Case o' The Week: Guidelines "Steer" Ninth's Decision - Cruz-Mendez and "Captain / Pilot" Enhancement

Michael, row your boat ashore.

  Hallelujah.

Base offense plus two more.

  Hallelujah.

United States v. Cruz-Mendez, 2016 WL 360723 (9th Cir. Jan. 27, 2016), decision available here.

 

 Players: Decision by visiting District Judge Michael Posner, joined by Judges Rawlinson and Nguyen. Hard-fought appeal by Ass’t Fed. Defender Sara Weinman, Federal Defenders of San Diego, Inc.

Facts: From the air Custom and Border agents saw a panga off of Ensenada, heading north towards the States. Id. at *1. They saw bales of “suspected narcotics” in the open hull – the panga was stopped and searched and agents found thirty-one bales of marijuana. Id. 

Cruz-Mendez was arrested and charged with possession of marijuana with intent to distribute, on a vessel. Id. Cruz-Mendez was on supervised release for transporting undocumented aliens on a vessel. Id. 

He pleaded guilty, and there was a consolidated sentencing hearing for the marijuana charge and the supervised release violation. Over defense objection, the PSR recommended a two-level bump for the “pilot/captain” enhancement because Cruz-Mendez had the skill to pilot the panga. Id. The District Court imposed the “pilot / captain” enhancement and ran the supervised release term consecutive. Id. at *2.

Issue(s): “On appeal, he raises two issues. First, Cruz–Mendez challenges the district court's imposition of a two-level enhancement to his offense level for the marijuana conviction, as contemplated under U.S.S.G. § 2D1.1(b)(3)(C) (the “pilot/captain” enhancement). Second, he contends that the combined sentence of ninety-two months was substantively unreasonable.” Id. at *1.

Held: “The proper application of a “pilot/captain” enhancement is an issue of first impression in this circuit. We agree with every other circuit court to consider this issue—the First, Fifth, Seventh, and Eleventh—and hold that the proper reading of the “pilot/captain” enhancement is not as constrained as Cruz–Mendez suggests. . . . ” Id. at *2 (citations omitted). “We find no error in the application of the “pilot/captain” enhancement on the facts of this case. By Cruz–Mendez's own account, he was a lifelong fisherman hired to transport marijuana bales, and in so doing he operated a boat laden with substantial cargo in open water by controlling both its speed and direction. Such conduct fully justifies the imposition of the two-point enhancement. . . . Id. at *3 (citations omitted).

Of Note: “A panga boat is an open-bow vessel commonly used for smuggling.” Id. at *1 & n 1. If you’ve traveled south of the border, you’re familiar with these simple boats with attached outboard motors. See generally article here.  

Here, Cruz-Mendez “operated the panga by standing at the tiller of the outboard motor.” Id. at *2. To get hit with the “captain” enhancement for the mundane act of steering a panga seems analogous to the “use of a computer” bump for child porn. See USSG § 2G2.2(b)(6). It’s a frustrating outcome, but now is an effective guideline tax for many of these offenses.

How to Use: The Ninth rejects Cruz-Mendez’s argument that he had no authority over his co-defendant, by countering that the co-defendant did not have any control over him. Id. at *3 n. 3. This enhancement may be avoidable if a crew member steered a boat at the direction of the captain – though a tough needle to thread.  

                                                                   

For Further Reading: Those dedicated to indigent defense lost an often-surprising ally with the passing of Justice Scalia this week. See, e.g., Ring v. Arizona, 536 U.S. 584, 613 (Scalia, J., concurring) (“There is really no way in which JUSTICE BREYER can travel with the happy band that reaches today's result unless he says yes to Apprendi. Concisely put, JUSTICE BREYER is on the wrong flight; he should either get off before the doors close, or buy a ticket to Apprendi-land.”)

With Justice Scalia’s passing, will the Western U.S. finally have more of a voice in a Court dominated by Eastern jurists? See article here.   

Perhaps – the Ninth’s own Judge Paul Watford is a leading candidate among the pundits. See blog here. 

Image of panga from https://tribktla.files.wordpress.com/2013/09/panga-takedown-3.jpg

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

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Case o' The Week: Bowlegged Ban - Montes-Ruiz and Consecutive sentences

Fed + State, federal district judge can order sentence be consecutive ("bowlegged") to second, not-yet-imposed state sentence.

Fed + Fed, not so much . . .

United States v. Montes-Ruiz, 2014 WL 1099504 (9th Cir. Mar. 21, 2014), decision available here.

Players: Decision by Judge Rawlinson, joined by Judges Gould and DJ Lemelle.  

Facts: [Ed. note: the various convictions and revocations in this case are complicated. Reported here are charges relevant to the main appellate issue].

  In 2007, Montes-Ruiz was convicted of attempted entry after deportation. Id. at *1. Removals, reentries, and revocations followed. Id. In 2012, Montes-Ruiz attempted to enter again, with false documents and with individuals hidden in the trunk of his vehicle. Id. Two cases ensued. Judge Burns proceeded over revocations proceedings, Judge Lorenz over the new substantive Section 1326 case. Id. Judge Burns tried to delay the revocation sentencing to follow the new Section 1326 sentencing, but the defense asked Judge Burns to go forward. Id. Judge Burns imposed 24 months of custody on the revocation, “to be served consecutively to the anticipated sentence to be imposed by Judge Lorenz for the substantive offense.” Id. at *2. Judge Lorenz later imposed an 18 month sentence on the new substantive offense, consecutive to the revocation sentence previously imposed by Judge Burns. Id. Montes-Ruiz appealed Judge Burns’ consecutive, 24-month revocation sentence. Id.

Issue(s): “Javier Montes-Ruiz appeals the district court’s decision to impose its sentence to run consecutively to an anticipated, but not-yet-imposed, federal sentence in a separate case.” Id. at *1.

Held: “We vacate and remand the first sentence [the revocation sentence] imposed to ensure compliance with the provisions of 18 U.S.C. § 3584.” Id. “We are persuaded by the language of the statute, the rationale of our prior decisions, the decisions from our sister circuits, and dicta from the Supreme Court that § 3584 does not permit a federal sentencing court to impose a sentence to run consecutively to another federal sentence that has yet to be imposed.” Id. at *6.

Of Note: Confusing stuff, this. In a nutshell, in Setser the Supreme Court rejected a previous line of Ninth law and held that a district court has a common law power to order that a federal sentence run consecutively to an anticipated, but not-yet-imposed state sentence. Id. at *3 (discussing Setser v. United States, 132 S. Ct. 1463 (2012)). Because of the limitations of Section 3584, however, Judge Rawlinson here concludes that a district court does not have the same common law power to order that a federal sentence be run consecutively to an anticipated, but not-yet-imposed federal sentence. Id. at *5 (discussing similar holdings in the Fourth and Fifth Circuits). The result is a remand, so Judge Burns can take another look at the first, revocation sentence.

How to Use: Good outcome here – maybe Mr. Montes-Ruiz has a shot at reducing that stiff (consecutive) revocation sentence on remand. And good to have limits on anticipatory consecutive sentences for federal cases. The complication, however, is when the defense wants a federal sentence concurrent to a not-yet-imposed federal term in another case. (For example, if trying to resolve minor federal charges in your district, while heavier charges await in another). Presumably, a concurrent sentence to a not-yet-imposed federal term is verboten under Montes-Ruiz. Yet another twist in the Byzantine rules on concurrent versus consecutive federal time.

                                               

For Further Reading: As of March 24, the N.D. Cal. will be a large urban district with no federal pretrial detention facility. FDC Dublin has been suddenly and unexpectedly shut down by the BOP. “Dublin” offered our clients a law library, decent food, reasonable outdoor time, good visiting facilities – basic amenities missing in the county jails where federal defendants are held pretrial. In ‘88, we’re told, the FPD, the ACLU, and Morrison & Foerster sued over the lack of federal pretrial detention facilities in the district. Any district vets involved in that old litigation please be in touch – it may be time to dust off those pleadings and get NorCal on the MDC list. See List of MDC facilities here. 

Cartoon from http://comicsidontunderstand.com/wordpress/wp-content/uploads/2013/01/concurrent.gif

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

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Case o' The Week: Ninth Constrains Plain Bane -- Joseph and Plain Error Review for Sentencing Mistakes

   Should an appellate court correct a sentencing error, when the mistake means our client is doing more jail time than necessary?

The Hon. Richard Paez

  Sad to have to even ask the question –  but happy to tout the Ninth’s answer. United States v. Dayven Joseph, 2013 WL 2321443 (9th Cir. May 29, 2013), decision available here.

Players: Decision by Judge Paez. Nice Win by Hawai’i AFPD Alexander Silvert, FPD Peter Wolff and AFPD Donna Gray.  

Facts: While serving a term in federal prison, Joseph was caught with marijuana. Id. at *1. When the FBI interrogated him, Joseph admitted to possessing marijuana inside on a different date as well, and giving some to another inmate. Id. He was indicted with three counts of 18 USC § 1791: i) possessing marijuana in December, ii) giving that marijuana to another inmate in December, and iii) possessing marijuana in February. Joseph plead guilty, and the PSR recommended consecutive sentences for the three counts under Section 1791(c): “the term of imprisonment shall be imposed to run consecutive to any other sentence imposed for offenses involving a controlled substance.” Id. (emphasis added). The district court imposed three sentences, one for each count, consecutive to one another. Id. at *2. The defense did not object.

Issue(s): “Joseph argues that ‘such a controlled substance’ refers only to the specific item of drugs that provided the basis for the violation of § 1791(a) . . . . In contrast, the Government argues that ‘such a controlled substance’ in § 1791(c) refers to any controlled substance, irrespective of whether it was the specific item of drugs or even the same type of drug that formed the basis for the violation of § 1791(a).” Id. at *3.

Held: “Joseph’s reading of § 1791(c) is the only plausible interpretation that comports with the text of the statute and congressional intent.” Id. “In sum, we hold that the first provision of § 1791(c) – “[a]ny punishment imposed under sub-section (b) for a violation of this section involving a controlled substance shall be consecutive to any other sentence imposed in any court for an offense involving such a controlled substance” – only requires consecutive sentences when there is more than one conviction resulting from the same item of controlled substance contraband. Therefore it was error for the district court to assume that the statute required the sentence for Count 4 be imposed consecutively to Counts 1 and 2.” Id. at *5.   

Of Note: This is a sweet win on a rarely-charged criminal statute. Joseph’s greater value, however, is as useful synthesis of plain error review for sentencing mistakes. Id. at *5. You’ll recall that plain error review is that hated hurdle that protects district court mistakes through a series of difficult hoops. Here, Judge Paez has no problem finding that the district court’s “consecutive” error was plain – even though “there was no appellate law case law answering this precise question.” Id. “[T]he clear text and structure of the statute, along with the Sentencing Guidelines, are sufficient to show that the error was ‘plain.’” Id. Joseph’s application of the plain error test is one to quote, as are the opinion’s dissection of the other plain error prongs in the context of sentencing appeals. Id. at *6. A welcome addition to appellate counsel’s tool-kit.

How to Use: The best way to win a plain error fight is to avoid a plain error flight altogether. In fat footnote four, Judge Paez carefully explains that the Court’s plain error review wasn’t actually necessary in Joseph because this was a purely legal issue and there was no prejudice to the government by the failure of the defense to object. Id. at *2 & n.4. Whether to apply plain error when reviewing a purely legal issue is still a big fight – three years ago a visiting Senior Judge seriously muddied some settled Ninth law on the issue. See blog entry here.

  Always start your plain error fight by trying hard to avoid the plain error fight – footnote four is a critical important caveat in the Joseph analysis.

                                               

For Further Reading: We worry when Senior, out-of-circuit judges muck with Ninth law – except when we like their decisions. For example, last November visiting Sixth Circuit Judge Ronald Gilman tackled the troubling Maloney decision in a wonderful dissent. See Maloney blog entry here. 

  Just how compelling was Judge Gilman's dissent? Maloney went en banc last week. See order here.

Image of The Honorable Richard Paez from http://www.eastvalleytribune.com/arizona/immigration/article_775e264c-e082-11df-b656-001cc4c03286.html

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

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