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

 

 

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Case o' The Week: Mathis Path Is Blocked, for Walker - Walker and Proof of ACCA Predicates

  In a previous bout with Mathis, Judge Bybee admitted to being “frustrated with the whole endeavor.” United States v. Martinez-Lopez, 864 F.3d 1034, 1058 (9th Cir. 2017) (Bybee, J., “concurring in part and dissenting in part, but frustrated with the whole endeavor.”)

The Hon. Judge Bybee

   He seems less frustrated, this time around. (Unfortunately).

United States v. Walker, 953 F.3d 577 (9th Cir. Mar. 20, 2020), decision available here.

Players: Decision by Judge Bybee, joined by Judge N.R. Smith and visiting Judge Melloy. 

  Hard-fought appeal by ED Cal AFPD Peggy Sasso.  

Facts: Walker pleaded guilty to being a felon in possession of a firearm. Id. at *578. He had three prior convictions for “willfully inflicting corporal injury” on a spouse or cohabitant, in violation of California Penal code § 273.5: one in 1998, a second in ’99, and a third in 2014. Id.

  Walker did not admit to having been convicted of these felonies, so the government presented certified copies of the prior judgments. Id. The district court determined that Walker had previously been convicted of three separate violent felonies, triggering a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act (“ACCA”). Id.

Issue(s): Walker “argues that it was error under Apprendi v. New Jersey, 530 U.S. 466 . . . (2000), for the district court to have determined that his prior convictions were separate incidents, and that such determination had to be made by a jury.” Id.

  “To get around [Ninth Circuit precedent in] Grisel, Walker claims that the case has been implicitly overruled by Mathis v. United States, . . . 136 S. Ct. 2243, 2253 . . . (2016). Specifically, he points to discussions in Mathis explaining that a ‘non-elemental fact’ cannot be used to enhance sentences under the ACCA. Thus, he asserts that because the dates of his prior convictions are non-elemental facts, they cannot be considered by the sentencing judge for the purposes of applying the ACCA.” Id. at 581.

Held: “Context, however, shows that Mathis is not so encompassing as to abrogate Grisel.” Id.

  “With no on-point discussion in Mathis regarding how judges determine the number of prior offenses, Walker fails to show that Grisel “is clearly irreconcilable with [Mathis’s] reasoning or theory.” Miller, 335 F.3d at 893. To the extent that Mathis expresses broader disfavor of factual determinations by sentencing judges, it is not clear whether and how this disfavor extends beyond determining that a given state-law crime is an ACCA predicate . . . Pointing to “’some tension’ between [stray statements in Mathis] and prior circuit precedent” is not enough for the panel to consider Grisel overruled. Lair, 697 F.3d at 1207. In finding that Walker had been convicted of three or more violent felonies, the sentencing judge needed to look no further than the face of the certified judgments to determine these convictions were for distinct acts.” Id. at 581.

Of Note: Judge Bybee’s disappointing reading of the Supreme Court’s decision in Mathis is not the only bad news in this ACCA decision. The Ninth also rejects defense arguments that California D.V. cases under Cal. Penal Code § 273.5 are not crimes of violence. See id. at 579-80.

  A tough decision all around, for those fighting the staggering mand-mins in ACCA cases.

How to Use: Because Ninth precedent confronted Walker at every turn, the leitmotif of his appeal was trumpeting intervening Supreme Court precedent on the categorical approach and ACCA predicates. As a result, Judge Bybee spends much of this short opinion arguing why old Ninth cases dodge new SCOTUS bullets. See, e.g., id. at 580 (discussing Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc), in context of challenge to Cal. P.C. § 273.5); id. at 581 (discussing Miller in context of Mathis’s limitations of judicial findings for predicate offenses).

  Putting aside the persuasiveness of Walker’s Miller analysis, it is a decision worth a read if you’re urging a three-judge panel to correct bad Ninth law after an intervening Supreme Court opinion.

                                               

For Further Reading: San Francisco’s most iconic symbol, the Golden Gate Bridge, hosted another iconic Bay tradition: a peaceful protest. Yesterday thousands of marchers shut down the bridge, protesting the killing of George Floyd and systemic police racism and violence. See article and video here. 

  Look for more protests by public defenders tomorrow, in the Bay Area and across the country.

Image of the Honorable Judge Bybee from https://www.youtube.com/watch?v=i39zEPuZr7c

Image of Golden Gate Bridge protestors from https://abc7news.com/golden-gate-bridge-march-on-george-floyd-protest/6235202/

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

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Case o' The Week: The Ninth Giveth and SCOTUS Taketh Away (then the Ninth Giveth Again!) - Baldon and California Carjacking

Hon. Judge Mark Bennett

  Lost a win, then won again!

United States v. Baldon, 2020 WL 1921963 (9th Cir. April 21, 2020), decision available here.

Players: Decision by Judge Bennett, joined by Judge Lee and D.J. Piersol.

Facts: Baldon pleaded guilty to possession with intent to distribute meth, in violation of 21 USC § 841(a)(1) and (b)(1)(C). Id. at *1. Using a “modified categorial approach,” the district court looked at charging documents for Baldon’s prior California carjacking convictions, to determine whether they were crimes of violence under USSG § 4A1.1(e). Id. at *2. (The carjacking statute is California Penal Code Section 215).

  After finding the prior convictions were crimes of violence, the district court imposed a two-point increase to Baldon’s criminal history, and sentenced Baldon to 184 months. Id.

   A previous Ninth Circuit decision, Solorio-Ruiz, had held that California carjacking is not a crime of violence under a different statute. See Solorio-Ruiz v. Sessions, 881 F.3d 733 (9th Cir. 2018). See id. at *2. After sentencing, the Supreme Court decided Stokeling v. United States, –––U.S. ––––, 139 S. Ct. 544, 202 L.Ed.2d 512 (2019). On appeal, the government argued Stokeling undermined the rational of Solario-Ruiz.

Issue(s): “[W]hether Baldon’s prior convictions for carjacking under section 215 1 of the California Penal Code qualify as crimes of violence under U.S.S.G. § 4A1.1(e) . . . .” Id. at *1. “Can a section 215 conviction be based on fear of injury to property alone?” Id. at *5.

Held: The Supreme Court’s clarification of ‘violence force” in Stokeling as “any force sufficient to overcome a victim’s physical resistance) is “clearly  irreconcilable” with our reasoning in Solorio-Ruiz. Our  opinion rested on the analytical distinction between substantial and minimal force. This distinction no  longer exists. See Ward v. United States, 936 F.3d 914, 919 (9th Cir. 2019). As a result, Solorio-Ruiz’s holding is no longer good law.” Id. at *3.

 But . . .

  “We hold that section 215 is not a categorical crime of violence, and thus the district court erred in calculating Baldon’s sentence.” Id. “Baldon argues that section 215 may be violated through fear of injury to property alone, without any fear of injury to a person, and therefore, the statute “criminalizes a broader range of conduct than the federal definition captures.” Edling, 895 F.3d at 1155. We agree.” Id. at *5.

Of Note: The Ninth giveth, the Ninth taketh away. While Baldon won the “crime of violence” issue, he lost a challenge to a two-level enhancement for possessing a gun during the offense. See id. at *8 (citing USSG § 2D1.1(b)(1)). The gun was in a backpack that contained drugs, found in a storage unit tied to Baldon. Id.   

  Distinguishing some (good) Ninth law, Judge Bennet finds that Baldon has “constructive possession” of the gun, and upholds the two-level bump. Id. at *9. The gun-increase under Section 2D1.1 is a fuzzy, fact-specific spectrum: for better or worse, Baldon is another entry in that continuum.

How to Use: The government beefs about the Ninth’s carjacking decision, complaining there have been no published California decisions citing the statutory definition of fear (that is, no decisions permitting a carjacking conviction when there was fear of injury to property). Id. at *6. Judge Bennett is unimpressed. As he explains, “[W]e can rely, and have previously relied, on unpublished California cases to show that the state has applied the statute in a non-generic manner. . . . And, importantly, the jury instructions routinely used by California courts include fear of injury to property. It would be one thing if the fear of injury to property element were simply invented by creative defense lawyers. It is quite another when that element is part of the standard California jury instructions that are perhaps given in every case.” Id. at *8 (citations omitted).

  Use Baldon to brush back on the government’s unduly restrictive view of the state law, used to show a “realistic probability” that a state offense is broader than the generic definition of a crime.

                                               

For Further Reading: “As district attorneys around the Bay Area are breaking character and releasing hundreds of pretrial detainees to prevent the spread of COVID-19 in jails, the local wing of the U.S. Department of Justice has taken a strikingly different tack. Amid the global pandemic — and as cases of the novel coronavirus mount across California and the United States — the U.S. Attorney’s Office for the Northern District of California has refused to release almost any of the more than 400 federal inmates held in the Santa Rita Jail, most of whom have been charged with crimes but not yet convicted.” Nate Gatrell, Santa Rita Jail houses hundreds of federal detainees. Despite COVID-19 outbreak, U.S. Dept. of Justice has opposed releasing all but one, San Jose Mercury News, Apr. 24, 2020. 

  For a thoughtful piece on a deeply troubling policy from the NorCal USAO, see Mr. Gatrell’s article here.

Image of the Hon. Judge Mark Bennett from http://the.honoluluadvertiser.com/dailypix/2008/Nov/21/hawaii81121049V3_b.jpg

Image of "Free them All Empty Santa Rita" from https://www.vox.com/2020/4/22/21228146/coronavirus-pandemic-jails-prisons-epicenters 

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

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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

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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: Ninth Very Intentional, on Recklessness - Begay, Recklessness, and Crimes of Violence

  No “crazy pills” were ingested in the writing of this opinion.

The Hon. Judge D.W. Nelson

United States v. Begay, 2019 WL 3884261 (9th Cir. Aug. 19, 2019), decision available here.

Players: Decision by Judge D.W. Nelson, joined by Judge Clifton. Dissent by Judge N.R. Smith. 

  Admirable victory for AFPD “Edie” Cunningham, D. Arizona.

Facts: Begay was convicted of second-degree murder, in violation of 18 USC §§ 1111 and 1153. Id. at *1.

  He was also convicted of discharging a gun during a “crime of violence” (this murder), under 18 USC § 924(c). Id. at *2.

Issue(s): “Begay was convicted of discharging a firearm during a ‘crime of violence’ under 18 U.S.C. § 924(c). On appeal, Begay argues that second-degree murder does not qualify as a ‘crime of violence.’” Id.  

Held: “To determine whether second-degree murder is a ‘crime of violence’ we apply the ‘categorical approach’ laid out in Taylor . . . Based on the facts of this case, it may be hard to understand how the shooting of [the victim,] Ben by Begay might not be a ‘crime of violence.’ Under the categorical approach, however, we do not look to the facts underlying the conviction, but “compare the elements of the statute forming the basis of the defendant’s conviction with the elements of” a “crime of violence.” See Descamps. . . . The defendant’s crime cannot be a categorical ‘crime of violence’ if the conduct proscribed by the statute of conviction is broader than the conduct encompassed by the statutory definition of a “crime of violence.” See id.” Id. at *3.

  “Second-degree murder does not constitute a crime of violence under the elements clause—18 U.S.C. § 924(c)(3) (A)—because it can be committed recklessly.” Id. at *4. “We REVERSE Count Two of Begay’s conviction for discharging a firearm during a “crime of violence” under 18 U.S.C. § 924(c)(1)(A) . . . .” Id. at *6.

Of Note: Judge N.R. Smith begins his dissent by quoting Zoolander: “I feel like I am taking crazy pills.” Id. at *6 (N.R. Smith, J., dissenting).

  In Judge Smith’s view, the majority should have used second-degree murder’s “malice aforethought” requirement as some sort of proxy, that revs-up a reckless-conduct offense into qualifying as a “crime of violence.” He urges this novel “malice aforethought” theory as a new way to find that a reckless second-degree murder is serious enough to be a “crime of violence.” Id.

  Judge Smith’s dissent conspicuously baits the en banc hook. The Ninth shouldn't bite – the dissent doesn’t grapple with the reality of the controlling Ninth Circuit, en banc Fernandez-Ruiz decision, and fails to engage with the Majority’s (correct) reading of Voisine. While this outcome may stick in some craws, Begay’s legal analysis is spot on.   

How to Use: The nub of Begay is this: did the Supreme Court’s 2016 decision in Voisine, holding that a “misdemeanor crime of domestic violence” includes “reckless assaults,” overrule the Ninth’s 2006, en banc Fernandez-Ruiz decision, holding that crimes that can be committed recklessly are not “crimes of violence” under § 16? Id. at *5. 

  In a thoughtful and principled analysis, Judge D.W. Nelson carefully explains that Voisine left this question open. Id. Judge Nelson remains faithful to Ninth Circuit law interpreting 18 U.S.C. § 16 to 18 U.S.C. § 924(c), and – staying true to precedent – continues to hold that a “crime of violence under 18 U.S.C. § 924(c)(3) requires the intentional use of force.” Id.

  Read Begay carefully when considering a “reckless” offense the government argues is a “crime of violence.” Under existing Ninth authority, “reckless” just won’t cut it.

                                               

For Further Reading: Last week a (Latino) Tenderloin drug dealer was sentenced in federal court, in the Northern District of California. See N.D. Cal. USAO Press Release here. 

  A week or so before, the “Federal Initiative for the Tenderloin” (“FIT”) kicked off, with drug charges filed against nine (Latino) defendants in the Tenderloin. See N.D. Cal. USAO Press Release here. 

 Days before that, thirteen (Latino) defendants were charged in a drug trafficking conspiracy, for allegedly selling drugs in the Tenderloin. See N.D. Cal. USAO Press Release here. 

  Substitute “Latino defendant” for “black defendant,” and the USAO's new “FIT"-focus has some Safe Schools déjà vu, all over again. See “For Further Reading,” available here; and here.

Image of the Honorable Judge D.W. Nelson from https://ms-jd.org/blog/article/first-women-dorothy-w-nelson

Image of Zoolander from https://www.looper.com/127320/what-the-cast-of-zoolander-looks-like-today/ .

Image of “Tenderloin National Forest” from https://www.latinousa.org/2012/05/11/tenderloin-national-forest/

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

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Case o' The Week: BIA Goes Own Way - Betansos and Plea Bargains for Categorical Analysis "Realistic Probability"

  Let’s Make a Deal (part of the categorical analysis . . .)

Betansos v. Barr, 2019 WL 2896367 (9th Cir. July 5, 2019), decision available here.

Players: Decision by Judge Murguia, joined by Judge Bea and DJ Bastian.   

Facts: The Board of Immigration Appeals (“BIA”) found Betansos ineligible for cancellation of removal. Id. at *2. His previous conviction for indecent exposure, under California Penal Code § 3141(1), was held to be a crime involving moral turpitude (“CIMT.”) Id. at *1.

   In Nunez, the Ninth had previously reversed an unpublished BIA decision on this precise question, holding that this offense was not categorically a CIMT. Id. The BIA, however, revisited the issue in a published decision, Matter of Cortes Medina, 26 I & N. Dec. 79 (BIA 2013). Id. In Cortes Medina, the BIA contradicted the Ninth’s decision in Nunez and found that Cal. Penal Code § 3141(1) was categorically a CIMT – this time offering rationales for its decision.

Issue(s): “We must now decide whether to defer to the BIA’s more recent determination in Cortes Medina that a violation of § 3141(1) categorically constitutes a CIMT. If we defer to Cortes Medina, we must also decide whether we will do so retroactively.” Id.

Held: “[W]e conclude that we must defer to Cortes Medina pursuant to the framework [set forth in the Supreme Court’s decision in Brand X]. We also conclude that Cortes Medina applies retroactively in Betansos’s case. We therefore deny Betansos’s petition for review.” Id. at *2.

   “Reasonable minds can differ when deciding whether certain crimes are morally turpitudinous. Indeed, we did so in Nunez. However, pursuant to Brand X, we must defer to the BIA’s decision in Cortes Medina.” Id. at *8.

Of Note: The nub of this loss is Chevron deference to the BIA’s “categorical” categorization of indecent exposure as a CIMT. Id. at *5. It is a disappointing outcome, and there’s the sense that the Ninth isn’t too keen on the BIA’s determined effort to scoop up this offense as a CIMT.

   Of greater interest to criminal practitioners is Judge Murguia’s very thoughtful concurrence. Id. at *11 (Murguia, J., concurring). She acknowledges that the Supreme Court requires immigration petitioners to show a “realistic probability” that a statute is overbroad in its application and therefore not a categorical match. Id. (citing Duenas-Alvarez). Judge Murguia complains, however, that the BIA’s examples in its decision are decades-old. Id. Why are there so few published decisions to use in a categorical analysis? Because “[t]he vast majority – and nearly all –of criminal cases are resolved through plea bargains.” Id. Plea bargains don’t get published, so the BIA – and the Ninth – have no way to access how broadly a statute is really being used in the real world.

  Judge Murguia ends with a call to action: “Developing a mechanism for considering what conduct prosecutors charge and results in defendants accepting pleas may be particularly helpful in cases such as this one . . . .” Id. at *11.

  An intriguing invitation.

How to Use: Accept Judge Murguia’s invitation! The Taylor categorical goo largely exists because state D.A.’s, legislatures, and judges are too creative and too flexible when scooping in conduct – they (very) broadly interpret state criminal statutes to uphold convictions. Let’s add to that list the “hold your nose and down it goes” plea bargains as examples, when arguing that a state statute is overbroad for a categorical match. 

  Buddy up with your friendly state public defender, and start fishing for transcripts of plea deals illustrating the broad use of Taylor-contested state statutes. Under the Betansos concurrence, those plea transcripts will be welcome exhibits for federal categorical challenges.

                                           

For Further Reading: Judge Jay Bybee has announced that he is taking senior status at the end of this year. See article here. 

  If a nomination and confirmation makes it through, Judge Bybee’s position will be the tenth Ninth spot to be filled by President Trump.

Image of “Let’s Make a Deal” from https://www.auditionsfree.com/2016/lets-make-deal-now-casting-los-angeles-area/.

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

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Case o' The Week: Ninth's Not Life-Affirming - Graves and the Categorical Analysis of Section 851 Priors

We dig Graves.

United States v. Graves, 2019 WL 2293421 (9th Cir. May 30, 2019), decision available here.

Players: Decision by Judge Clifton, joined by Judges Paez and Court Int’l Trade Judge Katzmann.

Facts: Graves was charged with meth and marijuana offenses. Id. at *1. Before trial, the government gave notice under 21 USC § 851 of its intent to seek a life sentence based on two drug priors. Id. One of those convictions was for Cal. Penal Code § 4573.6, “inmate drug possession.” Id. The district court held that the priors qualified as “felony drug offenses” that triggered the enhancement.

  Graves was found guilty, and under the Section 851 enhancements, sentenced to the mandatory-minimum term of life. Id. 

  The District Court then went on to conduct a separate § 3553 analysis, to “perfect the record and to make clear that if the court were to exercise discretion, if it had any to impose a sentence at less than life, it would not.” Id.

Issue(s): “[  ] Graves challenges the life sentence imposed by the district court after it concluded he had two prior felony drug offenses under 21 U.S.C. § 841(b)(1)(A), mandating a sentence of life imprisonment. The district court concluded that his two prior convictions, including for a violation of California Penal Code § 4573.6, qualified as predicate felony drug offenses.” Id. at *1. 

  “Graves argues the district court erroneously concluded his . . . § 4573.6 conviction qualified as a felony drug offense because the statute is both overbroad and not divisible.” Id. at *2.

Held: “We conclude that Graves’ section 4573.6 conviction does not qualify as a predicate offense and therefore vacate his sentence and remand for re-sentencing.” Id. at *1. “There is no dispute that section 4573.6 criminalizes controlled substances under California law that are not regulated under federal law, so the statute is overbroad . . . .We therefore must determine if the statute is also divisible.” Id. at *2.

  “We conclude that the statute is not divisible based on the plain text, state court decisions, and the contrast to convictions under the California Health and Safety Code.” Id. at *3. “We conclude . . . that California Penal Code § 4573.6 is not a divisible statute and therefore cannot be a categorical “felony drug offense” triggering a “mandatory term of life imprisonment” under 21 U.S.C. § 841(b)(1)(A) (2016).” Id. at *4.

Of Note: In Graves, the government and the district court again try the old “belt and suspenders” approach to sentencing. 

Even if the original mand-min sentence was legally incorrect, the district judge assures us, the judge still would give a life sentence. Seizing this assurance, on appeal the government argued it was unnecessary to vacate the life sentence, because the D.J. “perfect[ed] the record” and promised that a life sentence would still be imposed under the Section 3553 factors. (Notably, the district court reached this decision despite the fact that the defendant had not participated in a PSR interview, or submitted a sentencing memorandum, due to the mandatory life term.) Id. at *4.

  Yet again, the Ninth rejects this effort to inoculate against appellate review, vacates the sentence, and remands for a fresh new sentencing (hopefully with some First Step Act love thrown in). Id. at *4.

How to Use: Does the categorical approach even apply to Sec. 851 priors? The government argued that it was “far from clear” that it does. Id. at *2 & n.3. Judge Clifton “was not convinced,” and the Court “resort[s] to the categorical approach in this context.” Id. at *2. 

  To the extent it was in question, Graves seals the deal: Section 851 priors are subject to the familiar categorical analysis approach.  

                                               

For Further Reading: Under the First Step Act of 2018 (“FSA,”) Mr. Graves may be looking at mandatory term far below “life.” 

   For a thoughtful piece touting the FSA, see The First Step Act is a Major Step for Sentencing Reform, by former Sentencing Commission Chair, Judge Patti Saris, available here.

Image of “Grave digger” from https://voca58.org/Feature_Lament_Grave_Digger.html

Image of belt and suspenders from https://www.duluthtrading.com/mens-perry-original-y-back-suspenders-50872.html?&srccode=GPSHPMN&chnl=ps_prospect_pla_mn&region=out_region&gclid=CjwKCAjw583nBRBwEiwA7MKvoJRUJJi0HCMZsiN5_UgDDZ5x5tpYG-6wyaUL2o9oyHVg4KXk-qwuChoCCpkQAvD_BwE

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

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