Case o' The Week: It is Fernandez's Mercado, but Betty Doesn't Buy It -- Acquitted Conduct at Sentencing

In his Mercado, Judge Fernandez sells the status quo: Watts survived Apprendi, and acquitted conduct can be used at sentencing despite Booker. United States v. Mercado, __ F.3d __, No. 05-50624, Slip. Op. at 857 (9th Cir. Jan. 22, 2007), opinion available here. Judge Betty Fletcher isn't buying it, though: in a great dissent, she explains why the use of acquitted conduct at sentencing violates the Sixth Amendment.

Players: Fernandez authors, Graber joins, Judge Betty Fletcher (eloquently) dissents.

Facts: Mercado and his co-D Bravo were charged with RICO and drug conspiracies, and a slew of other gun, murder, and violence allegations in a Mexican Mafia case. Slip op. at 860. A jury convicted them of the drug and RICO conspiracies, but acquitted both on the other serious allegations. Id. Over Apprendi objection by the defense, the district court nonetheless used acquitted conduct to rachet-up their sentences sevenfold: from three years, to twenty. Id. at 865 (Fletcher, B., dissenting).

Issue(s): “[Defendants] assert that in calculating their sentences under the [U.S.S.G.], the district court erred when it considered criminal activity which had been charged in the indictment, but which the jury determined had not been proved beyond a reasonable doubt.” Id. at 859-60.

Held: “We are . . . satisfied that the core principle of Watts lives on and that the district court could constitutionally consider the acquitted conduct.” Id. at 863. In fine, we join, rather than rain upon, the parade of authority that finds no Sixth Amendment violation when sentencing judges consider conduct underlying acquitted counts.” Id. at 864.

Of Note: Despite Fernandez’s “parade” of authority, Judge Betty Fletcher’s dissent is the much more persuasive decision. Fletcher takes the time to undertake the Sixth Amendment analysis (required post-Apprendi) and explains that the majority’s approach is the old Fifth Amendment way of thinking. Her dissent makes sense: using acquitted conduct to inflate a sentence sevenfold is a slap in the jury’s face. And, post-Apprendi, isn’t it the jury that deserves deference, not the district court? It’s hard (if not impossible) to reconcile Mercado with the spirit of Apprendi.

How to Use: One day, when Reason, Justice, and Betty Fletcher prevail, Mercado will be reversed. Plain error review will then hit our clients like a ton of bricks. (See, e.g., Ameline and progeny). No matter how slim the likelihood of this future victory, avoid the future Olano trap with a placeholder objection at sentencing now, despite Mercado. (This is especially true after a trial where acquitted conduct is in play at sentencing).

For Further Reading: Mercado is a Fernandez opinion; ergo, definitions follow.

“Renascent” (id. at 862): adj. “resurgent (rising again as to new life and vigor).” See definition here.

“Mutatis Mutandis” (id. at 864 & n.6): “A direct translation from Latin of mutatis mutandis would read, ‘with those things having been changed which need to be changed’. More colloquially, it can be interpreted as ‘the necessary changes having been made,’ where ‘the necessary changes’ are usually implied by a prior statement assumed to be understood by the reader. It carries the connotation that the reader should pay attention to the corresponding differences between the current statement and a previous one, although they are analogous. This term is used frequently in economics and in law, to parameterize a statement with a new term, or note the application of an implied, mutually understood set of changes.” See definition here.

Or,

A Science-Fiction, role playing game incorporating mutants battling "normal" society: “an interactive gaming environment created with this concept in mind; that in order to create, one must change, and that change is inevitable as a fundamental given. All things change. We can only strive to make the changes that will create a better world.” See the mutatis mutandis web page here.

(Presumably Judge Fernandez intended the former definition . . . .)

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


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Case o' The Week: A Cure for "Guidelinitus", Castendada

Sixth Circuit Senior Judge Gilbert S. Merritt (right) had nothing to do with the Ninth's Case o' The Week in United States v. Castenada, __ F.3d __, 2008 WL 126641 (9th Cir. Jan. 15, 2008), decision available here. Judge Merritt's recent dissent on guideline practice after Gall and Kimbrough, however, is such an honest and candid assessment of federal sentencing that it deserves national recognition (and heavy citation in sentencing memoranda). (See below).

Players: Nice win by former ED Cal AFPD (and Hon. H.P. clerk) John Balazs.

Facts: Casteneda was convicted of crack crimes. 2008 WL 126641, *1. The defense urged a below-guideline sentence based on the Guidelines’ 100:1 sentencing disparity between crack and powder. Id. The district court did not “believe it’s appropriate to reduce a sentence under . . . § 3553(a) on the basis that the Congress and the . . . Sentencing Commission are wrong in establishing different penalties for different types of controlled offenses. Id. at *1. The panel denied the first appeal.

Issue(s): “In a Petition for Rehearing, Medina-Casteneda requested that we reconsider our decision in light of the Supreme Court's then-pending decision in Kimbrough . . .”

Held: “These statements [at sentencing] demonstrate that the district court did not foresee the extension of its Booker discretion that would be announced two years later by the Supreme Court in Kimbrough. Thus, the district court did not feel free to consider whether ‘any unwarranted disparity created by the crack/ powder ratio produced a sentence . . . greater than necessary’ to achieve § 3553(a)’s purposes. We vacate the sentence and remand to the district court to reconsider the sentence in light of the Kimbrough decision and to determine whether the disparity between crack and powder cocaine produced a sentence ‘greater than necessary’ under § 3553(a).” Id. at *2.

Of Note: There’s so much “of note” after Gall / Kimbrough that Defender Jon Sands and I have written an article on the topic for the NACDL's Champion. Look for the article in the upcoming edition.

How to Use: Here are some bullet points on opportunities presented by Gall / Kimbrough:

● The “parsimony provision” in § 3553(a) was strongly endorsed in those decisions; judges should be shooting for sentences ‘no greater than necessary’ to reach § 3553 goals;

● Guidelines with lousy empirical and analytical pedigrees are more vulnerable to attack – like other mand-min drug guidelines, fraud guidelines, and child porn. See United States v. Baird, 2008 WL 151258 (D. Neb. Jan. 11, 2008) (halving child-porn sentence given lousy empirical pedigree of child-porn guidelines);

● Non-guideline sentences to offset disparities are now encouraged (so fast-track, Section 1326 disparities are again fair game);

● Non-guideline sentences in light of co-defendant disparities are endorsed;

● Whether a basis for a non-guideline sentence is “discouraged” in Guidelines Chapter 5 is not relevant – these theories are still completely fair game for a § 3553 below-guideline sentence;

● Belt and suspenders are best – ask for both a guideline departure and a § 3553 “statutory” below-guideline sentence, because there’s some troubling language about potentially different standards of appellate review for the two.

For Further Reading: As always, start at www.fd.org. The site has several articles on these developments – including a great appellate brief on the newest issue on the horizon, keeping acquitted conduct out of sentencing. (See blog on Ninth Circuit's acquitted conduct decision in Mercado, here -- with a great B. Fletcher dissent Mercado cert. petition now in Supreme Court conference).

AFPD Jennifer Coffin has prepared an interesting list of appellate Gall and Kimbrough cases, with commentary – defense counsel can get a copy from me.

A must-read is Sixth Circuit Judge Merritt’s remarkable dissent in United States v. Sedore, __ F.3d __, 2008 WL141046 (6th Cir. Jan. 11, 2008), decision available here. The first paragraph gives a flavor of the opinion: “Except for those judges and lawyers who prefer to continue routine conformity to the old pre- Blakely-Booker process of guideline sentencing, there is widespread disapproval of the present muddled system. This is because, in the main, the old system is just continuing on as though nothing had happened – continuing under the pretext that the guidelines are only ‘advisory’ instead of being considered only as a starting point against the backdrop of the more sensible and humane penalogical goals set out in § 3553(a), Title 18. This case is one more example of the continuing problem, the problem of guidelineism, or ‘guidelinitis,’ the inability of most federal courts to break their habit of mechanically relying just on the guidelines alone.” Id. at *9 (Merritt, C.J., dissenting).

Finally, Gall / Kimbrough have their dark sides as well. AUSAs, Judges, and Probation officers interested in how the cases have already been used to support above-guideline sentences should visit an insightful article here, see the statistics available here, or review the materials at this web site.


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

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Cunningham: support for Ninth Circuit rehearings on the ACCA and reasonable doubt

The Supreme Court opinion in Cunningham once again demonstrates that the Nation’s highest court is far ahead of the Circuits in protecting Fifth and Sixth Amendment rights. Justice Ginsburg provides some important support for our continuing struggle to persuade the courts that, under the Doctrine of Constitutional Avoidance, the silence in the Armed Career Criminal Act and federal sentencing statutes on the standard of proof should be filled by interpreting those statutes to require proof coextensive with the constitutional standard of proof beyond a reasonable doubt. Cunningham provides a big boost in two areas of current and future Ninth Circuit rehearings en banc.

In Cunningham, the Court addressed the California state sentencing system, which permits a sentence at the high end of a guideline based upon certain findings. The state supreme court construed the Supreme Court’s post-Apprendi case law to permit a high-end sentence upon proof of facts to a judge by a preponderance of the evidence. Justice Ginsburg provided the clear law: "[U]nder the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence." And the traditional 5-4 majority for the post-Apprendi Sixth Amendment jurisprudence is now a 6-3 majority, with Chief Justice Roberts adding his vote.

The first area Cunningham will affect is the pending rehearing en banc in Grisel (blogged here), in which the Court will need to construe the pleading and proof requirements of the Armed Career Criminal Act. We have been arguing that, under the Supreme Court opinions in Haley and Shepard, the Doctrine of Constitutional Avoidance must be applied to any application or extension of Almendarez-Torres, the case finding that an immigration statutory enhancement did not need to be pleaded in the indictment. Cunningham provides a sharp focus on why the characteristics and sequence of ACCA prior convictions are facts that may well be constitutionally required to be pleaded in the indictment and proven beyond a reasonable doubt (as Fourth Circuit Chief Judge Wilkins found in dissent here) but at least raise a serious enough constitutional questions to require the same result through statutory construction.

In footnote 14, Justice Ginsburg puts a stake through the heart of the argument that facts concerning the offender should be treated differently from facts regarding the offense: "Apprendi itself, however, leaves no room for the bifurcated approach..." This footnote means that ACCA facts, such as the characteristics of the prior offenses and their sequence, should easily fall into the category of facts that must be proven in conformance with the Sixth Amendment. In the Grisel opening brief, as well as in the amicus support, the defendant presents the case for at least serious constitutional doubt on these questions, which implicates the Doctrine of Constitutional Avoidance. While still recognizing the limited exception for the fact of a prior conviction, Cunningham emphatically makes the point that these types of offender-oriented facts are entitled to the same Sixth Amendment protections as facts regarding the offense.

The second area involves a need for rehearing en banc rather than a petition that has already been granted. In three cases in the past two weeks, the Ninth Circuit, without any consideration of the Doctrine of Constitutional Avoidance, has claimed that precedent requires mere preponderance in support of guidelines enhancements, even as to acquitted conduct. In Lyons, the court amended an opinion to state without citation: "The argument that the district court should have imposed a 'beyond a reasonable doubt' standard is foreclosed by our case law." In Pike, the Court allowed a five-level guideline increase based only on proof by a preponderance, citing to a pre-Booker case (Riley) in which the defendant agreed that the preponderance standard applied. Most recently in Mercado, the court allowed enhancement of the guidelines based on acquitted conduct, with Judge Betty Fletcher dissenting based on a careful analyses of the constitutional issues.

In Mercado, neither majority nor dissent exercised the available option of avoiding the constitutional disagreement by resolving the case on statutory grounds. The majority simply relied on the Supreme Court opinion in Watts, which the Booker majority specifically found did not address the relevant constitutional issues, and the other Circuits' adherence to use of acquitted conduct to increase sentences. The latter point is especially unpersuasive: in the Sixth Amendment arena, not a single Circuit anticipated Apprendi or Blakely. Judge Fletcher fleshes out the historical bases for the Supreme Court's Sixth Amendment jurisprudence, which she finds unreconcilable with sentencing based on acquitted conduct.

These three cases should be reheard en banc, separately or together, to do what thus far the Ninth Circuit has not done: analyze the reasonable doubt requirement in the context of both the Supreme Court’s post-Apprendi jurisprudence and in light of the Doctrine of Constitutional Avoidance. From the time Booker came down, the residual Fifth Amendment reasonable doubt question has needed an answer, especially given the lack of statutory instruction on the burden of proof (briefed and blogged as summarized here).

Justice Ginsburg’s Cunningham opinion provides key support for the reasonable doubt standard. The phrase "sentence-elevating factfinding" is a great synonym for what routinely occurs in federal court regarding guideline facts "neither inherent in the jury’s verdict nor embraced by the defendant’s plea." Judge Ginsburg traces the history of the Court’s recent Sixth Amendment jurisprudence to the Jones case, which invoked the Doctrine of Constitutional Avoidance to construe the carjacking statute to require Fifth and Sixth Amendment rights regarding aggravating factors that increased the statutory maximum. The emphasis on Jones and constitutional avoidance is very helpful because most of the Jones analysis focuses on the Fifth Amendment and Winship, whereas Booker is strictly a Sixth Amendment case. The Fifth Amendment right to deprivation of liberty only based on facts proved beyond a reasonable doubt requires a different, and stricter level of compliance, as we know from the contrasting cases on retroactivity: "yes" on reasonable doubt (Ivan V. and Hankerson); "no" on judge rather than jury where the reasonable doubt right is intact (Summerlin).

While addressing the Sixth Amendment, Cunningham clearly expresses the constitutional norm that increased punishment should be predicated on facts proven beyond a reasonable doubt. This last point will likely be developed as the Court addresses the presumption of reasonableness in Rita. As set out in Guidelines Appeals: The Presumption of Reasonableness and Reasonable Doubt, 18 Fed. Sent. Rptr. 170 (Feb. 2006), the presumption of reasonableness itself is a powerful argument for the reasonable doubt standard as a matter of Fifth Amendment law, especially in light of the Supreme Court's law on presumptions in criminal cases. And even without a presumption, if a sentence would be unreasonable, even though within a statutory maximum, without the higher guideline range as a starting point, doesn’t that exactly match a "sentence-elevating factfinding"? Third Circuit Judge Sloviter, in a dissenting opinion, has already found a Fifth Amendment violation based on draconian results from findings by a mere preponderance (as blogged here).

The Grisel en banc argument is set for March 22, 2007. We are hoping petitions for rehearing en banc will be filed in each of the three reasonable doubt cases. Meanwhile, both at the trial level and on appeal, we need to carefully preserve our clients’ rights in ACCA cases and in all sentencings based on controverted facts that increase the guideline range, under both the Constitution and under the relevant statutes as construed using the Doctrine of Constitutional Avoidance.

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

Case o' The Week: Do The Right Thing - Mageno, Waiver, and Prosecutorial Misstatements During Closing Argument

 In Maloney, the government acknowledged error – but only during an en banc argument, and only when pinned down after a truly excruciating exchange with the Court.

   Far better, it appears, for the government to Do The Right Thing and flag error when it sees it. United States v. Mageno, 2014 WL 3893792 (9th Cir. Aug. 11, 2014), decision available here.

Players: Decision by Judge Berzon, joined by Judge Fisher. Dissent by Judge Wallace.

Hon. Marsha Berzon

Facts: Nancy Mageno’s godson dealt drugs, and Mageno translated for him. Id. at *1. A DEA agent heard her on a half-dozen calls, of suspicious nature – but not expressly mentioning meth. Id. at *1-*2. She testified at trial that she did not know her godson dealt drugs, and her godson testified on her behalf. Id. at *3. Over defense objection, the government was limited to one specific question of the godson regarding his prior deportation: he was asked if he was deported for trafficking meth. Id. at *4. From that sole question, the government argued (repeatedly) at closing that Nancy Mageno knew her godson had been previously deported for meth. Id. at *3-*4. No facts in evidence supported that argument. The defense did not object at trial or on appeal after Mageno was convicted. Id. at *4. The first flag was when the government raised this error in its appellate briefing. Id.

Issue(s): “[T]he government raises, as separate error, the prosecutors’ repeated misstatements during closing argument that [the godson] had testified to [the godson’s] deportation for dealing drugs. Mageno did not object to the government’s misstatement of [her godson’s] testimony at trial, did not raise this argument in her opening brief, and did not adopt it as a ground for reversal until oral argument. Should we consider the government’s error under these circumstances?” Id. at *4.

Held: “We conclude that we should.” Id.

Of Note: The ultimate holding – that the prosecutor’s arguments rose to plain error – is great. What is particularly interesting, however, is Judge Berzon’s thoughtful discussion of waiver. Over Judge Wallace’s dissent, Judge Berzon carefully works through the practical impact, and the historical background, of Rule 52. Id. at *5-*7. Waiver is an important appellate principle, and Mageno’s analysis is worth a careful defense read (particularly the Court’s emphasis on the nature of this criminal case, and the fact that a government representative erred). Id. at *7.

How to Use: To get to reversal, Judge Berzon must navigate the treacherous shoals of Olano plain error. She does so admirably, and the result is a very useful discussion regarding a prosecutor’s misstatements at closing argument. Id. at *7-*12. Of particular interest is the rejection of the general cautionary jury instructions as a “cure-all.” Id. at *9. Those instructions were never expressly tied to the misstatements, so did not vitiate the error. Id. Judge Berzon also rejects the government’s attempt to salvage the conviction by arguing the prosecutor did not intentionally misstate the evidence. Id. at *11. The prosecutor’s statements may not have been intentional misconduct, but they were “exceedingly reckless.” That, Judge Berzon explains, is enough. Id. at *12. Judge Berzon rightly ends the decision by commending the government for “bringing the missteps in this case to our attention,” but because “the government also created the problem” concludes the Court must “reverse Mageno’s conviction so that she may have an untainted shot at maintaining her innocence without the prosecution’s damaging misstatements.” Id. at *12.

                                               

For Further Reading: Seven years ago, the formidable Judge Betty Fletcher wrote a beautiful dissent attacking the use of acquitted conduct as relevant conduct at sentencing – using the Sixth Amendment as the foundation of her argument. See blog on Mercado here. 

  Is the Sentencing Commission finally coming around to Judge Fletcher’s view? In its official list of priorities, the Commission promises a multi-year effort to “simplify the operation of the guidelines,” including the examination of the “use of acquitted conduct in applying the guidelines.” See Notice here.  

   A spark of interest, worth fanning into a flame over the upcoming year. 

Image of "Do the Right Thing" from http://www.licknyc.com/wp-content/uploads/2014/07/licknyc_remebering-do-the-right-thing-25-years-later_01.jpg

Image of the Hon. Judge Marsha Berzon from http://www.brennancenter.org/sites/default/files/legacy/JordeSymposium65.jpg 

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

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US v. Mercado-Moreno, No. 15-10545 (8-28-17)(Tallman, Ikuta, & Oliver). This case concerns a district court's quantity findings when deciding a reduction of sentence pursuant to a retroactive Guideline amendment.  In this instance, the 9th found no error in the second district court concluding that the retroactive amendment did not apply as the first court had determined that the amount of meth for which the defendant was responsible did not lower his guidelines.  Concerning findings, the 9th holds "that when deciding a 3582(c)(2) motion, a district court may supplement the original court's quantity findings only when supplemental findings are necessary to determine the defendant's eligibility for sentence reduction in light of the retroactive Guideline." Further, "a district court has broad discretion in how to adjudicate 3582(c)(2) proceedings, including whether to hold a hearing when making supplemental findings of drug quantity." (5)

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/28/15-10545.pdf

US v. Mercado, No. 05-50624 (1-22-07). The 9th (Fernandez joined by Graber) hold that acquitted conduct can still be used in sentencing. The defendants here were charged with RICO and conspiracy to distribute narcotics, but were acquitted on murder charges. The sentencing court still considered the murders, and sentenced them to the stat max (20 years) as a result. On appeal, defendant argued that Apprendi and Booker effectively overruled Watts. The 9th said "no," and that Watts, although shaky, still was controlling, as all the other circuits held. The reasoning was the lesser burden of proof, and the discretion of the judge under the advisory guidelines. In a spirited dissent, B. Fletcher castigates the reasoning, and argues that Watts has been overruled on both policy and constitutional grounds as the jury verdict should end the matter under the Sixth Amendment. The dissent is the opening brief for the cert petition.

Benitez v. Garcia, No. 04-56231 (1-22-07). The 9th grants a petition per curiam in an opinion that replaces the one filed May 23, 2006. The petitioner was extradited from Venezuela on murder charges, but the conditions were that he not face death, nor a sentence of longer than 30 years. In state court, he was sentenced to 15 years to life. The district courts held that the claim was either not ripe, nor not in violation of the treaty. The focus should be not on time "served" but on the sentence imposed, because that was the understanding when Venezuela allowed extradition under the express terms of the treaty. The 9th held, therefore, that the sentence of 15 to life was in violation of the terms of extradition. The California state courts acted unreasonably. The petition granted for a resentencing and the term cannot exceed 30 years.

Case o' The Week: A Good Win, and a Tremendous Loss -- Wolf Child and Conditions of Supervised Release

The Honorable Judge Betty Fletcher

An important win in the Ninth is sadly overshadowed this week, by the loss of one of the Ninth’s (and nation’s) leading jurists: the Honorable Betty Binns Fletcher.

United States v. Wolf Child, 2012 WL 5200347(9th Cir. Oct. 23, 2012), decision available here.

Players: Big win for Dan Donovan, Federal Defenders of Montana alumnus. Decision by Judge Reinhardt, joined by Judges Schroeder and M. Smith.  

Facts: Wolf Child pleaded guilty to attempted sexual abuse of a 16-year old. Id. at *1- *2. At sentencing, the district court imposed a contested special condition of supervised release. Id at *1.. The court prohibited Wolf Child from residing with, or being in the company of, any child under the age of 18 – including his fiancée, and daughters – without prior written approval of his probation officer. Id. The court imposed this condition “on the basis of a record devoid of evidence supporting the need for such a restriction with respect to his intimate family members.” Id.

Issue(s): “Wolf Child . . .  appeals [the] special condition of supervised release . . .” Id. at *1.

Held: “We hold that the fundamental right to familial association, implicated by the parts of the special condition prohibiting Wolf Child from residing with or being in the company of his own daughters and socializing with his fiancée, is a ‘particularly significant liberty interest.’ The district court was therefore required to follow an enhanced procedural requirement to make special findings on the record supported by evidence in the record, that the condition is necessary for deterrence, protection of the public, or rehabilitation, and that it involves no greater deprivation of liberty than reasonably necessary. Because the district court made no such findings regarding the imposition of the special condition, and it conducted no individualized examination of Wolf Child's relationship with the affected family members, it committed procedural error with regard to these specific individuals. Moreover, because of the absence of any evidence in the record that would support the limitations on the fundamental liberty interests at issue, we hold that special condition 9, as applied to restrict Wolf Child's ability to reside or socialize with his own children and with his fiancée is substantively unreasonable. In addition, we conclude that special condition 9 is overbroad both by virtue of prohibiting Wolf Child from being in the company of any child under the age of 18 under any circumstances and by similarly prohibiting him from dating or socializing with anybody who has children under the age of 18, regardless of the circumstances, without prior approval of his probation officer." Id. at *1.

Of Note: Judge Reinhardt writes a beautiful explanation of review of conditions of supervised release – a highly-commended primer. Id. at *3-*4. The broad Carty/Zavala deference familiar at sentencing does not flatly apply in this context: instead, when conditions of supervised release implicate a “particularly significant liberty interests” greater individualized showings are required (and greater appellate scrutiny merited). Id. at *3.

How to Use: Wolf Child immediately reverberated in the district courts. In N.D. Cal., one careful DJ has already put the government on notice of Wolf Child’s requirements for individualized showings. It is a timely decision: Probation now routinely seeks non-individualized and intrusive S.R. conditions, parroting blanket requirements dictated by D.C. (including mandatory polygraphs for putative “treatment”, with no non-pros protections.) Wolf Child is a welcome tool to fight Probation’s “one size fits all” approach to supervised release.   

                                               

For Further Reading: Our country lost a legendary advocate for justice with the recent passing of the Hon. Judge Betty Fletcher. Others have commented on her historical role in the Ninth. See New York Times article here. 

         We here pay tribute to Judge Fletcher’s extraordinary contributions to the defense of indigent clients. In sentencing, in Fourth Amendment litigation, in criminal discovery, and in capital cases, Judge Fletcher was always a voice for the voiceless, a powerful defender of the powerless, and a fierce protector of constitutional protections. For a small slice of her remarkable legacy in federal criminal justice jurisprudence, see collection of blogs here.

Everyone has their favorite B. Fletcher opinion. For sheer intellectual honesty, beauty in legal writing, dogged independence, and good old-fashioned Liberal instincts, ours is her post-Apprendi dissent on acquitted conduct in sentencing, in United States v. Mercado, 474 F.3d 654, 658 (9th Cir. 2007), summarized here.

     A tremendous loss to the Ninth, and to everyone dedicated to the defense of indigent clients.

Image of the Honorable Judge Betty B. Fletcher from http://sphotos-a.xx.fbcdn.net/hphotos-snc7/c0.0.300.300/p403x403/396173_10151122152380784_2089546632_n.jpg

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

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