Case o' The Week: Marriage is a Dangerous Thing - Mayea-Pulido and Equal Protection Challenges to Immigration Statutes

  Defendant guilty, because parents remained married.

United States v. Mayea-Pulido, 2020 WL 35963 (9th Cir. Jan. 3, 2020), decision available here.

Players: Decision by Judge Friedland, joined by Judge M. Smith and DJ Bastian. 

  Hard-fought appeal by AFD Kara Hartzler, Fed. Defenders of San Diego, Inc.

Facts: Mayea-Pulido, the son of unmarried Mexican nationals, was born in Mexico. Id. at *2. He and his parents moved to the U.S. shortly after his birth. His parents married, and his father became a naturalized U.S. citizen. 

   Mayea became a lawful permanent resident (“LPR”), but never applied for citizenship. His mother, who remained married to his father, also never applied for citizenship. Id. 

  At the time Mayea-Pulido turned 18, the immigration statute conferred automatic citizenship if both of the child’s parents had previously naturalized. Id. There were exceptions: for example, in the event of separation one naturalized parent sufficed. Mayea did not meet any of these exceptions, and he remained a non-citizen. Id. 

  As he grew older, Mayea-Pulido was convicted of crimes, his LPR status was revoked, and he was removed and reentered multiple times. Ultimately he was charged with a § 1326 offense and went to trial. Id. Mayea-Pulido moved for judgment of acquittal, arguing that the immigration statute was unconstitutional. Id. at *3. He argued that he would have been a citizen if his married parents had been legally separated (where he would have obtained citizenship from his father). Id. 

  His motion was denied, he was convicted, and appealed. Id.

Issue(s): “Luis Mayea-Pulido challenges his conviction for illegal reentry, which he contends is invalid because he is not an ‘alien’ who could be guilty of that crime. Mayea argues that he should have automatically become a . . . citizen as a result of the naturalization of one of his parents prior to the reentry in question. But because his parents were married, and the derivative citizenship statute at 8 U.S.C. § 1432(a) (1996) required married parents to both naturalize to confer citizenship to their child, he did not become a citizen. Mayea argues that, by making his parents’ marital status a factor in the derivative citizenship determination, § 1432(a) violates the Constitution’s equal protection guarantee.” Id. at *1.

  “In Mayea’s telling, this statutory scheme impermissibly discriminates on the basis of parental marital status by allowing the children of legally separated parents to become U.S. citizens more easily than the children of non-separated parents.” Id. at *4. 1

Held: “We disagree and affirm Mayea’s conviction.” Id. at *1.

Of Note: The Ninth previously rejected a similar challenge. See Barthelemy v. Ashcroft, 329 F.3d 1062 (9th Cir. 2003). Id. at *4. Why another opinion now? Because AFD Kara Hartzler cleverly renewed the attack after Sessions v. Morales-Santana, 137 S.Ct. 1678 (2017). Id. In Morales-Santana, SCOTUS rejected a statutory scheme that imposed different requirements on unwed mothers, and unwed fathers, for conferring citizenship of a child born abroad. Id. at *4. Because the statute differentiated based on gender, the Court applied heightened scrutiny and found an equal protection violation. Id. at *5.

  The Ninth, unfortunately, was unpersuaded: applying rational basis review to this statute, it rejected this equal protection challenge. Id. at *8.

How to Use: In Barthelemy, immigration statutes were given deference and subject to mere rational basis review. In Mayea-Pulido, Judge Friedland agrees that approach now longer flies: immigration statutes can now be subject to heightened scrutiny – a useful opening for future EP challenges. Id. at *5-*6.

                                               

For Further Reading: Remember the remarkable “Safe Schools” litigation? San Francisco has finally agreed to settle civil claims brought by the victims of these race-based arrests, made in San Francisco's Tenderloin. See, San Francisco Settles Suit Over Racially Biased Drug Arrests for $225k, available here. 

  Interesting that this civil case settles just as waves of Hondurans are now targeted for small-scale drug scales in the new “Federal Initiative for the Tenderloin.” See press release on “FIT” here. 

Image of wedding cake topper from https://www.amazon.com/Wedding-cake-topper-couple-little/dp/B06VVZF1VC

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

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Case o' The Week: Ninth Mulls Geometric Skeptics - Rodriguez Gamboa and Lorenzo Challenges to Cal H&S Section 11378

  Feds attack California’s efforts to criminalize meth.

United States v. Rodriguez-Gamboa, 2019 WL 7206435 (9th Cir. Dec. 27, 2019), decision available here.

Players: Decision by Judge Hurwitz, joined by Judge Wardlaw and DJ Bataillon. 

  Righteous fight by CD Cal AFPD David Menninger.  

Facts: Rodriguez-Gamboa, a Mexican national, was removed after sustaining what she was told was an agg felony: possession of meth for sale, in violation of California Health & Safety Code § 11378. Id. at *2.

 She reentered the U.S. without inspection, was charged with illegal reentry in violation of 8 USC § 1326, and pleaded guilty. Id.

  The Ninth then held in “Lorenzo I” that § 11378 does not qualify as a “controlled substance offense” under the immigration statute, because the California statute applied to both “optical and geometric isomers” of meth. Id. See generally Lorenzo Blog entry here. 

  Rodriguez withdrew her plea. Government experts then declared that geometric isomers of meth do not, in fact, exist. Id. at *3. Relying on Lorenzo I, the district court dismissed the Information: the government appealed. Along the way, the Ninth replaced Lorenzo I with Lorenzo II, a mem dispo that arrived at the same result at Lorenzo I. Id. at *1.   

Issue(s): “We are asked to decide whether the definition of methamphetamine under California law is broader than the definition under corresponding federal law. The issue is pivotal in this case because . . . Rodriguez-Gamboa did not commit illegal reentry under 8 U.S.C. § 1326 if the California law is categorically broader than the federal one.” Id. at *1.

Held: “The government’s argument rests entirely on its factual assertion that the geometric isomer of methamphetamine does not exist. But, the district court never made such a finding, and we cannot do so for the first time on appeal. . . . . Because resolution of the factual issue of whether geometric isomers of methamphetamine exist has the potential to inform our disposition of this appeal and future cases, we remand to the district court for the limited purpose of resolving that evidentiary issue in the first instance. The panel will retain jurisdiction over the appeal and address its merits after the district court reports its factual findings.” Id. at *4. (internal citation and footnote omitted).

Of Note: Rodriguez-Gamboa is fascinating, because it highlights one of many tensions in the categorical analysis. The government argues that there is no “realistic probability” that Rodriguez was convicted of a broader “geometric isomer” offense in California, because such geometric isomers do not exist.

  Rodriguez shrugs, and points to the literal text of the California statute – a state law indisputably broader than the federal offense, because it criminalizes isomers not covered by the feds. Id. at *4.

  The Ninth resolves this tension by, well, putting if off for another day. After the district court does some fact-finding on geometric isomers, the same Ninth panel will then tackle the question. Until that dust settles, continue to preserve Lorenzo challenges to § 11378 priors.   

How to Use: A threshold appellate issue was whether Rodriguez should have been allowed to withdraw her guilty plea. Judge Hurwitz makes short work of that question. Fed. R. Crim. Proc. 11(d)(2)(B) permits a district court to allow a defendant to withdraw a guilty plea. A defendant has to show a “fair and just reason” for requesting the withdrawal. Id. at *3. “A change in the law can justify withdrawal of a plea,” id., -- and Lorenzo I fit the bill. Remember Rodriguez-Gamboa when changes in law makes a plea agreement less attractive.

                                               

For Further Reading: Do new Trump appointees await the Ninth in the New Year? 2020 will begin with ten Trump jurists on the Ninth (as Judge VanDyke takes Senior Judge Bybee’s seat). See Seniority List here.

 A trio of active Bush appointees remain in the Circuit: Judges Callahan, Milan Smith, and Ikuta. See Federal Bar Association summary here. 

Image of vintage USAF Poster from https://imgur.com/r/vintageads/liQ7BBN

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

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Case o' The Week: Ninth's Decision is Clear and Convincing -- Valle and Sentencing Standard of Proof

Hon. Judge Michelle Friedland

  Judge Friedland decides a continuous, ten year, debate. United States v. Valle, 2019 WL 5058604 (9th Cir. Oct. 9, 2019), decision available here.

Players: Decision by Judge Friedland, joined by Judge M. Smith and DJ Bastian. 

  Very nice victory for Deputy Federal Public Defender Brianna Mircheff, C.D. Ca. FPD.   

Facts: In ’98 and 2000, Valle was convicted of drug felonies and removed from the U.S. Id. In 2004, Valle was arrested for a DUI in California, but was not convicted or removed. Id. at *2.

  In 2017, Valle was again arrested by local police, he was charged with illegal reentry, and plead guilty. Id. The guidelines carried additional enhancements if his state drug convictions were within ten and fifteen years “of the start of his illegal reentry offense.” Id.

  Over defense objection, the PSR started the clock at the 2004 DUI arrest, despite the fact that there was no evidence about how many times Valle had departed and reentered the U.S. since that date. Id. This “start date” issue made a 30+ month difference in the guideline range, from the defense’s view of a range of 1-7 months to a PSR-urged term of over three years. Id.

  The government agreed with the PSR, and argued Valle’s previous use of California addresses and his family ties created a sufficient inference to conclude that he had continuously been in the US since 2004. Id. at *3. The district court agreed. Id. The court held as a matter of law that Valle’s continuous presence in the United States was not required [a legal error], and found that under a “preponderance of evidence” standard Valle had continuously been in the US from ‘04. Id. at *3 and *6.

  The court imposed a guideline sentence of 37 months. Id. at *3.

Issue(s): “This appeal requires us to evaluate the Government’s burden of proof in demonstrating the applicability of sentencing enhancements for an illegal reentry crime. Specifically, we consider whether the Government can establish by clear and convincing evidence a non-citizen’s continuous presence in the United States since the alleged time of reentry without submitting any direct evidence of where the non-citizen was for more than a decade.” Id. at *1.

Held: “We hold that it cannot. We give some weight to the inference that a non-citizen who had previously returned after being removed and who had family in the United States would have made efforts to stay in the country. But that inference is not enough to carry the Government’s burden here to prove the thirteen years of continuous presence in the United States necessary to support the enhancements applied to . . . Valle’s sentence. We therefore vacate and remand to the district court for resentencing.” Id.

  “[B]ecause it was the Government’s significant burden to prove that Valle was continuously present, and it produced no evidence whatsoever about where he was for over a decade, the district court clearly erred in concluding that the Government had sufficiently proven that he remained in the United States.” Id. at *8.

Of Note: Valle won for now, the Ninth pointed to lower guidelines, but so what? Won’t the government just scrape together evidence of “continuous presence,” for re-sentencing?

  Nope!

  In a great holding, Judge Friedland concludes that because the government “failed to carry its burden despite an extensive factual inquiry below, it is not entitled to “a second bite at the apple.” Id. at *8. (internal citations and quotations omitted). Valle’s new range is 1-7, he’s been in for twenty, so the mandate was ordered transmitted “without delay” for immediate resentencing. Valle “second bite” holding is an interesting arrow for our appellate quivers.

How to Use: The key to this victory is the Ninth’s holding that the government’s sentencing burden was not by a preponderance, but by the higher “clear and convincing” standard. See id. at *4 - *5. In so doing, Judge Friedland carefully distinguishes other “preponderance” decisions. Id. at *5. Her analysis is invaluable for our future “clear and convincing” efforts -- turn to Valle when hunting for a heightened sentencing standard.  

                                               

For Further Reading: One out of three federal defendants sentenced last year was convicted of an immigration offense. 

So reports the Sentencing Commission, in its 2018 Annual Report. For a quick summary of the Feds’ new focus, see  article here. 

Image of the Honorable Judge Michelle Friedland from https://www.sfgate.com/nation/article/Court-hints-at-keeping-Trump-order-on-hold-10915838.php#photo-12331414

Pie chart of federal sentencing in 2018 from 2018 Annual Report and Sourcebook of Federal Sentencing Statistics. , reproduced here: https://www.washingtonexaminer.com/washington-secrets/feds-immigration-top-us-crime-one-third-of-all-sentencings

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

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Case o' The Week: Of Weird Hairdos (and Batson, too) - Hernandez-Quintania and Prima Facie showings for Batson challenges

 “On its face” (prima facie), an AUSA struck two minority jurors.

  (But turns out the Ninth wants a little more facie in its prima).

    United States v. Hernandez-Quintania, 2017 WL 5103671(9th Cir. Nov. 3, 2017), decision available here.

Players: Decision by visiting Chief D.J. Freudenthal, joined by Judges W. Fletcher and Ikuta. 

  Hard fought appeal by Ass’t Fed. Defender Doug Keller, Federal Defenders of San Diego, Inc.

Facts: Hernandez-Quintania, an undocumented alien was removed repeatedly to Mexico then found in California. Id. at *1.

  At the § 1326 trial, half of the venire “appeared to be minorities,” (said the court). The defense struck four minorities. Id. at *5.

  When the AUSA struck two minority jurors the defense raised a Batson challenge. Id.

  (Recall that the Supreme Court has explained in Foster v. Chatman that Batson is a three-step process:

   1. A prima facie showing by the defense;

   2. If that showing is made, a race-neutral basis for striking required from the government; then

   3. A judicial finding on whether there was purposeful discrimination.)

Id. at *3.

  The court stopped at Batson Step One, and found that the defense had not made a prima facie case. In the course of its Batson analysis, the district court opined that it was a “very mixed” jury composition, including “One guy, Number 3” who “has a weird hairdo from my perspective.” Id. at *4.

  Hernandez-Quintania was convicted.

Issue(s): “Hernandez–Quintania challenges the district court’s finding that he did not make a prima facie showing for his Batson challenge. . . .  Id. at *3.   

  “Hernandez–Quintania argues the district court committed a structural error when it impermissibly speculated as to the race-neutral reasons the prosecutor might have had for striking the juror. [He] also argues the district court misapplied the standard at step one.” Id. at *4.

Held: “Hernandez–Quintania did not argue that the two jurors who appeared to be minorities were questioned differently, that the government exercised a pattern of striking apparent minority panel members, that the government struck a large number of panel members from the same racial group, or that the jury composition was disproportionate because of the strikes. In fact, the record demonstrates that the jury contained six apparent minority jurors and that Hernandez–Quintania struck more minority jurors than the government. The totality of the circumstances does not raise an inference that the government’s challenges were racially motivated.

  Hernandez–Quintania also argues the district court erroneously ‘raised’ the prima facie bar by stating, ‘I have to be convinced that it's at least—I won't say likely, but plausible that he was removed solely because of his minority status. And here, I couldn't reach that conclusion at all[.]’ This passing remark does not alter the record, which supports the district court's finding that Hernandez–Quintania failed to offer any support or argument that the government's challenges were racially motivated.” Id. at *5.

Of Note: A different, lead issue in Herndandez-Quintania relates to § 1326 defenses. At trial an agent made reference to the fact that way back in ’04, Hernandez-Quintania had applied for admission. Id. at *2. The government did not, however, introduce at trial any evidence of the outcome of that application, or that the defendant had not reapplied for admission in the removals and reentries after 2004. Id. On appeal, the defense argued these failures of proof barred conviction on this 2016 “found in” case. Id.

  In what appears to be a holding of first impression for the Ninth, visiting Chief D.J. Freudenthal concludes that the “consent to reapply” must come after the most recent deportation.” Id. at *3.  Another rule for the tome of remarkably complex immigration / reentry jurisprudence.

How to Use: Defense counsel played the cards that they drew in this case, but the opinion illustrates the dangers of the fuzzy “totality” review of Batson challenges on appeal. If possible, sharpen initial Batson challenges with something more than just the race of the struck juror to sharpen that prima facie showing.     

                                               

For Further Reading: Batson remains as sadly topical as ever. Last June, the California Supreme Court overturned attempted murder convictions for the exclusion of Latinos from a Kern County jury (for the first time in sixteen years!) See California’s top court overturns convictions because prosecutor excluded Latinos from jury, available here.

Image of hairdo from https://i.ytimg.com/vi/nI_lXmvbV9A/hqdefault.jpg

Steven Kalar, Federal Public Defender, Northern District of California. Website at www.ndcalfpd.org

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Case o' The Week: Ninth Not Keen on Gray Primer - Hernandez Martinez and the New(ish) Illegal Reentry Guideline

 The Ninth finds a little light, amongst the gray.

United States v. Hernandez Martinez, 2017 WL 4080481 (9th Cir. Sept. 15, 2017), decision available here.

Players: Decision by Judge Ikuta, joined by Judges W. Fletcher and DJ Barker. Nice win for Deputy Federal P.D. James Locklin, Central District of California.

Facts: After pleading guilty to illegal reentry in violation of 8 USC § 1326, Hernandez Martinez received the +8 OL bump at sentencing for having had a “two year or more” felony sentence before he was removed the first time. Id. at *1 (citing USSG § 2L1.2(b)(2)(B) (Nov. 1, 2016), see Guideline here. 

  Actually, he had been convicted a felony and received a 365 day sentence with probation to follow, before removal. Id. After that California conviction, he was deported, reentered, his probation was revoked, and he was then was sentenced to three years. Id.

  In other words:

  Cali felony conviction w/ 365 day sentence => 
  Removal => 
  Reentry => 
  Revocation of Cali probation, and three year sentence.

  
At the federal, § 1326 sentencing, Hernandez objected to the eight offense level guideline increase, because his original Cali felony sentence was under two years before he was first deported. Id. at *2.

  The district court rejected Martinez’s objection and imposed the guideline increase. Id.

Issue(s): “Hernandez Martinez argues that the district court erred in applying this enhancement. Although Hernandez Martinez sustained a felony conviction before he was first ordered deported, he was sentenced to only one year of incarceration before his first deportation order; the sentence was increased to three years of incarceration after he returned to the United States.” Id. at *1.

  “The question presented here is whether the phrase ‘sentence imposed’ includes terms of imprisonment that were imposed after the defendant’s first deportation order when assessing the defendant’s eligibility for the § 2L1.2(b)(2)(B) enhancement.” Id. at *3.

Held: “We conclude that Hernandez Martinez’s conviction did not qualify for the eight-level enhancement under § 2L1.2(b)(2)(B), and we therefore vacate the sentence and remand for sentencing.” Id. at *1.

  “We conclude that when viewed in its historical context, the amended § 2L1.2(b)(2)(B) is best read as carrying forward the Commission’s prior, unambiguous conclusions that a qualifying sentence must be imposed before the defendant’s first deportation or removal.” Id. at *6.

Of Note: The Ninth got it right. The Fifth got it right. See id. at *5. So who got this new guideline wrong? The Office of General Counsel, for the Sentencing Commission. In its 2016 Primer on Immigration Guidelines, the Primer opined that revocation sentences after removal “counted” towards the "sentence" requirement for the offense level bump. See id. at *6, n.2; see also Immigration Primer here, at 24-25.

  “Meh,” sniffs the Ninth: “The Primer expressly disavows the authority to represent the official position of the Commission . . . and its unreasoned interpretation lacks persuasive power.” Id. (internal quotations and citation omitted).

  A handy footnote, when the proclamations of Commission staff run contrary to your argument.

How to Use: Interpreting the guidelines just required old-fashioned, “ordinary statutory interpretation.” Id. at *2. Hernandez-Martinez adds an arrow to that analytical quiver. In essence, Judge Ikuta explains that if the Commission intends a change to the status quo, it must plainly explain that is what it wants. Id. at *5. Language disappearing in an amended guideline, alone, isn’t enough. Id.

  An interesting concept to mull, as Johnson warriors explore the boundaries of the new(ish) Career Offender definitions. See USSG § 4B1.2, Nov. 1, 2016 (available here).  

                                               

For Further Reading: Whither the Sentencing Commission?

  In August 2017, Attorney General Sessions urged the White House to nominate Eastern District of Virginia District Judge Henry “Hang ‘Em High” Hudson as a Sentencing Commissioner. See article here. 

  (That whole guideline “status quo” thing is sounding pretty good . . . )

Image of Nov. 1, 2016 Sentencing Manual from https://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2016/2016GLMCover.jpg

Image of “Hang ‘Em High” Movie poster from http://omstout.com/wp-content/uploads/2013/09/hang-em-high.jpg

Steven Kalar, Federal Public Defender Northern District of California. Website at www.ndcalfpd.org

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Case o' The Week: Frustrated with the Whole Endeavor - Martinez-Lopez and Indivisible vs. Divisible Statutes

“Concurring in part and dissenting in part, but frustrated with the whole endeavor.”

   Judge Bybee’s candid assessment is a good preview for the Ninth’s latest foray into Taylor categorical / modified categorical sentencing.

  United States v. Martinez-Lopez, 2017 WL 3203552 (9th Cir. July 28, 2017) (en banc) decision available here.

Earl Warren Building, home of the California Supreme Court, San Francisco, California

Players: Decision by Judge Tallman, joined by Judges Kozinski, O’Scannlain, McKeown, Clifton, Bybee, Callahan and Bea.

  Judge Berzon, CJ Thomas, and Judge Reinhardt concurring in part. Partial concurrence and partial dissent by Judge Bybee. 

  Judges Reinhardt and CJ Thomas dissenting in part.

  Hard fought appeal by CD Cal Deputy Public Defenders David Menninger and Matthew Larsen, with Defender amicus by Assistant Federal Defenders Vincent Brunkow and Kara Hartzler, Federal Defenders of San Diego, Inc.

Facts: Mr. Martinez-Lopez was convicted of illegal reentry following deportation, in violation of 8 USC § 1326. Id. at *2. The court treated a California H&S Code § 11352 (drug prior) as divisible, employed the modified categorical approach, determined it was a +16 offense level offense under (the old) reentry guidelines, and sentenced him to 77 months. Id.

  The case went on banc: during the litigation the Supreme Court decided Mathis v. United States, 136 S. Ct. 2243 (2016).

Issue(s): “We took this case en banc to revisit the divisibility of California drug statutes.” Id. at *1.

  “On appeal, Martinez-Lopez argues that section 11352 is indivisible with regard to both its controlled substance requirement and its actus rea requirement.” Id. at *2.

Held: “We disagree, and conclude that both requirements are elements under Mathis, thus rendering section 11352 divisible and subject to the modified categorical approach. Because Martinez-Lopez previously pled guilty to selling cocaine, which qualifies as a drug trafficking offense under the guidelines . . . we affirm.” Id. at *2.

Of Note: What are the elements of § 11352? On that answer much hinges: elements determine the "divisibility" of a statute, and divisibility determines whether a federal court can muck about prior conviction records in a modified categorical approach (which translates into radically more time for our clients). 

  Judge Berzon, an expert in this area of law (see Descamps), balks at Judge Tallman’s categorization of the actus rea component of § 11352 as an “element.” See id. at *9 (Berzon, J., concurring). A majority of the California Supreme Court did not so hold in People v. Patterson, 778 P.2d 549 (1989), id. at *12, and nary a single Cali court has cited Patterson for the proposition claimed in the majority opinion, id. at *13. 

  In a recommendation that would do a Federalist proud, Judge Berzon suggests that the Ninth Circuit not presume to tell the State of California what California law means. Instead, the Ninth should ask. Id. at *19.

   Penning this from the federal building in San Francisco, across the street from the home of the California Supreme Court, the irony of this dilemma is palpable. The

Tenderloin Neighbors: the California Supreme Court, and the Ninth Circuit Court of Appeals

California Supreme Court is a whopping .4 miles from the Ninth Circuit, here in the City by the Bay. The Justices and Judges could have trudged through the Tenderloin, met at Philz, and hashed it out over a cup of joe. Or, as Judge Berzon less flippantly suggested, the Ninth could have certified this state law issue to the Cal Supreme Court for a definitive answer on whether the actus rea in Cal H&S Code § 11352 is a means, or an element. Id. at *20.

  Recall that Judge Berzon’s formidable arguments in Aguila Montes de Oca ultimately prevailed in Descamps. Knock wood that SCOTUS again recognizes that she has the better argument in Martinez-Lopez.

How to Use: When this case went en banc we mused a bit about the potential downstream effects of Martinez-Lopez. See blog entry here. 

  As to the immediate impact, note that Martinez-Lopez was sentenced under the November 1, 2012 edition of the guidelines. Id. at *2 & n.2. The November 1, 2016 (current) version of this guideline, § 2L1.2, is no longer plagued with this specific offense adjustment. See USSG Sec. 2L-X (Nov. 1, 2016), available here.

     Like the recent Chavez-Cuevas case, , Martinez-Lopez is, in some sense, an instant relic – it involves a guideline which no longer exists.

                                               

For Further Reading: When Martinez-Lopez went en banc, we also wondered what impact the (at that point unknown) Ninth Justice would have on the Supreme Court’s Taylor jurisprudence. See blog entry here. 

  Now, with Justice Gorsuch on the Court, it is worth a revisit to Professor Evan Lee’s thoughtful post on the tight SCOTUS majority in Mathis (and the potential impact of a fed-up Kennedy on the Taylor line of law). See SCOTUS blog here. 

Image of California Supreme Court from https://upload.wikimedia.org/wikipedia/commons/thumb/3/3d/Earl_Warren_Building_%28San_Francisco%29.JPG/1200px-Earl_Warren_Building_%28San_Francisco%29.JPG

Image of the walk from the Ninth Circuit Court of Appeals to the California Supreme Court, in San Francisco, from Google Maps.

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

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Case o' The Week: Of Articles IIIs and Guilty Pleas - Chavez-Cuevas, Cal Penal Code 211, and "Crime of Violence"

The Hon. Judge Carlos Bea

   How does one end up serving five years in federal custody, with no trial, and no District Judge having accepted a plea of guilt?

  (Hint: The answer ain’t stacked misdemeanors).

United States v. Chavez-Cuevas, 2017 WL 2927635 (9th Cir. July 10, 2016), decision available here.

Players: Decision by Judge Bea, joined by Judges Callahan and Ikuta. 

  Hard fought appeal by AFDs Alana McMains and Sara Weinman, Federal Defenders of San Diego, Inc. 

Facts: Chavez-Cuevas was convicted of Cal. Penal Code § 211 robbery. Id. at *1. He was removed, and re-entered illegally to visit his sick mother. Id. Chavez-Cuevas was found, charged with § 1326, and stated his intent to plead guilty before the magistrate.

  The magistrate judge recommended that the district court accept the offered guilty plea. Id. However, “[a]t no point did the district court orally accept Chavez-Cueva’s guilty plea or address the magistrate judge’s above-discussed recommendation.” Id. at *3. The defense did not object. Id. at *3.

  The district court moved onto sentencing, and imposed a 57 month term. Id. at *1. The bulk of that guideline sentence was a sixteen level enhancement for a “crime of violence.” Id. The district court held that California Penal Code § 211 was a crime of violence, based upon the Ninth’s ’08 Becerril–Lopez decision.

Issue(s): “Chavez-Cuevas asserts that the district court erred . . . in applying a 16-level crime of violence sentencing enhancement in light of recent Supreme Court precedent purportedly in conflict with the Ninth Circuit precedent on which the district court relied.” Id.

Held: “[T]he Becerril–Lopez court’s approach complies with the rationale behind the categorical approach, which seeks to impose a sentencing enhancement only for prior crimes that were categorically crimes of violence. In considering the full range of relevant generic offenses, the Becerril–Lopez court properly analyzed exactly this question and rightly determined that while California robbery (§ 211) may be broader than two particular generic offenses, it nevertheless was categorically a crime of violence because its elements would always constitute either generic robbery or generic extortion, both of which are defined as crimes of violence in U.S.S.G. § 2L1.2(b)(1)(A)(ii). For these reasons, the district court properly relied on Becerril–Lopez to impose a 16–level sentencing enhancement.” Id. at *8.

  

Of Note: The lead issue in this case was the plea (or lack thereof). Can a defendant get five years, without an Article III district judge expressing accepting a guilty plea?

  He can now.

   Chavez-Cuevas argued that the failure of the district court to expressly accept a guilty plea was structural error. Id. at *4. Makes sense – as the Seventh has warned, Congress did not authorize D.J.’s to delegate the “vital task” of accepting a guilty plea to magistrates. Id. (quoting Harden, 758 F.3d at 891).

   Judge Bea, unfortunately, does not agree, and concludes that this issue falls into the curséd “plain error” standard of review. Id. *5. With that threshold question decided, it was short work for the panel to find no plain error. Id.

 Another frustrating chink in the eroding bulwark of structural error protections.

How to Use: N.B.: Chavez-Cuevas is instantly outdated. The decision analyzed the definition of “crime of violence” under the old 2015 § 2L1.2 guideline. The new 2016 guideline definitions narrow the definition of “extortion.” (The example used in Chavez-Cuevas wouldn’t satisfy the new extortion definition).

  For any case with a sentencing after 11/1/16, Chavez-Cuevas is a yawner: CPC § 211 robbery does not satisfy the new Guideline definition of “crime of violence.” The Ninth’s Johnson habeas warriors have already briefed this critical distinction -- make sure your court understands that Chavez-Cuevas’ CPC § 211 holding is yesterday’s news.

                                               

For Further Reading: Just last May, an en banc court of the Ninth vindicated the hard-fought litigation of the San Diego Defenders, and prohibited the indiscriminate shackling of pretrial inmates. See Sanchez-Gomez blog here. 

  The United States Marshal in Arizona, and the Arizona Magistrate Judges, seem to have concluded that this en banc decision doesn’t apply to them.

  The Ninth, apparently, disagrees.

  On Friday, the Ninth granted an injunction against the District Court of Arizona and its shackling practices, pending resolution of a mandamus filed by the Defender’s office there. See Rodrigo Zermeno-Gomez, et al v. USDC-AZP, No. 17-71867.

  Congratulations to Arizona AFPD Dan Kaplan for this important first victory: stay tuned for further developments on the Arizona FPD’s mandamus petition.

Image of the Honorable Judge Carlos Bea from https://www.c-span.org/video/?425486-1/ninth-circuit-court-appeals-judges-testify-court-restructuring at 26:47

Image of the seal of the District of Arizona from http://www.azd.uscourts.gov/sites/default/files/district_Arizona_seal_v1_AG.png

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

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