Case o' The Week: Ninth's Not Life-Affirming - Graves and the Categorical Analysis of Section 851 Priors

We dig Graves.

United States v. Graves, 2019 WL 2293421 (9th Cir. May 30, 2019), decision available here.

Players: Decision by Judge Clifton, joined by Judges Paez and Court Int’l Trade Judge Katzmann.

Facts: Graves was charged with meth and marijuana offenses. Id. at *1. Before trial, the government gave notice under 21 USC § 851 of its intent to seek a life sentence based on two drug priors. Id. One of those convictions was for Cal. Penal Code § 4573.6, “inmate drug possession.” Id. The district court held that the priors qualified as “felony drug offenses” that triggered the enhancement.

  Graves was found guilty, and under the Section 851 enhancements, sentenced to the mandatory-minimum term of life. Id. 

  The District Court then went on to conduct a separate § 3553 analysis, to “perfect the record and to make clear that if the court were to exercise discretion, if it had any to impose a sentence at less than life, it would not.” Id.

Issue(s): “[  ] Graves challenges the life sentence imposed by the district court after it concluded he had two prior felony drug offenses under 21 U.S.C. § 841(b)(1)(A), mandating a sentence of life imprisonment. The district court concluded that his two prior convictions, including for a violation of California Penal Code § 4573.6, qualified as predicate felony drug offenses.” Id. at *1. 

  “Graves argues the district court erroneously concluded his . . . § 4573.6 conviction qualified as a felony drug offense because the statute is both overbroad and not divisible.” Id. at *2.

Held: “We conclude that Graves’ section 4573.6 conviction does not qualify as a predicate offense and therefore vacate his sentence and remand for re-sentencing.” Id. at *1. “There is no dispute that section 4573.6 criminalizes controlled substances under California law that are not regulated under federal law, so the statute is overbroad . . . .We therefore must determine if the statute is also divisible.” Id. at *2.

  “We conclude that the statute is not divisible based on the plain text, state court decisions, and the contrast to convictions under the California Health and Safety Code.” Id. at *3. “We conclude . . . that California Penal Code § 4573.6 is not a divisible statute and therefore cannot be a categorical “felony drug offense” triggering a “mandatory term of life imprisonment” under 21 U.S.C. § 841(b)(1)(A) (2016).” Id. at *4.

Of Note: In Graves, the government and the district court again try the old “belt and suspenders” approach to sentencing. 

Even if the original mand-min sentence was legally incorrect, the district judge assures us, the judge still would give a life sentence. Seizing this assurance, on appeal the government argued it was unnecessary to vacate the life sentence, because the D.J. “perfect[ed] the record” and promised that a life sentence would still be imposed under the Section 3553 factors. (Notably, the district court reached this decision despite the fact that the defendant had not participated in a PSR interview, or submitted a sentencing memorandum, due to the mandatory life term.) Id. at *4.

  Yet again, the Ninth rejects this effort to inoculate against appellate review, vacates the sentence, and remands for a fresh new sentencing (hopefully with some First Step Act love thrown in). Id. at *4.

How to Use: Does the categorical approach even apply to Sec. 851 priors? The government argued that it was “far from clear” that it does. Id. at *2 & n.3. Judge Clifton “was not convinced,” and the Court “resort[s] to the categorical approach in this context.” Id. at *2. 

  To the extent it was in question, Graves seals the deal: Section 851 priors are subject to the familiar categorical analysis approach.  

                                               

For Further Reading: Under the First Step Act of 2018 (“FSA,”) Mr. Graves may be looking at mandatory term far below “life.” 

   For a thoughtful piece touting the FSA, see The First Step Act is a Major Step for Sentencing Reform, by former Sentencing Commission Chair, Judge Patti Saris, available here.

Image of “Grave digger” from https://voca58.org/Feature_Lament_Grave_Digger.html

Image of belt and suspenders from https://www.duluthtrading.com/mens-perry-original-y-back-suspenders-50872.html?&srccode=GPSHPMN&chnl=ps_prospect_pla_mn&region=out_region&gclid=CjwKCAjw583nBRBwEiwA7MKvoJRUJJi0HCMZsiN5_UgDDZ5x5tpYG-6wyaUL2o9oyHVg4KXk-qwuChoCCpkQAvD_BwE

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

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Case o' The Week: "Same either way" not OK - Vederoff and Post-Johnson status of Washington (non)-"Crimes of Violence"

  A downward variance to 60 months, or an upward variance to five years – mirror image, same result, yes?

  

Well, actually, no.

United States v. Vederoff, 2019 WL 4706734(9th Cir. Feb. 1, 2019), decision available here.

Players: Decision by District Judge Gaitan, WD Mo., joined by Judges McKeown and Friedland.

  Big win for AFPDs Alan Zarky and Mohammad Ali Hamoudi, of the Federal Defender for the W.D. of Washington.

Facts: Vederoff plead guilty to a § 922(g) charge pursuant to a plea agreement. Id. at *1. In his plea agreement, he admitted to Washington convictions for second-degree assault, and second-degree murder. Id.  The PSR set his offense level at 24, claiming both of those priors were “crime(s) of violence” that increased the range. Id. 

  The district court rejected Verderoff’s objections to that calculation, but varied downward from the PSR’s calculated range, and imposed a five-year sentence. Id. at *2. The DJ explained that it was a downward variance from a PSR range that was too high, or an upward variance from the defendant’s calculations (without the crimes of violence) that were too low. Id. 

  Vederoff (intriguingly) appealed, despite a plea agreement (an enlightened appellate-waiver policy that merits a look for ND Cal).

Issue(s): “[Vederoff] challenges the district court’s findings that his prior convictions for second-degree assault and second-degree murder under Washington law qualify as ‘crimes of violence’ under section 4B1.2(a) of the United States Sentencing Guidelines.” Id. at *1.

Held: “Our review of the common law, the Model Penal Code, treatises, and the laws of the other states, . . . compels the conclusion that generic aggravated assault does not include assault with intent to commit a felony.” Id. at *4 (citations omitted). “[S]econd-degree assault under Washington law is not a ‘crime of violence’ under U.S.S.G. § 4B1.2.” Id. at *5.

  “Washington’s second-degree murder statute is . . . overbroad when compared with the definition of generic murder, as well as the Model Penal Code and the laws of other jurisdictions.” Id. at *6. “Washington courts have concluded that the statute is indivisible, and we adopt their interpretation here.” Id. “[S]econd-degree murder under Washington law is not a crime of violence under the enumerated clause of U.S.S.G. § 4B1.2(a)(2).” Id. at *7.

  “Having now determined that the proper Guideline range would be 30 to 37 months, we cannot say that the district court’s incorrect calculation of the proper Guideline range was harmless.” Id. at *8.

Of Note: In this case, it drove the D.J. “absolutely nuts as a trial judge to think that things like murder and assault with a deadly weapon could be conceived as not being crimes of violence.” Id. at *2. He tried a belt-and-suspenders “appellate insurance” policy – the District Judge assured us that 60 months was the right sentence, and it could be deemed either an upward or downward variance from the correct guideline range, depending on the outcome of the Johnson analysis.

   The Ninth was unpersuaded. 

  The appellate court couldn’t deem the five-year term as “harmless,” because it wasn’t clear why the sentence was so high above the (correct) guideline calculations. Id. at *8. 

  Vederoff is the latest (welcome) example of District Court / Appellate cat-and-mouse, as D.J.s try to immunize their sentences from categorical attack -- and the Ninth reminds us who ultimately calls shots. See, e.g. Gardenhire blog here. 

How to Use: Visiting, out-of-circuit, Senior D.J.s making big Ninth law can be troubling (except when we like the outcome). Vederoff falls squarely into that exception -- the Hon. Judge Gaitan is always welcome West. 

  In Vederoff, Judge Gaitan pens a particularly thoughtful analysis of highly technical categorical challenges. For anyone working through a post-Johnson categorical analysis (and who isn’t?), it is a well-written opinion that merits a close read – useful cites abound. See, e.g., id. at *6 (“Facial overbreadth like that here . . . is a basis for finding a statute overbroad.”)

                                               

For Further Reading: The Sentencing Commission is 28% staffed. See USSG Commissioner’s page here. (Not that we're complaining). 

   The President’s 2018 Commission nominees? Sent back from the Senate last January. See e.g. Nomination Report on Judge Henry Hudson, available here. (Not that we’re in any rush . . . )

Image of Escher’s “Drawing Hands” from https://en.wikipedia.org/wiki/File:DrawingHands.jpg

Image of "belt and suspenders" from https://www.jjsuspenders.com/blogs/suspenders/46554561-why-you-should-never-wear-suspenders-with-a-belt  

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

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Case o' The Week: Something Good Comes of Jersey - Garcia-Jimenez and Federal Generic Aggravated Assault

“In Jersey anything’s legal as long as you don’t get caught.”

  Tweeter and the Monkey Man, Traveling Wilburys (Bob Dylan).

United States v. Garcia-Jimenez, 2015 WL 7292604 (9th Cir. Nov. 19, 2015), decision available here.

Players: Decision by Judge Berzon, joined by Judges W. Fletcher and Bea. Admirable win for former CD Cal AFPD Davina Chen.

Facts: Garcia-Jimenez got drunk and stabbed a fellow card player. Id. at *1. He pled guilty to New Jersey agg assault. Id. The statute allowed conviction under three prongs: attempting to cause bodily injury, purposely or knowingly causing injury, or recklessly causing such injury. Id. State proceedings did not make clear which of the three prongs Garcia-Jimenez was convicted of violating. Id. He served his time, was deported, reentered, caught, and convicted of illegal reentry. Id. The PSR recommended a +16 OL increase, tagging the N.J. agg assault as a “crime of violence.” Id. The district court agreed, imposed a 46-month term, and added that if the Guideline calc was wrong, it would still find the sentence reasonable. Id. at *2-*3.

Issue(s): “Garcia–Jimenez argues that his prior conviction is not a crime of violence because: (1) contrary to the New Jersey statute, the generic federal offense of aggravated assault requires a mens rea greater than recklessness under circumstances manifesting extreme indifference to the value of human life (‘extreme indifference recklessness’); and (2) New Jersey's definition of ‘attempt,’ an element alternatively incorporated into the statute of conviction, is broader than the federal generic definition of ‘attempt.’” Id. at *1.

Held: “We hold that, for both reasons, the provision of the New Jersey statute under which Garcia–Jimenez was convicted does not qualify as federal generic aggravated assault and therefore is not a ‘crime of violence.’ Because the district court's Guidelines error was not harmless, we vacate the sentence and remand to the district court for resentencing.” Id.

Of Note: The big holding is the Court’s conclusion that a mens rea of extreme indifference recklessness is not sufficient to meet the federal generic definition of aggravated assault. Id. at *4. Judge Berzon surveys state authority, and finds that a substantial majority of jurisdictions require more than this mens rea. Id. at *5. She distinguishes the Ninth’s previous decision in Esparza-Herrera, which did not undertake the required mens rea analysis. Id. at *4; see also fn. 4 (distinguishing Gomez-Hernandez). 

Note that seventeen states do allow agg assault convictions based on this lower mens rea (see fn. 7); keep an eye out for those priors and don’t let them become +16 offense level increases.

Equally interesting is the Court’s protection of generic federal “attempt.” Id. at *6. Because New Jersey law allows an attempt conviction without satisfying the “probable desistance” test, it is broader than the generic definition – again, the prior does not qualify as a federal “aggravated assault.” Id. at *6-*7. Two very useful additions to our “generic definition” arsenal.

How to Use: Yet again the Ninth rejects the sentencing “belt and suspenders” gambit. Here, the court warned it would impose the same 46 six months if it was wrong (despite the fact that the correct guidelines are 10–16 months). Id. at *7. The Ninth ain’t buying it: “the district court’s assurance that it would have imposed a sentence three times the proper Guidelines range if its Guidelines calculation turned out to be wrong cannot, without more, cure the prejudice resulting from its incorrect Guidelines calculation.” Id. at *8. Use Garcia-Jimenez when a court tries to whitewash an incorrect guideline calc with threats of an identical § 3553(a) term.   

                                               

For Further Reading: After Johnson, the Sentencing Commission has also been wrestling with the “crime of violence” question. A proposed amendment has been posted for comment - see the pdf here. 

The comment period ended on Nov. 25: anticipate more news on the amendment soon. 

Image of New Jersey button from https://img1.etsystatic.com/000/0/5533093/il_570xN.143052497.jpg

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