Friday, June 30, 2006

US v. Jose D.L. (Juvenile), No. 05-50597 (6-30-06). The juvenile defendant was caught with drugs driving through a POE. The border patrol violated the Juvenile Delinquency Act (JDA) in several aspects -- failure to give Miranda quickly, delays in contacting parents, further delays in arraignment. The 9th noted the violations, but held that they weren't egregious enough for a due process violation. The 9th (Pregerson) was concerned though that repeated violations may be a pattern, and urged a heightened vigil. The 9th then turned to the juvenile's statement, and found agreed with the district court that the violations caused, in part, the juvenile to make statements that were properly suppressed. The 9th then turns to the issue of whether, absent the statements, the gov't could have indicted on the offense, given the lack of other evidence as to knowledge. That is, did the juvenile know the drugs were in the truck. The case was remanded ion that issue. In dissent, Alarcon argued that the conviction took care of the inquiry, and that any violations were harmless and not per se reversible, and the evidence was not looked at in the light most favorable to the gov't.

This case provides a good clear overview of the JDA, and the ways the gov't can (and does) violate it. The opinion surveys the various precedent.
Congrats to Deputy Federal Defender Michele Betancourt of San Diego for the win.

US v. Stewart, No. 02-10318 (6-30-06). On a remand from the Supremes, the 9th finds, pursuant to Gonzales v. Raich, 125 S. Ct 2195 (2005)(the medical marijuana case), that Congress had the power under the commerce clause. The count here concerned homemade not for sale machine guns. The 9th finds that this does affect commerce, and that it is an area that federal interest can control, even intrastate.

Monday, June 26, 2006

US v. Jernigan, No. 05-10086 (6-26-06). The 9th turns a blind eye away from a misidentification case, and an innocent defendant. The defendant robbed a bank -- she was a short Hispanic woman, with acne scars. The identifications were strong and certain, although they disagreed with one another in certain key aspects. While the defendant was incarcerated pretrial, the bank robberies continued by a robber described as a short Hispanic woman with acne scars. Coincidence? Brady? The gov't didn't disclose these other string of robberies, and it was brought to counsel's attention when the inmates talked amongst themselves. The 9th shrugged, saying that the identification was strong enough not to warrant a new trial for newly discovered evidence, and there was no Brady violation (lack of materiality). B. Fletcher dissented, agreeing to affirm the Rule 33 denial of a new trial, but believing that the gov't failed its Brady obligations. The gov't knew there were other ban robberies with a similar looking suspect, and that odds are such that it could be, and possibly was, the same. The defense should have been told.

US v. Staffeldt, No. 05-10243 (6-26-06). Mistakes happen. Two wiretaps were authorized by DOJ. The authorizations thoiugh were erroneously switched and faxed to the US Attorney offices. The AUSAs were so excited about getting the wiretap authorizations that they stapled it to the application and gave it to the judge. The judge didn't notice that the authorization was for a different case, a different name, a different phone (it appears to be EHC...see note 7). And so the wiretap was approved, only later to have the mistake discovered.

The court suppressed (ROS) and the gov't appealed, arguing that it was a mistake without materiality because the application had been approved. The 9th (Reinhardt) would have none of it, holding that it wasn't a minor error, or even a slight mistake, but a wholesale violation of the very terms of the authorizing statute. The 9th affirms the suppression.

Cisneros-Perez v. Gonzales, No. 04-71717 (6-26-06). The 9th holds that simple battery (Calif. Penal Code 243(e)(1)is not by itself a crime of domestic violence. It is subject to a modified categorical test (Taylor/Shepard). Here, although the police reports indicate the petitioner had assaulted his wife, and the sentence included counseling for domestic violence, the documents that could be examined, the plea and conviction, does not support a finding of domestic violence. The case is remanded to the IJ for possible cancellation. Callahan dissents, arguing that the sentence terms (counseling etc.) should be examined under a modified approach.
US v. Juvenile, No. 05-30410 (6-22-06). The issue is whether, in a juvenile transfer, whether a court must consider the juvenile guilty of the offense. The 9th reviews the purpose of the juvenile act, and determines that the transfer decision is with an eye toward whether the juvenile can be rehabilitated if he is found guilty. A court may indulge the assumption that a juvenile is guilty, but the court can only do so on the exact elements of the offense charged. Moreover, the assumption is discretionary and not mandatory. The case is remanded under this standard.

US v. Delamora, No. 05-50589 (6-22-06). SR is tolled from the time the defendnat absconds until he is found by federal authorities. The original SR revocation had an unsigned affidavit. Aater revocation was signed and proper under Vargas-Amaya. Here, the SR term is tolled when the defendant skips and absconds, and the new revocation is proper. The term must be revoked under the Anti-Drug Act, and the revocation is implied in the origal SR authorixation.

Sunday, June 25, 2006

Case o' The Week: Weber, Penile Plethysmograph Condition of Supervised Release

No summer slacking for Judge Berzon and her clerks: they deliver yet another great decision in United States v. Weber, __ F.3d __, 06 Cal. Daily Op. Serv. 66831 (9th Cir. June 20, 2006), decision available here. In Weber, the Ninth requires heightened showings and justifications for penile plethysmograph (left) testing as a condition of supervised release.

Players: CD Cal. AFPD Jonathon Libby with an important win; another pearl in the (thankfully prolific) Berzon line of authority.

Facts: Weber was convicted for having child porn. 06 Cal. Daily Opinion Serv. at 6802. At sentencing, the P.O. recommended that Weber undergo sex offender treatment on supervised release, and that he submit to penile plethysmograph testing. Id. at 6803. A penile plethysmograph is a pressure-sensitive device placed around a man’s penis, which measures minute changes in erectile responses when he is presented with sexually stimulating images. Id. at 6801. The subject is first instructed to become fully-aroused, either via self-stimulation or presentation of “warm-up stimuli,” to establish a baseline against which arousal is measured. Id. at 6805. The P.O. gave some rote, boilerplate justification for this proposed condition: the district court (Hon. Dean Pregerson) imposed the condition over defense objection, with no real analysis, and with the promise that the defendant could try to contest it later if he liked. Id. at 6803-04.

Issue(s): “We address the procedures that must be followed before district court may impose such a requirement on a criminal defendant.” Id. at 6802.

Held: We conclude that, just as the particularly significant liberty interest at stake in Williams meant that a ‘thorough inquiry is required’ before a district court may impose forced medication as a condition of supervised release, including ‘on-the-record medically-grounded findings,’ Williams, . . . so the particularly significant liberty interest in being free from plethysmograph testing requires a thorough, on-the-record inquiry into whether the degree of intrusion caused by such testing is reasonably necessary ‘to accomplish one or more of the factors listed in § 3583(d)(1)’ and ‘involves no greater deprivation of liberty than is reasonably necessary,’ given the available alternatives.” (internal citations omitted).

Of Note: The buzz of the decision is its skepticism for the penile plethysmograph. There are, however, several important holdings in the case – a couple of which make new Ninth law. For example, Berzon now makes the burden clear: “[W]hen the government seeks to restrict a defendant’s liberty through a term of supervised release, it shoulders the burden of proving that a particular condition of supervised release involves no greater deprivation of liberty than is reasonably necessary to serve the goals of supervised release.” Id. at 6810. Here’s another: “We will not generally require a district court to articulate the reasons behind imposing a certain condition. If, however, the condition implicates a particularly significant liberty interest of the defendant, then the district court must support its decision on the record with record evidence that the condition of supervised release sought to be imposed is necessary to accomplish one or more of the factors listed in § 3583(d)(1) and involves no greater deprivation of liberty than is reasonably necessary.” Id. at 6813.

Of late, this site has admittedly become the "Berzon blog," but a trend in her decisions nonetheless deserves comment. Judge Berzon’s criminal opinions are notable for identifying unclear, ambiguous and confusing aspects of the law and having the courage to clean these messes up. In Weber, she clarifies the burden of proof for supervised release conditions with a sharp new rule, and does the same for the showings required for supervised release conditions that impact a defendant's liberty interest. In Staten, she takes time to clarify the Restrepo line for sentencing (though she admittedly dodges a standard of review quagmire, see note 3). This is particularly notable because criminal law is not Berzon’s comfort zone: she comes from a background in labor law.

This helps. Even though everyone had assumed that the government bears the burden to secure conditions of supervised release, it helps all players in the system to have rules identified and articulated in a clear way. Maybe that’s an advantage of having a labor lawyer plunge into criminal law: Berzon has little patience for murky areas and seems eager to clean them up.

How to Use: NOTE: Weber specifically does not bar the use of penile plethysmographs. Id. at 6823. Instead, this condition of supervised release requires a thorough showing and on-the-record reasoning by the district court. Therefore, in sex cases come to sentencing armed with literature (and experts) attacking the procedure, suggestions for alternative treatment, and emphasize why your client is not well-suited (e.g., he’s a child porn possessor, but has had no sexual contacts or assaults). See id. at 6824 & n.16.

For Further Reading: Concurring Judge Noonan would go beyond Berzon’s “excellent opinion” and would “hold the Orwellian procedure at issue to be always a violation of the personal dignity of which prisoners are not deprived.” Id. at 6830. “[A] prisoner should not be compelled to stimulate himself sexually in order for the government to get a sense of his current proclivities. There is a line at which the government must stop. Penile plethysmograph testing crosses it.” Id. at 6831.

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


Mixmaster Alarcon: Ninth Revisits Troublesome Footnote

On April 1, we observed that a Ninth Circuit panel in United States v. Mix had jumped the gun on an important Booker standard of review. See blog entry here.

We argued:

Second, the opinion claims – without support – that “guideline sentences are reviewed for violations of law and incorrect application of the Guidelines, not reasonableness.” Id. at 3586 at n.2. Appellate review of the “reasonableness” of a guideline sentence is still very much in play, and deserves more than a flat assertion in footnote dicta. If guideline sentences are exempt from “reasonableness” review, then the guidelines have been elevated to becoming presumptively reasonable. When the Ninth gives that much deference, it courts another Booker challenge to guidelines which are far more than “advisory.” Moreover, Berzon’s Plouffe panel is now considering the Court’s jurisdiction to consider the reasonableness of a guideline sentence. United States v. Plouffe, 437 F.3d 917 (9th Cir. Feb. 13, 2006), ord. (requesting briefing). Mix jumps the gun; Plouffe was first in line. Footnote two should go, pending Plouffe.

On June 8, 2006, the panel amended the opinion and deleted this footnote:


We hereby recall the mandate. The court’s opinion, filed March 30, 2006, is amended as follows:

Footnote 2 at slip op. 3586 that reads:

Pursuant to 18 U.S.C. § 3742(f)(1), guideline sentences are reviewed for violations of law and
incorrect application of the Guidelines, not reasonableness. Pursuant to § 3742(f)(2), departures from the Guidelines are reviewed in several respects, including reasonableness.

is deleted.

See order here.

Small footnote - big issue. Kudos to the Mix panel for pulling footnote two.

Steven Kalar, Senior Litigator N.D. Cal. Fed. P.D. Website available at


Wednesday, June 21, 2006

US v. Weber, No. 05-50191 (6-20-06). In an important opinion regarding SR conditions and plethysmographs, the 9th (Berzon) recognizes the highly intrusive nature of the testing, the questionable results, and the deprivation of liberty. To require such a condition, the gov't bears the burden of persuading the court that it advances sentencing needs, such as the protection of the public, the nature of the offense, and the rehabilitation of the defendant. There must be specific findings, and the test targeted. The 9th also found the issue ripe, and not dependent on waiting for the condition itself to be effecuated on SR (this case went up on appeal). The opinion offers a comprehensive look at the test, how it operates, the controversy surreounding it, including no standard scoring, no regulation, sordid history, and the intrusiveness. The 9th decided the issue on statutory grounds.

In a concurrence, Noonan write sthat the test smacks of Orwellian programing. The test requires an intrusion into the mental process of the defendant, who Noonan stresses, is still a person withsome rights, and the requirement that to take the test, the defendnat must masterbate or arouse himself is an unwarranted state condition that is unconstitutional.
Congrats to Maria Stratton and Jonathan Libby of the FPD C.D. Ca office.

[Practice warning: will the gov't now require, as part of a plea, that the defendnat agree to such testing? Can it be challenged, per Noonan, as unconstitional. Is the other test, Abel, really any better?]

US v. Manzo-Jurado, No. 05-30186 (6-20-06). The 9th found a stop lacked reasonable suspicion. Defendant was convicted of misuse of a social security card in a bench trial. On appeal, writing for the panel, Bea found that the circumstances of the stop didn't amount to reasonable suspicion. The defendant was attending a state high school football game in Harve, Montana. He appeared hispanic, was with what appeared a work crew, stood apart, and spoke Spanish with the crew and to the officer. The town was close to the Canadian border. The behavior of the men was not suspicious. These factors didn't trigger reasonable suspicion. In dissent, Gould argues that the experience of the border patrol officer should be given deference in assessing these factors.

The case is a good one for a listing of factors, and past cases of similar situations.
Congrats to Tony Gallagher of the Federal Defenders of Montana.

Monday, June 19, 2006

Case o’ The Week: Berzon not Shocked by Battery Charge, Ortega-Mendez

In a growing line of good Berzon authority, the Ninth holds that California simple battery is not a “crime of violence” under 18 USC § 16. Ortega-Mendez v. Gonzalez, __ F.3d. __, No. 03-74711, 06 Cal. Daily Opinion Serv. at 6623 (9th Cir. June 15, 2006), opinion available here.

Players: Yet another great Berzon decision.

Facts: In ‘98, Ortega-Mendez was convicted of battery under Cal. Penal Code § 242. 06 Cal. Daily Op. Serv. at 6627. Later, an Immigration Judge (“IJ”) held this conviction was a “crime of domestic violence” that made him ineligible for cancellation of removal. Id.

Issue(s): Ortega-Mendez “argues that his 1998 battery conviction was not a “crime of violence” within the meaning of 18 U.S.C. § 16 and therefore was not a “crime of domestic violence” within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i).” Id. at 6629. “The relevant question is therefore whether Ortega- Mendez’s 1998 battery offense was ‘an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another,’ within the meaning of § 16(a).” Id. at 6634.

Held: We hold that battery under California Penal Code section 242 is not categorically a “crime of violence” within the meaning of 18 U.S.C. § 16.” Id. at 6627.

Of Note: This is an intellectually honest opinion on an issue that – “at first blush” may seem to have been foreclosed. Id. at 6634. Drilling through the statutory cross-references, Judge Berzon identifies the key issue as whether California simple battery is a “crime of violence” under 18 USC § 16. Section 16 requires actual violence for non-felony convictions– and in California, simple battery doesn’t require actual violence. Notably, Berzon turns to California authority on the issue: “Looking at how California courts have interpreted the phrase ‘use of force or violence’ in section 242 [the simple battery statute], it becomes evident that the phrase is a term of art, requiring neither a force capable of hurting or causing injury nor violence in the usual sense of the term.” Id. at 6635 (emphasis added). For example, under California law throwing a cup of urine in a person’s face is simple battery. Id. at 6636. That crime is not, however, “violent.” Id. at 6636. (Although it certainly is unpleasant).

How to Use: Ortega-Mendez is useful for its analytical framework on an important issue: what is a “crime of violence” under 18 USC § 16? As noted above, Berzon didn’t hesitate to look to how broadly California state courts had interpreted a state crime. She also turned to a California jury instruction for guidance. Id. at 6636 & n.8. This issue obviously will come up most often in Section 1326 (illegal reentry) cases, where the validity of a prior deportation is at issue. It is also an interesting case for careful plea-bargaining. For example, a simple battery plea in California now has increased value, because it doesn’t carry the same immigration consequences as other battery offenses. For an alien defendant with immigration complications, better a simple battery with more jail time than a time-served domestic battery.

For Further Reading:
What is a “crime of violence?” Depends. That federal term of art has one meaning under 18 USC § 16, a definitional statute that is often cross-referenced in other statutes (such as in Immigration laws). It has another meaning in the Bail Reform Act, where it is defined at 18 USC § 3156(a)(4). There’s a third meaning in the sentencing guidelines, at USSG § 4B1.2. The definitions are similar, but not identical, so be leery of the government’s reliance on authority defining the term from contexts other than the one in your case. For example, under Section 16 an offense involving physical force against the property of another can be a crime of violence. See 18 USC § 16. Not so under the guidelines, where a crime of violence is limited to the use of physical force against the person of another. USSG § 4B1.2.

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


Friday, June 16, 2006

US v. Faulkner, No. 05-10405 (6-13-06). Does the 4th amend. apply when someone is trying to enter Paradise? "Paradise" here is the BLM's Paradise Recreational Area. A ranger, in uniform with firearm, and car with lights, stopped motorists entering the area to inform hand out litter bags that informed them that campfires were not allowed, nor was alcohol, and please place litter in bag. The defendantstopped his car, and the ranger noticed a open can of alcohol, which lead to the discovery of a suspended license, and also of drug paraphernalia and marijuana. The driver was cited. He moved to suppress, which was denied. On appeal, the 9th (Tallman) applied Edmond (the DUI roadblock case). The first question was whether a stop occurred, and then whether the stop was for the purpose of general law enforcement or informational. If the former, than it was invalid; if the latter, then was it reasonable. The 9th held that a seizure did occur, but found that the stop was primarily informational. The panel looked at the warnings, the information imparted, the length of time, and so forth. All the factors tilted to informational. The 9th also looked to Lidster, which was the stop for information about a suspect. In a concurrence, Reinhardt agreed with the outcome, but would find that no stop or seizure occurred because of the length of time, circumstances, and ability to turn around.

Ortega-Mendez v. Gonzales, No. 03-74711 (6-15-06). The 9th (Berzon) holds that a battery under Calif. Penal Code 242 is neither categorically a "crime of violence" nor "domestic crime of violence" under 18 USC 16. The conviction for battery occurred in 1998, and the gov't cannot show that it is a crime of violence under a modified approach. The petitioner is therefore eligible for a cancellation of removal.

Sunday, June 11, 2006

Case o’ The Week: With Third’s Retreat, Ninth Becomes a (Staten) Island on Enhanced Sentencing Proof

In a decision that has sparked much blog commentary, Judge Berzon (left) and some helpful government concessions save the “clear and convincing” standard after Booker. United States v. Staten, __ F.3d __, 06 Cal. Daily Op. Serv. 6211 (9th Cir. June 7, 2006), decision available here.

Players: Hon. Marsha “Booker” Berzon.

Facts: Staten helped her boyfriend carry a microwave into one of two motel room she had rented. 06 Daily Cal. Op. Serv. 6211, 6216. Boyfriend had assembled meth-making gear there. Id. They were busted, and because of the “perceived hazardous environment” several motel rooms were evacuated. Id. Staten pleaded guilty. At sentencing, a government expert said meth labs were generally dangerous. Staten was hit with a (contested) fifteen offense level increase because the district court found the manufacture created a “substantial risk of harm to human life or the environment.” Id.

Issue(s): “[Staten] argues that the district court erred in determining that the evidence presented at the sentencing hearing and the facts established in the PSR support application of the section 2D1.1(b)(5)(B) substantial risk of harm enhancement.” Id. at 6219.

Held: “Conducting the requisite review of the post-Booker application of the Guidelines in this case, we conclude that the district court failed properly to take account of the appropriate factors when applying the Guidelines section 2D1.1(b)(5)(B) enhancement for creating a substantial risk of harm to human life or the environment.” Id. at 6215.

Of Note: In the Ninth Circuit blog, Sady ably chides the Court for what it didn’t do – tackle the important and unresolved “reasonable doubt” issue. Nonetheless, the Ninth’s pre-Booker “clear and convincing” standard thankfully survives: “We agree with the government that the clear and convincing standard still obtains for an enhancement with an extremely disproportionate effect, even though the enhancement now results in the calculation of an advisory rather than a mandatory Guidelines sentence.” Id. at 6228.

This means that the Ninth’s admirable Restrepo line is still alive and kicking
– even though the Third Circuit case that fathered this jurisprudence was killed off by that Circuit on the very day that Staten was issued. See Berman’s blog here. Third Circuit defenders take solace, the ghost of Kikumura lives on.

Thankfully, unlike the defense bar prosecutors never talk to one another. Third Circuit AUSAs challenged enhanced proof requirements at sentencing after Booker – simultaneously Ninth Circuit AUSAs conceded enhanced proof requirements survive Booker. Nice. God help us all if DOJ and the USAOs ever discover e-mail.

Is federal sentencing law is a mess? You betcha: read Berzon’s candid acknowledgment of the standard of review chaos in the Ninth. Id. at 6220-21 & n.3. She ably identifies – then ducks – the problem.

How to Use: Prof Berman snags the best quote from Staten: “As the concern with accuracy remains critical, so does the concern that enhancements having a drastic impact be determined with particular accuracy.” Id. at 6320. If your client faces a big Guidelines bump with shaky evidence, read Sady’s post, raise reasonable doubt, then quote Staten heavily for the “clear and convincing” standard and the emphasis on accuracy in sentencing.

For Further Reading: “Those who can't do, teach. And, as Woody Allen says, those who can't teach, teach gym. And, as I say, those who can't teach gym become experts. That's who we look to for answers these days – the biggest friggin’ idiots in the world.” Roseanne Barr, here.

Roseanne’s right, and the Ninth agrees (sort of).

Last week, in Rios, the Ninth (Berzon) rejected government expert testimony as sufficient evidence to support a Section 924(c) conviction. See blog here. In Staten, the Ninth (Berzon) rejected the government expert’s testimony regarding the general dangers of meth labs as sufficient proof for the enhancement. Staten, 06 Cal. Daily. Op. Serv. at 6224-26.

Two Berzon cases may not a “trend” make, but it does seem the veneer on government experts is showing a little wear, of late.

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


Saturday, June 10, 2006

US v. Ortuno-Higaredo, No. 04-10257 (6-8-06). The 9th supersedes with this opinion, involving a SR violation. The 9th dismissed the prior SR revocation because the defendant was never informed orally or in writting that a violation of a federal, state, or local crime would be a basis for revocation. Case closed, right? Nope. The gov't, in a petition for rehearing, says "Wait! We have a better argument -- imputed knowledge, which there is some precedent for." The 9th (Rawlison) therefore chooses to ignore that this is a new argument, discounts waiver, and goes out of its way to say that prior precedent of imputation requires this finding of knowledge. Wallace, dissenting, argues that the gov't had its chance, and waived this argument. Moreover, there is no conflcit, because the defendnat here was never told of such a condition, and so imputation is a stretch. besides, the gov't could charge him with a new offense, and so why is the gov't messing around with this strained SR argument.

Little v. Crawford, No. 05-15364 (6-8-06). The 9th, in habeas, affirms the dismissal of a petition. The 9th holds that the failure to inform the petitioner at his plea colloquy that he was not eligible for probation did not violate due process or equal protetcion. The petitioner understood he was facing incarceration, and that he would have to serve at least 10 years.

Wednesday, June 07, 2006

Staten: missed issues on ex post facto and burden of proof at sentencing

Yesterday, the Third Circuit split in Grier on the burden of proof at sentencing, with a strong dissent by Judge Sloviter on the right to proof beyond a reasonable doubt for criminal conduct resulting in enhanced sentencing. As blogged here, the Grier court missed the application of the Doctrine of Constitutional Avoidance to require proof beyond a reasonable doubt as a matter of statutory and guideline construction. Professor Doug Berman noted here that the Grier court also gratuitously backed away from the Kikumura case’s requirement of clear and convincing evidence to establish facts resulting in a disproportionately greater sentence.

Today, the Ninth Circuit logs in with an important sentencing case with some good language but two glaring missed issues. In Staten, the defendant pleaded guilty to conspiracy to manufacture a small quantity of methamphetamine. The presentence report called for a 15 level increase for creation of a substantial risk of harm to human life or the environment under U.S.S.G. § 2D1.1(c)(14). At the post-Booker sentencing hearing, competing experts disagreed regarding the applicability of the enhancement. The defendant contended that the pre-Booker crime foreclosed application of harsher sentencing after Booker under the Ex Post Facto Clause, and that the enhancement had to be established by proof beyond a reasonable doubt. The trial court rejected both claims.

First, the good news: Judge Berzon found that the trial court failed to follow Guideline commentary requiring certain findings before the enhancement could be imposed. Rejecting the generic dangers associated with manufacture, the court found that "Note 20(A) requires analysis of whether, and the extent to which, the specified considerations pertain on the facts of the particular case." The court also agreed with the government's concession that the disproportionate impact required more than proof by a preponderance of the evidence: "[T]he clear and convincing standard still obtains for an enhancement with an extremely disproportionate effect, even though the enhancement now results in the calculation of an advisory rather than a mandatory Guideline sentence."

Now the bad news: major missed issues in the ex post facto and burden of proof analyses.

Instead of addressing the Ex Post Facto Clause, the retroactive application of harsher Guidelines is analyzed as a matter of notice under the Due Process Clause. As blogged here and here, the sui generis construction of the statute in Booker directly implicates legislative action, rendering due process analysis unnecessary. Justice Breyer’s Booker remedial opinion construed the Sentencing Reform Act to have a built in contingency that was triggered by the Booker merits opinion: if Guideline enhancements were found to implicate Sixth Amendment protections, then Congress intended that the mandatory parts of the statute be severed. Once the triggering Booker merits opinion issued, the ex post facto analysis became the same as with the issuance of harsher provisions in a new Guideline manual. The Dupas case, which Judge Berzon found to be controlling, addressed only the due process notice issue, not harsher legislative action prohibited by the Ex Post Facto Clause.

The second missed issue is the application of the Doctrine of Constitutional Avoidance to fill statutory silence on the burden of proof at sentencing. As blogged yesterday here and by Professor Berman here, the reasonable doubt standard should apply where a sentence is increased based on facts not admitted or necessarily proved at trial. The Ninth Circuit has been careful not to take a position on the issue in the absence of full briefing. For example, in footnote 14 of Stewart, the court stated, "Because we remand to the district court for re-sentencing, we do not reach Stewart's arguments...that the district court erred in enhancing his sentence based on facts not found by a jury beyond a reasonable doubt." Similarly, the Ameline panel opinion (400 F3d 646), affirmed en banc, reserved the burden of proof question in footnote 7: "Whether the Booker majority remedial opinion affects the standard of proof articulated in these cases [involving preponderance, clear and convincing, and reasonable doubt standards] is an issue we need not address at this time."

Rather than address the question as one of first impression, the court cited favorably dicta in Dare, a case involving a mandatory minimum, not an increase of the statutory maximum, for the preponderance standard. And Dare cites back to Howard, a case the Ameline footnote specifically noted as being of unresolved precedential effect. The Staten court’s exegesis on burden of proof completely fails to address the Fifth Amendment's reasonable doubt requirement as separate from both the Booker Sixth Amendment analysis and the pre-Booker procedural due process balancing test. As set out in Judge Sloviter’s dissent in Grier and the district court opinions of Judges Gertner and Bataillon, the reasonable doubt standard provides the most fundamental protection against wrongful increased incarceration. Because the serious constitutional issue is not addressed, the Staten court failed to take the next step required by overwhelming Supreme Court authority: the court must apply the Doctrine of Constitutional Avoidance to construe the sentencing statutes and guidelines, which are resoundingly silent on the burden of proof, to require proof beyond a reasonable doubt to enhance a sentence based on controverted facts.

The only reason a Guideline sentence enhanced by 15 levels could ever be deemed reasonable is if the predicate facts for the enhancement are true. If the judge is not convinced beyond a reasonable doubt that the facts are true, the defendant should not spend a single extra day in prison based on those facts. Under principles fundamental to the Anglo-American conception of justice, no additional punishment is permissible because even facts proved by clear and convincing evidence, but upon which a reasonable doubt remains, are insufficiently reliable to deprive a human of freedom.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon.
US v. Staten, No. 05-30055 (6-7-06). This is an interesting sentencing case. It involves a meth lab in a motel (a new selection in the mini-bar?), and an enhancement for substantial risk (+15 levels). The offense occurred pre-Booker/post-Blakely. The 9th holds again that Dupas, 419 F.3d at 919, forecloses the argument as Dupas stated that application of Booker's remedy does not violate retroactive due process concerns. The 9th does remand, though, because the district court, in deciding the evidentiary issue, used a general approach (i.e. all meth labs = substantial risk) rather than the specific facts in this particular case, where is contested that a risk was present. The 9th also reiterated that a clear and convincing standard of proof is used when the adjustment is a cross-reference, relevant conduct, or is a significant adjustment (DeMeza and Hooper used 4 levels). The 9th avoids the reasonable doubt issue (both for the "window" and because if we go to clear and convincing, why not reasonable doubt) but it is one that will be back.

Stanley (Leavitt) v. Woodford, No. 04-16255 (6-7-06). This is an unusual habeas interlocutory appeal, where the district court imposed a fine upon Jack Leavitt, who sought to represent the petitioner. The petitioner had vacillated with counsel ove r the years, and finally was represented by the FPD office of the E.D. Ca (Sacramento). The court would not entertain another counsel change. the petitioner sought to change lawyers again,back to Leavit. This was denied. Subsequently, Leavitt continued representing petitioner in the pleadings. This violated the court's clear instructions to Leavitt not to hold himself out as representing petitioner. The court ordered the fine, which is the amount the FPD spent in responding. Leavitt sought review, and here, the 9th held that it lacked jurisdiction to hear an interlocutory appeal on sanctions pursuant to the Supremes in Cunningham.

Congrats (I think) to Tim Schardl, AFPD of the ED Ca,and Mark Olive for the result.

Mendoza v. Carey, No. 04-56733 (6-7-06). The 9th found a possible equitable tolling of AEDPA when the law library in prison lacked Spanish lawbooks and the petitioner alleges that he is Spanish speaking and lacks English ability. Dissenting, Kleinfeld focuses on the lateness of the petition and would deny relief..

Tuesday, June 06, 2006

Grier: Reasonable Doubt At Sentencing Through The Doctrine Of Constitutional Avoidance

The Third Circuit has split on whether the preponderance or reasonable doubt standard applies at sentencing, providing another strong incentive for defense advocates to assert that, before reaching the Fifth Amendment question, courts should apply the Doctrine of Constitutional Avoidance to construe the sentencing statutes and guidelines in the defendant’s favor. In United States v. Grier, the defendant, convicted of possession of a firearm by a felon in violation of 18 U.S.C. § 922(g), challenged the enhancement of his Guideline range by four levels for possessing the gun in connection with an aggravated assault. The trial court found the enhancement by only a preponderance of the evidence.

The majority found that Booker not only resolved the question whether Guidelines enhancements implicated the right to a jury trial, but also decided the standard of proof, which could be by a mere preponderance of the evidence. Judge Sloviter's dissent provides a compelling articulation of the position that the Fifth Amendment’s reasonable doubt requirement inhered in the Supreme Court’s post-Almendarez-Torres jurisprudence and foreclosed enhanced sentencing based on crimes proved by only a preponderance. Interestingly, Judge Sloviter discusses in detail the Supreme Court’s application of the Doctrine of Constitutional Avoidance in Jones, but does not recognize the direct application of the Doctrine to fill the statutory silence on the standard of proof at sentencing.

Since Booker came down, we have been advocating that, given the lack of statutory direction regarding the burden of proof at sentencing, the Doctrine of Constitutional Avoidance requires that the sentencing statutes, rules, and guidelines must be construed to require proof beyond a reasonable doubt of sentencing enhancements, especially those that constitute separate crimes (as set out in the memorandum linked here). The arguments favoring the reasonable doubt standard have found support in several district court opinions (blogged here, here, and here).

Judge Sloviter’s dissent provides further support for the need to avoid the serious constitutional question upon which the majority and the dissent disagreed. The Supreme Court has repeatedly instructed that, rather than engage in this debate, the courts should assume Congress did not intend to legislate close to (or over) the constitutional line. In Shepard, the Court directly applied the Doctrine of Constitutional Avoidance to construe the Armed Career Criminal Act in a manner that avoided potential Sixth Amendment issues. In Martinez, the Court emphasized that the Doctrine of Constitutional Avoidance is a rule of statutory construction that applies to the "lowest common denominator": the situation most likely to implicate the constitutional dangers ("[A] judge could sentence a man for committing murder even if the jury convicted him only of illegally possessing the firearm used to commit it-or of making an illegal lane change while fleeing the death scene. Not even Apprendi's critics would advocate this absurd result.")(Blakely, 543 U.S. at 306).

At the circuit level, the application of the Doctrine of Constitutional Avoidance to the standard of proof at sentencing appears to be a question of first impression. Despite the strength of the Fifth Amendment arguments, serious doubt on the constitutional question is all that is needed to prevail. The Doctrine should provide a bullet proof argument that the Third Circuit did not need to reach the Fifth Amendment question upon which the judges disagreed. We need to continue asserting the Doctrine of Constitutional Avoidance as a manner of reaching the desired result for our client without requiring an ultimate ruling on the scope of the Fifth Amendment’s protections at sentencing.

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

Monday, June 05, 2006

Supreme Court to determine Blakely's retroactivity

This morning, the Supreme Court granted certiorari in Burton v. Waddington, No. 05-9222, involving the retroactive applicability of Blakely on habeas corpus. The questions presented are:

Mr. Burton received an exceptional sentence of 258 months above the 305 month ceiling of the statutory range and this Washington state sentence became final after Apprendi v. New Jersey but before Blakely v. Washington:

1. Is the holding in Blakely a new rule or is it dictated by Apprendi?

2. If Blakely is a new rule, does its requirement that facts resulting in an enhanced statutory maximum be proved beyond a reasonable doubt apply retroactively?

With this cert. grant and the Court's earlier grant in Whorton v. Bockting, (on the issue of Crawford's retroactivity), it is more important than ever to PRESERVE THE ISSUE.

Saturday, June 03, 2006

US v. Camacho-Lopez, No. 05-10455 (5-30-06). The defendant's 1326 conviction is reversed because he was erroneously told by the IJ that his convictions for vehicular manslaughter were crimes of violence and thus barred him from discretionary relief. The 9th holds that the Supremes in Leocal found a state DUI not to be a crime of violence, and the 9th applied this in Lara-Cazares v. Gonzales, 408 F.3d 1217 (9th Cir. 2005) to vehicular manslaughter. Because the defendant could have received discretionary relief, and because the IJ said that the "only" reason he was barred from relief were the categorized crimes of violence, prejudice has been shown.

Congrats to AFPD Cynthia Lie from the N.D. Ca and R&W atty Mara Goldman.

US v. Evans-Martinez, 05-10280 (6-1-06). In an important post-Booker sentencing decision, the 9th holds that if the court intends to depart from the advisory guidelines, notice still must be given. The 9th reasons that the guidelines are one factor to consider, and that their calculation must be correct. As such, if the court would intend to depart from them, it must comport with Burns and give notice. "Gotcha!" is not good enough and Booker advisory guidelines should not cloak this intent.

US v. Rios, No. 05-50000 (6-2-06). THIS IS AN IMPORTANT 924(c) DECISION. The 9th held that possession of a firearm is not the same as "possession in furtherance" of an offense. the two are distinct. The facts are important. The defendant was part of a drug conspiracy that was busted. He and his codefendants (family members) had drugs and cash and documents at locations. At the defendant's residence (a motel), there were documents related to the conspiracy, and hidden, a sawed off shotgun. There was no ammunition. Significantly, there were also no drugs. The evidence from the cleaning crews was that they never saw drugs. The manager did say that he was visited at night, sometimes late, but he never saw drugs. The 9th (Berzon) held that it insufficient evidence to convict the defendant of a 924(c). The weapon was not in furtherance, and the fact that the defendant possessed a weapon at a different location from the drugs and cash was an insufficient tie. the 9th also found insufficient the "expert" evidence of drug traffickers and their proclivity for weapons. There must be a connection and moreover, that the weapon was in furtherance; this means to advance or facilitate. The conviction was vacated and the case remanded for resentencing.

The importance is that the gov't must show a tie and a furtherance and not simply that the gun was somewhere, or sometime, in possession. The 924(c) charge is still a heavy hammer, but its striking has been limited somewhat to the nail of furtherance of drugs dealing. See Steve Kalar's "Case of the Week" for further analysis.

Case o’ The Week: Ninth Spurns Shotgun Marriage to Drug Charges – Rios & 924(c).

Judge Berzon reins in government overcharging, in a great decision on the proof necessary for Section 924(c ) cases. United States v. Rios, __ F.3d __, 06 Cal. Daily Op. Serv. 6097 (9th Cir. June 2, 2006), available here. A careful opinion in a shotgun case, Rios lays out important principles on the proof requirements for this dangerous, mandatory-minimum statute.

Players: Yet another great Berzon opinion.

Facts: Rios was admittedly part of an illegal prescription-drug sale conspiracy. Id. at 6102. At one location, the feds found drugs and cash. At a second location – Rios’s home – the feds found papers relating to the conspiracy. Id. at 6103. They also found an unloaded, sawed-off shotgun in a dresser. Id. Rios paid for his place in cash, had midnight visitors several times a week, but cleaning staff had never seen drugs there. Rios only fought the § 924(c) charge. Id. at 6102.

Issue(s): “Rios contends that the evidence produced at trial was not sufficient to convict him of possession of a firearm in furtherance of a drug trafficking crime under § 924(c)(1)(A).” Id. at 6101.

Held: “We agree.” Id. at 6101-02.

* “We therefore hold that expert testimony that drug traffickers generally use firearms to further their drug crimes, standing alone, is not sufficient to establish that a firearm was possessed in furtherance of a particular drug crime.” Id. at 6109.

* “A single document listing prices for controlled substances is not sufficient evidence that Rios actually dealt drugs from his residence, as opposed to from elsewhere. Nor does the price list in any other way support the required inference that the firearm was possessed in furtherance of the drug crime.” Id. at 6110.

* “The presence of cash on his person does not, however, illuminate where Rios dealt the drugs or otherwise indicate a connection between the drugs and the gun. In sum, there simply was not sufficient evidence to support the conclusion that Rios was dealing drugs from his home and that possession of the gun was in furtherance of that activity.” Id.

Of Note: Finally! The government has been overcharging Section 924(c) for years, and unfairly using the threat of 924(c) charges to coerce bad deals. Ace NorCal R&W Attorney Steve Koeninger caught this abuse over a year ago - here’s a brief anticipating the Rios decision and collecting circuit splits on the “in furtherance” problem. See brief here.
(As usual), Judge Berzon gets this case exactly right: Ninth precedent and the statute's legislative history demand some sort of active relationship between drug crimes and guns that may be laying around.

How to Use: 1. Read Rios. This isn’t a bright-line rule case, but a thoughtful application of facts to previous examples. As illustrated by the “Held” quotes above, the decision is packed full of useful principles that reject different types of evidence as proof of 924(c) charges.

2. Rethink deals. It’s common to cave to a high-end drug deal with the threat of § 924(c) charges hanging overhead. Rios makes 924(c) more defensible.

3. Rewrite jury instructions. Ninth Circuit Model Criminal Jury Instruction 8.65 (the § 924(c) instruction) doesn’t cut it, particularly after Rios. The instruction says, “A defendant takes such action ‘in relation to the crime’ if the firearm facilitated or played a role in the crime.” Juries don’t get this (nor do we): use Rios’s principles for defense instructions to beef-up the “in relation” requirement.

For Further Reading: Section 924(c) is a dangerous charge, slapping long mandatory minimum sentences on top of drug or crime of violence sentences. See statute here. This apparently straightforward statute has generated an oddly disproportionate amount of big cases. In 1995, the Supreme Court explained what “use” of a gun really means. See Bailey here. In a bitterly disappointing and divided 2002 decision, the Court limited Apprendi’s application in Section 924(c). See Harris here.

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