                               

For Further Reading: How often does the Ninth wade in and reverse a detention order? About every two weeks, of late. See United States v. Howard, No. 15-10259 (9th Cir. July 15, 2015) (Ord.), available here. (Note - a big win for NorCal’s own Dan Barton). In Howard, the Ninth reversed a ND Cal judge’s detention order when there were inadequate findings of a crime, or a violation, while on pretrial release. Id. at 1. Both orders came from the same motions panel: Judges Schroeder, Canby, and Kozinski. Id. 

Like Santos-Flores, the Howard order is worth a close read – and particularly Judge Kozinski’s concurrence in the Howard decision. Judge Kozinski questions why the government has unfettered access to witnesses before trial, but the defendant cannot. Id. at *6. “Why isn’t [a defendant] entitled – just as well as the government – to test the witness’s memory and let him know the facts as he [the defendant] remembers them?” Id. (Kozinski, J., concurring). More welcome common sense from the author of “Criminal Law 2.0.”

Image of the Honorable Judges Kozinski and Schroeder from http://media1.s-nbcnews.com/j/newscms/2014_30/576491/140721-alex-kozinski-1857_58256556b1f9fca82852dfed014153e0.nbcnews-ux-2880-1000.jpg

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

…

Case o' The Week: Second bite at Sentencing Apple Just a Nibble in the Ninth - Section 3582 Sentencing Limitations Upheld

  Why fret now about good new sentencing guidelines coming next fall, when 18 USC § 3582(c)(2) will permit re-sentencing?

  A: United States v. Davis, Jr. 2014 WL 114691 (9th Cir. Jan. 14, 2014), decision available here.

Players: Decision by Judge Canby, joined by Judges Watford and Hurwitz. Hard-fought appeal by (former) CD Cal AFPD Davina Chen.

Facts: In 2008 Davis pleaded guilty to a crack charge and a gun charge. Id. at *1. His guidelines were CH IV / OL 29, producing a low-end of 121 months. Id. The district court varied downwards to 70 months. Id. In 2012, Davis filed a motion to reduce his sentence under 18 USC § 3582(c)(2), after the Fair Sentencing Act (“FSA”) resulted in reduced crack guidelines. Id. Though the low-end of Davis’s (lowered) post-FSA guidelines were still higher than 70 months, he sought a variance down to sixty months, the mand-min. Id. 

  At issue at sentencing was Policy Statement § 1B1.10(b). In 2011 the Sentencing Commission amended this Policy Statement– it now sets the resentencing floor in this context to the low-end of the amended guideline range. Id. “The district court held that the Sentencing Commission’s Policy Statement § 1B1.10(b) precluded a sentence reduction because Davis had already received a sentence below the minimum of the amended guideline range.” Id. at *1.

Issue(s): “[ ] Davis, Jr. appeals the district court’s denial of his motion to reduce his sentence pursuant to 18 USC § 3582(c)(2) . . .  Davis argues that § 1B1.10(b) exceeds the Commission’s statutory authority and violates the separation of powers doctrine.” Id. at *1.

Held: “We . . . reject Davis’s argument that the amendment of § 1B1.10(b) exceeded the Commission’s statutory authority. We also reject Davis’s contention that amended § 1B1.10(b) conflicts with Congress’s directive that the Commission promulgate policy statements that will further the purposes of sentencing set forth in 18 USC § 3553(a)(2), 28 USC § 994(a)(2) (outlining the Commission’s duties).” Id. at *2. “Finally, we reject Davis’s contention that amended § 1B1.10(b) violates the separation of powers doctrine because it requires the district court to rescind a previously granted departure or variance.” Id. at *3. “Section 1B1.10(b) does not offend separation of powers principles because it is simply the result of an exercise of Congress’s power to control the scope of judicial discretion regarding sentencing.” Id.  

Of Note: With no offense to Ms. Chen’s formidable powers of persuasion, Davis is not an entirely unexpected result – many of these issues had already been decided in the Ninth, or rejected by other Circuit decisions. See, e.g., Tercero blog here.  

  Davis is an important read now, however, because it foreshadows battles to come when the many (pro-defense) amendments to guidelines kick-in on November 1, 2014 – particularly to the drug guidelines.

How to Use: What would you have done differently on your crack cases, with the benefit of hindsight and our experiences on FSA re-sentencing? It’s a timely question: good guideline amendments will almost-certainly become effective Nov. 1, 2014. See reader-friendly amendments here. (Drug guidelines on page 32).  

  What will we say to today’s clients, when they call next Halloween from the BOP prison and want a re-sentencing motion? Push hard now to get rid of § 3582(c) waivers in today's plea agreements, with an eye towards the November amendments. 

  (Or put the brakes on the case: November 1 is just a short 286 days away!)

                                               

For Further Reading: The proposed amendments strike sentencing guru Doug Berman “as HUGE news, and a terrific and fitting application of some of the themes that have been stressed by many members of Congress and by the Attorney General in recent months.” See blog here.

  The Prof’s take? “Perhaps I am at risk of already getting too excited (and counting too many unhatched chickens) concerning this USSC vote. But especially if this vote was unanimous within the Commission, and especially if it has the formal or even tacit approval of the Department of Justice, I do not think I am completely off base when suggesting this is a really big deal.” Id.

 

Apple image from http://www.valiant.com/authors/valiant/a-hidden-benefit-of-filing-a-bid-protest-could-give-your-company-a-second-bite-at-the-apple-if-you-lose-a-competition/

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

.

Case o' The Week: Defense Appeals Acquittal - and Loses; Vela and NGI appeals

Judge Canby's decision in Vela, complains dissenting Judge N. Randy Smith (right), will allow the defense to "have its cake and eat it too," and to get a "do over" when a defense strategy does not pan out at trial.

Works for us.

United States v. Vela, 2010 WL 4188983 (9th Cir. Oct. 26, 2010), decision available here.

Players: Hard-fought appeal by San Diego AFPD Todd Burns. Decision by Judge Canby, dissent by Judge N. Smith.

Facts: Vela, plagued with delusions about persecution by the Mafia and his family, interacted with a Customs Agent – then severely injured the agent by stabbing him in the chest. Id. at *1. Vela went to trial on a count of 18 USC § 111, assault on a federal officer. Id.

The indictment didn’t allege a “willful” assault, and the court refused a pretrial challenge on that alleged missing “element.” Id. The district court also rejected a diminished capacity defense, and an Apprendi challenge. Id. Vela was found not guilty by reason of insanity at trial, then committed to a mental facility in the custody of the A.G.. Id. “Vera timely appealed the judgment.” Id.

Issue(s): “[T]he government’s contention [is that] we lack jurisdiction because there is no final judgment from which Vela can appeal.” Id. at *2. Vela “contends that the district court erred in failing to dismiss the indictment, refusing to instruct the jury that willfulness is an element of § 111, and denying him the opportunity to present a diminished capacity defense. He contends that, as a result, he was denied an opportunity for an outright acquittal rather than a verdict of not guilty by reason of insanity, which results in civil commitment.” Id. at *1.

Held: “We conclude in this matter of first impression that, when a defendant is found not guilty by reason of insanity, the lack of a sentence does not necessarily preclude appellate jurisdiction.” Id. at *2. “Vela’s arguments [that § 111 requires a heightened mens rea for conviction, and that the diminished capacity defense therefore lies], are foreclosed by our decision in United States v. Jim, 865 F.2d 211, 215 (9th Cir. 1989), where we held that § 111 is a general intent crime.” Id. at *4.

Of Note: The big new rule of Vela is the ability to appeal after a verdict of “not guilty by reason of insanity” (N.G.I.). An intriguing side issue, however, is the Apprendi challenge to the federal assault statute. In 1991, the Ninth held that Section 111 – the assault statute – has a sentencing factor within it: whether the defendant used a dangerous weapon. Id. at *6. The Ninth explained that the judge could find that fact, kicking the stat max for the crime up to twenty years. Id.

Then Apprendi came down in 2000, and required that any enhancement fact that increases the stat max to be proved to the jury. Id. Faced with Apprendi, the panel in Vela now saves the federal assault statute by suddenly converting a former sentencing factor into an element. Id. at *7-*8.

Did the language of the assault statute change since the Ninth’s 1991 decision? Nope – and the legislative history didn’t either. The analysis supporting this flip-flop on the meaning of the assault statute in Vela is precisely as compelling as it was when the Ninth similarly salvaged the federal drug statute in Buckland in 2002 – not the Circuit’s finest hour.

How to Use: Dissenting Judge N. Smith gives a great primer on how the defense can “have its cake and eat it too.” Id. at 10. As Judge Smith grumbles, Vela allows a defendant to appeal “one failed affirmative defense, while keeping his acquittal verdict as a back up.” Id. Sadly, Vela isn’t quite the defense bonanza that Judge Smith describes: counsel for a mentally-ill defendant must still worry about indefinite civil commitment whether pursuing a dim cap or insanity defense (a danger not fully acknowledged by either Judge Canby or Judge Smith).

The availability of appellate review after Vela does help us to untangle the Gordian knot we face when weighing whether to pursue a N.G.I. defense. Of course, bear in mind that while Mr. Vela won on j/x, he actually lost his appeal – taking a little of the urgency out of Judge N. Smith’s “sky is falling” dissent.

For Further Reading: Diminished capacity, and N.G.I., are two very different concepts: a point emphasized by Judge Canby in lengthy footnote in Vela. Id. at *6 & n. 11. For an interesting and detailed (though ultimately disappointing) Posnerian exegesis on just how complicated N.GI. is, see Morgan v. Israel, 735 F.2d 1033 (7th Cir. 1984) (upholding denial of federal habeas petition), decision available here.



Image of the Honorable N. Randy Smith from http://georgewbush-whitehouse.archives.gov/infocus/judicialnominees/n-smith.html


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


.