Divens: The Fourth Splits From The Ninth On The Third Level For Acceptance Of Responsibility

The government claims its discretion to move for the third acceptance of responsibility level under U.S.S.G. § 3E1.1(b) is coextensive with its almost unlimited discretion to file a substantial assistance motion under U.S.S.G. § 5K1.1. The Fourth Circuit says no. In a 3-0 opinion authored by Judge Motz, the court in Divens examined the plain statutory language and concluded that the third level depended only on conserving trial resources. Therefore, the government’s refusal to move for the third level because the defendant declined to sign an appeal waiver violated the Guidelines and required a remand and resentencing.

For those who like their legal reasoning linear and their constitutional rights protected, this is good news: Divens creates a split with the First, Fifth, Seventh, and Ninth Circuits. We should be using the Divens split to distinguish adverse circuit authority and, if necessary, to seek rehearing and certiorari from cases that divorce the third level from its purpose and endanger constitutional rights to litigate pretrial motions and to seek appellate review. Fortunately, with many prosecutors, abuse of the third level does not become an issue. Where the third level becomes an issue, we need to preserve the issue at trial, distinguish prior cases, and seek en banc and certiorari review based on both statutory construction and the constitutional interests at stake.

The briefing in this area can be adapted from several sources, including the Divens opinion, Ninth Circuit Judge Milan Smith’s partial dissent in Johnson, and the NACDL amicus brief in support of rehearing in Johnson. The Divens court demonstrated that simple rules of statutory construction require that the third level only be contingent on preservation of trial resources. The other circuits, including the Ninth, simply failed to analyze the fundamental differences between departure for substantial assistance and adjustment for acceptance of responsibility. The Divens opinion addresses this false analogy at pages 4-7 (see also Johnson amicus at 9-12).

Especially in the Ninth Circuit, the court’s acquiescence to prosecutorial punishment for the exercise of constitutional rights violates the basic rules of stare decisis (Johnson dissent at 13062-69, Johnson amicus at 3-6). Under pre-Protect Act precedent, courts could not deny the third level for acceptance of responsibility based on exercise of constitutional rights, including litigation of pretrial motions. This is not surprising, given the Supreme Court’s holding in Simmons that the protections of the Fourth Amendment, and the concomitant need to avoid deterring the exercise of those rights in pretrial motions, were so important that it is “intolerable that one constitutional right should have to be surrendered in order to assert another.” Similarly, although the Johnson court treated the right to an appeal as a procedural option, the Supreme Court has treated the right to appeal as protected: where the statute confers the right to appellate review, the defendant cannot be punished for exercise of that right (Pearce v. North Carolina).

In contrast to the pre-Protect Act solicitude for the exercise of constitutional rights, the court in Johnson held that Ninth Circuit protective precedent was no longer valid based on supposed changes in the Guidelines. However, as Judge Smith painstakingly demonstrated in his partial dissent in Johnson, the operative language was identical both before and after the Protect Act: the only interest upon which the government could deny the third point was conservation of trial resources. The same point was basic to the opinion in Divens. Therefore, we can argue in the district court and on direct appeal that the Johnson case is both distinguishable and lacking in precedential value because it overturns prior circuit precedent that only the en banc court could change. Just as a three-judge panel had no authority to overrule cases decided after an amendment to the Guidelines (Contreras), the Johnson panel lacked authority to overrule precedent where the amendment did not change the relevant language.

Before the enactment of the Guidelines, the Ninth Circuit rule was crystal clear: imposition of a more severe sentence based on exercise of constitutional rights itself violated the Constitution. See, e.g., Capriola, 537 F.2d at 320; Stockwell, 472 F.2d at 1187. When enacting the Guidelines initially, the Sentencing Commission walked a very delicate line in allowing a reward for acceptance of responsibility, which could not be administered as a punishment for exercise of constitutional rights. Before the Protect Act, now-Chief Judge Kozinski noted the blurred distinction between rewarding acceptance of responsibility and punishing exercise of constitutional rights: “[W]hether a sentencing disparity is viewed as a burden or a benefit depends ‘upon whether the shorter sentence is compared to the longer or the longer to the shorter.’” Aichele, 941 F.2d at 769 (Kozinski, J., dissenting). The Ninth Circuit rule was that, in order to "avoid unconstitutional application of Sentencing Guidelines," the acceptance of responsibility guideline had to be construed so that "a sentencing court cannot consider against a defendant any constitutionally protected conduct." Watt, 910 F.2d at 592. After the Protect Act, the need to guard against punishment for exercising Fourth Amendment and appellate rights is even greater. The Fourth Circuit decision in Divens prohibits imposition of extra time in custody for having the temerity to challenge unlawful governmental action on appeal. In the other circuits’ approach to the third level for acceptance of responsibility, the judiciary has abdicated its role in protecting the exercise of constitutional rights in favor of hyper-deference to prosecutors (Johnson amicus at 13-19).

In the trenches of the criminal justice system, conflict over the third point is usually resolved far short of formal litigation. Where the issue is clearly raised, we should be assuring that it is properly preserved, litigated based on factual and legal distinctions on appeal, and, if all else fails, litigated en banc and by petition for certiorari to resolve the split in favor of the Divens position. Congratulations to Team Divens of the West Virginia Federal Public Defender’s office for their persistence and advocacy on this important question!

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon

Case o' The Week: Government Uses Trial Acceptance Guideline to Coerce Appeal Waivers, Medina-Beltran and Third "Acceptance" Level

This innocous little case, where one offense level (a handful of months) was at issue, is (respectfully) a leading contender for the worst Ninth Circuit decision of 2008. See United States v. Medina-Beltran, No. 06-10181, 2008 WL 4093611 (9th Cir. Sept. 5, 2005), decision available here.

An opinion that deserves the fast-track to the en banc court.

Players: Hard-fought appeal by Tucson AFPD Saul Huerta. Per curiam decision by Judges Siler (Senior Sixth Circuit), McKeown, and Callahan (right).

Interestingly, Judge Callahan was also on the Espinoza-Cano panel. Espinoza-Cano is the Ninth Circuit case that first started these problems with the government's abuse of the acceptance of responsibility guideline.

Facts: {Ed. Note - this decision creates a major new Circuit rule, yet is barely two pages long, has scant analysis, and even less factual background. These facts are accordingly drawn from the appellant’s briefs.} Out of the gate, Medina-Beltran offered to plead guilty to illegal reentry. Appellant’s Brief, 2006 WL 2701301, *13. He plead “open” (without a plea agreement) and moved for departures and variances at sentencing. Id. at *5-*6.

The government refused to move a reduction of the third offense level for acceptance under USSG § 3E1.1(b), because Medina-Beltran declined a plea agreement that had an appellate waiver. Id. at *13.

Issue(s): “Medina-Beltran disputes the district court’s refusal to grant him a third-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b) . . . . Medina argues only that the prosecutor acted arbitrarily in refusing to move for the additional reduction.” Medina-Beltran, 2008 WL 4093611 at *1.

Held: “Although Medina-Beltran pled guilty and avoided a trial on the substantive offense, he objected to his sentencing enhancement and rejected the government’s proposed appeal waiver. The government anticipated and defended his appeal of his sentence. Under these circumstances, the government's decision not to move for the additional level reduction was not arbitrary.” Id. at *1.

Of Note: With all respect, this is one of the worst decisions of 2008. Its roots stretch back to the 2003 Feeney Amendment. That amendment was ghosted by DOJ, sponsored by a freshman Representative, and rushed through a Republican Congress with no debate or discussion. It was an amendment that Orin Hatch (and quietly, Justice Breyer) thought was nuts. See article here.

The Feeney Amendment let the prosecutor – instead of the Court – decide on whether the defendant would get the full reduction for acceptance of responsibility. See § 3E1.1(b), entire text available here. We predicted rampant AUSA abuse of their discretion on whether to give the defendant credit for acceptance of responsibility. See Espinoza-Cano blog here, Gomez-Mendez blog here, Baza-Martinez blog here, Cannel blog here.

We were right.

In Medina-Beltran, the Ninth has adopted a shocking new rule: the government can extort appeal waivers by withholding the third offense level for acceptance of responsibility. The guideline itself, however, instructs that this acceptance level is to be given if a plea permits the government “to avoid preparing for trial.” USSG § 3E1.1(b). How, exactly, is an appeal waiver related to trial? The decision flatly ignores the plain text of the guideline.

Medina-Beltran will have a tremendous impact on our practice, because many clients will cave to the government’s extortion of the third acceptance level rather than preserve a sentencing appeal. This problem is exacerbated by USAO’s flat ban on conditional pleas (like in the Northern District of California). Congress and the Commission would never approve a guideline that conditioned acceptance points on appeal waivers. Yet, by slowly (and frankly, disingenuously) pushing the envelope, that is exactly what the government has achieved.

This decision should go en banc.

How to Use: On a “heavy” illegal reentry case, losing this third “point” costs seven months. (CH VI, OL 22 versus 21). If a client wants to preserve a sentencing appeal don’t plead until the Friday before a Monday trial. Remember, the Court gives the first two acceptance levels, and for those two levels the plea doesn’t need to be “timely” -- anytime before the jury is sworn will do.

Let's share the pain of this inane rule, and force AUSAs to subpoena witnesses and prepare in limine motions if they extort appeal wavers by withholding the third acceptance level. If the government is going to withhold the third acceptance level in any event, why should it enjoy the resource-savings benefit of an early plea?

Savvy district courts will soon figure out that AUSAs who abuse their power over this third acceptance level are causing everyone a great deal of unwarranted work -- and are doing so unfairly. Moreover, it is particularly notable that most experienced AUSAs (and to be honest, most reasonable prosecutors) have not been playing games with this third acceptance level.

How should we educate the district courts that this problem starts with the government, not our clients? Seek orders compelling conditional pleas, file case status memos explaining the third point is being withheld for unfair reasons, describe the dispute in the open-plea hearing and foreshadow the debate at sentencing. The abuse of this third acceptance level will carry unanticipated institutional costs -- and those costs should be laid squarely at the government's feet, where they belong.

For Further Reading: We’re not the only ones concerned by this abuse of the acceptance guideline. In United States v. Cannel, Judge Clifton was troubled by the denial of acceptance when defense counsel had the audacity to make an argument at sentencing. 517 F.3d 1172 (9th Cir. 2008) (Clifton, J., concurring in the judgment).

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

Image of the Hon. Consuelo Callahan courtesy of http://www.slate.com/id/2127241/?nav=ais

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Case o' The Week: One Outta Three? May Earn the Full Three! - Acceptance of Responsibility and Relevant Conduct

Hon. Judge Marsha Berzon

  Ninth skeptical of "safe" sentencing . . . 

   United States v. Jeffrey Green, 2019 WL 3939348 (9th Cir. Aug. 21, 2019), decision available here.

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

Facts: While arresting Green cops found a gun in his pocket. Id. A later search produced two more pistols, locked inside a safe accessible from Green’s apartment. Id. The guns in the safe had been reported stolen. Id.

   Green plead open to the § 922(g) charge, admitting guilt for the gun in his pocket. Id. & n.1.

  [Ed. Note: Unlikely that the Rehaif knowledge element was charged, or admitted, in this open plea].

   Probation hit Green with higher guidelines for three guns, plus a “stolen weapon” guidelines bump for the guns in the safe. Id. The PSR denied Green acceptance, because he had not admitted to possessing the pistols in the safe. Id. Green objected, arguing the government had not proven that the firearms in the safe were in his possession. Id.

  At a sentencing evidentiary hearing, the district court heard Green express dismay in a post-arrest recorded call, when he learned a locksmith had been brought in to open the safe. Id. at *2. The court concluded Green was good for all of the guns, and for the stolen gun bump, and those higher associated guidelines. The district court left open the question of whether Green should get a reduction for acceptance of responsibility.

   At the second sentencing hearing, the court decided against the acceptance reduction -- before it heard the defendant’s allocution. Id. at *2.

Issue(s): “Must a district court decide on a defendant’s eligibility for an acceptance-of-responsibility reduction in his Guidelines level before listening to the defendant’s allocution?” Id. at *1.

Held: “Our answer is ‘No.’” Id.

   “A misapprehension of law occurred here. The district court believed that it had to determine whether Green had accepted responsibility before allowing Green his opportunity to allocute. That is not so.” Id. at *3.

   “We hold that the sentencing court erred by concluding that it could not first hear from the defendant before determining whether a reduction for acceptance of responsibility was warranted under the Sentencing Guidelines. We also conclude that this misapprehension was plain error and so vacate the sentence and remand for resentencing.” Id. at *7.

Of Note: Green’s counsel did not raise this issue on appeal – briefing was sought by the Ninth. Id. at *5. Judge Berzon gets to plain error review anyway, with a useful analysis of plain error factors. Id.

  Note the Ninth also rejects the government’s argument that Green waived the claim – a nice appellate-waiver distinction to tuck away for future use. Id. at 5 & n.4. 

  In an encouraging nod for Green, the Ninth concludes the plain error analysis by predicting he has a shot at a lower sentence on remand. Id. at *6.

   The Ninth’s “reasonable probability of a lower sentence” analysis is of particular interest – see “How to Use” below.

How to Use: Relying on the Ninth’s old Ginn case, the district court denied acceptance because Green only admitted guilt as to one gun.

  “Not so fast,” concludes Judge Berzon. Id. at *6 - *7.

  In Ginn, the defendant didn’t admit all charged counts. Here, by contrast, Green admitted the pocketed revolver in the charged count – he just didn’t admit additional “relevant conduct” guns. Id. Judge Berzon explains that a defendant doesn’t lose acceptance for not admitting relevant conduct (although acceptance may be at risk if a defendant falsely denies, or frivolously contests, relevant conduct. Id). at *6. Green, she muses, may thread the acceptance needle on remand. Id. at *7.

  Probation and AUSAs often want defendants to shoulder sins back to Adam’s apple to earn acceptance. This Green discussion on acceptance is thus the most intriguing part of this interesting decision. Read Green when navigating the “acceptance” labyrinth in the face of relevant conduct worries.

                                               

Hon. Judge Danielle Hunsaker

For Further Reading: Last week President Trump nominated Judge Danielle Hunsaker, an Oregonian appellate judge, to Judge O’Scannlain’s vacant Ninth seat. See article here.  

  Judge Hunsaker was jointly recommended by Oregon Senators Wyden and Merkley (D). See Ballotpedia entry here. 

  Like Ninth Circuit Judges Ikuta, Watford, and Owens, Judge Hunsaker was a Ninth Circuit clerk, having worked for Judge O’Scannlain early in her career. Id.

Image of the Hon. Judge Marsha Berzon from https://www.law.berkeley.edu/article/judicial-externs-debt-gratitude/ .

Image of the Hon. Danielle Hunsaker from https://pamplinmedia.com/ht/117-hillsboro-tribune-news/378183-264528-danielle-hunsaker-appointed-as-washington-county-judge 

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

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Case o' The Week: "Discomfited" Will Do - Hernandez and Acceptance of Responsibility After Trial

  Trials aren’t tribulations.

United States v. Albert Hernandez, 2018 WL 3352608 (9th Cir. July 10, 2018), decision available here.

Players: Decision by Judge McKeown, joined by Judge Murguia. Dissent by Judge Rawlinson.

  Admirable win (on this issue) for D. Nev. AFPDs Amy B. Cleary and Alina Shell.

Facts: Hernandez, a coach, had a sexual relationship with a 17-year-old minor, and they exchanged sexually-explicit images. Id. at *1.

  The relationship was discovered and Hernandez was charged with a host of federal crimes. He was convicted after a jury trial. Id. at *2.

  The district court denied acceptance, and sentenced Hernandez to 284 months. Id.

Issue(s): “[Did] the district court . . . increase[ ] Hernandez’s sentence

or with[hold] a reduction for acceptance of responsibility based on Hernandez’s decision to go to trial[?]” Id. at *4.

Held: “[B]ecause the record suggests that the district court penalized Hernandez by increasing his sentence based on his decision to exercise his Sixth Amendment right to go to trial, we issue a limited remand for resentencing.” Id. at *1.

  “[O]ur review of the sentencing transcript leaves us discomfited that the district court penalized Hernandez for his assertion of protected Sixth Amendment rights. The district court emphasized Hernandez’s decision to go to trial five separate times during the sentencing hearing. The court first stated that ‘it would mean something if [Hernandez] took responsibility before the trial.’ The court then repeated that ‘contrition means something when it happens before trial.’ . . . . Still further, the court continued: ‘[W]hat I look for is somebody who feels remorse before the trial, before you put this young girl through the—through the agony of testifying, having to testify to what went on, and then identify pictures of herself, personal pictures. So, I don’t see—I don’t see much remorse there, Mr. Hernandez.’ This comment revealed the court’s dim view of Hernandez’s right ‘to be confronted with the witnesses against him.’ U.S. Const. amend. VI.” Id. at *5.

  “The district court’s statements run headlong into our precedent that a judge cannot rely upon the fact that a defendant refuses to plead guilty and insists on his right to trial as the basis for denying an acceptance of responsibility adjustment.” Id. at *6 (citation omitted).

Of Note: The principled analysis of this issue in Hernandez recognizes the reality of federal court: our clients are almost always forced to plea. The government surely has enough arrows to coerce guilty pleas, without also adding “acceptance of responsibility” to the quiver.

  As Judge McKeown thoughtfully explains, “Although most federal criminal cases result in guilty pleas, the Sixth Amendment right to trial remains an important safeguard to defendants who insist on their innocence. Permitting courts to impose harsher sentences on those few defendants who do go to trial could in practice restrict the exercise of the right to those with unusual risk tolerance—or uncommon courage.” Id. at *6.

  On this issue, Hernandez is a great opinion – use it to fight for the “acceptance” reduction, even after a trial.  

How to Use: Like a liturgy, the district court intoned an assurance that the Section 3553(a) factors had been considered before imposing this whopping sentence. “But reciting this boilerplate statement immediately after chastising Hernandez for going to trial, and without any explanation, does not cure the infirmities in the district court’s justification for the sentence imposed.” Id. at *6.

  Use Hernandez to battle the government’s attempts to use a district court’s vague Section 3553 assurances like sentencing sanitizer.

                                               

For Further Reading: Hernandez confirms what we know too well: systemic sentencing penalties have virtually eliminated the constitutional right to a trial.

  For a compelling analysis documenting this problem, with recommendations for reform, see NACDL’s recent report, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It, available here. 

Image of jury from http://www.amalaw.org/2018/02/03/is-it-possible-for-a-client-to-win-a-dui-jury-trial/

Image of “The Trial Penalty” Report from https://www.nacdl.org/trialpenaltyreport/

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

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United States v. Hernandez, No. 13-10428 (McKeown* with Murguia; partial dissent from Rawlinson) --- In a previous round of this appeal from a sentence imposed following a jury trial on child pornography charges, the panel (then with Judge Kozinski on it) remanded the case to the district court for findings about the distribution enhancement. In this appeal following the limited remand, then panel (with Judge McKeown replacing Judge Kozinski, who retired after oral argument) affirmed the distribution enhancement, holding that sharing an image of child pornography with the child depicted in that image constitutes "distribution" under USSG § 2G2.1. The panel remanded the case again for the limited purpose of allowing the district judge to clarify whether he denied the defendant a downward adjustment for acceptance of responsibility because he exercised his right to trial.　

This case involves sexting, which would not ordinarily generate child pornography charges. But the defendant was a girls' softball coach, and the other person in the relationship was a 17-year-old girl who was on the team. They were sharing images of themselves with each other, including naked images of the girl and images of themselves engaged in sexual acts. They were caught when the girl's father saw the images on her phone. The defendant went to trial, lost, and received a 284-month sentence. In the previous stage of the appeal, the panel remanded for findings in light of United States v. Roybal, 737 F.3d 621 (9th Cir. 2013), directing the court to consider whether the upward adjustment for "distribution" under the Guidelines was proper where the images were shared only between these two people. The court held unanimously that it was.　

There is a challenge to the substantive reasonableness of the sentence in this appeal. But the panel did not resolve it, because it first had to resolve a procedural question about the sentencing judge's reasons for denying a downward adjustment for acceptance of responsibility. The judge faulted the defendant for his apparent lack of contrition at sentencing. "I have never had a defendant," he said, " -- there have been one or two maybe -- after being found guilty, who didn't feel contrition.... everybody feels contrition now. Now, when they are looking at spending time in prison, everybody feels remorse for what they did." The judge observed that there was no remorse for "putting the victim through the agony of testifying at trial." And then he said to the defendant, "You decided to roll the dice, and it came up snake eyes. You didn't think she'd testify, and she did. You went -- you wanted to go to trial, so you went to trial. And Probation rightly recommends 327 months for that." That last statement came right before the judge pronounced the sentence. Under these circumstances, the court said, the judge ran "headlong" into the Ninth Circuit precedent that forbade judges from relying on the defendant's decision to exercise his right to trial as a basis for denying a downward adjustment for acceptance of responsibility. The panel remanded the case to give the judge an opportunity to explain that that was not what he was doing.　

Judge Rawlinson dissented from the limited remand. She did not read the defendant's brief as challenging the procedural reasonableness of the sentence (a failure to award the downward adjustment for acceptance of responsibility), but only the substantive reasonableness of the sentence. Under that rubric, she saw no problem with the sentencing judge's statements. "It is apparent that the primary focus of the court's concern was Hernandez's manipulation of the victim and lack of remorse." She would have affirmed the sentence in its entirety.　

Congratulations to Assistant Federal Public Defender Amy Cleary of Las Vegas.　

The decision is here:　

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/10/13-10428.pdf

Case o' The Week: No Acceptance for (Un)Appealing Decision, Johnson

In 2003, a Republican Congress turned the Sentencing Guidelines system on its head with the PROTECT Act and the Feeney Amendment - an amendment sponsored by then-freshman Representative Tom Feeney, who is now under a corruption investigation.

One of the most subtle, but insidious, aspects of the PROTECT Act was stripping the power to determine "acceptance of responsibility" from its traditional home with the judiciary. Instead, the PROTECT Act vests the power to grant the third acceptance "point" with the defendant's adversary - the prosecutor.

We in the defense bar immediately predicted widespread abuse by AUSAs and an unfair chilling effect on motions and appeals -- despite the fact that the amended guideline purported to limit itself to preserving the government's trial resources.

We were right. United States v. Johnson,__ F.3d __, No. 08-30094, 2009 WL 2883020 (9th Cir. Sept. 10, 2009), decision available here.


Players: Decision by Judge Tallman (upper right), dissent and concurrence by Judge M. Smith. Hard-fought appeal by Alaska AFPD M.J. Haden.

Facts: Johnson, a felon, and two colleagues were pulled over by U.S. Marshals after the trio acted suspiciously in a bank. Id. at *1-*2. The Marshals found a gun on Johnson and he then charged in federal court with a violation of 18 § 922(g)(1). Id.

The district court denied Johnson’s suppression motion. Eight days after the suppression motion was denied, Johnson entered a conditional plea. Id. at *2.

Apparently breaking ranks with the standard practice in the district, Johnson’s AUSA refused to move for a reduction of the third offense level for acceptance of responsibility under USSG § 3E1.1(b). Id. (Section 3E1.1(b) bestows on the government the power to move for the third “acceptance point” when the defendant’s timely acceptance of responsibility permits it to avoid preparing for trial -- see guideline here.) The government rationalized its refusal by pointing to the work that would be required by Johnson’s appeal of the suppression motion. Id. at *2.

The district court conceded that the government spent no effort preparing for trial, but nonetheless refused to give the third acceptance point. Id. at 2.

Issue(s): “The government did not file a § 3E1.1(b) motion for the third-level reduction, citing Johnson’s stated intention to appeal the suppression order. Accordingly, the issue before us is whether the allocation and expenditure of prosecutorial resources for the purposes of defending an appeal is a rational basis for declining to move for the third reduction point.” Id. at 6.

Held: “We hold that it is. When § 3E1.1(b) speaks of conserving government resources in the ‘prosecution’ of the defendant’s ‘misconduct,’ it means more than simply trial preparation.” Id. at 6.

Of Note: We are, shall we say, "unpersuaded" by this decision and start with the opinion’s core fallacy. Judge Tallman reassures us that “In the Commission’s view, the government is in the best position to evaluate whether the defendant has [accepted responsibility and preserved government resources.]” Id. at 5 n. 5 (emphasis added).

This claimed pedigree is not true.

The amended Guideline § 3E1.1(b) most certainly did not come from the Sentencing Commission, but instead was forced down the Commission’s throat by a Republican Congress in the regrettable PROTECT Act. See USSG § 3E1.1 comment. (“Section 401(g) of Public Law 108-21 directly amended subsection (b) . . .”) In short, this amendment is the same, suspect, Congressionally-dictated approach as the crack guidelines – and Rita / Gall taught us how little judicial deference those types of guidelines deserve.

We’ve cried foul since § 3E1.1(b) was first amended. Just as we’ve predicted, lazy or fearful prosecutors have consistently abused their new power, ignoring the words “for trial” and punishing defendants for preserving appellate rights. The government’s abuse of its third-point power has a dramatic and pervasive chilling effect on pretrial motions and on appeals – and all of this from an amendment that the Sentencing Commission never even considered, much less submitted to empirical study and comment.

In a persuasive dissent, Judge Milan Smith thoughtfully parses the actual words of the amended guideline, and rightly worries about the abuse of the government’s new power.

Johnson should go en banc: this issue has a much greater impact on a broad range of cases than those outside of the trenches realize. In effect, Johnson levies a one-offense level toll for bringing a suppression motion and preserving an appeal -- even if a trial date is never even remotely contemplated. That motion/appeal tax is going to let a great deal of very suspect investigation and police work fly under the radar, and all of this is being done under the guise of an amendment that expressly refers to trial resources. Those who care about the Fourth Amendment and Miranda rights should be very troubled by the unchecked growth of Section 3E1.1(b).

How to Use: If Johnson survives, one of two things should happen. Ideally, district courts will deconstruct § 3E1.1(b) to shreds, and will offset any withheld third acceptance point with a Rita / Gall § 3553(a) reduction.

If that does not happen, and the government withholds the third point to punish a defendant for preserving an appeal, don’t plead until the Friday before the Monday trial. The defendant is still entitled to the full two acceptance points from the court – even for a very late plea. See § 3E1.1(a). Show AUSAs what expending resources really means: let the government wade through in limine motions, disclose Brady and Jencks, identify snitches, and fly in all of its witnesses for trial. If the defendant is losing the third point anyway, why reward a bullying AUSA with an early plea?

For Further Reading: For our repeated warnings of § 3E1.1(b) abuse visit our blogs here.


Image of the Hon. Richard Tallman from http://law.cua.edu/News/2006%20Stories/Sutherland%20Cup%20Showing.cfm


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org


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Lee: The Second Joins The Fourth In Rejecting The Ninth On The Third Level For Acceptance Of Responsibility

More good news on the third level for acceptance of responsibility! Three weeks ago, the Fourth Circuit in Divens broke off from the other circuits, rejecting the government’s claim that its discretion to move for the third acceptance of responsibility level is commensurate with substantial assistance discretion and can be based on the defendant's exercise of appellate and pretrial rights. As blogged here, the Divens opinion systematically debunked the reasoning of the other circuits, demonstrating that the government’s departure power differs significantly from the Chapter 3 adjustment, which only pertains to preservation of trial resources.

Now the Second Circuit goes one better. In Lee, the court joins Divens in finding that both the acceptance of responsibility guideline and its commentary only authorize withholding of the third level based on preservation of trial resources. The Second Circuit explicitly adopted the “instructive” reasoning of Divens. But here’s where the Second Circuit takes the next big step: the court explicitly recognizes the constitutional issues at play where the government imposes a liberty tax for exercise of rights (as the NACDL argued in this Ninth Circuit brief). Here’s what the court says:

“[A] defendant – even one who pleads guilty – has a due process right to reasonably contest errors in the PSR that affect his sentence. . . . A defendant should not be punished for doing so. If there is a good faith dispute as to the accuracy of factual assertion in the PSR, the defendant’s request that the dispute be resolved is not a permissible reason for the government to refuse to make the § 3B1.1 motion, even if resolution of the dispute requires a . . . hearing. The government’s refusal to make the motion under these circumstances is 'unlawful and grounds for reproach' because it ignores the language of the guideline, its purpose, and the intent of Congress.”

So the split has sharpened. The analysis the Ninth Circuit approved in Johnson, with Judge Milan Smith disagreeing, is viewed as “grounds for reproach” in the Second Circuit. Here in the Ninth Circuit, we should be encouraged by Lee to distinguish the facts of Johnson, to challenge the validity of the Johnson under the rules of stare decisis, and, if all else fails, to seek rehearing en banc and Supreme Court review.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon

Johnson: Remembrance Of Illegal Sentences Past

After two dissents on vagueness in James and Sykes, Justice Scalia finally prevailed in Johnson, declaring the residual clause of the Armed Career Criminal Act void for vagueness. This means that any client whose ACCA conviction depended on prior convictions beyond the specifically listed offenses, in their federal generic form, has a sentencing innocence claim. And since many state burglary statutes are indivisibly overbroad, prisoners with non-generic prior burglary convictions are among the potential beneficiaries of the Supreme Court’s decision. For those clients, we need to be pulling files and working up motions and petitions for relief to challenge the increase from a 10-year maximum for possession of a firearm under 18 U.S.C. § 922(g) to a mandatory minimum of 15 years under the ACCA.

In Johnson, the question was whether a prior conviction for possession of a sawed-off shotgun constituted a “violent felony” under the residual clause of the ACCA. 18 U.S.C. § 924(e)(2)(B)(ii). After the first argument, the Supreme Court asked for supplemental briefing and re-argument on whether the residual clause, which includes offenses that present a “serious potential risk of physical injury to another,” was void for vagueness. In an opinion authored by Justice Scalia, the Court held that imposition of an increased sentence under the ACCA’s residual clause violates the Due Process Clause because the residual clause is unconstitutionally vague:

“We are convinced that the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant’s sentence under the clause denies due process of law.”

“Invoking so shapeless a provision to condemn someone to prison for 15 years to life does not comport with the Constitution’s guarantee of due process.” The Court’s holding invalidated all applications of the residual clause, because the Court rejected the argument that “a vague provision is constitutional merely because there is some conduct that clearly falls within the provision’s grasp.”

Residual Clause Prior Convictions For Non-Generic Burglary And For Eluding

We are already hearing from our clients in prison who are receiving partial and inaccurate information about what Johnson means. Prisoners need to know that neither listed generic predicate offenses, nor convictions for “serious drug offenses,” nor crimes with an element of physical force appear to be directly affected by Johnson. But Johnson is a huge deal in the Ninth Circuit, where the burglary statutes of many States have been held NOT to constitute generic federal burglary under Taylor, as reinforced by Descamps.

Up to now, the Ninth Circuit’s decision in Mayer approved the use of non-generic burglaries as ACCA predicate convictions under the residual clause – but no longer. Then-Chief Judge Kozinski famously dissented in Mayer, along with Judges Reinhardt and Fletcher, calling the decision “a train wreck in the making.” United States v. Mayer, 560 F.3d 948, 951 (9th Cir. 2009) (Kozinski, C. J., dissenting from denial of rehearing en banc). Johnson not only rejected the holding of Mayer, Justice Scalia approvingly quoted Judge Kozinski’s critique of how courts should assess the risks in the “ordinary case” under the residual clause: “A statistical analysis of the state reporter? A survey? Expert evidence? Google? Gut instinct?” On June 30, 2015, the Supreme Court granted certiorari, vacated the judgment, and remanded in over 40 cases being held pending Johnson, including an action brought by Mr. Mayer.

With Mayer’s holding reversed, the rule of Descamps and Taylor governs, meaning that overbroad burglary statutes are not predicate ACCA convictions. The Ninth Circuit en banc in Grisel and in other cases has held that the “building” elements of several state burglary statutes are overly broad. In United States v. Wilkinson, the Ninth Circuit also held in an unpublished opinion that a state burglary statute including licensed entries was overbroad and required relief from an ACCA conviction. 589 F. App’x 348, 350 (9th Cir. 2014). With the last refuge of the residual clause no longer available, our clients sentenced based on non-generic burglaries are serving illegal sentences.

Another big area for Johnson review will be predicate ACCA convictions under felony eluding statutes. Several years ago, over Justice Scalia’s vagueness dissent, the Court upheld eluding as a “violent felony” under the residual clause in Sykes v. United States, 131 S. Ct. 2267 (2011). We have been attacking eluding convictions ever since because most state eluding statutes, unlike the Indiana statute in Sykes, encompass relatively innocuous conduct including temporary non-compliance with the flashing lights. Johnson expressly overrules Sykes, so all ACCA sentences predicated on eluding convictions need a second look. After Johnson, the Supreme Court granted certiorari, vacated the decision, and remanded in United States v. Martinez, 771 F.3d 672 (9th Cir. 2014), in which the Ninth Circuit had followed Snyder and Cisneros on Oregon eluding to find that California eluding constituted an ACCA “violent felony.”

Johnson Beyond The ACCA

The scope of the Supreme Court’s holding on the residual clause extends beyond the ACCA to any statutory or guidelines provision that combines a “serious potential risk” criteria with application of the categorical approach. The Sentencing Commission used identical language in the residual clause for the statutorily-based career offender “crime of violence” definition. U.S.S.G. § 4B1.2(a)(2). The Ninth Circuit already held in United States v. Coronado that the Supreme Court’s interpretation of the residual clause applies equally to the career offender residual clause. 603 F.3d at 708 (9th Cir. 2010). Enhancement based on an unconstitutionally vague guideline should be just as much of a due process violation as enhancement under the ACCA. The Supreme Court’s post-Johnson GVRs – granted, vacated, and remanded – included seven career offender sentences that are now based on unconstitutional enhancements.

The guideline for non-ACCA unlawful possession of a firearm is implicated as well, because it permits an increase of up to ten offense levels based on prior “crimes of violence” under the career offender definition of that term, including the invalid residual clause. U.S.S.G. § 2K2.1(a). The GVRs include vacation of the Ninth Circuit’s unpublished opinion in United States v. Talmore, 585 F. App’x 567 (9th Cir. 2014). In Talmore, the court had upheld an increase in the base offense level under § 2K2.1 for simple felon-in-possession based on a California burglary conviction.

We are also going to need to keep track of Johnson in the context of illegal reentry prosecutions under 8 U.S.C. § 1326. The definition of “aggravated felony” incorporates the definition of “crime of violence” from 18 U.S.C. § 16(b), which includes a residual clause very similar to the ACCA residual clause. 8 U.S.C. § 1101(a)(43)(F). In looking at prior removal proceedings, as well as enhancements under U.S.S.G. § 2L1.2(b)(1)(C), we may have new arguments based on Johnson and the Due Process Clause. Since we only just received the Court’s Johnson ruling, we are going to need to keep the Court’s vagueness holding in mind in dealing with any statutes and Guidelines with residual clause-type language.

Procedural Mechanisms For Review

The prospective benefits for our clients from Johnson should be relatively straightforward: we need to assert and preserve challenges to prior convictions that implicate residual clauses in cases at trial and on direct appeal. The big questions for obtaining review will arise in the many cases where clients are serving illegal sentences after direct review is over. Many of the principles for raising sentencing innocence claims in this context will be very similar to the principles we set out for both statutory and guidelines cases in our 2014 outline entitled Helping Justice Trump Finality For Defendants With Sentencing Innocence Claims After Begay, Descamps, and Burrage (available here).

The procedural mechanism for review will depend on the stage of litigation. For cases we would have won on appeal under Johnson, a motion to recall the mandate may be appropriate, even under the demanding Ninth Circuit standard. Where Johnson is directly controlling, the Ninth Circuit should provide the forum for preventing the patent injustice of the client serving an illegal sentence.

For those clients who have not previously filed a motion under 28 U.S.C. § 2255, relief should be available because the sentence “was imposed in violation of the Constitution or laws of the United States.” At least for the year after Johnson, our clients should be able to obtain a ruling on the merits under § 2255 where the prior conviction was no longer an ACCA predicate and the petition is the client’s first § 2255 motion. But it may be a good idea to couple your § 2255 motion with alternative invocation of 28 U.S.C. § 2241 under the “escape hatch” of § 2255(e) in case the government asserts any procedural obstacles.

For those for whom a § 2255 motion would be a second or successive petition, § 2241 may provide the primary means for relief. Section 2255(h) limits second or successive motions to claims based on a “new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” In Ezell, the Ninth Circuit found no successive § 2255 jurisdiction for Descamps relief because the court determined that Descamps did not announce a new rule, and, if the rule was new, it was not a rule of constitutional law. Given the roots of Johnson in the Due Process Clause, Ezell's reasoning may require a second look. But the remedy for cases in which § 2255 provides an inadequate path to relief should be a § 2241 petition raised under the § 2255(e) “escape hatch,” which applies when “the remedy by [§ 2255] motion is inadequate or ineffective to test the legality of the detention.”

The “escape hatch” litigation makes perfect sense for obtaining relief under Johnson. Under Supreme Court and Ninth Circuit law, once a statute has been authoritatively construed by the Supreme Court, the interpretation is what the statute has always meant. Thus, the residual clause struck down in Johnson has never been part of a constitutionally-permissible construction of the ACCA. Under retroactivity doctrine, this is a change in the substantive law, at step one of Teague analysis, which is distinct from the retroactivity restrictions that apply to new rules of constitutional criminal procedure at Teague’s step two. For the same reason, guidelines enhancements based on the residual clause for career offender and firearms offense levels have also always been void for vagueness, resulting in increased sentences that would be unreasonable without the high starting point compelled by the unlawful guideline provisions.

The “manifest injustice” that overcomes procedural obstacles is established for ACCA sentences by the mandatory minimum 15 years of imprisonment. And the Solicitor General, in confessing error in Persaud, provided the rock-solid rationale for allowing a second look at ACCA sentences under the § 2255(e) “escape hatch”: "Sentences that exceed the statutory maximum, or that impose a statutory mandatory minimum based on a legal error, are cognizable under the savings clause. . . . The imposition of an erroneous mandatory minimum sentence is likewise a fundamental error that raises separation-of-powers concerns analogous to those implicated by a sentence above the statutory maximum."

The same analysis should result in jurisdiction under § 2255 and, if necessary, § 2241, for sentences imposed based on unlawful guideline enhancements. In Reina-Rodriguez, the Ninth Circuit granted relief under § 2255 where an illegal reentry sentence was unlawfully enhanced by a burglary conviction that did not categorically constitute a “crime of violence.” 655 F.3d at 1193. There are some compelling cases in which the unreasonableness of the sentence is clear: an unlawful career offender sentence increases an unarmed bank robbery, or low-level drug case, from, for example, 37 months with acceptance of responsibility (U.S.S.G. § 2B3.1 or 2D1.1(c) – 100 grams of heroin or half a kilogram of cocaine – for base level 22 at criminal history category III), to 151 months (career offender offense level 32, minus three for acceptance of responsibility, at criminal history category VI). The more than nine-year increase would be unreasonable in the absence of a valid career offender enhancement.

The same unreasonable swing can be found under the firearms guidelines where an unconstitutional ten-level enhancement would increase the low-end sentence from 15 to 51 months at criminal history category I, without acceptance of responsibility. At criminal history category VI, the difference at the low end, without acceptance of responsibility, would be between 37 and 100 months. While the effect of enhancements pre-Booker was mandatory, the post-Booker effect of the unlawful enhancements also establishes manifest injustice given the Supreme Court’s repeated characterization of the Guidelines as the “starting point and initial benchmark” in deciding the ultimate sentence, most recently holding in Peugh, 133 S.Ct. at 2080, that Guidelines amendments implicated the Ex Post Facto Clause because of their strong influence on the ultimate sentence.

There are other cases where the difference between the career offender and non-career offender sentencing ranges were the same or overlapped, in which case the courts may be more reluctant to take a second look. Sentencing ranges two or three times higher seem obvious. Especially where parties agreed to a bottom of the range resolution calibrated to the guidelines, the difference between sentence with and without the unconstitutional enhancement works a manifest injustice on the prisoner serving an illegal sentence. After all, by analogy to the Sixth Amendment context, the Supreme Court has reminded us that even a day of unlawful imprisonment due to ineffective counsel during plea negotiations warrants relief. Lafler v. Cooper, 132 S.Ct. 1376, 1386 (2012) (“any amount of [additional] jail time has Sixth Amendment significance.”)(citing Glover v. United States, 531 U.S. 198, 203 (2001)).

Starting Points For Litigation

In looking at sentencing innocence, there are a few starting points from our outline that should be emphasized. First, our clients need representation on Johnson issues, so we should be assisting them in applying for appointed counsel under the Criminal Justice Act. Second, these cases, like any others, require negotiations with the prosecutors, which after Johnson may be unusually fruitful. In some litigation involving sentencing innocence under the ACCA, the government has declined to assert potential procedural obstacles. Ethical prosecutors faced with clear sentencing innocence have conceded without extensive litigation and entered into agreed judgments. Negotiation should be an initial step.

Third, the Federal Public Defender ethic of “every day counts” means we need to move quickly but deliberately in these cases. Once the cases have been identified, the presentence report should provide the basic information to figure out whether there is play and what procedural device is most suitable. For those filing under § 2241, questions of venue and choice of law need to be researched. Although petitions regarding the execution of a sentence are generally filed in the district of custody, the sentencing district may be the appropriate venue to challenge the lawfulness of the sentence. In any event, the law of the home district should generally apply regardless of where the case is filed, given § 2255’s default to the home district.

One Last Thought About ACCA Litigation

The ACCA is not only poorly drafted, its irrational harshness has become one of the engines driving mass over-incarceration in America. Remember the recent Sixth Circuit case where possession of a shotgun shell under benign circumstances required the judge to blind his conscience and impose the 15 years, even though the defendant had not been in trouble for over 20 years? The concurring judge upholding the unconscionable sentence, after comparing the result to something out of a Charles Dickens novel, said, “I therefore join the continuous flood of voices expressing concern that the ACCA and other mandatory minimum laws are ineffective in achieving their purpose and damaging to our federal criminal justice system and our nation.” Under the ACCA, the prior convictions can be for relatively innocuous conduct and, unlike career offender designation which at least has roots in empirical data from the parole era, there is no time limit on the prior convictions. As a federal defender wrote back in 1994:

“A hunter in possession of a rifle is stopped by a game warden. The hunter has led an exemplary life for thirty-five years. A record check reveals that in 1959 he was convicted at the age of eighteen for three unarmed burglaries of businesses in a single night, in which little or nothing was taken. Under the Armed Career Criminal Act, the hunter is an armed career criminal subject to a mandatory term of fifteen years incarceration, with no probation or parole, and a potential sentence of life without parole.

"A penal statute’s moral validity should be reflected in society’s acceptance of both the prohibition and the punishment as generally applied. There are undoubtedly individuals who, merely by possessing a firearm, create an easily recognized danger to the community based on their prior convictions for crimes of violence. However, the ACCA is so loosely written that appropriate application is aberrational, rather than the norm.”

What’s Wrong With Three Strikes You’re Out, 7 Fed. Sent. R. 69 (1994). When we are challenging ACCA and other similar enhancements, our clients are often being subjected to punishments far in excess of what is fair and reasonable. When the court or the government does the right thing in these cases, we are not receiving a gift or a windfall – we are making the punishment at least come somewhat closer to fitting the crime.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon

Case o' The Week: Breach to the Third -- Manzo II, Breach, IAC, and "Law of the Case"

How many times does the Ninth have to say that the government needs to keep its promises and stand by its deals?

Three, so far, in 2012 (and its only April!)

United States v. Jose Manzo, (Manzo II) 2012 U.S. App. LEXIS 6838 (Apr. 5, 2012), decision available here.

Players: Big win by ED WA AFPD Matthew Campbell. Decision by Judge Gould.

Facts: Manzo was charged with possession of precursors to manufacture meth, and with distribution of meth. Id. at *2. He went to trial on the manufacturing case and was found guilty; sentencing was continued pending resolution of the distribution case. Id.

Manzo then pleaded guilty pursuant to a plea agreement in the distribution case. Id. In the agreement the government agreed to offense level (OL) 34, and to a three-level reduction for acceptance. Id. at *2-*3.


Sentencing came, and Probation went south: the PSR grouped the two offenses, converted the precursor and meth to the marijuana equivalency as directed by the guidelines, added the marijuana amounts, and came up with offense level 38. Id. at *3. The PSR also refused to give Manzo acceptance, because he had gone to trial on the manufacturing case. Id.

At sentencing, the government abandoned the OL 34 recommendation and endorsed OL 38, and didn’t recommend the acceptance reduction. Id. at *5.

Defense counsel didn’t argue breach. Id.

Manzo – who expected no more than 14 years with his deal – got hammered with 24 at sentencing. Id. In a mem dispo (“Manzo I”) the Ninth upheld the sentence on direct appeal, under plain error review. Id. at *6.

Issue(s):

1. IAC: “Manzo argues that his counsel gave him ineffective assistance of counsel.” Id. at *8.

2. Breach: “Manzo contends that the government breached its plea agreement with respect to the distribution sentence by merely agreeing before the district court that in light of the grouping, a base offense level of 38 was a correct calculation without recommending a base offense level of 34, per the agreement’s terms, and by not recommending a downward departure for Manzo’s acceptance of responsibility.” Id. at *11.

Held:

1. IAC: “We agree with Manzo that his counsel’s failure to anticipate that the offenses would be grouped for sentencing purposes and then advise Mazo to move to withdraw his agreement was constitutionally deficient.” Id. at *9.

2. Breach: “[T]he government had agreed that a base offense level of 34 would apply to Manzo’s sentence and promised to recommend a 3-level downward departure upon Manzo’s acceptance of responsibility. At the sentencing hearing, however, the government did neither and so breached the express terms of the plea agreement.” Id. at *13.

Of Note: The second time was a charm, for Manzo.

  The present case was decided on habeas review. Three years ago, on direct appeal, a different three-judge panel of the Ninth held that the government didn’t breach. See Manzo I, 337 Fed. Appx. 643 (9th Cir. June 1, 2009) (mem.) (Per curiam, Judges Canby, Thompson and Callahan).

In this week’s habeas “Manzo II,” Judge Gould acknowledges the earlier mem dispo, but explains that his panel isn’t bound by that decision – quoting authority that explains that the “law of the case” doctrine doesn’t apply when “the first decision was clearly erroneous.” Manzo II, 2012 U.S. App. LEXIS 6838 at *13 & n.3 (citation omitted).

For appellate folks, footnote three is the most intriguing corner of this interesting case: a welcome tool to distinguish a “conclusory sentence” in a previous panel’s “summary disposition.” Id. at *13-*15 & n.3.

How to Use: “Don’t breach” seems a recent Ninth theme. See recent blogs on breach here. Judge Gould explains – yet again – what the government is to do when its plea agreement contains incorrect guideline calculations. Id. at *16. Turns out it isn’t that hard, to keep a promise: an AUSA is to acknowledge the correct guidelines, but argue for lower guidelines reflected in the negotiated deal. Id. 

With three big Ninth breach decisions in the last four months, there’s certainly plenty of guidance on how to handle the situation . . . .

For Further Reading: Judge Gould, author of Manzo II, replaced Judge Beezer when he went senior in 1996. We’re sad to report that Judge Beezer passed away last week. For a review of some notable criminal-law decisions by Judge Beezer – including the original Carty case – see blog entries here.

 Image of "Breach" from http://www.moviewallpaper.net/wpp/Ryan_Phillippe_in_Breach_Wallpaper_2_1024.jpg

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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Case o' The Week: The First and the Ninth - Osinger, First Amendment, and Internet Stalking

   The First Amendment protects offensive and, at times, reprehensible speech.

  (But, as Judge Rawlinson explains, not all offensive and reprehensible speech is protected.)

United States v. Osinger, 2014 WL 2498131 (9th Cir. June 4, 2014), decision available here.

Players: Decision by Judge Rawlinson, joined by Judges Graber and Watford. Concurrence by Judge Watford.

Facts: Christopher Osinger was indicted for “engaging in a course of harassing conduct,” in violation of 18 USC §§ 2261A(2)(A) and 2261(b)(5). Id. at *1. Before trial he unsuccessfully moved to dismiss the indictment, arguing that Section 2261A(2)(A) was unconstitutionally vague. Id. Trial testimony revealed that Osinger and the female victim, V.B., had a romantic relationship that ended badly. Id. Osinger texted V.B., showed up at her house un-invited in the early morning, and ultimately created a Facebook page in a name close to V.B.’s, with nude photographs of her and offensive text. Id. at *1-*2. Osinger also sent disturbing emails to V.B.’s co-workers. Id. He was convicted and sentenced to 46 months. Id. at *3.

Issue(s): “Osinger . . . contends that 18 USC § 2261A(2)(A) was unconstitutionally applied to his protected speech.” Id. at *5.

Held: “Any expressive aspects of Osinger’s speech were not protected under the First Amendment because they were ‘integral to criminal conduct’ in intentionally harassing, intimidating, or causing substantial emotional distress to V.B. . . . . In the limited context of 18 USC § 2261A, Osinger’s speech is not afforded First Amendment protection for the additional reason that it involved sexually explicit publications concerning a private individual.” Id. at *7.

Of Note: Hidden amongst the big constitutional fight is a troubling holding of broad application: a denial of acceptance of responsibility. Id. at *7. Osinger was denied two-offense levels off for acceptance, even though he argued he went to trial only to preserve his constitutional challenge to the statute. Id. at *7. In upholding that denial, the Court relies heavily on defense counsel’s characterization of the evidence at trial. Id. at *7. The Court also emphasizes Osinger’s lack of contriteness, quoting equivocal acceptance of responsibility from his counsel (it appears). Id. at *8 (“Here, Mr. Osinger said and did things out of anger.”) 

   If you want to navigate those narrow straits of preserving an appellate issue through trial, while claiming acceptance, read Osinger. It is a sobering reminder that counsel’s actions can jeopardize acceptance eligibility.

How to Use: Concurring, Judge Watford would also uphold the statute against the as-applied challenge. Id. at *9 (Watford, J., concurring). His First Amendment analysis is nuanced, however, and emphasizes that this case involved both speech and unprotected non-speech conduct. Id. at *12. It is a thoughtful discussion, carefully tailored to the facts before the Court. 

  Judge Watford ends with an observation that may be helpful in future challenges: “It’s unclear whether this [more rigorous First Amendment] standard, [that applies when a defendant is doing nothing but exercising the right of free speech] would apply in a § 2261A prosecution in which the defendant caused someone substantial emotional distress by engaging only in otherwise protected speech. That is a question whose resolution we wisely leave for another day.” Id. at *13 (emphasis added).

                                               

For Further Reading: More than crack resentencing, probably more than commutation, the retroactive application of the minus-two level reduction in drug cases could have a profound impact for our incarcerated clients. In the recent Commission hearing, DOJ offered a disappointing “compromise” position that would limit retroactive application. For two critiques of DOJ’s position, see Prof Berman's blog here. 

  And for ED Penn. AFPD Sarah Gannet’s compelling testimony, see here.  Sarah did us all proud - make sure to thank her and the Sentencing Resource Counsel for their hard work on a righteous cause.

First Amendment logo from http://cojmc.unl.edu/firstamendment/funfacts.php

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

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