Case o' The Week: Lost in Austin - the Ninth fractures over fractures, crack resentencing

 A fractured panel fractures over a fractured opinion from a fractured Supreme Court.

  (Weirdly appropriate, for a “crack” case . . .)

United States v. Davis, 776 F.3d 1088 (9th Cir. Jan. 27, 2015), decision available here.

Players: Per curiam opinion, by Judges O’Scannlain, Kleinfeld and Berzon. Compelling concurrence by Judge Berzon.  

Facts: In 2005 Davis pleaded guilty pursuant to a Fed. R. Crim. Proc. 11(c)(1)(C) deal. Id. at 1089. He was sentenced to 18 years. Id. After the Sentencing Commission reduced the Guideline sentences for crack cocaine in 2010, Davis sought a retroactive reduction of his sentence. Id. The district court held that it lacked jurisdiction to modify his sentence, because Davis’s sentence was not ‘based on’ the Guidelines. Id.

Issue(s): In light of the Supreme Court’s divided decision in Freeman v. United States, 131 S. Ct. 2685 (2011), and the Ninth Circuit’s interpretation of that decision in United States v. Austin, 676 F.3d 924 (9th Cir. 2012), does the district court have jurisdiction to modify a sentence under 18 U.S.C. § 3582(c)(2) when the underlying sentence was pursuant to a (c)(1)(C) plea agreement?

Held: “We affirm.” Id. at 1089. “The district court’s determination in this case that it lacked jurisdiction to reduce Davis’s crack sentence is consistent with” United States v. Austin, 676 F.3d 924 (9th Cir. 2012).” Id. at 1091

Of Note: When the case that is the subject of the Case o’ The Week memo is dusty enough to have earned an “F.3d” cite, fair to infer the drought in Ninth criminal opinions continues. As of the Ides of March, the last criminal opinion in the Ninth was the Mendez-Sosa case on March 2. See http://www.ca9.uscourts.gov/opinions/ The opinion (not order, or amended opinion) before that? Feb 5, in Burgos-Ortega. If the trope, “no news is good news” is true, very good news of late in the Ninth.

How to Use: This disappointing decision is not a big surprise, given the Ninth’s decision in Austin. In a very thoughtful concurrence, Judge Berzon takes a hard look at how appellate courts are supposed to interpret fractured Supreme Court decisions. Id. at 1091 (Berzon, J., concurring). She finds Austin wanting, and opines that Marks (the lead opinion on fractured opinions) is not consistent with the Ninth’s approach in Austin. Id. at 1092 (discussing Marks v. United States, 430 U.S. 188 (1977)). Judge Berzon ends with an en banc flag: “We should reconsider Austin’s holding . . . .” Id. She’s right, Austin deserves another look, and preserving this issue in (c) cases seems prudent.

  More broadly, Judge Berzon’s concurrence is a helpful read when dealing with the (increasingly frequent) problem of fractured opinions, and how to glean the controlling holding under Marks. Not surprisingly, courts are even fractured on how to properly read fractured opinions. (Happily, the perpetual discord guarantees the defense will always have something to argue.)

Hon. Judge Claudia Wilken

                                               

For Further Reading: The Northern District of California now has a Post-Plea Diversion / Deferred Sentencing Court. See notice here. The agreement for the new Court has been signed by all the stakeholders in the district, and can be found here: 

   Many folks have worked long and hard to make this agreement a reality, but as Chief Judge Hamilton notes, much credit goes to the “tireless efforts of our immediate past Chief Judge, Claudia Wilken.”   

   Look for more details on the new Court this spring as enrollment and staffing get up and off the ground.

Image of fractured glass from http://joanwz.hubpages.com/hub/PlexiglassVsTemperedGlass#slide6421188

Image of the Honorable Judge Claudia Wilken from https://www.acbanet.org/UserFiles/images/Photo%20Album/JusticeForAll_2012/JFA2012web_226.jpg

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

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Case o' The Week: Second bite at Sentencing Apple Just a Nibble in the Ninth - Section 3582 Sentencing Limitations Upheld

  Why fret now about good new sentencing guidelines coming next fall, when 18 USC § 3582(c)(2) will permit re-sentencing?

  A: United States v. Davis, Jr. 2014 WL 114691 (9th Cir. Jan. 14, 2014), decision available here.

Players: Decision by Judge Canby, joined by Judges Watford and Hurwitz. Hard-fought appeal by (former) CD Cal AFPD Davina Chen.

Facts: In 2008 Davis pleaded guilty to a crack charge and a gun charge. Id. at *1. His guidelines were CH IV / OL 29, producing a low-end of 121 months. Id. The district court varied downwards to 70 months. Id. In 2012, Davis filed a motion to reduce his sentence under 18 USC § 3582(c)(2), after the Fair Sentencing Act (“FSA”) resulted in reduced crack guidelines. Id. Though the low-end of Davis’s (lowered) post-FSA guidelines were still higher than 70 months, he sought a variance down to sixty months, the mand-min. Id. 

  At issue at sentencing was Policy Statement § 1B1.10(b). In 2011 the Sentencing Commission amended this Policy Statement– it now sets the resentencing floor in this context to the low-end of the amended guideline range. Id. “The district court held that the Sentencing Commission’s Policy Statement § 1B1.10(b) precluded a sentence reduction because Davis had already received a sentence below the minimum of the amended guideline range.” Id. at *1.

Issue(s): “[ ] Davis, Jr. appeals the district court’s denial of his motion to reduce his sentence pursuant to 18 USC § 3582(c)(2) . . .  Davis argues that § 1B1.10(b) exceeds the Commission’s statutory authority and violates the separation of powers doctrine.” Id. at *1.

Held: “We . . . reject Davis’s argument that the amendment of § 1B1.10(b) exceeded the Commission’s statutory authority. We also reject Davis’s contention that amended § 1B1.10(b) conflicts with Congress’s directive that the Commission promulgate policy statements that will further the purposes of sentencing set forth in 18 USC § 3553(a)(2), 28 USC § 994(a)(2) (outlining the Commission’s duties).” Id. at *2. “Finally, we reject Davis’s contention that amended § 1B1.10(b) violates the separation of powers doctrine because it requires the district court to rescind a previously granted departure or variance.” Id. at *3. “Section 1B1.10(b) does not offend separation of powers principles because it is simply the result of an exercise of Congress’s power to control the scope of judicial discretion regarding sentencing.” Id.  

Of Note: With no offense to Ms. Chen’s formidable powers of persuasion, Davis is not an entirely unexpected result – many of these issues had already been decided in the Ninth, or rejected by other Circuit decisions. See, e.g., Tercero blog here.  

  Davis is an important read now, however, because it foreshadows battles to come when the many (pro-defense) amendments to guidelines kick-in on November 1, 2014 – particularly to the drug guidelines.

How to Use: What would you have done differently on your crack cases, with the benefit of hindsight and our experiences on FSA re-sentencing? It’s a timely question: good guideline amendments will almost-certainly become effective Nov. 1, 2014. See reader-friendly amendments here. (Drug guidelines on page 32).  

  What will we say to today’s clients, when they call next Halloween from the BOP prison and want a re-sentencing motion? Push hard now to get rid of § 3582(c) waivers in today's plea agreements, with an eye towards the November amendments. 

  (Or put the brakes on the case: November 1 is just a short 286 days away!)

                                               

For Further Reading: The proposed amendments strike sentencing guru Doug Berman “as HUGE news, and a terrific and fitting application of some of the themes that have been stressed by many members of Congress and by the Attorney General in recent months.” See blog here.

  The Prof’s take? “Perhaps I am at risk of already getting too excited (and counting too many unhatched chickens) concerning this USSC vote. But especially if this vote was unanimous within the Commission, and especially if it has the formal or even tacit approval of the Department of Justice, I do not think I am completely off base when suggesting this is a really big deal.” Id.

 

Apple image from http://www.valiant.com/authors/valiant/a-hidden-benefit-of-filing-a-bid-protest-could-give-your-company-a-second-bite-at-the-apple-if-you-lose-a-competition/

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

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