Sunday, June 02, 2013

Case o' The Week: Ninth Constrains Plain Bane -- Joseph and Plain Error Review for Sentencing Mistakes

   Should an appellate court correct a sentencing error, when the mistake means our client is doing more jail time than necessary?
The Hon. Richard Paez
  Sad to have to even ask the question –  but happy to tout the Ninth’s answer. United States v. Dayven Joseph, 2013 WL 2321443 (9th Cir. May 29, 2013), decision available here.

Players: Decision by Judge Paez. Nice Win by Hawai’i AFPD Alexander Silvert, FPD Peter Wolff and AFPD Donna Gray.  

Facts: While serving a term in federal prison, Joseph was caught with marijuana. Id. at *1. When the FBI interrogated him, Joseph admitted to possessing marijuana inside on a different date as well, and giving some to another inmate. Id. He was indicted with three counts of 18 USC § 1791: i) possessing marijuana in December, ii) giving that marijuana to another inmate in December, and iii) possessing marijuana in February. Joseph plead guilty, and the PSR recommended consecutive sentences for the three counts under Section 1791(c): “the term of imprisonment shall be imposed to run consecutive to any other sentence imposed for offenses involving a controlled substance.” Id. (emphasis added). The district court imposed three sentences, one for each count, consecutive to one another. Id. at *2. The defense did not object.

Issue(s): “Joseph argues that ‘such a controlled substance’ refers only to the specific item of drugs that provided the basis for the violation of § 1791(a) . . . . In contrast, the Government argues that ‘such a controlled substance’ in § 1791(c) refers to any controlled substance, irrespective of whether it was the specific item of drugs or even the same type of drug that formed the basis for the violation of § 1791(a).” Id. at *3.

Held: “Joseph’s reading of § 1791(c) is the only plausible interpretation that comports with the text of the statute and congressional intent.” Id. “In sum, we hold that the first provision of § 1791(c) – “[a]ny punishment imposed under sub-section (b) for a violation of this section involving a controlled substance shall be consecutive to any other sentence imposed in any court for an offense involving such a controlled substance” – only requires consecutive sentences when there is more than one conviction resulting from the same item of controlled substance contraband. Therefore it was error for the district court to assume that the statute required the sentence for Count 4 be imposed consecutively to Counts 1 and 2.” Id. at *5.   

Of Note: This is a sweet win on a rarely-charged criminal statute. Joseph’s greater value, however, is as useful synthesis of plain error review for sentencing mistakes. Id. at *5. You’ll recall that plain error review is that hated hurdle that protects district court mistakes through a series of difficult hoops. Here, Judge Paez has no problem finding that the district court’s “consecutive” error was plain – even though “there was no appellate law case law answering this precise question.” Id. “[T]he clear text and structure of the statute, along with the Sentencing Guidelines, are sufficient to show that the error was ‘plain.’” Id. Joseph’s application of the plain error test is one to quote, as are the opinion’s dissection of the other plain error prongs in the context of sentencing appeals. Id. at *6. A welcome addition to appellate counsel’s tool-kit.

How to Use: The best way to win a plain error fight is to avoid a plain error flight altogether. In fat footnote four, Judge Paez carefully explains that the Court’s plain error review wasn’t actually necessary in Joseph because this was a purely legal issue and there was no prejudice to the government by the failure of the defense to object. Id. at *2 & n.4. Whether to apply plain error when reviewing a purely legal issue is still a big fight – three years ago a visiting Senior Judge seriously muddied some settled Ninth law on the issue. See blog entry here.
  Always start your plain error fight by trying hard to avoid the plain error fight – footnote four is a critical important caveat in the Joseph analysis.
For Further Reading: We worry when Senior, out-of-circuit judges muck with Ninth law – except when we like their decisions. For example, last November visiting Sixth Circuit Judge Ronald Gilman tackled the troubling Maloney decision in a wonderful dissent. See Maloney blog entry here
  Just how compelling was Judge Gilman's dissent? Maloney went en banc last week. See order here.

Image of The Honorable Richard Paez from

Steven Kalar, Federal Public Defender ND Cal. Website at


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