Case o' The Week: C.O.V. (without the "V") - Dominguez and Attempted Hobbs Act Robbery as Crime of Violence

  Dissent's cordial contempt, for attempt, attempt.

United States v. Monico Dominguez, 2020 WL 1684084 (9th Cir. Apr. 7, 2020), decision available here.

Players: Decision by Judge Silverman, joined by visiting S.D. District Judge Anello.

  Compelling dissent by Judge Nguyen.

  Hard-fought appeal by ND Cal CJA attorney Gene Vorobyov.  

Facts: Dominguez and a co-conspirator robbed a “Garda” armored car warehouse and made off with nearly a million dollars. Id. at *1. They were not caught.

  About a year later, an informant tipped the FBI off to Dominguez’s plans to pull off another armored car robbery. Id. at *2. The FBI set up a fake crime scene, to make it difficult for Dominguez to drive near the warehouse.

  Armed with a pistol, Dominguez drove to the warehouse to commit the robbery – but called the snitch and nixed the caper after getting within a block, and encountering the FBI “crime scene.” Id.

  He was arrested the next day, and charged with – among other things – attempted Hobbs Act robbery of the warehouse, and a Section 924(c) charge based on that attempt. Id.

Issue(s): Is attempted Hobbs Act robbery a “crime of violence” that will support a Section 924(c) charge?

Held: “We hold that attempted Hobbs Act robbery is a crime of violence under 18 U.S.C. § 924(c)(3)(A).” Id. at *8.

Of Note: With a polite tone and brutal logic, Judge Nguyen’s dissent tears apart the reasoning of the majority’s “attempt” holding. Id. at *9 (Nguyen, J., dissenting). She starts with the obvious: an attempted Hobbs Act robbery can be committed without any actual use, attempted, use, or threatened use of physical force. Id. A defendant can go down for attempted Hobbs Act robbery even if a “substantial step” towards that crime does not involve “physical force” acts necessary for a “crime of violence” designation. Id. at *10. Judge Nguyen then explains how the majority’s analysis “impermissibly bootstraps a defendant’s intent to commit a violent crime into categorizing all attempts of crimes of violence as violent crimes themselves.” Id. at *11.

  Judge Nguyen’s analysis is spot on: this decision should go en banc. Efforts underway for a PFREB.

How to Use: The majority conspicuously avoids deciding whether “[c]onspiracy to [c]omit Hobbs Act robbery is also a crime of violence under 18 U.S.C. § 924(c)(1)(A).” Id. at *8. (Judge Nguyen insinuates the majority’s dodge allowed it to avoid an irreconcilable conflict: the government conceded that conspiracy to commit Hobbes Act robbery is not a crime of violence. She rightly asks, “If conspiracy and attempt have the same intent requirement, how, under the majority’s approach, could the result be different? The majority doesn’t say.” Id. at *11.)

  In any event, seize the government’s concession in Dominguez: conspiracy to commit Hobbs Act robbery is not a crime of violence supporting a Section 924(c) charge.

                                               

For Further Reading: Over two thousand inmates have tested positive for COVID-19 in Ohio prisons. See article here. Over 1,800 inmates have tested positive in one Ohio prison alone. Id. Why has California generally, and Santa Rita Jail specifically, not seen Ohio’s numbers of positive tests? Because Ohio is “testing everyone -- including those who are not showing symptoms – [and is] getting positive test results on individuals who otherwise would have never been tested because they were asymptomatic.” Id. (emphasis added).

   Santa Rita Jail, by marked contrast, is not testing its entire inmate population: its report of positive cases is therefore radically under-inclusive. See Santa Rita Jail COVID-19 website here. (reporting 33 positive inmate and staff cases); see also “Asymptomatic coronavirus cases at Boston homeless shelter raise red flags, available here. 

  For graphs showing the alarming rates of (underreported) positive tests in Santa Rita, see ND Cal APFD’s Candis Mitchell’s analysis here. 

Image of Garda armored car from https://abcnews.go.com/US/fbi-men-shootout-rob-armored-car-broad-daylight/story?id=64822253  

Image of Santa Rita Jail wire fence from https://www.berkeleyside.com/2020/04/01/in-covid-19-move-alameda-county-cut-its-jail-population-a-new-state-policy-could-undermine-that

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

Case o' The Week: Ninth binding on findings -- Herrera-Rivera and findings required for obstruction enhancements

There’s lies, damn lies, and statistics.

(But without specific findings, none of them merit an obstruction hit).

United States v. Herrera-Rivera, No. 15-50141 (9th Cir. Aug. 12, 2016), decision available here.

Hon. Judge Barry Silverman

Players: Decision by Judge Silverman, joined by Judge Tashima. Concurrence and partial dissent by Judge Graber.

Facts: Herrera-Rivera was on a bus stopped by the border patrol. Slip Op. at 4. Agents found an unclaimed backpack a few rows up from the back of the bus. Id. at 5. Inside was a kilo of meth, wrapped with electrical tape. Id. Herrera-Rivera, who had crossed the border that morning, was sitting a few rows behind the bag. Id. A consent search of Herrera-Rivera by the agents revealed “black marks on his stomach that they believed were residue from electrical tape.” Id. A search of cell phones on Herrera-Rivera produced texts that appeared to arrange a rendezvous and payment for his return trip. Id.

  Hererra-Rivera explained to the agents that a friend had given him the cell phone and $60, and told him to get on a bus to Calexico. Id. He said he thought there were drugs on the bus because his friend was involved in trafficking. Id.

  At trial, Herrera-Rivera testified he left Mexico because of marital problems, and was heading to Vegas to see his sister. Id. at 8. He explained that he was strip searched at the border (which agents later denied). Id. He testified that he did not know anything about the bag, and denied making incriminating statements to the agents. Id. He also testified the black marks on his stomach were from painting a fence the day he left home. Id.

  He was convicted.

  At sentencing the government moved for the guideline obstruction of justice enhancement under USSG § 3C1.1. Id. at 9-10. The district court mused, “I remember when he was testifying, thinking to myself that it was – to put it kindly, tenuous at best.” Id. at 10. The court applied the obstruction enhancement and imposed a sentence of ten years (about half of the (enhanced) guideline range). Id. at 10.

Issue(s): “Because Herrera-Rivera did not object to the district court’s findings on the obstruction of justice enhancement, we review these findings for plain error.” Id. at 10-11.

Held: “[W]e agree with Herrera-Rivera that the district court plainly erred by applying an obstruction of justice enhancement to his sentence without making the express findings required by United States v. Castro-Ponce, 770 F.3d 819 (9th Cir. 2014).” Id. at 4.

Of Note: This is a good defense win, because (as dissenting Judge Graber argues), this case was a little – well, sketchy -- for us on the obstruction enhancement. Herrera-Rivera’s testimony was impeached on several fronts. It was pretty clear that his testimony was on facts that were material. And with no objection in the district court, the sentence was being reviewed for plain error. The reversal thus boils down to the lack of specificity of the findings. As Judge Graber complains, “the practical effect of [the majority’s] holding is to require a remand in every case in which a district court applies the obstruction of justice enhancement but makes incomplete findings.” Id. at 22 (Graber, J., dissenting).

  Our client’s right to testify is an invaluable, but fragile, thing: Herrera-Rivera continues the Ninth’s very strict protections against casual bumps for invoking that right.

How to Use: Begrudging Johnson Section 2255 remands, the government has bickered over prejudice when our clients originally received below-guideline sentences. Herrera-Rivera (again) eviscerates that argument. In Herrera-Rivera, the client got a full decade below the enhanced guideline range: a fifty percent break. The government argued that the obstruction error didn’t affect Herrera-Rivera’s substantial rights. 

  “[W]e reject this contention,” rebuffs the Ninth. Id. at 17. 

  Add Hererra-Rivera to Molina-Martinez in our Johnson briefing: a sentence imposed under the wrong guidelines is, plainly put, wrong – remand and resentencing is the remedy.

                                       

For Further Reading: Bet you’ve been hitting Nate Silver’s blog for other reasons, lately. Next time you’re there, take a look at an interesting (terrifying) article on predictive sentencing based on odds of recidivism. See Risk Assessment article here.  )

  Minority Report, coming to a court near you.

Image of Judge Silverman from http://openjurist.org/sites/default/files/judges/Barry%20G.%20Silverman.jpg?1459383336

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

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Case o' The Week: Winning Isn't Everything (and Sometimes, It's Nothing . . . .) - Horob and Vindictive Sentencing on Remand

It goes to eleven.

(And it stays there).

United States v. Horob, 2013 WL 5943405 (9th Cir. Nov. 7, 2013), decision available here.

Players: Per curiam decision by Judges Silverman, Fletcher and Callahan.

Facts: Horob was a cattleman that made-up cows and concocted “investments” when faced with mounting losses. Id. Horob was convicted of a fraud-related charges and aggravated identity theft – a two-year mandatory-minimum consecutive count. Id. at *1. The district court departed downwards 27 months from the guidelines, and imposed a total ultimate sentence of 11 years. Id. Horob won part of his first appeal when the Ninth reversed the agg ID theft conviction. Id. The celebration was short-lived: on remand, the district court imposed an identical 132-month custodial sentence, despite the lack of the 2-year-consecutive, mand-min, agg ID theft count of conviction. Id. Horob appealed again.

Issue(s): “Horob contends that the district court acted vindictively when it imposed the same total sentence on remand.” Id. at *2.

Held: “[W]e hold that the presumption of vindictiveness does not apply when a district court does not impose a more severe sentence on remand, even when the vacated conviction carried a mandatory sentence.” Id. at *1. 

  “The presumption of vindictiveness does not apply to Horob because it is apparent that the district court considered his overall sentence at the time of his original sentence and again on remand, and because his overall sentence was not increased.” Id. at *2 (emphasis in original). 

  “A sentence is not more severe merely because a mandatory sentence has been eliminated if the overall sentence remains the same and there is no net increase in his punishment.” Id. (internal quotations and citation omitted).

Of Note: “Horob is understandably disappointed that his successful appeal . . . did not

Todd Kenneth Horob

result in a reduction of his final sentence, but this does not give rise to a presumption of vindictiveness.” Id. at *3. 

  The Ninth probably understates Horob’s disappointment. 

  The per curiam Court relies on authority that holds a sentence becomes “unbundled” on remand and re-sentencing – ergo, there’s no presumption of vindictiveness when the reversal of a two-year min-mand produces an identical prison (re)sentence. Id. at *4. This is a head-scratcher for us in the trenches: a defendant gets eleven years of custody when his “reasonable” sentence included a two-year mandatory minimum consecutive term, yet the “reasonable” term on a victorious remand, where the consecutive mand-min is gone, is identical? Maybe the district court felt that eleven years was just the right sentence the first time around, and jiggered a guideline variance to offset the mand-min to get there? 

  On its surface, Horob is about resentencing, but the opinion’s larger lesson is the lunacy of mandatory-minimum sentences. District courts think so little of agg ID theft mand-mins that guideline sentences are just “varied” to absorb these 2-year tails. It’s a rational approach– Section 1028A charges have much more to do with an individual AUSA’s mood than with the crime actually committed or the culpability of the defendant – but Horob reveals how nonsensical agg ID theft mand-mins really are.

How to Use: Maybe the real lesson of Horob is this: the Ninth won’t second-guess a district court for off-setting a Section 1028A mand-min by varying from the guideline range. Pretty clear that’s what happened here at the original sentencing, and it prompted nary a “tsk” from the Ninth. Granted, there’s that language in Section 1028A(b)(3) that discourages (er, prohibits) such an offset . . . but that didn’t get much traction in Horob.

                                               

For Further Reading: Mand-mins wrongly limit judicial discretion, unfairly increase prosecutorial discretion, shield bad police work by discouraging suppression litigation and trials, and produce inexplicable sentences like the one in Horob. They also cram prisons with more inmates than they can hold. For a compelling indictment of federal overcrowding – projected to 55% over capacity by 2023 – see the Urban Institute’s new report here. 

Spinal Tap image from http://www.metalizer-records.de/bilder/produkte/gross/SPINAL-TAP-This-Is-UP-TO-11-EDITION-3DVD-SET-.jpg

 Image of Mr. Horob from http://billingsgazette.com/news/state-and-regional/montana/article_89659d1b-1360-5035-b9b1-fa9701e6f2f1.html

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

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