Case o' The Week: Ninth Nod re: Overbroad - Martinez and Taylor Analysis

Forget the finches: for proof of evolution, study the Ninth’s Taylor analysis.  

  United States v. Martinez, 2015 WL 3406178 (9th Cir. May 28, 2015), decision available here.

Players: Decision by Judge Rawlinson, joined by Judges William Fletcher and (visiting) Tenth Circuit Judge Ebel. Big win for AFD Rebecca Pennell, Federal Defenders of Eastern Washington & Idaho.

Facts: Martinez was convicted of third-degree child molestation in violation of Wash. Rev. Code. § 9A.44.089. Id. He was later ordered removed by an I.J. Id. A decade later, Martinez was indicted for being found in the U.S. after removal, in violation of 8 U.S.C. § 1326. Id. Martinez moved to dismiss the indictment, on the theory that the Washington statute was broader than the generic offense of sexual abuse of a minor “because it criminalized sexual contact involving the touching of a minor over clothing.” Id. The state offense was thus not an agg felony, argued the defense. Id. The district court relied on Jimenez-Jimenez and denied the motion, holding the Washington offense was a categorical match because the act of sexual touching of a 14 or 15 year old, by a defendant 48 months older, was “maltreatment of a child” and was therefore categorically “abuse.” Id.

Issue(s): “[ ] Martinez challenges the district court’s denial of his motion to dismiss an indictment alleging that he was found in the United States subsequent to an order of removal in violation of 8 U.S.C. § 1326. Martinez asserts that the underlying removal order was invalid because his conviction for third-degree child molestation in violation of Wash. Rev. Code § 9A.44.089 (2001) was not aggravated felony.” Id. at *1.

Held: “Because recent developments in the law support Martinez’s claim, we reverse the district court’s denial of Martinez’s motion to dismiss the indictment.” Id. “We conclude that Martinez’s conviction for third-degree child molestation does not categorically qualify as an aggravated felony.” Id. at *3.

Of Note: What, actually, did Martinez do with the minor to merit the Washington state conviction? Who knows? The facts of the Prior are (appropriately) not discussed in the opinion, because Judge Rawlinson correctly refuses to go down the road of the modified categorical analysis. Id. at *4 (quoting Descamps). The government can’t muck about with the underlying conviction facts, because the state statute at issue “has a single, indivisible set of elements and is missing elements of the generic definition of sexual abuse of a minor.” Id. at *4 (quotations and citations omitted). Offense facts and the modified categorical analyses are generally steps we like to avoid when doing the Taylor dance. This Martinez discussion of “indivisible” is a good addition to the complex Taylor compendium.

How to Use: What is the generic definition of “sexual abuse of a minor?” Judge Rawlinson works through “a series of opinions” that have articulated “an evolving generic definition of this offense.” Id. at *2 -*3. “Evolving” is a good description – since the 2008 Estrada-Espinoza en banc decision, the Ninth (with some welcome guidance from the Supremes in Descamps) has defined and redefined this particularly tricky offense. Judge Rawlinson provides a clear and brief history of this changing area of law: a useful starting point when delving into a Section 1326 or sentencing challenge to the categorical use of a state prior.

                                               

For Further Reading: Martinez illustrates what we all know: priors are often the issue in a federal case. That’s particularly true when the government tries to throw a prior into the gooey mess of the ACCA’s residual clause. Whether that residual clause survives constitutional muster is very much a live issue right now, as the Supreme’s take another bite at Johnson. For a good summary of Johnson and its current status, see Paul Rashkind’s excellent Supreme Court update here. 

   Object and object encore if the residual clause is at issue in your case – this term may bring welcome news.

Image of Finch evolution from http://www.zo.utexas.edu/courses/bio301/chapters/Chapter7/fig7.4.jpg

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

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Case o' The Week: Estoppel - well, estopped - Rodman and Entrapment by Estoppel

 

Hon. Judge Milan Smith

Licensed firearm agents should know better than giving bad advice that gets our clients arrested.

  Turns out, however, that “should know better” concept unfortunately cuts both ways.

 United States v. Rodman, Slip. Op. 13-10337, (9th Cir. Jan. 9, 2015), decision available here.

Players: Decision by Judge M. Smith, joined by Judges Wallace and Silverman.

Facts: Rodman and others were indicted with a conspiracy to unlawfully transfer machine guns by making false entries on ATF forms. Slip Op. at 4. To avoid restrictions on the transfer of these guns, Rodman and his codefendants built and sold guns that used serial numbers cut from pre-ban machine guns. Id. The ATF forms used to transfer were fraudulent. Id. at 6. Clark, who was licensed to sell these guns, told Rodman this was a legal method to transfer machineguns (Rodman claimed during trial). Id. At trial, Rodman asked for and was denied a jury instruction for entrapment by estoppel based on Clark’s alleged statements that this method of manufacturing machine guns was lawful. Id. at *7.

Issue(s): “Rodman argues that that the district court erred when it refused to give an entrapment by estoppel instruction based on his claim that Clark, a federal firearms licensee, told Rodman that the manner in which Clark manufactured and then transferred guns was legal.” Id. at *11.

Held: “Rodman is not some customer off the street inquiring about whether he can legally purchase a firearm. Rodman is himself a federal firearms licensee. . . . [W]e decline to extend the holdings of Tallmadge and Batterjee to apply when the firearm transaction is made between two federal firearms licensees. Therefore, the district court did not err by failing to give the requested entrapment by estoppel instruction as Clark was not acting as an authorized government official in this context.” Id. at 11.

Of Note: If you buy pot from a dealer, are the pair of you conspiring to distribute marijuana? No, thanks to the “buyer-seller relationship” theory, which requires the government in this situation to show “an agreement to commit a crime other than the crime that consists of the sale itself.” Id. at 12. Otherwise, every small drug sale would instantly turn into a narcotics conspiracy. Rodman tried that argument here, to no avail; he wasn’t charged with conspiring to sell guns, but conspiring to defraud the ATF. Id. at 12-13.

How to Use: Rodman’s estoppel didn’t work because he was a licensed firearms dealer – and the Court wasn’t sympathetic to the idea that he could rely on another dealer for erroneous advice about machine guns. Id. at 11. Would the outcome have been different, however, if Rodman had just been an ordinary customer? Maybe. Judge Milan Smith briefly discusses two cases where the Court has treated licensed firearm dealers as authorized government officials, in the context information about firearm purchases. Id. at 11 (discussing United States v. Tallmadge, 829 F.2d 767, 774 (9th Cir. 1987), and United States v. Batterjee, 361 F.3d 1210, 1217-19 (9th Cir. 2004). A defense to bear in mind, when a (usually prohibited) client relies on bad advice from a licensed firearms dealer, and ends up with gun he or she shouldn’t have.

                                               

For Further Reading: AFPD Kate Menendez argued the Johnson case before the Supreme Court in November of last year. The case deals with whether sawed-off shotguns are inherently “violent” for purposes of the ACCA. See generally SCOTUS blog here. 

  Last Friday, January 9th, the Court asked the parties to brief “"Whether the residual clause in the Armed Career Criminal Act of 1984, 18 U. S. C. §924(e)(2)(B)(ii), is unconstitutionally vague." See Order here. It will be put on the Court’s calendar for re-argument during the April 2015 session.

   Preserve the issue now – and take a close look at Prof. Rory Little’s prescient argument for this development in his blog, here.

Image of the Hon. Judge Milan Smith from https://www.law.hawaii.edu/sites/www.law.hawaii.edu/files/content/coliver/tn_Ninth%20Cir-%20Avi.JPG

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

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Case o' The Week: A Sentencing Septimana Infaustus: Terrell-ible Decision on ACCA Residual Clause

Is a prior burglary of a vending machine a "crime of violence" that triggers the draconian mandatory-minimum and guidelines of the Armed Career Criminal Act? It can be in the Ninth, thanks to a very disappointing decision in United States v. Terrell, 2010 WL 347914 (9th Cir. Feb. 2, 2010), decision available here.

Players: Decision by Judge Bybee, joined by Judges Tashima and Graber.

Facts: Terrell was convicted of being a felon in possession of a gun. Id. at *1. The indictment alleged he had previously been convicted of three felonies:

i. an Arizona Second Degree burglary,

ii. an Arizona sexual assault, and

iii. a second-degree burglary in Missouri.

(Ed. note: Curious that the priors were alleged in the indictment).

The district court found Terrell to fall within the Armed Career Criminal Act (ACCA), which raised his stat-max from ten to fifteen years. Id. He was sentenced to 188 months. Id. at *2.

Issue(s): “Terrell argues that the district court erred in imposing an enhanced sentence under the ACCA, contending that his prior felony convictions do not qualify as ‘violent felonies.’” Id.

Held: 1. Sexual Assault: “[W]e hold that Terrell’s prior sexual assault conviction qualifies as a ‘violent felony’ under the ACCA’s residual clause because it involves conduct that presents a serious potential risk of physical injury to another . . . and is roughly similar to the enumerated offenses in that it typically involves purposeful, violent, and aggressive conduct.” Id. at *6 (internal quotations and citations omitted).

2. Burglary: “We hold that, although Terrell’s prior burglary offenses do not fit within the enumerated offenses, they do fit within the residual clause.” Id. at *7.

3. ACCA? “Because the district court correctly held that Terrell had been convicted of at least three ‘violent felonies’ at the time he committed his felon in possession offense, we affirm the district court’s decision to enhance Terrell’s sentence under the ACCA.” Id. at *10.

Of Note: Terrell has sparked much debate among defense experts as to what exactly is wrong with the opinion. Among other problems with the case is Judge Bybee’s expansive reading of the Supreme Court’s Begay opinion and the ACCA residual clause, particularly as it applies to state burglary crimes. Id. at *10. He interprets Begay to mean that “a state burglary offense is almost always at least ‘roughly similar’ to generic burglary, even if the state offense is somewhat broader.” Id. (emphasis added).

To get there Judge Bybee concludes that because there’s a risk of violent confrontation during an Arizona Second Degree burglary, it is “similar to” an “enumerated” burglary in the ACCA statute. That’s all well and good, except that this Arizona statute also defines “burglary” as breaking into a vending machine. Id. at *6. Is “burglaring” Doritos really the type of “violent criminal” that Congress had in mind when passing the ACCA?

Terrell casts the categorical net so broadly that it rends Taylor irrelevant – any state statue named the same as an enumerated ACCA crime will be deemed “close enough.” Terrell’s take on Begay will sweep many undeserving defendants into the ACCA’s fifteen-year mandatory minimums (and even higher guidelines): the case deserves en banc review.

How to Use: Undaunted, CJA appellate attorney Dan Drake has just begun to fight and has been hitting up the defense bar for ideas for his en banc petition. Preserve challenges to ACCA enhancements despite Terrell. There is much afoot in the Ninth on these issues (see below), and Terrell will hopefully not be the last word on the issue.

For Further Reading: Busy and bad describes this week in the Ninth. In the notorious Ressam case, Judge Alarcon weighed-in on a terrorism sentence and inadvertently created a bevy of defense opportunities for sentencing appeals. See 2010 WL 347962 (9th Cir. Feb. 2, 2010). As dissenting Judge Fernandez quipped, the broader impact of the case will make the day it was delivered a, “dies infaustus.” Id. at *37 (an “unlucky day.”)

And in another blow, on February 3rd the Ninth granted the government’s petition for rehearing en banc in Aguila-Montes de Oca, that wonderful Judge Thompson decision that excluded California burglaries as “crimes of violence” for the illegal reentry guidelines. See blog here.



Image of the vending machine from http://www.fooducate.com/blog/tag/vending-machine/ .

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

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