Case o' The Week: Ninth Turns Up Nose at State Action and Federal Sentences - Lizarraga-Carrizales and Safety Valve

“Lizarraga may have obtained the termination of his probation in hope of affecting his sentence for the federal offense, thus risking an odor of gaming the federal sentencing system.” United States v. Lizarraga-Carrizales, 2014 WL 2958614, *5 (9th Cir. July 2, 2014), decision available here.

 

Players: Decision by Judge Callahan, joined by Judges Trott and District Judge Bennett. Hard-fought appeal (following some admirable pre-sentencing litigation) by AFD James Fife, Federal Defenders of San Diego, Inc.

Facts: Lizarraga-Carrizales was caught on the border with 7 kilos of heroin, and convicted of drug importation. Id. at *1. That triggered a ten-year mand-min under 21 U.S.C. § 960(b). Id. 
  The district court rejected his arguments for Safety Valve, finding him ineligible because he had too many criminal history points (five, instead of the maximum of one). Id.  

Issue(s): “Lizarraga claims that the district court improperly engaged in judicial fact-finding in denying him safety valve relief from the mandatory minimum sentence and misapplied the Sentencing Guidelines.” Id. at *1. “Lizarraga’s primary contention on appeal is that the facts underlying the safety valve determination must be submitted to a jury under Apprendi . . . . and Alleyne . . . . We have yet to decide in a published decision whether the safety valve determination implicates Alleyne . . . .” Id. at *2 (internal quotations and citations omitted)..  

Held: “We hold that the safety valve determination under 18 U.S.C. § 3553(f) does not implicate Alleyne v. United States . . .  133 S. Ct. 2151 . . . (2013), because it does not increase the statutory minimum sentence.” Id. at *1. “We agree with the First Circuit that the denial of safety valve relief does not increase the statutory maximum or minimum such that Alleyne is implicated . . . . Accordingly, the factual predicate for denying safety valve relief need not be proven to a jury.” Id. at *3.  

Of Note: Lizarraga-Carrizales is a buffet of unappetizing entrees for counsel slugging away for their Safety Valve-(ish) clients. Through some clever and aggressive litigation, two of the state probation terms that caused unwanted points in this case were ended early, nunc pro tunc, in state court. Id. at *4. 
  The Ninth resuscitates these dead probationary terms, concluding that the key issue was whether the defendant was on probation at the time of the offense – not at the time of the federal sentencing. The tone of the opinion takes umbrage at state court’s tinkering with facts underlying a federal sentence. Interesting to contrast this federal supremacy theme to the remarkable deference shown to state courts in AEDPA habeas litigation, where state rulings on criminal law issues seem to reign supreme.

How to Use: A client gets a CH point only if the actual probation sentence imposed is more than a year. What if a Safety Valve aspirant gets that state probationary term reduced to less than a year, nunc pro tunc, after the federal arrest? That’s one narrow little issue left unresolved in Lizarraga-Carrizales. See id. at *5. There’s some tension in Ninth law on this issue – take a look if a sympathetic state judge is open to some help on a probationary term.

                                               

For Further Reading: The -2 offense level reduction in the drug guidelines is fully retroactive! See Press Release here.  The Sentencing Commission voted on Friday July 18 to make their amendment to the drug guideline fully retroactive. On average, this change will save 25 months off of a federal sentence. Id.

 Sentencing Commissioners in office of Hon. Senator Durbin

Barring Congressional action, judges can start considering petitions for reductions after November 1, 2014 (though no inmate will be released before November 1, 2015). 

  In the ND Cal, new SF AFPD Shilpi Agarwal will be spearheading the effort to get the district’s CJA clients retroactive relief – stay tuned for more news and updates on these efforts. 

  Finally, NorCal’s own Judge Breyer was one of the Commissioners who voted for full retroactivity of this amendment – much credit due to the Hon. CRB (and his fellow Commissioners) for this remarkable USSG development.

Image of man holding nose from, http://traytables-travels.blogspot.com/2010/09/on-nose.html Image of Commissioners at the office of the Honorable Senator Dick Durbin from http://www.durbin.senate.gov/public/index.cfm/files/serve?File_id=3211cb90-c327-484d-9ce9-364d7794cda5

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

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Case o' The Week: The Human Comity - Yepez, State Probation Terms, and Safety Valve

“The federal system relies heavily on state courts in sentencing defendants and it's wrong and pernicious to call these judgments into question because the state judges may have taken into account the effects on federal sentencing. State judges are often mindful of the federal implications of their sentences, as well they should be. The majority is wrong to cast aspersions on this salutary practice . . . . 

United States v. Alba-Flores, 577 F.3d 1104, 1112 (9th Cir. 2009) (Kozinski, Chief Judge, dissenting).

The Hon. Kim Wardlaw

   The Chief was spot on the mark when he dissented in Alba-Flores. As he presciently warned, "We shouldn't be so eager to override the hands-on judgment of two trial judges who have actually seen the defendant and are far more familiar with his need for punishment than we are.” Id.

  We’re nostalgic for those Alba-Flores insights, in a disappointing en banc decision that finds the CJ on the wrong side of an important comity battle. United States v. Yepez, 2012 WL 6621346 (9th Cir. Dec. 20, 2012) (en banc), decision available here.

Players: Per curiam decision joined by CJ Kozinski, Graber, Gould, Rawlinson, Callahan, and M. Smith. Dissent by Judge Wardlaw, joined by Judges Pregerson, Reinhardt, Thomas and W. Fletcher. Hard-fought appeal by San Diego AFD Vince Brunkow.

Facts: Defendants Yepez and Acosta-Montes were caught at the border with enough meth to trigger ten-year mand-min sentences. Id. at *1. Both had minor state priors, and both were on probation. Id. Because they were on probation, they were hit with an additional two criminal history points. Id. Those extra points made them ineligible for Safety Valve. Id. Before sentencing, however, state courts in both cases terminated probation nunc pro tunc, as of the day before the meth arrest. Id. One district court then gave Safety Valve, the second refused. Id. In a terrific decision, Judge Wardlaw held that comity required federal deference to the state court’s decision to terminate probation. 625 F.3d 1182 (9th Cir. 2011). En banc review followed.

Issue(s): (As phrased by the per curiam majority): “Yepez and Acosta-Montes argue that their nunc pro tunc orders effectively changed history, so that they were no longer on state probation at the time they committed their federal crimes and were, therefore, eligible for safety valve relief.” Id. at *1.

Held: “The Guidelines assign a defendant two criminal history points if he ‘committed [a federal] offense while under any criminal justice sentence, including probation.’ U.S. Sentencing Guidelines Manual § 4A1.1(d) (emphasis added). By its plain language, the provision looks to a defendant's status at the time he commits the federal crime. Yepez was on probation while he was arrested for importing methamphetamine . . . Acosta–Montes was [also] on probation while he was arrested . . . . That a state court later deemed the probation terminated before the federal crime was committed can have no effect on a defendant's status at the moment he committed the federal crime. That termination may have beneficial consequences for the defendant under state law, but a court cannot alter the historical fact that the defendant had the status of probationer when he committed his federal crime.” Id.

Of Note: It is flatly unjust to sentence these two defendants to decade prison terms. That simple reality was recognized by both district courts, who complained of ten years for young men with minor prior convictions. Id. at *3 (Wardlaw, J. dissenting). In a compelling dissent, Judge Wardlaw decries the injustice of the per curiam decision. As she explains, the majority’s allegation that the state courts rewrote history is both “incorrect and unseemly.” Id. at *9. The dissent persuasively quotes the Chief’s own language from Alba-Flores to question a federal court’s rejection of a state court’s sentencing decision. Id. 

(Fair to speculate that CJ Kozinski authored the per curiam majority opinion, given its familiar tone ("And here is where it gets interesting", id. at *1) and its plug of Justice Scalia’s new book, Reading Law: The Interpretation of Legal Texts, id. at *2). 

Four jurists joined Judge Wardlaw’s righteous dissent: just one vote shy of the right result.

 

How to Use: A cert. petition is in the works. It still might be worth a visit to the Superior Court if your poor client finds himself victim of this Safety Valve injustice, by virtue of a state probationary term.

                                               

For Further Reading: Maybe Santa will bring you Reading Law: The Interpretation of Legal Texts (2012) by Justice Scalia and Bryan Garner. At a whopping 567 pages, you’ll have plenty of reading material during the holiday break. 

For a pithy defense take on this weighty tome, see the blog entry here. (“The fault in the [textualist] argument seems readily apparent to me. What becomes of all those nice people who get swept up in the gap between the passage of a poorly drafted, grossly unconstitutional law, and the time the Supreme Court gets around to fully addressing what the text really means? It appears they're just collateral damage under this theory, taking one for the team of principle.”)

Image of the Honorable Judge Kim McLane Wardlaw from http://weblaw.usc.edu/news/article.cfm?newsID=3647

Image of “Reading Law” from http://online.wsj.com/article/SB10000872396390444318104577589613733295148.html

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

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Case o' The Week: Tran's-mission Not Clear, Says Ninth in Conspiracy Case

"Conspiracy is the darling of the prosecutor's nursery." Thankfully, the Hon. H.P. brings some well-deserved discipline to the little brat. United States v. Tran__ F.3d __, No. 07-30270, 2009 WL 1773149 (9th Cir. June 24, 2009) (decision available here).

Players: Decision by Judge Harry Pregerson (left), joined by Judge Canby; dissent by Judge Noonan.

Facts: ICE learned of a big pot operation distributed out of a warehouse. Id. at *1. One car that had left the warehouse – and stopped by ICE – was a silver Mustang driven by Nguyen, with Tran as a passenger. Id. at *1. The feds found 27 kilos of pot in the car. Id. Nguyen pleaded guilty and was called by the government at Tran’s trial. Id. at *1.

To the government’s chagrin, at trial Nguyen exonerated Tran. Id. at *2.

The government impeached Nguyen, over Tran’s objection, with an ICE agent who reported an inconsistent interview with Nguyen a week before the trial. Id. Nguyen was also impeached by his plea agreement, which said that he and Tran had picked up 70 pounds of weed for redistribution that night. Id. at *2. The government also introduced evidence that Tran had been involved in prior marijuana deals, to show his “knowledge.” Id. at *3. Tran was convicted.

Issue(s): “Tran argues that the government failed to prove that he participated in the conspiracy to possess marijuana for distribution.” Id. at *5.

Held: “The evidence presented against Tran and the reasonable inferences drawn from that evidence do not support even a slight connection between Tran and the conspiracy . . . . Tran’s presence as a passenger in the silver Mustang while the marijuana was transported, and his knowledge of marijuana and marijuana distribution was insufficient as a matter of law to establish his guilt on the conspiracy charge.” Id. at *6.

Of Note: Tran won the war, but lost several evidence battles. The Court held that Nguyen’s plea agreement was admissible as both a prior inconsistent statement, id. at *4, and as substantive evidence because it was ‘given under oath.” Id. at *5. But, note that the “given under oath theory” was not objected to at trial, and thus was subject to plain error review. Id. at *4-*5. Judge Pregerson was careful to emphasize that this theory was only reviewed for plain error – Tran does not stand for the blanket proposition that plea agreements are admissible as substantive evidence.

How to Use: While a huge defense victory, Tran is entirely consistent with a string of Ninth cases that hold that a defendant’s mere presence in a car with drugs is insufficient to support conspiracy charges. Id. at *6-*7 (discussing Sanchez-Mata and Herrera-Gonzales).

(Aside: Nice also to see that, unlike the recent Overton decision, Tran uses the proper de novo standard of review).

Tran is that rare published opinion that rigorously holds conspiracy theory to its own limits. See, e.g., id. at *6 (discussing and rejecting ‘guilt by association’ as a basis for conspiracy convictions). The opinion deserves heavy citation in conspiracy Rule 29 motions.

For Further Reading: What happened to Nguyen, the government witness who flipped his story at trial? Turns out his plea agreement was not a §5K1.1 deal (though he did do a safety-valve debrief). See PACER docket for United States v. Tam Phu Quy Nguyen, 2:06-cr-00296-JCC-9 (defense sent. mem.) Moreover, Nguyen was compelled to testify despite not having entered into a cooperation agreement. Id. at Docket #243. (A chilling prospect for any defendant just trying to plea and do his time without snitching).

Indeed, it seems from the docket that the government learned info it liked at a safety-valve debrief, then got an order of immunity and compelled Nguyen’s trial testimony. Spooky abuse of the safety-valve procedure if that’s what happened. If that is in fact what happened, the ensuing mess frankly serves the government right. (Nguyen ultimately ended up with a 24 month sentence).


Image of the Hon. Harry Pregerson from http://www.centuryhousing.org/about_us.htm

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


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Case o' The Week: Ninth Brooks Bibler Thumper -- US v. Brooke Bibler, and Appellate Jx

The Honorable Judge Sam Haddon (left) clearly got a sentence wrong when he held Booker eliminated the Safety Valve (again). In a very disappointing decision, the Ninth found it had no jurisdiction to correct this error because of an appellate waiver. See United States v. Brooke Bibler, No. 06-30375, __ F.3d. __, Slip. Op. at 4949 (9th Cir. May 4, 2007), decision available here.

Players: Yet another Booker- related appeal of a sentence imposed by the Hon. Sam E. Haddon of Montana. See blog here (discussing Judge Haddon's role in shaping Ninth Circuit Booker jurisprudence).

Facts: Brooke Bibler pleaded guilty to drug charges that carried a ten year mandatory-minimum. Slip. Op. at 4952. She was Safety Valve eligible, and after she cooperated the PSR recommended 41-51 months. Id. Judge Haddon instead gave her eighty months, based on his – novel – (and incorrect) view that Booker eliminated Safety Valve. Id. at 4953. (This is the second Ninth Circuit opinion discussing that novel approach). Although Bibler’s plea agreement contained an appellate waiver, she took Haddon up.

Issue(s): “An appellate waiver will not apply if . . . the sentence violates the law. . . . A sentence is illegal if it exceeds the permissible statutory penalty for the crime or violates the Constitution.” Id. at 4954.

[ed. note: The issue was whether the Ninth could conduct a substantive appellate review. It held it could only do so (despite an appellate waiver) if the sentence was illegal. The issue was thus whether this sentence was, "illegal."]

Held: “Even assuming that the district court erred in failing to apply the safety valve statute, which this court has held to be mandatory post-Booker, see United States v. Cardenas-Juarez, 469 F.3d 1331 (9th Cir. 2006), this error does not render appellant’s sentence illegal because § 3553(f) does not lower the permissible statutory penalty for the crime.” Id. at 4954. “If defendants intend to preserve a larger subset of their appellate rights, this must be bargained for in the plea agreement. For instance, defendants could reserve the right to appeal in case of plain error, or in case the district court issued a sentence that exceeded a particular period of time. But absent such a bargained-for term, or the applicability of an exception, a knowing and voluntary waiver of appellate rights will preclude substantive appellate review in this Court.” Id. at 4955 (emphasis added).

Of Note: This little decision has quickly generated big interest from the Defender community. San Diego appellate gurus Steve Hubachek and Shereen Charlick have noted that this egregious sentencing error doubled Ms. Bibler’s sentence exposure. They note that the Court’s cramped view of its own jurisdiction to correct this error is out of step with other circuits. See United States v. Gwinett, __ F.3d __, 2007 WL 1217733, *2 (3rd Cir. Apr. 26, 2007). Moreover, other circuits have allowed relief in egregious cases despite appellate waivers. See, e.g., United States v. Khattak, 273 F.3d 557, 562-63 (3d Cir. 2001).

In a similar vein, Sacramento appellate expert David Porter has an en banc case pending that challenges the Ninth’s refusal to exert appellate jurisdiction after an unconditional guilty plea. United States v. Castillo, No. 05-30401 (argued Mar. 21, 2007). In recent briefing, David touts four Supreme Court decisions from the last five terms that conclude that a party’s litigation conduct cannot strip a federal court of subject-court jurisdiction.

The Bibler sentence is plainly wrong; the fact that it can't be touched on appellate review is unjust. Some very smart folks are taking a very hard look at this issue of appellate jurisdiction: stay tuned for further en banc action.

How to Use: Judge Betty Fletcher means well by encouraging us to carve out exceptions to negotiated appellate waivers. On a level bargaining playing-field, that would be great advice. Unfortunately, defense “bargaining” is better described as defense “groveling:” we usually don’t have a lot of leverage to demand these exceptions. There’s two solutions to this problem.

First, an enlightened United States Attorney's Office should agree to carve out an exception to appellate waivers for plain error. Given DOJ’s slavish devotion to the guidelines, this is in the government’s interest – after all, it purports to be very concerned that guideline calculations be accurate. (In this case, for example, the government has previously conceded in the Ninth that Judge Haddon simply got his safety valve/Booker analysis wrong. The government should want that sentence corrected).

Another answer is for district courts to insist that plain-error review survive appellate waivers. Judge Charles Breyer in the N.D. Cal. has been very active in this area, and has a standing order about appeal waivers. Academics, the bench, and DOJ should take a closer look at Judge Breyer’s reasoning – his approach would nip this appellate-jurisdiction conundrum in the bud.

For Further Reading: Judge Breyer’s standing order on plea agreements is available here.

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


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