Sunday, June 01, 2014

Case o' The Week: "Start Making Sense" - Guerrero-Jasso and Apprendi harmless error review

  “How did we get here?” yell the Talking Heads.
   Judge Berzon wants to know, too.
United States v. Guerrero-Jasso, 2014 WL 2180101 (9th Cir. May 27, 2014), decision available here.

Players: Decision by Judge Berzon, joined by Judge Paez and concurring Judge Fernandez. Concurrence by Judge Berzon (on Apprendi harmless error). Great win by ND Cal AFPD Cynthia Lie and R&W Attorney Mara Goldman.

Facts: Guerrero-Jasso, an alien, was removed three times. Id. at *1. Before one of those removals, he was convicted of an aggravated felony. Id. at *1. He returned and was charged with illegal reentry, in violation of 8 U.S.C. § 1326(b). Id. Guerrero-Jasso pleaded guilty to an information alleging all three removals, but didn't admit any particular one of them (only one of the three removal dates followed the agg felony, and would trigger the twenty-year stat max, instead of the two-year stat max exposure). Id. at *1-*2. 
  At sentencing, he contested the 42-month term by arguing he only faced two years – he hadn’t admitted the date of removal necessary to trigger twenty. Id. at *2. The government, faced with this objection, introduced new evidence of removals (over defense objections). Id. 
  The district court found the defendant had sufficiently admitted the key removal date in the Information, and Guerrero-Jasso was sentenced to 42 months. Id.

Issue(s): “Guerrero-Jasso’s sole contention on appeal is that under Apprendi, it was error to apply 8 U.S.C. § 1326(b)'s increased statutory maximum, because his guilty plea to the essential elements of 8 U.S.C § 1326(a) did not establish that he had been removed after an aggravated felony conviction.” Id. at *2.

Held:We hold that, in applying the twenty-year statutory maximum penalty instead of the two-year statutory maximum penalty, the district court impermissibly relied on facts that were neither admitted by the Defendant nor found by a jury beyond a reasonable doubt . . . See Apprendi . . . . Accordingly, we vacate the sentence, and remand for further proceedings consistent with this opinion.” Id. at *1.

Of Note: This is a remarkable opinion. The Ninth rejects the government’s attempt to circumvent Apprendi by introducing evidence of the removals at sentencing, and also rejected a gambit to salvage all through harmless error in a thoughtful analysis. Id. at *5-*7. It is an extraordinarily refreshing read, that goes back to the heart of the Apprendi right and makes it very clear that the government bears the burden to prove these facts. Id. at *3. A seminal Ninth Circuit Apprendi case.

How to Use: Judge Berzon is concerned. Id. at *8 (Berzon, J., concurring). She wonders, “how did we get here,” to a state of the law where “harmless error” review (NOT plain error) can routinely cure all and eviscerate the important Apprendi constitutional right? Id. at *10. Her scholarly concurrence traces the devolution of appellate review of Apprendi error, and correctly opines: “To sanction such a procedure is to allow the protections accorded by Apprendi entirely to atrophy.” Id. at *15. Flag this concurrence for a future en banc pitch on Apprendi harmless error review: Judge Berzon is ready to get the Ninth’s Apprendi law back on track.
For Further Reading: The AUSA here invited the district court to err, assuring the judge that the sentencing decision would be reviewed under the deferential harmless error standard. Id. at *9. Is it ethical for a prosecutor to invite error, with the assurance that gov’t-friendly standards of review will mean no reversal? For an intriguing argument that deliberate violations by the government should trigger automatic reversal instead of harmless error review, see Vilija Bilasis, Harmless Error: Abettor of Courtroom Misconduct, Journal of Criminal Law and Criminology, Vol. 74 Issue 2, available here.  

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

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