Case o' The Week: Mistakes Were Made - Minor Role Adjustments and Amendment 794

  Errors not cool, for cocaine mule.

United States v. Aguilar Diaz, 2018 WL 1220508 (9th Cir. Mar. 9, 2018), decision available here.

Players: Decision by Judge Christen, joined by Judges Graber and Murguia. Welcome win for AFD Samuel Eilers, Federal Defenders of San Diego, Inc.  

Facts: Aguilar Diaz pleaded guilty to importing kilos of cocaine and heroin from Mexico. Id. at *1.

 At sentencing, the defense explained that he had only been involved in two prior crossings: trial runs for this offense. Id. He was only going to get paid a grand for his role as a courier. Id. at *2.

  Aguilar Diaz sought § 3B1.2(b) minor role adjustment articulating the five factors in the Commission’s clarifying Amendment 794. Id. The district court adopted the government’s argument “with little elaboration and denied the minor-role adjustment.” Id.

Issue(s): “[Aguilar Diaz] appeals the . . . denial of a minor role adjustment for his sentence pursuant to . . . § 3B1.2(b).” Id. at *1.

Held: “[W]e vacate and remand for resentencing.” Id. “Although the district court has considerable latitude in ruling on minor-role adjustments . . . on this record we must remand for re-sentencing because the decision to deny the adjustment rested on incorrect interpretations of the § 3B1.2 Guideline and Amendment 794. The difficulty is that the district court adopted the government’s argument with little elaboration, and the government’s argument included an incorrect interpretation of § 3B1.2 and Amendment 794. First, the government relied on the fact that Aguilar Diaz agreed to accept money in exchange for transporting drugs, but ignored that his compensation was relatively modest and fixed. There was no evidence that Aguilar Diaz had a proprietary interest in the outcome of the operation or otherwise stood to benefit more than minimally. Second, though the government correctly identified [two other participants in the smuggling] as the comparison group, it did not account for Aguilar Diaz’s limited understanding of the overall ‘scope and structure of the criminal operation.’” Id. at *6.  

Of Note: The old minor role adjustment guideline had created a circuit split. Id. at *3. Amendment 794, effective November 1, 2015, resolved that split by specifying the pool of folks to whom the defendant is to be compared: other participants in the same criminal scheme, not hypothetical typical offenders. Id. In a careful analysis, Judge Christen clearly lays out the history of the guideline and Amendment, and discusses the (non-exhaustive) list of five factors a district court is to consider when deciding whether to grant a minor-role adjustment. Id.

  Aguilar Diaz is worth a close read when arguing for minor role – particularly the Ninth’s favorable recitation of the Commission’s lament that “minor role adjustments had been applied inconsistently and more sparingly than the Commission intended.” Id. at *4 (quoting USSG § 3B1.2 cmt. n.3(C)) (emphasis added).

How to Use: Wait - how did this reversal happen, when it is black letter law that a district court doesn’t have to “tick off the factors on the record to show that it considered them?” Id. at *4. The defense got a significant assist from the AUSA in this appellate win. At sentencing, the government incorrectly characterized the guideline and amendment’s application. The sparse sentencing transcript didn’t make clear that the District Court understood those errors and rejected them. Id. at *6.

  This holding isn’t exactly a new rule, but it is welcome precedent that highlights a path to appellate victory. When the government bumbles the guidelines and the district court doesn’t expressly reject the mistake, use Aguilar Diaz as your hook for reversible appellate error.

                                               

For Further Reading: President Trump has nominated four Sentencing Commissioners. Like prisoners in a chain gang, the fates of these candidates are linked -- we are told that the full slate for this bipartisan commission will rise or fall together in their Senate confirmations.

  Judge “Hang ‘em High” Hudson and Adjunct Professor William Otis are two Commission candidates that have elicited strong views. The pair “could make it harder for the full slate of four to win swift U.S. Senate confirmation.” See article here. 

  Recall that it takes four Commissioners to dance the Guideline tango: we’re currently one Commissioner shy. See USSG Web Page here. 

  With a kipped quorum, and controversial candidates complicating confirmations, the Commission’s main work may be earnest studies and frequent Tweets, for awhile. See USSG Twitter page, available here.  

Image of mule from https://en.wikipedia.org/wiki/Mule#/media/File:Juancito.jpg, By w:User:Dario u / User:Dario urruty (Own work (w:User:Dario u / User:Dario urruty)) [Public domain], via Wikimedia Commons

Image from “O’ Brother Where Art Thou” from http://deepintomovies.blogspot.com/2011/05/o-brother-where-art-thou-2000.html

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

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Case o' The Week: Ninth Not OK with No Mens Rea - Evans and Conditions of Supervised Released

  Probation’s “guilt by association” a Ninth no-go.

United States v. Evans, 2016 WL 2018 WL 1074736 (9th Cir. Feb. 28, 2016), decision available here.

Players: Decision by Judge M. Smith, joined by visiting District Judge John Bates. Dissent by Judge Ikuta.

 Admirable win for AFPDs Shilpi Agarwal and Appellate Chief Carmen Smarandoiu, N.D. Cal Federal Public Defender.

Facts: Evans, a felon, was shot five times. Id. at *2. Evans shot back at his assailant as the assailant fled. Id.

  Evans was convicted of being a felon-in-possession, and put on supervised release. Id.

  One condition of supervised release warned that if Evans was around gang members, the court would presume he was participating in gang activities. Id. at *5.

Issue(s): “Evans argues that the district court erred . . .  in imposing certain conditions of supervised release.” Id. “Evans argues that all of the challenged conditions are unconstitutionally vague.” Id. at *3.

Held: “[One condition] reads: ‘If [Evans] is found to be in the company of [gang members] or wearing the clothing, colors or insignia of the Down Below Gang, or any other gang, the court will presume that the association was for the purpose of participating in gang activities.’ This presumption explicitly removes the requirement that the government prove mens rea in a future revocation proceeding and therefore, if allowed to stand, would render the condition vague and overbroad . . . . Accordingly, . . . we remand for the district court to strike this final sentence.’ Id. at *5 (internal quotation and citation omitted).

Of Note: Evans also disputed Probation’s allegation that he previously had a gun. The court failed to resolve that dispute. Id. at *7. This unresolved dispute falls into an interesting procedural hole.

  Federal Rule of Criminal Procedure 32 requires a court sentencing on substantive counts to resolve factual disputes (or expressly deem the irrelevant). Id. at *7. Rule 32.1, however, covers revocation proceedings. Rule 32.1 doesn’t discuss matters that have to be resolved by the sentencing court.

  Does a sentencing court have to resolve disputes, or dismiss them as not relevant, at a revocation sentencing? While that question was squarely, the Ninth dodged the question in Evans. Id. at *7.

  Flag this dispute for a future fight –it is illogical that revocations aren’t entitled to the same procedural protections as “normal” sentencings.

How to Use: The core issue in Evans was not supervised release. The big fight was whether the Court correctly increased Evans’ substantive sentence for using a firearm in the commission of an aggravated assault under USSG § 2A2.2(a) and (b)(2)(A). Id. at *2. While Evans argued that the firing of his gun was in self-defense, the Ninth regrettably upheld the sentencing enhancement because the assailant was fleeing, after Evans had been wounded. Id.

  The opinion is still valuable, however. Judge Smith corrects the district court’s erroneous view of the burden for self-defense at sentencing. That burden properly rests on the government. Id. at *3.

  Invoke Evans to fight assault enhancements at sentencing. Though the government’s burden is admittedly by a preponderance of the evidence, id. at *3, it nonetheless remains a burden that the government must shoulder.

                                               

Georgetown Law Adjunct Professor William Otis

For Further Reading: Adjunct Professor William Otis has opined that it is “true” that “blacks and Hispanics are more violent than whites.” By contrast, the Professor asserts that “Orientals stay out of jail more than either whites or blacks [because] family life, work, education and tradition are honored more in Oriental culture than in others.” See “Crime and Consequences” blog here. 

  The Sentencing Commission, Professor Otis has explained, used to be the “900-pound gorilla of sentencing law.” After Booker, it is “an overfed lemur.” He wonders how long the Commission should survive, given its increasing irrelevance. See Congressional Testimony of William Otis, available here. 

  “By its incomprehensibly nonchalant attitude toward restoring the determinate sentencing system it was created to produce, the Commission has turned itself into an expensive anachronism. In the era of desperately needed government frugality, taxpayers shouldn’t have to continue to shell out millions for its sentencing suggestions.” Id. at 10.

  Last week, President Trump nominated Professor Otis to serve as a United States Sentencing Guidelines Commissioner. See NPR article here.  

Image of Probation Officers from http://tularecounty.ca.gov/probation/

Image of Adjunct Professor William Otis from http://www.slate.com/articles/news_and_politics/crime/2015/07/bill_otis_meet_the_last_man_standing_who_thinks_criminal_justice_reform.html

Image of overfed lemur from https://www.pinterest.com/mbrodzka1011/lemur/

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

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Case o' The Week: Ninth Not Keen on Gray Primer - Hernandez Martinez and the New(ish) Illegal Reentry Guideline

 The Ninth finds a little light, amongst the gray.

United States v. Hernandez Martinez, 2017 WL 4080481 (9th Cir. Sept. 15, 2017), decision available here.

Players: Decision by Judge Ikuta, joined by Judges W. Fletcher and DJ Barker. Nice win for Deputy Federal P.D. James Locklin, Central District of California.

Facts: After pleading guilty to illegal reentry in violation of 8 USC § 1326, Hernandez Martinez received the +8 OL bump at sentencing for having had a “two year or more” felony sentence before he was removed the first time. Id. at *1 (citing USSG § 2L1.2(b)(2)(B) (Nov. 1, 2016), see Guideline here. 

  Actually, he had been convicted a felony and received a 365 day sentence with probation to follow, before removal. Id. After that California conviction, he was deported, reentered, his probation was revoked, and he was then was sentenced to three years. Id.

  In other words:

  Cali felony conviction w/ 365 day sentence => 
  Removal => 
  Reentry => 
  Revocation of Cali probation, and three year sentence.

  
At the federal, § 1326 sentencing, Hernandez objected to the eight offense level guideline increase, because his original Cali felony sentence was under two years before he was first deported. Id. at *2.

  The district court rejected Martinez’s objection and imposed the guideline increase. Id.

Issue(s): “Hernandez Martinez argues that the district court erred in applying this enhancement. Although Hernandez Martinez sustained a felony conviction before he was first ordered deported, he was sentenced to only one year of incarceration before his first deportation order; the sentence was increased to three years of incarceration after he returned to the United States.” Id. at *1.

  “The question presented here is whether the phrase ‘sentence imposed’ includes terms of imprisonment that were imposed after the defendant’s first deportation order when assessing the defendant’s eligibility for the § 2L1.2(b)(2)(B) enhancement.” Id. at *3.

Held: “We conclude that Hernandez Martinez’s conviction did not qualify for the eight-level enhancement under § 2L1.2(b)(2)(B), and we therefore vacate the sentence and remand for sentencing.” Id. at *1.

  “We conclude that when viewed in its historical context, the amended § 2L1.2(b)(2)(B) is best read as carrying forward the Commission’s prior, unambiguous conclusions that a qualifying sentence must be imposed before the defendant’s first deportation or removal.” Id. at *6.

Of Note: The Ninth got it right. The Fifth got it right. See id. at *5. So who got this new guideline wrong? The Office of General Counsel, for the Sentencing Commission. In its 2016 Primer on Immigration Guidelines, the Primer opined that revocation sentences after removal “counted” towards the "sentence" requirement for the offense level bump. See id. at *6, n.2; see also Immigration Primer here, at 24-25.

  “Meh,” sniffs the Ninth: “The Primer expressly disavows the authority to represent the official position of the Commission . . . and its unreasoned interpretation lacks persuasive power.” Id. (internal quotations and citation omitted).

  A handy footnote, when the proclamations of Commission staff run contrary to your argument.

How to Use: Interpreting the guidelines just required old-fashioned, “ordinary statutory interpretation.” Id. at *2. Hernandez-Martinez adds an arrow to that analytical quiver. In essence, Judge Ikuta explains that if the Commission intends a change to the status quo, it must plainly explain that is what it wants. Id. at *5. Language disappearing in an amended guideline, alone, isn’t enough. Id.

  An interesting concept to mull, as Johnson warriors explore the boundaries of the new(ish) Career Offender definitions. See USSG § 4B1.2, Nov. 1, 2016 (available here).  

                                               

For Further Reading: Whither the Sentencing Commission?

  In August 2017, Attorney General Sessions urged the White House to nominate Eastern District of Virginia District Judge Henry “Hang ‘Em High” Hudson as a Sentencing Commissioner. See article here. 

  (That whole guideline “status quo” thing is sounding pretty good . . . )

Image of Nov. 1, 2016 Sentencing Manual from https://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2016/2016GLMCover.jpg

Image of “Hang ‘Em High” Movie poster from http://omstout.com/wp-content/uploads/2013/09/hang-em-high.jpg

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

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Case o' The Week: The Slings and Arrows of Outrageous Fortune - Simon and Guideline Sentencing of Hobbs Act conspiracies

2B, or Not 2B?

 That is the question.

United States v. Simon, 2016 Westlaw 6610233 (9th Cir. Nov. 9, 2017)(mem.)

 Ord. granting en banc review, No. 15-10203, Jan. 27, 2017, order available here.

Players: Order granting call for en banc review by Chief Judge Thomas. Underlying mem dispo by Judges Graber and Murguia, and District Judge O’Connell.

Hon. Judge Graber

Facts: Simon and co-Ds conspired with a CI to rob drugs from a delivery van. Id. at *1. Simon, arrested on route to the robbery, had a gun. Id.

  He was convicted after trial of § 1951, § 922(g), § 371, and § 659 (Hobbs Act conspiracy, felon in possession, conspiracy to commit theft in interstate shipment, and theft). Id. 

 Simon was sentenced to 192 months. Id. The district court applied U.S.S.G. § 2X1.1 – the “conspiracy” cross-reference guideline. Id. at *2; see also Guideline § 2X1.1 here. The court used this cross-reference to apply several adjustments that increased the guideline range. Id.

Issue(s): The e.b. order is enigmatic on the basis for this sua sponte call.

Hon. Judge Murguia

The oral argument, however, gives us a good clue, as the panel struggled with whether or how to apply U.S.S.G. § 2X1.1 See here.

  In the mem dispo, the panel describes the issue thus: “Simon argues that the district court committed a procedural error at sentencing by applying U.S.S.G. § 2X1.1. In Simon’s view, the court was required to apply U.S.S.G. § 2B3.1. The district court applied several enhancements through operation of § 2X1.1 that likely would not have applied under § 2B3.1.” Id. at *2.

  During the oral argument, Judge Graber describes the issue as whether the selection of the controlling guideline for Hobbs Act conspiracies to commit robbery should be “based on the statute, or based on the guideline.” See video here, at 23:26.

Hon. District Judge O'Connell

Held (by Panel): “We defer ruling on that issue.” Id. at *2.

Of Note: During oral argument, Judge Graber flagged a “disconnect” in the Ninth’s “own caselaw” on the question. See video of argument here, at 11:44. The panel asked about United States v. Temkin, 797 F.3d 682, 692-93 (9th Cir. 2015), a decision which tackled § 2X1.1 in the context of solicitation to commit murder.

  Also discussed during argument was the Second Circuit’s decision in United States v. Amato, 46 F.3d 1255 (2nd Cir. 1995), which concluded that § 2X1.1 was appropriate for a Hobbs Act conspiracy (instead of § 2B3.1, as urged by the defense here).

  (Interestingly, the argument revealed that Guideline Commission staff advised Probation that § 2X1.1 was the appropriate guideline – and then gave the opposite advice to defense counsel in a different call!)

  To hazard a guess, the issue for the en banc court will be how a district court determines the correct guideline for Hobbs Act conspiracies to commit robbery: by starting with the statute's terms, or by turning to the guidelines? It is a "choice of guidelines" or "how to apply the guidelines" case.

   Much is at stake in the approach – Simon’s counsel reported that the guideline range for his client nearly doubled when the district judge turned to § 2X1.1 in this case.

How to Use: Flag and fight, for Hobbs Act “conspiracy to commit robbery” sentencings. Our position? Section 2B3.1 is the correct guideline.

                                               

For Further Reading: We’ve previously reported the “Safe Schools” litigation in NorCal, where thirty-seven black defendants (and only black defendants) were targeted in a series of federal drug busts near schools in San Francisco's Tenderloin district. See blog entry here. The office of the Federal Public Defender, Northern District of California, filed motions seeking discovery relating to race-based law enforcement actions.

  This hard-fought litigation ultimately resulted in one of the most comprehensive Armstrong discovery orders ever delivered. See the Honorable District Judge Edward Chen’s order here.

  (The government, interestingly, did not appeal this order).

  After the order, the parties spent seven months wrestling with the SF Police Department for the discovery at issue. The U.S. Attorney’s office then filed a motion to dismiss the cases – with prejudice. The government declined to explain why it moved to dismiss the cases.

  District Judge Edward Chen signed the government’s motion to dismiss on January 25, 2017. See order here.

  A remarkable chapter in SF history, and a stunning victory for AFPD Galia Amram and the huge FPD team who collaborated on this litigation. Most importantly, it is a vindication of the enormous courage of our clients, who risked high sentencing exposures to continue the fight against racially-targeted law enforcement. See article here.

  The transcript of the hearing regarding dismissal – reflecting Judge Chen’s thoughtful remarks and serious questions about this law enforcement effort– has been ordered, and will be posted on www.ndcalfpd.org when completed.

  A proud day for indigent criminal defense, though a somber reminder of the many fights that remain.

Image of Hamlet from http://cdn.edgecast.steamstatic.com/steam/apps/324710/header.jpg?t=1479439673

Images of the Honorable Judges Graber, Murguia, and District Judge O’Connell from https://www.youtube.com/watch?v=TRmeQcQMQZg

Image of “Greetings from the Tenderloin”  from https://braidmission.org/wp-content/uploads/2016/07/tenderloin_.jpg

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

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