Case ' The Week: Client, Disappearing, Gets Ten at Hearing - Ornelas and Sentencing in Absentia

The Tenth's C.J., writing for the Ninth, gives ten reasons not to miss a sentencing hearing.  

  United States v. Ornelas, 2016 WL 2342363 (9th Cir. May 4, 2016), decision available here.

Hon. C.J. Tymkovich (Tenth Circuit Court of Appeals)

Players:  Decision by visiting 10th Circuit Chief Judge Timothy Tymkovich, joined by Judges Farris and M. Smith.

Facts: Ornelas had been indicted for conspiracy to distribute meth. Id. at *1. While on release, agents saw him involved in the purchase of meth. Id. He was released again, and agreed to drug testing and mental health counseling. Id. He plead to 10-years, under a plea agreement with an appellate waiver clause. Id. When agents searched his home and found meth, the MJ issued a warrant. Id. At sentencing, defense counsel appeared: Ornelas, however, did not. Id. at *2. Over defense counsel objection, the court imposed the ten year custodial term. Id.

Issue(s): “Ornelas acknowledges that his appeal waiver explicitly covers the circumstances here because his sentence was not above the high end of the guideline range recommended by the government. He also concedes that his plea was entered into voluntarily and knowingly. Under such circumstances, we would generally apply the appeal waiver and dismiss this appeal. See United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007). But we have recognized some exceptions to this general rule. The exception relevant here is for unlawful sentences, which we have defined as those that ‘exceed[ ] the permissible statutory penalty for the crime or violate[ ] the Constitution.’ . . . We address whether the sentence was lawful, and apply the appeal waiver if it was.” Id. at *2.

Held: “Applying this rule, we assume for purposes of this opinion that due process and [Federal Rule of Criminal Procedure] Rule 43 are coextensive, and analyze whether the district court abused its discretion—and thus violated Rule 43—when it sentenced Ornelas in absentia. It did not. The court made a fact finding that Ornelas had ‘absented himself’ from the proceedings, which is a finding of voluntary absence required by Rule 43. That finding is supported by the record.” Id. at *3.

Of Note: For the legions of good folks slugging away on Johnson § 2255 motions this Spring, Ornelas is an interesting decision on appeal waivers. As noted above, Ornelas’s plea agreement had a very explicit appellate waiver. How does the Ninth get as far as the merits? Because plea agreement waivers do not insulate unlawful sentences – those that “exceed [ ] the permissible statutory penalty for the crime or [ ] violate the Constitution.” Id. at *2. 

In Ornelas, it was the client’s constitutional due process rights that were at issue: had they been violated, the waiver would not have applied. In Johnson § 2255 motions, it is our client’s due process right not to be subject to a sentence defined by an unconstitutionally vague term: “crime of violence.” Cite Ornelas (and the seminal case, Bibler), when AUSAs waive waivers during this summer’s Johnson litigation.

How to Use: There’s a better Seventh decision that requires a court to explore any “serious questions raised about whether the defendant’s absence was knowing and voluntary.” Id. at *4, citing United States v. Achbani, 507 F.3d 598, 601 (7th Cir. 2007). The Ninth in Ornelas doesn’t reject Achbani altogether, but notes that in this case, the defense presented no evidence in the district court that explained Ornelas’ absence (drug use and ADHD were excuses presented on appeal). Id. at *4. Explore Achbani when standing alone at sentencing – and make sure to make the record for the troubled client in the district court.

                                               

For Further Reading: A public defender argues for her client at sentencing,

Las Vegas Justice of the Peace Conrad Hafen

protesting “there has to be some leniency in this department.” Las Vegas Justice of the Peace Conrad Hafen instructs her to, “be quiet.” 

When she responds, “Judge, you’re –“ the Judge orders her handcuffed, puts her in the jury box with inmates, then sentences her client to six months. 

  For accounts of the episode, see here; and here.

 For a compelling editorial on the practice of cuffing PD’s, see here

Image of the Hon. Chief Judge Timothy Tymkovich (10th Circuit Court of Appeals) from http://www.coloradostatesman.com/wp-content/uploads/TymkovichT.jpg

Image of the Hon. Justice of the Peace Conrad Hafren from http://www.reviewjournal.com/sites/default/files/field/media/web1_WEB_rgb_JUSTICE_LV14-Hafen_2010_3.jpg

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

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Case o' The Week: Don't Do the Crime, Still Do the Time -- Christensen and non-criminal conduct for upward variance

   Have you ever lost money when you decided to “buy, buy, buy” a legitimate investment, only to watch it tank soon after? 

  Take heart -- in the Ninth, your broker can now do time. “In affirming the sentence in the present case, the majority obfuscates the fact that is apparent from any fair reading of the record: the district court based its above-guidelines sentence on investor losses not caused by Christensen’s criminal conduct.” United States v. Christensen, 2013 WL 5583827, *10 (9th Cir. Oct. 11, 2013) (Tashima, J., dissenting) (emphasis added), decision available here.

Players: Decision by visiting, Senior, D.J. Safford (N.D. Fla.), joined by Judge Bybee. Vigorous and compelling dissent by Judge Tashima.

Facts: Christensen defrauded folks in real estate investments. Id. at *1. Some investors were older, some were friends of the defendant, several victims had reported negative life events because of the losses – such as divorce. Id. at *2-*3. Christensen used above half of the fraudulent proceeds for personal expenses. Id. at *2. Many of the investors who lost money, however, and much of the money lost, was due to bad investments or bad luck: the funds weren’t fraudulently diverted. Id. at *6. The parties and Probation all agreed on the criminal loss amount. Id. at *1. Christensen pleaded pursuant to an Information, to a deal that jointly recommended a correct guideline sentence of 33 months. Id. at *1. 

  The district court busted the deal, and varied upward nearly double from the joint guideline recommendation to sixty months in custody. Id. at *1. Much of the rationale for that upward variance was victim complaints on the impact on the losses on their lives – although much of those losses were simply investments gone bad, and not criminal diversion of funds. Id. at *3.

Issue(s): Were the “’life-destroying impacts’ [of the victims’ losses] proper for the district court to consider even if not tied to the loss Christensen caused by misappropriating investor funds[?]” Id. at *8 (emphasis added). [Or, as put by dissenting Judge Tashima, can a district court impose “an upward variance based on non-criminal conduct[?]” Id. at *14 (Tashima, J. dissenting).

Held: “These ‘life-destroying impacts,’ supported by victim statements, provide greater insight into Christensen’s ‘background, character, and conduct’ that the district court was entitled to rely on in determining that for a specified loss resulting from criminal conduct, the Guidelines did not adequately account for the seriousness of Christensen’s offense, provide adequate deterrence, or sufficiently protect the public and innocent investors from the infliction of further harm at the hands of Christensen.” Id. at *7.

Of Note: This is an enormously troubling decision. Either the sentencing court simply made a mistake in attributing all of the victims’ woes to fraudulent losses, or Christensen is now serving twice as much time in federal prison because his investors lost money in legal, legitimate investments. 

  Judge Tashima calls it like he sees it – he complains “the majority paints a grossly distorted picture of the district court’s decisionmaking process.” Id. at *15 (Tashima, J., dissenting). Judge Tashima sounds the alarm at the new Ninth law – that an upward variance can be imposed for non-criminal conduct! Id. at *14. He rejects as “patently absurd” the argument that the language of Section 3661 permits non-criminal conduct to be used for an upward variance – if that was the case, a defendant could get a higher sentence for his “eating or dressing habits, the tradition or school of yoga he favors, or the regularity with which he recycles.” Id. at *15.  

  It is a pointed, thoughtful, and convincing dissent that should trigger en banc interest.

How to Use: Even the government in Christensen “expressly disclaimed reliance on any notion that the district court could permissibly base its upward variance on non-criminal conduct.” Id. at *13 (Tashima, J., dissenting). Yet the majority digs in, expressly endorsing non-criminal conduct as a fair game for an upward departure. Id. at *7 & n.2. Object and object again if non-criminal conduct appears in the rationale for an upward variance – the last chapter on this peculiar sentencing twist has not yet been written.  

                                               

For Further Reading: The Continuing Resolution that passed last week included a $26 million anomaly for Defender Services. That bump helps pay for deferred CJA vouchers, and ensures new vouchers submitted during the CR period can be paid. See Fact Sheet here. 

   We need an additional anomaly of over $50 million this winter to restore the Defender Services account to some semblance of normalcy.

Image of investment advisor Jim Cramer from http://www.v3im.com/2012/03/linkedins-growth-fuels-a-buy-from-goldman/#axzz2iD9jFJsF

Image of prisoner doing yoga from http://images.elephantjournal.com/wp-content/uploads/2012/02/MG_8943.jpg

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

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