Case o' the Week: Defense verklempt with Fletcher and hemp - Categorical analysis and marijuana prior convictions

  When properly applied, hemp reduces inflammation, reduces levels of pain, and reduces guideline offense levels.

United States v. Bautista, 2020 WL 6865043 (9th Cir. Nov. 23, 2020), decision available here.

 Players: Decision by Judge Fletcher, joined by Judges Schroeder and Hunsaker. Big, big win for Az. AFPD J. Ryan Moore, D. Arizona FPD.  

 Facts: Bautista was convicted in 2017 for the Arizona offense of “Attempted Unlawful Transportation of Marijuana for Sale.” Id. at *1. 

  A couple of years later Bautista was convicted in federal court of being a felon in possession of ammo. He was sentenced in 2019. The PSR bumped his offense level up for a previous “controlled substance offense” conviction (as defined in USSG § 4B1.2). See id. at *2. Id. (He did not object to this enhancement in the district court). 

  On appeal, Bautista challenged the sentence.

 Issue(s): “[ ] Bautista appeals a sentence imposed following his conviction of possession of ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Bautista contends that the district court erred in applying a recidivist sentencing enhancement based on his prior state conviction for attempted transportation of marijuana . . . . He contends that it was not a conviction for a ‘controlled substance offense’ under § 4B1.2(b) of the U.S. Sentencing Guidelines . . . . The Arizona statute under which Bautista was convicted included hemp in its definition of marijuana. However, in 2018, before Bautista's federal conviction, Congress amended the Controlled Substances Act to exclude hemp from its definition of a controlled substance. Thus, in 2019, when Bautista was sentenced in this case, the Arizona statute under which he had been convicted was overbroad and that conviction no longer qualified as a “controlled substance offense” under the Guidelines. Id. at *1.

Held: “At federal sentencing, the district judge was required to compare the elements of the state crime as they existed when Bautista was convicted of that offense to those of the crime as defined in federal law at the time of federal sentencing —that is, after the Agriculture Improvement Act removed hemp from the federal drug schedule. Because the federal CSA excludes hemp but . . . the Arizona Revised Statutes did not, the latter crime’s ‘greater breadth is evident from its text.’ . . . . Bautista's conviction is facially overbroad and not a categorical match for a ‘controlled substance offense,’ and the district court erred in applying the recidivist sentencing enhancement for a controlled substance. We conclude that the district court’s application of the six level recidivist enhancement was plain error. It was contrary to law and affected Bautista's substantial rights. . . . Because allowing this error to go uncorrected would “seriously affect the fairness, integrity, or public reputation of judicial proceedings,’ we exercise our discretion to grant relief.” Id. at *4.

 Of Note: Bautista was convicted of his Arizona pot offense in 2017. At that time, hemp was included in the federal definition. 

  Just last month, the Ninth applied the categorical analysis to the statute at the time of conviction. See Medina v. Barr, 2020 WL 6373434 at *6-*8 (9th Cir. Oct. 30, 2020). 

 After Medina, how did Bautista get the benefit of the categorial analysis at the time of his 2019 sentencing (after the federal statute excluding hemp)? Judge W. Fletcher explains that the Medina rule only applies to immigration cases – by contrast, in this “Armed Career Criminal Act context seen here” the analysis takes place at the time of sentencing.

   The Ninth probably meant in the “Career Offender” context (the definitional guideline that determines “controlled substance offense” for § 922(g)(1) offenses), but the general point holds: the timing of a categorical analysis depends on the context.  

 How to Use: Red flag: If your federal client has a marijuana prior (federal or state) you likely have action under Bautista (because previous few laws excluded hemp).

  Our federal Sentencing Resource Counsel are all over this issue – talk to an AFPD, and take a look at their memos if your client finds yourself in this fortunate situation.   

 For Further Reading: For a thoughtful piece explaining the Farm Bill of 2018 (and Senator McConnell’s advocacy for hemp), see “The Farm Bill, hemp legalization and the status of CBD: An explainer,” available here.  

 

Image of “What is hemp” from https://www.restorativecbd.com/what-is-hemp/

 

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

 

 

.

Case o' The Week: An Element-ary Outcome - Allen and Actual Innocence Exception to Habeas bars

News flash: if an element is missing, the defendant is “actually innocent.”

 

The Hon. Judge William Fletcher

  (Oh, that crazy Ninth).

Allen v. Ives, 2020 WL 878523 (9th Cir. Feb. 24, 2020), decision available here.

Players: Thoughtful decision by Judge W. Fletcher, joined by Judge Christen. Dissent by Judge Callahan. 

  Admirable win for D. Oregon AFPD Elizabeth Daily.  

Facts: In the 90’s Allen pleaded guilty to gun and drug charges. He was sentenced to 322 months (!?!) as a Career Offender under the mandatory guidelines. Id. at *2. In 2017, he filed a § 2241 claim. Id. He argued that Mathis and Decamps were retroactive, and that his marijuana sales predicate no longer counted. Id. He thus argued that he was “innocent of being a Career Offender.” Id.

  The court rejected the petition for lack of jurisdiction, finding that career offender errors were “purely legal” and had “nothing to do with factual innocence.” Id.

Issue(s): “[  ] Allen appeals the district court’s dismissal of his 28 U.S.C. § 2241 habeas corpus petition for lack of jurisdiction. Allen contends that he is ‘actually innocent’ of his sentence as a career offender; that the remedy provided by 28 U.S.C. § 2255 is ‘inadequate or ineffective’ to test his claim of actual innocence; and that the district court may therefore entertain his § 2241 petition.” Id. at *1. “The government conceded at oral argument that if a petitioner is actually innocent of a predicate crime for career offender status in the sense that he did not commit the state law crime of which he was convicted, Bousley applies. In that event, the petitioner would have a claim of actual innocence cognizable under § 2241 . . . . The question before us, then, is not whether a petitioner who did not commit a predicate crime of which he was convicted may challenge his career offender status under § 2241. The government has conceded that he may do so. Rather, it is the closely related question whether a petitioner who committed a crime that is not a predicate crime may challenge his career offender status under § 2241.” Id. at *4.

Held: “We conclude that Allen’s claim of actual innocence is cognizable under § 2241. We therefore reverse the district court’s dismissal for lack of jurisdiction and remand.” Id. at *1. “In Marrero, we left open the question whether a petitioner may ever be actually innocent of a noncapital sentence for the purpose of qualifying for the escape hatch. . . . We now reach that question and hold that Allen has made a claim of actual innocence that permits jurisdiction over his § 2241 petition. If Allen prevails on the merits of his claim that his . . . marijuana conviction was not a predicate conviction for career offender status under the Guidelines, the factual predicate for his mandatory sentencing enhancement did not exist. That is, he is actually innocent of the enhancement. In that case, it is beyond dispute that he is not, and was not, a career offender.” Id. at *4.

Of Note: Nice win, but not a surprising result. This decision of first impression in the Ninth hews closely to the lead of the – drum roll please – that zany Fourth Circuit! Id. at *5. 

  As Judge Fletcher correctly explains, it is hard to imagine a different outcome for a mandatory Guideline case, after SCOTUS’s decision in Alleyne (holding that a fact that increases a mandatory minimum sentence is an ‘element’ of the offense.”) Id. at *4.

How to Use: Another nice holding? “We take the opportunity to clarify that Mathis and Descamps apply retroactively when a court reviews a criminal judgment in the course of addressing a § 2241 petition or a first § 2255 motion.” Id. at *6. 

  Tuck that welcome nugget away, for use on another habeas day.

                                               

For Further Reading: Since Tuesday of last week, the Federal custodial facility at FDC SeaTac has been locked down for visiting, on coronavirus fears. See summary here. 

   The WD Wa District Court is now effectively closed. See order here. 

  The Ninth has cancelled all en banc arguments in S.F. next week. See notice here. 

  An FBI employee of the S.F. field division just tested positive for COVID-19. See article here. 

   San Francisco Mayor Breed just issued “aggressive” recommendations to reduce the spread of COVID-19 – including cancelling the St. Patrick’s Day parade. See News Release here. 

   Today it was announced that Oakland will be the port receiving the Grand Princess cruise ship, carrying over 3,500 passengers and cruise members, twenty-one of whom are positive for COVID-19. See article here. 

  Senator Kamela Harris is very interested in how the Feds are dealing (or not dealing) with  COVID-19 in the jail and prison populations. See Senator Harris Letter here. 

  So, when will COVID-19 hit Santa Rita Jail, and impact the ND Cal District Court? 

   For a sobering piece on the custodial “petri dish” in which our NorCal clients are detained, see a SacBee article here.  

Image of the Honorable Judge William Fletcher from https://cgc.law.stanford.edu/clc-spotlight/clc-1-201806-interview-1-jordan-corrente-beck/

Image of Florida Rep. Matt Gaetz in gas mask from https://www.clickorlando.com/news/2020/03/05/florida-congressman-wears-gas-mask-during-coronavirus-vote/ 

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

.

Case o' The Week: "Same either way" not OK - Vederoff and Post-Johnson status of Washington (non)-"Crimes of Violence"

  A downward variance to 60 months, or an upward variance to five years – mirror image, same result, yes?

  

Well, actually, no.

United States v. Vederoff, 2019 WL 4706734(9th Cir. Feb. 1, 2019), decision available here.

Players: Decision by District Judge Gaitan, WD Mo., joined by Judges McKeown and Friedland.

  Big win for AFPDs Alan Zarky and Mohammad Ali Hamoudi, of the Federal Defender for the W.D. of Washington.

Facts: Vederoff plead guilty to a § 922(g) charge pursuant to a plea agreement. Id. at *1. In his plea agreement, he admitted to Washington convictions for second-degree assault, and second-degree murder. Id.  The PSR set his offense level at 24, claiming both of those priors were “crime(s) of violence” that increased the range. Id. 

  The district court rejected Verderoff’s objections to that calculation, but varied downward from the PSR’s calculated range, and imposed a five-year sentence. Id. at *2. The DJ explained that it was a downward variance from a PSR range that was too high, or an upward variance from the defendant’s calculations (without the crimes of violence) that were too low. Id. 

  Vederoff (intriguingly) appealed, despite a plea agreement (an enlightened appellate-waiver policy that merits a look for ND Cal).

Issue(s): “[Vederoff] challenges the district court’s findings that his prior convictions for second-degree assault and second-degree murder under Washington law qualify as ‘crimes of violence’ under section 4B1.2(a) of the United States Sentencing Guidelines.” Id. at *1.

Held: “Our review of the common law, the Model Penal Code, treatises, and the laws of the other states, . . . compels the conclusion that generic aggravated assault does not include assault with intent to commit a felony.” Id. at *4 (citations omitted). “[S]econd-degree assault under Washington law is not a ‘crime of violence’ under U.S.S.G. § 4B1.2.” Id. at *5.

  “Washington’s second-degree murder statute is . . . overbroad when compared with the definition of generic murder, as well as the Model Penal Code and the laws of other jurisdictions.” Id. at *6. “Washington courts have concluded that the statute is indivisible, and we adopt their interpretation here.” Id. “[S]econd-degree murder under Washington law is not a crime of violence under the enumerated clause of U.S.S.G. § 4B1.2(a)(2).” Id. at *7.

  “Having now determined that the proper Guideline range would be 30 to 37 months, we cannot say that the district court’s incorrect calculation of the proper Guideline range was harmless.” Id. at *8.

Of Note: In this case, it drove the D.J. “absolutely nuts as a trial judge to think that things like murder and assault with a deadly weapon could be conceived as not being crimes of violence.” Id. at *2. He tried a belt-and-suspenders “appellate insurance” policy – the District Judge assured us that 60 months was the right sentence, and it could be deemed either an upward or downward variance from the correct guideline range, depending on the outcome of the Johnson analysis.

   The Ninth was unpersuaded. 

  The appellate court couldn’t deem the five-year term as “harmless,” because it wasn’t clear why the sentence was so high above the (correct) guideline calculations. Id. at *8. 

  Vederoff is the latest (welcome) example of District Court / Appellate cat-and-mouse, as D.J.s try to immunize their sentences from categorical attack -- and the Ninth reminds us who ultimately calls shots. See, e.g. Gardenhire blog here. 

How to Use: Visiting, out-of-circuit, Senior D.J.s making big Ninth law can be troubling (except when we like the outcome). Vederoff falls squarely into that exception -- the Hon. Judge Gaitan is always welcome West. 

  In Vederoff, Judge Gaitan pens a particularly thoughtful analysis of highly technical categorical challenges. For anyone working through a post-Johnson categorical analysis (and who isn’t?), it is a well-written opinion that merits a close read – useful cites abound. See, e.g., id. at *6 (“Facial overbreadth like that here . . . is a basis for finding a statute overbroad.”)

                                               

For Further Reading: The Sentencing Commission is 28% staffed. See USSG Commissioner’s page here. (Not that we're complaining). 

   The President’s 2018 Commission nominees? Sent back from the Senate last January. See e.g. Nomination Report on Judge Henry Hudson, available here. (Not that we’re in any rush . . . )

Image of Escher’s “Drawing Hands” from https://en.wikipedia.org/wiki/File:DrawingHands.jpg

Image of "belt and suspenders" from https://www.jjsuspenders.com/blogs/suspenders/46554561-why-you-should-never-wear-suspenders-with-a-belt  

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

. 

Case o' The Week: Congress takes the First Step, Ninth takes the Second -- Valencia-Mendoza and use of state priors as federal sentencing enhancements

The federal government of the United States just entered its longest shutdown in history.

Federal courts will run out of money next week.

Public defenders will soon join their CJA comrades and will be expected to mount vigorous, constitutionally-mandated defenses for our indigent clients – without pay.

  

Great news from the Ninth couldn’t come at a better time.

United States v. Valencia-Mendoza, 2019 WL 149827 (9th Cir. Jan. 10, 2019), decision available here.

Players: Decision by Judge Graber, joined by Judges McKeown and Christen. Huge win for AFD William Miles Pope, Fed. Defenders of Eastern Washington & Idaho.  

Facts: Valencia-Medonza pleaded guilty to illegal reentry. Id. at *1. He received a +4 OL increase under USSG § 2L1.2, because of a prior Washington “felony” conviction. Id. 

  Commentary to § 2L1.2 defines a felony as an offense “punishable by imprisonment for a term exceeding one year.” Id. The stat max for this Washington prior was five years. Based on Ninth precedent, the D.J. imposed the bump. Id. 

  Under Washington’s mandatory sentencing range, however, the actual max that Valencia-Mendoza could have received was six months. Id.  

Issue(s): “We must decide whether Defendant’s state conviction was a ‘felony’ for purposes of the federal Sentencing Guideline. According to the government, the statutory maximum punishment for Defendant’s state offense was five years, so he was convicted of an ‘offense punishable by imprisonment for a term exceeding one year.’ U.S.S.G. § 2L1.2 cmt. n.2. Defendant acknowledges the statutory maximum but argues that, because the maximum sentence that he actually could have received was only six months, he was not convicted of an ‘offense punishable by imprisonment for a term exceeding one year.’” Id. at *3.

Held: “Our precedent required the district court to disregard the maximum term that Defendant actually could have received under state law, in favor of the maximum term that Defendant theoretically could have received if different factual circumstances were present. Reviewing de novo the interpretation of the Sentencing Guidelines . . . we conclude that later Supreme Court decisions are clearly irreconcilable with our precedent on this point. Accordingly, we vacate the sentence and remand for resentencing.” Id. at *1. (citation omitted).

“In sum, the Supreme Court has held that courts must consider both a crime’s statutory elements and sentencing factors when determining whether an offense is ‘punishable’ by a certain term of imprisonment.” Id. at *9.

The Hon. Judge Susan Graber

Of Note: Judge Graber’s terrific decision parts ways with the Ninth’s precedent in Rios-Beltran,361 F.3d 1204, 1208 (9th Cir. 2004). See id. at *4. The Ninth has historically looked at the stat max when evaluating the viability of state priors for federal sentencing. Id. With a nice Miller v. Gammie whammy, the Ninth now comes in line with SCOTUS (and the Fourth, Eighth and Tenth Circuits). Id. at *8. 

  (The decision is also consistent with the government’s position in the Fifth! See id. at *8 & n.4 (a particularly enjoyable footnote)).

  Valencia-Mendoza is a thorough and well-reasoned opinion. The decision also brings the Ninth squarely in line with a solid phalanx of out-of-circuit authority, and the Supreme Court. The government’s p.f.r.e.b. efforts (if it even bothers) should (we hope) die quickly on the vine.

How to Use: California famously used to have mid-range determinate sentencing below the “stat max” – a scheme that got the State sideways with SCOTUS and Apprendi. See Cunningham, 549 U.S. 270 (2007). The State then quickly scrambled for a fix after Cunningham – S.B. 40 and the later Realignment Act re-jiggered the sentencing schemes. See generally summary here. 

  Do Cali’s current “sentencing triads” trigger the same limitations for federal enhancements as the Washington system in Valencia-Mendoza? See generally  sentencing overview here. 

   Yup! (We think). 

  Like Sriracha, Valencia-Mendoza’s spicy bite tastes good on everything. Glop the analysis onto state priors the government tries to assert in USSG § 2L1.2, USSG § 2K2.1, Career Offender, § 922(g) charges, § 924(e)(2)(A) and § 3559(c)(2)(F)(ii) (First Step Act revised) cases, § 851 allegations, ACCA sentences – yum!

For Further Reading: On Friday January 11th, AO Director Duff informed the Judiciary that we are almost out of dough. 

  Furloughs and “work without pay” loom for federal court staff – and for Federal Public Defenders – on the 19th, if the shutdown isn’t resolved next week. See generally article here. 

Image of shutdown graph from https://www.bbc.com/news/world-us-canada-46848435  

Image of the Honorable Judge Susan Graber from https://law.lclark.edu/live/profiles/352-susan-p-graber 

"I heart Sriracha” image from https://shop.theoatmeal.com/products/sriracha-bumper-sticker

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

.

Case o' The Week: Ninth Rejects Gov't's Optical Illusion - Lorenzo v. Sessions, Cal H&S 11378 and Federal "Controlled Substances"

  For Alain Baxter, and for Elisio Atenia Lorenzo, isomers make all the difference.

Lorenzo v. Sessions, 2018 WL 4100360 (9th Cir. Aug. 29, 2018), decision available here.

British alpine skier Alain Baxter, disqualified because of a (legal) isomer of meth

Players: Decision by Judge Fisher, joined by C.J. Thomas and Judge Bea.

Facts: Lorenzo, a citizen of the Philippines, was convicted of possession of meth for sale in violation of Cal. Health and Safety Code § 11378. Id. at *2.

  Homeland Security initiated removal proceedings. Id. The removal relied on the characterization of Lorenzo’s priors as “relating to a controlled substance,” as defined (by cross-references) in the INA. Id. at *2.

   Lorenzo moved to terminate proceedings, arguing that the Cali definition of meth was broader than the Fed definition of “controlled substances,” because the federal Controlled Substance Act (“CSA”) included only optical isomers of methamphetamine. California’s definition included both optical and geometric isomers of methamphetamine. Id. at *3.

  The IJ rejected Lorenzo’s challenge, the BIA affirmed, Lorenzo appealed.

Issue(s): “We recognize that, in applying the first step in the categorical approach in this case, we have had to examine a disjunctive list within another disjunctive list. At the more general level, we must examine the disjunctive list of drug types – e.g., cocaine, heroin, methamphetamine – covered by California law. . . . At the more specific level, however, California law also includes disjunctive lists within a drug type, listing, for example, several types of methamphetamine – methamphetamine, its salts, its optical and geometric isomers, and salts of its isomers.” Id. at *7 (citation omitted).

Held: “Although we may not have expressly addressed this situation before, it is apparent that, when this situation arises, we must conduct a Taylor analysis with respect to both disjunctive lists.” Id.

  “We hold Lorenzo’s methamphetamine convictions under §§ 11378 and 11379(a) do not qualify as grounds for removal under 8 U.S.C. § 1227(a)(2)(B)(i).” Id. at *3.

  “In sum, California law demonstrates that optical and geometric isomers of methamphetamine are alternative means of committing a single controlled substance offense under California law. The government does not argue otherwise. The overly broad methamphetamine element, therefore, is not divisible. Because the California statute is overbroad and not divisible with respect to the overbroad element, we do not apply the modified categorical approach to determine whether Lorenzo’s convictions involved a type of methamphetamine covered by the CSA.” Id. at *8.

Of Note: This is a huge win for Benjamin Aiken and his Orrick colleagues, and the immigration bar is excited at prospects for relief. Lorenzo, however, has important ramifications for criminal defense as well. Most obviously, § 1326 clients with H&S § 11378 priors now have a challenge to their prior removals. 

  (And other opportunities beckon . . . .)

How to Use: If H&S § 11378 (meth) doesn’t qualify as a “controlled substance” for the INA, does it qualify as a “controlled substance” for the Guidelines (Career Offender, § 2K2.1, etc.), or for a § 851 federal prior?

    Nope (we think).

  In United States v. Leal-Vega, 680 F.3d1160, 1167 (9th Cir. 2012), Judge M. Smith explained that “controlled substances” in the Guidelines refer to the federal drug schedules (the Controlled Substance Act, or “CSA.”). That’s the very same CSA analyzed by Judge Fisher in Lorenzo. 
  Big red flag for clients with H&S § 11378 priors: they may not be Career Offenders, may have substantially lower felon-in-possession guidelines, and may not be “prior-able” under 21 USC § 851.   

                                               

For Further Reading: As Lorenzo illustrates, “categorical analysis” – huzzah!

  In a worrisome development, however, the Sentencing Commission is mulling whether to instead look at “actual conduct” for priors. See final notice here, Priority Three.

  Although Commissioners Barkow and Breyer both have reservations, see hearing video here, at 7:00 – 13:55, a Commission “examination” of the categorical analysis is nonetheless underway.

 Imagine the mischief we’ll make with mini-sentencing trials in federal court, bickering over decades-old evidence from dusty old state proceedings!  

Image of "old evidence" from https://www.youtube.com/watch?v=a2buTsEp13M 

Image of Alain Baxter from http://www.chm.bris.ac.uk/motm/methamphetamine/methh.htm

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

.

Case o' The Week: Ninth Nixes Extortion Contortions - Edling and "Crime of Violence" Under Guideline Definition

  Did Tony Soprano extort by threatening “physical injury” to his victim's iPad?

  (Yeah, the Ninth doesn’t think so, either.)

United States v. Edling, 2018 WL 2752208 (9th Cir. June 8, 2018), decision available here.

Players: Decision by Judge Watford, joined by C.J. Thomas and Judge Rawlinson. 

  Big win for AFPDs Cullen Macbeth, Amy Cleary, Cristen Thayer, the D. Nevada FPD, and the entire Ninth Circuit Johnson brain trust.  

Facts: Edling pleaded guilty to being a felon in possession of a gun. Id. at *1. Under USSG § 4B1.1(a), a “crime of violence” increased his guideline range. Id. 

  One prior at issue was robbery, under Nevada Revised Statutes § 200.380. Id. That statute prohibits taking personal property from the person of another, by – among other means – force, violence, or fear of injury against the person or property. Id. at *3. 

  The district court held that offense was a “crime of violence” as defined under the Guidelines. Id.

Issue(s): “[ ] Edline contends that [Nevada robbery does not constitute] a ‘crime of violence’ as that term is defined in the Guidelines.” Id. at *1.

Held: “[In] 2016 . . . the Sentencing Commission amended the enumerated offenses clause by adding for the first time a definition of ‘extortion.’ That definition provides: “‘Extortion’ is obtaining something of value from another by the wrongful use of (A) force, (B) fear of physical injury, or (C) threat of physical injury.” . . . . The question posed here is whether this new definition still encompasses threats of injury to property. We conclude that the Guidelines’ new definition of extortion narrows the offense by requiring that the wrongful use of force, fear, or threats be directed against the person of another, not property. That is the most natural reading of the text of the definition, particularly its reference to ‘physical injury’—a term that, when used on its own, is typically understood to mean physical injury to a person.” Id. at *3 (emphasis added).

  “Robbery under Nevada law is not a categorical match under either the elements clause or the enumerated offenses clause of § 4B1.2(a). The district court therefore erred in treating Edling’s robbery conviction as a crime of violence.” Id. at *4.

Of Note: Oregon AFPD Steve “Rule of Lenity” Sady is happy. You’ll recall that this venerable rule of statutory construction gives the tie to the defendant – “where the statute is ambiguous” courts should not interpret the statute to increase the penalty on the defendant. Id. at *4. 

  To the extent any ambiguity remained as to this Guideline, Judge Watford invokes the R.O.L. and joins the Tenth Circuit with the right result: the Guideline’s definition of extortion excludes injury and threats of injury to property. Id.

How to Use: Nice win for Edling – four offense levels off, ultimately (for this and another non-COV prior), and for all defendants with Nevada robbery priors. 

  Huge win for California, however, and for the far greater number of federal clients with Cal. Penal Code § 211 robbery priors. Edling should mean lower guidelines, and many years of custody avoided, for our many Cali federal clients with § 211 priors.

  Will Edling’s holding on Nevada robbery control the question for CPC § 211 priors, now up in the Ninth? Well, the government thinks so – it has proclaimed to the Ninth that “There is no substantive difference between California’s robbery statute and N.R.S. § 200.380.” See United States v. Harris, 08-10370, 2009 WL 3639779 (Feb. 17, 2009), Appellee’s Answering Brief.

   Fight tooth and nail against any AUSA or PO claim that CPC § 211 is a crime of violence under USSG § 4B1.2 -- particularly after Edling, it ain’t.

                                               

For Further Reading: Before the Ninth now is United States v. Howard Nickles, III, No. 17-10206 – Judges Wallace, Berzon, and Callahan will decide whether CPC § 211 is a “Crime of Violence.” 

  Last March, we flagged the remarkably frank oral argument on that issue, as this panel struggled to interpret the Commission’s “C.O.V.” intent in the amended Guideline. See “For Further Reading” here. 

  Do you have a CPC § 211 issue perking in your case? If so, read Edling, hit the Nickles III argument, and knock wood for another great Ninth decision soon. See Nickles III argument here.  

Image of “What is Extortion” from https://www.youtube.com/watch?v=4qGNAAephuk

Steven Kalar, Federal Public Defender. Website at www.ndcalfpd.prg

Case o' The Week: The 411 on 211 - Cal Robberies not Violent Felonies for ACCA - Dixon

The Hon. Judge Carlos T. Bea

  In Anderson, the California Supreme Court upheld a robbery conviction under California Panel Code Section  211 – even though the use of force was accidental, and not intentional.  A good decision for D.A.s. 

  Not so hot, it turns out, for AUSAs.

United States v. James Dixon, No. 14-10318 (9th Cir. Nov. 20, 2015), decision available here.

Players: Decision by Judge Bea, joined by Judges W. Fletcher and Berzon.

Facts: Dixon, who had nine prior felonies, plead guilty to Section 922(g)(1) (“felon in possession.) Id. at 4. 

The district court found that three convictions were “violent felonies” under the ACCA: two of those were California Penal Code (“CPC”) § 211 robberies. Id. 

Dixon was sentenced to the mand-min 15-year sentence. Id.

Issue(s): “Dixon appeals only his sentence, claiming, as he did in the district court, that he did not have three ‘violent felony’ convictions, as defined by the ACCA, and thus does not qualify for the mandatory minimum sentence.” Id.

Held: “We conclude that CPC § 211 is not a categorical match because it criminalizes conduct not included within the ACCA’s definition of ‘violent felony.’” Id. at 7. 

“[W]e turn next to whether CPC § 211 is divisible into violations that meet the ACCA’s definition of ‘violent felony’ and others that do not. We have little trouble finding that CPC § 211 is not divisible.” Id. at 10. 

“Because CPC § 211 criminalizes conduct not included in the ACCA’s definition of ‘violent felony’ and is not divisible, a conviction for violating CPC § 211 cannot serve as a predicate ‘violent felony’ conviction for the application of a mandatory minimum sentence under the ACCA . . . . As a result, we vacate the district court’s imposition of the mandatory minimum sentence and remand this case to the district court for resentencing.” Id. at 12.

Of Note: Dixon is an admirably clear, textbook analysis of a state statute’s viability as a “violent felony” under Johnson. Judge Bea first determines that this is not a categorical match, distinguishing precedent in the context of other guidelines with different definitions. Id. at 7-8. He looks at state law, and finds California permits § 211 robbery convictions beyond the key and core limiting requirements of Johnson: (i) Johnson-eligible priors must involve the use of violent force, or force capable of causing physical pain or injury, and must involve (ii) the intentional use of force. Id. at *9. 

Judge Bea then examines the divisibility of CPC § 211, correctly observing that the disjunctively worded phrases in this statute describe alternative means, not alternative elements. Id. at 11. 

Read Dixon for the very welcome outcome, but also take a close look at this blueprint for mounting Johnson attacks on other state priors.

How to Use: Unfortunately, CPC § 211 priors may still count as a “crime of violence” under the current illegal reentry guideline, USSG § 2L1.2(b)(1)(A)(ii). See id. at 7 (discussing the different definition in the reentry

guideline and Ninth authority holding that § 211 qualified as “crime of violence” in that context). 

Notably, however, the identical ACCA definition of “violent felony” is used in the Career Offender guideline, USSG § 4B1.2(a). 

And that Career Offender definition is then incorporated by reference into the “gun” guideline, USSG § 2K2.1 comment. n.1. 

The punchline? 

After Johnson and Dixon, it is all but certain that CPC § 211 “Cal robbery” priors are not “crimes of violence” triggering Career Offender exposure, or generating those big offense level jumps for felon-in-possession cases (up to Offense Levels 20 – 26). Invoke Dixon and contest Cal Robbery priors as “crimes of violence” for those guideline provisions.  

                                               

For Further Reading: The timing of Dixon is impeccable. Just three days before the Ninth’s decision, the District Court, Northern District of California, presumptively appointed the Federal Public Defender and the CJA panel to handle Johnson habeas litigation. See Misc. Order 2015.11.17, available here.

The FPD has received and is reviewing lists of (hundreds) of potentially eligible candidates from the Sentencing Commission – NorCal folks should look for updates on the Johnson procedures and reports on petitioner eligibility in the weeks and months ahead.  

Image of the Honorable Judge Carlos Bea from (the interesting) http://abovethelaw.com/2012/02/benchslap-of-the-day-say-my-name-say-my-name/

Image of the federal sentencing guidelines manual, 2014-2015 edition, from http://ecx.images-amazon.com/images/I/41VwL1OpxqL._SX384_BO1,204,203,200_.jpg  

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

.