Sunday, September 25, 2022

1. US v. Chen, No. 20-50333 (9-14-22)(Navarro w/Rawlinson & Christen). “We hold that a district court may consider the First Step’s non-retroactive changes to sentencing law, in combination with other factors particular to the individual defendant, when determining whether extraordinary and compelling reasons exist for a sentence reduction under 18 U.S.C. 3582(c)(1)(A).” p. 3.

The issue was stacked 924(c)s. The sentencing court can consider the change in law.

Congrats to Joshua Weiss & Kathryn Young, Deputy FPDs, Cal C (L.A.).

2.  US v. Fowler, No. 21-30172 (9-13-22)(Miller w/Ikuta & Pregerson). Affirming denial of a suppression motion, the 9th upheld the cross-deputization of a Montana state trooper to enforce tribal law when there is a gap in the jurisdictions. The trooper stopped the defendant, an Indian, on a highway cutting through the reservation. The cross-deputization agreement was valid. The fact the deputy did not carry an identification card which clearly violates the agreement did not rise to a serious enough violation to cause the sovereign parties to seek a remedy.

3. US v. Montoya, No. 21-50129 (9-13-22)(Lee w/Ikuta; concurrence by Forrest). The 9th wouldn’t let appellant withdraw her guilty plea. The appellant argued the court’s saying it “rejected” a non-binding sentencing recommendation transformed the plea to an 11(c)(1)(C). “No,” says the 9th; the word didn’t make it what it wasn’t. The 9th also held failing to orally recite the standard conditions was not err. US v Napier, 463 F.3d 1040 (9th Cir 2006) does not require it. At the COP colloquy, the court’s failure to say the defendant had a right to a jury trial did not affect her rights. Concurring, Forrest regards Napier as wrong. The “standard” conditions are too broad a definition.

Monday, September 05, 2022

1. US v. Latu, No. 19-10069 (Nguyen w/Wardlaw & Owens). The 9th affirms a conviction for Assault resulting in serious bodily injury that occurred at a federal detention center. The victim, also a detainee, refused to testify. His statements as to the injuries and pain came in, over a Crawford confrontation objection, because the statements fit into a hearsay exception (medical treatment) and they were given in medical treatment as opposed to questioning or law enforcement. This was true even though the medical nurse was a BOP employee. The primary purpose was treatment for traumatic injuries and medical care. Of note, the 9th emphatically states it is not adopting a categorical rule or presumption that all statements to medical staff or during treatment is admissible and not Crawford barred. The 9th emphasizes sometimes, the statements are testimonial and subject to Crawford. The factors here are the role of the nurse (treatment and not questioning), the trauma, and the informality.


2. Wright v. Alaska, No. 19-35543 (8-31-22)(Murguia w/Nelson; concurrence by Rawlinson). Custody on a failure to register as a sex offender charge  is not “custody” for habeas jurisdiction to challenge underlying state convictions that gave rise to the requirement to register. The Supreme Court dealt with the argument in Alaska v. Wright, 141 S. Ct 1467 (2021). Petitioner’s attempt here to argue a “restraint-on-liberty” condition by registration also fails. He was not in custody. Rawlinson concurs, stating the Court’s per curium decision dealt with both theories and the “rehash’ in this opinion was not necessary.

US v. Anderson, No. 20-50207 (8-25-22)(Rawlinson w/Owens; dissent by Fletcher). The 9th considers whether a contracted private security guard threatened by defendant is an “official” under 18 USC 115 through a cross reference to 1114 which extends to those assisting officials.  The majority says “yes,” while acknowledging the ambiguity and confusion in the statute. The majority concludes the term “official” in 115 is not meant as a limitation. The dissent, Fletcher, says: yes it should. The statute is ambiguous and the language must be read as a limitation. It should not apply to this guard as an “official.” The Rule 29 should be granted. The majority joins the 3rd and 8th Circuits.

Interesting statutory issue and one that may have appeal to SCOTUS.

Righteous fight by Gia Kim, Deputy Public Defender, Cal Central (Los Angeles).


1. Nguyen v. Frauenheim, No. 20-56284 (8-22-22)(M. Smith w/Bade & VanDyke). The 9th affirms denial of a habeas petition, finding no Batson violation. The Batson challenge went to gender and mixed race. The 9th reiterates that Teague bars new rules being established in habeas. As such, looking at a class of Hispanic women would be a new class (Hispanic and gender). There was also no Batson violation as to the Hispanic juror.


2. US v. Ramirez-Ramirez, No. 21-10127 (8-22-22)(Paez w/Hawkins & Watford). Summary by Ryan Moore, AFPD (Appeals), D. AZ, who argued the case: “The CA9 holds on plain error that the 6A public-trial right applies to the phase of announcing guilt in a bench trial. Only the CA2 so held previously. The district court announced its findings of guilt about a week after the bench trial only in writing, while the defendant sat in jail. The panel held that the 6A requires findings of guilt be made in open court, even when the factfinder is the judge. Although the panel also held that the district court’s later reiteration of its findings at sentencing satisfied the 6A’s open-court requirement, it nonetheless remanded for specific findings of fact because the district court had denied as untimely a request for specific findings made after the written announcement of guilt, which was “legally insufficient.” Unfortunately, the plain error standard doomed what the panel called “a strong argument” that the guilt by email scheme also violated the rights to be present under the 5A and Rule 43(a). And we really should have gotten a new trial for the 6A violation, in my opinion, because a mere reiteration at sentencing of a decision made long after the judge has moved on is not a substitute for the moment of truth when the judge faces a defendant in trial and makes/announces the decision in open court. But the caselaw isn’t great on the remedy for this structural error and a new trial was always a longshot.


3. US v. Jaimez, No. 19-50253 (8-23-22)(Bress w/Fitzwater; Concurrence/dissent by Owens). The 9th affirms convictions for RICO, money laundering, and conspiracy. There was sufficient evidence. Owens dissents on money laundering, arguing the defendant, a low level “foot soldier,” did not know the purpose of the money laundering actions was to conceal financial transactions. 

Crespin v. Ryan, No. 18-15073 (8-19-22)(Hurwitz w/Hawkins & M. Smith). The 9th affirms a conditional grant of habeas. This presents a Miller claim, narrowed under Jones v. Mississippi, 141 S. Ct 1307 (2021). Petitioner was 16 when charged with a capital offense. He pled to LWOP, pre-Miller. The 9th held he could challenge post-conviction. The 9th then held that Miller and Jones both require the court to exercise its discretion. Here, the trial court stated he had no discretion in sentencing and had to impose LWOP. The 9th rejects the State’s argument that the court could have rejected the plea. Rejection is not discretion in sentencing, and did not comply with Miller.

1. US v. Rodriguez, No. 21-50108 (8-17-22)(M. Smith w/Bade; concurrence by VanDyke). The 9th remands for resentencing. In sentencing for importation, the court erred in denying a minor role adjustment by misapplying the factors set out in 3B1.2(b). In denying the adjustment, the court failed to recognize the comparison is with an average participant in a particular conspiracy or enterprise; failed to consider a recruiter’s culpability in luring the defendant; failed to consider the degree of involvement in the factors; and failed to consider the totality of circumstances. The court tended to have a stark choice about applicability.  Upon resentencing, as to certain factors, the 9th instructs the court to focus on the scope of defendant’s knowledge of the entire criminal enterprise (which was limited); the fact he was paid a discrete amount rather than a percentage; and the receiving of instructions does not mean one plans or organizations conduct.

Concurring, VanDyke agrees with the remand. He writes to stress a court can consider evidence beyond the five factors listed in 3B1.2(b). He also states that running large quantities of drugs across the border can indicate a knowledge of participants involved.

This is a good case for use of “minor role” and the factored approach.


2. US v. Carter, No. 19-10411(8-17-22)(Bea w/Murguia & Berzon). This is a First Step Act issue about what changes and facts can be considered in using discretion to reduce a sentence in resentencing. The 9th states that Concepcion v US, 142 S. Ct 2389 (2022) allows (1) district courts to examine intervening changes in the law or fact in exercising discretion in reducing a sentence; (2) the court must consider nonfrivolous arguments in exercising discretion, and so changes of fact can be considered; and (3) the court must explain its reasoning. The 9th holds Concepcion abrogates 9th precedent in US v. Kelly, 962 F. 3d 470 (9th Cir. 2020). Kelly limited the First Step Act to sections 2 and 3 of the Fair Sentencing Act and the changes there. Concepcion expands the scope.

Congrats to David Porter, AFPD, Cal E (Sacramento).


US v. Magdaleno, No. 20-10390 (8-11-22)(Clifton w/M. Smith & Reiss). Siblings don’t qualify as an “intimate familial relationship”? At least not under plain error, and on this record, which involves a SR condition for the defendant, a member of the East Las Casitas Norteno street gang, not to associate with fellow gang members. His siblings and half-siblings are members of the gang. The 9th  considers Wolf Child, which holds that certain close family ties are fundamental liberty interests that need special findings and proof. The relationship with brothers and half-brothers, on this record, did not rise to such a relationship. The court did not procedurally err by failing to make certain findings; and did not err in imposing this condition on the record.

1. Fauber v. Davis, No. 17-99001 (8-5-22)(Bress w/Forrest; dissent by Watford). The 9th affirms denial of a capital habeas. Under AEDPA deference, the 9th finds no IAC when counsel failed to object to prosecutorial vouching. In closing,  the prosecutor read the cooperating witness’s plea agreement which state the prosecutor and court would assess testimony for truthfulness.

More concerning, the majority found no error in the exclusion from mitigation the State’s plea offer to life. Petitioner sought to introduce to counter the argument of future dangerousness. The majority concludes there is no clearly established federal constitutional law that holds an unaccepted plea is mitigating evidence. Even if it were, the majority concludes exclusion was not prejudicial.

Dissenting, Watford points to the need to counter the prosecutor’s full-throated argument the petitioner would kill again  if given LWOP. Watford argues federal law is clear on this point and it is not harmless.

Righteous fight by Deputy Fed Defenders John Crouchley & Ajay Kusnoor, Cal Central (Los Angeles).


2. Montiel v. Chappell, No. 15-99000 (Friedland w/Fletcher & Hurwitz)(8-5-22). The 9th affirms denial of a petitioner for IAC under AEDPA deference. The 9th concludes, again, the state supreme court’s summary denial of a review petition was on the merits. Even assuming counsel was IAC for failing to present expert evidence of diminished capacity due to substance abuse and a history of substance abuse, the state court was reasonable in finding there was no prejudice.


Wednesday, August 17, 2022

US v. Brown, No. 20-50313 (8-2-22)(Daniels w/McKeown & Ikuta). After such knowledge, what forgive? Sure, a bit poetic, but it comes into play with this “safety valve” defendant and the First Step Act. The First Step Act proscribes using information in a safety valve proffer from enhancing a sentence. The defendant gave a safety valve proffer, which disclosed other drug courier trips. The court referenced this as part of the 3553 factors, along with other information, in sentencing the defendant to a 78 month sentence: below the mandatory minimum and below the guidelines range, but higher than the government recommendation (71 months) and what the defendant wanted. The court focused on a variety of factors, including use of a minor in the transport, the length of involvement with the traffickers, the impact on the community, and the earning of considerable sums. The case thus turns on “enhancing.”

As a first impression, the 9th holds the sentence was not improper. A failure to reduce a sentence is not an enhancement. [The opinion cites extensive authority that a failure to reduce is not an enhancement.] The court considered a variety of factors – aggravating and mitigating – in fashioning this sentence. The First Step Act does not strip the court of the ability to consider the information in its sentencing discretion.

1.  United States v. Wright, No. 20-50361 (Bennett (D. Md.) with Berzon and Bea) –- The panel affirmed the denial of a motion for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A), holding that error in treating the Guidelines’s policy statement on compassionate release as binding can be harmless when the district court makes an alternative ruling based on the 18 U.S.C. § 3553(a) factors that is itself a proper exercise of sentencing discretion.  The panel also held that the defendant had abandoned his alternative request for home confinement by failing to separately argue it.

Kudos to Jessica Agatstein and Katie Hurrelbrink, Federal Defenders of San Diego, for a hard-fought appeal. 

The decision is here:


2.  Sansing v. Shinn, No. 13-99001 (Watford with Callahan; Berzon dissenting) –- [This is an Arizona CHU case.]  The panel denied a petition for rehearing and issued a revised opinion and revised dissent that does not change the previous outcome of the appeal (no relief, but Berzon dissented and would order resentencing) but accounts for the Supreme Court’s recent ruling in Brown v. Davenport, 142 S. Ct. 1510 (2022), which discusses how to apply harmless-error review (here, to a claim under Ring v. Arizona, 536 U.S. 584 (2002)) in habeas proceedings.  The panel did not allow further petitions for rehearing based on the revised opinion and dissent.

The revised opinion is here:

Monday, July 25, 2022

Creech v. Richardson, No. 10-99105 (W. Fletcher with Bybee and Christen) –- The Ninth Circuit affirmed the denial of an Idaho state prisoner’s habeas petition, in which he challenged a death sentence imposed at resentencing following Creech v. Arave, 947 F.2d 873 (9th Cir. 1991), rev’d in part, 507 U.S. 463 (1993).

The district court had certified discrete portions of the petitioner’s claim of IAC at sentencing for failing to present mitigating evidence.  Under Browning v. Baker, 875 F.3d 444 (9th Cir. 2017), the petitioner asked the court to broaden the COA to include the entire claim.  The court declined to do so, reasoning that the district court had effectively complied with the directive in Browning to “craft” the COA at “a higher level of generality.”  Plus, the district court had reexamined other parts of the claim when the case was remanded for further proceedings in light of Martinez v. Ryan, 566 U.S. 1 (2012).

The Idaho Supreme Court’s conclusion that absent mitigating evidence at resentencing did not affect the outcome of the proceeding was reasonable.  Resentencing took place before the same judge who had originally imposed the death sentence, and he took judicial notice of the evidence presented at the first sentencing hearing.  The only new evidence presented at resentencing related to the petitioner’s childhood sexual abuse.  Given the aggravated nature of the killing, this new evidence and other evidence that was allegedly absent from the resentencing would not have affected the outcome.

Because of Shinn v. Ramirez, 142 S. Ct. 1718 (2022), the district court could not consider new evidence presented for the first time in federal court under Martinez.  But even if it could, the court ruled that it would not have changed the outcome of the resentencing hearing.

The district court had dismissed some claims as subject to the second or successive petition bar.  The court reversed the dismissal of those claims but, instead of remanding them for consideration by the district court on the merits, addressed the merits of those claims and denied them.  These claims related to the validity of the underlying murder conviction, which the petitioner was permitted to challenge for a second time under Magwood v. Patterson, 561 U.S. 320 (2010).  These claims went to a potential conflict of interest in the public defender’s office and the trial court’s decision to deny the petitioner’s request to withdraw his guilty plea.

The court denied the petitioner’s request for a remand under Lackey v. Texas, 514 U.S. 1045 (1995), in light of the four decades that the peittioner has spent on death row.

Finally, the court denied the petitioner’s request to file replacement briefs in the wake of Ramirez, because that decision did not affect the court’s treatment of the claims in the appeal.

The decision is here:

Friday, July 22, 2022

US v. Bastide-Hernandez, No. 19-30006 (7-11-22)(en banc)(Owens; Concurrence by Friedland; Partial concurrence and dissent by Collins). Addressing whether a “Notice to Appear” (NTA) is jurisdictional in the context of a 1326 charge and an attack on the prior removal, the 9th writes: “Consistent with our own precedent and that of every other circuit to consider this issue, we hold that the failure of an NTA to include time and date information does not deprive the immigration court of subject matter jurisdiction, and thus Bastide-Hernandez’s removal was not ‘void ab initio,’ as the district court determined. We reverse the district court’s dismissal and remand for further proceedings.”  The defects of the NTA does not bar the immigration court from having jurisdiction. The requirements are more of a “claims processing” rule rather than a bar to the immigration court’s adjudicatory jurisdiction.

Friedland’s concurrence urges the government to abide by and confirm with the statutory requirements for the NTA.

Collins objects to note 10, which instructs the district court to reconsider its 1326(d) analysis, given US v. Palomar-Santiago, 141 S. Ct. 1615 (2021). Collins argues that once the 9th remands, it shouldn’t be directing the court to look at any particular issues.

Valiant fight by Paul Shelton of the Fed Defenders of E. Wash. (Yakima).

The decision is here:

Wednesday, June 29, 2022

US v. David, No. 20-50274 (6-15-22)(Bumatay w/Bress & Gleason).  Fed R Crim P 11(b)(1)(N) requires the court to inform the defendant of any appellate waiver.  In particular, Rule 11 requires that the court must address the defendant personally in open court. In this appeal, the defendant argues the failure of the court to personally address, and inform, him of the waiver during his change of plea was cause to make the waiver unenforceable. Under plain error, the 9th upheld the waiver. The defendant was questioned about the plea, specifically told of the waiver, and the plea was voluntary and informed.


US v. Manaku, No. 20-10069 (Per curiam w/Clifton, Nelson, & Collins; concurrence by Collins). Fed R Crim P 41(f)(1)(c ) requires a complete copy of a warrant to be left. It wasn’t. Only the first page was left. Defendant argues this clear violation of Rule 41 requires suppression. The trial court disagreed. The 9th affirms the denial of suppression.

Despite clearly violating Rule 41, the 9th holds denial of suppression was not warranted. The failure was not fundamental (clear constitutional violations). Rather, the violation was “technical,” and suppression only occurs if (1) the defendant was prejudiced; or (2) there was a deliberate disregard of the rule. Neither occurred here. The error was due to carelessness.

Concurring, Collins would find that the Supreme Court had overruled the requirement a warrant be produced on demand, as defendant had requested here, but only requires it to be left at the end of the search or leaving. With that, Collins concurs in the judgment that the failure was unintentional.


US v. Mathews, No. 19-56110 (6-13-22)(Forrest w/Kelly & M. Smith). The petitioner gets relief under Davis, 139 S. Ct.2319 (2019). A conviction under 18 USC 844(i) (property-damage destruction) is not a categorical “crime of violence” for 924c(3). The destruction could be to one’s own property and not solely the property of another. While the district court tried to use past precedent to divine congressional intent (an explosive bomb seems a COV), a categorical approach must be applied. The 9th joins the 4th, 6th, and 10th Circuits.

Congrats to Kara Hartzler, Fed Defs of San Diego.


1. US v. Tagatac, No. 21-10133 (6-10-22)(Nelson w/Bybee & Bolton). Hawaii’s second-degree robbery statute is divisible. Thus, the defendant’s conviction for the robbery is a “crime of violence,” and the court did not err in sentencing him as a career offender. Hawaii’s statute makes each subdivision a separate offense; and jury instructions require unanimity on the acts.

2. US v. Merrell, No. 20-30183 (6-10-22)(Hurwitz w/Sung; dissent by Boggs).  The First Step’s amendment of 924( c)(1) applies if a sentence imposed before passage was vacated and remanded. The sentencing slate had been wiped clean.

Dissenting, Boggs argues the text does not allow retroactive application, even if the sentence was vacated. Words, not possibly what Congress intended, controls.



US v. Mendez, No. 20-30007 (6-7-22)(McKeown w/Christen & Miller).  The 9th affirms a conviction under 18 USC 2251(a), which criminalizes conduct that leads a minor to engage in sexually explicit acts to produce a visual depiction. Here, placing a camera in the eye of stuffed animal to film an unaware teenage girl masturbating was clear conduct that fell within the scope of the statute. The appeal concerns “use” because the defendant did not coerce, persuaded, or entice the victim.  The 9th’s focus is on the conduct of the defendant and not the victim. The defendant’s acts “used” the victim. The 9th lines up with the numerous other circuits in this perspective.


US v. Werle, No. 20-36005 (6-3-22)(M. Smith w/Tashima & Nguyen). In Rehaif, the govt must prove the defendant knew he was a felon when he possessed a firearm. Here, the district summarily dismissed the 2255 because the court felt he did on the record. The 9th reversed. First, petitioner can overcome procedural default given the overwhelming weight of precedent. Second, though petitioner was sentenced previously to more than a year in prison and acknowledged he was convicted of felonies, such facts do not conclusively show he knew his status to the degree needed for summary dismissal. He may not have pled guilty to being a felon in possession had he been advised of the govt’s burden to meet the Rehaif knowledge element. This is remanded for an evidentiary hearing.


Congrats to Houston Goddard of the Fed Def of E WA and Idaho (Spokane).


Sunday, May 22, 2022

US v. Randall, No. 20-10339 (5-20-22)(Bumatay w/Bress; dissent by Wardlaw). In sentencing issues of first impression concerning receiving and distributing child porn, the 9th holds (1) 2G2.2(b)(3)(B) does not require the defendant to actually receive “valuable consideration” for a sentencing enhancement; and (2) 3014(a)requires a $5000 fine per offense rather than the nature of offense.

Dissenting, Wardlaw argues that 3014(a) differs markedly from 3013, which requires an assessment per conviction, and must be interpreted differently.

There are Circuit splits on both issues: (1) 6th (has to receive) vs 5th (no receipt); (2) 3rd (fine for each conviction) vs 2d (offender and nature of offense)

1. Martinez v. Shinn, No. 21-99006 (5-16-22)(per curiam w/McKeown, Fletcher, & M. Smith)(an AZ FPD CHU case). The 9th denies the request for a COA to challenge the denial of a Rule 60(b) motion. The 9th agrees that Mitchell provides the court with authority to allow discovery to develop a claim under Rule 60. However, the development has to be for an extraordinary change and the changes alleged here – a Napue claim and Pena-Rodriguez – were not prejudicial or not extraordinary.


2.US v. Allen, No. 21-10060 5-16-22)(Ikuta w/Lucero & VanDyke). COVID does not justify the closure of visual public access to a suppression hearing and trial. The constitutional right to a public trial was violated when the court only allowed audio. Visual is critical. The court could have struck a balance, but its total ban on visual presence was too broad. While the right to access is not absolute, for example in national security cases, there were other measures the court could have used to balance.


Congrats to Lisa Ma, AFPD FPD Cal N (Oakland).


US v. Davis, No. 10066 (5-13-22)(Lucero & concurrences by VanDyke and Ikuta). The 9th rejects a Rehaif challenge to being a felon in possession. The review is for plain error, and the 9th finds the defendant could not show prejudice and there was knowledge of his felony status. 

The sentence was vacated and remanded. The 9th accepts the gov’t’s concession that Bautista applies. Bautista held a state drug statute was categorically over broad as a prior. The statute was for AZ but it applies for Nevada.

The concurrence  join the majority because of the concession, but questions such a reliance. The concurrence bemoans the complexity of the categorical approach and cautions against over reliance on Bautista.