Case o' The Week: Of Articles IIIs and Guilty Pleas - Chavez-Cuevas, Cal Penal Code 211, and "Crime of Violence"

The Hon. Judge Carlos Bea

   How does one end up serving five years in federal custody, with no trial, and no District Judge having accepted a plea of guilt?

  (Hint: The answer ain’t stacked misdemeanors).

United States v. Chavez-Cuevas, 2017 WL 2927635 (9th Cir. July 10, 2016), decision available here.

Players: Decision by Judge Bea, joined by Judges Callahan and Ikuta. 

  Hard fought appeal by AFDs Alana McMains and Sara Weinman, Federal Defenders of San Diego, Inc. 

Facts: Chavez-Cuevas was convicted of Cal. Penal Code § 211 robbery. Id. at *1. He was removed, and re-entered illegally to visit his sick mother. Id. Chavez-Cuevas was found, charged with § 1326, and stated his intent to plead guilty before the magistrate.

  The magistrate judge recommended that the district court accept the offered guilty plea. Id. However, “[a]t no point did the district court orally accept Chavez-Cueva’s guilty plea or address the magistrate judge’s above-discussed recommendation.” Id. at *3. The defense did not object. Id. at *3.

  The district court moved onto sentencing, and imposed a 57 month term. Id. at *1. The bulk of that guideline sentence was a sixteen level enhancement for a “crime of violence.” Id. The district court held that California Penal Code § 211 was a crime of violence, based upon the Ninth’s ’08 Becerril–Lopez decision.

Issue(s): “Chavez-Cuevas asserts that the district court erred . . . in applying a 16-level crime of violence sentencing enhancement in light of recent Supreme Court precedent purportedly in conflict with the Ninth Circuit precedent on which the district court relied.” Id.

Held: “[T]he Becerril–Lopez court’s approach complies with the rationale behind the categorical approach, which seeks to impose a sentencing enhancement only for prior crimes that were categorically crimes of violence. In considering the full range of relevant generic offenses, the Becerril–Lopez court properly analyzed exactly this question and rightly determined that while California robbery (§ 211) may be broader than two particular generic offenses, it nevertheless was categorically a crime of violence because its elements would always constitute either generic robbery or generic extortion, both of which are defined as crimes of violence in U.S.S.G. § 2L1.2(b)(1)(A)(ii). For these reasons, the district court properly relied on Becerril–Lopez to impose a 16–level sentencing enhancement.” Id. at *8.

  

Of Note: The lead issue in this case was the plea (or lack thereof). Can a defendant get five years, without an Article III district judge expressing accepting a guilty plea?

  He can now.

   Chavez-Cuevas argued that the failure of the district court to expressly accept a guilty plea was structural error. Id. at *4. Makes sense – as the Seventh has warned, Congress did not authorize D.J.’s to delegate the “vital task” of accepting a guilty plea to magistrates. Id. (quoting Harden, 758 F.3d at 891).

   Judge Bea, unfortunately, does not agree, and concludes that this issue falls into the curséd “plain error” standard of review. Id. *5. With that threshold question decided, it was short work for the panel to find no plain error. Id.

 Another frustrating chink in the eroding bulwark of structural error protections.

How to Use: N.B.: Chavez-Cuevas is instantly outdated. The decision analyzed the definition of “crime of violence” under the old 2015 § 2L1.2 guideline. The new 2016 guideline definitions narrow the definition of “extortion.” (The example used in Chavez-Cuevas wouldn’t satisfy the new extortion definition).

  For any case with a sentencing after 11/1/16, Chavez-Cuevas is a yawner: CPC § 211 robbery does not satisfy the new Guideline definition of “crime of violence.” The Ninth’s Johnson habeas warriors have already briefed this critical distinction -- make sure your court understands that Chavez-Cuevas’ CPC § 211 holding is yesterday’s news.

                                               

For Further Reading: Just last May, an en banc court of the Ninth vindicated the hard-fought litigation of the San Diego Defenders, and prohibited the indiscriminate shackling of pretrial inmates. See Sanchez-Gomez blog here. 

  The United States Marshal in Arizona, and the Arizona Magistrate Judges, seem to have concluded that this en banc decision doesn’t apply to them.

  The Ninth, apparently, disagrees.

  On Friday, the Ninth granted an injunction against the District Court of Arizona and its shackling practices, pending resolution of a mandamus filed by the Defender’s office there. See Rodrigo Zermeno-Gomez, et al v. USDC-AZP, No. 17-71867.

  Congratulations to Arizona AFPD Dan Kaplan for this important first victory: stay tuned for further developments on the Arizona FPD’s mandamus petition.

Image of the Honorable Judge Carlos Bea from https://www.c-span.org/video/?425486-1/ninth-circuit-court-appeals-judges-testify-court-restructuring at 26:47

Image of the seal of the District of Arizona from http://www.azd.uscourts.gov/sites/default/files/district_Arizona_seal_v1_AG.png

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

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Case o' The Week: Judicial Restraint(s) - Sanchez-Gomez and Shackling of Pretrial Defendants, En Banc

“At the heart of our criminal justice system is the well-worn phrase, innocent until proven guilty . . . . And while the phrase may be well-worn, it must also be worn well: We must guard against any gradual erosion of the principle it represents, whether in practice or appearance. This principle safeguards our most basic constitutional liberties, including the right to be free from unwarranted restraints.”

The Honorable Judge Alex Kozinski

  







United States v. Sanchez-Gomez, 2017 WL 2346995 at *8 (9th Cir. May 31, 2017) (en banc) decision available here.

Players: Admirable decision by Judge Alex Kozinski, joined by Chief Judge Thomas, and Judges Reinhardt, Paez, and Berzon. Potent concurrence (and dissent commentary) by Judge Schroeder. (Six). 

  Dissent by Judge Ikuta, joined by Judges O’Scannlain, Silverman, Graber, and Callahan (Five). 

  Important shared victory for Reuben Cahn, Executive Director, Federal Defenders of San Diego, Inc., Chief Trial Attorney Shereen Charlick, AFPD Ellis Johnston, III, the entire staff of San Diego Defenders’ office, and Ninth Circuit Defender amici.

Facts: With one exception, San Diego federal judges acceded to the Marshals’ request to have pretrial defendants shackled in full restraints. Id. at *2. (District Judge Marilyn Huff “opted out of the policy altogether.”) 

  Defender objections were overruled. 

  The shackling policy was the same regardless of a defendant’s individual characteristics: defendants with a broken wrist, vision-impaired with a cane, brought into court sick and in a wheelchair: all were shackled. 

  When the defense objected, one court chided that it “appreciated counsel not taking anymore time with it.” Id. at *2. 

  Challenges from four defendants were consolidated before the Ninth. Id. at *3.

Issue(s): “We consider whether a district court’s policy of routinely shackling all pretrial detainees in the courtroom is constitutional.” Id. at *2. “Defendants challenge the Southern District’s policy of routinely shackling in-custody defendants without an individualized determination that they pose a material risk of flight or violence.” Id. at *3.

Held: “We now clarify the scope of the right and hold that it applies whether the proceeding is pretrial, trial, or sentencing, with a jury or without. Before a presumptively innocent defendant may be shackled, the court must make an individualized decision that a compelling government purpose would be served and that shackles are the least-restrictive means for maintaining security and order in the courtroom. Courts cannot delegate this constitutional question to those who provide security, such as the U.S. Marshals service. Nor can courts institute routine shackling policies reflecting a presumption that shackles are necessary in every case.” Id. at *9 (footnotes and citations omitted).

Of Note: The Northern District of California, thankfully, has not suffered this blanket shackling policy. In other districts, however, U.S. Marshals continued shackling policies despite earlier and contrary Ninth Circuit authority. See article here.

"The Problem We All Live With," by Norman Rockwell

  Remarkably, even after Sanchez-Gomez was decided, there are early reports of Magistrate Judges in one district balking at unshackling defendants over Marshal objection, despite this controlling en banc decision.

  Federal Marshals famously enforced federal court orders in the 60’s. See generally here. Sanchez-Gomez raises the intriguing question of who enforces a federal court order, when the U.S. Marshal is the subject?

How to Use: How, exactly, did the Ninth get to this issue? The Defenders brought what was really a district-wide challenge, seeking relief not just for the four defendants in this action, but for all in-custody defendants. Id. at *3. Judge Kozinski explains that sometimes such challenges are brought as civil class actions, id. at *3, but can be construed as writs of mandamus as the Court exercises its “supervisory” or “advisory” authority. Id. at *4.

 Sanchez-Gomez is a seminal case on pretrial confinement in court, but is also an important en banc interpretation by the Court on its own jurisdictional powers. The decision is worth a read for that very interesting discussion, and is a good “Federal Courts” primer on mandamus authority and the supervisory powers.

                       

For Further Reading: Sanchez-Gomez is a beautifully written decision. For a thoughtful analysis on why this is a “masterful” opinion (and some timely observations on the uncomfortably-close split the case engendered), see the posting of Professor Shaun Martin, available here.

Image of the Honorable Judge Alex Kozinski from http://www.slate.com/content/dam/slate/articles/news_and_politics/politics/2017/03/170319_POL_Judge-Kozinski.jpg.CROP.promo-xlarge2.jpg

Image of “The Problem We All Live With,” by original uploader User: Jengod, Fair use, https://en.wikipedia.org/w/index.php?curid=601019

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

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Case o' The Week: Ninth Endorses Defenders' Lack of Restraint(s) - Blanket shackling policies for non-jury proceedings

  How do you feel about full five-point restraints on detained defendants, regardless of individualized danger, for almost all non-jury appearances?

  The Federal Defenders of San Diego, Inc. feel the same way.

  Fortunately, so does the Ninth.

United States v. Sanchez-Gomez, 2015 WL 5010701 (9th Cir. Aug. 25, 2015), decision available here.

Players: Decision by Judge Schroeder, joined by Judge Nguyen and DJ Zouhary. Big victory for Executive Director Reuben Cahn, and AFD’s Sherleen Charlick and Ellis Johnston III, Federal Defenders of San Diego, Inc.

Facts: The U.S. Marshal for the S.D. of California wrote to the Chief Judge in 2013, asking for a policy of full restraints on defendants. Full or “five point” restraints are leg shackles and handcuffs attached to a belly band. Id. at *1. The Court deferred to the Marshal and permitted five-point restraints for all non-jury proceedings except guilty pleas, sentencing hearings, and at the request of an individual district judge. Id. The justification given for the policy was the higher volume of defendants in the district, an apparent increase in violence among pretrial detainees, and limits on Marshal staffing. Id. The Federal Defenders challenged the policy on behalf of three inmates (though none were detained by the time the appeal got to the Ninth). Id.

Issue(s): “We agree that a policy that permits routine use of shackles is not ‘forbidden’ in non-jury proceedings under the . . . Due Process Clause; it does not follow, however, that under our precedent shackles may always be used routinely before a judge without any justification or showing of necessity. We have ruled that such a generalized shackling policy must rest on an ‘adequate justification of its necessity.’ Howard, 480 F.3d at 1008. We therefore consider whether the Southern District’s policy meets that standard.”

Held: “In Howard we considered a policy authorizing use of leg shackles during appearances before a magistrate judge in the Roybal Courthouse in Los Angeles. We did not reach the question of whether due process requires an individualized determination in a jury proceeding, because we were dealing with non-jury proceedings. We did recognize that the adoption of a general shackling policy in a nonjury setting must be justified. After examining both the extent of the policy and the asserted need for the policy, we held that the policy was adopted ‘with an adequate justification of its necessity.’ Id. at 1008. The government contends that Howard authorizes the general policy at issue here, a policy of using full restraints during most appearances before a judge. Howard does not do that. This policy is more restrictive of defendants’ movement, applies more broadly, and was adopted with less judicial consideration of its justification than the policy in Howard.” Id. at *2-*4. 

“We do not suggest that judges are necessarily required to document the need for a shackling policy in any particular manner, as for example, with statistics or the infeasibility of less restrictive alternatives. We hold only that in this case, judges should have provided greater justification for adopting such a policy.” Id. at *4. We therefore hold that a full restraint policy ought to be justified by a commensurate need. It cannot rest primarily on the economic strain of the jailer to provide adequate safeguards.” Id.

Of Note: These appellants were no longer detained. Why not moot? Because the harm “is likely to be repeated yet will not last long enough to be judicially reviewed; thus, the exception to the mootness doctrine for cases that are ‘capable of repetition but evading review’ applies. Id. *1.

How to Use: Great win for SoCal. Does this same close analysis apply to shackling of an individual client at the Marshal’s request? Maybe not so much. Take a close look at Judge Schroeder’s discussion of the Second Circuit’s Zuber decision. Id. at *4. Dicta, arguably, but that passage likely signals the (different) analysis for individual shackling decisions.

                                               

For Further Reading: Do Ninth Circuit decisions control in the Southern District? Presumably, but “[f]or now, a marshals official said the policy will continue as is.” For an article on this San Diego policy, the Ninth’s decision, and the potentially surprising aftermath, see article here. 

Image of restraints from http://www.galls.com/photos/styles/RS130_500_2.JPG

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