Saturday, June 11, 2011

Case o' The Week: Tashima Finds Plain Error -- By the Panel Majority: Gonzalez-Aparicio and Plain Error Review

We're not just saying that Judge Wallace Tashima (right) wrote the book on federal appellate practice -- he literally did. This well-respected guru of Ninth Circuit appellate review is, to put it mildly, unimpressed with a new approach towards plain error review created to salvage a high attempted illegal reentry sentence. United States v. Gonzalez-Aparicio,__ F.3d __, 2011 WL 2207322 (9th Cir. June 8, 2010), decision available here.

Players: Decision by Judge Cowen, a Senior, Third Circuit, Judge sitting by designation. Majority decision joined by Judge Silverman, vigorous dissent by Judge Tashima (right).

Facts: Gonzalez-Aparicio pleaded guilty to attempted illegal reentry after deportation. Id. at *1. The PSR hit him with a sixteen offense level, specific offense increase, for a felony conviction of the Arizona crime of sexual conduct with a minor. Id. The defense did not object to the PSR or at sentencing.

Facts floating around the sentencing hearing suggest that Gonzalez-Aparicio had been in his mid-twenties at the time of his previous crime, and the female victim was fourteen or fifteen years old. Id. The district court found the prior conviction to be a crime of violence under the illegal entry guideline, adopted the plus 16 OL guideline calculation and sentenced the defendant to 51 months. Id. at *3.

Issue(s): “Gonzalez-Aparicio contends that the District Court committed reversible procedural error by applying a 16-level increase to the offense level pursuant to USSG § 2L1.2(b)(1)(A)(ii).” “Gonzalez-Aparicio contends that the generic federal definition of ‘statutory rape’ has, as one of its elements, proof that there is at least a 4-year age difference between the perpetrator and the victim. It is undisputed that [the Arizona statute of conviction in this case] lacks any such age difference requirement.” Id. at *5.

“[T]he government argues that this Court must apply the well-established plain error standard of review with respect to alleged sentencing errors not raised below . . . Gonzalez-Aparicio asserts that the Court should not do so because we are purportedly confronted with a pure question of law and the opposing party would suffer no prejudice as a result of the failure to raise the issue below (although he further contends that he satisfies the plain error standard in any case.)” Id. at *5 (citations omitted).

Held: “[W]e possess the discretion to refrain from applying the default plain error standard of review in certain circumstances. . . . We find that it is not appropriate to exercise this discretion in light of the specific circumstances of the current appeal.” Id. at *6.

Of Note: Judge Tashima, to put it charitably, ain’t buying it. “Today the majority announces a new and startling method of selecting a standard of review, one in which the panel, at its sole option, selects which standard of review to apply. Because this standard of review is no standard at all, I respectfully dissent. If the majority had applied our long-established standard of review, it would be required to reverse and remand for resentencing.” Id. at *13.

Judge Tashima is right: this opinion seems to plows new ground for appellate review and creates a bad new rule for appellate practice in the Ninth. Traditionally, plain error review is not appropriate for pure questions of law where the government wasn’t prejudiced by a failure to develop factual issues below. Despite that long-standing rule, Judge Cowen appears to take a new approach, deciding that the Ninth can pick and choose when to apply the (almost-always fatal) plain error standard.

It is a regrettable and dramatic new standard for appellate review in the Ninth, and this new rule deserves
en banc review.

How to Use: It is far too complicated to explain in depth here, but if your client’s statutory rape prior impacts the federal sentence, read Gonzalez-Aparicio. Judge Cowen and dissenting Judge Tashima have a long debate over what is the real “generic” definition (or definitions?) of statutory rape, what the absence of an “age difference element” in stat rape statutes means for the categorical analysis, and whether the modified categorical approach can ever cure that missing element.

To further complicate things, if Aguila Montes de Oca is ever decided (it has now been fifteen months since the en banc oral argument, by the way), that decision will almost certainly control the stat rape issue debated here.

For Further Reading: Are visiting judges good for the Ninth? Do they pull their weight? Do out-of-circuitjudges undermine the uniformity of decisions within the circuit? Are they more deferential, and less likely to dissent? For an interesting statistical analysis and discussion of the impact of the visiting judge, see Sara C. Benesh, The Contribution of “Extra” Judges, 48 Ariz. L. Rev. 301 (2006).

Image of the Honorable Judge Wallace Tashima from

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


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