Case o' The Week: Third Time Lucky - Forrester, Conspiracies and Sentencing

If at first you don't succeed, try, try again.

And again. United States v. Forrester (III), No. 09-50029, __ F.3d __, (9th Cir. July 30, 2010) (Ord. & amend. op.), decision available here.

Players: Nice win rewards dogged litigation for former San Diego AFPD Ben Coleman (now of Coleman & Balogh, LLP).

Facts: This is the third published opinion on the Forrester case. Forrester I gave us some bad Fourth Amendment law on searches of IP addresses. See blog here. Forrester II gave us some bad law on wiretaps. See blog here. This latest decision is a revision of Forrester II, and gives us some good law on conspiracies.

Forrester was involved with a big ecstasy lab and represented himself in a federal trial. Slip Op. at 10920. He was misinformed of the stat max by the district judge during the Faretta hearing. Id. On his first round in the district court, he was sentenced to thirty years after being convicted at trial. Id. at 10921.

In Forrester I, the Ninth found that the defendant had not knowingly waived his right to counsel because of this mis-advisement; the case was remanded and Forrester entered a conditional guilty plea. Id.

At resentencing, a temporary amendment to USSG § 2D1.1 created a dramatically higher ecstasy base offense level. Id. at 10942. Forrester argued against this higher sentence based on a conspiracy end date that was not admitted in the plea agreement. Id. The district court rejected this argument, and gave him thirty again. Id. at 10921.

Forrester appealed again. Judge Milan Smith issued an opinion on January 5, 2010 (Forrester II); on July 30 the panel withdrew that opinion and issued a new one (Forrester III). Forrester III is the subject of this blog entry.

Issue(s): (Among many): “Forrester argues that subjecting him to a heightened sentence based on a conspiracy end date that was alleged in the indictment but not admitted in the plea agreement was improper.” Id. at 10942.

“Because the end date of the conspiracy was not pled to or found by a jury, this case presents a novel issue for this court: whether the end date of a conspiracy can be treated as relevant conduct, which in turn will determine which Guidelines version applies.” Id. at 10943-94.

Held: “We agree [with Forrester].” Id. at 10942. “[B]ecause the Guidelines clearly, if not explicitly, indicate that the end date of an offense is in a category of its own for ex post facto purposes, which seems to preclude treating the end date as relevant conduct, U.S.S.G. § 1B1.11 n.2, and certainly precludes using relevant conduct to determine which Guidelines to apply, id., we remand to the district court for resentencing under the November 2000 Guidelines.” Id. at 10946 (emphasis in original).

Of Note: Forrester is a sentencing wonk’s dream, wrestling with fine distinctions between elements, relevant conduct, and ex post facto concerns. Id. at 10943-44. This esoteric fight has a very real impact, though: this win over the guidelines’ version means a difference of five to fifteen years in prison. Id. at 10946 n.12. Moreover, it is not an infrequent issue. The Sentencing Commission (almost always) ratchets up, and it is a frequent fight in conspiracy cases on whether to use older, less-harsh guidelines.

Consider, for example, a conspiracy to commit mail fraud and the pre-2002 § 2F1.1 (fraud) guideline, which had some better loss calculations for the defense. The Forrester rule on the "end date of the conspiracy" could make a big difference in that setting. Similarly, as steroid guidelines get “pumped up,” we may be looking to Forrester to hook back to better calculations in the halcyon pre-BALCO days.

How to Use: Tucked away in a Forrester footnote is a handy quote for Guideline fights: “To the extent there is any ambiguity as to whether the end date can be used to justify the application of a harsher Guidelines version, we must tend toward a resolution that protects the defendant’s established constitutional rights. Cf. United States v. Santos, 128 S. Ct. 2020, 2025 (2008) (‘The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.’)” Id. at 10946 n.12.

For Further Reading: For a thoughtful and critical analysis of Forrester I and its disappointing Fourth Amendment analysis, see Schuyler Sorosky, United States v. Forrester: An Unwarranted Narrowing of the Fourth Amendment, available here.



Image of "Third Time's a Charm" Tattoo from http://cinematicroom.com/asin/B000TGKXFW/


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org
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Case o' The Week: Can't See the Forrester for the Trees - Constitutional Right to Knowingly and Intelligently Reject a Deal

You have a constitutional right to an attorney who doesn't screw-up the description of a plea agreement. You have a constitutional right to be correctly advised of statutory maximum exposures when you make a decision to represent yourself. Do you have a constitutional right to be properly advised of the statutory maximum when you reject a plea agreement? An interesting question, and one that is neatly sidestepped by the Ninth Circuit in the latest iteration of a hard-fought case. United States v. Forrester, __ F.3d __, 2010 WL 10984 (9th Cir. Jan. 5, 2010), decision available here.

Players: Hard-fought case by former San Diego AFPD Ben Coleman.

Facts: Forrester was charged with conspiracy to manufacture and distribute ecstasy from a big L.A. lab. Id. at *1. He went pro per, and survived a Faretta hearing – but was advised of the wrong stat max during the hearing. Id. at *5. Five days before trial, he and his co-d were offered a package deal that capped their exposure at twenty years. If rejected, the government would file a § 851 enhancement that increased Forrester’s stat max to 30. Id. The pair rejected the deal, were convicted at trial, and Forrester got 30. Id. The Ninth remanded on the first appeal, finding a defective waiver of counsel because of the misadvisement of the stat max. Id.

On remand, Forrester moved the district court to strike the § 851 enhancement because he had been mis-advised of the potential penalties at the Faretta hearing. Id. The district court refused, Forrester pleaded guilty, and got thirty - again. Id.

[Ed. Note: Thirty again? Forrester could have presumably insisted on another trial on remand, at considerable expense in resources. To again max him out at thirty years despite the fact he pleaded guilty the second round - seems bad form. This case was remanded yet again by the Ninth for sentencing errors; hopefully Mr. Forrester will come in below thirty this third time around].

Issue(s): (Among many): “Forrester argues that, once a plea offer has been made, a defendant has a right to be accurately informed about his potential exposure before deciding to reject it. He relies on Nunes v. Mueller, a habeas case in which an attorney misinformed the defendant that he had received a plea offer for 22 years as opposed to 11 years . . . . In Nunes, we suggested that the right to make an informed decision about a plea is a corollary to the right to voluntarily and intelligently plead guilty.” Id. at *6.

Held: “Nunes was based on the well-founded constitutional right to effective assistance of counsel . . . . For Nunes to apply here, we would have to find that Forrester suffered a similar unconstitutional deprivation of rights that tainted his rejection of the plea offer. We decline to do so on these facts. Though a defendant may have a right to voluntarily and intelligently reject a plea offer, we need not reach that question in this case because any error was harmless.” Id. at *6.

Of Note: Forrester bristles with issues. One holding of first impression in the opinion relates to wiretaps. Author Judge M. Smith holds that the government can redact portions of a wiretap affidavit and refuse to give redacted sections to the defense, if the government is willing (and able) to disclaim reliance on those redacted portions. Id. at *8-*9. It is another disappointing blow in the sisyphian task of Title III litigation, but note that the holding is narrow – if the government refuses to disclose a portion (typically, relating to an informant), it can’t rely on information in that portion of the affidavit to defend against a necessity or Franks challenge.

How to Use: Is there a constitutional right to be informed of the details of a plea – and the risks in rejecting it? The panel artfully dodges that question in Forrester, because the co-D rejected the deal anyway and it was a package (hence harmless error).

Judge M. Smith agrees that there is a Sixth Amendment right to effective assistance of counsel, that includes a duty to convey and correctly advise regarding plea offers. Id. at *5-*6. But Forrester presented the question in more stark terms – because the defendant was pro per, the Sixth Amendment wasn’t in play. This is an interesting issue to bear in mind when stuck as advisory or “stand-by” counsel for pro per defendants: maybe there is a constitutional obligation for the court, or the government, to correctly advise a defendant about the benefits and consequences of a plea? And how does that jive with Rule 11, which prohibits a district judge from knowing about the details plea discussions before trial? May be a fertile field for future challenges.

For Further Reading: Forrester II familiar? That’s because Forrester I got a good deal of press for creating new (and bad) Fourth Amendment law on searches of IP addresses. See 512 F.3d 500 (9th Cir. 2008). For a blog on the unfortunate first Forrester, visit the posting, "Finding Forrester" here.



Image of the Hon. Milan D. Smith from http://georgewbush-whitehouse.archives.gov/index.html . Image of the poster from the movie, "Finding Forrester," from http://www.impawards.com/2000/finding_forrester.html

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

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Case o' The Week: Finding Forrester, Fourth Doesn't Protect IP Addresses

Consider as you read this blog that the fact that you visited this IP address isn't protected by the Fourth Amendment -- so says the Ninth in a disappointing cyber law decision. United States v. Forrester, __ F.3d __, Slip. Op. 8069 (9th Cir. July 6, 2007), decision available here. Forrester is another illustration of how bad analogies between old and new technologies are creating a new line of bad Fourth Amendment law.

Players: Judge Fisher authors, bull-dog Ben Coleman and defense counsel Mike Crowley behind yet another creative defense challenge.

Facts: During an Ecstasy investigation, the government received court permission to install a “pen register analogue” on co-defendant Alba’s computer. Slip Op. at 8075. The gadget (or software) captured the “to/from addresses of Alba’s e-mail messages, the IP addresses of the websites that Alba visited and the total volume of information sent to or from his account.” Id. at 8075. This information was used in later search warrant applications. Id. at 8088-89. After a trial, Alba and Forrester were convicted and both got 30 years custody. Id. at 8076.

Issue(s): “Alba contends that the government’s surveillance of his e-mail and Internet activity violated the Fourth Amendment and fell outside the scope of the then-applicable federal pen register statute.” Id. at 8081.

Held: “We hold that the surveillance did not constitute a Fourth Amendment search and thus was not unconstitutional. We also hold that whether or not the computer surveillance was then covered by the then-applicable pen register statute – an issue that we do not decide – Alba is not entitled to the suppression of any evidence (let alone reversals of his convictions) as a consequence.” Id. at 8082.

Of Note: The Ninth is slowly building a body of computer Fourth Amendment law. Ironically (for the Circuit home of Silicon Valley) much of this law is wrong. Here, Judge Fisher analogizes the capture of e-mail addresses, IP addresses of websites visited, and the volume of information transmitted, to old pen register searches (which do not implicate the Fourth because pen registers don’t reveal content). Id. at 8082, 8084. This analogy doesn’t work. For example, call my office from a phone and a pen register would catch you dialing my number – but the feds would have no clue about the content of our discussion. Visit IP address 206.252.132.24, however, and the content viewed in your visit is obvious – any trip to HighTimes.com is a drug trip (pun intended). If you download lots of pages from this IP address (by clinking links), then you’re really interested in 420.

Another way to think about IP addresses is to consider their evidentiary ramifications. It’s a safe bet that the Ninth would allow the content of a web page detected from an IP address as support for probable cause for a search warrant. This inevitable use of IP addresses illustrates that the technology captures far more than mere phone register data. No matter how you slice it, IP addresses aren’t just phone numbers – they are content rich, and are a far cry from simple pen register data. Stanford Cyberlaw Clinic, wake up – here’s a great case for an en banc amicus effort.

How to Use: Thankfully, Forrester doesn’t decide several other digital Fourth abominations: the capture of URL pages, id. at 8084 n.6, or imaging and keystroke captures, id. at 8086. If your case involves computer or internet seizures, hire a consultant-geek. This is an area of evolving (and erroneous) Fourth Amendment law, and simply relying on our understandings of old technologies perpetuates errors the government exploits, and the Ninth adopts.

For Further Reading: This decision quickly caught the attention of the press. See SF Chronicle article here. Combine the fact that the Fourth now doesn’t protect IP addresses, with the feds’ new ISP data retention policies, and we can kiss our privacy rights goodbye. See article here. How is a normal citizen supposed to protect their Fourth Amendment privacy rights in an internet age? Forget the constitution – pony up for a proxy server. See Proxify website here.


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


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US v. Juvenile male, No. 06-30587 (7-5-07). The 9th, per curiam, vacates the district court's decision to transfer a juvenile defendant because of clearly erroneous factual determinations. This is the second time (the first remand was because the court felt it had to consider that the defendant was guilty; such a conclusion is discretionary). In this second proceeding, the defendant again faces a charge of 2nd degree murder. He was over 15 at the time, it was a violent felony, but the transfer revolves around whether the transfer would be in the interests of justice. The court made a factual ruling, in transferring, that the defendant had never been a victim of domestic violence which was completely wrong. Moreover, the court made some judicial observations regarding other juveniles and other programs in BOP that were outside the record and inappropriate. The case gets remanded yet again.

Congratulations to AFPD David Ness of the Federal Defenders of Montana.

US v. Ensign, No. 06-10447 (7-5-07). The 9th affirms the district court's denial of an out-of-district lawyer to appear pro hac vice in this failure to file case. The counsel had been appointed as co-CJA counsel under a catch-all provision given the complexity of the case, but certain Bar improprieties were brought to the court's attention by the government. The court held a sealed hearing as to the proceedings taking place in the State Bar of Arkansas. The court then relieved counsel of his co- CJA appointment. He then sought appointment pro hac vice. The court denied this request, citing the possibility of Bar discipline in Arkansas and other reasons. The 9th affirmed the denial as not being an abuse of discretion. Moreover, the Sixth Amendment did not compel appointment because the defendant was represented by court appointed counsel, and she was not entitled to counsel of her choice when there is appointed counsel irrespective of the questions raised by out of district counsel.

US v. Forrester, No. 05-50410 (7-6-07). A pretty simple rule can be derived from this Farretta case: self-representation must knowingly and intelligently waive counsel, which includes being informed of the charges, sentence, and the dangers of self-representation. The district court missed two out of three. The court failed to inform the defendant of the "nature of the charge" (conspiracy) and misstated the sentence he was facing. The 9th (Fisher joined by Clifton and Smith) easily dismissed the government's harmless error argument, and vacated and reversed. As for the co-defendant, the 9th affirmed his conviction, holding that there was no expectation of privacy or searches in the goverment's computer surveillance of the IP addresses. Content was not searched; just addresses where the messages were sent.

US v. Ruiz-Chairez, No. 05-10226 (7-6-07). The 9th (Schroeder joined by Trott and Moskowitz) held that 2L1.2 (illegal reentry sentence) does not violate the equal protection clause. The Congress can act to enforce immigration laws; and the increasing of a sentence for prior offenses has a rational basis. The 9th noted that other offenses are punished less severely but writes that the argument misses the point, because this heightened sentence is not irrational.

Case o' The Week: The First Plus the Fourth Plus the Fourth Plus the Ninth = 0, Arnold

It was a grim week for the Fourth Amendment. In Virginia v. Moore, __ S. Ct. __, 2008 WL 1805745 (Apr. 23, 2008), the Supreme Court held that "warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution, and that while States are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment's protections." Id. at *8, decision available here. In other words, under the Fourth Amendment a cop can search you for a petty offense that is merely cite-able, not arrest-able, under State law.

Not to be outdone, the Ninth issued an extraordinarily disappointing decision that takes chunks out of both the First and Fourth Amendments in one fell swoop. See United States v. Arnold __ F.3d __, 2008 WL 1776525 (9th Cir. April 21, 2008), decision available here. In Arnold, the Ninth gives carte blanche to Customs for laptop searches at international airports -- without even "reasonable suspicion." This brief decision on some tremendously important issues merits a much-closer look by an en banc panel.

Players: Great order by D.J. Dean Pregerson is reversed by Judges O’Scannlain and Milan Smith.

Facts: Michael Arnold arrived at LAX after spending three weeks in the Philippines. Id. at *1. After Customs discovered his laptop it ordered him to fire it up. Id. A Customs agent found a digital picture of two nude women (?!?), which merited a call to a supervisor and a more extensive search – ultimately producing child porn. Id.

Arnold was charged with transporting and possessing child porn. CD Cal. District Judge Dean Pregerson suppressed the search in a very thoughtful order. See United States v. Arnold, 454 F.Supp. 999 (C.D. Cal. 2006) (ord.) The government appealed.

Issue(s): “We must decided whether customs officers at Los Angeles International Airport may examine the electronic contents of a passenger’s laptop computer without reasonable suspicion.” Id. at *1.

Held: “[W]e are satisfied that reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border.” Id. at *4.

Of Note: This short opinion churns out many sweeping constitutional holdings with little or no analysis: it cries out for en banc review.

One Fourth Amendment holding is that there isn’t an expectation of privacy in a laptop akin to that in an office. Id. at *5. This assertion will be startling news for the hordes of Silicon Valley folks flying from the Ninth Circuit to the Pacific Rim. Turns out they don’t have an expectation of privacy for the location of Google’s new server farm, the I.P. of Intel’s latest chip design, or the share price for the Microsoft-Yahoo deal, if that data is on their laptop – though they do if the data is in their office. Who knew? As was true in Kelley and Forrester, in Arnold the jurisprudence of the Ninth is decades behind the realities of the most technologically-advanced Circuit.

Moreover, the decision doesn’t grapple with the very real First Amendment concerns at issue when Customs agents rummage through intensively private laptop data. Instead, it summarily adopts a particularly unpersuasive Fourth Circuit (?!?) decision, Ickes. Id. at *6. In the Ninth, the First deserves more than two paragraphs parroting the Fourth.

How to Use: A ND Cal AUSA once candidly admitted that she had Customs troll for single men coming back from Asia with laptops at SFO – these passengers earn an automatic referral to Secondary and an order to boot-up. Since the Ninth guts First and Fourth Amendment protections in Arnold, what say we try the Fifth Amendment? Defenders in districts with international airports should start generating stats and seeking discovery for an Equal Protection challenge on the methodology used by Customs for these laptop searches.

Also, what happens when a passenger is ordered to reveal a password to enable a laptop search? (Like a traveler who believes more in the protections of TrueCrypt (right), that of the Constitution). Isn’t the compelled disclosure of a password “testimonial” – and therefore a Miranda disclosure? At least one magistrate thinks so. See In re Boucher, 2007 WL 4246473 (D. Vt. 2007) (“Entering the Password is Testimonial. Compelling Boucher to enter the password forces him to produce evidence that could be used to incriminate him. Producing the password, as if it were a key to a locked container, forces Boucher to produce the contents of his laptop.”)

For Further Reading: An informal survey by the Association of Corporate Travel Executives revealed that almost 90% of its members were not aware that Customs could search their laptops and confiscate them without reason. See New York Times article here. This is probably why the Association filed an amicus brief in support of Arnold, as did Stanford’s Electronic Frontier Foundation. See Times article here. Some heavy-duty amicus support, for a privacy interest not even acknowledged in the Arnold decision . . .


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

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Case o' The Week: Bad Cops Make Good Law, Quon -- Fourth Amendment Privacy Interests in Text Content

Ever notice that cops behaving badly create the best defense decisions? For example, cops beat the daylights out of Rodney King, get convicted, and generate the Supreme Court's seminal case on sentencing departures. Koon v. United States, 518 U.S. 81 (1996). Prison guards terrorize inmates, are convicted, and generate the seminal decision on bail pending appeal. United States v. Garcia, 340 F.3d 1013 (9th Cir. 2003). And now, in Quon, a SWAT cop uses his work pager to send sexually-explicit texts (and lots of them), and generates the nation's leading decision on Fourth Amendment protections in digital content. Quon v. Arch Wireless, __ F.3d __, 2008 WL 2440559 (9th Cir. June 18, 2008), decision available here. Keep up the good work, Lads and Lassies in Blue.

Ribbing aside for a moment, Quon is an important and well-written decision that merits a very close read by anyone one interested in privacy issues, Fourth Amendment protections, and how those concerns play out in the new digital era.

Players: Another great decision by Judge Wardlaw, joined by Judge Pregerson and District Judge Ronald Leighton.

Facts: SWAT Cop Quon was given a pager by the City of Ontario, with an allotted number of characters. Id. at *1. He repeatedly exceeded his allotment and paid for the overages. Id. at *3. No one read the texts when this happened. Id. The cop in charge of the pager account got tired of billing Quon personally for the overages, so the Police Department got transcripts of Quon’s texts from service provider Arch Wireless. Id. at *3-*4. Turns out the texts included personal, sexually-explicit messages. Id. at *4. Quon and others to whom he texted and from whom we was texted sued Arch, the City, and police supervisors. Quon appealed (civil) Rule 59 motions from the federal district court. Id.

Issue(s): “Do users of text messaging services such as those provided by Arch Wireless have a reasonable expectation of privacy in their text messages stored on the service provider’s network?” Id. at *10.

Held: “We hold that they do.” Id. “[U]sers do have a reasonable expectation of privacy in the content of their text messages vis-a-vis the service provider.” Id. at *11.

Of Note: Quon is rich with holdings that will keep law reviews busy for years. Judge Wardlaw pragmatically analogizes a text message (and, by extension, e-mail) to snail mail. The Fourth doesn’t protect the address on an envelope, but does protect the contents of the letter within. Id. Similarly, the “address” of a digital message (the phone number or e-mail address) is not protected by the Fourth, but the content of the message is. Id.

(Aside: OK, bring on the anonymous comments questioning why this snail mail analogy is apt in Quon, but the analogy of a computer to a briefcase is not persuasive in Giberson. I'll respond and explain. Here's a hint: in Quon, Judge Wardlaw correctly focuses on the privacy interest in content. In Giberson, Judge Wallace (incorrectly, in our view) focuses on the 'storage' aspect of a computer at the expense of many other characteristics of a computer that raise privacy concerns. Keep an eye out for the Giberson en banc petition).

Note also that it isn’t only the subscriber of the pager that has a privacy interest in Quon – so do the others who texted him and who received texts from him! Id. at *12 (holding that other plaintiffs who received and sent the texts had a Fourth Amendment privacy interest).

There are, admittedly, some caveats. Here, because of some fact-specific practices Quon wasn’t on notice that his texts would be read. He thus had an expectation of privacy. On different facts that expectation may not be the same. Nonetheless, Quon will be a cornerstone case for Fourth Amendment litigation in the digital age.

How to Use: Quon’s rule is that the content of messages – phone calls, letters, e-mails or texts – are protected by the Fourth Amendment. In Quon, the content was improperly obtained from the text/pager service provider. In another case, the content may be improperly obtained by a cop’s warrantless search of an iPhone, Blackberry, P.D.A., or pager, seized during an arrest.

(We think) the Fourth Amendment prohibits warrantless searches of electronic devices recovered from a person during an arrest. The Northern District of California's own Judge Illston so held in United States v. Park, 2007 WL 1521573 (N.D. Cal. May 23, 2008) (ord.). The reasoning of Quon proves her both correct, and prescient.

Our challenge after Quon is to push the definition of Fourth Amendment “content.” E-mails and pager text messages are protected content. Subject lines in e-mails should be considered content as well, and instant messages too. IP addresses and URLs? An IP address isn’t “content,” thanks to the poorly-reasoned Forrester decision. See blog here. But, as even Forrester concedes, a URL might be. Id.

For Further Reading: Those clever digital-privacy gurus at the Electronic Frontier Foundation nailed Quon as a Big Case the minute it hit the web. For Jennifer Grannick’s very thoughtful dissection of the decision – including its many holdings and broad implications – visit her post here. As Grannick astutely opines, “Wow.”

The decision itself relies heavily on a law review article, Orin S. Kerr, A User’s Guide to the Stored Communications Act, and a Legislator's Guide to Amending It, 72 GEO. WASH. L. REV. 1208, 1209-13 (2004). Professor Kerr has blogged the Quon decision here. As the good prof explains,

The reasoning [in Quon] is broad: It pretty clearly indicates that there is a default of a reasonable expectation of privacy in not only text messages but also e-mails. It also further cements the emerging content/non-content distinction that I have been expecting courts to grab on to for some sort of certainty in this area.

Id.

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


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U.S. v. Morales, No. 09-30047 (1-5-10). The 9th holds that the district court is without jurisdiction to reduce a supervised release revocation sentence because the guideline range for the original crack offense was reduced. Simply put, lowering the crack guideline does not help lowering the supervised release revocation sentence. The 9th (Kozinski joined by Fisher and Paez) find that a reduction of sentence can be considered when the two prongs of 3582(c)(2) are met: (1) the lowering of applicable guidelines; and (2) it is consistent with the Sentencing Commission's applicable policy statements. The defendant here met the first prong, with the crack guidelines having been lowered; but failed to meet the second prong because the applicable note of 1B1.10(a)(1) note 4 states that the reduction of a SR term is not called for. Under 3582, the policy statements control in the second prong of the reduction of sentences because of a lowering of guidelines.

U.S. v. Forrester, No. 09-50029 (1-5-10). In an appeal from a conviction and 30-year sentence for ecstasy drug offense, the 9th (M. Smith joined by Hall and T. Nelson) affirm the conviction but remand for a new sentencing. On the conviction, the defendant had previously gotten relief because the 9th had found that he had unintelligently waived counsel. Now, on this plea and sentence, defendant argues that he deserves to be afforded the original plea terms (max of 20 years). The 9th discusses this interesting point of whether the defendant has a right to voluntarily and intelligently to reject a plea, but sidesteps it because any error was harmless. The defendant was offered a deal that the co-defendant had to accept as well, and the co-defendant did not (he was already facing life). The 9th also found that in regards to the conviction, the defendant did not have the right to challenge the applicability of the drug as a Schedule I as opposed to a Schedule III. The defendant can challenge temporary designations of scheduling designation as to controlled substances but not permanent ones. The 9th also rejects various challenges to the wiretap evidence. Relief is granted in the form of a remand as to sentencing so that the district court can determine the end of the conspiracy for relevant conduct purposes. The government has to prove that the conspiracy extended until after the temporary scheduling amendment became effective that raised the equivalency penalty from 50:1 (marijuana to ecstasy) to 500:1. The court should also make specific findings as to various factual challenges as they relate to sentencing.