Case o' the Week: "Awkward" but not "Vague" - Hudson and Facial Vagueness Challenge to Section 2252(b)(2)

 Vagueness challenge doesn’t fly for Hudson's Hawk[ins]. 

United States v. Hudson, 2021 WL 299301 (9th Cir. Jan. 29, 2021), decision available here.

Players: Decision by Judge Hawkins, joined by Judges N. Randy Smith and R. Nelson.

 Hard-fought appeal by ND Cal AFPD Hanni Fakhoury.

Facts: Hudson was charged with possession of child porn. The government gave notice that a prior conviction for Cal. Penal Code § 288(a) triggered a ten-year mand-min, under 18 U.S.C. § 2252(b)(2). Id. at *1. (CPC § 288 prohibited any person from willfully committing a lewd or lascivious act, upon any part of a body of a child under 14, for sexual arousal). Id. at *1 & n.1.

  Hudson pleaded guilty in federal court. At sentencing, he argued that the federal statute, Section 2252(b)(2), was unconstitutionally vague. Accordingly, Hudson argued, he should not be subject to the ten-year mandatory minimum. Id. at *2.

  N.D. Cal Judge Jon Tigar observed that if he had discretion he would have imposed the 87-month term urged by the defense. Ultimately, however, Judge Tigar rejected the challenge and (reluctantly?) sentenced Hudson to ten years. Id.

Issue(s): “On appeal, Hudson contends that his sentence must be vacated because the statutory provision ‘relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward’ is unconstitutionally vague.” Id. at *1.

   “Hudson's arguments center on two lines of precedent: (1) our case law interpreting the phrase ‘abusive sexual conduct involving a minor or ward,’ and (2) our case law determining how the phrase ‘relating to’ affects our application of the categorical approach.” Id. at *3.

Held: “We hold that it is not [unconstitutionally vague] and affirm the sentence.” Id.

 “Section 2252(b)(2)’s application to state crimes ‘relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor’ neither fails to give ordinary people notice of its scope nor poses a risk of arbitrary enforcement. We, therefore, reject Hudson's constitutional challenge and affirm his sentence.” Id. at *7.

Of Note: Much of this case hinges on United States v. Farmer, 627 F.3d 416, 418 (9th Cir. 2010), and Farmer’s holding that CPC § 288(a) is a conviction that categorically related to aggravated sexual abuse (in the context of another federal sex statute). Id. at *3-*4, & n.2. Interestingly, Judge Hawkins spends a fair amount of time discussing Judge Bybee’s special concurrence in Farmer. Judge Bybee criticized the Ninth’s line of authority that lead to Farmer’s “awkward result” of defining terms through both their “ordinary meaning” and by reference to a federal statue. Id. at *4.

  There’s a lot of ink spilled over a Farmer criticism that obviously doesn’t control in the Hudson analysis. Does Judge Bybee’s valid criticism have a sympathetic audience with Judge Hawkins or others on this panel – is this an en banc opportunity? But see id. at *6 (describing the Hudson’s panel’s view that Judge Bybee’s position does “not reveal a constitutional infirmity.”) 

How to Use: Can a defendant bring a facial vagueness challenge to a criminal statute (as opposed to “as applied?”) The government doesn’t think so, and argued as much in Hudson. Judge Hawkins explains the Court didn’t need to reach that issue to resolve Hudson, id. at *5 & n3, so facial challenges are still viable in the Ninth.                                               

For Further Reading: Acting A.G. Wilkinson just pulled a reviled charging memo by A.G. Sessions, that had mandated that federal prosecutors pursue the harshest charges and stiffest penalties. See “DOJ Pulls Trump Administration’s Harsh Charging and Sentencing Policy, available here. 

The new controlling policy is former A.G. Holder’s 2010 charging memo, that instructs federal prosecutors to focus on “individualized justice” and decision-making based on “the merits of each case.” Id. 

Hopefully when Judge Garland clears the Senate, drug mand-mins will also get the DOJ boot (see A.G. Holder's 2013 charging memo). Until then, federal cases should be subject to immediate re-negotiation: cases should now be re-evaluated under A.G. Holder’s 2010 charging memo.

 

 

Poster image of “Hudston Hawk” from https://www.amazon.com/Hudson-Hawk-Sandra-Bernhard/dp/0767821513

 

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

 

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Case o' The Week: Theft With No Steal Still Loses Appeal - Gagarin and Aggravated Identity Theft

  What is the the difference between identity theft, and identity fraud, in the Ninth?

   Five letters (and two years).

   United States v. Gagarin, 2020 WL 727761 (9th Cir. Feb. 13, 2020), decision available here.

 Players: Decision by Judge Gould, joined by Judge Bea. Concurrence by Judge Friedland. Hard fought appeal by ND Cal Appellate Chief Carmen Smarandoiu.  

Facts: Karen Gagarin participated in an insurance fraud conspiracy. Id. at *1. Gagarin’s cousin, Gilroy, asked Gagarin to secure a policy for her. Id. at *3. Gilroy testified that Gagarin instructed her to lie about her place of employment. Id. The application, apparently submitted by Gagarin, contained false information about employment, salary, and the nature of Gilroy’s relationship with the beneficiary. Id. There were several electronic signatures purporting to be by Gilroy. Id. at *2.

  Gagarin was convicted after trial of, among other counts, aggravated ID theft for the Gilroy application, in violation of 18 USC § 1028A. Id.

Issue(s): “Gagarin challenges the district court’s denial of her post-trial motion for a judgment of acquittal on the aggravated identity theft count . . . .” Id. at *1. “Gagarin claims that three essential elements were not satisfied, contending that (1) she did not ‘use’ a means of identification ‘during and in relation to’ the commission of wire fraud under the terms of the statute, (2) she did not act ‘without lawful authority,’ and (3) she did not use the means of identification of ‘another person.’” Id. at *4.

Held: “Gagarin attempt[ed] to pass herself off as her cousin through forgery and impersonation. . . . . [T]he use of another person’s means of identification makes a fraudulent claim for payment much harder to detect. . . and Gagarin’s forgery of her cousin’s signature did just that by obscuring her own role in the fraudulent application. Her use of Gilroy’s means of identification was thus central to the fraud and ‘furthered and facilitated’ its commission. [W] e hold that Gagarin’s actions constituted ‘use’ under the meaning of the aggravated identity theft statute.” Id. at *4 (internal quotations and citations omitted).

  “Gagarin also contends that she did not act ‘without lawful authority, a required element of aggravated identity theft. We disagree. . . . Whether a particular use was ‘itself illegal’ relates to the degree of connection between the use of the identity and the predicate felony. But the statute already contains language about the required nexus: the use must be ‘during and in relation to’ specified unlawful activity. Here, for the reasons stated above, Gagarin used Gilroy’s identity during and in relation to the wire fraud that Gagarin does not challenge occurred here. Gagarin has not shown that use ‘without lawful authority’ required more in this case.” Id. at *5.

  “[E] ven if Gagarin had Gilroy’s consent, we follow our circuit precedent to hold that Gagarin used the means of identification of ‘another person’ by using the identification of another ‘actual person.’ Id. at *6.

Of Note: Supervise an intern? That can earn you +3 offense levels for being a manager or supervisor. Id. at *7. The Ninth’s affirmance of this sentencing enhancement is another disappointing aspect of a frustrating opinion.

How to Use: In a thoughtful decision, the Seventh Circuit narrowed this expansive statute by limiting the term, “another person” to refer to a person who did not consent to the use of the means of identification.” See United States v. Spears, 729 F.3d 753, 758 (7thCir. 2013) (en banc). Gagarin author Judge Gould makes a point of criticizing the Spears analysis. Id. at *6.

  In a brief, but insightful, concurrence, Judge Friedland muses that the Seventh actually seems to have gotten it right. Gagarin, 2020 WL 727761, at *10 (Friedland, J., concurring).

  Read Judge Friedland’s concurrence and preserve the challenge when faced with a § 1028A charge that – like here – involved a person who consented to the use of an identity. Judge Friedland’s valid concerns may someday win the day.

                                               

Attorney General William Barr

For Further Reading: Turns out that we and DOJ agree: the Guidelines are far too harsh, line-AUSAs do seek far too much custody time, and reasonable sentences should involve far less incarceration.

   For one of many summaries of last week’s stunning Stone sentencing saga, see a NBC News article here. 

  Here’s hoping your federal client is the subject of a sympathetic White House Tweet, and a helpful sentencing-mitigation memo from Attorney General Barr.

Image of “You Can’t Steal Something That’s Been Given To You” from https://www.magicalquote.com/seriesquotes/cant-steal-something-thats-given/

Image of the Honorable Attorney General William Barr from https://en.wikipedia.org/wiki/William_Barr 

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

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Case o' The Week: Go Big, or Go Home - Collazo E.B. Order with questions, and (Potential) Drug Mens Rea requirements

  Looks like we’ve won the battle.

Collazo En Banc Court

  Do we now have a shot at the war?

United States v. Robert Collazo, Nos. 16-50509 (9th Cir. Jan. 29, 2020) (Ord.).

Players: New questions from the en banc panel: CJ Thomas, Judges W. Fletcher, Callahan, M. Smith, Ikuta, Nguyen, Watford, Hurwitz, Miller, Bade and Bress.

   Admirable en banc argument by SD Cal Defender alumnus Ben Coleman.  

Facts: Last September the Ninth ordered the Collazo case to be reheard en banc. See overview of this en banc order here. 

  The Ninth resolved to sort-out the jury instructions for the “mess” of drug conspiracy mens rea requirements. On January 13 the case was argued before the en banc court. See video of en banc argument here.  

  Roughly two weeks after oral argument, the Court issued the following questions:

Issue(s): “1. How do United States v. Feola, 420 U.S. 671 (1975), and its progeny in this Circuit . . . apply to the government’s burden of proving that a defendant is guilty of conspiracy under 21 U.S.C. § 846 for agreeing to commit an offense under § 841(a), (b)? The parties should address whether the requisite intent for conspiracy under § 846 is the same as the requisite intent for distributing a controlled substance under § 841(a), (b). The parties should also address whether the government has to prove beyond a reasonable doubt that the scope of the defendant’s agreement for a § 846 and § 841(a), (b) offense includes a particular drug type and quantity. In connection with these issues, does the rule in Feola apply only to jurisdictional elements, or does it also apply to elements such as drug type and quantity?

  2. Whether this Court should adopt Judge W. Fletcher’s position in United States v. Jefferson, 791 F.3d1013, 1019 (9th Cir. 2015) (W. Fletcher, J., concurring), as to both substantive drug offenses under § 841(a) and conspiracy offenses under § 846. See Jefferson, 791 F.3d at 1023 (“I do not believe the government can subject the defendant to escalating mandatory minimums . . . without proving that he knew which illegal drug he was importing.”).

  3. Whether this Court should adopt the approach reflected in United States v. Gentry, 941 F.3d 767, 785–86, 794 (5th Cir. 2019) (requiring that defendant “knew or reasonably should have known that the scope of the conspiracy involved at least 50 grams of a mixture containing a detectable amount of meth”). 
  United States v. Callazo,  No. 15-50509, Ord., Dkt. Entry 171 (emphasis and hyperlinks added).

Held: Awaiting the decision of the en banc court.

Of Note: Defense counsel Ben Coleman slugged away for his client in this argument. He was enthusiastic for Judge Fletcher’s much bigger goal of revising drug mens rea requirements, but appropriately focused on the narrow path to victory for his specific client: “conjunctive” jury instructions.

  Ben was unfailingly diplomatic, but –well, watch the oral argument at around 24:20. He can’t resist gently noting the irony that it was the Ninth itself that created this mess nearly twenty years ago in Buckland. In Buckland, the Ninth avoided an Apprendi attack by (questionably) re-characterizing drug type and quantity as “material facts” and not “sentencing factors.” United States v. Buckland, 289 F.3d 558,568 (9th Cir. 2002). 

  After the Ninth avoided serious Apprendi constitutional challenges to the drug statutes in Buckland, it never went on to finish the job. The Court never required that these newly-minted pseudo-elements for drug offenses also carry mens rea requirements. See United States v. Carranza, 289 F.3d 634, 644 (9th Cir. 2002) (“the government need not prove that the defendant knew the type and amount of a controlled substance that he imported or possessed; the government need only show that the defendant knew that he imported or possessed some controlled substance.”) (emphasis in original). 

  In sum, the Callazo en banc court today reaps the chaos of Buckland seeds sown eighteen years ago.

  Ben knows of what he speaks -- he and former San Diego AFD Steve Hubachek were two of the attorneys at the forefront of that bitter Buckland battle. Funny old world, to now watch Mr. Coleman (politely) addressing the downstream unintended consequences of the unfortunate Buckland decision, two decades after it was delivered.

How to Use: Spoiler alert: we won the battle (probably).

   During the en banc argument, Judge M. Smith deftly boxed the government into conceding its case -- conjunctive instructions will likely be the e.b. court’s holding. (Such an admirable cross that it earned a chuckle from the Chief).

  The far more interesting remaining issue that remains for the en banc Court is whether Judge Fletcher’s compelling Jefferson concurrence will prevail.  [Ed. opinion: it should!].

Hon. Judge W. Fletcher

   Read Judge Fletcher’s Jefferson concurrence and preserve these drug mens rea issues: this is a very hot topic, and (hopefully) a profoundly important legal development.

                                               

For Further Reading: Judge W. Fletcher’s must-read Jefferson concurrence is available here, at page 13. 

  For an overview of Judge Fletcher's concurrence, see blog entry  here. 

Screen shot of en banc court from https://www.youtube.com/watch?v=m3jMm-P7GWY

Image of the Honorable Judge W. Fletcher from https://www.yahoo.com/news/scholars-liberal-reputation-9th-circuit-overblown-080453616.html

Image of, "as you sow so shall you reap" from https://www.youtube.com/watch?v=P2emkEainUw 

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

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Case o' The Week: Headings and Shoulders Above the Crowd - "Exploitation" predicates for federal child porn offenses

 Brave case of first impression brings intellectually-rigorous analysis to – challenging – sentencing fact pattern.

United States v. Schopp, 938 F.3d 1053 (2019), decision available here.

 

The Hon. Judge Marsha Berzon

Players: Decision by Judge Berzon, joined by Judges Tashima and W. Fletcher. 

  Big win on issue of first impression for former CD Cal AFPD Myra Sun.  

Facts: Schopp pleaded guilty to production of child porn, pursuant to a plea agreement. Id. at 1057.

  The agreement had an appellate waiver. Id.

  Schopp admitted in the agreement that he had two Alaska state priors relating to the sexual assault and abuse of a minor. Id. (Note that neither state offense involved the production of child porn).

  At sentencing, the parties both urged a sentence of thirty-five years (the mand-min if one of the priors counted as federal “sexual exploitation of children.”) The district court rejected the recommendations and instead sentenced Schopp to life. Id.

  Had the multiple-prior enhancement not been applied (based on the state convictions), Schopp’s range would have been 25 to 50 years. Id.

  Schopp appealed, challenging whether his prior state convictions qualified as federal sexual exploitation predicates.

Issue(s): “Our question is whether the meaning of the term ‘relating to the sexual exploitation of children’ in § 2251’s enhancement provision should reflect the elements of the substantive crimes described in the same “[s]exual exploitation of children” statute.” Id. at 1056. “Under the Taylor categorical approach, we begin by defining the generic federal offense — “sexual exploitation of children.” We have yet to define the offense in a precedential opinion, so this is a matter of first impression.” Id. at 1059.

Held: “We hold that Schopp’s prior Alaska convictions are not offenses ‘relating to the sexual exploitation of children’ under § 2251(e), so the district court improperly applied the sentencing enhancement.” Id. at 1056-57.

  “All of the offenses described in § 2251 concern visual depictions of children engaging in sexually explicit conduct, with ‘sexually explicit conduct’ defined in a separate statute . . . . We accordingly hold that the federal generic definition of ‘sexual exploitation of children’ is defined within § 2251 as the production of visual depictions of children engaging in sexually explicit conduct, or put simply, the production of child pornography.” Id. at 1061.

  “[W]e hold that Schopp’s prior Alaska convictions are not a categorical match to the generic federal offense of ‘sexual exploitation of children’ and cannot serve as predicate offenses for purposes of the multiple-conviction enhancement under § 2251(e).” Id. at 1063. “[W]e REVERSE Schopp’s sentence and REMAND for resentencing.” Id. at 1069.

Of Note: Schopp is a characteristically thoughtful Berzon opinion. The Judge carefully explains the statutory interpretation that leads the panel to reject the government’s (expansive) “priors” theory. The analysis relies heavily on the section heading for the Section 2251 statute: “sexual exploitation of children.” Id. at 1059.

  Add the Schopp arrow to your “statutory analysis” quiver: if a statute’s section heading is in play, Schopp is the case to consult. See id. at 1060 & n.3.  

How to Use: Schopp is a must-read for any porn-production case with potential priors in play. It is also an intriguing decision for its rejection of the appellate waiver. See id. at 1058. As Judge Berzon explains, “Because Shopp’s appeal goes to the legality of his sentence, it is permitted despite his appeal waiver.” Id.

The Hon. Sentencing Commissioner and
District Judge Charles Breyer

  In NorCal, District Judge (and Sentencing Commissioner) Charles Breyer is (correctly) reading this “illegal sentence” exception into every plea agreement. Really, shouldn’t all plea agreements contain this (required) exception to appellate waivers?

                                               

For Further Reading: Last week Judge Danielle Hunsaker, of Oregon, cleared the Senate Judiciary Committee (with relatively little opposition from Democrats). See article here.  Her nomination by President Trump to the Ninth Circuit now awaits a Senate floor vote.

  After her likely confirmation, Judge Hunsaker will hold the seat vacated by Judge O’Scannlain. See article here. 

Image of the Honorable Judge Marsha Berzon from  https://www.youtube.com/watch?v=i39zEPuZr7c

Image of the Honorable Charles Breyer from https://twitter.com/LADailyJournal/status/972173100220538881

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

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Case o' The Week: Hoping Ninth Gets Conjunctive-itus - E.B. Grant on Drug Conspiracy Jury Instructions

 “Or” no more, urge fans of “and.”

United States v. Robert Collazo, No. 15-50509, (9th Cir. Sept. 19, 2019), Ord. granting rehearing e.b., available here.

Players: Court-ordered brief for initial en banc consideration by former Federal Defender of San Diego, Inc. AFD, John Lemon.    

Facts: Appellants in Collazo were co-conspirators convicted of drug man-mins. They also suffered guideline enhancements, based on drugs distributed by co-conspirators in prison. See United States v. Rodriguez, Appellants’ Brief for E.B. Consideration, 2019 WL 3947844 at *1. 

  Defendant Rodriguez argued at trial that he did not distribute over 100 grams of heroin: he was an addict, and explained that he consumed “copious amounts” of the drug smuggled to him in prison. Id. at *4-*5. Rodriguez argued for a jury instruction that required that the heroin attributable to him must have been both jointly undertaken in furtherance of the conspirators’ agreement and reasonably foreseeable (i.e., the “conjunctive formulation.”) Id. at *2. 

  The district court refused. 

  The district court instead instructed in the disjunctive: the amounts of drugs must have either been jointly undertaken or reasonably foreseeable. Id. Using this disjunctive instruction, the jury found Rodriguez guilty of conspiracy, and that 100 grams or more of heroin was attributable to him. Id. at *7. 

  Rodriguez was sentenced to a whopping high-end sentence of 175 months, when the court relied on the jury’s findings on the amounts of heroin attributable to him. Id. 

  After briefing on appeal and oral argument, the Ninth issued an order and asked the parties to “address the proper jury instruction under 21 U.S.C. § 841(b) for determining the drug type and quantity involved in a conspiracy offense.” Id. at *2.

 On September 19, the consolidated Collazo cases went en banc.

Issue(s): How is the Ninth going to “sort the whole mess out”? United States v. Torres, 869 F.3d 1089, 1106 (9th Cir. 2017) (Clifton, J. concurring).

Held: T.B.D.

Of Note: Judge Clifton was right in Torres: the Ninth’s law on drug conspiracy is a “mess.” 

  The most straightforward path to victory is for the Ninth to follow its own (and the Supreme Court’s) clear precedent: guidelines and statutes are supposed to be interpreted consistently. See United States v. Becerra, 992 F.3d 960, 967 (1990); see also Dorsey v. United States, 567 U.S. 260, 264 (2012).

   The Ninth got off track because old guidelines handled drug-attribution in the disjunctive. See Becerra, 992 F.3d at 966. In 1992, however, the guidelines were amended to require the conjunctive. Torres, 869 F.3d at 1097 (“[T]he Sentencing Commission . . . amended the Guidelines in 1992 and adopted a conjunctive approach.”) 

  Despite that amendment, the Ninth never corrected its own law and jury instructions – that will change (we hope) with this en banc decision.

How to Use: Object, obviously, in a drug conspiracy trial, and demand the conjunctive formulation. The current problematic disjunctive language is in the “Special Verdicts” section of Ninth Model Instruction 9.19, available here. 

   Query, moreover, what grand juries have been told, as they’ve returned federal drug conspiracy indictments? Fed. Rule Crim. Proc. 6 disclosures of grand jury transcripts may be in order, for drug conspiracy cases heading for trial.

                                               

For Further Reading: The sure win is always the best defense approach: anticipate that Rodriguez will be hammering on the guideline and instruction dissonance in the argument to the en banc court.

  A more interesting argument, however, is Judge Berzon’s very thoughtful concurrence, and compelling conspiracy analysis, in Jauregui, 918 F.3d 1050, 1060 (9th Cir. 2019). Judge Berzon carefully explains how the Ninth’s mélange of conspiracy intent requirements have “muddied an already-confusing area of law.” Id. at 1063.

  For a description of Judge Berzon’s clarion call for en banc action on the Ninth’s conspiracy jurisprudence, see COTW blog entry here.  

Image of man with conflicting arrows from https://www.practiceportuguese.com/learning-notes/disjunctive-coordinating-conjunctions/

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

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Case o' The Week: Ninth's Not Life-Affirming - Graves and the Categorical Analysis of Section 851 Priors

We dig Graves.

United States v. Graves, 2019 WL 2293421 (9th Cir. May 30, 2019), decision available here.

Players: Decision by Judge Clifton, joined by Judges Paez and Court Int’l Trade Judge Katzmann.

Facts: Graves was charged with meth and marijuana offenses. Id. at *1. Before trial, the government gave notice under 21 USC § 851 of its intent to seek a life sentence based on two drug priors. Id. One of those convictions was for Cal. Penal Code § 4573.6, “inmate drug possession.” Id. The district court held that the priors qualified as “felony drug offenses” that triggered the enhancement.

  Graves was found guilty, and under the Section 851 enhancements, sentenced to the mandatory-minimum term of life. Id. 

  The District Court then went on to conduct a separate § 3553 analysis, to “perfect the record and to make clear that if the court were to exercise discretion, if it had any to impose a sentence at less than life, it would not.” Id.

Issue(s): “[  ] Graves challenges the life sentence imposed by the district court after it concluded he had two prior felony drug offenses under 21 U.S.C. § 841(b)(1)(A), mandating a sentence of life imprisonment. The district court concluded that his two prior convictions, including for a violation of California Penal Code § 4573.6, qualified as predicate felony drug offenses.” Id. at *1. 

  “Graves argues the district court erroneously concluded his . . . § 4573.6 conviction qualified as a felony drug offense because the statute is both overbroad and not divisible.” Id. at *2.

Held: “We conclude that Graves’ section 4573.6 conviction does not qualify as a predicate offense and therefore vacate his sentence and remand for re-sentencing.” Id. at *1. “There is no dispute that section 4573.6 criminalizes controlled substances under California law that are not regulated under federal law, so the statute is overbroad . . . .We therefore must determine if the statute is also divisible.” Id. at *2.

  “We conclude that the statute is not divisible based on the plain text, state court decisions, and the contrast to convictions under the California Health and Safety Code.” Id. at *3. “We conclude . . . that California Penal Code § 4573.6 is not a divisible statute and therefore cannot be a categorical “felony drug offense” triggering a “mandatory term of life imprisonment” under 21 U.S.C. § 841(b)(1)(A) (2016).” Id. at *4.

Of Note: In Graves, the government and the district court again try the old “belt and suspenders” approach to sentencing. 

Even if the original mand-min sentence was legally incorrect, the district judge assures us, the judge still would give a life sentence. Seizing this assurance, on appeal the government argued it was unnecessary to vacate the life sentence, because the D.J. “perfect[ed] the record” and promised that a life sentence would still be imposed under the Section 3553 factors. (Notably, the district court reached this decision despite the fact that the defendant had not participated in a PSR interview, or submitted a sentencing memorandum, due to the mandatory life term.) Id. at *4.

  Yet again, the Ninth rejects this effort to inoculate against appellate review, vacates the sentence, and remands for a fresh new sentencing (hopefully with some First Step Act love thrown in). Id. at *4.

How to Use: Does the categorical approach even apply to Sec. 851 priors? The government argued that it was “far from clear” that it does. Id. at *2 & n.3. Judge Clifton “was not convinced,” and the Court “resort[s] to the categorical approach in this context.” Id. at *2. 

  To the extent it was in question, Graves seals the deal: Section 851 priors are subject to the familiar categorical analysis approach.  

                                               

For Further Reading: Under the First Step Act of 2018 (“FSA,”) Mr. Graves may be looking at mandatory term far below “life.” 

   For a thoughtful piece touting the FSA, see The First Step Act is a Major Step for Sentencing Reform, by former Sentencing Commission Chair, Judge Patti Saris, available here.

Image of “Grave digger” from https://voca58.org/Feature_Lament_Grave_Digger.html

Image of belt and suspenders from https://www.duluthtrading.com/mens-perry-original-y-back-suspenders-50872.html?&srccode=GPSHPMN&chnl=ps_prospect_pla_mn&region=out_region&gclid=CjwKCAjw583nBRBwEiwA7MKvoJRUJJi0HCMZsiN5_UgDDZ5x5tpYG-6wyaUL2o9oyHVg4KXk-qwuChoCCpkQAvD_BwE

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

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Case o' The Week: Big To Do, "Related To" - Reinhart and Categorical Analysis of Child Porn Priors

  Ninth delivers a “narrow” defense win.

United States v. Reinhart, 2018 WL 3016942 (9th Cir. June 18, 2018), decision available here.

The Hon. Judge Mary Murguia

Players: Decision by Judge Murguia, joined by Judge Gould and D. Wyoming Chief District Judge Freudenthal.

  Big win for (former, and sorely-missed) ND Cal AFPD Ned Smock (Oakland), (soon to be D. Md. AFPD Ned Smock).  

Facts: Reinhart plead guilty to possession of child porn. Id. at *1. Under 18 USC § 2252(a)(4)(B), a defendant convicted of this offense, who has two priors “relating to” the production, possession, etc. of child porn faces a ten year mandatory minimum sentence. Id.  Reinhardt had been convicted of possession of child porn, Cal. Penal Code § 311.11(a), and sexual exploitation of a child, in violation of Cal. Penal Code § 311.3(a). Id.

  “At sentencing . . . the government argued that the words ‘relating to’ in § 2252(b)(2) should be read broadly to encompass state statutes even if the state statutes of conviction do not categorically match the definition of federal child pornography offenses. Reinhart contended that the usual categorical approach should apply, and under that analysis, Reinhart’s prior California convictions were not a categorical match and were overbroad as compared to the federal definition of child pornography offenses in § 2252(b)(2).” Id. at *2.

  The Honorable ND Cal District Judge Jeffrey White found neither prior qualified as a conviction that triggered the ten-year mand-min. Id. at *1.

Issue(s): “We decide whether Reinhart’s prior California convictions constitute offenses ‘relating to’ child pornography under . . . 2252(b)(2 . . . .” Id. at *1.

  “[W]e must determine whether the words ‘relating to’ in the ten-year mandatory minimum statutory sentencing provision at § 2252(b)(2) require us to break from our usual, elements-based categorical approach for determining when state statutes of conviction trigger a federal sentencing enhancement and instead, apply a broader comparison between the state statutes and the federal statutes. Here, we consider whether Reinhart's prior . . . statutes of conviction fall under the federal definition of ‘child pornography offenses’ as used in § 2252(b)(2).” Id. at *3.

Held: “We affirm.” Id. at *1.

  “The government urges that Sullivan determines the outcome in this case. We disagree. At the outset, we recognize that Sullivan examined the same federal sentencing enhancement statute at issue here, § 2252(b) (2). But § 2252(b)(2) describes a number of prior types of state offenses, some of which include federally-defined terms, and some of which do not. As Sullivan directs, the language of a statute and any related textual restrictions may favor a narrower reading . . . . Accordingly, we look at the different types of offenses listed in separate clauses in § 2252(b)(2) to determine whether a narrower reading of ‘relating to’ and the categorical approach should apply. Here, it does.” Id. at *5.

  “In sum, we hold that [  ] because the terms ‘child pornography’ and ‘sexually explicit conduct,’ are explicitly defined in chapter 110, the statutory text ‘tug[s] ... in favor of a narrower reading’ of ‘relating to.’ . . . . Therefore, we do not depart from the usual, elements-based, categorical approach to determine whether Reinhart's prior state statutes of conviction trigger the federal mandatory minimum provision in § 2252(b)(2) for individuals with prior offenses ‘relating to’ child pornography.” Id. at *7 (emphasis added).

Of Note: This is a terrific decision: a thoughtful analysis untangling the subsections of the relevant statutes, and an intellectually honest approach to emotionally-charged offenses. Judge Murguia notes that in Reinhart the Ninth splits with the Tenth on the reading of “relating to.” Id. at *7.

  This is an interesting twist for the visiting Chief DJ, from Wyoming (which is in the Tenth Circuit). Back home on her own bench, DJ Freudenthal will now have to apply incorrect Tenth Circuit law in her own cases, despite joining the correct outcome here in Reinhart!

How to Use: This holding is a very important limitation on child porn mand-mins. Reinhart merits a careful read for anyone fighting child porn charges, when the client is bringing state priors into federal court.

                                               

For Further Reading: Have you noticed a local increase in child porn prosecutions? Brace yourself: more to come. See Justice Task Forces Arrest 2,300 Online Child Sex Suspects, available here. 

Image of the Honorable Judge Mary Murguia from http://www.mauigmomoratoriumnews.org/hawaiis-legal-battles-gmos-also-affect-mainland/

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

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