Case o' The Week: "Going Rambo in the Ninth," Jimison and 2K2.1(b)(5)

Who doesn't think about "going Rambo," occasionally? Judge Kozinski acknowledges the urge, in a very good opinion limiting a steep and frequent specific offense adjustment in the "gun" guideline, USSG Section 2K2.1(b)(5). United States v. Jimison, __ F.3d __, Slip. Op. 8519 (9th Cir. July 16, 2007), decision available here.

Players: Nice win by AFPD David Merchant.

Facts: Jesse Jimison beat up a girlfriend, got sick from drugs, passed out in an unlocked ranch house, woke up, stole guns, and ended up at a friend’s place. Slip Op. at 8522. He cried, said he’d thought he had killed the girl, that he was going to “go Rambo,” then called the ranch house owner and apologized for stealing the guns and promised to return them. Id. Jimison locked the guns in the trunk of his girlfriend’s car and took off in his friend’s car. Id. He pled guilty to felony possession of guns, and caught an enhancement for having the stolen guns “with the intent of fighting it out with law enforcement if he were caught.” Id. The specific guideline provision at issue gives a four-level bump if the defendant possessed a gun “with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense.” Id. at 8253.

Issue(s): “We consider when a defendant can be subject to a sentencing enhancement under U.S.S.G. § 2K2.1(b)(5) (2005) [now § 2K2.1(b)(6)] for possessing a firearm in connection with an offense that he never commits.” Id. at 8522. “There is no dispute that shooting at police is a felony offense – the issue is whether there was sufficient evidence about Jimison’s intent to justify imposing this enhancement.” Id. at 8523.

Held: “We have never considered what constitutes proof that a defendant had ‘knowledge, intent, or reason to believe’ that he would, at some time in the future, commit ‘another felony offense.’ We hold that while the defendant need not actually commit the crime, see United States v. Dodge, 61 F.3d 142, 146 (2d Cir. 1995), the government must produce sufficient evidence that he intended to ‘use[ ] or possess[ ]’ firearms ‘in connection with’ a specifically contemplated felony. The plan to commit the felony need not be fully developed. Thus if a defendant acquires a gun intending to use it in a bank robbery, he need not have cased the location or even identified a specific bank that he plans to rob. But he must have formed a firm intent to use the gun for a felonious purpose.” Id. at 8523. “Under these circumstances, there was insufficient evidence to conclude that Jimison formed a firm intent to have a shootout with law enforcement.” Id. at 8526.

Of Note: How does the Ninth Circuit review the application of the Guidelines to the facts? Who knows? Judge Kozinski identifies the intracircuit split, with Kimbrew calling for “abuse of discretion,” Williamson demanding de novo review, and Staten recognizing the conflict. See id. at 8526 n.6.

Conspicuously missing from this list is Rita, the Supreme Court decision that “clarified” that appellate review is for abuse of discretion – or reasonableness – or maybe for procedural problems alone? While Judge Kozinski neatly sidesteps this mess in footnote six, who are we to complain in light of this defense win?

How to Use: This useful decision gives a number of rules for application of this frequent Section 2K2.1 (“gun”) enhancement. First, the government must show more than that the defendant stole the gun to get the enhancement. Id. at 8523-24. Second, Judge Kozinski is skeptical that the vague “Rambo” threats of a scared and confused defendant rose to the level of certainty sufficient to trigger the enhancement. Id. at 8525. The new rule is that this enhancement should not apply when the defendant simply makes a statement about the gun “out of frustration, fear, or grandstanding.” Id.

For Further Reading: Not mentioned in the opinion, but on PACER, is the fact that Jimison got 120 months on this case. Awfully steep for what is essentially a Section 922(g)(1) [felon-in-possession] case – especially when Jimison pleaded guilty!

Steven Kalar, Senior Litigator. Website at www.ndcalfpd.org

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Case o' The Week: Ninth Rewards Defense Expert Chase, United States v. Chase

Yet another great Ninth Circuit decision arises out of the Fertile Crescent for criminal appeals: the District of Montana. United States v. Chase, __ F.3d. __, 2007 WL 2410177 (9th Cir. Aug. 27, 2007), decision available here. In Chase, Judge Ferguson emphasizes the right of an indigent defendant to a defense expert, and adds some teeth to the process by which meth quantities are estimated.

Players: Notable win by Montana AFPD John Rhodes, decision by Judge Ferguson joined by Judges Pregerson and Ikuta.

Facts: Chase pleaded guilty to meth crimes. 2007 WL 2410177 ,*1. At sentencing, he fought the government’s theory of the quantity of meth produced. Id. The government’s estimate was based on a letter by an expert, who had in turn relied on state reports about the lab’s contents. Id. The expert’s estimate was five times higher than what Chase admitted he produced. Id. Chase’s requested his own forensic expert; that was denied by the district judge. Id.

At an evidentiary hearing, the government expert conceded that he didn’t know the amount of precursors, and that he based his estimate on the size of a big flask (although there was no evidence that this particular flask had been used). Id. Chase testified and denied cooking that much meth. The district court sided with the government, and sentenced based on at least double what Chase admitted to having cooking. Id. at *2.

Issue(s): “Chase contends that . . . the district court erred in denying his request for an expert; . . .[and] the court based its determination of drug quantity on unreliable evidence.” Id. at *1.

Held: “We hold that the district court abused its discretion in denying Chase's request for a forensic expert and relied on evidence lacking sufficient indicia of reliability.” Id. “The Supreme Court has long recognized ... that ... justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake. . . . In this case, Chase had a right to hire an expert who could have produced his or her own investigation, interpretation, and testimony.” Id. at *3 (internal quotations and citation omitted).

Of Note: Chase will be remembered for its strong endorsement of the right of indigent defendants to experts. The case is also important, however, for meth lab cases because the Court establishes several important rules for yield calculations.

First, Judge Ferguson explained that the district court’s calculated production “lacked sufficient indicia of reliability.” Id. at *6. He then clarifies that glassware alone is an insufficient base to calculate production – previous cases involving glassware included precursor amounts and estimates arising from those chemicals. Id. Moreover, Ferguson limits the “multiplier” method of estimating production over several cooks. Id. at *7.

How to Use: Judge Ferguson’s rejection of the government’s arguments about defense experts provides ammo to the defense when seeking experts in other contexts. The Court rejects the government’s whine that the defense had a chance to cross the government expert, and that was enough. As Ferguson observes, “This argument misses the point.” Id. at *3. A defense expert is critical for two separate and independent reasons. First, a defense expert could have presented an alternative theory of calculating meth production – in other words, the expert could have affirmatively advanced the defense case. Id. Secondly (and separately) a defense expert could have sharpened the cross of the government expert, by honing attacks on the expert’s methodology. Id. at *4. Plug both of these rationales into CJA requests for defense experts (and note the reversal in Chase just to drive the point home).

For Further Reading: Rely on a good Ninth Circuit decision in the last couple of years, and you probably have the District of Montana to thank. That district had just 417 defendants commencing federal criminal cases in the year before June of ‘06. See US Courts statistical report here. The D Az, by contrast, had over 4,000. Id. Yet the Big Sky district has had a hugely disproportionate number of criminal appeals (and reversals) in the Ninth: Chase, Garcia, Larson, Jimison, and Juvenile Male in the last year alone. What’s gives?

The aggressive appellate chops of Tony Gallagher’s Defender office is one explanation – though US Attorney Mercer and the Montana district court bench may deserve some of our thanks, as well. Has no one heard of buying appellate waivers with a reasonable deal?

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

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US v. Jimison, No. 06-30417 (7-16-07). This is a significant opinion in interpretation of the guidelines. The 9th (Kozinski joined by Fisher and Guilford) hold that for a prohibited possessor to get a two-level bump up for having a weapon and committing a felony under 2K2.1(b)(5), the defendant need not actually commit a crime, but must have a "firm intent to use the gun for felonious purposes." The evidence in this was that the defendant made an offhand comment that he got the gun "to go Rambo." The statement was made to an acquaintance. The evidence did not support this further. The 9th vacated the sentence and remanded.

Congratulations to AFPD David Merchant of the Montana (Billings) office.

US v. Jenkins, No. 06-50049 (7-17-07). In an unusual vindictive prosecution case, the 9th affirms the district court's dismissal of the charge. The defendant had been stopped crossing the border twice previously with illegal aliens. Each time, she basically confessed, stating that she was paid to drive the car over. Each time, the government did not prosecute. This time, she was stopped as a passenger in a car with marijuana. Her defense? She thought she was smuggling illegal aliens. She testified to that at trial. As the jury was deliberating, the government filed alien smuggling charges on her two previous arrests. The district court felt this was done to punish her for testifying, as was her constitutional right. The 9th agreed with the district court's dismissal, using a de novo review for mixed constitutional rights and factual findings. The 9th (Canby and Thomas) held that the government had all the evidence it really needed prior to the defendant's testimony, and that the timing of the charges -- after she testified and while the jury was deliberating -- was properly construed as being vindictive. The three strikes and still out of court. In dissent, Conlon argues against the vindictiveness finding, stressing that the defendant's in-court admissions made the government's case a slam dunk and so the government could now file.

US v. Diaz-Luevano, No. 05-50129 (7-18-07). The 9th, per curiam, clarifies that its decision that reinstatement of removal is separate from removal (Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007) (en banc)) does not overrule the decision that for guidelines enhancement purposes (US v. Luna-Madellega, 315 F.3d 1224 (9th Cir. 2005), it is prior physical removal that is the trigger for enhancement. The case here involved a defendant who had been removed, came back and committed a violent offense, and then had his removal reinstated. When he returned, and was caught yet again, the prior violent offense counts for the +16 under 2L1.2.

US v. Diaz-Castenada, No. 06-30047 (7-18-07). Is the running of a license plate a search? The 9th had never dealt with this issue, but joins all the other circuits in holding that it is not. Here, the defendant was driving and a police officer ran his license plate, and found that he had a suspended license. The defendant was pulled over, and eventually was arrested for various charges. The 9th(Fisher) unsurprinsingly reasons that a license plate is in public view, has information attached to it, and the defendant should not have an expectation of privacy in the public records.

Case o' The Week: Great Fisher decision, Garcia

A Great Fisher (left) opinion may provide some relief for two men with a century and a half or so of federal time ahead of them. See United States v. Garcia, __ F.3d. __, Slip. Op. 9681 (9th Cir. Aug. 10, 2007), opinion available here. In Garcia, the Ninth reminds us that there are -- remarkably -- still some limits to conspiracy liability. It also makes clear that discouraged Guideline departure factors are fair game as Section 3553(a) mitigators.

Players: Opinion by Judge Fisher.

Facts: Garcia, Smith, and others were charged with meth and gun crimes in Montana. Slip. Op. at 9685. At trial, Garcia’s Rule 29 motion challenged five conspiracy counts. Id. That motion was denied. Smith pleaded guilty. Id. at 9686. Garcia was sentenced to 1,284 months (107 years). Id. at 9685. Smith was sentenced to 369 months - 30 years. Id. at 9686. At sentencing, District Judge Cebull thought he was barred by the guidelines from considering Smith’s pitch that drug addiction was a mitigating sentencing factor. Id. at 9686.

Issue(s): 1. Could Garcia be held criminally liable for substantive acts committed by the conspirators before he joined the conspiracy? Id. at 9687.

2. “Smith challenges his sentence, arguing that the district court erred by not considering drug addiction as a mitigating factor under 18 USC § 3553(a)(1), which requires the sentencing court to consider ‘the nature and circumstances of the offense and the history and characteristics of the defendant.’” Id. at 9695.

Held: 1. “[Garcia] cannot be held liable for substantive offenses committed before joining or after withdrawing from a conspiracy . . . . We agree with Garcia that there is insufficient evidence that he entered the conspiracy to distribute methamphetamine as of July 2003.” Id. at 9687.

2. “The district court . . . adopted too narrow a view of its discretionary authority post-Booker. . . . The system of downward departures that still guides the sentencing court’s determination of the Guidelines-recommended range as required under §3553(a)(4) does not preclude the court’s discretion to consider other § 3553(a) factors . . . . We . . . hold that district courts are not prohibited in all circumstances from considering a defendant’s drug addiction in choosing a reasonable sentence.” Id. at 9695-96.

Of Note: How does the Ninth review the district court’s application of the Guidelines to the facts? Abuse of discretion? Or is it a de novo standard of review?

The answer is, “Yes.”

Two Ninth Circuit cases, a year apart, hold that these different standards apply. Id. at 9690 (discussing intracircuit conflict). Here, Judge Fisher refuses to jump where angels fear to tread – the panel punts, and avoids deciding the S.O.R. via an en banc call. Id. at 9690-91. This artful dodge sound familiar? Think back to Jimison, the “Rambo” case decided July 16th. There, Judge Kozinski (also on this Garcia panel) avoided the intracircuit conflict by using a very similar approach. See blog here. It’s a fair guess that the Ninth is (unofficially) either holding out for Supreme Court guidance in Gall or Kimbrough, or may resolve the split in Zavala / Carty.

How to Use: This is old conspiracy law, but Garcia lays out the principle again: a defendant is not liable for the substantive offenses committed by a conspiracy before he or she joined. Id. at 9686. This is tricky stuff, though: a late-arriving co-conspirator can be vicariously liable for acts establishing the crime of conspiracy itself – even of those acts preceded his involvement. Id. at 9688 & n.1. Note that this distinction may push a defendant below mandatory-minimum triggering amounts in a multi-defendant conspiracy – footnote one is worth a very close read.

Garcia also makes clear what we’ve argued since Blakely – Guideline “discouraged” factors are now entirely fair game for Section 3553(a) mitigation arguments. In this particular case, the “discouraged” factor is drug addiction – but the principle applies with equal force to all Chapter Five mitigators, such as age, community service, and lack of youthful guidance. See USSG § 5H1.1 - H1.12.

For Further Reading: Sixty-eight year old Judge Raymond Fisher is a Stanford Law grad, who was appointed by Clinton in ‘99. See profile here. He clerked for Judge Wright on the Ninth, as well as Justice Brennan, and was an Associate US Attorney General. Id. He also has a more-than-passing background in DNA evidence. See DOJ article here.

Steven Kalar, Senior Litigator. Website at www.ndcalfpd.org


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