Case o' The Week: Ninth Gives Two Bites at Appeal Notice - Shehadeh, Notices of Appeal, and Restitution Orders

  New Ninth jurist pens – "appealing" – decision.

The Hon. Judge Ryan Nelson

United States v. Shehadeh, 2020 WL 3278724 (9th Cir. June 18, 2020), decision available here.

Players: Decision by Judge R. Nelson, joined by visiting Judge Stiler and Judge Bybee.  

Facts: Shehadeh pleaded guilty to a thirty-year deal in an arson case. He moved for immediate sentencing without a PSR. Id. at *1.

  The district court obliged.

  Two months later, Shehadeh moved to withdraw his plea. Four months after that, the court held it lacked jurisdiction and denied the motion. Id. at *2.

   The court then entered an amended judgment with a restitution order. Id.

   Shehadeh appealed.

Issue(s): “’A defendant must file a notice of appeal within fourteen days of the entry of either the judgment or the order being appealed . . . Shehadeh contends his appeal was timely because he filed it within fourteen days of the district court’s entry of its amended judgment ordering restitution. The government argues Shehadeh’s appeal is untimely because he did not appeal within fourteen days of the district court’s entry of judgment announcing his custodial sentence.” Id. at *2.

   “The government argues that because deferred restitution cases involve two appealable judgments, not one, . . . Shehadeh was required to appeal within fourteen days of the district court’s entry of judgment on Shehadeh’s custodial sentence in February. Instead, Shehadeh waited to appeal until after the district court entered its amended judgment ordering restitution six months later.” Id. [The Supreme Court in Manrique v. United States, . . . 137 S. Ct. 1266 . . . (2017)] “only held that a notice of appeal filed after a sentence of imprisonment does not ‘spring forward’ to become effective to appeal an order of restitution entered later . . . The Court did not address the opposite issue presented here: is a defendant’s notice of appeal after an amended judgment ordering restitution timely to appeal the initial judgment of conviction and sentencing?” Id.

Held: “We hold that in these circumstances it is.” Id.

  “It is true that, after Manrique, Shehadeh could have filed an appeal within fourteen days after the initial judgment imposing his custodial sentence . . . But he was not required to do so. Our conclusion today is that, where a district court defers its restitution order, a defendant wishing to appeal his conviction and sentence of imprisonment may enter a notice of appeal either within fourteen days following the district court’s entry of the custodial sentence, or within fourteen days of the entry of the amended judgment, which includes the amount of restitution.” Id. at *2.

Of Note: Shehadeh waived the PSR in the district court, then complained there was no PSR on appeal. The Ninth shrugs and concludes PSRs are no longer required. “In light of the Supreme Court’s . . . holding in . . . Booker, . . . that the Sentencing Guidelines are advisory, Turner’s holding that a presentence report cannot be waived is no longer good law . . . Congress has not acted since Booker to prohibit waiver of a presentence report. We will not prohibit that waiver here, where the defendant knowingly waived his right to preparation of a presentence report and asked to proceed to sentencing as quickly as possible.” Id. at *5. Shehadeh deeming PSRs waivable is welcome news, as we’re forced to jam cases towards quick time-served sentencing (i.e., 98% of NorCal’s “Tenderloin” “$20 hand-to-hand” drug felonies that have plagued our federal courts).

How to Use: Shehadeh third holding is this: a district court does have jurisdiction to consider a motion to withdraw a plea of guilt, filed after the “primary” sentencing but before the (later) restitution order is imposed. Id. at *3.

  Mull this timing wrinkle: after Shehadeh, when there are many months between sentencing and the restitution order, there is much time for buyer’s remorse and a (perhaps imprudent) motion to withdraw . . .

                                               

For Further Reading: Last week S.F. D.A. Chesa Boudin announced that his office will not charge cases that rely on officers with serious prior misconduct. See S.F. D.A. policy here.

  Will the N.D. Cal U.S. Attorney’s office join in this admirable policy? Or will cross-designated federal officers just salvage cases with bad cops, that Boudin dumps from the Hall of Justice?

Image of the Honorable Judge Ryan Nelson from https://www.eastidahonews.com/2019/03/judge-ryan-nelson-honored-during-investiture-ceremony/

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

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Case o' The Week: A Wobble Bobble? - Christopher Johnson, Claims vs. Arguments, and Rule 32 on Appeal

  Priors may wobble, but they don’t fall down (in the Ninth).

United States v. Christopher Johnson, 2019 WL 1523106 (9th Cir. Apr. 9, 2019), decision available here.

Players: Decision by Judge Mark Bennett, joined by Judges M. Smith and Nguyen. 
  Hard-fought appeal by AFPDs Amy Cleary and Cullen Macbeth, D. Nevada FPD.

Facts: Johnson pleaded guilty to being a felon in possession of a firearm. Id. at *1. The DJ assigned a base offense level of 20, based on prior “crime of violence” felony priors. Specifically, Johnson had been convicted in California for assault with a deadly weapon (not a firearm), in violation of CPC § 245(a)(1). Id. at *2. Johnson had been sentenced to six months in county jail for that offense. Id. 

  In federal court, the defense objected to the use of this assault prior as a “crime of violence” because it lacked the necessary men rea. Johnson did not, however, object to its classification as a felony. Instead, in its sentencing memo, the defense stated Johnson had two prior felony convictions. Id. 

  The district court counted this Cali prior as a felony crime of violence: Johnson appealed.

Issue(s): “On appeal, Johnson argues that the district court erred by applying a crime-of-violence enhancement to his offense level. We first consider whether Johnson’s concessions in the district court foreclose his newly minted argument that his underlying conviction for violation of California Penal Code (‘CPC’) § 245(a)(1) was not actually a felony under California law. Reviewing de novo, we also examine Johnson’s CPC § 245(a)(1) conviction to determine whether it truly was for a felony, and if so, whether, in light of Moncrieffe v. Holder, 569 U.S. 184, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013), a felony conviction for violating CPC § 245(a)(1) can be a predicate offense for a crime-of-violence enhancement.” Id. at *1.

Held: “Because the answer to all three questions is yes, we affirm Johnson’s sentence.” Id.

Of Note: The troubling holding Christopher Johnson is not really the “crime of violence” holding -- though disappointing, this holding on Cali assault is old news. The real problem is the Ninth’s rejection of a new defense argument on a preserved claim that the crime-of-violence enhancement was improper as to a particular prior. Id. at *2. 

  On appeal, Johnson argued that this § 245(a)(1) prior was actually a “wobbler;” a uniquely Californian breed of offense where felonies can be “wobbled” down to misdemeanors. Id. The Ninth didn’t buy it. “We reject Johnson’s belated attempts to characterize his underlying California conviction as a misdemeanor.” Id. Because trial counsel didn’t dispute the PSR’s characterization of the prior as a felony, appellate counsel was stuck with that “fact” on appeal – even though the defense had asserted a claim in the district court that the prior didn’t qualify as a felony crime of violence. Id. at *4.

 The law in the Ninth has long been that parties can waive claims, but not arguments . Notably, in its briefing the Nevada FPD cited United States v. Pallares-Galan,359 F.3d 1088 (9th Cir. 2004) for that proposition. See AOB, 2018 WL 2234305 at *15-16. Yet the Ninth doesn’t cite or address Pallares in Christopher Johnson. As the NorCal appellate brain trust has observed, this is particularly troubling given the Ninth’s fondness for this “claim / argument” distinction when it salvages the government’s new arguments on appeal. See, e.g., United States v. Blackstone, 903 F.3d 1020, 1025 & n.2 (9th Cir. 2018); see also “How to Use” discussion here. 

  Beware of Christopher Johnson – the “claims / arguments” line of authority may have a PSR-objection carve-out, now. The decision is worth a close read for its great emphasis on Fed. R. Crim. Proc. 32 ramifications in the district court, and the corresponding encroachment on the claims/argument distinction on appeal.

How to Use: Despite the waiver holding discussed above, the Ninth does go on to hold in the alternative that this wobbler prior was not actually a mido. Id. at *5.

  For better or worse, Christopher Johnson is now a lead case on the analysis of Cali wobblers -- turn to the discussion at *5-*7 when your client has California “wobbler” priors at issue (and object in the district court!)

                                               

For Further Reading: What’s a wobbler?

  For a brief and accessible summary, written for a federal practitioner, see California ‘Wobblers’: How to Determine Whether a Prior California Conviction Was a Felony or Misdemeanor, by former CD Cal AFPD Davina Chen, available here. 

Image of “Weebles Wobble” from https://me.me/i/weebles-wobble-but-they-wont-fall-down-22833010

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

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Case o' The Week: What Happens in Vegas . . . Gets Reversed in SF -- Castillo-Marin and Taylor Sentencing

Las Vegas, surprisingly, isn’t so hot at interpreting New York. United States v. Castillo-Marin, 2012 WL 2550594 (9th Cir. July 3, 2012), decision available here.

Players: Decision by CD Cal DJ Timlin, joined by Judge Fisher. Dissent by Judge Rawlinson. Nice win for Nev. AFPD Brenda Weksler and Federal Defender Rene Valladares.

Facts: The PSR for Castillo-Marin’s illegal-reentry sentencing in Las Vegas hit the defendant with a +16 offense level, specific offense adjustment. Id. at *1. The PSR described a New York prior, where the charging document alleged Castillo-Marin had stabbed a man five times with a knife – putting the victim in critical care. Id. Looking to the “crime of violence” definition at 8 USC § 1101(a)(43) [ed. note – a definition used for “agg felonies”], the PSR found the New York prior qualified and recommended a sentence within the offense level 21 range (post-acceptance). Id. The defense did not object. Id.

Issue(s): “Castillo-Marin challenges the district court’s application of U.S. Sentencing Guidelines (U.S.S.G.) § 2L1.2(b)(1)(A)(ii), which imposes a 16-level enhancement where a defendant has previously committed a crime of violence. He contends that the district court committed plain error by relying solely on the PSR’s characterization of his prior conviction.” Id. at *1.

Held: “[T]o the extent the district court relied on the PSR’s factual description of Castillo-Marin’s prior offense to determine that Castillo-Marin had been convicted of a crime of violence, it plainly erred.” Id. at *3.

Of Note: Appellate folks: here are two nuggets in Castillo-Marin to tuck away for future briefs. First, the defense here argued in its opening brief that all four prongs of the plain error analysis were met. Id. at *2. In its answering brief, the government did not contest that the first two prongs of plain error were satisfied. Id. The government was then (to its likely chagrin) bound by that concession: when the government fails to contest an argument in its answering brief it is “deemed waived.” Id.

Second, the government urges the Ninth to take “judicial notice” of New York documents surrounding the prior. Id. at *7. Judge Timlin ain’t buying it, emphasizing that the Ninth “rarely take[s] judicial notice of facts presented for the first time on appeal.” Id. Remember Castillo-Marin when the government tries to sneak facts in on appeal through the “judicial notice” ruse.

How to Use: Castillo-Marin is a good source for three sentencing propositions that are now black-letter law:

• A district court can’t use a PSR for the Taylor analysis. Id. at *3.

• PSRs are so off-limits for Taylor sentencing that using them can constitute plain error on appellate review. Id. at *4.

• Charging documents (here, the New York indictment) alone are never sufficient to establish a predicate offense under the modified categorical analysis. Id. at *9.     

                                               

For Further Reading: Aggravating matters (pun intended), the Las Vegas Probation Office used the wrong definition of “crime of violence” when it hit Castillo-Marin with a +16 OL specific offense adjustment. Id. at *4. The Probation Office used the statutory definition, for aggravated felonies. Id. (discussing §1101(a)(43)). The +16 OL specific offense adjustment in Guideline § 2L1.2(b)(1)(A)(ii), however, has a different definition of “crime of violence.”

“Crime of Violence” (or, “C.O.V.”, for Taylor geeks) is a complex and subtle area of law that can make a big difference for our illegal reentry, ACCA, and Career Offender clients. For a helpful outline on this complicated area, see Michael A. Meetze, AFPD D. S. Carolina, Determining “Crimes of Violence” and “Violent Felonies”, available here. 

Image of "New York, New York Las Vegas" from http://nokiaconnects.com/2012/01/12/ces-day-3-nokia-connects-in-las-vegas/new-york-new-york-las-vegas-2/

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

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Case o' The Week: Close Enough for Government Work, Saeteurn & Erroneous PSRs

"Close enough for government work" is close enough the Ninth in a disappointing decision. See United States v. Saeteurn, __ F.3d __, 2007 WL 2983806 (9th Cir. Oct. 15, 2007), decision available here. In Saeteurn (written by Judge Bea) the Court tolerates disputed and erroneous information in a PSR, unresolved by the district court -- despite the fact that this error will have a profound impact on the defendant's conditions of confinement. A very troubling decision that calls out for en banc review.

Players: Hard-fought appeal by ED Cal AFPD Tim Zindel.

Facts: Saeteurn pleaded guilty to drug crimes. 2007 WL 2983806, *1. The PSR (incorrectly) described him as a legal permanent resident. Id. Actually, the defense explained, Saeteurn was a citizen with a mother who had naturalized when he was minor. Id. at *1 n.1. The district court refused to resolve the defendant’s objection to the PSR, despite the fact that this error would affect Saeteurn’s conditions of confinement. Id.

Issue(s): “[I]s the sentencing judge required to resolve disputes regarding facts recited in the Presentence Investigation Report (“PSR”), when those facts do not affect the term of imprisonment imposed but may affect how the sentence is served, including a possible early release from prison?” Id.

Held: “We hold that there is no such requirement upon the sentencing judge.” Id.

Of Note: This case has the defense bar up in arms. Tim reports that the government never contested the defense objection – in other words, it was effectively conceded that the PSR was wrong. Moreover, this PSR error will have a huge impact on Saeteurn’s incarceration. Because of this alienage issue, he’ll be ineligible for a camp, will likely end up in a higher-security facility, won’t get into rehabilitative programs, and won’t be eligible for early release from prison. Id. There’s no shortage of information in a PSR that is often wrong, and that has a tremendous impact on a defendant’s incarceration: gang affiliation, conduct on pretrial release, and – most recently – allegations of prior sex misconduct. After Adam Walsh, BOP flunkies review every PSR, highlight all sex-related information, and shunt federal inmates to sexual predator civil commitment proceedings. Saeteurn is thus remarkably divorced from the reality of current practice: as PSRs become more and more critical to every aspect of an inmate’s term of custody, the Ninth responds by tolerating critical errors in the reports?

Judge Bea’s reassurance that the impact of a PSR’s error on incarceration can be corrected with a Section 2241 habeas is particularly frustrating. Id. at *4 n.12. (See DOJ's strategy for defeating 2241 habes here). While this habeas slowly grinds through the system, the inmate must wait in more-onerous conditions of confinement (based on a erroneous PSR?) Even from a pure resource-allocation perspective, this is a bad decision. Why not correct PSR errors when a defendant has counsel and everyone is prepared to litigate the issue at a sentencing hearing? Or is the Ninth hedging that by shifting the dispute from sentencing to habeas it will effectively moot many of these cases when discouraged (and unrepresented) inmates just give up?

How to Use: A petition for rehearing is brewing. In the interim, note that Saeteurn just holds that a district court can avoid resolving disputed PSR facts if these facts don’t affect sentencing. Of course, a district court retains discretion to correct PSRs – and a responsible judge will, particularly when BOP consequences are explained. Sentencing Resource Counsel Baron-Evans notes that Probation Monograph 107 provides authority to correct and amend a PSR – and has been used to black out or completely revise errors in reports.

For Further Reading: As noted above, Saeteurn hits a real nerve because BOP routinely uses PSRs to “certify” federal inmates for Adam Walsh civil commitment. Civil commitment is effectively a life sentence – and we’ve already seen examples where the PSRs of referred inmates have contained patently erroneous information about the inmate’s sexual history. Beware: every federal inmate is now being screened for civil commitment before release! See BOP Watch Blog (search “Re: Child Exploitation Conviction.”) Every federal practitioner should read the Adam Walsh Civil Commitment memo available here . This excellent memo demonstrates why pushing the district court for a “clean” PSR is so important - Saeteurn or no.

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

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