Case o' The Week: Baker Effort Undercooked, Needs Trip to En Banc Oven -- Fourth Amendment and Probation Conditions

Judge Susan Graber (right) is often a tough draw for a criminal defendant on appeal. See blog collections involving Judge Graber here.

She is also no radical when it comes to the Fourth Amendment. See generally, United States v. Crapser, 472 F.3d 1141 (9th Cir. 2007) (Graber, J., affirming warrantless hotel search over Judge Reinhardt's vigorous dissent).

So, when Judge Graber worries that "suspicionless" search conditions for probationers have finally crossed the Fourth Amendment line, and warns that the Ninth should go en banc to review its authority in light of Supreme Court jurisprudence, her call to action should sound alarm bells. Baker, the subject of this "Case o' The Week" post, should go en banc. United States v. Baker, 2011 WL 4359923 (9th Cir. Sept. 20, 2011), decision available here.

Players: Hard-fought case by Bay Area private counsel Jay Nelson and Ethan Balogh. Decision and concurrence by Judge Graber.

Facts: Baker was a passenger in a car during a high-speed chase. Id. at *1. When ultimately stopped, cops found 10 grams of meth in the car. Id. Baker was nonetheless charged with over fifty grams of meth, a mand-min felony. Id. At trial, cops testified that they saw a “snowstorm” of meth thrown out of the car as it fled. Id.

In a great trial victory, Mssrs. Nelson and Balogh beat the felonies and Baker was convicted of misdemeanor possession. Id. Over defense objection, ND Cal DJ Breyer imposed a “suspicionless search” condition on Baker’s term of probation. Id. at *2.

Issue(s): “Defendant challenges the probation condition that permits a suspicionless search:

The defendant shall submit his person, property, place of residence, vehicle and personal effects to search at any time of the day or night, with or without a warrant, with or without probable cause, and with or without reasonable suspicion, by a probation officer or any federal, state, or local law enforcement officer. Failure to submit to a search may be grounds for revocation. The defendant shall warn any residents that the premises may be subject to search.

Id. at *3.

“The government argues that it has a strong interest in protecting the public and that, as a probationer, Defendant has a reduced expectation of privacy and an increased risk of recidivism. Accordingly, the government argues, a suspicionless search condition does not violate the Fourth Amendment. Defendant counters that, although he has a reduced expectation of privacy, it is not reduced so much that a warrantless search, on the basis of no suspicion whatsoever, is reasonable. Defendant points out that he was convicted of a relatively minor misdemeanor drug offense and that the government's interest in protecting the public is therefore less than, for instance, the government’s interest in supervising a convicted violent felon.” Id. at *4.

Held: “We are bound by precedent to agree with the government. In Samson, . . . the Supreme Court held that a suspicionless search of a parolee does not violate the Fourth Amendment. Since that case was decided, we have applied our rule that there is no constitutional difference between probation and parole for purposes of the fourth amendment. . . . Because a suspicionless search of a parolee does not violate the Fourth Amendment, . . . and because our precedent dictates that there is no constitutional difference between probation and parole for purposes of the fourth amendment, we must conclude that a suspicionless search of a probationer does not violate the Fourth Amendment.” Id. at *4 (quotations and internal citations omitted).

Of Note: In a persuasive concurrence, Judge Graber urges that this case should go en banc. As she correctly explains, a parolee is not identical to a probationer for the Fourth Amendment analysis.“The Supreme Court has not addressed the question left open in Knights and raised here: whether a suspicionless search condition imposed on a probationer violates the Fourth Amendment.” Id. at *8 (Graber, J., concurring).

As noted above, Judge Graber is not traditionally viewed as a defense ally and her en banc suggestion should carry particular weight. See id. at *9 (“[T]his court’s continued reliance on the proposition that there is no difference between parolees and probationers in this context directly contravenes the Supreme Court’s clear statements in Samson and, critically, forecloses our ability to resolve that significant question on its merits. We should convene en banc so that we can correct our mistaken continued application of the Motley rule.”)

How to Use: Preserve the objection conditions of probation that impose suspicionless searches: an en banc petition is certain – review, likely.

For Further Reading: For the first time in a long time, the Ninth has lost an active judge: the Honorable Pamela Ann Rymer (left) passed away last week. See article here.

Judge Rymer was appointed to the Ninth by President H.W. Bush in ‘89, after being bandied against Justice Kennedy for the Supremes. For a retrospective of Judge Rymer’s criminal law decisions, see collection here.

While the defense often disagreed with Judge Rymer's positions, she was an engaged jurist and an elegant legal writer. As we observed in our '08 summary of the Zavala/Carty en banc decision, "Judge Rymer’s concise, bullet-point distillations of the Supreme Court’s sentencing morass are clear and well-written; they will be the Ninth’s hornbook for post-Booker sentencing practice. . . . If a Ninth Circuit defense counsel reads only one thing on federal sentencing, it should be Carty." See blog here.


Image of the Honorable Susan Graber from http://www.id.uscourts.gov/distconf08/photos/slides/Judge%20Susan%20Graber%20.JPG Image of the Honorable Pamela Rymer from http://nh.tributes.com/show/Pamela-Rymer-92390242


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

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Case o' The Week: Critical for the Defense, "Collateral" for a Court? -- Delgado-Ramos, Immigration advisements, and Rule 11

Assume a defendant isn't warned of serious immigration consequences before he or she enters a plea of guilt. If it is the defense attorney who fails to advise his client, that failure is called "ineffective assistance of counsel." Padilla v. Kentucky, 130 S.Ct. 1473 (2010)

And if the district court fails to advise the same client, of the same immigration consequences, before the same guilty plea? Then these immigration ramifications are transformed into mere "collateral consequences" of a plea and there is no error, apparently. United States v. Delgado-Ramos,__ F.3d __, 2011 WL 1312778 (9th Cir. April 7, 2011), decision available here.

Players: Per curiam decision by Judges Rymer, Callahan, and Ikuta.

Facts: Delgado-Ramos entered an open guilty plea to illegal reentry before the Supreme Court’s decision in Padilla v. Kentucky, 130 S.Ct. 1473 (2010). Id. at *1. (Padilla is the important new decision holding that defense counsel was ineffective when he or she failed to advise the client of the immigration consequences of a conviction). While taking the plea, the district court did not advise Delgado-Ramos of the immigration consequences of the conviction. Id.

Issue(s): “Jose Delgado–Ramos appeals his conviction for attempted entry after deportation, see 8 U.S.C. § 1326(a)-(b), on the ground that the district court failed to inform him of the immigration consequences of his plea during the plea colloquy.” Id. at *1. “In United States v. Amador–Leal, 276 F.3d 511 (9th Cir.2002), we held that Rule 11 and due process do not require a district court to inform a defendant of the immigration consequences of his plea . . . Delgado argues, however, that the Supreme Court's recent decision in Padilla ‘casts doubt’ on the continued force of Amador–Leal and requests that we remand this case to the district court so that he ‘can plead anew.’” Id.

Held: “For a three-judge panel to hold that an intervening Supreme Court decision has ‘effectively overruled’ circuit precedent, the intervening decision must do more than simply ‘cast doubt’ on our precedent. Rather, it must ‘undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable.’ Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003) (en banc). That high standard is not met here.” Id. at *1. “While Padilla's holding is directly applicable to our Sixth Amendment analysis in Fry, it sheds no light on the obligations a district court may have under Rule 11 and due process. Accordingly, we cannot say that Padilla ‘undercut[s] the theory or reasoning underlying’ our decision in Amador–Leal ‘in such a way that the cases are clearly irreconcilable.’” See Miller, 335 F.3d at 900. Because Amador–Leal remains the law of the circuit, the district court did not err in failing to advise Delgado of the immigration consequences of his plea.” Id. at *3.

Of Note: The panel in Delgado-Ramos goes to great lengths to distinguish Padilla, emphasizing that here the challenge is a Due Process / Rule 11 claim about the validity of a plea of guilt, and in Padilla it was a claim of ineffective assistance of counsel. Id. at *1.

With all respect, the distinction is unpersuasive.

In a nutshell, the panel relies on old case law that excused plea colloquies that did not advise of “collateral consequences.” Id. at *2. No fair reading of Padilla can leave one with the impression that immigration consequences remain “collateral,” anymore.

In the panel’s defense, a three-judge panel has to be chary about finding that intervening Supreme Court precedent has abrogated previous Ninth authority – but the opinion could have more openly conceded how pervasively Padilla has eroded the rationale underlying Ninth Circuit law. Delgado-Ramos in ripe for review, and the Ninth should take this opportunity to take the case en banc, ditch its old Rule 11 law, and get its authority in line with Padilla.

How to Use: It is hard to imagine how the holding of Delgado-Ramos could survive en banc or Supreme Court review. If you have this issue, bring it: this three-judge decision does not close the debate. Unfortunately, to really have the issue on appeal one would have to stay mum at the plea and let the district court forget to advise the client (otherwise, it is an easy error to fix by the district court judge). This failure to object leads to plain error review, and to survive the Olano analysis will be tricky business (particularly when defense counsel should always be giving Padilla advisements in any event, fatally undermining the necessary prejudice showing). Interesting, though, to think how a corrected Delgado-Ramos decision could be used in a habeas corpus challenge to a prior, or a writ of coram nobis.

For Further Reading: Those heartless Feds are going to deport your poor alien client, while relying on completely indecipherable immigration law - shouldn’t they at least give defense counsel a basic "crimigration" primer so you can give the client meaningful Padilla advisements before the plea?

They have – and it is a very useful resource. See Monograph here.


Image of Customs agent from http://www.ehow.com/info_8083203_laws-immigration.html


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

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Case o' The Week: Peeples and Pretrial Release for Child Porn Defendants

Litigating in the post-Booker world should have prepared us for the Ninth's three-page, per curiam, New Year's Eve decision in Peeples, where a panel assures us that "mandatory" is really "discretionary," so there's no constitutional worries at all. United States v. Peeples, No. 10-30338 (9th Cir. Dec. 28, 2010), decision available here.

Players: Hard-fought appeal by Montana AFPD John Rhodes. Per curiam decision by Judges Goodwin, Rymer, and Graber.

Facts: After being indicted for receipt of child porn, Peeples was released by the magistrate. Id. at *1. Some conditions of release were mandatory under the Bail Reform Act, as amended by the Adam Walsh Act of 2006. Id. Specifically, Peeples had a curfew and was subject to electronic monitoring. Id. Peeples challenged these mandatory conditions of release; the district court upheld the conditions. Id.

Issue(s): “Peeples . . . appeals the district court’s denial of his constitutional challenge to his conditions of release imposed pursuant to the Adam Walsh Child Protection and Safety Act of 2006 (‘Walsh Act”), 18 U.S.C. § 3142(c)(1).” Id. “Peeples’s principal argument is that the Walsh Act’s mandatory release conditions are unconstitutional as applied to him.” Id. at *2.

Held: “Peeples’s argument that his constitutional rights have been violated because he has not been afforded an individualized determination of his release conditions cannot stand in light of the district court’s duty to exercise its discretion in imposing the mandated release conditions.” Id. at *2. “Because the Walsh Act requires the district court to exercise its discretion in applying the mandatory release conditions to each individual’s circumstances, and in view of the established principle that a statute should be read to avoid serious constitutional issues, Peeples’s constitutional challenge to the Walsh Act does not succeed.” Id. at *3.

Of Note: This is a disappointing decision – both in its outcome, and in its analysis. The three-page opinion gives short-shrift to serious constitutional challenges that have been (successfully) raised by the defense bar since the 2006 Adam Walsh amendments to the Bail Reform Act. Most notably, the case side-steps the biggest constitutional problem by reassuring us that a magistrate still exercises individualized discretion when imposing mandatory conditions in the release order.

Huh?

Put plainly, the Ninth holds that the conditions aren’t mandatory because i) a magistrate is exercising his or her discretion when deciding to release the defendant at all, and ii) a magistrate still decides the fringes of the mandatory conditions, like when curfew starts. Id. at *2. The panel in Peeples dodges the real constitutional question: how can there be an individualized determination of release conditions, when a magistrate must impose a curfew and must impose electronic monitoring – even if the magistrate finds that those conditions are not warranted except for the Adam Walsh requirements? Hopefully an en banc panel or the Supreme Court will someday give this statute the constitutional scrutiny it deserves.

How to Use: Peeples only avoided constitutional infirmity by relying (too heavily) on the magistrate’s discretion in fashioning the nature of the mandatory Adam Walsh conditions. Id. at *2 (“The [magistrate] court took significant steps to ensure that the monitoring and curfew conditions did not interfere with Peebles’s work- and school-related needs.”) Use this principle against the government by fighting to limit the mandatory conditions as severely as possible. For example, why not limit electronic monitoring to only at night, when the defendant is on curfew? Id. If the magistrate bench refuses to tailor mandatory Adam Walsh conditions based on the specific characteristics of the defendant, then there isn’t an individualized assessment of release conditions. Without an individualized assessment, the statute is again vulnerable to an as-applied constitutional challenge. Put differently, Peebles’s stretch to save the Bail Reform Act from constitutional challenge now requires that magistrates do more tinkering with the mandatory Adam Walsh release conditions.

For Further Reading: For a useful discussion of the impact of the 2006 Adam Walsh Act on pretrial release, see Marcus J. Berghahn, Adam Walsh Act: Implementation, Implication and Challenges here.


New Year's card from http://www.dancegumbo.com/NYE


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


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Case o' The Week: Eleven is Better, Macinas-Flores

Like Nigel Tufnel, the Arizona Federal Public Defender likes Eleven. Rule Eleven of the Federal Rules of Criminal Procedure, to be precise -- the Rule that brought that office two big victories in the Ninth this week. See United States v. Macinas-Flores, 2009 WL 4282018 (9th Cir. Dec. 2, 2009), decision available here; see also United States v. Roblero-Solis, 2009 WL 4282022 (9th Cir. Dec. 2, 2009), decision available here.

(Ed Note - this memorandum discusses Macnas-Flores, and salutes the Roblero-Solis opinion in the "for further reading" section).

Players: Big win for D. Az. AFPD Dan Kaplan.

Facts: Folks in the US tipped-off ICE that their undocumented-alien relatives were being held hostage in a Phoenix stash house by alien smugglers. Id. at *1. The relatives were told to pay the smugglers, or the aliens would be beaten and raped. Id. ICE and the Phoenix police searched the stash house and found aliens, Macinas-Flores (and a co-defendant) and a loaded shotgun. Id.

On the eve of trial Macinas-Flores tried to plead to a deal to the gun alone (a § 924(c) charge), with a locked range of 25-45 years. Id. When the district court launched into the plea inquiry, Macinas-Flores answered, “I’m not really guilty.” Id. at *2. The trial judge stopped the plea proceeding, rejected the plea, called in the jury, and – after conviction – sentenced the defendant to life.

Issue(s): “Defendant argues that the district court erred in its handling of his guilty plea. He contends that the plea met all the requirements of Fed. R. Crim. P. 11(b), and that therefore the court had no discretion to reject it . . . . Alternatively, defendant argues that even if the court had discretion to reject his plea, it did not adequately explain its reasons for doing so and thus failed to actually exercise discretion.” Id.

Held: “Because the district court abruptly cut off the plea colloquy, we cannot conclude the plea satisfied all of Rule 11(b)’s requirements. As discussed below, however, we agree with defendant’s alternative argument and therefore the district court’s rejection of defendant’s guilty plea and remand for a new plea hearing.” Id.

Of Note: Macinas-Flores denied guilt, and the district court erred by rejecting the plea? The key to this counter-intuitive holding is Alford or nolo contendere pleas, “a plea of guilty in which a defendant maintains his innocence.” Id. at *3. A district court doesn’t have to accept an Alford plea, but it does have to engage in the Rule 11 inquiry and analysis that permits an appellate court to review the proceeding. That didn’t happen here, which bought the defendant a reversal and a chance to reclaim that fantastic 25-45 year deal

How to Use: Wisconsin District Judge Lynn S. Adelman (right) visits the Ninth and authors this opinion. (Recall his admirable and famous decision in the post-Booker Ranum opinion (blog on Ranum available here)). He's a seasoned and thoughtful jurist and a welcome visitor - hope he returns to the West again soon.

In Macinas-Flores, Judge Adelman brushes back the government’s whine of plain error in an analysis that is worth a close read. Id. at *8. Turns out a defendant does not “object” to a court’s ruling (like refusal to take a plea): instead, the party takes an “exception to the ruling.” Id. at *8. Under Fed. Rule of Criminal P. 51(a), exceptions to rulings of the court are unnecessary. Hence, one needn’t complain about a court’s erroneous ruling to avoid plain error review. Id. This is an adoption of a Seventh Circuit rule and is new to the Ninth – worth exploring the outer parameters of this distinction if you’re trying to dodge plain error review.

For Further Reading: One victory was not enough for Arizona last week – “the intrepid federal public defender” in Tuscon (a direct quote) chalked up another Rule 11 win as well. United States v. Roblero-Solis, et al., 2009 WL 4282022 (9th Cir. Dec. 2, 2009). Hard to imagine, but in enlightened Tuscon federal magistrates conducted the Rule 11 colloquy with fifty to a hundred defendants at a time. Id. at *2-*3. The government’s “Operation Streamline” churned undocumented aliens through the court en masse and cranked out dozens of simultaneous misdemeanor § 1325 convictions. Id. at *2.

Judge Noonan is thankfully unpersuaded by the remarkable efficiency of this judicial cattle call – he writes that the procedure violates Rule 11's demand that defendants be addressed “personally.” Id. at *8.

And the standard of review for the procedure in this case? Plain error! A bit of a head-scratcher, considering the Macinas-Flores rejection of Rule 11 plain error was delivered the same day . . . .


Image of Spinal Tap's Amps from http://citifield.files.wordpress.com/2009/07/spinaltap-11.jpg . Image of the Honorable Lynn Adelman from http://www.legis.wi.gov/senate/sen28/news/Photos/2009/images/Inauguration_adelman.jpg

Steven G. Kalar, Senior Litigator N.D. Cal. FPD.

Case o' The Week: The Real Deal, United States v. Augustine Murillo & Suspended Sentences

The Ninth continues its holiday break from criminal decisions, with the second straight week of civil cases filling its plate. This gives us a chance to reach back a bit and look a little decision with a big (unwritten) sub-context: United States v. Augustine Garcia Murillo, __ F.3d __, 2008 WL 5049914 (9th Cir. Dec. 1, 2008), decision available here.

Players: Decision by Judge Rymer (left), reversing District Judge Manuel Real (below right).

Facts: There’s two sets of facts in this case: those in the brief opinion, and the back story. (This COTW memo is longer than the opinion!)

From the opinion: Murillo pleaded guilty to illegal reentry. Id. at *1. Judge Manuel Real (important fact) “imposed a suspended sentence and then placed the defendant on probation for five years with a condition that he spend twelve months in custody during the probationary period.” Id.

From the back story: Murillo took a “fast track” deal under Fed. R. Crim. Proc. 11(c)(1)(C). Appellant’s (Gov’t) Brief, 2008 WL 891256 *3. This deal knocks an extra four offense levels off an illegal reentry defendant’s guideline range. Id. at *4. The deal was a joint recommendation for the low-end of Murillo’s range: 18 months. Id.

At sentencing, District Judge Real rejected the parties’ joint-recommended sentence of eighteen months, and imposed a sentence of five years of probation with a condition of twelve months custody. Id. Judge Real justified his sentence by reference to Section 3553(a)(4) and Booker. Id. at *14. When the government objected, Judge Real replied, “Take it up. I want to know if that’s right . . . If you don’t want to save money for the United States, take it up, so we’ll get the court of appeals to see whether or not that’s a legal sentence.” Id.

The government took it up.

Issue(s): (Ed. note: Because there is no statement of issues, this is a summary):

1. Suspended sentences: Do district court have the power to suspend the imposition of a sentence?

2. Probation: Can a district court impose a constant period of imprisonment as a condition of probation?

Held: “We reverse the district court and vacate the sentence.” Murillo, 2008 WL 5049914, *1.

1. Suspended Sentences: “Under our current sentencing scheme, district courts do not have the power to suspend the imposition of a sentence.” Id.

2. Confinement as condition of probation: “[A] district court may not impose a constant period of imprisonment as a condition of probation.” Id. “[W]e direct that on remand the case be reassigned to a different district judge for resentencing.” Id.

Of Note: Wasn’t it a tad cowardly of the government to run to the Ninth for relief? This was a locked deal: if the government didn’t like Real’s sentence it could have busted the (c)(1)(C) plea in the district court and duked it out there.

Moreover, defense counsel was in an awkward spot – Murillo had agreed to a specific deal, and the defense was both contractually and honor-bound to not advocate for Real’s lower sentence. This means that the Ninth decided these issues on a poorly-formed record with a hamstrung defense counsel.

Third, and perhaps most importantly, this was an appeal from the Honorable Manuel Real (right). One suspects that this fact is a proxy for more background facts in the decision, or for more analysis in support of the holdings. Ninth Circuit wonks (and CD Cal. counsel) may understand this sub-text. That sub-text won’t, however, be clear when Murillo is later cited against the defense in future cases.

How to Use: With little analysis Murillo states sweeping rules which may, in fact, be wrong (or rather, overbroad). For example, the decision states that a district court does not have the power to suspend a sentence, citing United States v. Mueller, 463 F.3d 887 (9th Cir. 2006). Fair enough, but Mueller was largely concerned with whether a court can grant a probationary sentence in a mandatory minimum case. 463 F.3d at 890-91. Section 1326 (illegal reentry) cases carry no mandatory minimums – and it isn’t clear that probation is prohibited for these cases after Booker.

Similarly, the Ninth chides that a district court can’t impose constant imprisonment as a condition of probation. Fair enough, but Judge Real could have easily imposed a twelve-month custodial sentence under Booker, with a term of supervised release to follow – and that would have been bullet-proof on appeal. Murillo neglects to note that option.

For Further Reading: For more on the Hon. Manuel Real saga, see a Wall Street Journal blog entry here discussing cases which have been taken from the district court judge.


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


Photo of Hon. Pamela Rymer from http://www.uscourts.gov/ttb/feb98ttb/february.htm . Image of Hon. Manuel Real from http://blogs.wsj.com/law/2008/08/04/a-real-mess-federal-judge-booted-from-another-case/

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Case o' The Week: If We Won, Why is He So Happy? Zavala / Carty En Banc

Chief Judge Alex Kozinski (right) loses, but wins; the defense wins, but loses. Over two years after oral argument, an en banc panel of the Ninth Circuit declines to adopt a (formal) appellate presumption of reasonableness for an in-guideline sentence. United States v. Carty, __ F.3d __, 2008 WL (9th Cir. Mar. 24, 2008) (en banc), decision available here. Great news -- except that 595 months (49 1/2 years) of guideline sentences are affirmed despite the new rule . . . .

Players: Judge Rymer authors; Chief Judge Kozinski writes an unfortunately accurate concurrence.

Facts: In October 2006 an en banc panel in the Ninth heard oral argument on Zavala / Carty, a brace of cases that presented a dozen sentencing issues of first impression. See blog here. The Ninth then kicked (and kicked, and kicked) the cases while the Supremes issued a trio of decisions that resolved all but one of these issues: Rita, Kimbrough, and Gall. Id. at *1.

Issue(s): “Core principles having now been resolved by the Supreme Court, we are left with one open question presented by Carty and Zavala: whether to adopt an appellate ‘presumption’ of reasonableness for sentences imposed within the Guidelines range.” Id. at *1.

Held: “We decline to do so, although we recognized that a correctly calculated Guidelines sentence will normally not be found unreasonable on appeal.” Id.

Of Note: Hate to admit it, but Kozinski’s concurrence is probably right. Id. at *8. He crows that the majority effectively adopts a presumption of guideline reasonableness, because the opinion’s appellate review (and acceptance) of the two (remarkably high) sentences given to Zavala and Carty is so casual, and so deferential, that the Court essentially assumes that the pair of guideline sentences are “reasonable.” Id. at *8-*9.

How to Use: Judge Rymer’s concise, bullet-point distillations of the Supreme Court’s sentencing morass are clear and well-written; they will be the Ninth’s hornbook for post-Booker sentencing practice. Id. at *3-*6. If a Ninth Circuit defense counsel reads only one thing on federal sentencing, it should be Carty.

Judge Rymer also teaches us how to salt an appellate record (to the extent still possible). Want to force your district judge into actually wrestling with your arguments, on the record? Then raise “a specific, non-frivolous argument tethered to a relevant § 3553(a) factor in support of a requested sentence.” Id. at *5 (emphasis added). Faced with such arguments, the sentencing judge “should normally explain why he accepts or rejects the party’s position.” Id. On the subject of salting, here’s a list of procedural errors that the Ninth targets for its first pass on appellate review:

• failure to calculate, or incorrect calculation, of the guideline range;

• treating the Guidelines as mandatory instead of advisory;

• failure to consider the § 3553(a) factors;

• choosing a sentence based on clearly erroneous facts; and

• failure to adequately explain the sentence selected, including any deviation from the Guidelines range.

Id. at *5.

For Further Reading: As fellow blogger Jon Sands notes, Carty’s first use is in United States v. Crawford, __ F.3d __, 2008 WL 819772 (9th Cir. Mar. 28, 2008), available here. In Crawford, Judge McKeown invokes the new Carty decision to quash a Booker attack on a Career Offender sentence. Id. at *2-*3.

[And we “won” Carty / Zavala ?]

Carty and Crawford teach that the Courts of Appeal (at least the Ninth) are effectively out of the sentencing business. That’s bad news when a sentencing judge methodically plugs-in guideline ranges generated by the Commission’s (and Congress’s) latest whim.

The back-story, however, is that the Ninth is not reversing (or even really hearing) § 3553(a) sentences that are far below the guidelines. (And Rita / Kimbrough will only help that trend). Anyone notice lately that the USAOs are too spooked to take-up a below-guideline § 3553(a) sentence, terrified of creating “bad” law endorsing the district court’s exercise of discretion? Maybe Booker’s legacy will be relocating sentencing battles to the district court trenches.


Photograph of the Honorable Chief Judge Alex Kozinski by Vern Evans, from California Lawyer. Website available here.

Salt shaker painting by Jeff Hayes, blog here.


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


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