Case o' The Week: If We Won, Why is He So Happy? Zavala / Carty En Banc

Chief Judge Alex Kozinski (right) loses, but wins; the defense wins, but loses. Over two years after oral argument, an en banc panel of the Ninth Circuit declines to adopt a (formal) appellate presumption of reasonableness for an in-guideline sentence. United States v. Carty, __ F.3d __, 2008 WL (9th Cir. Mar. 24, 2008) (en banc), decision available here. Great news -- except that 595 months (49 1/2 years) of guideline sentences are affirmed despite the new rule . . . .

Players: Judge Rymer authors; Chief Judge Kozinski writes an unfortunately accurate concurrence.

Facts: In October 2006 an en banc panel in the Ninth heard oral argument on Zavala / Carty, a brace of cases that presented a dozen sentencing issues of first impression. See blog here. The Ninth then kicked (and kicked, and kicked) the cases while the Supremes issued a trio of decisions that resolved all but one of these issues: Rita, Kimbrough, and Gall. Id. at *1.

Issue(s): “Core principles having now been resolved by the Supreme Court, we are left with one open question presented by Carty and Zavala: whether to adopt an appellate ‘presumption’ of reasonableness for sentences imposed within the Guidelines range.” Id. at *1.

Held: “We decline to do so, although we recognized that a correctly calculated Guidelines sentence will normally not be found unreasonable on appeal.” Id.

Of Note: Hate to admit it, but Kozinski’s concurrence is probably right. Id. at *8. He crows that the majority effectively adopts a presumption of guideline reasonableness, because the opinion’s appellate review (and acceptance) of the two (remarkably high) sentences given to Zavala and Carty is so casual, and so deferential, that the Court essentially assumes that the pair of guideline sentences are “reasonable.” Id. at *8-*9.

How to Use: Judge Rymer’s concise, bullet-point distillations of the Supreme Court’s sentencing morass are clear and well-written; they will be the Ninth’s hornbook for post-Booker sentencing practice. Id. at *3-*6. If a Ninth Circuit defense counsel reads only one thing on federal sentencing, it should be Carty.

Judge Rymer also teaches us how to salt an appellate record (to the extent still possible). Want to force your district judge into actually wrestling with your arguments, on the record? Then raise “a specific, non-frivolous argument tethered to a relevant § 3553(a) factor in support of a requested sentence.” Id. at *5 (emphasis added). Faced with such arguments, the sentencing judge “should normally explain why he accepts or rejects the party’s position.” Id. On the subject of salting, here’s a list of procedural errors that the Ninth targets for its first pass on appellate review:

• failure to calculate, or incorrect calculation, of the guideline range;

• treating the Guidelines as mandatory instead of advisory;

• failure to consider the § 3553(a) factors;

• choosing a sentence based on clearly erroneous facts; and

• failure to adequately explain the sentence selected, including any deviation from the Guidelines range.

Id. at *5.

For Further Reading: As fellow blogger Jon Sands notes, Carty’s first use is in United States v. Crawford, __ F.3d __, 2008 WL 819772 (9th Cir. Mar. 28, 2008), available here. In Crawford, Judge McKeown invokes the new Carty decision to quash a Booker attack on a Career Offender sentence. Id. at *2-*3.

[And we “won” Carty / Zavala ?]

Carty and Crawford teach that the Courts of Appeal (at least the Ninth) are effectively out of the sentencing business. That’s bad news when a sentencing judge methodically plugs-in guideline ranges generated by the Commission’s (and Congress’s) latest whim.

The back-story, however, is that the Ninth is not reversing (or even really hearing) § 3553(a) sentences that are far below the guidelines. (And Rita / Kimbrough will only help that trend). Anyone notice lately that the USAOs are too spooked to take-up a below-guideline § 3553(a) sentence, terrified of creating “bad” law endorsing the district court’s exercise of discretion? Maybe Booker’s legacy will be relocating sentencing battles to the district court trenches.


Photograph of the Honorable Chief Judge Alex Kozinski by Vern Evans, from California Lawyer. Website available here.

Salt shaker painting by Jeff Hayes, blog here.


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


.

Case o' The Week: Baker Effort Undercooked, Needs Trip to En Banc Oven -- Fourth Amendment and Probation Conditions

Judge Susan Graber (right) is often a tough draw for a criminal defendant on appeal. See blog collections involving Judge Graber here.

She is also no radical when it comes to the Fourth Amendment. See generally, United States v. Crapser, 472 F.3d 1141 (9th Cir. 2007) (Graber, J., affirming warrantless hotel search over Judge Reinhardt's vigorous dissent).

So, when Judge Graber worries that "suspicionless" search conditions for probationers have finally crossed the Fourth Amendment line, and warns that the Ninth should go en banc to review its authority in light of Supreme Court jurisprudence, her call to action should sound alarm bells. Baker, the subject of this "Case o' The Week" post, should go en banc. United States v. Baker, 2011 WL 4359923 (9th Cir. Sept. 20, 2011), decision available here.

Players: Hard-fought case by Bay Area private counsel Jay Nelson and Ethan Balogh. Decision and concurrence by Judge Graber.

Facts: Baker was a passenger in a car during a high-speed chase. Id. at *1. When ultimately stopped, cops found 10 grams of meth in the car. Id. Baker was nonetheless charged with over fifty grams of meth, a mand-min felony. Id. At trial, cops testified that they saw a “snowstorm” of meth thrown out of the car as it fled. Id.

In a great trial victory, Mssrs. Nelson and Balogh beat the felonies and Baker was convicted of misdemeanor possession. Id. Over defense objection, ND Cal DJ Breyer imposed a “suspicionless search” condition on Baker’s term of probation. Id. at *2.

Issue(s): “Defendant challenges the probation condition that permits a suspicionless search:

The defendant shall submit his person, property, place of residence, vehicle and personal effects to search at any time of the day or night, with or without a warrant, with or without probable cause, and with or without reasonable suspicion, by a probation officer or any federal, state, or local law enforcement officer. Failure to submit to a search may be grounds for revocation. The defendant shall warn any residents that the premises may be subject to search.

Id. at *3.

“The government argues that it has a strong interest in protecting the public and that, as a probationer, Defendant has a reduced expectation of privacy and an increased risk of recidivism. Accordingly, the government argues, a suspicionless search condition does not violate the Fourth Amendment. Defendant counters that, although he has a reduced expectation of privacy, it is not reduced so much that a warrantless search, on the basis of no suspicion whatsoever, is reasonable. Defendant points out that he was convicted of a relatively minor misdemeanor drug offense and that the government's interest in protecting the public is therefore less than, for instance, the government’s interest in supervising a convicted violent felon.” Id. at *4.

Held: “We are bound by precedent to agree with the government. In Samson, . . . the Supreme Court held that a suspicionless search of a parolee does not violate the Fourth Amendment. Since that case was decided, we have applied our rule that there is no constitutional difference between probation and parole for purposes of the fourth amendment. . . . Because a suspicionless search of a parolee does not violate the Fourth Amendment, . . . and because our precedent dictates that there is no constitutional difference between probation and parole for purposes of the fourth amendment, we must conclude that a suspicionless search of a probationer does not violate the Fourth Amendment.” Id. at *4 (quotations and internal citations omitted).

Of Note: In a persuasive concurrence, Judge Graber urges that this case should go en banc. As she correctly explains, a parolee is not identical to a probationer for the Fourth Amendment analysis.“The Supreme Court has not addressed the question left open in Knights and raised here: whether a suspicionless search condition imposed on a probationer violates the Fourth Amendment.” Id. at *8 (Graber, J., concurring).

As noted above, Judge Graber is not traditionally viewed as a defense ally and her en banc suggestion should carry particular weight. See id. at *9 (“[T]his court’s continued reliance on the proposition that there is no difference between parolees and probationers in this context directly contravenes the Supreme Court’s clear statements in Samson and, critically, forecloses our ability to resolve that significant question on its merits. We should convene en banc so that we can correct our mistaken continued application of the Motley rule.”)

How to Use: Preserve the objection conditions of probation that impose suspicionless searches: an en banc petition is certain – review, likely.

For Further Reading: For the first time in a long time, the Ninth has lost an active judge: the Honorable Pamela Ann Rymer (left) passed away last week. See article here.

Judge Rymer was appointed to the Ninth by President H.W. Bush in ‘89, after being bandied against Justice Kennedy for the Supremes. For a retrospective of Judge Rymer’s criminal law decisions, see collection here.

While the defense often disagreed with Judge Rymer's positions, she was an engaged jurist and an elegant legal writer. As we observed in our '08 summary of the Zavala/Carty en banc decision, "Judge Rymer’s concise, bullet-point distillations of the Supreme Court’s sentencing morass are clear and well-written; they will be the Ninth’s hornbook for post-Booker sentencing practice. . . . If a Ninth Circuit defense counsel reads only one thing on federal sentencing, it should be Carty." See blog here.


Image of the Honorable Susan Graber from http://www.id.uscourts.gov/distconf08/photos/slides/Judge%20Susan%20Graber%20.JPG Image of the Honorable Pamela Rymer from http://nh.tributes.com/show/Pamela-Rymer-92390242


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

.

Case o' The Week: Zavala / Carty En Banc October 6, 2006

The Booker rubber finally hits the road as the Ninth wrestles with key sentencing issues in the Section 3553(a) era. A fascinating oral argument in the most important en banc case of the year. Download oral argument here.

Players: Masterfully argued by Sidley Austin partner Jeff Green (left) and CJA Counsel Dennis Charney (right). The panel included (in no particular order), Judges Reinhardt, Berzon, Paez, Thomas, (Chief Judge) Shroeder, Wardlaw, McKeown, Gould, Silverman, Bybee, Kozinski, Kleinfeld, Bea, Tallman, and Rymer.

Facts: Zavala was a drug dealer who got a 30-year sentence, down from “life” guidelines. The district court judge started with the guideline sentence, however. See blog here. Carty committed a sex crime and got low-end of the guidelines; the judge didn’t articulate the Section 3553 factors. See blog here.

Issue(s): The Ninth took the cases en banc, and invited amicus briefing on a half-dozen issues. See blog with questions here. The two big questions: is a guideline sentence presumptively reasonable? And, must a district court repeat all Section 3553(a) factors at sentencing, and articulate the reasons for the sentence – even for an in-guideline sentence?

Predicted Outcome: Spectators from the east side of Courtroom 4 have a prediction: e-mail me if curious.

Of Note: The biggest surprise of the argument was the conciliatory tone of the Deputy Solicitor General of DOJ, Michael Dreeben. (By the way, what a nice gesture from Justice – sending out a hired gun who has argued sixty-four Supreme Court cases, including Koon. (Just in case the 9th had forgotten about SCOTUS). Gestures like this, however, might backfire in the independent West.)) Nonetheless, one must concede that Mr. Dreeben argued eloquently for the government.

In any event, listen to the oral argument – one would be hard-pressed to hear Dreeben defend the “presumption of reasonableness” for a guideline sentence. The government seems more concerned with retaining the ability to attack out-of-guideline sentences on appeal – demanding “compelling” reasons for such sentences. Maybe it was just the government’s back-door way of seeking the same “‘reasonableness” presumption, but one gets the sense that counsel on all sides were fighting hard for the middle ground (and for the “moderate” swing judges) in this case.

Some of the most thoughtful – and most difficult – questions came from Judge Kozinksi, who pressed both sides for plain-spoken answers. Kozinski wondered if the Defense position is that a district court judge can “pierce” the guidelines and look at the reasonableness of the Commissions’ conclusions for any given guideline? (Like the inequitable “crack” guidelines). As dearly as we in the defense bar would love to pierce (and prod, and sever, and shred) the guidelines, Jeff Green was wary of this question – key moderate judges (and Congress, and SCOTUS) may not be too keen on the idea.

From Mr. Dreeban, Kozinski pressed – several times – for the precise text of § 3553(a) that directs that the guidelines factor gets greater weight. (Ed. note: it doesn’t exist). Dreeban fumbled with “organizational principles” and the “Commission’s needs” . . . i.e., he never answered the question. Kozinski’s key question – and it is a central one – is how much weight is a district court to give the guidelines in any given, individual case, and how will the Ninth review that decision?

Judge McKeown was also an active participant – she’s wrestling through some of the thorny practical aspects of the case. For McKeown, the appellate standard of review for a Booker sentence was a key question.

Judges Wardlaw and Reinhardt both emphasized Justice Breyer’s actual text in Booker; nothing in the remedial opinion said anything about greater weight for the guidelines factor. Reinhardt delivered the most memorable line, mock-admiring Breyer’s skill in convincing other Justices to abandon the holding that they had just reached in Justice Steven’s constitutional opinion, and to join him in the remedial Booker decision.

Another humorous moment was Chief Judge Schroeder’s invitation to Mr. Dreeben to quantify on a scale of 1 to 10 the weight the guidelines should play in the § 3553(a) analysis. After his artful dodge and refusal to do so, the Chief (a bit wryly) suggested that he give the Court “a range.”

For Further Reading: To hear the oral argument, navigate to: http://www.ca9.uscourts.gov/ca9/media.nsf/Media%20Search ?OpenForm&Seq=1 . It seems that all sentencing appeals have been stayed pending the outcome of Zavala/Carty -- it'll be an uncertain Fall, as practioners wait to see the final (hopefully) word on Booker practice in the Ninth.

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

.

US v. Ressam, No. 05-30422 (1-16-07). This is a terrorism case. The defendant was convicted of bringing explosives across the border. He was convicted at trial, cooperated, ended cooperation, and ended up with a sentence of 22 years (he was facing 65). The government appealed the sentence as unreasonable; and defendant appealed a conviction that imposed a mandatory ten years because he had explosives while committing another felony. The 9th fastened on the conviction, holding that there must be a relational tie between having the explosives and committing the underlying felony (here, a false statement). The 9th 's interpretation runs counter to two other circuits, but it constrained by precedent (precedent penned by then Judge Kennedy) in US v. Stewart, 779 F.2d 538 (9th Cir. 1985), overruled in part on there grounds by US v. Hernandez, 80 F.3d 1253 (9th Cir. 1996). Rymer, joined by Berzon, stressed that Stewart, dealing with a firearms statute, required an "in relation to" tie to the other felony for the mandatory term to be triggered. In dissent, Alarcon argued that Stewart has been long overruled. The result of the reversal on that count is to return the case for resentencing, which will be post-Rita/Claiborne, and post-Carty/Zavala.

Congrats to FPD Tom Hillier and AFPD Michael Filipovic of the W.D. Wa (Seattle) for the win.

US v. Ramirez, No. 05-50165 (1-16-07). The 9th affirms the doctrine of "collective knowledge" in one officer knowing facts that result in probable cause asking another officer to stop a car and make an arrest. This was an ongoing drug investigation, and the 9th affirmed the denial of suppression, holding that the team investigating the defendants had sufficient probable cause to order a warrantless stop of a car by another officer in the same department. The 9th declines to require that the content of probable cause or suspicion be transmitted to the stopping officer; it is enough that one officer has it. O'Scannlain was joined by Bybee. Kozinski concurred to stress what the case was not, which was an officer lacking probable cause asking another to come up with something. Here, the officer had probable cause, and asked the arresting officer to make it seem like a traffic stop because of officer safety.