Case o' The Week: A BEAutiful Appellate Waiver Case - Dailey and SORNA Registration Requirements

Give thanks, for the Ninth's limitations on appellate waivers.

United States v. Dailey, 2019 WL 5688814 (9th Cir. Nov. 4, 2019), decision available here.

Players: Decision by Judge Bea, joined by Judges Gould and Friedland.  

Facts: Jazzmin Dailey was charged with the prostitution of a minor in Las Vegas. Id. at *1. She charge-bargained to violating the “Travel Act,” which criminalizes travelling in interstate commerce with the intent to commit unlawful activity (including non-sexual criminal activity). Id. at *2; see also 18 U.S.C. § 1952(a)(3).

   Her plea agreement contained an appellate waiver.

  In an admirable decision, Chief District Judge Gloria Navarro varied downwards and sentenced Dailey to no imprisonment and three years of probation. Id. at *3.   The sentence included a provision that Dailey had to comply with the Sex Offender Registration and Notification Act (SORNA) as directed. Id. at *3. 

  Dailey was required to register as a sex offender in her state of residence, Arizona. Id.

Issue(s): “On appeal, Dailey makes three arguments challenging the legality of the condition requiring her to register as a sex offender. First, she argues the district court imposed an illegal sentence by requiring her to register as a sex offender because she was not convicted of a ‘sex offense.’ Next, she argues the district court did not provide her adequate pre-sentencing notice that she would be required to register as a sex offender under SORNA. And finally, she argues the district court delegated the Article III power to impose a criminal sentence by leaving the determination whether Dailey would be required to register as a sex offender to the probation office or state officials.” Id. at *1.

Held: “[W]e reject all three arguments, conclude that the sentence was legally imposed, and dismiss the appeal based on the enforceable appellate waiver in Dailey’s plea agreement.” Id.

Of Note: The core issue of Dailey is whether the residual clause in SORNA is subject to the categorical approach, (on the issue of whether an element of the statute of conviction required that the victim was a minor). Id. at *6-*7. Judge Bea concludes it is not: “the statutory text and structure are clear.” Id.

  The Ninth joins the 4th, 5th, and 8th Circuits and holds that a non-categorical approach to the SORNA registration requirements is appropriate. Id. at *7.

  This is bad news for our clients – the non-categorical approach cast a much broader net, and will ensnare defendants like Dailey in the SORNA registration requirements.

How to Use: There’s lots of words, in Dailey, for a case that ultimately upholds an appellate waiver. Judge Bea explains that the familiar Bibler exceptions to appellate waivers includes an unlawful sentence – and that unlawful probation conditions fall within this exception. Id. at *3 (citing United States v. Watson, 583 F.3d 974, 987 (9th Cir. 2009)). Judge Bea then works through each of the challenges to the registration requirement, to consider whether it was lawful. Because the terms of probation were finally concluded to be lawful, the Ninth ultimately enforces the appellate waiver.

  From the defense perspective, this appellate waiver turns out to be a de minimis barrier to full Ninth review of the legality of the conditions of probation (and the same theory applies to supervised release!)

  Consider Dailey when conditions of probation or supervised release get your goat, but there’s an appellate waiver in the plea agreement. If your Ninth challenge goes to the legality of the supervision conditions, an appellate waiver in a plea agreement is essentially a meaningless term: appeal away. If the probation (or supervised release) conditions are unlawful, the plea agreement’s appellate waiver is unenforceable: our clients win. If the conditions are lawful, the waiver is enforced – but our client has had full appellate review of their legality.

                                               

For Further Reading: Two more of President Trump’s Ninth nominees, Mr. Lawrence VanDyke and Mr. Patrick Bumatay, cleared another Senate hurdle last week. See article here.  

Image of turkey urging waiver from https://mainesport.com/turkey-ride/

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

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Case o' The Week: Shades of Gray - United States v. Gray and Rule 32 rights at Form 12 sentencings

   Probation may see black and white, but there are many shades of Gray.

  United States v. Gray, 2018 WL 4763175 (9th Cir. Oct. 3, 2018), decision available here.

Players: Per curiam decision with Judges Leavy, Hawkins and Tallman. 

   Nice win for AFPDs David A. Merchant II and Josyln Hunt, District of Montana.

Facts: Ashley Gray was charged with violations of supervised release. Id. at *1. Gray was arrested and the district judge then referred the case to the magistrate judge “for hearing, finding of facts, and recommendation.” Id. 

  At the revocation hearing before the magistrate judge, Gray admitted to all but one of the allegations. Id. The guideline range was 4-10 months: Defense counsel asked for three months of custody; the government, five. Id. 

  The magistrate judge recommended five months. Id. 

  The MJ advised Gray she had the right to appear before the district judge, but would have to file a written objection within two weeks to do so. Id. Gray didn’t file any written objections to the magistrate judge’s findings and recommendation. Id. at *2. 

  The Honorable District Judge Lowell then relied on a Probation Officer’s (confidential) sentencing recommendation of 20 months. Id. The district judge considered Gray's monitored jail phone calls that – according to Probation -- revealed a “lack of remorse.” Id. Without a hearing, the district court imposed Probation's recommended custodial sentence of twenty months. Id. 

   The district court’s twenty-month custodial sentence was “four times the length of the sentence recommended by the magistrate judge and the government.” Id. at *3 (emphasis in original).

Issue(s): “Gray contends that the district court violated Federal Rule of Criminal Procedure 32 by failing to disclose to her factual evidence on which it relied at sentencing.” Id. at *2.

Held: “The government concedes that the district court erred, and we agree.” Id. 

  “Rule 32 ‘require[s] the disclosure of all relevant factual information to the defendant,’ including ‘factual information underlying a probation officer’s confidential sentencing recommendation.’ . . . . In its order sentencing Gray, the district court relied on the probation’s officer confidential sentencing recommendation, which included factual information that had not been disclosed to Gray and to which she had no opportunity to respond before sentence was imposed. Accordingly, we must vacate and remand for resentencing.” Id.

Of Note: For many in the Ninth, this Montana procedure seems foreign: a District Judge delegated sentencing of a supervised release violation to a Magistrate Judge? Here, Gray consented and agreed to proceed before the MJ. Doesn’t matter, explains the Ninth. “In conducting proceedings based on an order of reference by a district court, a magistrate judge does “not possess the authority to impose sentence; only the district court possesse[s] that authority.” Rodriguez, 23 F.3d at 921. Thus, even if the defendant is given an opportunity to appear and speak before the magistrate judge, the district court must provide the defendant an additional opportunity before the actual sentence is imposed.” Id. at *3.  

How to Use: There’s an interesting waiver holding buried in Gray. Gray didn’t object to the Magistrate Judge’s findings and recommendation: why didn’t she lose her right to complain about the D.J.’s later sentence? 

  The Ninth held that Gray's general lack of objection to the MJ's recommendation wasn’t an “explicit waiver of her right to be present and allocute.” Id. at *3. Gray teaches that waiver of Rule 32 rights isn’t a casual thing: invoke it when the government hides behind a waiver argument in sentencing and allocution claims.

                                               

For Further Reading: In Gray, the defense, the M.J., and the AUSA were just months apart in their sentencing recommendations – and all were in or near the guideline range. Probation, by contrast, urged a custodial term four times the government’s recommendation and double the high-end of the guidelines. 

  Does the largely-unfettered discretion of Probation to initiate violation proceedings, or to recommend sentences, increase sentencing disparity? 

  For an interesting piece wrestling with that question, see Probation and Parole Officers and Discretionary Decision-Making: Responses to Technical and Criminal Violations, available here.

Image of Probation Officer badge from https://www.pinterest.com/pin/561964859745692847/

Steven Kalar, Federal Public Defender, N.D. Cal.

New website available at https://www.ndcalfpd.org/ (many thanks to creative web master AFPD Candis Mitchell!)

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Case o' The Week: The Ninth Smokes Marijuana Argument - Nixon and the Scope of the Marijuana Rider to Appropriations Bill

Congress pays the Court to impose marijuana conditions on supervision.

Congress pays Probation to report marijuana violations of supervision.

Congress pays us to defend marijuana violations of supervision.

(But who has Congress paid to prosecute marijuana violations?)

  United States v. Nixon, 2016 WL 6068201 (9th Cir. Oct. 17, 2016), decision available here.

Players: Per curiam decision, by Judges Trott, Owens, and Friedland.

Facts: Nixon was sentenced to three years of probation for drug charges. Id. at *1. “As a condition of probation, the district court required that Nixon refrain from unlawful use of a controlled substance and submit to periodic drug testing.” Id. Congress then enacted a rider on an appropriation bill that prohibited the use of federal funds to “prevent States [that had enacted medical marijuana laws] from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” Id. Nixon moved the court to modify his conditions of probation, and permit him to use medical marijuana in compliance with California’s Compassionate Use Act. Id. The court denied the motion, concluding that the rider may have impacted DOJ – but had “no effect on the Court or the Probation office, which is an arm of the Court.” Id. Nixon appealed.

Issue(s): “[W]hether a congressional appropriations rider that prohibits [DOJ] from using certain funds to prosecute individuals for engaging in conduct permitted by state medical marijuana laws impacts the ability of a federal district court to restrict the use of medical marijuana as a condition of probation.” Id. at *1.

Held: “We hold that it does not.” Id. “Nixon’s reading is not supported by the plain language of the appropriations rider and is foreclosed by our precedent. On its face, the appropriations rider restricts only the DOJ’s ability to use certain funds on particular prosecutions during a specific fiscal year. See United States v. McIntosh, . . . 2016 WL 4363168, at *11 (9th Cir. Aug. 16, 2016) (observing that the restriction on DOJ’s use of the appropriated funds is ‘temporal’ in nature.) Accordingly, we have warned that individuals still face the possibility of prosecution under the CSA . . . . Accordingly, the district court did not abuse its discretion by refusing to modify the conditions of Nixon’s probation to allow him to possess and use marijuana for medical purposes in violation of federal law.” Id. at *2-*3.

Of Note: In August, we hailed Judge O’Scannlain’s McIntosh decision on medical marijuana as an admirable and honest interpretation of Congressional intent. See blog here. 

  One wondered, however, how McIntosh would affect conditions of supervision and pretrial release. Nixon (sort of) answers that question. 

  Yet . . . read the case closely. The Ninth only holds that it was not an abuse of discretion to refuse Nixon’s requested modification. Id. at *3. It does not hold that DOJ can prosecute these violations – see “How to Use” below for thoughts on that twist.     

How to Use: Assume your client on probation, or supervised release, or pretrial release, has a lawful cannabis card and pees dirty for pot. After Nixon, a court can legally hold a violation hearing. After Nixon, Probation or Pretrial can hand up Form 12s and Form 8s. However, Probation and Pretrial Officers don’t have bar cards. What attorney has been funded by Congress to prosecute marijuana violations of supervision? That thorny question is dodged here: Nixon didn’t raise it. See id. at *2 & n.2 (“We therefore need not decide whether the appropriations rider affects the DOJ’s ability to participate in post-sentencing proceedings.”) Moreover, if DOJ doesn’t participate and the Court anoints Probation or Pretrial (“arms of the court”) to “prosecute” the violation, other problems arise. See id. (declining to resolve any problems presented by the separation of powers doctrine).

   It’s the next big issue – after the appropriation rider, who, precisely, is paying for AUSAs to litigate these violations?  

                                               

For Further Reading: Richard Nixon and pot have a long and complicated history. 

  For a fascinating account of how our thirty-seventh President once smuggled the devil’s weed into the United States, see article here.

Image of President Nixon smelling marijuana from http://www.tokeofthetown.com/2011/06/june_17_marks_40th_anniversary_of_nixon_declaring.php/

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

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Case o' The Week: A Great One - Pocklington and Juridisction to Revoke Probation

  Hiding assets from creditors -- not good, but the Ninth could still stomach a reversal.

  But making the Great One cry? Lucky this case isn’t in a Canadian court.

United States v. Pocklington, 2015 WL 4038740 (9th Cir. July 2, 2015), decision available here.

Players: Decision by Judge McKeown, joined by Judges Kleinfeld and M. Smith.

Facts: Among other crimes, Pocklington traded away Wayne Gretzky while he was a very successful Canadian businessman who owned the Edmonton Oilers. Id. at *1. His fortunes turned, he moved to California from Canada, and he filed for bankruptcy. Id. In his bankruptcy petition, he certified he didn’t hold or control property controlled by another. Id. In reality, however, he controlled storage units and a bank account that had his wife’s property and funds. Id. He pleaded to perjury to avoid bankruptcy fraud charges, and was sentenced to two years of probation. Id. 

  Near the end of his probation term, his P.O. got a letter for the creditors’ attorney alleging Pocklington had failed to disclose millions of dollars in various assets. Id. Probation notified the court, the court was – concerned – Probation got an FBI agent involved, and (five days after probation expired) the court extended his probation term to investigate further. Ultimately the district court revoked his probation (after probation was over). Id. He was sentenced to six months custody and two years of supervised release. Id.

Issue(s): The central issue in this appeal is whether the requirements for extending probation under 18 U.S.C. § 3565 are jurisdictional.” Id. at *2. “In this appeal, we consider the court’s authority to retroactively revoke probation and impose a criminal sentence after the period of probation has expired.” Id. at *1.

Held: “We hold that § 3565 is jurisdictional and that when Congress used the words ‘warrant or summons,’ it mean them. Close enough doesn’t fly under the statute. If the government suspects wrongdoing and wants to extend the probation period, § 3565 provides easy-to-follow instructions: get a warrant and summons before probation expires. Because the government did not do so, the district court lacked jurisdiction to extend Peter Pocklington’s probation beyond its termination date. We reverse and vacate the district court’s post-termination order revoking Pocklington’s probation and imposing penalties for purported probation violations.” Id. at

Of Note: Here’s an appellate quiz. Pocklington didn’t raise this challenge in the district court. Plain error? Nope. “We review subject matter jurisdiction de novo despite any failure to object . . . in the trial court.” Id. at *2 (internal quotations and citation omitted). A welcome appellate review standard – though beware, perhaps unique to the Ninth. Id. (noting Sixth Circuit pain-error review of jurisdiction inquiry under 18 U.S.C. § 3583(i).” Id.

How to Use: Pocklington’s value to stave off late Probation (and by extension, supervised release) violations is obvious. The decision has broader import, however, for its thoughtful discussion of jurisdiction. Judge McKeown explains how the Court determines whether Congress wants statutory provisions to be jurisdictional. She flags the magic statutory phrase – “the power of the court” – as an awfully strong indication that jurisdiction is in play. Id. at *2-*3. It’s a useful analysis, because winning on jurisdiction has many benefits (the aforementioned de novo review, for example). Moreover, the Court has “no authority to create equitable exceptions to jurisdictional requirements.” Id. at *3 (quotation and citation omitted). As Judge McKeown explains, “[t]hat wiggle room falls within Congress’s province.” Id. Good stuff for j/x fights – the Ninth refuses to “fudge the plain language” to get around this jurisdictional bar. Id. at *4.

                                               

For Further Reading: Johnson is rolling like a slow quake through the system, as Defenders grapple with the impact for ACCA and Career Offender clients. 

   For a very interesting scholarly take (with a worrisome “why categorical?” kicker), see Prof. Rory Little’s piece, Opinion analysis: The Court strikes down the ACCA’s residual clause as vague. But is the real problem the “categorical” approach?, SCOTUSblog (Jun. 29, 2015, 10:55 AM), available here.

Image of Wayne Gretzky from http://www.edmontonjournal.com/sports/hockey/edmonton-oilers/gretzky-trade/assets/img/gretzky-front-page.jpg

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

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