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

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Case o' The Week: Silver clouds and black linings - Rodriguez and Review of Title III Wiretap Applications and Orders

   The good news? The Ninth imposes a new (and higher) two-step standard on the district courts, when reviewing Title III wiretap applications and orders.

  (The bad news? The Ninth finds the government meets that standard, here).

United States v. Rodriguez, 2017 WL 971809 (9th Cir. Mar. 14, 2017), decision available here.

Players: Decision by visiting D.C. District Judge Friedman, joined by Judges Paez and Tashima.

Facts: Several district judges granted wiretap orders targeting Rodriguez and an alleged Mexican Mafia drug conspiracy. 

  Drug charges were eventually filed in the court of the third, presiding district judge. The third DJ reviewed the entire wiretap motion using only the (deferential) abuse of discretion standard, then denied the motion. Id. at *4. 

  The government filed an § 851 prior. Id. at *8-*9. Rodriguez was convicted after a trial and was sentenced to 600 months. Id. at *1.

Issue(s): “[Rodriguez] argues that the district court erred because it applied the incorrect standard of review when deciding his motion to suppress and that the government's wiretap application did not include a full and complete statement of facts as required by 18 U.S.C. § 2518(1)(c).” Id. at *1.

  “[  ] Rodriguez argues that the district court erred by deciding his motion to suppress under an abuse of discretion standard and improperly deferring to the issuing judge, rather than conducting its own independent review of whether the wiretap affidavits contained a full and complete statement of facts sufficient to satisfy 18 U.S.C. § 2518(1)(c).” Id. at *3.

Held: “When we review a district court’s decision on a motion to suppress wiretap evidence, we determine de novo whether the information in an affiant’s application for a wiretap amounts to ‘a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous. . . . If the wiretap application meets the requirements of § 2518(1)(c), then the Court reviews for abuse of discretion the issuing court’s finding that the wiretap was necessary under § 2518(3)(c) and its decision to grant the wiretap.” Id. at *3.

 “We conclude that district courts should apply the Ninth Circuit’s two-step approach when considering a motion to suppress wiretap evidence. Therefore, a reviewing district court judge must review de novo whether the application for a wiretap contains a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous . . . . If the wiretap application meets these requirements . . ., then the district court judge should review for abuse of discretion the issuing judge’s conclusion that the wiretap was necessary.” Id. at *4 (internal quotations and citations omitted).

Of Note: The good news is that Rodriguez’s two-step process is a far better approach than the more deferential review often applied by district courts. Moreover, the Ninth questions the lack of meaningful factual review below, and the DJ's improper deference to the “half century of judicial experience” of the judges who issued the Title III orders. Id. at *4.

  The bad news is that the Ninth doesn’t remand. Instead, the Court applies this two-step approach and mows down a variety of wiretap factual challenges: failure to disclose a search condition in the application, boilerplate language, and a brief surveillance period before wiretaps were sought. Id. at *5-*9.

  For better or worse, Rodriguez’s mixed bag is now must-read before tackling a Title III challenge in the Ninth.

How to Use: Section 851 of Title 21 sets forth a detailed procedure for alleging priors triggering mand-mins in a drug case. In a very rare outcome, the Ninth reverses and remands because Rodriguez’s § 851 hearing was botched. Id. at *12.

   Judge Friedman gives a detailed description of the requirements for alleging a prior, what has to happen during the § 851 hearing, and the failure to meet the statutory requirements here. 

  As we ponder a future with more of these miserable § 851 proceedings, Rodriguez is a good place to start.

                                               

For Further Reading: Four years ago, NorCal’s own Josh Cohen asked if Title III was dead after the Rajaratnam white collar wiretap. See Josh A. Cohen, Is Title III Dead? The Future of Wiretap Challenges in the Wake of Rajaratnam, The Champion, available here. 

   Interesting to mull this helpful article again in light of Rodriguez, and query how Josh’s call for a “collective prayer – for individuals’ privacy” is being answered.

  For defense bar Norteños, this is a particularly pressing question. In the last several years, the Northern District of California has had an extraordinary wiretap boom (clustered largely in Oakland). See “For Further Reading” here. 

  The Administrative Office of the U.S. Courts reports wiretap data in July: check back this summer to see if the Feds’ eavesdropping addiction continues unabated. See AO stat link here. 

Image of Uncle Sam wiretap cartoon from http://counter-surveillance-devices.com/wp-content/uploads/2009/06/uncle_sam_wiretap.jpg

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

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Case o' The Week: Weight, weight - don't tell me. Navarrette-Aguilar & Apprendi Proof for Mand-Min Drug Quantities

   The Ninth’s New Year’s Resolution: watch the weight.

United States v. Navarrette-Aguilar, 2015 WL 9463075 (9th Cir. Dec. 28, 2015), decision available here.

Players: Great decision by Judge Paez, joined by Judges Fisher and Ikuta.

Facts: Among other crimes, Navarette was charged with conspiracy to distribute a kilo or more of heroin, which triggered a twenty-year mand-min (Navarette had a prior). Id. 

To build the case the government used information from lower-level dealers to pursue higher-level distributors. Id. Specifically, cops developed snitches to work up the chain to Navarette. The government introduced 274 grams of heroin at trial. Id. at *2. The cooperators testified about the number of times they purchased heroin from Navarette, and the quantities involved. Id. at *3. The district court and Ninth agreed that this testimony was “vague.” Id. at *4.

The jury found Navarette conspired to distribute a kilo or more. Id. at *5. In denying the Rule 29, the court found the jury could have inferred, from a pattern of dealing, a “preexisting agreement to distribute at least a kilogram of heroin.” Id. at *6.

Issue(s): “Navarrette argues that substantial evidence did not support the jury's quantity finding. The evidence of historical transactions adduced did not amount to one kilogram. Navarrette maintains that when the district court denied his motions for judgment of acquittal, it erred in determining that the pattern of transactions permitted the jury to conclude that members of the conspiracy would have eventually distributed one kilogram of heroin.” Id. at *1.

Held: “Even if some hypothetical pattern of transactions were consistent and clear enough to infer a preexisting agreement to surpass a certain quantity, such is not the pattern before us. While the testimony of [the cooperators] could prove repeated transactions over a period of eight weeks, the testimony did not show any consistency in those transactions, either with respect to amount or to frequency, from which a jury could reasonably infer an agreement to distribute a kilogram of heroin. This conclusion is underscored by the vague and equivocal nature of the testimony itself. Both witnesses at points contradicted themselves, and Burns repeatedly indicated that his memory was unreliable. Even construing the evidence in the light most favorable to the prosecution, the purchases in this case appear to have been ad hoc, and dependent on the level of demand at any given moment. . . . . 

Moreover, the testimony given at trial revealed that the whole arrangement was temporary and unstable. . . . Speculation cannot constitute substantial evidence.” Id. at *9-*10 (citation omitted).

Of Note: The Ninth upheld questioning about Navarette’s drug prior, because his sister’s testimony had “opened the door” to that evidence. Id. at *11. “Opening the door” is a particularly dangerous little concept, grounded in no evidentiary rule. See generally United States v. Wales, 977F.2d 1323, 1328-29 (9th Cir. 1992) (Kozinski, J., concurring in part.) (“This ‘opening the door’ doctrine has a certain common-sense appeal, but where is it to be found in the Rules of Evidence? I'm aware of no authority for admitting inadmissible evidence just because we think turnabout is fair play.”) 

Give Navaratte to defense witnesses, to warn of the consequences of well-meaning assertions (here, the sister volunteered that “she knew her brother was not involved in drugs).  

How to Use: Maybe Navarette would have dealt a kilo, posits the government, had the conspiracy not been interrupted? Judge Paez explains that this theory doesn’t cut it. “[T]he argument that the co-conspirators would have distributed one kilogram if it had not been interrupted potentially allows a quantity finding to stand upon what Navarrette would have continued to do, which, to the extent these hypothesized future bad acts were not captured by an agreement within the charged period, is clearly improper . . . Such a theory impermissibly invites the jury to speculate as to the amount of heroin involved in the conspiracy.” Id. at *10 (internal quotations and citations omitted). This discussion in Navaratte is a useful rejection of speculative conspiracy theories, used to stretch for mand-min drug amounts.

                                               

For Further Reading: On January 8, 2016, the Sentencing Commission will be meeting. Topics include a possible vote on the crime of violence amendment. See agenda here. 

The C.O.V. amendment to Section 4B.2 seems certain, at some point – but the big question is whether the amendment will be retroactive. For public comment on the proposed amendment, see the Commission’s page here.

Image of one Kilo from http://fof.se/tidning/2011/8/vi-vet-inte-langre-hur-tungt-ett-kilo-ska-vara

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

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