Case o' The Week: The Ninth Don't Feel Our Writ Appeal - Repp, the IADA, and Resolving Violations of Supervised Release

 Form 12 resolutions have a bad Rep[p] in the Ninth.

 United States v. Repp, 2021 WL 613385 (9th Cir. Feb. 17, 2021), decision available here.

Players: Decision by Judge Tallman, joined by Judge Callahan and visiting DJ Christensen.  

Facts: Repp was on supervised release out of the CD Cal. Id. He committed a new federal crime, and was incarcerated in Arizona. Id.

  After the district court in L.A. signed an arrest warrant for the “Form 12” (alleging a violation of supervised release), a detainer was slapped on Repp. Id.

  Repp moved the L.A. District Court judge for a writ of habeas corpus ad prosequendeum, to the Warden at FCI Phoenix, directing the warden to transport him to L.A. to resolve the Form 12. Id.

  That motion was denied by the CD Cal. District Judge. Id. Repp appealed the denial of the order.

Issue(s): “May an inmate currently serving time on one federal sentence expedite the resolution of a newly lodged detainer to answer for a supervised release violation in another federal district that was triggered by his commission of the crime for which he is currently incarcerated?” Id. at *1.

Held: “Because the denial of Repp's motion is not a final or appealable collateral order, we lack jurisdiction over this appeal and must dismiss it.” Id.

Of Note: A motion for a “writ of habeas ad prosequendum” seems a laborious path to get a Form 12 in another district resolved. Why didn’t Repp just file an Interstate Agreement on Detainers Act (“IADA”) demand? See 18 USC App. 2 § 2. 

Because, to our great frustration, the IADA does not apply to detainers tied to violations of supervised release. See Repp, 2021 WL 613385, at *1 (quoting United States v. Bottoms, 755 F.2d 1349, 1350 (9th Cir. 1985)). While Bottoms interpreted the language of the IAD, it also strongly hinted that Congress should clean up the wording of this statute. See Bottoms, 755 F.2d at 1349.

The Ninth in Bottoms was right about the language of the IADA – it makes no sense that a serial bank robber can make an IADA claim to resolve all charged robbery cases in multiple jurisdictions, but an inmate with a hanging Form 12 cannot use the IADA to do the same thing. Note, however, that Repp only holds that the Ninth has no jurisdiction to consider Repp’s appeal – it does not appear to prohibit Repp’s “writ ad prosequendum” gambit. This creative writ approach appears to have survived, for us to try again with a more sympathetic district court.  

How to Use: Form 12 detainers have a real, negative impact on the access to programing in BOP custody, and on early release to half houses – exactly the opposite of what Probation should be encouraging. Until the IADA is fixed, this unfair discrepancy in lack of access to this mechanism (between “new” cases and Form 12 allegations) is an interesting theory for reduced custodial terms in Form 12 hearings (along the lines of the good ole’ Sanchez-Rodriguez “lost opportunity to serve a concurrent sentence” theory). See United States v. Sanchez-Rodriguez, 161 F.3d 556 (9th Cir. 1998) (en banc). Notably, in Repp Judge Tallman expressly flags this “procedural delay” argument as a pitch that Repp can make when he finally gets back to Los Angeles to be sentenced on his supervised release violation. See Repp, 2021 WL 613385, at *2.

For Further Reading: In 2013, history was made here in San Francisco when Attorney General Eric Holder announced the new “Smart on Crime” initiative. See Smart on Crime overview here. 

That brave reform effort worked -- and its principles were then adopted across the political divides. See article here. 

Judge Garland (finally) has a confirmation hearing scheduled for his new A.G. gig. See NPR article here. 

Our first question for His Honor? How quickly will DOJ revive A.G. Holder’s Smart on Crime principles?

 

 

Image of “Repp” from https://www.besttechtips.org/how-to-remove-repp-ransomware-and-decrypt-repp-files/ .

 

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

 

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Case o' The Week: Ninth No Fan of Minivan Plan - Dixon, the Fourth, and Those with Suspicionless Search Conditions

The Fourth Amendment protects our property against warrantless and unreasonable government intrusions.

(Even when the property is a minivan . . . .)

  United States v. Dixon, 2020 WL 7777884 (9th Cir. Dec. 31, 2020), decision available here.

 Players: Decision by Judge Wardlaw, joined by Judge M. Smith and visiting Judge Siler. 

Admirable win for former ND Cal AFPDs Jonathan Abel and Juliana DeVries, building on the district court litigation of Trial AFPD Elizabeth Falk and Appellate AFPD Steven Koeninger.  

Facts: Dixon was on supervised release with a warrantless, suspicionless search condition. Id. at *2. A cop saw Dixon leave an apartment and (allegedly) walk towards a blue minivan. Id. When cops stopped Dixon he dropped two garbage bags he was carrying, and keys. Id. Using one those keys, the cops unlocked, opened, and searched the minivan. They found pot. Id.

Dixon was charged with drug distribution allegations in the Northern District of California.

  During the suppression litigation, Dixon submitted a declaration explaining that he was not in fact walking towards the blue minivan. Id.

   The district court denied the suppression motion without an evidentiary hearing. Id. at *3.   

 Issue(s): “We must decide whether the insertion of a car key into a lock on the vehicle’s door for the sole purpose of aiding the police in ascertaining its ownership or control is a ‘search’ within the meaning of the Fourth Amendment.” Id. at *1. “[W]e must determine whether inserting that key into the minivan’s lock was itself permissible under the Fourth Amendment. This matters because if inserting the key into the car lock violated Dixon’s Fourth Amendment rights, the officers’ resulting knowledge and authority to search that vehicle would be tainted by a Fourth Amendment violation.” Id. at *3.

   “To determine whether a Fourth Amendment violation occurred, we ask two primary questions: first, whether the government conduct amounted to a search within the meaning of the Fourth Amendment; and

   [S]econd, whether that search was reasonable.” Id. at *4. “The level of suspicion required to determine whether a vehicle is subject to a warrantless search condition appears to be an issue of first impression in this circuit . . . .” Id. at *6.

Held: “In light of recent Supreme Court authority tying the Fourth Amendment's reach to the law of trespass . . . we must conclude that because ‘[t]he Government physically occupied private property for the purpose of obtaining information,’ United States v. Jones, 565 U.S. 400, 404 (2012), it conducted a search within the meaning of the Fourth Amendment.” Id. at *1.

  Issue One: “Applying Jones’s property based analysis, we must conclude that a Fourth Amendment search occurs when an officer physically inserts a key into the lock of a vehicle for the purpose of obtaining information, as occurred here. Thus, our decision in Currency is ‘clearly irreconcilable’ with the Supreme Court’s property-based Fourth Amendment jurisprudence, and it cannot stand to the extent that it concluded that no search occurred on these facts.” Id. at *4.

  Issue Two: “We hold that before conducting a warrantless search of a vehicle pursuant to a supervised release condition, law enforcement must have probable cause to believe that the supervisee owns or controls the vehicle to be searched.” Id. at *6. “We therefore remand this case for the district court to conduct an evidentiary hearing and to rule on Dixon’s suppression motion in light of the Jones and Jardines principles we now apply.” Id.

Of Note: The great Dixon opinion is thick with helpful holdings. In addition to a welcome decision of first impression on supervisees and vehicles, the Ninth rejects the government’s attempt to exempt those who have suspicionless search conditions from Jones’ property-based approach. Id. at *5 & n.2. 

A very important Fourth Amendment read.

How to Use: Dixon admitted possession and denied distribution: the jury convicted on simple possession. The DJ, however, denied the two-level reduction for acceptance of responsibility under USSG Section 3E1.1(a). Id. at *8. The Ninth explains that the DJ got the guideline wrong -- Dixon should have received the acceptance break. Id. at *8. 

Dixon is a quiet -- but important -- acceptance-of-responsibility victory, hidden within an attention-grabbing Fourth Amendment win.

For Further Reading: Importantly, the cops’ body cam video substantiated Dixon’s declaration in this case. Id. at *2. Body camera video is a simple reform that adds much integrity and accountability to the criminal justice system.

In our George Floyd era, why would any US Attorney Office federalize a state case that does not have body camera video? That obvious question should be posed to the candidates now eagerly vying for US Attorney gigs in the Biden administration. VP Harris famously touted supporting body cameras, after all.  

Although there are over 100 state, city and county law enforcement agencies in the Northern District of California, Lord only knows which of them have body camera policies or provide the gear to their cops, deputy sheriffs, park and patrol officers.   

For an informative report on this important issue see the report of a San Mateo grand jury, here. 

 

 

Image of blue minivan from https://www.cargurus.com/Cars/l-Used-Minivan-bg4

 

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

 

 

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Case o' The Week: Of Form 12s and Aggravated Mopery - Cate and Challenges to Convictions via Supervised Release

Q: Is it a federal crime to possess a gun with a felony prior, after having been convicted of a state offense carrying a max term of three months? 

A: Close enough for government work (and a fifteen month supervised release violation sentence!)

  United States v. Cate, 2020 WL 4914049 (9th Cir. Aug. 21, 2020), decision available here.

 Players: Decision by Judge Tashima, joined by Judges W. Fletcher and Rawlinson.

 Hard-fought appeal by (former) AFPD Matt Campbell, Fed. Defenders of E. Wa. & Idaho (now the Federal Public Defender of the United States Virgin Islands).

Facts: Cate was convicted of § 922(g)(1): having a gun after being convicted of a Washington third-degree-assault conviction. Id. at *1. He was later charged with violating supervised release. While that Form 12 was pending, the Ninth held that the state offense of conviction had a maximum sentence of the state sentencing range (here, three months). Id. at *2 (discussing United States v. Valencia-Mendoza, 912 F.3d 1215 (9th Cir. 2019).

  Cate moved to terminate supervised release, arguing that this change in law meant that the underlying state offense was no longer a felony. Id. at *1.

   The district court held that Cate couldn’t challenge his federal conviction through terminating supervised release: he would have to pursue a habeas motion under 28 U.S.C. § 2255. Id. at *2.

  Cate’s challenge was denied, he was violated, and sentenced to 15 months. Id.

Issue(s): “In [United States v. McAdory, 935 F.3d 838, 840–41 (9th Cir. 2019)], we applied Valencia-Mendoza to hold that a defendant's convictions under Washington law were not felonies for purposes of § 922(g)(1) . . . . Cate . . . relies on McAdory to argue that his Washington offense was not a felony for purposes of § 922(g)(1) because the sentence to which he actually was exposed was less than a year.” Id. at *3.

Held: “Although this may be correct, the supervised release hearing was not the proper proceeding in which to challenge his underlying federal conviction.” Id. at *3.

  “[W]e agree with the district court that the validity of an underlying conviction cannot be challenged in a supervised release revocation proceeding.” Id. at *1. “Just as § 3583(e) does not authorize a district court to modify or rescind an allegedly illegal condition, it does not authorize a district court to vacate an allegedly illegal conviction. Instead, the underlying conviction must be collaterally attacked in a proceeding under § 2255, not in a supervised release revocation proceeding. . . . . In so holding, we join every other circuit to have addressed the question.” Id. at *3.

Of Note: Fifteen months custody in a COVID-infested federal prison, for a supervised release violation off of a federal conviction that isn’t actually a crime? Surely there are other equitable ways to skin this unjust cat?

The defense tried. It logically argued for a reduced sentence under § 3553(a)(1), since the defendant shouldn’t be on supervised release in the first place. Id. at *4. The district court was unmoved – and distressingly, so was the Ninth. Id. The Ninth concludes that the D.J.’s initial reference was a habeas path of relief was enough to check the sentencing box, and the custodial sentence was “reasonable.” Id.

Note some bad facts lurking beneath this decision, including a (probably drunken) vehicular manslaughter conviction that prompted the Form 12 in the first place. Id. at *1. Bad facts make bad law: Cate is a disappointing tolerance of supervision (and custodial terms for violations!) despite an unlawful underlying federal offense.

 How to Use: Judge Tashima concedes that this scenario is vulnerable to attack on direct appeal. Id. at *3 & n.2. And the tortuously slow road of habeas relief remains available as well. Id. at *1. Can a new Form 12 (and custody) be stayed while a quickly-filed § 2255 habe is litigated? Presumably (though unlikely that Cate’s DJ would have been so inclined given the reported outcome in this case).                                         

For Further Reading: Ten of the top ten COVID infection clusters in the United States are linked to correctional facilities. For a compelling editorial calling for decarceration, see Coronavirus cases in prison are exploding: More people need to be let out, available here.

 

Image of “three months” from https://vip.incomesharks.com/product/vip-3-month-membership/

 

 

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

 

 

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Case o' The Week: A BEAutiful Appellate Waiver Case - Dailey and SORNA Registration Requirements

Give thanks, for the Ninth's limitations on appellate waivers.

United States v. Dailey, 2019 WL 5688814 (9th Cir. Nov. 4, 2019), decision available here.

Players: Decision by Judge Bea, joined by Judges Gould and Friedland.  

Facts: Jazzmin Dailey was charged with the prostitution of a minor in Las Vegas. Id. at *1. She charge-bargained to violating the “Travel Act,” which criminalizes travelling in interstate commerce with the intent to commit unlawful activity (including non-sexual criminal activity). Id. at *2; see also 18 U.S.C. § 1952(a)(3).

   Her plea agreement contained an appellate waiver.

  In an admirable decision, Chief District Judge Gloria Navarro varied downwards and sentenced Dailey to no imprisonment and three years of probation. Id. at *3.   The sentence included a provision that Dailey had to comply with the Sex Offender Registration and Notification Act (SORNA) as directed. Id. at *3. 

  Dailey was required to register as a sex offender in her state of residence, Arizona. Id.

Issue(s): “On appeal, Dailey makes three arguments challenging the legality of the condition requiring her to register as a sex offender. First, she argues the district court imposed an illegal sentence by requiring her to register as a sex offender because she was not convicted of a ‘sex offense.’ Next, she argues the district court did not provide her adequate pre-sentencing notice that she would be required to register as a sex offender under SORNA. And finally, she argues the district court delegated the Article III power to impose a criminal sentence by leaving the determination whether Dailey would be required to register as a sex offender to the probation office or state officials.” Id. at *1.

Held: “[W]e reject all three arguments, conclude that the sentence was legally imposed, and dismiss the appeal based on the enforceable appellate waiver in Dailey’s plea agreement.” Id.

Of Note: The core issue of Dailey is whether the residual clause in SORNA is subject to the categorical approach, (on the issue of whether an element of the statute of conviction required that the victim was a minor). Id. at *6-*7. Judge Bea concludes it is not: “the statutory text and structure are clear.” Id.

  The Ninth joins the 4th, 5th, and 8th Circuits and holds that a non-categorical approach to the SORNA registration requirements is appropriate. Id. at *7.

  This is bad news for our clients – the non-categorical approach cast a much broader net, and will ensnare defendants like Dailey in the SORNA registration requirements.

How to Use: There’s lots of words, in Dailey, for a case that ultimately upholds an appellate waiver. Judge Bea explains that the familiar Bibler exceptions to appellate waivers includes an unlawful sentence – and that unlawful probation conditions fall within this exception. Id. at *3 (citing United States v. Watson, 583 F.3d 974, 987 (9th Cir. 2009)). Judge Bea then works through each of the challenges to the registration requirement, to consider whether it was lawful. Because the terms of probation were finally concluded to be lawful, the Ninth ultimately enforces the appellate waiver.

  From the defense perspective, this appellate waiver turns out to be a de minimis barrier to full Ninth review of the legality of the conditions of probation (and the same theory applies to supervised release!)

  Consider Dailey when conditions of probation or supervised release get your goat, but there’s an appellate waiver in the plea agreement. If your Ninth challenge goes to the legality of the supervision conditions, an appellate waiver in a plea agreement is essentially a meaningless term: appeal away. If the probation (or supervised release) conditions are unlawful, the plea agreement’s appellate waiver is unenforceable: our clients win. If the conditions are lawful, the waiver is enforced – but our client has had full appellate review of their legality.

                                               

For Further Reading: Two more of President Trump’s Ninth nominees, Mr. Lawrence VanDyke and Mr. Patrick Bumatay, cleared another Senate hurdle last week. See article here.  

Image of turkey urging waiver from https://mainesport.com/turkey-ride/

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

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Case o' The Week: Miller Sure of Ped-i-Cure - Ped, Conditions of Supervised Release, and Limitations of Appellate Review

The Honorable Judge Eric Miller

  Ninth nixes appellate fixes.

United States v. Ped, 2019 WL 6042813 (9th Cir. Nov. 15, 2019), decision available here.

Players: Decision by Judge Eric Miller, joined by Judges Owens and Ryan D. Nelson. 

  Supervised release win for AFPD Gia Kim, Central District of California.  

Facts: After a parole search for his brother produced guns at his house, felon Ped plead guilty, with a conditional plea agreement. The agreement allowed Ped to challenge the denial of a motion to suppress. Id. at *2.

  The district court imposed (old) standard conditions of supervised release: 1) that Ped “support his . . . . dependents and meet other family responsibilities,” that he 2) “work regularly at a lawful occupation,” and 3) that he “notify third parties of risks that may be occasioned by [his] criminal record or personal history or characteristics.” Id. at *4.

  In United States v. Evans, 883 F.3d 1154 (9th Cir. 2018), the Ninth had held that these conditions were unconstitutionally vague. Id. Ped asked these conditions be corrected on appeal.

Issue(s): The government declined to assert the appeal waiver, and agreed that the conditions were unconstitutional. On appeal, “the government suggested that we rewrite the conditions and affirm the judgment as modified.” Id. at *4.

Held: “Upon further consideration, the government changed its position and argued that a remand is appropriate. We agree.” Id.

Of Note: The key aspect of the supervised release beef in Ped is not whether the conditions of supervised release are constitutional: they aren’t.

  Instead, Judge Miller spills a fair amount of ink explaining why the appellate court cannot cobble together a fix, and instead must vacate the contested conditions and remand for resentencing. Id. at *5.

  Judge Miller is a new Ninthjurist, and Ped may offer an interesting insight into his views of the limited roles of an appellate court. That worked well for the defense here – but we may be less keen on this district-court deference when we’re attacking a decision under an “abuse of discretion” standard.

How to Use: Ped won this S/R battle, but lost the parole-search war at the heart of this case. Id. at *1. 

  The cops in this case learned that Ped’s brother, who was on “post-release community supervision” (like parole), lived in a house where Ped also resided. Id. at *1. Three months later (and after the Probation Officer was given a new and updated address for the brother) the cops searched the brother’s old original residence without a warrant. Id. at *2. The cops discovered Ped, meth pipe in hand, and went on to extract Ped’s confession to the guns found at the house. Id.

  The suppression issue was whether these sloppy cops had probable cause to believe the brother still lived at Ped’s house, when they relied upon three-month old residence info and when they didn’t bother to learn the new and correct address given to the P.O. Id. at *3.

  “Meh - good enough for government work,” is the gist of the disappointing Fourth Amendment holding: “To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials.” Id. at *3.

  Ped, unfortunately, is an important – albeit fact-bound – decision on probable cause and parole searches of third-party residences. It merits a close read for parole-search cases.

                                               

For Further Reading: We defense attorneys review our clients’ priors. Turns out we should be checking cops’ priors as well. In a fascinating piece, the East Bay Times reveals the number of cops with “dubious backgrounds” in the McFarland Police Department. See article here.

  Want to see if a cop in your case has a conviction? This article has a link to a convicted-cop database, that you can use to run hundreds of current and former California law enforcement officers who were convicted of a crime since 2008. 

  With our Federal courthouse transforming into the Northern branch office of San Francisco’s Hall of Justice, see article here, this convicted-cop database is of particular interest to the NorCal federal defense bar.

Image of the Honorable Judge Eric Miller from https://www.youtube.com/watch?v=nHQYcZ9Kr98

Image of the Hall of Justice seal from https://www.kqed.org/news/11722940/san-francisco-investigator-disciplined-for-issuing-subpoena-under-false-pretenses 

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

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Case o' The Week: "Hall"marks of a "normal" family? - Hall and Conditions of Supervised Release

  What is a “normal” family, and “normal” familial relations?

   (The Ninth, to its great credit, doesn’t know either).

United States v. Leroy Hall, 912 F.3d 1224 (9th Cir. Jan. 11, 2019), decision available here.

Players: Per curiam decision by Judges Gould, Berzon, and ED NY DJ Block. Nice win (again) for AFPD Elisse Larouche (argued), and AFPD Dan Kaplan, D. Arizona FPD.  

Facts: Hall and his son were sentenced to prison for a fraud involving a false money orders. Id. at 1226. (The pair were already incarcerated for a separate joint criminal enterprise.). Id. 

   Over Hall’s objection, the district court imposed a condition of supervised release, providing that he was “permitted to have contact with [his son] only for normal familial relations but is prohibited from any contact, discussion, or communication concerning financial or investment matters except matters limited to defendant’s own support.” Id.

Issue(s): “Hall objected at sentencing that the condition is unconstitutionally vague.” Id.

Held: “We agree, and strike the offending words ‘only for normal familial relations’ from the condition.” Id. 

  “If the district court meant only to prohibit Hall and [his son] from participating in illegal activities together, it could have said exactly that and no more, as defense counsel suggested at the resentencing hearing.” Id. at 1227.

Of Note: This opinion is the second time the district court was reversed on conditions for this defendant. In a previous sentencing, the district court had prohibited Hall from associating with any felon, absent permission from the P.O. Id. at 1226 & n.1. The Ninth reversed in a mem dispo, because the district court had imposed that condition “without justifying or limiting the restriction on Hall’s right to associate with his children.” Id.

How to Use: For a brief decision, this opinion is surprisingly rich in useful concepts for future S/R fights. 

  First, as the Ninth explained in the mem dispo described above, and again emphasized here, conditions that purport to limit contact with the defendant’s children are going to get “careful” review. Id. That familial contact is a “fundamental” right. Id. 

  The Ninth also is skeptical of a condition that limits contact to “normal familial relations.” As the Court asks, what is a “normal” family, and what does a “normal” family “normally” do? Hall is a welcome Ninth shout-out to the “tremendous diversity of family structures and family habits” in America. Id. at 1227. 

  Finally, what is the springboard for the Ninth’s holding that the condition was unconstitutionally vague? Johnson v. United States (2015): a SCOTUS gift that keeps on giving. Id.  

                                               

For Further Reading: Before a defendant can be incarcerated for a violation of supervised release, the Sixth Amendment requires that he or she be afforded a jury trial and that the alleged facts be proved beyond a reasonable doubt. Makes perfect sense to us in the defense bar – and maybe to the Supreme Court as well!

  Last Tuesday, in the Haymond argument, Justice Gorsuch wondered why the federal government was “so anxious to avoid having the involvement of citizens in this process?” He wasn’t alone – a clear majority of SCOTUS (including the strong voice of Justice Sotomayor) seemed to agree. See Gorsuch and Sotomayor Team Up Yet Again in Defense of the Sixth Amendment, available here. 

  We’ll concede there may be an asterix or two in this hoped-for victory: the Haymond statute at issue requires a five-year term after a S/R revocation for child porn (thus triggering all sorts of Apprendi issues). See SCOTUS blog article here. 

  Must “vanilla” S/R revocations -- that don’t require custody terms -- also be proved beyond a reasonable doubt in a jury trial? We’ll never know if we don’t fight for it – preserve Haymond objections in supervised release revocations.

Image of “the Adamms Family” from https://www.darkcarnival.co.za/the-addams-family-animated-reboot-has-sausage-party-director/

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

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Case o' The Week: Shades of Gray - United States v. Gray and Rule 32 rights at Form 12 sentencings

   Probation may see black and white, but there are many shades of Gray.

  United States v. Gray, 2018 WL 4763175 (9th Cir. Oct. 3, 2018), decision available here.

Players: Per curiam decision with Judges Leavy, Hawkins and Tallman. 

   Nice win for AFPDs David A. Merchant II and Josyln Hunt, District of Montana.

Facts: Ashley Gray was charged with violations of supervised release. Id. at *1. Gray was arrested and the district judge then referred the case to the magistrate judge “for hearing, finding of facts, and recommendation.” Id. 

  At the revocation hearing before the magistrate judge, Gray admitted to all but one of the allegations. Id. The guideline range was 4-10 months: Defense counsel asked for three months of custody; the government, five. Id. 

  The magistrate judge recommended five months. Id. 

  The MJ advised Gray she had the right to appear before the district judge, but would have to file a written objection within two weeks to do so. Id. Gray didn’t file any written objections to the magistrate judge’s findings and recommendation. Id. at *2. 

  The Honorable District Judge Lowell then relied on a Probation Officer’s (confidential) sentencing recommendation of 20 months. Id. The district judge considered Gray's monitored jail phone calls that – according to Probation -- revealed a “lack of remorse.” Id. Without a hearing, the district court imposed Probation's recommended custodial sentence of twenty months. Id. 

   The district court’s twenty-month custodial sentence was “four times the length of the sentence recommended by the magistrate judge and the government.” Id. at *3 (emphasis in original).

Issue(s): “Gray contends that the district court violated Federal Rule of Criminal Procedure 32 by failing to disclose to her factual evidence on which it relied at sentencing.” Id. at *2.

Held: “The government concedes that the district court erred, and we agree.” Id. 

  “Rule 32 ‘require[s] the disclosure of all relevant factual information to the defendant,’ including ‘factual information underlying a probation officer’s confidential sentencing recommendation.’ . . . . In its order sentencing Gray, the district court relied on the probation’s officer confidential sentencing recommendation, which included factual information that had not been disclosed to Gray and to which she had no opportunity to respond before sentence was imposed. Accordingly, we must vacate and remand for resentencing.” Id.

Of Note: For many in the Ninth, this Montana procedure seems foreign: a District Judge delegated sentencing of a supervised release violation to a Magistrate Judge? Here, Gray consented and agreed to proceed before the MJ. Doesn’t matter, explains the Ninth. “In conducting proceedings based on an order of reference by a district court, a magistrate judge does “not possess the authority to impose sentence; only the district court possesse[s] that authority.” Rodriguez, 23 F.3d at 921. Thus, even if the defendant is given an opportunity to appear and speak before the magistrate judge, the district court must provide the defendant an additional opportunity before the actual sentence is imposed.” Id. at *3.  

How to Use: There’s an interesting waiver holding buried in Gray. Gray didn’t object to the Magistrate Judge’s findings and recommendation: why didn’t she lose her right to complain about the D.J.’s later sentence? 

  The Ninth held that Gray's general lack of objection to the MJ's recommendation wasn’t an “explicit waiver of her right to be present and allocute.” Id. at *3. Gray teaches that waiver of Rule 32 rights isn’t a casual thing: invoke it when the government hides behind a waiver argument in sentencing and allocution claims.

                                               

For Further Reading: In Gray, the defense, the M.J., and the AUSA were just months apart in their sentencing recommendations – and all were in or near the guideline range. Probation, by contrast, urged a custodial term four times the government’s recommendation and double the high-end of the guidelines. 

  Does the largely-unfettered discretion of Probation to initiate violation proceedings, or to recommend sentences, increase sentencing disparity? 

  For an interesting piece wrestling with that question, see Probation and Parole Officers and Discretionary Decision-Making: Responses to Technical and Criminal Violations, available here.

Image of Probation Officer badge from https://www.pinterest.com/pin/561964859745692847/

Steven Kalar, Federal Public Defender, N.D. Cal.

New website available at https://www.ndcalfpd.org/ (many thanks to creative web master AFPD Candis Mitchell!)

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Case o' The Week: Conviction, Old, yet Ninth Upholds - Hohag and Conditions of Supervised Release, SORNA

The Hon. Judge Susan P. Graber

Not too old, if SORNA, we’re told.

United States v. Hohag, 2018 WL 3149773(9th Cir. June 28, 2018), decision available here.

Players: Decision by Judge Graber, joined by Judge M. Smith and DJ Hellerstein. 

  Hard-fought appeal by AFPD Francesca Freccero, D. Or. FPD.

Facts: Hohag was convicted of rape of a minor in 1992. Id. at *1. As part of that sentence, he was required to register as a sex offender. Id. 

  He moved to several states without registering, was arrested in Oregon in 2016, charged federally and convicted of failure to register as a sex offender. Id. 

  At sentencing, Hohag explained he had undergone sex offender treatment while incarcerated, and provided a polygraph confirming he was truthful in denying he’d had sexual contact with a minor since his release from supervision in ’02. Id. He was sentenced to time served. 

  The court imposed conditions of supervised release that included participating in a “sex-offense specific assessment” and submitting to polygraph testing “in conjunction with the . . . assessment.” Id.

Issue(s): “Defendant timely appeals, challenging only the two conditions of supervised release that relate to his history of sexual misconduct.” Id. at *2.

Held: “Together, T.M. and Johnson illustrate that, when we consider a condition of supervised release meant to address a defendant’s history of sexual misconduct, we look to at least two factors. First, as in every case, we consider the burdensomeness of the condition at issue. An assessment is significantly less burdensome than required treatment. Second, we ask whether the condition is reasonably necessary to accomplish one of the legitimate goals of supervised release. In answering that question in this context, we approach with some skepticism a condition that rests solely on an old sex offense. But when some recent event suggests that a defendant still poses a risk of engaging in sexual misconduct, there exists a greater need for a condition meant to address a defendant’s history of sexual misconduct.” Id. at *3.

  “Because the conditions at issue are not particularly burdensome and because they relate to Defendant’s crime of conviction, we conclude that the district court did not abuse its discretion.” Id. at *5.

Of Note: In United States v. T.M., 330 F.3d 1235, 1239–40 (9th Cir. 2003), the Ninth reversed sex-offender treatment conditions imposed on the back of an old sex-offense prior.

  In United States v. Johnson, 697 F.3d 1249, 1251 (9th Cir. 2012), the Ninth upheld a sex-offender assessment condition despite equally old priors.

  In the present case, Hohag, Judge Graber concedes (in a considerable understatement) that these cases arrive at “seemingly conflicting conclusions.” Id. at *3. The analysis in Hohag struggles to explain the distinctions, and concludes that the conditions here – an assessment – based on a “related” sex offense (a SORNA crime), support the conditions. Id. at *4-*5. It is a troubling outcome, assuring us that a sexual-assessment is a “minimal burden on [Hohag’s] liberty,” and that polygraph testing is a “relatively uninstrusive means of evaluating a defendant’s risk of engaging in sexual misconduct.” Id. at *3.

  Like it or no, Hohag joins T.M. and Johnson in the Ninth’s – complicated – guidance on supervised release conditions for sex offenders.

How to Use: A (small) hook in Hohag is the fact that the condition imposed was just an assessment – it was not the more intrusive sex-offender treatment. Id. at *4. Judge Graber relies on that heavily on that distinction while upholding the condition. Id.

  Push back when Probation wants a condition of treatment on an old offense: that falls closer to the prohibited conditions in T.M., in the spectrum laid out by Judge Graber in Hohag.  

                                               

For Further Reading: The defense argued that the Sentencing Commission did not recommend sex offender assessments as a condition of supervised release for SORNA convictions (like the one underlying Hohag). Id. at *4. “Meh,” sniffed the Ninth – Guideline conditions are “only advisory.” Id.

   Like the Ninth, the Second Circuit also seems increasingly indifferent to the Commissions’ wisdom. For an interesting piece on that trend, see Substantive Reasonableness Review Finally Getting Teeth in the Second Circuit, available here.

Image of the Honorable Judge Susan P. Graber from https://twitter.com/scotusambitions/status/570100615684227072

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

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