Case o' The Week: Ninth Tacks to Lee of Constitutional Issue -- Lee, Johnson, and the Sentencing Guidelines

Want to know whether Johnson applies to the guidelines?

  So does Judge Ikuta.

United States v. Lee, No. 13-10517 (9th Cir. May 6, 2016), decision available here.

Players: Decision by Judge Hurwitz, joined by Judge Bea. Dissent by Judge Ikuta. Hard-fought win for ND Cal CJA Attorney Ethan Balogh.

Hon. Judge Sandra Ikuta

Facts: Lee was convicted of distributing crack. Id. at 3. One drug prior counted as a Career Offender predicate. Id. at 4. Lee also had prior convictions under Cal. Penal Code Sections 69 (resisting executive officer), and 243.1 (battery against custodial officer). The court found both priors to be “crimes of violence” under USSG § 4B1.1(a)(3), and found Lee to be a Career Offender. Id. While on direct appeal, the Supreme Court decided Johnson (2015). The Ninth asked for supplemental briefing. Id. at 6.

Issue(s): “Lee contends that he is not a ‘career offender’ because he does not have ‘at least two prior felony convictions of either a crime of violence or a controlled substance offense.’ U.S.S.G. § 4B1.1(a). . . . [T]he issue for decision is whether either of Lee’s convictions under California Penal Code § 243.1 or § 69(a) are ‘crimes of violence’ under Guidelines § 4B1.1(a). The government does not contend that either § 243.1 or § 69 is a controlled substance offense, ‘has as an element the use, attempted use, or threatened use of physical force against the person of another,” U.S.S.G. § 4B1.2(a)(1), or corresponds to an enumerated crime in § 4B1.2(a)(2). The only question, then, is whether, under the residual clause, either crime ‘otherwise involves conduct that presents a serious potential risk of physical injury to another.’ U.S.S.G. § 4B1.2(a)(2).” Id. at *6.

Held: “Because we find that neither of Lee’s convictions would qualify as a ‘crime of violence’ under our pre-Johnson caselaw, we need not address this constitutional question.” Id. at 7. 

  “We decline to decide whether Johnson’s reasoning extends to the Sentencing Guidelines, because even if it does not, we are left with the same result in this case: We must vacate and remand for resentencing because Lee’s crimes are not categorical crimes of violence . . . [W]e decline the dissent’s invitation to answer a constitutional question unnecessary to the disposition of this case.” Id. at 8 & n.2.

Of Note: Judge Ikuta agrees that Lee should win and there should be a remand, but disagrees with the majority’s reasoning. Id. at 13 & n. 5. Seems like a concurrence, but Judge Ikuta styles her opinion a “dissent.” Id. at 14 (Ikuta, J., dissenting). Whatever it is, it is worth a very close read. 

  Judge Ikuta would hold that the Guideline residual clause is so “inscrutable” that a district court can’t get it right: it is per se Guideline procedural error just to use the thing. Id. at 25-26. 

  [Ed. note: Consider that under this theory, the district judge in the Lee case -- Sentencing Commissioner Charles R. Breyer -- would be deemed incapable of divining the meaning of the inscrutable guideline on remand].

  Before she gets to the "procedural error" theory, however, Judge Ikuta opines that there is no due process (Johnson) violation when the residual clause is used, under the advisory guidelines. Id. at 14-25.

   What’s the difference between Judge Ikuta's theory of guideline inscrutability, and a holding that Johnson controls the advisory guidelines? None, for Lee – he is on direct appeal and would get a remand either way. But query whether Johnson would be retroactive to advisory guideline cases for Section 2255 motions, if the residual clause is mere sentencing “procedural error” due to “inscrutability?” (Versus running afoul of Johnson and its due process protections?) 

  This dissent, if ever adopted, would conceivably doom many Johnson § 2255 motions for advisory guideline cases. DOJ is scrambling for theories to distinguish Welch and limit its retroactivity holding solely to ACCA cases: Judge Ikuta offers one troubling approach.

How to Use: Lee uses pre-Johnson cases to first ask whether a prior would qualify as a COV. So give that a shot, as well as running the normal Johnson claims – what’s to lose? If the priors don’t qualify, you win. If they do qualify under old COV law, Johnson is still available for a due process attack. Another arrow for the quiver.

                                               

For Further Reading:  We wrongly guessed that Lee would be the Ninth Circuit case to decide whether Johnson applies to the guidelines. 

  With the issue avoided in Lee, what panel is now the lead on this question? Probably United States v. Jimmy Torres, submitted before Judges Wardlaw, Fletcher, and Murgia on Dec. 8. ‘15.

(Left to right): Hon. Judges W. Fletcher, Wardlaw, and Murgia - Jimmy Torres argument

   For a video of the very interesting Torres argument, see the Ninth's You Tube site here. 

  (By the way, what was the Feds position in Torres? “The government agrees that the . . . holding in Johnson regarding ACCA’s residual clause applies to the identically worded clause of the career offender guideline, § 4B1.2(a)(2), and to other guidelines that use the career offender guideline’s definition of ‘crime of violence,’ including Guideline § 2K2.1.”)

Image of the panel from United States v. Torres from https://www.youtube.com/watch?v=T--n7G6PrZU

Image of the Honorable Judge Ikuta from United States Courts - http://news.uscourts.gov/new-chairs-named-judicial-conference-committees, Public Domain, https://commons.wikimedia.org/w/index.php?curid=36109912

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

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Case o' The Week: Ninth Avoids Constitutional Avoidance, Grisel

In an unusual, but welcome, alliance, Judge Graber (Right) authors a good en banc decision joined by Judges Pregerson, Reinhardt (Left), Berzon and others. United States v. Grisel, __ F.3d __, Slip. Op. at 6735 (9th Cir. June 5, 2007) (en banc), decision available here. In Grisel, the Ninth undertakes an exacting analysis of the Taylor definition of burglary, reverses an earlier decision, and holds that Oregon Second Degree burglary is not a categorical predicate for the Armed Career Criminal Act (ACCA). The only dark cloud in this sunny picture is the Ninth's rejection of Steve Sady's attack using the doctrine of constitutional avoidance (more briefing available here).

Players: Judge Graber authors, Judge Bea dissents. Big amicus assist by Oregon Chief Deputy FPD Stephen Sady.

Facts: Grisel pleaded guilty to felon in possession, 18 USC § 922(g)(1). Slip Op. at 6739. At sentencing, he objected to the use of seven prior second degree Oregon burglary convictions. Id. The district court overruled his objections, and sentenced under ACCA to the 180 mand-min term. Id.

Issue(s): 1. “First, Defendant urges that the doctrine of constitutional avoidance required that we not apply the rule of Almendarez-Torres. . . , that prior convictions need not be alleged in an indictment, proved to a jury, or admitted by a defendant, because recent Supreme Court cases have called into question its validity.”

2. “We took this case en banc primarily to reexamine the validity of United States v. Cunningham . . . In Cunningham, we held that second-degree burglary under Oregon law is a categorical offense under the analysis required by Taylor . . . .” Id. at 6738-39.

Held: 1. [Re: Almendarez-Torres and “doctrine of constitutional avoidance”]: “The fact that the Supreme Court has expressed some ambivalence about its own jurisprudence does not give us the power to change it.” Id. at 6741.

2. “[S]econd degree burglary under Oregon law is not a categorical burglary for purposes of the ACCA because it encompasses crimes that fall outside the federal definition of generic burglary. We therefore overrule our contrary holding in Cunningham . . . .” Id. at 6748.

Of Note: Grisel hurts: it essentially avoids the doctrine of constitutional avoidance. Id. at 6739-41. Readers of the Ninth Circuit blog know that this attack has long been Stephen Sady’s crusade. Still worth raising Sady’s excellent challenge? Yep. Remember that Olano plain error is what clobbered many of our post-conviction clients in the immediate wake of Apprendi. Little harm in preserving this objection in open-plea cases: who knows if and when the other Almendarez-Torres shoe will drop?

How to Use: Grisel helps in categorical-analysis cases. The dissent (Judges Bea, Kleinfeld and Tallman) complain that this analysis is just “technicalities” – the Supreme Court, and Congress, would want Grisel’s Oregon priors to count as ACCA predicates. Id. at 6750 (A worrisome red cape before the Supreme Court bull, this dissent).

In any event, the majority opinion is useful because it refuses to second-guess Congressional intent: it reads the Supreme Court’s exact definition of burglary in Taylor, and (correctly) finds that Oregon’s definition is broader – too broad, in fact. Demand this same depth of analysis in your next categorical challenge to a state prior at sentencing.

For Further Reading: It is rumored that Ninth Circuit judges have referred to the categorical/modified-categorical goo of jurisprudence as a “judicial crisis.” The Court seems to have decided to do something about the mess, if recent slip ops are any indication. The day after Grisel, Judge Beezer authored United States v. Navaraez-Gomez, Slip. Op. 6845 (9th Cir. June 6, 2007), decision available here. In that case, the Ninth concludes Cal Penal Code § 245 – shooting a gun at an inhabited house or dwelling – is not a categorical crime of violence because it can include reckless conduct. Id. at 6857.

In United States v. Beltran-Munguia, Slip. Op. 6873 (9th Cir. June 7, 2007), decision available here, decided two days after Grisel, Judge Berzon explained that Oregon Second Degree sexual abuse is not a categorical crime of violence under USSG § 2L1.2 [the illegal reentry guideline]. Id. at 6884.

In sum, the defense bar was 3-0 last week (even in the Ninth, we rarely have weeks that good -- when we do, they're worth of noting).

The N.D. Cal. FPD has put together a chart of the jumble of Ninth Circuit categorical holdings, for California state offenses and ACCA, § 2L1.2 and § 4B1.2. We’ll be distributing this chart at our June 16 CJA conference; defense counsel who don’t attend can contact our office for a copy.

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

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