Sunday, May 11, 2014

Case o' The Week: Illegal and Affirmed - Castro-Verdugo and Review of Illegal Sentences

Hon. Charles R. Breyer

   Should the Ninth Circuit tolerate a patently unlawful sentence, for an alien defendant who had no effective opportunity to bring a challenge?
  Judge Breyer (dissenting) doesn’t think so either.
United States v. Castro-Verdugo, 2014 WL 1778152 (9th Cir. May 6, 2014), decision available here.

Players: Decision by Judge Graber, joined by Chief Judge Kozinski. Dissent by Sr. District Judge Charles Breyer.  Hard-fought appeal by AFD Matthew Pritchard, Federal Defenders of San Diego, Inc.

Facts: Castro-Verdugo was convicted of illegal reentry and sentenced to probation, with a stayed custodial sentence. Id. at *1. The district court doesn’t have authority to impose that type of sentence. Id. (citing 18 USC Section 3561(a)(3)). Defense counsel did not object. Id. Castro-Verdugo returned to the US, was convicted of illegal reentry again, and with violation of his “probation” for his original Section 1326 sentence. Id. On appeal, the government conceded that the original sentence was clear error. Id. at *2.

Issue(s): “Defendant argues that the district court lacked jurisdiction to revoke his probation in 2013 because, when the district court imposed probation in 2011, it did so in conjunction with a sentence of imprisonment, which it lacked authority to do under 18 U.S.C. § 3561(a)(3). Id. at *2.

Held: “We do not have a freestanding mandate to fix every mistake that we see . . . . However much we may agree that the 2011 sentence was imposed in error and that Defendant’s 2011 counsel should have moved to correct it promptly, Defendant in fact was still serving a term of probation in 2013. The district court in 2013 therefore had jurisdiction under 18 U.S.C. § 3565(a).” Id. at *5.

Of Note: Judge Breyer doesn’t buy it. “Today the majority affirms an illegal sentence while acknowledging that the sentence imposed was clearly erroneous, and offers no practical remedy to correct the wrong.” Id. at *6 (Breyer, D.J., dissenting). He correctly distinguishes two Ninth cases relied on by the majority, pointing out the defendant here doesn’t seek to attack the original sentence and withdraw a plea (as was the case in those earlier opinions). Instead, Castro-Verdugo challenged the authority of the district court to revoke his illegally-imposed probation. Id. at *6. 
  Judge Breyer then explains the realities ignored by the majority: an alien, immediately deported, has no practical or effective remedy to challenge these types of illegal sentences when originally imposed. Id. at *7. (Here Castro-Verdugo was deported the day after the sentence was imposed.) Id. at *8.
     Six thousand defendants – 29% of all criminal defendants in the Ninthare illegal reentry cases. Id. at *9. The upshot of Castro-Verdugo is that these alien defendants in the Ninth have no effective way of challenging a concededly illegal sentence. It is a troubling result that denies equal justice to a quarter of the Circuit’s defendants.
   Castro-Verdugo deserves a second look by the en banc court.

How to Use: Why didn’t Castro-Verdugo flatly waive his right to challenge an illegal sentence at the time of his plea? Because “this Court has wisely held, along with many of its sister circuits, that appellate courts must reject such a waiver if to enforce it would result in the affirmance of an illegal sentence.” Id. at *6 & n.1. A thin silver lining of Castro-Verdugo is that there’s no talk of any waiver issues: seems clear now that one can’t waive the right to appeal an illegal sentence. Turn to Judge Breyer’s discussion and footnote to fend off any waiver nonsense in the context of an appeal of an illegal sentence.
For Further Reading: A huge loss for Defenders is a gain for clemency efforts. Cynthia Roseberry, Executive Director of the Federal Defenders for the Middle District of Georgia, has been appointed as the Project Manager for Clemency Project 2014. See NACDL Press Release here. It is a great development for the clemency effort, which is quickly ramping up. On May 5th, the BOP sent clemency notices and surveys to federal inmates – expect inquiries from your clients in short order. 

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


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