Case o' The Week: One Crime, Two Definitions - Stat Rape in Ninth, Zamorano-Ponce

The generic federal definition of statutory rape, used to determine whether a prior state conviction qualifies in a federal action, requires a mens rea of “knowingly” in the Ninth Circuit.

The generic federal definition of statutory rape, used to determine whether a prior state conviction qualifies in a federal action, does not require a mens rea of “knowingly” in the Ninth Circuit.

United States v. Raul Zamorano-Ponce, 2012 WL 5395159 (9th Cir. Nov. 6, 2012), decision available here.

Players: Decision by Judge Graber, joined by Judges Alarcón and Berzon.

Facts: Zamora-Ponce pleaded guilty to illegal reentry. Id. at *1. In 2003, he pleaded guilty to “rape of a child in the third degree,” in violation of Revised Code of Wash. § 9A.44.079. Id. He was removed after his sentence, reentered, and was caught. Id. He pleaded guilty to illegal reentry pursuant to a written plea agreement. Id. Over defense objection, the district court treated the rape prior as a + 16 offense level, categorical “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii).

Issue(s): “The question before us is whether a prior conviction for ‘rape of a child in the third degree,’ in violation of [Washington state law], qualifies as a ‘crime of violence’ for the purpose of the sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii).” Id.

Held: “Reviewing de novo, United States v. Espinoza-Morales, 621 F.3d 1141, 1144 (9th Cir. 2010), we answer ‘yes’ and, therefore, affirm the sentence.” Id.

Of Note: This is short, but unfortunately potent, opinion. In Zamora-Ponce, Judge Graber distinguishes and thereby limits the Ninth’s en banc decision in Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en banc). You’ll recall that in the terrific (unanimous!) Estrada-Espinoza opinion, Judge Thomas logically looked towards federal statutes for a definition of the “generic” crime of statutory rape. See blog here. The definition that came out of Estrada-Espinoza required a mens rea of “knowingly” for “generic” statutory rape. 546 F.3d at 1152. 

Not so here, explains Judge Graber. Estrada-Espinoza does not control this appeal, because Estrada-Espinoza discussed stat rape in the context of an agg felony in immigration law. By contrast, at issue in Zamora-Ponce was “crime of violence” in the context of the illegal reentry guideline. 2012 WL 5395159, *3.

Why does that make a difference to the generic federal definition of statutory rape? This is conspicuously not explained, in Zamora-Ponce’s lonely paragraph distinguishing Estrada-Espinoza. Id. 

So what is the Taylor generic definition of statutory rape in the Ninth? Turns out that it depends on whether an immigration agg felony is at issue, or a guideline “crime of violence” is under attack. Two generic definitions for one crime, two different mental states required for one generic offense, two conflicting lines of law, all within one Circuit – an interestingly chaotic state of affairs.

How to Use: The Ninth has also toyed with a four-year age-difference requirement for the definition of statutory rape. See United States v. Gonzalez-Aparcio, 663 F.3d 410, 431 (9th Cir. 2011). Is that age difference part of the generic stat rape definition? Still an unresolved question after Zamora-Ponce. 2012 WL 5395159, *2. The Washington state statute at issue here required the four-year age difference, so that question wasn’t reached by this panel. This means that the age-difference component of the federal definition is still fair game for the defense challenging “crime of violence” guideline enhancements in illegal reentry sentencing.  

                                               

Steven Hubachek

For Further Reading: Sad to report that our friend and colleague Steve Hubachek is leaving the San Diego Federal Defender’s office to go into private practice.

 “Huba” has been in the thick of dozens interesting and novel defense challenge over past couple of decades – from Apprendi and the drug statutes (Buckland), to grand jury instructions (Navarro-Vargas), to the timing of Giglio disclosures (Ruiz), to the formidable Aguila-Montes de Oca litigation now destined for the Supremes. 

Passionate, aggressive, wicked smart and enormously creative, Hubachek has been a great friend of the defense bar and an unflagging champion of our indigent clients. We’ll miss his loud Hawaiian shirts, loud punk music, and loud opinions, and wish him much luck in his new gig. 

For a small taste of the big mischief Steve has wrought, visit the collection of blog postings here.

Image of Janus from http://www.redstate.com/2012/02/27/with-obama-endorsement-machinists%E2%80%99-union-bosses-declare-love-for-janus%E2%80%A6/

Image of Steve Hubachek from http://www.oyez.org/sites/default/files/imagecache/300px_wide_profile_image_v2/advocates/h/s/steven_f_hubachek/steven_f_hubachek.jpg

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

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Case o' The Week: Godot Arrives (and We'd Rather Have Kept Waiting) - Aguila Montes de Oca En Banc

Seventeen months after oral argument, the Ninth Circuit has finally delivered its en banc decision in Aguila-Montes de Oca. Judge Berzon gives us a candid summary of the long-awaited majority decision.

"In adopting its fact-based approach, the majority overrules our circuit’s controlling precedent; dismisses as 'dicta' and 'illustrative' the Supreme Court’s clear guidance on this very question, . . . misinterprets Taylor and Shepard; ignores the constraints of the Sixth Amendment, as developed in the Apprendi line of cases; misapprehends several essential characteristics of our nation’s institutions of criminal justice; and refuses to follow the limited modified categorical approach adopted by every circuit that has addressed the question since the Supreme Court made the proper approach lucidly clear in the last few years—in particular, since Johnson and Nijhawan."

United States v. Aguila Montes de Oca, 2011 WL 3506442 (9th Cir. Aug. 11, 2011) (en banc), *28 (Berzon, J., concurring in judgment). Decision available here.


Players: Hard-fought victory for the client of San Diego AFD’s Steve Hubachek and Vince Brunkow. Majority decision by Judge Bybee (below right), dissent by Judge Berzon (above left).

Facts: Aguila was convicted of burglary in California. Id. at *25. Unlike the “generic” federal definition of burglary, the California offense does not require “unlawful or unprivileged” entry into the dwelling. Id. at *26. He was later convicted of illegal reentry, and given a ten year sentence. Id. at *2. The district judge held that the burg conviction qualified as a “crime of violence” under the guidelines, and increased the sentence by 16 offense levels. Id.

The Ninth (ultimately) reversed, holding that its decision in Navarro-Lopez meant that California burgs were categorically barred as “crimes of violence,” because the state statute was missing an element of the generic offense. Id. at *3. The case went en banc, and was argued (beautifully, by Mr. Hubachek) in March of 2010.

Issue(s): “We granted rehearing in this case to reconsider the rule we adopted in Navarro-Lopez . . . , to govern application of the modified categorical approach . . . . In Navarro-Lopez, we stated that the modified categorical approach applies when the particular elements in the crime of conviction are broader than the generic crime. We then declared: ‘When the crime of conviction is missing an element of the generic crime altogether, we can never find that a jury was actually required to find all the elements of the generic crime.’” Id. at *1 (citations omitted).

Held: “[W]e conclude that Navarro-Lopez’s ‘missing element” rule is not required by the Supreme Court’s modified categorical approach established in Taylor.’” Id. at *2. “In sum, Navarro-Lopez’s ‘missing element’ rule is overruled, as are any subsequent cases to the extent that they relied on that rule and are inconsistent with the revised modified categorical approach discussed here. In any case requiring the application of Taylor’s categorical approach, in the event that we determine that the statute under which the defendant or alien was previously convicted is categorically broader than the generic offense, we may apply the modified categorical approach. Under the modified categorical approach, we determine, in light of the facts in the judicially noticeable documents, (1) what facts the conviction necessarily rested on (that is, what facts the trier of fact was actually required to find); and (2) whether these facts satisfy the elements of the generic offense.” Id. at *21.

Of Note: A one-vote majority killed the great Navarro-Lopez rule and line of cases. Judge Berzon’s "dissent" (one vote shy), is a masterpiece that – shall we say, “takes issue” – with Judge Bybee’s majority view. Id. at *27. With great detail, Judge Berzon shows why controlling Supreme Court authority (and the law of other circuits) precludes the majority’s novel rule. See id. at *29-*32 (discussing Supreme’s Nijhawan and Johnson cases). We predict another white quill for Hubachek: if the Ninth doesn’t correct this decision with super en banc review, watch for a cert. grant soon.

How to Use: The defense bar lost the war (for now), in Aguila Montes de Oca, but read the opinion closely – Aguila won his own battle. Id. at *21-*27. Applying the modified categorical analysis to Aguila’s burg, a different majority concludes that it does not qualify as a generic burglary. Id. at *26. (In fact, we predict that precious few Cal burgs will qualify under this modified categorical analysis).

This point bears much emphasis: Aguila Montes de Oca does not hold that a Cal burg, or statutory rape, or kidnaping, or escape, any other state offense now automatically qualifies as a federal generic crime. The en banc decision instead holds that the district court must now undertake a modified categorical analysis for a certain class of state convictions. This new analysis will use a novel standard created by Judge Bybee (“what facts the conviction necessarily rested on”) that cries out for defense challenge and mischief-making. Let’s oblige.

For Further Reading: As wisely crooned by Mr. Garcia, “lately it occurs to me what a long, strange trip it’s been.”

For a survey of the Ninth’s strange Taylor trip, hit this link for years of sentencing summaries on the categorical and modified categorical analysis. (Practice tip: This compilation is a useful flag for the many future Aguila Montes de Oca battles that we’ll be fighting).


Image of Godot poster from http://www.rangzen.net/2010/03/19/waiting-for-mangtso-iii/

Image of the Honorable Judge Marsha Berzon from http://www.c-spanvideo.org/marshaberzon

Image of the Honorable Judge Jay Bybee from http://abovethelaw.com/stephen-reinhardt/

Image for the Grateful Dead T-Shirt from http://www.allposters.com/-sp/Grateful-Dead-GD-Truckin-Posters_i3443450_.htm


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



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Case o' The Week: Ninth's blow to Kimbrough, Gonzalez-Zotelo and fast-track disparities

A disappointing decision authored by Judge Barry Silverman (left) deepens a circuit split on the scope of a district court's sentencing discretion after Kimbrough. See United States v. Gonzalez-Zotelo, __ F.3d __, 2009 WL 37144 (9th Cir. Jan. 8, 2009), decision available here.

Players: Hard-fought appeal by San Diego AFPD Steve Hubachek.

Facts: Gonzalez-Zotelo was denied a fast-track offer because of a prior conviction for lewd & lascivious acts with a child. Id. at *1. Earlier on the day he was sentenced, another illegal-reentry defendant – with armed robbery priors – was sentenced by the same judge to thirty months on a fast-track deal (about half of Gonzalez-Zotelo’s guideline range). Id. Unable to rationalize these disparities, the district judge sentenced Gonzalez-Zotelo to thirty months. Id. The government did not object to the lower sentence on this basis, then took this appeal. Id. at *2.

Issue(s): “The government argues that it was unreasonable for the district court to base its sentencing decision solely on disparities between a defendant who did not receive a fast-track plea offer and a defendant who did.” Id.

Held: “Because the district court erred when it imposed a lower sentence on Gonzalez-Zotelo based solely on what it misperceived to be unwarranted sentencing disparity, we vacate the sentence and remand for re-sentencing. Under our cases, the disparity in question is indeed warranted, because it is justified by Congress’s approval of fast-track plea bargaining programs.” Id. at *1.

Of Note: In Gonzalez-Zotelo, Judge Silverman places the Ninth on the wrong side of growing circuit split by rejecting the discrepancies in fast-track offers as a basis for a reduced sentence. Id. at *3. This important new rule is set forth in, respectfully, an unpersuasive decision. The opinion looks back to a pre-Kimbrough case, United States v. Marcial-Santiago, 447 F.3d 715, 719 (9th Cir. 2006), for the proposition that the government’s often-whimsical decisions on which defendant receives a fast-track offer is not a basis for a reduced sentence. Id. at *2. How Marcial-Santiago survives Kimbrough, however, is a head-scratcher. The opinion distinguishes the Supreme Court case by concluding that Kimbrough authorizes variances when a district court disagrees with a Guideline – but not Congressional policy. Id. at *3.

The biggest problem with this distinction, however, is that Congress didn’t articulate the (arbitrary) distinctions that new AUSAs concoct to deny the fast-track offer. As Hubachek has pointed out, Congress (or the Commission) said nothing about unaggravated PC § 288 crimes being ineligible for fast-track, but knife-wielding robbers being entitled to the break. The discrepancy in this case was created by the government – not Congress – and that disparity has long been a sound basis for a reduced sentence. See, e.g., United States v. Daas, 198 F.3d 1167, 1180-81 (9th Cir. 1999) (“Downward departure to equalize sentencing disparity is a proper ground for departure under the appropriate circumstances.”)

A threshold question, however, is how the government ever survived plain error review in this case? Hubachek astutely observes that when the defense is fighting plain error, a circuit split has been the kiss of death. See United States v. Miranda-Lopez, 532 F.3d 1034, 1040-41 (9th Cir. 2008) (Silverman, J.). Again, with all respect, seems tough to reconcile the Miranda-Lopez plain-error approach with Gonzalez-Zotelo. Gonzalez-Zotelo creates broad new Ninth sentencing law, deepens a circuit split, and is inconsistent with very recent law on plain error. It deserves a second look en banc.

How to Use: Because the Supremes may someday resolve this circuit split arguments based on fast-track disparities are worth preserving. A prudent approach, however, would to be to urge different bases for imposing the same sentence, on less-controversial grounds. The district court here could have broadly stated that it considered the Section 3553(a) factors, reflected on the unique facts of the prior conviction (see United States v. Sanchez-Rodriguez, 161 F.3d 556, 561-62 (9th Cir. 1998)) and imposed the lower sentence on those grounds. While the full scope of Kimbrough is being slugged-out, prudent to urge belt-and-suspender sentencing departure/variance bases.

For Further Reading: For various commentary on Gonzalez-Zotelo, visit Professor Berman’s sentencing site here.


Image of the Hon. Barry Silverman from http://www.eastvalleytribune.com/story/96288


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


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Case o' The Week: Winning the battle, losing the war - Salazar-Lopez and New Apprendi rule

Judge Clifton (center) delivers the battle to the Federal Defender of San Diego, but in a disappointing turn, gives the war to the government in a decision making new (and, we believe, incorrect) Apprendi law in the Ninth Circuit. See United States v. Salazar-Lopez, __ F.3d __, 2007 WL 3085906 (9th Cir. Oct. 24, 2007),decision available here.

Players: Righteous challenge by AFPD Carey Gorden, San Diego.

Facts: Salazar-Lopez was convicted at trial on illegal reentry charges. 2007 WL 3085906, *1. The stat-max for illegal reentry is two years, unless the alien had been removed after certain felony convictions. Id. In that event, the stat-max is ten years. Id.“The indictment did not allege that Salazar-Lopez had been previously removed subsequent to a felony conviction, nor did it allege a specific date for [his] prior removal.” Id. After trial, “Salazar-Lopez objected [to the PSR], arguing that only the two-year maximum under § 1326(a), and not the ten-year maximum provided for in § 1326(b)(1), was applicable to his case, because the facts necessary to sustain § 1326(b)(1)’s sentencing enhancement had not been charged in the indictment and proved beyond a reasonable doubt to a jury.” Id. (footnote omitted).

Issue(s): 1. Apprendi: “[F]or a defendant convicted of being a previously removed alien found in the [U.S.], in violation of [Section] 1326, we must resolve whether the dates of a previous felony conviction and of a previous removal from the [U.S.], subsequent to that conviction, must be alleged in the indictment and proved to a jury for the defendant to be subject to an increased sentence under [Section] 1326(b).” Id. at *1.

2. Standard of Review: “[W]e consider whether such an error, in a context that affects only sentencing, is subject to harmless error . . . .” Id.

Held: 1. Apprendi: “We answer that question in the affirmative.” [Apprendi requires that the date of a felony conviction and previous removal must be alleged in the indictment and proved to the jury, to trigger increased stat-max sentence.]

2. S.O.R.: “We answer that question in the affirmative, as well. Since we hold that the error here was harmless, we affirm the sentence imposed by the district court on this defendant.” Id.

Of Note: This interesting Apprendi decision requires the government to allege the dates of a prior conviction and removal to trigger an increased stat-max sentence in Section 1326 cases. This is good: AUSAs inevitably weasel around specifying priors and removals in indictments, to dodge defense challenges to both.

What’s bad – and frankly, unpersuasive – is the harmless error holding. In a new Ninth Circuit rule, Judge Clifton holds that Apprendi error at sentencing is reviewed for harmless error (instead of structural error). Id. at *4. To defend this rule, the Court (unsuccessfully) distinguishes a lead Ninth decision on challenges to the indictment, Du Bo. Id. The Court saddles Salazar-Lopez with harmless error review because his challenge came after trial, at sentencing. Id. When Salazar-Lopez went to trial, however, he faced a valid charge: one that carried a two-year max. The indictment wasn’t deficient. It properly alleged a crime (illegal reentry). As appellate guru Steve Hubachek has observed, this new Ninth rule runs directly contrary to Eleventh Circuit law. See United States v. Candelario, 240 F.3d 1300, 1305-06 (11th Cir 2001) (“Because it is the Government's duty to ensure that it has charged the proper offense, a defendant has no responsibility to point out that the Government could have charged him with a greater offense . . . . to preserve his constitutional [Apprendi] objection, a defendant need object only at sentencing.”) (emphasis added). Salazar-Lopez creates a huge, and important, circuit conflict – petitions are in the works.

How to Use: What is really unfair about this decision is its unanswered question, flagged by Hubachek: what was Salazar-Lopez suppose to do to earn structural error review? He couldn’t bring a pretrial challenge, because the indictment alleged a valid crime (just one with a lower stat-max than the AUSA thought). If you’re going to trial on illegal reentry charges against an AUSA foolish enough to still proceed on this type of indictment, e-mail me or Hubachek: this opinion presents many opportunities for defense mischief.

For Further Reading: Seven years ago three prescient authors flagged exactly this issue – and the importance of Du Bo for Apprendi challenges to indictments. See An Apprendi Primer: On the Virtues of a ‘Doubting Thomas,’ 24 Oct. CHAMP 18, 23 & n.53, 54. (2000). Interesting to see how settled law has – “evolved” – in seven years to accommodate Apprendi, yet avoid reversals.

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

Case o' the Week: Victory in Vasquez, right to plea guilty

Writing for the Ninth, Judge Kozinski reins in a district court judge who forgot the Executive controls charge bargaining – not the bench. In re: Alvaro Vasquez-Ramirez, __ F.3d. __, Slip. Op. 3853 (9th Cir. April 6, 2006), available here. An interesting and important win by the San Diego Community Defender (view from Hubachek's office, left).

Players: Another creative victory by San Diego Community Defender team Steve Hubachek, Chase Scolnick and Lori B. Shoenberg.

Facts: Vasquez-Ramirez negotiated a “fast-track” deal: a plea to reentry charges that carried a 30-month stat max. Slip op. at 3857. The deal was part of an 11(c)(1)(C) agreement. Id. (Ed. note: This deal likely cut the defendant’s exposure by ½ to 1/3 of his guideline range under the original charge, Section 1326 illegal reentry). The district court thought the deal was too lenient, rejected the plea agreement, and rejected the plea. Id. at 3858. The defendant petitioned for mandamus.

Issue(s): “We consider whether a district court may reject a guilty plea that satisfies all of the requirements of Federal Rule of Criminal Procedure 11(b).” Id. at 3856.

Held: “A district judge retains broad discretion to sentence a defendant to any term of imprisonment within the statutory range set by Congress, for the crime the prosecutor has chosen to pursue. See United States v. Booker, 125 S. Ct. 738, 750 (2005). But the judge oversteps his bounds when he forces the prosecutor to pursue charges the prosecutor would rather not, just because the judge disagrees with the sentencing range to which he would otherwise be limited. Once a prosecutor brings charges against a defendant, Rule 11 requires the judge to accept the defendant’s guilty plea to those charges, provided the plea meets the requirements of Rule 11(b). It matters not that the judge feels the prosecutor’s charging decision was too aggressive or too lenient.” Id. at 3870.

Of Note: In the last five years, the defense bar has been a bit player in a separation-of-powers war between the branches. In the PROTECT Act, Congress stripped the judiciary of much of its sentencing discretion. In Booker, the judiciary took it back. In Vasquez-Ramirez, the Ninth brushes back district courts with a strong endorsement of the Executive’s power to charge bargain. See id. at 3863 (“Should the government indeed decide to drop the section 1326 indictment, it will be exercising classic prosecutorial discretion. It may have any number of reasons for doing so, such as wise allocation of scarce resources, none of which are the district court’s business.”) (emphasis added).

Which branch should the Defense back in this battle? Whichever one happens to favor our client, that day.

How to Use: Vasquez-Ramirez reinforces a truism: the best deal is to charges with stat max caps– misprision, telephone counts, § 1325 illegal entry, misdemeanors. As Kozinski bluntly observes, it is “none of . . . the district court’s business” if the government decides to cap a sentence with a charge bargain deal. Of course, the trick is actually getting these deals, and finding an AUSA willing to stand up to Article III displeasure at “lenient” Article I charging decisions. (If only Article I was as deferential when Article III complained of overcharging . . . )

For Further Reading: Do appellate attorneys wear natty suits and listen to Vivaldi while drafting their briefs? Not in San Diego. Chief Appellate Attorney Steve Hubachek favors very loud Hawaiian shirts and cranks the Sex Pistols while coming up with the Community Defender’s latest novel argument. That appellate division is responsible for a string of aggressive and creative challenges, including Ruiz (Giglio disclosure), Ubaldo-Figueroa (due process at deportation hearings), Navarro-Vargas (grand jury instructions) and – with Ben Coleman – Buckland (§ 851 unconstitutional under Apprendi). See Community Defender website, here. The Ninth is a much more interesting place to litigate thanks to Hastings’ grad “Huba” and his crew.

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

Booker: Reasonable doubt for supervised release

San Diego AFPD Steve Hubachek has a creative and, ultimately, convincing argument that Apprendi requires a reasonable doubt finding for supervised violations. Here is the summary of his argument from his appellate brief (available by e-mailing Hubachek or Steve Kalar).

--oOo--

The Supreme Court's decision in Booker contains two primary holdings: first, that the Apprendi line of cases applies to the Sentencing Reform Act ("SRA"), and second, that the remedy for the constitutional defects in the process by which sentences are imposed can be cured by severing two provisions from the SRA, 18 U.S.C. § 3553(b)(1), which made the Sentencing Guidelines mandatory, and 18 U.S.C. § 3742(e), which set forth standards of review on appeals from sentencing decisions under the mandatory regime. In the latter holding, the so-called remedial majority rejected the notion that the constitutional defects in the SRA could be cured by recasting the Guideline system as one in which defendants enjoyed the rights guaranteed by the Apprendi line of cases -- i.e., presentation to the grand jury, proof beyond a reasonable doubt and jury trial -- as contrary to Congressional intent. The remedial majority was not required to strike down the SRA, however, because it contained an alternative sentencing regime set forth in 18 U.S.C. § 3553(a). The remedial majority held that sentencing pursuant to that Congressionally created scheme was both consistent with Congressional intent and the proscription of judicial legislation.

Neither of the two cases addressed in the Booker opinion involved issues concerning the imposition or revocation of supervised release. Even so, Booker is dispositive of Mr. Huerta's appeal, and requires that his sentence be reversed. That is so for two reasons. First, the Apprendi line of cases is equally applicable to the supervised release regime because imprisonment for a supervised release violation necessarily requires a finding of a fact not considered by the trial jury: the alleged violation. Second, the remedial majority's holding that super-imposition of Apprendi protections over the SRA is not consistent with Congressional intent is even more compelling in the context of supervised release where the statutory scheme explicitly eschews Apprendi protections such as presentation to a grand jury, proof beyond a reasonable doubt, and right to a jury trial . See 18 U.S.C. § 3583(e)(3) ("the court" makes findings "by a preponderance of the evidence"); Fed. R. Crim. P. 32.1(b)(1) (right to a preliminary hearing, not presentation to a grand jury), (b)(2) (revocation hearing before "the court").

Under the remedial majority's reasoning, section 3583(e)(3) and Rule 32.1(b) must be stricken. And, unlike the situation posed by the alternative processes created by sections 3553(a) and (b), there is no alternative legislation in place to permit revocation hearings to go forward. Because United States v. Jackson, 390 U.S. 570 (1968), prohibits this Court from implementing a new system of its own, section 3583(e)(3) cannot be constitutionally implemented, and must be struck down.

Neither Booker's broad statement that supervised release is constitutional nor the specific issues raised in Mr. Huerta Pimentel's Opening Brief preclude this Court from considering the issues raised in the instant brief. Supervised release revocation was not at issue in Booker, and therefore any dicta on that issue is not binding. See Webster v. Fall, 266 U.S. 507, 512 (1925). Nor is there any prejudice to the government in raising these issues now, because they are purely issues of law. See United States v. Hernandez-Valdovinos, 352 F.3d 1243, 1248 n.4 (9th Cir. 2003).

AFPD Steve Hubachek, San Diego Community Defender

Case o' The Week: Cal Burglary Convictions not "Violent" Felonies under USSG § 2L1.2, Aguila-Montes de Oca

A big defense win by the San Diego Defender knocks California burglary convictions out as "violent" offenses triggering a sixteen offense level increase under USSG § 2L1.2. United States v. Aguila-Montes de Oca, __ F.3d __, No. 05-50170, 2009 WL (Jan. 20, 2009), decision available here.

Players: Big win for San Diego AFPD Vince Brunkow, with assist by Steve Hubachek. Decision by Judge Thompson, (brief) dissent by Judge Gould.

Facts: After trial Aguila-Montes was sentenced 120 months for illegal reentry. Id. at *1. That whopping sentence was triggered by a +16 offense level increase for a California first degree burglary conviction (Penal Code § 459), characterized by the district court as a “crime of violence.” Id.

In the first panel decision, Judge Thompson wrote that this § 459 conviction qualified for the +16 OL bump under the “modified categorical approach.” 523 F.3d 1071, 1078 (2008) (withdrawn). Aguila-Montes petitioned for rehearing: the January 20th decision that is the subject of this memo is the revised decision.

Issue(s): “Aguila-Montes argues that because this 1988 state conviction could have been based upon criminal liability for conduct not included within the definition of burglary of a dwelling in section 2L1.2 of the Guidelines, the district court erred in applying the sixteen-level sentence enhancement.” Id. at *1.

Held: “Because California Penal Code section 459 does not require that an entry in the burglary context be ‘unlawful or unprivileged,’ the California statute lacks an element included in the generic definition of burglary of a dwelling incorporated into the Guidelines. Using a categorical approach, the two offenses do not ‘match.’ The modified categorical approach may not be applied to establish the missing element, and as a result, Aguila-Montes’s state conviction of first degree residential burglary is not a prior conviction of a crime of violence under section 2L1.2(b)(1)(A) of the Guidelines.” Id. at *4.

Of Note: The San Diego Defender deserves recognition for this victory, and for its aggressive litigation strategy on this issue. Attorneys in that office have been hanging tough on cases that involve a California burglary as a +16 OL specific offense adjustment – and are now being rewarded with better offers or great prospects on appeal. It is interesting to speculate how much custody time this decision will save illegal reentry defendants in border districts: many, many decades, safe to say.

How to Use: The important new rule of Aguila-Montes de Oca is that California burg convictions can never be +16 OL “violent” felonies in illegal reentry cases. The decision is also important, however, for its solid endorsement of the broader Navarro-Lopez rule: in the Ninth Circuit, if a state conviction doesn’t include the elements of the “generic” crime in the Taylor categorical analysis a court can’t move on to the modified categorical analysis. See blog here on Navarro-Lopez.

That broader Navarro-Lopez principle is a welcome rule far beyond the illegal reentry context; it is a limitation that squarely applies in Career Offender, ACCA, and 2K2.1 (felon in possession) cases as well.

For Further Reading: This win was a long time coming, and was presaged by Judge Milan Smith in his dissent in Snellenberger. See blog here.

Is the victory safe? Appellate guru Steve Hubachek thinks so: he notes that the Ninth unanimously relied on Navarro-Lopez’s reading of Taylor in Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1159 (9th Cir. Oct. 20, 2008) (en banc). The application of Taylor and Navarro-Lopez in the immigration context may remain controversial (see the cert. grant in Nijhawan v. Mukasey, blog summary here) but the dust has now settled on the Navarro-Lopez rule for criminal cases (at least in the Ninth).


Image of California Penal Code from http://upload.wikimedia.org/wikipedia/commons/b/b5/Californiapenalcode.jpg

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


NB: On February 3, 2010, the Ninth Circuit granted the government's petition for rehearing en banc on Aguila-Montes de Oca:

02/03/2010

FILED ORDER FOR PUBLICATION (ALEX KOZINSKI) UPON THE VOTE OF A MAJORITY OF NONRECUSED ACTIVE JUDGES, IT IS ORDERED THAT THIS CASE BE REHEARD EN BANC PURSUANT TO CIRCUIT RULE 35-3. THE THREE-JUDGE PANEL OPINION SHALL NOT BE CITED AS PRECEDENT BY OR TO ANY COURT OF THE NINTH CIRCUIT.[7218682] (RP)

Be sure to check the status of this opinion before citing it.

~SGK

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Case o' The Week: Taylor-Made Analysis -- Castro and Cal Penal Code Sec. 288(c)(1)

A slow week in the Ninth lets us reach back to discuss the strong decision by Judge Goodwin in United States v. Castro, __ F.3d __, 2010 WL 1135786 (9th Cir. Mar. 26, 2010), decision available here.

(Note: decision by sitting Judge Goodwin, not by (we sincerely hope) future Judge Goodwin (Liu), above (getting some pointers from Justice Breyer)).

Players: Decision by Judge Goodwin, joined by Judges Canby and Fisher.

Facts: Castro was convicted of attempted illegal reentry and was hit with the +16 offense level increase for having a prior “crime of violence” conviction before removal. Id. at *1. The prior was for California Penal Code § 288(c)(1), “which criminalizes lewd or lascivious acts on a child of 14 or 15 years by a person at least ten years older than the child.” Id. He was sentenced to 46 months. Id.

Issue(s): “Castro argues that a conviction under section 288(c)(1) does not constitute a ‘crime of violence’ warranting a sixteen-level increase under United States Sentencing Guideline § 2L1.2(b)(1)(A).” Id.

Held: “We hold that a conviction under California Penal Code section 288(c)(1) categorically constitutes neither ‘sexual abuse of a minor’ nor ‘statutory rape’ and therefore does not qualify as a crime of violence warranting a sixteen-level increase. We therefore vacate Castro's sentence and remand for resentencing.”Id. at *1.

Of Note: On March 25 San Diego AFPD Steve Hubachek did an masterful job defending the important Aguila-Montes de Oca decision in a Ninth Circuit en banc argument. At issue was far more than the status of California burglaries in illegal reentry sentencing: the Court is clearly looking at its own Navarro-Lopez rule barring the use of state priors that are missing an element of the “generic” federal definition of a crime. See blog describing case here.

How does Aguila-Montes de Oca relate to Judge Goodwin’s Castro decision? At the en banc argument Judge W. Fletcher’s only questions pressed Hubachek on the impact of the Navarro-Lopez rule on the line of California sex-crime decisions. The en banc argument made it clear that the Ninth is in the midst of a fight over its Taylor approach, the most important sentencing issue since Booker. Hopefully the Estrada-Espinoza line of sex-crime cases (including Castro) will survive whatever the Court decides in Aguila-Montes de Oca.

How to Use: Castro is the latest in a line of admirable Ninth Circuit decisions undertaking an intellectually-honest categorical analysis in an admittedly difficult context: sex crimes involving minors. See, e.g., Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1152 (9th Cir. 2008) (en banc). Judge Goodwin’s opinion is a good example of the “first step” of the Taylor analysis, carefully comparing the California statute to both the generic offense of “sexual abuse of a minor” and to “statutory rape.” Castro, 2010 WL 11135786, *3. It is a good, short, clean and well-written case to read and cite as a primer on how to undertake this “first step” of the Taylor analysis: the categorical approach. (Though note that the Castro opinion does not involve the Navarro-Lopez “missing element” question at issue in Aguila-Montes de Oca).

For Further Reading: Interestingly, during the Aguila-Montes de Oca en banc argument even a very strong panel of judges were occasionally as confused as us mere mortals as they wrestled with this complicated area of law. One example was some judges' worry that Aguila-Montes de Oca would “immunize” California burglaries from use in any federal sentencing statute.

Sadly (for us) a Taylor analysis for a state crime as to one federal guideline or statute does not necessarily control the result for a different federal guideline or statute. The illegal reentry guideline, for example, is a different beast than the Career Offender guideline because the latter has a “residual clause” – hence a conviction that isn’t a “crime of violence” for illegal reentry may be for Career Offender (or other federal offenses). Beware of that unfortunate reality when advising clients about sentencing exposure – a good decision like Castro may not travel well. For a recap of the Ninth’s struggle with the categorical approach, hit the link here.


Image of Justice Breyer and Professor Liu from http://berkeley.edu/news/berkeleyan/2009/04/16_breyer.shtml

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

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Booker: Reassuring on remand

Some have worried about the ability to seek remand for cases on appeal, and have feared higher sentences in the district court on remand. Steve Hubachek of San Diego addresses both of those concerns in this e-mail.


I saw in the blog that people are fearful about bad resentencing in cases on appeal. It seems that it ought to be fairly easy to get a remand in the Ninth. In United States v. Castillo-Casiano, 198 F.3d 787, amended, 204 F.3d 1257 (9th Cir. 2000), (available here), the Ninth remanded for resentencing, on plain error, when the law changed on a particular ground for downward departure while Castillo's appeal was pending. The change was that during his appeal, the Ninth approved downward departures for less serious 16 point aggravated felonies. The defendant did not make such a request in the trial court, but the Ninth remanded anyway, emphasizing the discretionary nature of the departure decision. Now, of course, judges have far more discretion that that which justified the remand in Castillo-Casiano.

As for the fear factor, I think the same pressures that will cause judges to stick to the guidelines will discourage bad sentences on remand. But even if that sort of generalized concern does not work, the presumption of vindictiveness should. See generally United States v. Peyton, 353 F.3d 1080 (9th Cir. 2003) (available here). It seems to me that any time a judge gave a defendant less than the high end of the guideline range at the first sentencing, then that judge exercised his or her discretion in favor of a lower sentence that he or she could have given as a matter of pure discretion. How, then, could such a judge justify a higher sentence on remand without the presumption of vindictiveness applying? Similarly, even in high end cases, a judge who did not at least consider upward departures and conclude that they were unavailable would appear to be vindictive by giving a longer sentence on remand. Peyton itself makes clear that the presumption of vindictiveness is not a silver bullet. But I think it will provide a great deal of protection, particularly for those who did not receive the high end first time around.

Steve Hubachek, Supervising Attorney, Federal Defenders of San Diego, Inc.

Case o' The Week: Goodwin Finds Gold in Corner of Seventh Circuit - Mitchell and Kimbrough Policy Variances

A district judge looks at a guideline range, and knows in his or her gut that it is unfair -- it is based on bad policy, and would create unwarranted disparities in sentencing. Can that judge vary from the guideline under Section 3553(a), after Kimbrough?

Yep, if the guideline in question is Career Offender. (And, we think, the same logic must apply to the "fast-track" guidelines for illegal reentry cases as well). United States v. Mitchell, 2010 WL 4105220 (9th Cir. Oct. 20, 2010), decision available here.

Players: Decision by Judge Goodwin (right).

Facts: Mitchell, a Career Offender, pleaded guilty to distributing over fifty grams of a mixture containing crack. Id. at *1. The district court varied downward 43 months from Career Offender, id., because of its disagreement with the crack/powder sentencing disparity. Id. at *3.

Issue(s): Mitchell “challenges . . . the district judge’s consideration of the crack/powder disparity in his sentence.” Id. at *1.

Held: “We . . . join other circuits that have clarified that, even in cases where a defendant is being sentenced under the Guidelines as a career offender, the sentencing court may depart downward to account for the disparity between treatment of crack cocaine and powder cocaine in the Guidelines.” Id. at *1.

“Acceding to the [Supreme] Court’s confirmation of the advisory only use of the Sentencing Guidelines, the circuits that have recently addressed the crack/powder differential in sentencing a career offender have concluded that ‘district judges are at liberty to reject any Guideline on policy grounds – though they must act reasonably when using that power.’ United States v. Corner, 590 F.3d 411, 415 (7th Cir. 2010) (en banc) . . . . We agree with this analysis and now follow it in this circuit.” Id. at *4 (emphases in original) (footnote and citations omitted).

“Because the sentencing judge carefully considered and explained his downward adjustment of Mitchell’s imprisonment term to account for the crack/powder differential, even though Mitchell was a serial offender, the judge was entitled to disagree with the policy behind the advisory Sentencing Guideline and did not abuse his discretion in sentencing Mitchell.” Id. at *5.

Of Note: What, exactly, was Mitchell’s beef? It isn’t clear from the opinion. The original fight in the opening brief was over the judge’s failure to fully vary down to a 1:1 crack / powder ratio. See Appellant’s Opening Brief, 2009 WL 3760268. This argument obviously pre-dated the Fair Sentencing Act of 2010 (“F.S.A.”) – which changed the crack / powder ratio needed to trigger the mandatory minimums from 100-to-1 to 18-to-1. See general summary here.

Along the course of briefing the dispute veered into the power of the district court to vary from Career Offender based on a policy dispute with the crack laws: a happy diversion for defendants generally, though it didn’t do much for Mitchell himself.

How to Use: Those brainy folks at the San Diego FPD (and, in particular, AFPD Steve Hubachek) have seized on a broader impact of Mitchell: a sub-silencio rejection of a previous, unfortunate Ninth Circuit decision, United States v. Gonzalez-Zotelo, 556 F.3d 736 (9th Cir. 2009).

In Gonzalez-Zotelo, the Ninth reversed a § 3553(a) variance by a district judge who rejected the government’s refusal to give fast-track to one illegal reentry defendant when it had given the deal to another, more-culpable defendant the same day. Id. at *738. See blog describing decision here. Judge Silverman wrote that Kimbrough didn’t permit § 3553(a) variances for policy disagreements with Section 1326 fast-track disparities. Id. at *740.

Zip forward a year to Mitchell, and the Ninth now relies on the Seventh Circuit’s en banc decision in Corner to hold that a court can use Kimbrough for a § 3553(a) variance based on policy disagreements with the crack laws. 2010 WL 4105220 at *4.

The Seventh has since recognized that Corner changes everything – it has just held that Corner overrules its own limitations on Kimbrough variances for fast-track disparities. United States v. Reyes-Hernandez, 2010 WL 3911336, *10-*13 (7th Cir. Oct. 7, 2010). And, the Ninth has just adopted Corner - ergo, the Ninth appears to have rejected its own regrettable Gonzalez-Zotelo decision.

Like the more-enlightened Seventh, the Ninth should now take Gonzalez-Zotelo en banc and get rid of a decision that cannot be squared with Kimbrough and post-Booker sentencing.

For Further Reading: The Fair Sentencing Act of 2010 changed the crack/powder ratio for mandatory-minimums. The Sentencing Commission just adopted “emergency amendments” that affect the guidelines for these drugs. For a summary of this new amendment, see the Sentencing Resource Counsel brief here.


Image of the Honorable Alfred T. Goodwin from http://www.uoregonlaw.com/s/293/index.aspx?sid=293&gid=1&pgid=445



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


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