Tuesday, April 11, 2006

US v. Zavala, No. 05-30120 (4-11-06). This is an important sentencing/Booker decision. The 9th (two judge per curiam -- Tashima and Paez) stresses that the guidelines are but one of the entire 3553 factors. "[Sentencing courts] must properly use the Guideline calculation as advisory and start there, but they must not accord it greater weight than they accord the other 3553(a)." (p. 4024). This case involves a defendant convicted of dealing 42 lbs of meth. he faced a life sentence under the guidelines. The sentencing court, after Booker, stated that it would start with the guidelines, and would sentence by the guidelines unless the defendant could convince the court other wise. The burden was on the defendant. After argument, the court did sentence to 360 mos and not life. On appeal, the 9th reversed and remanded. The 9th emphasized that Booker gave discretion back, and that meant that all the 3553 factors had to be weighed and balanced. There needs to be a starting point, and it is fair to use the guidelines calculation as that point, but the court cannot just go to the guidelines and treat it as being the end product of the 3553 factors. A court must truly and honestly use the guidelines as but one factor. This approach by the 9th is essentially the approach adopted by Judge Adelman in Rumann. Judge Cassell in Wilson took the position that the guidelines combine the 3553 concerns and are the best way of assessing the sentencing factors. This case is a rejection of that approach. The remand is necessary here to correctly allow a sentencing court to weigh all the 3553 factors. It was error because "the district court gave the Guideline calculation exaggerated weight, treating it as a presumptive sentence from which the court was 'free to depart.'" (p. 4026). It is important to note that this opinion states that the 9th has yet to decide whether there is a presumption that a sentence that falls within the correctly calculated guideline is reasonable. Thus, this panel says it is still an open question. It acknowledges that many other circuits have said that, but this panel won't go there. It focuses instead on the process.This case also is in line with Mix, where the 3553 factors are weighed and balanced. In Mix (discussed in prior summaries), the sentencing court explained how the sentence applied the 3553 factors. Zavala endorses such a process, where the court must view all the 3553 factors.The Zavala approach will not make the Sentencing Commission happy. The Com'n wants to continue to have the guidelines regarded as the distillation of the 3553 factors, and here, under Zavala, it is but one factor, albeit one that must be considered.In dissent, Fernandez declares that the sentencing court merely used the guidelines as a starting point, and that the court did go under the guidelines, to thirty years. Fernandez notes that the district court may have made some inartful comments (such as departure) and "presumption," when it came to the guidelines, but that the court was trying, and did find, an appropriate sentence. The dissent is somewhat convoluted in its reasoning: "That being so, while I cannot say that I am in disagreement with the presumption exegesis in the per curiam opinion, I do not join it.

Whatever other readers of the opinions might think of it, whether they consider its reasoning eximious or exiguous, I deem it extraneous. It cannot affect my decision in this case."

Davis v. Grigas, No. 05-15211 (4-10-05). This is a troubling opinion (Hall). Although it may be a win for the petitioner on one ground, the 9th continues to hold -- oddly and wrongly -- that because the Supremes have supposedly not held that Strickland v. Washington applies to noncapital cases, relief cannot be granted on noncapital IAC claims. The petitioner had a long history of mental illness, hallucinations, and abuse. The offense for which he was sentenced involved shooting the mother of his two children six times after luring her to the desert. the shooting surprisingly did not kill her, but left her paralyzed from the waist down. The petitioner accepted a plea agreement that had him plead guilty to two charges, to run consecutive, of between 6 and 15 years. The state argued for consecutive 15 year sentences.

His lawyer told the court that it was stipulated that it would be two 15 year sentences. Defense counsel did not argue for a lower sentence. Moreover, defense counsel presented no mitigating evidence, and conducted no investigation. None of the long-standing psychological problems were presented to the court. The sentence was of course 30 years. The lawyer then failed to timely appealed. Eventually, on federal habeas, claims of IAC and errors of fact were raised.

The district court denied relief. The 9th did grant relief on the ground that the state's determination of facts was an "unreasonable determination" This unreasonable determination was the supposed stipulation to two 15 year terms. The petitioner thus gets an evidentiary hearing on whether the Nevada Supreme Court had an erroneous understanding. The 9th however did not grant relief on the IAC claim. Controlled by 9th precedent, the 9th held that Strickland may not apply to noncapital proceedings because the Supremes have not directly opined on the noncapital standard and so there is no clearly established federal law in this context. See Cooper-Smith v. Palmateer, 397 F.3d at 1244 (9th Cir. 2005). The state can apply that standard, as apparently Nevada did, but because there is no case right on point, relief cannot be granted. Concurring, Judge Graeber questions Cooper-Palmateer was overbroad in its holding, because the Supremes, in Glover v. US, 531 US 198 (2001), did apply Strickland in a noncapital context, finding that the prejudice prong was met by an increased sentence, but remanded to the 7th Circuit for a first prong analysis of "falling below the standard." That sure sounds like adoption of Strickland in a noncapital context. Graeber further makes the point that basic sixth amendment principles to fairness and competency of counsel would argue for the same standard in both capital and noncapital cases. Graeber would conclude that Strickland applies in any formal setting that involves findings which go to a standard that is used in sentencing. This should provide a basis for an en banc petition and/or cert.Congrats to AFPD Jason Carr of Las Vegas for the reversal and remand.


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