Case o' The Week: Lost in Austin - the Ninth fractures over fractures, crack resentencing

 A fractured panel fractures over a fractured opinion from a fractured Supreme Court.

  (Weirdly appropriate, for a “crack” case . . .)

United States v. Davis, 776 F.3d 1088 (9th Cir. Jan. 27, 2015), decision available here.

Players: Per curiam opinion, by Judges O’Scannlain, Kleinfeld and Berzon. Compelling concurrence by Judge Berzon.  

Facts: In 2005 Davis pleaded guilty pursuant to a Fed. R. Crim. Proc. 11(c)(1)(C) deal. Id. at 1089. He was sentenced to 18 years. Id. After the Sentencing Commission reduced the Guideline sentences for crack cocaine in 2010, Davis sought a retroactive reduction of his sentence. Id. The district court held that it lacked jurisdiction to modify his sentence, because Davis’s sentence was not ‘based on’ the Guidelines. Id.

Issue(s): In light of the Supreme Court’s divided decision in Freeman v. United States, 131 S. Ct. 2685 (2011), and the Ninth Circuit’s interpretation of that decision in United States v. Austin, 676 F.3d 924 (9th Cir. 2012), does the district court have jurisdiction to modify a sentence under 18 U.S.C. § 3582(c)(2) when the underlying sentence was pursuant to a (c)(1)(C) plea agreement?

Held: “We affirm.” Id. at 1089. “The district court’s determination in this case that it lacked jurisdiction to reduce Davis’s crack sentence is consistent with” United States v. Austin, 676 F.3d 924 (9th Cir. 2012).” Id. at 1091

Of Note: When the case that is the subject of the Case o’ The Week memo is dusty enough to have earned an “F.3d” cite, fair to infer the drought in Ninth criminal opinions continues. As of the Ides of March, the last criminal opinion in the Ninth was the Mendez-Sosa case on March 2. See http://www.ca9.uscourts.gov/opinions/ The opinion (not order, or amended opinion) before that? Feb 5, in Burgos-Ortega. If the trope, “no news is good news” is true, very good news of late in the Ninth.

How to Use: This disappointing decision is not a big surprise, given the Ninth’s decision in Austin. In a very thoughtful concurrence, Judge Berzon takes a hard look at how appellate courts are supposed to interpret fractured Supreme Court decisions. Id. at 1091 (Berzon, J., concurring). She finds Austin wanting, and opines that Marks (the lead opinion on fractured opinions) is not consistent with the Ninth’s approach in Austin. Id. at 1092 (discussing Marks v. United States, 430 U.S. 188 (1977)). Judge Berzon ends with an en banc flag: “We should reconsider Austin’s holding . . . .” Id. She’s right, Austin deserves another look, and preserving this issue in (c) cases seems prudent.

  More broadly, Judge Berzon’s concurrence is a helpful read when dealing with the (increasingly frequent) problem of fractured opinions, and how to glean the controlling holding under Marks. Not surprisingly, courts are even fractured on how to properly read fractured opinions. (Happily, the perpetual discord guarantees the defense will always have something to argue.)

Hon. Judge Claudia Wilken

                                               

For Further Reading: The Northern District of California now has a Post-Plea Diversion / Deferred Sentencing Court. See notice here. The agreement for the new Court has been signed by all the stakeholders in the district, and can be found here: 

   Many folks have worked long and hard to make this agreement a reality, but as Chief Judge Hamilton notes, much credit goes to the “tireless efforts of our immediate past Chief Judge, Claudia Wilken.”   

   Look for more details on the new Court this spring as enrollment and staffing get up and off the ground.

Image of fractured glass from http://joanwz.hubpages.com/hub/PlexiglassVsTemperedGlass#slide6421188

Image of the Honorable Judge Claudia Wilken from https://www.acbanet.org/UserFiles/images/Photo%20Album/JusticeForAll_2012/JFA2012web_226.jpg

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

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Case o' The Week: Ninth Hears Us on Being Heard, and Hears Us Out (then denies . . . ) - Dunn and Crack Resentencing

 With the Supreme Court (arguably) slashing away at appellate jurisdiction, for defendants seeking relief on crack re-sentencing just getting to the Ninth is half the fun. 

 United States v. Dunn, 2013 WL 4767357 (9th Cir. Sept. 6, 2013), decision available here.

Players: Decision by Judge Milan Smith, joined by D.J. Anello. Concurrence by Judge O’Scannlain. Hard-fought appeal by ND Cal CJA Counsel Mark Goldrosen.

Facts: Dunn sold crack to an undercover agent, near a school, while on supervised release. Id. at *1. The district court imposed a 100 month sentence on the crack case; Dunn didn’t appeal. Id. 

  In 2010, Congress passed the Fair Sentencing Act (FSA) that lowered Dunn’s crack guidelines to 77-96 months. Id. at *2. While in prison, Dunn took advantage of educational opportunities, got transferred to a lower security facility, and offered his kidney to his ailing brother. Id. 

  Dunn moved to reduce his crack cocaine sentence under the F.S.A., emphasizing his post-convictions efforts. Id. The district judge denied that motion, and Dunn appealed the discretionary denial of a reduced sentence. Id. at *2.

Issue(s): “We first must decide whether we have jurisdiction to review the district’s court’ denial of Dunn’s motion for a § 3582(c)(2) sentence reduction.” Id. at *3. “As applied in this case, the pertinent inquiry is whether the reasoning or theory of [the Supreme Court’s decision in Dillon] regarding the extension of Booker to § 3582(c)(2) proceedings is clearly irreconcilable with [the Ninth Circuit’s earlier] decision in Colson [permitting appellate review of § 3582(c)(2) proceedings in their entirety].” Id. at *4.  

Held: “We conclude that Dillon does not clearly conflict with Colson because: (1) Dillon is not ‘closely on point’ with regard to the jurisdictional question at issue, and (2) Dillon does not revise the reasonableness standard under Booker.” Id. at *4. “We hold that we have jurisdiction to review § 3582(c)(2) discretionary decisions under . . . Colson, which is not ‘clearly irreconcilable’ with Dillon. Miller v. Gammie, 335 F.3d 889, 989 (9th Cir. 2003) (en banc).” Id. at *1.

Of Note: Judge M. Smith ultimately denies the defendant’s appeal in Dunn and upholds the district’s court refusal to resentence lower. While disappointing, other aspects of the case are of more interest.

 Judge Smith spends most of his time wrestling with a question that comes up frequently: what happens when the Ninth holds one way, the Supremes later (arguably) hold another, and the en banc Circuit Court hasn’t yet revisited the original decision? That’s a Miller v. Gammie problem, and is a problem that arises surprisingly often. (The Supremes have yet to fully appreciate the wisdom of the Ninth’s ways). 

  The rule is this: a three-judge panel can only change course from the Ninth’s previous decision when the Ninth law is “clearly irreconcilable” with the Supreme’s. That question is the heart of Dunn, and Judge Smith spends much of the opinion wrestling with whether the intervening Supreme Court decision in Dillon really conflicts with the Ninth’s previous Colson case. 

  It’s an intellectually honest analysis that preserves appellate review on discretionary denials of crack reductions (for now), and an interesting chapter in the Ninth’s often uneasy relationship with the Nine.

How to Use: Ninth precedent survives, Supreme Court law doesn’t (yet) control: huzzah! Good news – in this case. In another area of evolving law, such as Apprendi and mand-mins, or the Fourth Amendment and technology, we may someday be arguing the reverse: urging a three judge panel to do the right thing and scrap moldy old Ninth law in favor of some shiny new Supreme Court holding. When that happens, remember and re-read Dunn – Judge Smith’s analysis and interpretation of Miller v. Gammie can cut both ways.

                                               

For Further Reading: It is 1.1 miles from S.F.’s Moscone Center – where A.G. Holder announced the DOJ’s new drug policies – to SF’s Federal Building, where AUSAs make charging decisions. Has the Holder Memo made the distance yet? For a great article on the real distance between the Memo’s goals and cases in the trenches, see article in The Atlantic here.

Image of Cunard poster from http://farm4.staticflickr.com/3243/3125825374_1cec14c579.jpg

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

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