1.  Shepherd v. Unknown Party, Warden, FCI-Tucson, No. 19-15834 (per curiam; panel is Schroeder, M. Smith, and VanDyke) –- [Ed. note: This is an AZ FPD case.]  The Ninth Circuit held that a federal prisoner cannot challenge a sentence imposed under the advisory Guidelines by way of a § 2241 habeas petition, because that challenge does not qualify as a claim of “actual innocence” like the one recognized in Allen v. Ives, 950 F.3d 1184 (9th Cir. 2020).  The per curiam opinion notes that it found persuasive some statements in Judge Fletcher’s opinion concurring in denial of rehearing en banc that suggested this limitation on the holding in Allen.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/07/22/19-15834.pdf

 

2.  United States v. Warren, No. 20-10213 (Graber with Tashima and Vratil (D. Kan.)) –- The Ninth Circuit held that a defendant who pleaded guilty to conspiracy to engage in sex trafficking “in violation of Title 18, United States Code, Sections 1594(c) and 1591(a)(1), (b)(2)” was convicted only of the conspiracy count, and thus affirmed the judgment as written without correcting it to remove the references to section 1591.  The judgment is not required to list the substantive offense that is the object of the conspiracy, but it is not error for it to list that offense.  The panel noted that the defendant was disqualified from certain programs in BOP because it thought he had been convicted under § 1591, but told him to furnish BOP with a copy of the opinion which clarifies that he was convicted only of the conspiracy count under § 1594.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/07/22/20-10213.pdf

 

3.  United States v. Halamek, No. 19-10366 (M. Smith with Schroeder and VanDyke) –- The Ninth Circuit affirmed a conviction for two counts of interstate transportation of a minor with intent to engage in sexual activity, but remanded for resentencing because the sentence on one of the counts exceeded the statutory maximum.  It rejected on plain-error review a Daubert challenge to expert testimony regarding grooming of victims, on abuse-of-discretion review a challenge to admission of prior acts of child molestation under FRE 414, and on plain-error review a challenge to a Guidelines upward adjustment for molesting a child under the “custody, care, or control” of the defendant.  It also rejected on plain error a challenge to the improper criminal history category because the defendant could not show prejudice.

The defendant picked up his cousin’s 12-year-old stepdaughter from a school bus stop outside of Safford, Arizona, and took her camping a short distance away in New Mexico.  During this excursion, he molested her.  While they were camping, an Amber Alert went out for the girl because of the defendant’s wife’s fear that he might touch the girl improperly.  Witnesses saw the defendant and the girl walking back toward Arizona, and called the police.  He was charged with one count of transporting a minor across state lines with intent to engage in criminal sexual activity, in violation of 18 U.S.C. § 2423(a), and one count of traveling in interstate commerce with intent to engage in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b).  A jury convicted him on both counts, and the judge sentenced him to 35 years imprisonment on both counts, to run concurrently.

Before trial, the government noticed the expert testimony of Karen Blackwell on the subject of grooming for sexual abuse.  Defense counsel did not object to her testimony.  On appeal, the court held that admitting her testimony was not reversible plain error.  First, the court cleaned up (finally!) the law in this area.  In the 1997 case of United States v. Bighead, 128 F.3d 1329 (9th Cir. 1997), the court held that “experiential expert testimony” was not subject to Daubert’s gatekeeping requirements.  Two years later, the Supreme Court held in Kumho Tire v. Carmichael, 526 U.S. 137 (1999), that all expert testimony was subject to Daubert’s gatekeeping requirements.  The panel wrote that Kumho Tire overruled Bighead to the extent that Bighead said the expert testimony in question here was categorically exempt from Daubert’s gatekeeping requirements.  But the panel found no reversible plain error here; defense counsel’s lack of an objection to the expert’s qualifications meant that the district court correctly could have relied on the government’s assertions about the expert’s qualifications in order to satisfy Daubert.

Evidence of prior acts of molestation were properly admitted under FRE 414 because they were probative of the defendant’s intent to molest the girl in this case and not unduly prejudicial under FRE 403.  The district court did not abuse its discretion in admitting this testimony.

Applying the 2-level upward adjustment for the victim being in the “care, custody, or control” of the defendant was not reversible plain error.  The testimony at trial showed that the defendant “played a caretaking role” in the girl’s life.

Because the statutory maximum sentence for a violation of § 2423(b) is 30 years, the 35-year sentence on that count is illegal, and the government conceded that the case should be remanded for resentencing.

The court agreed with the parties that adding criminal history points for a state-court conviction that arose from the same conduct in this case was improper, and that the defendant’s criminal history category was thus improperly elevated from II to III. But this was not reversible plain error because the Guidelines range in both categories was the same in this case.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/07/22/19-10366.pdf

Noguera v. Davis, No. 17-99010 (7-20-21)(Bade w/Graber;  incurrence and dissent by Thomas). The 9th affirmed relief on a capital sentencing IAC. Counsel failed to develop mitigation. The majority reversed relief on the guilt/innocence phase, finding no conflict with counsel having represented other witnesses. Thomas dissented on this claim.

Congrats to Emily Groendyke and Celeste Bacchi, Deputy Federal Defenders, Cal Central (L.A.).

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/07/20/17-99010.pdf

US v. Williams, No. 20-30201 (7-16-21)(Miller w/Gould & Clifton). The 9th considers a sentence under Supervised Release. A guideline sentence for violating SR by committing another offense is greater if the new crime is punishable by a term of imprisonment exceeding one year (Grade B). But what if the state mandatory guidelines make the maximum sentence under one year even if the stat max is greater? The 9th holds that the mandatory guidelines sentence of under one year controls. The sentencing court had said it would impose the same sentence regardless, but the 9th said “take another look” with the correct guideline range (Grade C). In resentencing, the 9th continues, the court can run the sentence consecutive to a state sentence not yet imposed but cannot run it consecutive to any future federal sentence.

Congrats to Houston Goddard, Fed Def of Eastern Wa (Spokane).

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/07/16/20-30201.pdf

US v. Valdez-Lopez, No. 20-10004 (Miller w/Forrest; Fletcher concurring).  Vindictiveness? What vindictiveness? That essentially is the holding when, upon resentencing 8 years after an unconstitutional sentence -- “hostage taking” was not a categorical COV -- a different judge from the original sentencing judge, who had retired, imposed a higher sentence. The original sentence was 240 months; the new sentence was 300 months. Why? Because the new sentencing judge gave greater weight to the impact on the victims of the hostage taking. The 9th upheld the new, greater sentence, because the presumption of vindictiveness under Pearce goes to vindictiveness by the same judge as opposed to a new sentencing by a different judge, who had granted the relief. Concurring, Fletcher agrees with the precedent but, as he writes: “What does not make sense, and should not be the law, is for a resentencing judge to impose a longer sentence when the only change in the record is the fact that petitioner successfully challenged part of the original sentences as unconstitutional.” (16).

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/07/16/20-10004.pdf

US v. Lopez, No. 19-10017 (7-6-21)(Bea w/Wallace; partial dissent by Bennett).  This is an appeal from a conviction of an attempt to entice a minor to engage in prohibited sexual activity and an attempt to transfer obscenity to a minor under 16 in violation of 18 USC 2422(b) and 1470. The defendant was an Airman stationed in Guam, and the activities occurred there and on the base. The 9th in an issue of first impression, under the Assimilative Crimes Act, holds jurisdiction is present if any offense could have been charged; not necessarily if the person could have committed it. The issue revolves whether an act was to take place on base, which would make it Special Maritime and Territorial Jurisdiction, or off base, which is Assimilative Act Jurisdiction. Dissenting, Bennett argues the majority improperly amends the indictment.  The indictment handed down had jurisdiction premised on acts on the base, which is a different jurisdictional basis.

The panel all agreed that error occurred in not admitting sections of the videotaped confession that put statements in context.  FRE 106 (completeness) required it. The error though was harmless, given the defendant’s testimony and evidence.

Valiant fight by Joshua Weiss, Deputy Federal Public Defender, FPD Cal Central (Los Angeles).

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/07/06/19-10017.pdf

US v. Keller, No. 20-50247 (7-1-21)(Per curiam w/Wardlaw, Gould, & Owens). This is a compassionate release decision. The 9th considers whether CR’s requirement to “fully exhaust” all administrative rights creates a jurisdictional bar or instead imposes a mandatory claim-processing rule. Subject matter jurisdiction can be raised at any time; claim-processing rules promotes the orderly progress of litigation by requiring the taking of procedural tests at specified times.

Joining five other circuits, the 9th holds that CR’s administrative exhaustion requirement imposes a mandatory claim-processing rule that must be enforced when properly invoked. The 9th so holds because (1) the statutory text is clear; and (2) it promotes good policy for orderly processing, disincentivizes line jumping, and allows administrators to prioritize. Bottom-line: CR requires administrative exhaustion.

In this case, the 9th affirmed the district court’s denial of an exhausted claim (filed first); and then the denial of unexhausted claim (filed second, after the denial of the first). It was error for the court not to dismiss for failure to exhaust, but the error was harmless.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/07/01/20-50247.pdf

 

US v. Melgar-Diaz, No. 20-50010 (6-29-21)(Bress w/Bybee & Cardone). Is a 1325(a)(1) conviction unconstitutional because (1) it violates the non-delegation doctrine; and (2) is unconstitutionally vague. Affirming the conviction, the 9th rejects both challenges. The non-delegation doctrine challenge attacks Congress’s giving the power to Immigration to determine “the time and place” of entry without direction or standard. The 9th finds the challenge misperceiving the doctrine: Congress made it a crime to enter without checking in – the time and place is properly a ministerial function given to the Executive. The designation is proper, just as an example of requiring crossing in crosswalks, and leaving it to the government to designate crosswalks. The scheme itself supports such discretion. The 9th also dismisses the challenge for vagueness—both facially and as applied. There is sufficient notice.

Doug Keller (CJA) and Kara Hartzler, Fed Def of San Diego, righteously raised interesting constitutional challenges.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/29/20-50010.pdf

Jones v. Ryan, No. 18-99005 (6-28-21)(Thomas w/Hawkins & Christen). Note: This is an Az FPD-CHU case. The 9th granted capital habeas relief based on IAC of (1) state PCR counsel and (2) state trial counsel. The IAC occurred in the sentencing phase. It resulted from failure of PCR counsel to seek a neuropsychological expert. Trial counsel was IAC for failure to request and develop mental health experts at the sentencing phase. The failure of both counsel met the Strickland standard, and was prejudicial. Petitioners claims arose under AEDPA, where great deference is afforded, but the 9th concluded the state court’s findings under Strickland were unreasonable.

Congrats to Amanda Bass and Leti Marquez, AFPDs in the FPD CHU (Phoenix & Tucson).

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/28/18-99005.pdf

US v. Velazquez, No. 19-50099 (6-23-21)(Paez w/Melgren; Bade dissenting). The 9th vacates a conviction and remands for prosecutorial misconduct in closing argument. This was a drug importation case with a “blind mule” defense. The majority summarizes the holding nicely: “During closing argument, the government compared the reasonable doubt standard to the confidence one needs to “hav[e] a meal” or “travel to . . . court”—without worrying about the “possib[ility]” that one will get sick or end up in an accident. Velazquez claims that this improper argument, and the district court’s failure to cure it, caused him prejudice. We agree.” (4).

Dissenting, Bade concedes the prosecutor’s comments were “unhelpful” and “potentially misleading.” However, she states the comments were taken out of context and the argument did not “infect” the trial unfairly. She would find any error harmless in light of the “overwhelming” record of guilt.

“No argument” that Carl Gunn, CJA, deserves congrats for the righteous win. 

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/23/19-50099.pdf

Dickinson v. Shinn, No. 20-15175 (Bade with Tallman and Bybee) [Ed. note – This is an Arizona FPD case.] –- The Ninth Circuit affirmed the denial of an Arizona state prisoner’s § 2254 petition, holding that his claim of ineffective assistance of counsel relating to an erroneous jury instruction was not “substantial” under Martinez v. Ryan, 566 U.S. 1 (2012), such that the procedural default of that claim during state postconviction proceedings could be excused.

The petitioner was tried in an Arizona state court for attempted second-degree murder stemming from an altercation with a friend in which he attempted to run the friend down with his truck.  The jury was instructed that it could convict if it found that the petitioner intended to inflict serious bodily injury or to kill.  This is an incorrect statement of Arizona law, but defense counsel did not object.  The jury convicted, and the petitioner was sentenced to 14 years in prison.  On direct appeal, the court held that the instruction was incorrect but that the petitioner did not show that his trial was fundamentally unfair, and so affirmed the conviction.  Postconviction counsel did not raise any claim regarding defense counsel’s failure to object.

In federal court, a magistrate judge appointed counsel for the petitioner and recommended granting relief on the claim of IAC for failing to object to the instruction.  The district judge, however, rejected that recommendation.  The panel affirmed, rejecting two theories of prejudice under Strickland.  First, the panel said that the loss of a more favorable standard of review on direct appeal is not the kind of prejudice that counts under Strickland for assessing the outcome of the trial.  Second, the panel said that because there was overwhelming evidence of the petitioner’s intent to kill, an objection to the jury instruction did not present a reasonable likelihood of a different outcome at trial.  Thus, the panel concluded, the defaulted IAC claim was not “substantial,” and the district court correctly denied the claim as procedurally defaulted.

Kudos to AFPD Molly Karlin for forcing a 35-page opinion on something that the court didn’t find “substantial.”

The opinion is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/22/20-15175.pdf

US v. Parlor, No. 30269 (6-21-21)(Bress w/Miller; Berzon dissents). This opinion concerns three firearm enhancements in sentencing a prohibited possessor. It illustrates the Rube Goldberg nature of connections, especially when it comes to “relevant conduct.” The enhancements were for the number of firearms; stolen firearms; and connection with drug trafficking. The majority finds no error in applying the enhancements.

In so ruling, the majority finds that nearly three month interval between the charged firearms (in a controlled buy) and firearms found upon arrest were a tight enough connection. Listing a firearm as stolen is sufficient evidence for an enhancement. And, drug trafficking is found because the firearms were near drug paraphernalia (baggies, scales). The small amount of drugs does not discount the connection. Last, the 9th found no plain error in the standard of review (preponderance rather than “clear and convincing”) because substantial rights were not affected, the sentence not doubled and was capped at the stat max, and counsel stated the standard was correct.

Berzon, dissenting, argues that the commentary of the Guidelines “strongly suggests” that illegal possession of additional firearms, by themselves, does not trigger relevant conduct. There was no evidence of a common scheme, or connection. Many months lapsed between the two firearms. The court abused its discretion by relying on one line of hearsay in the PSR without assessing its reliability. The line was from a CI. He traded guns for drugs and bought drugs in the past. The CI told this to the agents and the agents relayed it to the PO. Defense counsel objected when the court indicted it formed a basis for relevant conduct. The court should have held a hearing.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/21/19-30269.pdf

US v. Charley, No. 19-10133 (6-11-21)(Bea w/Cardone; Bumatay concurring). Note:  This is an AZ FPD case (and win). The 9th vacated convictions for assault and remanded. The defendant raised self-defense in her striking her boyfriend with a rebar. In support, she called witness about his prior recent assaults. The prosecutor, in rebuttal, brought up specific violence roughly two years old with other family members. On appeal, the 9th held such evidence to be inadmissible under FRE 404(a)(character) and 404(b)(other acts). Possibly the door was opened for reputation or character under FRE 405, but the specific instances were really for propensity and there was no tie for 404(b).

The opinion provides a useful overview of 9th precedent for prior assaults. The precedent, notably US v Bettancourt, 614 F.2d 214 (9th Cir. 1980), states that prior assaults are rarely permissible under 404(b). Such acts are more often spontaneous and quick rather than deliberative and carefully thought out.

The 9th affirmed the conviction for false statements to the FBI. The defendant had lied, even after warned that such falsehoods could be criminal.

The concurrence questioned whether 9th precedent, which cautions that prior assaults can rarely be used for intent, is too rigid.

Congrats to AFPD Molly Karlin, FPD Az (Phoenix)for the win. Kudos to AFPD Susan Anderson for fighting against admission and making the record.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/11/19-10133.pdf