Case o' The Week: Benamor, Encore - Benamor, Plain Error, and Rehaif Claims

  A felon, 

   charged with "felon in possession," 

      with a "felon in possession" prior, 

         may have known he was a felon.

United States v. Benamor, 2019 WL 4198358 (9th Cir. June 6, 2019, amend. Sept. 5, 2019), decision available here.

 

Hon. Judge Susan Graber

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

Facts: Cops found a shotgun in a van which Benamor, a felon, had driven. Id. at *2. He went to trial on § 922(g) charges, and stipulated that he was a felon. Id. at *5. Benamor was convicted and appealed. Id. at *2.

  In the original opinion, Judge Graber denied Benamor’s challenge based on a failure to instruct on the “antique firearm” aspects of the statute. See COTW blog here. 

  Benamor then filed a petition for rehearing, arguing that – under Rehaif – there was insufficient evidence for a conviction because the government failed to prove he knew he was a felon when he possessed the old shotgun. Id. at *5. (Rehaif was decided after Benamor was convicted).

Issue(s): Under plain error review, was there "a probability that, but for the [Rehaif] error, the outcome of the proceeding would have been different"? Id. at *5. Did "this error in not instructing the jury to make such a finding affect Defendant’s substantial rights or the fairness, integrity, or public reputation at trial"? Id. 

Held: “[T]he third and fourth prongs of the plain-error test are not met. Here, there is no probability that, but for the error, the outcome of the proceeding would have been different. . . . When Defendant possessed the shotgun, he had been convicted of seven felonies in California state court, including three felonies for which sentences of more than one year in prison were actually imposed on him. The felonies included one case in which Defendant sustained convictions for being a felon in possession of a firearm and a felon in possession of ammunition; he was sentenced to five years and eight months in prison. Defendant spent more than nine years in prison on his various felony convictions before his arrest for possessing the shotgun. At a minimum, the prior convictions for being a felon in possession of a firearm and being a felon in possession of ammunition proved beyond a reasonable doubt that Defendant had the knowledge required by Rehaif and that any error in not instructing the jury to make such a finding did not affect Defendant’s substantial rights or the fairness, integrity, or public reputation of the trial.” Id. (italics in original).

Of Note: In the amended opinion, Judge Graber recounts the many ways in which she believes the government could have proved the Rehaif “knowledge” element (although, it bears noting, it did not). Specifically, the Court emphasizes Mr. Benamor’s previous felon in possession convictions (which Judge Grabers deems enough to “prove beyond a reasonable doubt” that Benamor knew of his status as a felon). This particular prior is an unfortunate criminal history for Mr. Benamor, but note that the opinion is not a per se rule for all felons with Rehaif claims. Depending on your client’s felony priors, a bit of light may still shine through this dark decision.

How to Use: Judge Graber seems tempted to hold that the mere fact of an old-school Old Chief stip to a felony prior “end[s] the discussion as to Defendant’s knowledge of his status as a felon.” Id. at *5. A close read of the opinion, however, reveals that the Ninth does not actually so hold. See id. 

  If your client does not have the regrettable fact of Benamor’s previous “felon in possession” conviction (and Benamor’s seven felony priors), don’t quite fold the tent yet on the Rehaif claims now perking in the Ninth – plain error will require a case-by-case analysis.

                                               

For Further Reading: Plain confused by plain error? For a very helpful outline written by experienced federal defense counsel, see “Plain-Error Review from Top to Bottom, or Slaying the Four-Headed Hydra,” available here.

Image of the Hon. Judge Susan Graber from https://usdchs.org/oral-histories/our-collection/susan-p-graber/

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

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Case o' The Week: No Old Know, but Now New Knew - Benamor and Knowledge Requirements in Sec. 922(g)(1) Cases

   Taking antique shotguns for granted?

   Fine for the government.

   (Less fine with Vinnie Jones).

United States v. Benamor, 2019 WL 2375885 (9th Cir. June 6, 2019), decision available here.

Players: Decision by Judge Graber, joined by Judge Bybee and DJ Harpool.

Facts: Cops found a shotgun in a van which Benamor, a felon, had driven. Id. at *1. Benamor went to trial on § 922(g) charges. Id. at *2. 

  At trial, an agent testified the shotgun could not have been manufactured before 1915. Id. Benamor moved for a Rule 29 and for instructions that the government had to prove that he knew the gun was manufactured after 1898. Id.  The motions were denied and Benamor was convicted. Id.

Issue(s): “Because firearms manufactured in or before 1898 do not qualify as ‘firearms’ under § 922, Defendant argues that the district court erred by refusing to instruct the jury that, to convict, they had to find that Defendant knew that his firearm was manufactured after 1898.” Id. at *1. 

  “Although Defendant’s shotgun was old, it was not ‘antique’ within the statutory definition, because it was manufactured after 1898. Defendant does not dispute that his shotgun met § 921(a)(3)’s definition of a firearm. Yet he argues that the government was required to prove his knowledge that the shotgun lacked the antiquity that would have placed it beyond § 922(g)’s reach.” Id. at *2.

Held: “Every circuit to address the ‘antique firearm’ exception in the criminal context has held that the exception is an affirmative defense to a § 922(g) prosecution, not an element of the crime.” Id. at *3. 

  “We affirm.” Id. at *1.

Of Note: In addition to the “antique” holding, Benamor also has an interesting Confrontation Clause analysis. Id. at *4. In the guise of “effect upon a witness,” the AUSA elicited incriminating hearsay statements from Benamor’s landlord to the cop. Id. The AUSA then argued this hearsay in closing. 

  The Court finds a Confrontation Clause / Crawford error (although it declines to reverse). Id. at *5. Nonetheless, Benamor is useful to brush-back when an AUSA smuggles testimonial hearsay through an “effect on the hearer” theory.

How to Use: Benamor is, respectfully, wrong – at least as it recounts the elements of a federal gun case.

  Quoting the (now erroneous) Ninth’s en banc decision in Nevils, Judge Graber explains that “To convict someone under § 922(g)(1), the government must prove three elements:

  (1) the defendant was a felon;

  (2) the defendant knowingly possessed a firearm or ammunition; and

  (3) the firearm or ammunition ‘was in or affecting interstate commerce.’” Id. at *2.

  At least as of Friday, that list is missing an element. In the Rehaif decision delivered June 21st, Justice Breyer writes that in a § 922(g)(1) prosecution, “the word ‘knowingly’ applies both to the defendant’s conduct and to the defendant’s status. To convict a defendant, the Government therefore must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.” Rehaif v. United States, 2019 WL 2552487, at *2 (emphasis added), available here.

  Did Benamor’s indictment allege that he knew that he was a felon? Was the jury instructed that it had to find that Benamor knew he was a felon? Was there any evidence in this trial that Benamor knew of his status as a felon? No, no, and most likely, no.

   The Benamor decision happens to have a nice little discussion of “knowledge” in the context of § 922(g)(1) cases. See id. at *2 (discussing Beasley, 346 F.3d 930, 934 (9th Cir. 2003)); id. at *3 (discussing Staples). Glom these “knowledge” cases onto Rehaif’s “knew status” element –much mischief awaits.     

                                               

For Further Reading: Our gun cases are getting a hard Rehaif review this weekend. While mulling, remember the recent Ninth Circuit win in Bain. In Bain, Judge Tashima booted a deficient plea that was missing facts supporting an essential element -- a fact pattern that now resonates with hundreds of federal gun cases after Rehaif. See Bain blog entry here.

  Consider also James, 987 F.2d 648 (9th Cir. 1993) (reversing when gov’t failed to prove FDIC element in bank robbery trial), available here.  

Image from “Lock, Stock, and Two Smoking Barrels” from https://filmschoolrejects.com/guy-ritchie-is-returning-to-his-comfort-zone/

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

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Case o' The Week: Ninth Nixes Extortion Contortions - Edling and "Crime of Violence" Under Guideline Definition

  Did Tony Soprano extort by threatening “physical injury” to his victim's iPad?

  (Yeah, the Ninth doesn’t think so, either.)

United States v. Edling, 2018 WL 2752208 (9th Cir. June 8, 2018), decision available here.

Players: Decision by Judge Watford, joined by C.J. Thomas and Judge Rawlinson. 

  Big win for AFPDs Cullen Macbeth, Amy Cleary, Cristen Thayer, the D. Nevada FPD, and the entire Ninth Circuit Johnson brain trust.  

Facts: Edling pleaded guilty to being a felon in possession of a gun. Id. at *1. Under USSG § 4B1.1(a), a “crime of violence” increased his guideline range. Id. 

  One prior at issue was robbery, under Nevada Revised Statutes § 200.380. Id. That statute prohibits taking personal property from the person of another, by – among other means – force, violence, or fear of injury against the person or property. Id. at *3. 

  The district court held that offense was a “crime of violence” as defined under the Guidelines. Id.

Issue(s): “[ ] Edline contends that [Nevada robbery does not constitute] a ‘crime of violence’ as that term is defined in the Guidelines.” Id. at *1.

Held: “[In] 2016 . . . the Sentencing Commission amended the enumerated offenses clause by adding for the first time a definition of ‘extortion.’ That definition provides: “‘Extortion’ is obtaining something of value from another by the wrongful use of (A) force, (B) fear of physical injury, or (C) threat of physical injury.” . . . . The question posed here is whether this new definition still encompasses threats of injury to property. We conclude that the Guidelines’ new definition of extortion narrows the offense by requiring that the wrongful use of force, fear, or threats be directed against the person of another, not property. That is the most natural reading of the text of the definition, particularly its reference to ‘physical injury’—a term that, when used on its own, is typically understood to mean physical injury to a person.” Id. at *3 (emphasis added).

  “Robbery under Nevada law is not a categorical match under either the elements clause or the enumerated offenses clause of § 4B1.2(a). The district court therefore erred in treating Edling’s robbery conviction as a crime of violence.” Id. at *4.

Of Note: Oregon AFPD Steve “Rule of Lenity” Sady is happy. You’ll recall that this venerable rule of statutory construction gives the tie to the defendant – “where the statute is ambiguous” courts should not interpret the statute to increase the penalty on the defendant. Id. at *4. 

  To the extent any ambiguity remained as to this Guideline, Judge Watford invokes the R.O.L. and joins the Tenth Circuit with the right result: the Guideline’s definition of extortion excludes injury and threats of injury to property. Id.

How to Use: Nice win for Edling – four offense levels off, ultimately (for this and another non-COV prior), and for all defendants with Nevada robbery priors. 

  Huge win for California, however, and for the far greater number of federal clients with Cal. Penal Code § 211 robbery priors. Edling should mean lower guidelines, and many years of custody avoided, for our many Cali federal clients with § 211 priors.

  Will Edling’s holding on Nevada robbery control the question for CPC § 211 priors, now up in the Ninth? Well, the government thinks so – it has proclaimed to the Ninth that “There is no substantive difference between California’s robbery statute and N.R.S. § 200.380.” See United States v. Harris, 08-10370, 2009 WL 3639779 (Feb. 17, 2009), Appellee’s Answering Brief.

   Fight tooth and nail against any AUSA or PO claim that CPC § 211 is a crime of violence under USSG § 4B1.2 -- particularly after Edling, it ain’t.

                                               

For Further Reading: Before the Ninth now is United States v. Howard Nickles, III, No. 17-10206 – Judges Wallace, Berzon, and Callahan will decide whether CPC § 211 is a “Crime of Violence.” 

  Last March, we flagged the remarkably frank oral argument on that issue, as this panel struggled to interpret the Commission’s “C.O.V.” intent in the amended Guideline. See “For Further Reading” here. 

  Do you have a CPC § 211 issue perking in your case? If so, read Edling, hit the Nickles III argument, and knock wood for another great Ninth decision soon. See Nickles III argument here.  

Image of “What is Extortion” from https://www.youtube.com/watch?v=4qGNAAephuk

Steven Kalar, Federal Public Defender. Website at www.ndcalfpd.prg

Case o' The Week: Ninth Disinclined on Second Werle - Werle and Taylor / Johnson Analysis, "Crimes of Violence" and USSG Sec. 2K2.1

Batting .50 saves client 40. United States v. Justin Werle, 2017 WL 6346659 (9th Cir. Dec. 13, 2017), decision available here.

 Players: Per curiam decision by Judges O’Scannlain, Tallman, and Watford. Dogged appellate advocacy by ED WA AFPD Matt Campbell.

Facts: Werle pled guilty to § 922(g)(1), and possession of an unregistered gun. Id. at *1. The district court found qualifying prior crimes of violence, and deemed Werle subject to the ACCA’s fifteen-year mand-min. Id. 

  In the Ninth’s first Werle, a different panel held that a “riot” prior was not categorically a violent felony (hence no ACCA!), and remanded. Id., see also blog entry here. 

  On remand, the district court hit Werle with a guideline increase under USSG § 2K2.1(a). Id. The court found that prior Washington convictions for “felony harassment via a threat to kill” were crimes of violence, increased the offense level, and imposed a custodial term of 140 months. Id. at *15.

Issue(s): “Werle argues that the district court erred in concluding that his convictions for felony harassment under § 9A.46.020(2)(b)(ii) were crimes of violence.” Id. at *1. “Werle argues that § 9A.46.020(2)(b)(ii) is overbroad because

  (1) it lacks the requisite mens rea to constitute a threatened use of force,

  (2) it includes threats to kill in the distant future, and

  (3) it does not necessarily require threatened violent force.” Id. at *2.

Held: (1): “Werle’s argument is unavailing because § 4B1.2(a)(1) only requires that the state crime has as “an element . . . the threatened use of physical force.” (emphasis added). It is clear that the first element of a conviction under § 9A.46.020(2)(b)(ii)—a knowing threat of intent to kill someone—requires a sufficient mens rea, and so that element by itself may render the conviction a crime of violence. That other elements of the statute may be satisfied with a lower mens rea adds nothing to our inquiry under § 4B1.2(a)(1), because requiring the state to prove additional elements only narrows the reach of the crime.” Id. at *3.

  (2) “[W]e find no support for any such immediacy requirement in the language of § 4B1.2(a)(1).” “[Section] 4B1.2(a)(1) does not contain the ‘substantial risk’ language used in § 16(b). Rather, § 4B1.2(a)(1) largely mirrors the language of § 16(a) and only requires a ‘threatened use of physical force,’ regardless of any substantial risk that the force will actually occur . . . . Id. at *3.

  (3) “Werle argues that a threat to kill does not necessarily include a threatened use of violent physical force, as required by Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), because one could kill someone via the application of poison or other non-forceful means. Werle may have luck with this argument in other circuits . . . but we have categorically rejected it . . . .. By threatening to kill, Werle necessarily threatened violent physical force.” Id. at *4 (citations omitted).

Of Note: Werle (I & II) are poster children for the complexity of the Taylor analysis. As noted above, Werle I was a big defense win. See 815 F.3d. 614 (9th Cir. 2016). In Werle I, the Ninth explained that “felony riot” was not a violent felony triggering the ACCA under Johnson. In Werle II, by contrast, the Ninth is looking at a different prior, and different definition for “crime of violence”: the definition used by USSG § 2K2.1. See Werle II, 2017 WL 6346659 at *3. Different prior, different definition, different outcome. Before despairing at this complexity, consider the results: Taylor and Johnson ultimately meant over three-years knocked off of Mr. Werle’s ACCA term. Well worth the “probe into the undergrowth of [the] . . . convictions,” as this panel put it. Id. at *2.

How to Use: We just touted the reverse use of the ACCA / Guidelines definitional whipsaw, in Rick Allen Jones. See blog entry here. 

  In Werle II, however, the Court rejects that approach in the context of § 16(b) and USSG § 4B1.2(a)(1) definitions. Id. at *3. 

  Tricky business, this: take care in the definitional analogues used when attacking a “violent crime” or “crime of violence” definition.

                                               

For Further Reading: 2018 may be a year of change, for the Ninth.

  Seven of twenty-nine (24%) of Ninth Circuit judgeships are now or will be open in 2018, awaiting appointments by President Trump and Senate confirmations. See Ninth Circuit report here. 

Image of edited holiday greetings from https://stjohnslegalenglishdotcom.files.wordpress.com/2016/12/img_0922.jpg?w=584

Steven Kalar, Federal Public Defender, Northern District of California. Website at www.ndcalfpd.org

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Case o' The Week: A Tucker-ed Out Defense, "Mere Presence" in the Ninth

"What happens in Vegas, stays in Vegas."

(Unless, of course, your thoroughly-disgruntled ex-girlfriend knows the phone number of your parole officer). United States v. Tucker, 2011 WL 1441865 (9th Cir. Apr. 15, 2011), decision available here.

Players: Decision by Judge Callahan, joined by Judge Gould and visiting District Judge England.

Facts: Tucker, a felon, leased a Las Vegas apartment with his girlfriend and child. Id. at *1. The girlfriend called his parole/probation officer and reported that the couple had broke up, she had moved out, and there was a shotgun in a closet in the apartment. Id.

This officer and others searched the unoccupied apartment and found a shotgun in the closet of a master bedroom. Id. Also in this room were men’s clothes and prescription bottles belonging to Tucker. Id. Tucker showed up and said he was living there with a roommate. Id. at *2. Tucker seemed to know about the gun, denied it was his, said his fingerprints might be on it but explained he had briefly handled it with some (unidentified) friends days before. Id.

At the jury trial, the district court refused to give the defense “mere presence” instruction, which explained that mere proximity, brief touching, or brief handling of a gun was insufficient to “possess” the gun. Id. at *5. Tucker was convicted and appealed.

Issue(s): “Tucker argues that his only link to the firearm was his presence in the apartment and his statements that he had briefly handled the firearm on an earlier date, and therefore the district court should have issued a ‘mere presence’ or ‘mere handling’ jury instruction.” Id. at *11.

Held: “We conclude that the district court did not err in refusing to give the mere presence instruction, particularly as the jury was properly instructed on the elements of the felon in possession statute . . . Pursuant to these instructions, the jury could not find Tucker guilty based on his mere presence or handling of the shotgun. . . . We conclude that the jury instructions adequately covered Tucker’s theory of the defense, ad therefore the district court did not commit reversible error.” Id. at *12.

Of Note: Judge Callahan concedes that there is a spectrum of fact-bound cases involving the mere-presence instruction, from Negrete-Gonzales to Howell. Id. at 11. Comparing the facts of Tucker to cases on this spectrum, she concludes that because Tucker was the only adult occupant, the gun was in the room Tucker was using, near his personal effects, that Tucker knew of the gun when confronted by the officers, and that he’d handled the gun in the past and thought his fingerprints might appear on it, the “evidence goes beyond ‘mere presence’ and makes a mere presence instruction unnecessary.” Id. at *11. It is a disappointing outcome, and again illustrates that the right to a “mere presence” instruction remains fuzzy law that is very fact-bound.

How to Use: Should you go to trial on a “mere presence” defense? These fact-bound opinions make that decision a tough call, made even tougher by the fact that most district courts defer on deciding whether to give the defense instruction until the evidence comes in at trial (when those good pretrial deals are distant memories, and the “acceptance of responsibility” points are long gone). The best one can do is collect the opinions and compare the facts to your case – and a good (or rather, informative) place to start is the Ninth’s notorious decision in United States v. Nevils, 598 F.3d 1158 (2010) (en banc), reversing what had been a great case on mere presence by Judge Paez.

For Further Reading: Is there a category for Ninth Circuit decisions that are, “most sympathetic to the defense, with ultimate win to the government?” If so, that distinction goes to last week’s decision in United States v. Apodaca, 2011 WL 1365794 (9th Cir. Apr. 12, 2011). CD Cal AFPD Josh Libby has the panel acknowledging that the guidelines for possession of child porn are nutty – and dissenting Judge W. Fletcher pens the best-written attack on those guidelines ever published in an opinion. Nonetheless, the panel still upholds lifetime supervision for a schlub with a two-year sentence for child porn possession!?!

Frustrating loss, but the case is a great resource for future deconstruction attacks on guidelines that have become completely unmoored from the criminal conduct at issue.



Image of the Las Vegas sign from http://lewis.armscontrolwonk.com/archive/3581/greetings-from-las-vegas


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


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Case o' The Week: Gun in One's Lap Not "Knowing" Possession, Nevils

A baby shower where guests get so drunk they pass out, a respected academic caught by his wife in the kitchen with the chambermaid -- is any field ever as interesting as criminal law? See United States v. Nevils, __ F.3d __, 2008 WL 4937030 (9th Cir. Nov. 20, 2008) (decision available here). In Nevils, Judge Paez gives us a wonderful new decision on the "knowing" possession of a gun, with important language on "mere proximity," "actual possession," and "constructive possession."

Players: Admirable win by CD Ca. AFPD Elizabeth Newman.

Facts: Cops chased dude into an apartment complex in a high-crime area of L.A.. Id. at *1. Their attention was diverted from dude when they came upon Apartment 6, with door ajar. Id. Sleeping on a couch within Apartment 6 was Earl Nevils. Id. A gun was leaning against his leg, another was in his lap. Id. On a nearby coffee table were baggies full of pot and ecstasy, a cell phone, wrist watches, documents, and U.S. currency. Id. Nevils was “startled” awake, said the cops, and they claimed he briefly reached for his lap. Id.

After his arrest, the defendant complained, “I don’t believe this shit. Those motherfuckers left me sleeping and didn’t wake me.” Id. (Several weeks before, Nevils had been arrested in Apt. 6 for a violation of parole – associating with gang members. Id. at *5).

At his trial for being a felon in possession of a gun, Nevils introduced evidence that he had been at a party (a baby shower) in a neighboring apartment all day, had gotten so drunk he couldn’t stand, and had been put on the couch to sleep it off. Id. There were no guns or drugs around him, Nevils’ witness testified, when Nevils was put on the couch. Id. at *5. He was tried and convicted of being a felon in possession of a gun, and the district court denied the Rule 29 motion. Id.

Issue(s): “Nevils timely appealed. He argues that the evidence was insufficient on the element of knowing possession. Nevils points out that: (1) it is undisputed that he was asleep; (2) a witness offered un-rebutted testimony that he had gotten drunk at a nearby party and had been taken to Apartment 6 to lie down; and (3) no other evidence – other than his presence – tied Nevils to the firearms, or to the other items found in the apartment (i.e., the drugs, the cell phone, the watches, and the U.S. currency.”) Id. at *2 (footnote omitted).

Held: “On this record, we hold that the Government failed to produce evidence that would have allowed a rational jury to infer knowing possession beyond a reasonable doubt. It may be natural to assume that somebody must have possessed the weapons because they were there, but the Government did not offer sufficient evidence to prove that the ‘somebody’ was Nevils.” Id. at *8 (internal quotations and citation omitted).

Of Note: Dissenting Judge Bybee is “amazed and disappointed” at this opinion by Judge Paez, joined by Judge T.G. Nelson. Id. at *8 (Bybee, C.J., dissenting). The dissenter complains that the standard to prevail on a Rule 29 motion is “extraordinarily high,” id., and that here there was no plausible explanation for how Nevils ended up with a loaded semiautomatic in his lap and a pistol against his leg, id. at *11. This dissent is a gift, for the opinion’s holding despite the “extraordinarily high” Rule 29 standard makes the lessons of Nevils even more potent defense ammunition.

How to Use: Nevils has value far beyond the narrow fact pattern of the sleeping defendant. In a very thoughtful discussion, Judge Paez surveys case law on “mere proximity,” “actual possession,” and “constructive possession.” Id. at *3. He rejects rigid categorization of these theories, and instead focuses on the “dispositive requirements of knowledge and ability and intention to control.” Id.

The case is a must-read for “knowing” possession drug and gun cases. The decision rejects “mere presence” and Nevils’ “general character and history as a gang member” as sufficient evidence for the “knowing” mental state (despite the fact the gun was in his lap!) Id. at *6. Judge Paez also insists that, “When there is an innocent explanation for a defendant’s conduct as well as one that suggests the defendant was engaged in wrongdoing, the government must produce evidence that would allow a rational jury to conclude beyond a reasonable doubt that the latter explanation is the correct one.” Id. at *7 (quotations and citation omitted). Good stuff.

For Further Reading: Judge Bybee begins his dissent with Samuel Johnson (above right) who was “surprised” to be discovered in the kitchen with the chambermaid by his “amazed” wife. Id. at *8. For other Johnson witticisms, visit the Encarta Book of Quotes here, at page 487.

Here's one such quote: "He did not care to speak ill of any man behind his back, but he believed the gentleman was an attorney." Id.


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


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Case o' The Week: Ninth Knocks BOP Rule Denying Year Break for 922(g) RDAP Grads, Arrington

Public Defender Hero and fellow blogger Stephen Sady earns a big victory against the BOP, when the Ninth rejects a rule that denies the one-year reduction for § 922(g) inmates (and others) who successfully complete the 500-hour residential drug treatment program (RDAP). Arrington v. Daniels, __ F.3d __, 2008 WL 441835 (9th Cir. Feb. 20, 2008), decision available here.

Players: Another victory for tireless inmate rights advocate, Chief Deputy Defender Steve Sady, Portland Oregon.

Facts: In 1990, Congress created a drug treatment program in federal prisons (the “Residential Drug Abuse Program,” or “RDAP”). Id. at *1. In ‘94, Congress gave a one-year off incentive for inmates convicted of “nonviolent offenses” who successfully completed the program. Id. The BOP designated § 922(g) [felon-in-possession] cases as violent offenses ineligible for the year-off. Over a decade of litigation followed, the rule was struck by the Ninth, circuit splits developed, and the Supreme Court waded in. Id. at *1-*2.

Ultimately, in 2000 the BOP promulgated a “final rule” and “exercised its discretion” to exclude § 922(g) inmates from the one-year reduction. Id. at *3. Eighteen prisoners filed habeas petitions.

Issue(s): “The question presented is whether the Bureau of Prisons violated . . . the Administrative Procedure Act (“APA”) when it promulgated this regulation.” Id. at *1.

Held: “[T]he Bureau failed to set forth a rationale for its decision to categorically exclude prisoners convicted of offenses involving the carrying, possession, or use of firearms from eligibility for a sentence reduction . . . . This failure renders the Bureau’s final rule invalid under the APA.” Id. at *6.

Of Note: This decision comes from an interesting panel – Judge Reinhardt authored, and Judges Hall and Milan Smith joined. The decision is based purely on the procedural failure of the BOP to articulate the reasons for its decision; Reinhardt is very careful to avoid the substantive merits of the rule itself (a rule that has previously been upheld by the Ninth and Supremes). Id. at *6-*7. It would be nice if the BOP finally threw in the towel. If they don’t, Sady will take them on (again).

How to Use: I spoke to a surprisingly helpful BOP legal counsel the day after the decision. He suggested that inmates who completed RDAP and who had been denied the reduction immediately file an “Administrative Remedies Request” or “COP-OUT” form to seek an earlier release date. Note that the rule affects more than § 922(g) cases – it also barred the reduction for drug defendants who got the two-level guideline gun bump, and some other substantive offenses as well.

Many defense counsel have not pushed § 922(g) clients to discuss drug addiction in PSR interviews, or sought RDAP referrals from the sentencing judge, because few inmates will complete the (challenging) program without the one-year incentive. Why invite a drug testing/treatment condition on supervised release, if RDAP wasn’t a real option? Arrington changes this strategy – at least for now. A year-off the custodial sentence is a huge incentive, and, as an added bonus, our clients benefit from treatment for the addictions that made them our clients in the first place.

Remember – it is much harder to get into the program without documentation of addiction in the PSR and a RDAP recommendation from the sentencing judge reflected in the order of judgment and commitment.

For Further Reading: Alan Ellis has a helpful description of RDAP here. The BOP’s rap on RDAP is here. There’s a useful “informal” description of the program here.

For the masterpiece on defense challenges to conditions and the length of federal confinement, visit Sady’s “Update on BOP Issues,” available here.

Finally, for a revealing – if slightly cynical – description of the RDAP program from a former federal inmate (including a description of a RDAP unit built next to a bar) visit Bill Bailey’s blog here.


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

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