Case o' The Week: Ninth Nixes Class Action - Chavez-Diaz and Appeals after Unconditional Pleas

The Honorable Judge Daniel Bress

  Class dismissed.

United States v. Chavez-Diaz, 2020 WL 562292 (9th Cir. Feb. 5, 2020), decision available here.

Players: Decision by Judge Bress, joined by Judges Collins and Bea. 

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

Facts: Chavez-Diaz was one of the thousands of aliens swept up in the new border policies in San Diego. Charged with illegal entry, he and other aliens were segregated into separate court calendars with mass arraignments, pleas, sentencings and immediate removals. Id. at *2. He and other Section 1325 defendants were shackled during proceedings, forced to meet with counsel in the presence of U.S. Marshals in a converted garage, and suffered delays in presentment due to their detention in Border Patrol stations. Id.

  Chavez-Diaz raised equal protection and due process objections to these procedures, pleaded guilty without a plea agreement, and during the plea expressly asserted that he was “not waiving his appellate rights. He is not.” Id.

  After being sentenced by the magistrate judge he appealed to the district court. The district court held that Chavez-Diaz had not waived his constitutional challenges, but rejected them on the merits. Id.

Issue(s): “Because Chavez-Diaz did not enter a conditional plea expressly preserving his right to appeal particular issues, the threshold question in this case is whether Chavez-Diaz’s unconditional guilty plea waived his ability to raise the constitutional claims that he now advances.” Id. at *1.

Held: “We hold that Chavez-Diaz waived his right to appeal these claims, and that the district court’s conclusion otherwise rested on a misinterpretation of Class v. United States, . . . 138 S. Ct. 798 . . . (2018). We therefore reverse and remand with instructions to dismiss the appeal.” Id.

  “Chavez-Diaz through his guilty plea plainly waived his right to appeal his equal protection and due process claims. . . [T]hese are challenges to the constitutionality of case-related government conduct that takes place before the plea is entered.” . . . Chavez-Diaz waived his ability to raise these claims by pleading guilty.” Id. at *4 (internal citations and quotations omitted).

Of Note: Wait – Chavez-Diaz expressly stated that he preserved his appeal when he pleaded guilty, but the Ninth slammed shut its courthouse doors and refused to tackle the merits. Can’t he now withdraw his guilty plea as involuntary?

  Nope.

  Judge Bress concludes that despite the express assertion of appellate rights at the plea, the plea was still knowing and voluntary. Id. at *6.

How to Use: The heart of this battle is the scope of the Mena-Blackledge exception, for appeals after unconditional pleas of guilt. That exception “allows for constitutionally-based appeals – despite an unconditional guilty plea – where the appeal, if successful, would mean that the government cannot prosecute the defendant at all.” Id. at *4 (emphasis in original). It was that exception upon which SCOTUS relied in Class, where it permitted a Second Amendment appeal to move forward despite an unconditional plea of guilt.

  Judge Bress distinguishes the Supreme’s Class decision from Chavez-Dias (and limits the Mena-Blackledge exception along the way). While both Class and Chavez-Diaz involved constitutional challenges that did not contest factual guilt, in Chavez-Diaz alone the defendant could still be retried even if his constitutional claims prevailed. That fact cost Chavez-Diaz his appeal, because he entered an unconditional plea of guilt below.

  In short, if you are hoping to raise a constitutional appeal after an unconditional plea of guilt, Chavez-Diaz merits a very close read.

                                               

For Further Reading: What appeals can one take, despite an unconditional plea of guilt? For an interesting overview of the circuit split on this question, see Class v. United States: an Imperfect Application of the Menna-Blackledge Doctrine, at 78 MDLR 382 (2019), available here.

Image of the Honorable Judge Daniel Bress from https://www.wsj.com/articles/judicial-make-up-call-11569020023

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

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Case o' The Week: "Cursing the Opacity of Guidance Received from Above," Autery and Post-Booker Sentencing review

District and appellate courts after Booker and Gall are "like Hansel and Gretel, looking for the now-missing breadcrumbs that would lead us back to clarity in sentencing." United States v. Autery, __ F.3d __, No. 07-30424, 2008 WL 349801 (9th Cir. Feb. 13, 2009), decision available here. In an interesting -- and potentially, double-edged -- decision, Judge Milan Smith creates a new rule for the Ninth: appellate review for the substantive "reasonableness" of a sentence is under the abuse of discretion standard, regardless of whether there was an objection below. A decision that makes dissenting Judge Tashima want to "figuratively curse the opacity of the guidance [courts] have received from above." Id. at *12 (or, maybe, literally curse . . . .)

Players: Decision by Judge M. Smith, joined by Judge Thompson, vigorous dissent by Judge Tashima.

Facts: Autery’s possession-of-child-porn guidelines were 41-51 months. Id. at *1. He took a plea agreement and argued for low-end, while the government asked for high. Id. The district court sentenced Autery to five years probation, citing the defendant’s “redeeming personal characteristics” and need for continued family support. Id. at *2. The government didn’t object – then appealed. Id. at *2.

Issue(s): “Before deciding whether to uphold the district court’s sentence, we must first determine the appropriate standard of review under the facts presented.” Id. at *3. “Neither this circuit nor the Supreme Court has squarely addressed the proper standard of review where the appellant fails to object to the sentence’s substantive reasonableness at sentencing.” Id.

Held: “The slight majority of those courts [that have considered this issue] has held that where no objection was made to the sentence at sentencing, the court still reviews for abuse of discretion to determine whether the sentence was reasonable.” Id. at *4. “After weighing Supreme Court authority, the views of other circuits, and public policy considerations, we hold that abuse of discretion is the proper standard of review in this case." Id. at *3. “[T]he substantive reasonableness of a sentence – whether objected to or not at sentencing – is reviewed for abuse of discretion.” Id. at *5. “We further hold that the district court did not abuse that discretion in sentencing Autery to five years probation with conditions.” Id. at *12.

Of Note: Judge Milan Smith (right), a W. Bush appointee, upholds a child-porn sentence of probation. Judge Tashima (left), a Carter appointee, vigorously dissents. What gives? Autery illustrates the imprudence of predicting outcomes from a judge’s political affiliation. The opinion may also reveal that some grizzled liberals fear Scalia’s unfettered and unreviewable sentencing discretion – a fear shared by many grizzled vets in the defense bar.

Autery explains the difference between a sentence reviewed for procedural error, and one reviewed for substantive reasonableness. Id. at *3-*4. Remember that in Gall the Supreme Court explained that the standard of review for substantive reasonableness is abuse of discretion . Autery only addresses the narrow question of substantive reasonableness review when there is no objection in the district court. The new Ninth rule? Substantive reasonableness is reviewed for “abuse of discretion,” regardless of whether the parties objected in the district court.

How to Use: Judge Smith’s thoughtful recitation of each § 3553(a) factor (and how that factor could justify this probationary sentence) is a welcome template for child-porn sentencing and a vindication of our sentencing mitigation arguments. Id. at *7-*8. Moreover, as Judge Tashima notes in his dissent, Autery was actually a run-of-the mill child porn defendant – and nonetheless his whopping “variance” was upheld. Id. at *12 (Tashima, J., dissenting). Use Autery and this dissent to reassure a sentencing court that its good § 3553(a) sentence will be bullet-proof on appeal.

The problem? A bad § 3353(a) sentence will be bullet-proof on appeal. A bad judge, or bad facts, means a client’s exposure is effectively the stat-max. For those courts and cases, Autery reinforces the value of 11(c)(1)(C) deals.

Finally, note that a separate standard-of-review remains for procedural sentencing error. If you fail to object at sentencing to procedural error, you’ll plunge into the tar pit of “plain error” review on appeal. Id. at *3. Object to everything – don’t risk having your issue characterized as “procedural” and getting stuck with plain error review.

For Further Reading: Remember that recent and disappointing Gonzalez-Zotelo decision, that held it was unreasonable to impose a reduced § 3553(a) sentence given fast-track disparities in illegal reentry cases? See blog here. How can Gonzalez-Zotelo possibly be reconciled with the deference afforded in Autery? Short answer? It can’t – Hubachek cited Autery in his Gonzalez-Zotelo petition for rehearing before the ink was dry in Judge Smith’s decision. Hopefully Autery will help spark review of Gonzalez-Zotelo.


Hansel and Gretel image from http://www.allposters.com/-sp/Hansel-and-Gretel-Posters_i2833314_.htm Image of the Hon. Judge Milan Smith from http://blog.oregonlive.com/mapesonpolitics/2008/07/this_smith_brother_made_the_di.html . Image of the Hon. Judge Wallace Tashima from http://www.ruttergroup.com/txfedaut.htm



Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcal.fpd

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Case o' The Week: "Argument after the Fact" Saves Search: Lopez and Fourth Amendment

Visiting district judge Louis Pollack, E.D. Pa. (left) authors a troubling Fourth Amendment decision that salvages a bad search with an "accessory after the fact" "argument after the fact" on appeal. United States v. Hosvaldo Lopez, __ F.3d __, No. 05-30347, Slip. Op. 2913 (9th Cir. Mar. 12, 2007), decision available here.

Players: Hard fought case by AFPD Bryan Lessley of Eugene Oregon.

Facts: State cops were interviewing a witness in a drug case. Slip. Op. at 2918. A tall, thin Hispanic man drove up in a Ford, pulled a gun on the cops, tried to fire, then drove away. Id. The cops later found the abandoned Ford in a department store parking lot; eight hours later another car approached it. Id. at 2919. A woman got out and drove the abandoned Ford away; a Hispanic male drove the other car, left at another mall exit, and then followed the woman down an adjacent street. Id. Cops stopped the Hispanic male who had dropped off the woman (this defendant, Lopez), took him to a police station, and determined that he wasn’t the attempted shooter. Nonetheless, at the station they got Lopez’s consent to search car that he had been driving. The cops found money, drugs and a gun. Id. at 2920. The district court denied the suppression motion. Id. at 2920.

Issue(s): “[T]he critical question before us is whether the police had probable cause when they questioned Lopez at the police station and obtained written permission to search his car.” Id. at 2925.

Held: “We think that Lopez’s role in bringing a driver to rescue the Ford Focus, taken in conjunction with his apparent effort to follow the Fort Focus out of the parking lot, could properly have been perceived by a police officer as suspicious activity . . . . We therefore find that the police had probable cause to believe Lopez was an accessory after the fact, under 18 USC § 3, to the attempted shooter’s crime, and that the police did not act unreasonably in holding him under arrest without a warrant while they investigated further.” Id. at 2934.

Of Note: Accessory after the fact? The government did not argue this in the district court, slipped it into appellate briefs, and the theory was barely mentioned at oral argument. Yet this – dubious – theory saves the day. Read visiting district Judge Pollack’s analysis on the issue: he assures us that, “while not of overwhelming evidentiary weight,” a “reasonable” officer could assume that dropping someone off in a department store parking lot is probable cause. Id. at 294. Not a particularly reassuring assurance.

Equally bothersome is Judge Pollack’s use of Lopez’s (entirely constitutional) silence at arrest to prop up this “accessory” theory. Id. at 2933.

Yet another bad aspect of the decision is its heavy reliance on the fact that Lopez followed the woman as she drove the Focus away – yet this was apparently a busy, one-way street, and there was no other choice when exiting the parking lot. Factual faux pas like these are inevitable when the government sandbags with new “creative” P.C. theories on appeal.

District Judge Pollack is best known for his masterful, persuasive, well-reasoned and lengthy opinion rejecting fingerprint “science” – a decision which he famously reversed six weeks later. (He explained in his second opinion, “I disagree with myself.”) Hope for a similar change of heart in Lopez: an en banc petition is underway.

How to Use: For better or worse, Lopez is laden with language on probable cause for arrest: it is likely to be cited heavily for the black-letter law in future Fourth Amendment decisions. The case does reject the government’s crazy theory that there was probable cause for arrest on the theory that the (short) Lopez was the (tall) shooter from earlier in the day. Id. at 2928. The opinion also dances carefully around state officers’ ability to arrest for federal accessory charges. Id. at 2931 & n.10. Differences in federal and state accessory law didn’t happen to matter in this case, so that issue was moot here – but it might be important in future Fourth Amendment litigation.

For Further Reading: For an interesting discussion of Pollack’s infamous fingerprint reversal (of himself) see “Flaws in Forensic Science,” available here.

For a broader view of the problems with fingerprints generally, see AFPD Rob Eptsein’s excellent article: Fingerprints Meet Daubert: The Myth of Fingerprint “Science” is Revealed,” 75 S. Cal. L. Rev. 605 (2002), available here.


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

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