Case o' the Week: Defense verklempt with Fletcher and hemp - Categorical analysis and marijuana prior convictions

  When properly applied, hemp reduces inflammation, reduces levels of pain, and reduces guideline offense levels.

United States v. Bautista, 2020 WL 6865043 (9th Cir. Nov. 23, 2020), decision available here.

 Players: Decision by Judge Fletcher, joined by Judges Schroeder and Hunsaker. Big, big win for Az. AFPD J. Ryan Moore, D. Arizona FPD.  

 Facts: Bautista was convicted in 2017 for the Arizona offense of “Attempted Unlawful Transportation of Marijuana for Sale.” Id. at *1. 

  A couple of years later Bautista was convicted in federal court of being a felon in possession of ammo. He was sentenced in 2019. The PSR bumped his offense level up for a previous “controlled substance offense” conviction (as defined in USSG § 4B1.2). See id. at *2. Id. (He did not object to this enhancement in the district court). 

  On appeal, Bautista challenged the sentence.

 Issue(s): “[ ] Bautista appeals a sentence imposed following his conviction of possession of ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Bautista contends that the district court erred in applying a recidivist sentencing enhancement based on his prior state conviction for attempted transportation of marijuana . . . . He contends that it was not a conviction for a ‘controlled substance offense’ under § 4B1.2(b) of the U.S. Sentencing Guidelines . . . . The Arizona statute under which Bautista was convicted included hemp in its definition of marijuana. However, in 2018, before Bautista's federal conviction, Congress amended the Controlled Substances Act to exclude hemp from its definition of a controlled substance. Thus, in 2019, when Bautista was sentenced in this case, the Arizona statute under which he had been convicted was overbroad and that conviction no longer qualified as a “controlled substance offense” under the Guidelines. Id. at *1.

Held: “At federal sentencing, the district judge was required to compare the elements of the state crime as they existed when Bautista was convicted of that offense to those of the crime as defined in federal law at the time of federal sentencing —that is, after the Agriculture Improvement Act removed hemp from the federal drug schedule. Because the federal CSA excludes hemp but . . . the Arizona Revised Statutes did not, the latter crime’s ‘greater breadth is evident from its text.’ . . . . Bautista's conviction is facially overbroad and not a categorical match for a ‘controlled substance offense,’ and the district court erred in applying the recidivist sentencing enhancement for a controlled substance. We conclude that the district court’s application of the six level recidivist enhancement was plain error. It was contrary to law and affected Bautista's substantial rights. . . . Because allowing this error to go uncorrected would “seriously affect the fairness, integrity, or public reputation of judicial proceedings,’ we exercise our discretion to grant relief.” Id. at *4.

 Of Note: Bautista was convicted of his Arizona pot offense in 2017. At that time, hemp was included in the federal definition. 

  Just last month, the Ninth applied the categorical analysis to the statute at the time of conviction. See Medina v. Barr, 2020 WL 6373434 at *6-*8 (9th Cir. Oct. 30, 2020). 

 After Medina, how did Bautista get the benefit of the categorial analysis at the time of his 2019 sentencing (after the federal statute excluding hemp)? Judge W. Fletcher explains that the Medina rule only applies to immigration cases – by contrast, in this “Armed Career Criminal Act context seen here” the analysis takes place at the time of sentencing.

   The Ninth probably meant in the “Career Offender” context (the definitional guideline that determines “controlled substance offense” for § 922(g)(1) offenses), but the general point holds: the timing of a categorical analysis depends on the context.  

 How to Use: Red flag: If your federal client has a marijuana prior (federal or state) you likely have action under Bautista (because previous few laws excluded hemp).

  Our federal Sentencing Resource Counsel are all over this issue – talk to an AFPD, and take a look at their memos if your client finds yourself in this fortunate situation.   

 For Further Reading: For a thoughtful piece explaining the Farm Bill of 2018 (and Senator McConnell’s advocacy for hemp), see “The Farm Bill, hemp legalization and the status of CBD: An explainer,” available here.  

 

Image of “What is hemp” from https://www.restorativecbd.com/what-is-hemp/

 

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

 

 

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Case o' The Week: Mathis Path Is Blocked, for Walker - Walker and Proof of ACCA Predicates

  In a previous bout with Mathis, Judge Bybee admitted to being “frustrated with the whole endeavor.” United States v. Martinez-Lopez, 864 F.3d 1034, 1058 (9th Cir. 2017) (Bybee, J., “concurring in part and dissenting in part, but frustrated with the whole endeavor.”)

The Hon. Judge Bybee

   He seems less frustrated, this time around. (Unfortunately).

United States v. Walker, 953 F.3d 577 (9th Cir. Mar. 20, 2020), decision available here.

Players: Decision by Judge Bybee, joined by Judge N.R. Smith and visiting Judge Melloy. 

  Hard-fought appeal by ED Cal AFPD Peggy Sasso.  

Facts: Walker pleaded guilty to being a felon in possession of a firearm. Id. at *578. He had three prior convictions for “willfully inflicting corporal injury” on a spouse or cohabitant, in violation of California Penal code § 273.5: one in 1998, a second in ’99, and a third in 2014. Id.

  Walker did not admit to having been convicted of these felonies, so the government presented certified copies of the prior judgments. Id. The district court determined that Walker had previously been convicted of three separate violent felonies, triggering a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act (“ACCA”). Id.

Issue(s): Walker “argues that it was error under Apprendi v. New Jersey, 530 U.S. 466 . . . (2000), for the district court to have determined that his prior convictions were separate incidents, and that such determination had to be made by a jury.” Id.

  “To get around [Ninth Circuit precedent in] Grisel, Walker claims that the case has been implicitly overruled by Mathis v. United States, . . . 136 S. Ct. 2243, 2253 . . . (2016). Specifically, he points to discussions in Mathis explaining that a ‘non-elemental fact’ cannot be used to enhance sentences under the ACCA. Thus, he asserts that because the dates of his prior convictions are non-elemental facts, they cannot be considered by the sentencing judge for the purposes of applying the ACCA.” Id. at 581.

Held: “Context, however, shows that Mathis is not so encompassing as to abrogate Grisel.” Id.

  “With no on-point discussion in Mathis regarding how judges determine the number of prior offenses, Walker fails to show that Grisel “is clearly irreconcilable with [Mathis’s] reasoning or theory.” Miller, 335 F.3d at 893. To the extent that Mathis expresses broader disfavor of factual determinations by sentencing judges, it is not clear whether and how this disfavor extends beyond determining that a given state-law crime is an ACCA predicate . . . Pointing to “’some tension’ between [stray statements in Mathis] and prior circuit precedent” is not enough for the panel to consider Grisel overruled. Lair, 697 F.3d at 1207. In finding that Walker had been convicted of three or more violent felonies, the sentencing judge needed to look no further than the face of the certified judgments to determine these convictions were for distinct acts.” Id. at 581.

Of Note: Judge Bybee’s disappointing reading of the Supreme Court’s decision in Mathis is not the only bad news in this ACCA decision. The Ninth also rejects defense arguments that California D.V. cases under Cal. Penal Code § 273.5 are not crimes of violence. See id. at 579-80.

  A tough decision all around, for those fighting the staggering mand-mins in ACCA cases.

How to Use: Because Ninth precedent confronted Walker at every turn, the leitmotif of his appeal was trumpeting intervening Supreme Court precedent on the categorical approach and ACCA predicates. As a result, Judge Bybee spends much of this short opinion arguing why old Ninth cases dodge new SCOTUS bullets. See, e.g., id. at 580 (discussing Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc), in context of challenge to Cal. P.C. § 273.5); id. at 581 (discussing Miller in context of Mathis’s limitations of judicial findings for predicate offenses).

  Putting aside the persuasiveness of Walker’s Miller analysis, it is a decision worth a read if you’re urging a three-judge panel to correct bad Ninth law after an intervening Supreme Court opinion.

                                               

For Further Reading: San Francisco’s most iconic symbol, the Golden Gate Bridge, hosted another iconic Bay tradition: a peaceful protest. Yesterday thousands of marchers shut down the bridge, protesting the killing of George Floyd and systemic police racism and violence. See article and video here. 

  Look for more protests by public defenders tomorrow, in the Bay Area and across the country.

Image of the Honorable Judge Bybee from https://www.youtube.com/watch?v=i39zEPuZr7c

Image of Golden Gate Bridge protestors from https://abc7news.com/golden-gate-bridge-march-on-george-floyd-protest/6235202/

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

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Case o' The Week: The Ninth Giveth and SCOTUS Taketh Away (then the Ninth Giveth Again!) - Baldon and California Carjacking

Hon. Judge Mark Bennett

  Lost a win, then won again!

United States v. Baldon, 2020 WL 1921963 (9th Cir. April 21, 2020), decision available here.

Players: Decision by Judge Bennett, joined by Judge Lee and D.J. Piersol.

Facts: Baldon pleaded guilty to possession with intent to distribute meth, in violation of 21 USC § 841(a)(1) and (b)(1)(C). Id. at *1. Using a “modified categorial approach,” the district court looked at charging documents for Baldon’s prior California carjacking convictions, to determine whether they were crimes of violence under USSG § 4A1.1(e). Id. at *2. (The carjacking statute is California Penal Code Section 215).

  After finding the prior convictions were crimes of violence, the district court imposed a two-point increase to Baldon’s criminal history, and sentenced Baldon to 184 months. Id.

   A previous Ninth Circuit decision, Solorio-Ruiz, had held that California carjacking is not a crime of violence under a different statute. See Solorio-Ruiz v. Sessions, 881 F.3d 733 (9th Cir. 2018). See id. at *2. After sentencing, the Supreme Court decided Stokeling v. United States, –––U.S. ––––, 139 S. Ct. 544, 202 L.Ed.2d 512 (2019). On appeal, the government argued Stokeling undermined the rational of Solario-Ruiz.

Issue(s): “[W]hether Baldon’s prior convictions for carjacking under section 215 1 of the California Penal Code qualify as crimes of violence under U.S.S.G. § 4A1.1(e) . . . .” Id. at *1. “Can a section 215 conviction be based on fear of injury to property alone?” Id. at *5.

Held: The Supreme Court’s clarification of ‘violence force” in Stokeling as “any force sufficient to overcome a victim’s physical resistance) is “clearly  irreconcilable” with our reasoning in Solorio-Ruiz. Our  opinion rested on the analytical distinction between substantial and minimal force. This distinction no  longer exists. See Ward v. United States, 936 F.3d 914, 919 (9th Cir. 2019). As a result, Solorio-Ruiz’s holding is no longer good law.” Id. at *3.

 But . . .

  “We hold that section 215 is not a categorical crime of violence, and thus the district court erred in calculating Baldon’s sentence.” Id. “Baldon argues that section 215 may be violated through fear of injury to property alone, without any fear of injury to a person, and therefore, the statute “criminalizes a broader range of conduct than the federal definition captures.” Edling, 895 F.3d at 1155. We agree.” Id. at *5.

Of Note: The Ninth giveth, the Ninth taketh away. While Baldon won the “crime of violence” issue, he lost a challenge to a two-level enhancement for possessing a gun during the offense. See id. at *8 (citing USSG § 2D1.1(b)(1)). The gun was in a backpack that contained drugs, found in a storage unit tied to Baldon. Id.   

  Distinguishing some (good) Ninth law, Judge Bennet finds that Baldon has “constructive possession” of the gun, and upholds the two-level bump. Id. at *9. The gun-increase under Section 2D1.1 is a fuzzy, fact-specific spectrum: for better or worse, Baldon is another entry in that continuum.

How to Use: The government beefs about the Ninth’s carjacking decision, complaining there have been no published California decisions citing the statutory definition of fear (that is, no decisions permitting a carjacking conviction when there was fear of injury to property). Id. at *6. Judge Bennett is unimpressed. As he explains, “[W]e can rely, and have previously relied, on unpublished California cases to show that the state has applied the statute in a non-generic manner. . . . And, importantly, the jury instructions routinely used by California courts include fear of injury to property. It would be one thing if the fear of injury to property element were simply invented by creative defense lawyers. It is quite another when that element is part of the standard California jury instructions that are perhaps given in every case.” Id. at *8 (citations omitted).

  Use Baldon to brush back on the government’s unduly restrictive view of the state law, used to show a “realistic probability” that a state offense is broader than the generic definition of a crime.

                                               

For Further Reading: “As district attorneys around the Bay Area are breaking character and releasing hundreds of pretrial detainees to prevent the spread of COVID-19 in jails, the local wing of the U.S. Department of Justice has taken a strikingly different tack. Amid the global pandemic — and as cases of the novel coronavirus mount across California and the United States — the U.S. Attorney’s Office for the Northern District of California has refused to release almost any of the more than 400 federal inmates held in the Santa Rita Jail, most of whom have been charged with crimes but not yet convicted.” Nate Gatrell, Santa Rita Jail houses hundreds of federal detainees. Despite COVID-19 outbreak, U.S. Dept. of Justice has opposed releasing all but one, San Jose Mercury News, Apr. 24, 2020. 

  For a thoughtful piece on a deeply troubling policy from the NorCal USAO, see Mr. Gatrell’s article here.

Image of the Hon. Judge Mark Bennett from http://the.honoluluadvertiser.com/dailypix/2008/Nov/21/hawaii81121049V3_b.jpg

Image of "Free them All Empty Santa Rita" from https://www.vox.com/2020/4/22/21228146/coronavirus-pandemic-jails-prisons-epicenters 

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

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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: An Element-ary Outcome - Allen and Actual Innocence Exception to Habeas bars

News flash: if an element is missing, the defendant is “actually innocent.”

 

The Hon. Judge William Fletcher

  (Oh, that crazy Ninth).

Allen v. Ives, 2020 WL 878523 (9th Cir. Feb. 24, 2020), decision available here.

Players: Thoughtful decision by Judge W. Fletcher, joined by Judge Christen. Dissent by Judge Callahan. 

  Admirable win for D. Oregon AFPD Elizabeth Daily.  

Facts: In the 90’s Allen pleaded guilty to gun and drug charges. He was sentenced to 322 months (!?!) as a Career Offender under the mandatory guidelines. Id. at *2. In 2017, he filed a § 2241 claim. Id. He argued that Mathis and Decamps were retroactive, and that his marijuana sales predicate no longer counted. Id. He thus argued that he was “innocent of being a Career Offender.” Id.

  The court rejected the petition for lack of jurisdiction, finding that career offender errors were “purely legal” and had “nothing to do with factual innocence.” Id.

Issue(s): “[  ] Allen appeals the district court’s dismissal of his 28 U.S.C. § 2241 habeas corpus petition for lack of jurisdiction. Allen contends that he is ‘actually innocent’ of his sentence as a career offender; that the remedy provided by 28 U.S.C. § 2255 is ‘inadequate or ineffective’ to test his claim of actual innocence; and that the district court may therefore entertain his § 2241 petition.” Id. at *1. “The government conceded at oral argument that if a petitioner is actually innocent of a predicate crime for career offender status in the sense that he did not commit the state law crime of which he was convicted, Bousley applies. In that event, the petitioner would have a claim of actual innocence cognizable under § 2241 . . . . The question before us, then, is not whether a petitioner who did not commit a predicate crime of which he was convicted may challenge his career offender status under § 2241. The government has conceded that he may do so. Rather, it is the closely related question whether a petitioner who committed a crime that is not a predicate crime may challenge his career offender status under § 2241.” Id. at *4.

Held: “We conclude that Allen’s claim of actual innocence is cognizable under § 2241. We therefore reverse the district court’s dismissal for lack of jurisdiction and remand.” Id. at *1. “In Marrero, we left open the question whether a petitioner may ever be actually innocent of a noncapital sentence for the purpose of qualifying for the escape hatch. . . . We now reach that question and hold that Allen has made a claim of actual innocence that permits jurisdiction over his § 2241 petition. If Allen prevails on the merits of his claim that his . . . marijuana conviction was not a predicate conviction for career offender status under the Guidelines, the factual predicate for his mandatory sentencing enhancement did not exist. That is, he is actually innocent of the enhancement. In that case, it is beyond dispute that he is not, and was not, a career offender.” Id. at *4.

Of Note: Nice win, but not a surprising result. This decision of first impression in the Ninth hews closely to the lead of the – drum roll please – that zany Fourth Circuit! Id. at *5. 

  As Judge Fletcher correctly explains, it is hard to imagine a different outcome for a mandatory Guideline case, after SCOTUS’s decision in Alleyne (holding that a fact that increases a mandatory minimum sentence is an ‘element’ of the offense.”) Id. at *4.

How to Use: Another nice holding? “We take the opportunity to clarify that Mathis and Descamps apply retroactively when a court reviews a criminal judgment in the course of addressing a § 2241 petition or a first § 2255 motion.” Id. at *6. 

  Tuck that welcome nugget away, for use on another habeas day.

                                               

For Further Reading: Since Tuesday of last week, the Federal custodial facility at FDC SeaTac has been locked down for visiting, on coronavirus fears. See summary here. 

   The WD Wa District Court is now effectively closed. See order here. 

  The Ninth has cancelled all en banc arguments in S.F. next week. See notice here. 

  An FBI employee of the S.F. field division just tested positive for COVID-19. See article here. 

   San Francisco Mayor Breed just issued “aggressive” recommendations to reduce the spread of COVID-19 – including cancelling the St. Patrick’s Day parade. See News Release here. 

   Today it was announced that Oakland will be the port receiving the Grand Princess cruise ship, carrying over 3,500 passengers and cruise members, twenty-one of whom are positive for COVID-19. See article here. 

  Senator Kamela Harris is very interested in how the Feds are dealing (or not dealing) with  COVID-19 in the jail and prison populations. See Senator Harris Letter here. 

  So, when will COVID-19 hit Santa Rita Jail, and impact the ND Cal District Court? 

   For a sobering piece on the custodial “petri dish” in which our NorCal clients are detained, see a SacBee article here.  

Image of the Honorable Judge William Fletcher from https://cgc.law.stanford.edu/clc-spotlight/clc-1-201806-interview-1-jordan-corrente-beck/

Image of Florida Rep. Matt Gaetz in gas mask from https://www.clickorlando.com/news/2020/03/05/florida-congressman-wears-gas-mask-during-coronavirus-vote/ 

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

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Case o' The Week: Ninth Mulls Geometric Skeptics - Rodriguez Gamboa and Lorenzo Challenges to Cal H&S Section 11378

  Feds attack California’s efforts to criminalize meth.

United States v. Rodriguez-Gamboa, 2019 WL 7206435 (9th Cir. Dec. 27, 2019), decision available here.

Players: Decision by Judge Hurwitz, joined by Judge Wardlaw and DJ Bataillon. 

  Righteous fight by CD Cal AFPD David Menninger.  

Facts: Rodriguez-Gamboa, a Mexican national, was removed after sustaining what she was told was an agg felony: possession of meth for sale, in violation of California Health & Safety Code § 11378. Id. at *2.

 She reentered the U.S. without inspection, was charged with illegal reentry in violation of 8 USC § 1326, and pleaded guilty. Id.

  The Ninth then held in “Lorenzo I” that § 11378 does not qualify as a “controlled substance offense” under the immigration statute, because the California statute applied to both “optical and geometric isomers” of meth. Id. See generally Lorenzo Blog entry here. 

  Rodriguez withdrew her plea. Government experts then declared that geometric isomers of meth do not, in fact, exist. Id. at *3. Relying on Lorenzo I, the district court dismissed the Information: the government appealed. Along the way, the Ninth replaced Lorenzo I with Lorenzo II, a mem dispo that arrived at the same result at Lorenzo I. Id. at *1.   

Issue(s): “We are asked to decide whether the definition of methamphetamine under California law is broader than the definition under corresponding federal law. The issue is pivotal in this case because . . . Rodriguez-Gamboa did not commit illegal reentry under 8 U.S.C. § 1326 if the California law is categorically broader than the federal one.” Id. at *1.

Held: “The government’s argument rests entirely on its factual assertion that the geometric isomer of methamphetamine does not exist. But, the district court never made such a finding, and we cannot do so for the first time on appeal. . . . . Because resolution of the factual issue of whether geometric isomers of methamphetamine exist has the potential to inform our disposition of this appeal and future cases, we remand to the district court for the limited purpose of resolving that evidentiary issue in the first instance. The panel will retain jurisdiction over the appeal and address its merits after the district court reports its factual findings.” Id. at *4. (internal citation and footnote omitted).

Of Note: Rodriguez-Gamboa is fascinating, because it highlights one of many tensions in the categorical analysis. The government argues that there is no “realistic probability” that Rodriguez was convicted of a broader “geometric isomer” offense in California, because such geometric isomers do not exist.

  Rodriguez shrugs, and points to the literal text of the California statute – a state law indisputably broader than the federal offense, because it criminalizes isomers not covered by the feds. Id. at *4.

  The Ninth resolves this tension by, well, putting if off for another day. After the district court does some fact-finding on geometric isomers, the same Ninth panel will then tackle the question. Until that dust settles, continue to preserve Lorenzo challenges to § 11378 priors.   

How to Use: A threshold appellate issue was whether Rodriguez should have been allowed to withdraw her guilty plea. Judge Hurwitz makes short work of that question. Fed. R. Crim. Proc. 11(d)(2)(B) permits a district court to allow a defendant to withdraw a guilty plea. A defendant has to show a “fair and just reason” for requesting the withdrawal. Id. at *3. “A change in the law can justify withdrawal of a plea,” id., -- and Lorenzo I fit the bill. Remember Rodriguez-Gamboa when changes in law makes a plea agreement less attractive.

                                               

For Further Reading: Do new Trump appointees await the Ninth in the New Year? 2020 will begin with ten Trump jurists on the Ninth (as Judge VanDyke takes Senior Judge Bybee’s seat). See Seniority List here.

 A trio of active Bush appointees remain in the Circuit: Judges Callahan, Milan Smith, and Ikuta. See Federal Bar Association summary here. 

Image of vintage USAF Poster from https://imgur.com/r/vintageads/liQ7BBN

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

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Case o' The Week: Ninth Very Intentional, on Recklessness - Begay, Recklessness, and Crimes of Violence

  No “crazy pills” were ingested in the writing of this opinion.

The Hon. Judge D.W. Nelson

United States v. Begay, 2019 WL 3884261 (9th Cir. Aug. 19, 2019), decision available here.

Players: Decision by Judge D.W. Nelson, joined by Judge Clifton. Dissent by Judge N.R. Smith. 

  Admirable victory for AFPD “Edie” Cunningham, D. Arizona.

Facts: Begay was convicted of second-degree murder, in violation of 18 USC §§ 1111 and 1153. Id. at *1.

  He was also convicted of discharging a gun during a “crime of violence” (this murder), under 18 USC § 924(c). Id. at *2.

Issue(s): “Begay was convicted of discharging a firearm during a ‘crime of violence’ under 18 U.S.C. § 924(c). On appeal, Begay argues that second-degree murder does not qualify as a ‘crime of violence.’” Id.  

Held: “To determine whether second-degree murder is a ‘crime of violence’ we apply the ‘categorical approach’ laid out in Taylor . . . Based on the facts of this case, it may be hard to understand how the shooting of [the victim,] Ben by Begay might not be a ‘crime of violence.’ Under the categorical approach, however, we do not look to the facts underlying the conviction, but “compare the elements of the statute forming the basis of the defendant’s conviction with the elements of” a “crime of violence.” See Descamps. . . . The defendant’s crime cannot be a categorical ‘crime of violence’ if the conduct proscribed by the statute of conviction is broader than the conduct encompassed by the statutory definition of a “crime of violence.” See id.” Id. at *3.

  “Second-degree murder does not constitute a crime of violence under the elements clause—18 U.S.C. § 924(c)(3) (A)—because it can be committed recklessly.” Id. at *4. “We REVERSE Count Two of Begay’s conviction for discharging a firearm during a “crime of violence” under 18 U.S.C. § 924(c)(1)(A) . . . .” Id. at *6.

Of Note: Judge N.R. Smith begins his dissent by quoting Zoolander: “I feel like I am taking crazy pills.” Id. at *6 (N.R. Smith, J., dissenting).

  In Judge Smith’s view, the majority should have used second-degree murder’s “malice aforethought” requirement as some sort of proxy, that revs-up a reckless-conduct offense into qualifying as a “crime of violence.” He urges this novel “malice aforethought” theory as a new way to find that a reckless second-degree murder is serious enough to be a “crime of violence.” Id.

  Judge Smith’s dissent conspicuously baits the en banc hook. The Ninth shouldn't bite – the dissent doesn’t grapple with the reality of the controlling Ninth Circuit, en banc Fernandez-Ruiz decision, and fails to engage with the Majority’s (correct) reading of Voisine. While this outcome may stick in some craws, Begay’s legal analysis is spot on.   

How to Use: The nub of Begay is this: did the Supreme Court’s 2016 decision in Voisine, holding that a “misdemeanor crime of domestic violence” includes “reckless assaults,” overrule the Ninth’s 2006, en banc Fernandez-Ruiz decision, holding that crimes that can be committed recklessly are not “crimes of violence” under § 16? Id. at *5. 

  In a thoughtful and principled analysis, Judge D.W. Nelson carefully explains that Voisine left this question open. Id. Judge Nelson remains faithful to Ninth Circuit law interpreting 18 U.S.C. § 16 to 18 U.S.C. § 924(c), and – staying true to precedent – continues to hold that a “crime of violence under 18 U.S.C. § 924(c)(3) requires the intentional use of force.” Id.

  Read Begay carefully when considering a “reckless” offense the government argues is a “crime of violence.” Under existing Ninth authority, “reckless” just won’t cut it.

                                               

For Further Reading: Last week a (Latino) Tenderloin drug dealer was sentenced in federal court, in the Northern District of California. See N.D. Cal. USAO Press Release here. 

  A week or so before, the “Federal Initiative for the Tenderloin” (“FIT”) kicked off, with drug charges filed against nine (Latino) defendants in the Tenderloin. See N.D. Cal. USAO Press Release here. 

 Days before that, thirteen (Latino) defendants were charged in a drug trafficking conspiracy, for allegedly selling drugs in the Tenderloin. See N.D. Cal. USAO Press Release here. 

  Substitute “Latino defendant” for “black defendant,” and the USAO's new “FIT"-focus has some Safe Schools déjà vu, all over again. See “For Further Reading,” available here; and here.

Image of the Honorable Judge D.W. Nelson from https://ms-jd.org/blog/article/first-women-dorothy-w-nelson

Image of Zoolander from https://www.looper.com/127320/what-the-cast-of-zoolander-looks-like-today/ .

Image of “Tenderloin National Forest” from https://www.latinousa.org/2012/05/11/tenderloin-national-forest/

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

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Case o' The Week: When Push Comes to Shove, No Taylor Love - Perez, CPC Section 243(d), and Crimes of Violence

  Conduct that could send your client to a California prison for decades, on a felony strike? 

 Meh - just an “improbable hypothetical” in the Ninth.

 United States v. Perez, 2019 WL 3022334 (9th Cir. July 11, 2019), decision available here.

Players: Decision by Judge Ikuta, joined by Judge Paez and visiting Judge Siler. 

   Hard-fought appeal by ND Cal AFPDs Jerome Matthews and Elizabeth McKenna.

Facts: In 2017, Perez was convicted in a bench trial of being a felon in possession of a firearm. Id. at *1.

   Perez had previously been convicted of Cal. Penal Code § 243(d), battery resulting in serious bodily injury. Id. at *1. Over defense objection, the district court held that Cal. Penal Code § 243(d) was a crime of violence.    

Issue(s): “Aaron Perez’s appeal of his sentence for being a felon

in possession of a firearm and ammunition raises the question whether a prior state conviction for battery resulting in serious bodily injury, in violation of section 243(d) of the California Penal Code, qualifies as a ‘crime of violence’ as defined in § 4B1.2(a)(1) of the United States Sentencing Guidelines.” Id. at *1.  

Held: “We conclude that it does.” Id.

  “Like [California Penal Code] section 243(c)(2), section 243(d) requires proof of an element that § 242 does not . . . namely that ‘serious bodily injury is inflicted’ on the person of another, Cal. Penal Code § 243(d). Because ‘serious bodily injury’ is defined as ‘a serious impairment of physical condition,’ Cal. Penal Code § 243(f)(4), we must likewise conclude that a person cannot be convicted under § 243(d) ‘unless he willfully and unlawfully applies force sufficient to not just inflict a physical injury on the victim, but to inflict’ a severe physical injury. . . . As a result, section 243(d) ‘fits squarely within the term [crime of violence] by requiring the deliberate use of force that injures another.” Id. at *5 (internal citations and quotations omitted).

Of Note: Unfortunately for Mr. Perez, the Ninth had addressed a previous Cali battery statute that also required proof of significant injury. While battery in California can be accomplished by an unwanted touch, that slight intentional act plus the actual injury requirement pushed this statute over the COV line for Jude Ikuta.

  What is frustrating about this decision is that California appellate courts have described fact patterns that would be viable under this statute, that involve “eggshell defendants” -- a slight non-violent nudge of an elderly victim who falls and breaks a hip would suffice for a Section 243(d) conviction, but would not be a categorical match for the federal Taylor analysis.

  Judge Ikuta is unpersuaded by the California appellate courts and their “technical analysis” of California state law issues. “[I]mprobable hypotheticals,” she opines. Id. at *5.  [It is fun to imagine a County PD arguing Perez’s federal analysis to attack a § 243(d) conviction in a California court].
   Distressingly, the panel doesn’t discuss California cases where offensive touching did result in § 243(d) prosecutions. See, e.g., People v. Myers, (1998) 61 Cal.App. 4th 328 (victim yelled and poked at defendant and defendant pushed victim away defensively; victim slipped and fell on wet pavement and was injured); People v. Finta, 2012 Cal. App. Unpub. LEXIS 7488 (Cal. App. 1st Dist. Oct. 17, 2012) (defendant “shoved” a man on his bicycle when he thought that the cyclist had stolen his personal property; cyclist fell and was injured); People v. Hayes, 142 Cal. App. 4th 175 (Cal. App. 2d Dist. 2006) (defendant kicked a large ashtray, which fell over and hit an officer’s leg causing a cut and bruising) (in Section 243(c) conviction).

   Perez illustrates a growing problem with the Taylor categorical analysis: the “realistic probability, not a theoretical possibility” analysis is a mushy test that is very much in the eye of the appellate beholder.

How to Use: California defense folks, ever plead a client down to a Section 243(d) charge on facts that are not a clean match for the federal categorical analysis? Judge Murguia wants to know. 

  Well, maybe not literally, but in an insightful recent concurrence Judge Murguia calls for plea deals as evidence of the Taylor “realistic probability” analysis. See blog entry here. 

  Tough to find these examples, conceded, but an interesting avenue to explore.   

                                               

For Further Reading: Last week the Honorable Judge Daniel Bress was confirmed as the latest appointment to the Ninth Circuit. See article on Judge Bress here. 

  With his confirmation, the Ninth now has more jurists nominated by President Trump than any other circuit. See article here. 

  Three more Ninth vacancies remain to be filled by January 1, 2020. See Ninth Circuit vacancy report here.  

Image of push from https://www.lisa-legalinfo.com/wp-content/uploads/2015/12/violence151213.jpg .

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

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