Sunday, January 26, 2014

Case o' The Week: Ten Years for a Misdemeanor - Shill and "Sexual Activity" in Section 2422(b)

  In the Seventh Circuit, enticing a minor over the internet to visit a museum and view the “Rape of Europa” is not “sexual activity” that will trigger a ten-year mandatory minimum federal sentence. United States v. Taylor, 604 F.3d 255, 257 (7th Cir. 2011) (Posner, J.)
  In the Ninth? Avoid the Titian wing. United States v. Shill, 2014 WL 259872 (9th Cir. Jan. 24, 2014), decision available here.

Players: Decision by Judge Tallman, joined by Judge Bea and DJ Murphy. Hard-fought appeal by D. Or. AFPD Lisa Hay.

Facts: Forty-five year old Shill approached a 16-year old girl, and complimented her on her appearance. Id. at *1. A Facebook friend request followed, the girl reported Shill to the police, and an FBI agent – posing as the girl – took over email communication with Shill. Id. at *1. Shill had sexually-explicit online chats with the agent and enticed the “girl” to have sex with him. Id. He arranged to meet the “girl” at a train station, and agreed to bring condoms and alcohol. Id. 
  When arrested at the station, Shill had on his person condoms, the phone used to send sexually explicit photos and messages to the “girl,” and in Shill’s car the agents found flowers, Viagra, alcohol, and additional condoms. Id. 
  Shill was charged with using the internet to entice a minor, 18 USC § 2422(b). The indictment alleged Shill had enticed a minor to commit two misdemeanor sex offenses. Id. 
   Shill moved to dismiss the indictment and raised an Eighth Amendment challenge, based on a ten-year mandatory minimum sentence triggered by misdemeanor conduct. Id. at *2. Both motions were denied. While the district court observed that it would have sentenced Shill to the guideline range of seventy months, it held it was required to impose the 120 month mand-min. Id.

Issue(s): “Shill contends that the district court should have dismissed the indictment. Specifically, Shill challenges the following language in § 2422(b): “any sexual activity for which any person can be charged with a criminal offense[.]” According to Shill, this language is ambiguous, vague, inconsistent with Congress's expressed intent, and leads to the 'absurd' result that misdemeanor conduct is punishable by a ten-year sentence under federal law. Shill argues that § 2422(b) should be construed narrowly to preclude prosecution where the attempted sexual activity is a misdemeanor as opposed to a felony.” Id. at *2.

Held:As Shill notes, the phrase [“criminal offense”] is not defined in the federal criminal code. Nonetheless, we presume that Congress legislates in light of relevant case law and familiar legal definitions . . . Thus, Shill’s actions, while a misdemeanor in the Oregon legal system, nonetheless constitute a ‘criminal offense’ under § 2422(b). We decline to embrace Shill’s narrow interpretation of the statute, which belies the plain meaning of the term ‘criminal offense.’” Id. at *2. “We hold that § 2422(b) clearly and unambiguously criminalizes attempted sexual activity where the object of the attempt would amount to either a misdemeanor or felony under state law.” Id. at *5.

Of Note: In Taylor, the Judge Posner persuasively writes for the Seventh Circuit and flatly rejects the Ninth’s very broad reading of § 2242(b), worrying that such an expansive interpretation could trigger ten-year mand-mins for “watching a pornographic movie, or a pole dancer, or a striptease artist,” or “flirting” or “flashing.” 640 F.3d 255, 257 (7th Cir. 2011) ("Is watching . . . Aubrey Beardsley's pornographic sketches, or Titian's 'Rape of Europa,' or 'Last Tango in Paris' a 'sexual activity'?")
   The Ninth isn’t similarly worried, because the misdemeanor conduct in the statute must occur in the context of interstate commerce. Id. *3. (A limitation that apparently didn’t occur to Judge Posner, given the ease with which interstate nexus is triggered in the modern world).
   Shill creates a Circuit split and tolerates ten-year mandatory minimum exposure for misdemeanor conduct: it merits en banc review.

How to Use: Client + Minor + Internet = read Shill. A ten-year mand-min now depends on the breadth of your state’s misdemeanor code: exposure that dramatically affects the risk-benefit analysis of motions and trial.
For Further Reading: Thankfully, Romeo did not have an iPhone. Had he texted, “Be not her maid,” to Juliet, he’d be looking at ten. See play commentary here, and California misdemeanor statute here. 

Image of Titian’s “Rape of Europa” from

Steven Kalar, Federal Public Defender N.D Cal. Website at


Labels: , , , , ,

Friday, January 24, 2014

United States  v. Shill, No. 13-30008 (1-24-14) (Tallman with Bea and Murphy, D.J.). 
Can a state misdemeanor get you a mandatory ten year federal sentence?  "Yes," held the 9th, in this 18 USC 2422(b) appeal.  The statute criminalizes the attempted enticement of a minor (16 years old here) to engage in "any sexual activity for which a person could be charged with a criminal offense."  The defendant's predicate state conduct was a class A misdemeanor.  The defendant argued that the federal statute was vague, ambiguous, and leads to the absurd result of a misdemeanor triggering a ten year mandatory minimum felony.  This was not congressional intent argues the defendant.  Oh yes it was, replies the 9th.  The 9th looks at the harm, the plain language, and the intent, and concluded that Congress knew what it was doing.  The 9th also rejected the cruel and unusual challenge to the sentence and the categorical challenge.

A spirited challenge by  AFPD Lisa Hay, FPD Oregon.

Monday, January 20, 2014

Case o' The Week: Second bite at Sentencing Apple Just a Nibble in the Ninth - Section 3582 Sentencing Limitations Upheld

  Why fret now about good new sentencing guidelines coming next fall, when 18 USC § 3582(c)(2) will permit re-sentencing?
  A: United States v. Davis, Jr. 2014 WL 114691 (9th Cir. Jan. 14, 2014), decision available here.

Players: Decision by Judge Canby, joined by Judges Watford and Hurwitz. Hard-fought appeal by (former) CD Cal AFPD Davina Chen.

Facts: In 2008 Davis pleaded guilty to a crack charge and a gun charge. Id. at *1. His guidelines were CH IV / OL 29, producing a low-end of 121 months. Id. The district court varied downwards to 70 months. Id. In 2012, Davis filed a motion to reduce his sentence under 18 USC § 3582(c)(2), after the Fair Sentencing Act (“FSA”) resulted in reduced crack guidelines. Id. Though the low-end of Davis’s (lowered) post-FSA guidelines were still higher than 70 months, he sought a variance down to sixty months, the mand-min. Id. 
  At issue at sentencing was Policy Statement § 1B1.10(b). In 2011 the Sentencing Commission amended this Policy Statement– it now sets the resentencing floor in this context to the low-end of the amended guideline range. Id. “The district court held that the Sentencing Commission’s Policy Statement § 1B1.10(b) precluded a sentence reduction because Davis had already received a sentence below the minimum of the amended guideline range.” Id. at *1.

Issue(s): “[ ] Davis, Jr. appeals the district court’s denial of his motion to reduce his sentence pursuant to 18 USC § 3582(c)(2) . . .  Davis argues that § 1B1.10(b) exceeds the Commission’s statutory authority and violates the separation of powers doctrine.” Id. at *1.

Held: “We . . . reject Davis’s argument that the amendment of § 1B1.10(b) exceeded the Commission’s statutory authority. We also reject Davis’s contention that amended § 1B1.10(b) conflicts with Congress’s directive that the Commission promulgate policy statements that will further the purposes of sentencing set forth in 18 USC § 3553(a)(2), 28 USC § 994(a)(2) (outlining the Commission’s duties).” Id. at *2. “Finally, we reject Davis’s contention that amended § 1B1.10(b) violates the separation of powers doctrine because it requires the district court to rescind a previously granted departure or variance.” Id. at *3. “Section 1B1.10(b) does not offend separation of powers principles because it is simply the result of an exercise of Congress’s power to control the scope of judicial discretion regarding sentencing.” Id.  

Of Note: With no offense to Ms. Chen’s formidable powers of persuasion, Davis is not an entirely unexpected result – many of these issues had already been decided in the Ninth, or rejected by other Circuit decisions. See, e.g., Tercero blog here.  
  Davis is an important read now, however, because it foreshadows battles to come when the many (pro-defense) amendments to guidelines kick-in on November 1, 2014 – particularly to the drug guidelines.

How to Use: What would you have done differently on your crack cases, with the benefit of hindsight and our experiences on FSA re-sentencing? It’s a timely question: good guideline amendments will almost-certainly become effective Nov. 1, 2014. See reader-friendly amendments here. (Drug guidelines on page 32).  
  What will we say to today’s clients, when they call next Halloween from the BOP prison and want a re-sentencing motion? Push hard now to get rid of § 3582(c) waivers in today's plea agreements, with an eye towards the November amendments. 
  (Or put the brakes on the case: November 1 is just a short 286 days away!)
For Further Reading: The proposed amendments strike sentencing guru Doug Berman “as HUGE news, and a terrific and fitting application of some of the themes that have been stressed by many members of Congress and by the Attorney General in recent months.” See blog here.
  The Prof’s take? “Perhaps I am at risk of already getting too excited (and counting too many unhatched chickens) concerning this USSC vote. But especially if this vote was unanimous within the Commission, and especially if it has the formal or even tacit approval of the Department of Justice, I do not think I am completely off base when suggesting this is a really big deal.” Id.

Apple image from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


Labels: , , , , , , ,