Saturday, July 17, 2010

Case o' The Week: Specific Loss from General Savings - Avila-Anguiano

The good news? The defendant is remanded for resentencing. By the time he gets back before the district court, the statute that created a ten-year mandatory minimum no longer exists!

The bad news? He still gets the ten (under a statute that no longer exists). United States v. Avila-Anguiano, _ F.3d _, 2010 WL 2735718 (9th Cir. July 13 2010), decision available here.

Players: Hard-fought appeal by Az. AFPD Saul Huerta and Defender Jon Sands.

Facts: A smuggler in Phoenix demanded payment from the alien’s relatives or threatened to kill his hostages. Id. at *1. ICE found the home where the hostages were held, along with an assault rifle and ammo. Id. Avila-Anguiano was identified as the man who had made the calls and threats; he was convicted of six federal counts after trial. Id. One count was a § 924(c) [use of a gun in the course of felony] which – at the time – carried a ten year mandatory minimum if an assault weapon was involved. Id. at *2.

Avila-Anguiano got some counts reversed on appeal; by the time re-sentencing came around the federal statute that had created that ten year mand-min had expired. Id. Nonetheless, the district court still imposed a ten year sentence for that count (with the sentences for other counts running consecutive). Id.

Issue(s): “This appeal presents the question, inter alia, as to whether U.S.S.G. § 2K2.4(b) [the guideline which refers to the statutory mandatory minimum] refers to the statute in effect at the time the crime was committed or the one in effect at the time of sentencing.” Id. at *1.

Held: “Under the circumstances presented by this case, we conclude that the statute in effect at the time that the crime was committed is the proper one to apply. We affirm the judgment of the district court.” Id.

Of Note: If you’ve been trained in the “One Book Rule,” this decision seems counter-intuitive. Recall this rule instructs the court to apply the guideline in effect at the time of sentencing, unless the defendant elects for the book in effect at the time of the offense. See generally United States v. Tucker, 982 F.Supp 1309, 1314 (N.D. Ill. 1997). The defendant picks the book.

Seems that under that rule, on remand the defendant should get to use the current guidelines with their cross-reference to the “new” statute with a lower mandatory-minimum sentence. Sadly, there’s another (obscure) rule: “The General Savings Provision.” Avila-Anguiano, 2010 WL 2735718, at *2. Codified at 1 USC § 109, the General Savings Provision abolishes the old common law presumption that a repeal of a statute ended non-final prosecutions under that statute. Id. The provision bars “application of ameliorative criminal sentencing laws repealing harsher ones in force at the time of the commission of an offense.” Id. at *4. It is sort of an anti-ex post facto rule: a defendant can’t be punished more harshly under laws that changed after the crime, but can be punished more harshly under repealed or expired laws that existed at the time of the offense. For Avila-Anguiano, this means getting a decade of federal custody under a statute that no longer existed at the time of sentencing.

How to Use: On March 17th the Senate passed the Fairness in Sentencing Act of 2010. This Act reduces (though does not eliminate) the sentencing discrepancy between crack and powder cocaine. Waiting for this reform has been like Waiting for Godot: much anticipated, never actually on the stage. If and when it passes, will the “General Savings Provision” of Avila-Anguiano ever come into play in relation to the Section 841 mand-mins? The issue may be moot if the final bill has explicit retroactivity provisions (or bars), but it is an interesting problem to anticipate.

For Further Reading: What is the most unjust Ninth Circuit decision in the last couple of years? A strong candidate is surely Hinkson. In this Idaho murder case the central government witness skated by without cross-examination on his extraordinary lies about his distinguished military service (including a phony Purple Heart). See blog here. In a remarkable (and politically-polarizing) decision, the en banc court actually rewrote the standard of review for “abuse of discretion” to preserve this conviction.

San Francisco’s intrepid Dennis Riordan sought a “super en banc” review; tragically, it was denied this week. Hinkson, 2010 WL 2757419 (9th Cir. July 14, 2010) (ord.).

If there’s ever a case where the Marine Corps' JAG officers should be writing an amicus for certiorari, Hinkson is it. And, if there’s ever a case that deserves a quick per curiam flip, Hinkson is the one. See Porter v. McCollum, 130 S. Ct. 447, 454 (2009) (discussing the particular respect juries afford to American veterans).

"Semper Fi" image from AK47 image from

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


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