Sunday, December 28, 2014

Case o' The Week - The Gov't Was Right - Freddy Reyes and Relevant Conduct

  “Critics charge that relevant conduct, and specifically section (a)(2),
Hon. Judge Mary H. Murguia
encompasses too much unconvicted conduct, that sentences can be driven by unconvicted conduct, and as a result the full constitutional protections surrounding the criminal justice system, for practical purposes, are lost. These critics point out that there is no grand jury review of relevant conduct, no need to set out relevant conduct in a charging document, and lesser procedural or evidentiary protections surrounding its proof.”
    Discussion Paper, Relevant Conduct and Real Offense Sentencing, Sentencing Commission Staff, available here

   The critics are right. United States v. Freddy Reyes, 2014 WL 6600420 (9th Cir. Nov. 21, 2014), decision available here.

Players: Decision by Judge Murguia, joined by Judge Reinhardt and Fisher.

Facts: Reyes was part of a large smuggling ring: he ran the stash houses in the U.S.. Id. at *1. Undocumented aliens detained in one of these houses got a note out asking for help. Id. Raids by ICE then revealed two minors within. Id. at *2. Reyes pleaded guilty, pursuant to a Fed. R. Crim. Proc. 11(c)(1)(B) deal, to “harboring and concealing illegal aliens for financial gain.” Id. at *1. Probation busted the deal, and recommended that Reyes’ sentence be increased for harboring unaccompanied minor aliens. Id. at *2. The PSR recommended this enhancement under the relevant conduct guideline at USSG § 1B1.3(a), “which holds a defendant accountable for reasonably foreseeable actions or omissions of others committed in furtherance of a jointly undertaken criminal activity.” Id. at *3. At sentencing, both the defense and the government argued against the enhancements. Id. The court sided with Probation, rejected the deal’s (and the government’s) recommendations, and sentenced Reyes to the high-end of the enhanced guidelines: 96 months. Id.

Issue(s): 1. “Gamez Reyes does not dispute that unaccompanied minors were found at the . . . stash house. Instead, he disputes whether it was reasonably foreseeable to him that the unaccompanied minors would be there. In particular, he contends that, rather than applying the ‘reasonably foreseeable’ standard, the district court effectively applied a ‘strict liability’ standard, because it relied chiefly upon the sheer volume of aliens smuggled annually to conclude that it was reasonably foreseeable unaccompanied minors would also be smuggled.” Id. at *4.

Held: “We conclude that the district court applied the proper legal standard and did not clearly err in imposing the unaccompanied minor enhancement, despite the government’s argument at sentencing that it was not reasonably foreseeable to Gamez Reyes that unaccompanied minors would be smuggled.Id. at *4 (emphasis added).

Of Note: The government was right: the district court’s rationale for imposing the unaccompanied minor enhancement is a stretch. There was no direct evidence that Reyes knew the two minors were travelling alone, or knew that was the practice of the conspiracy leaders to smuggle unoccupied kids. To its great credit, the government (properly) argued against the enhancement at sentencing. The Ninth nonetheless holds that it was “plausible” that Reyes “could reasonably have foreseen” that others “might” have smuggled unaccompanied kids, “by act or omission.” Id. at *5 (an impressive string of speculation). The Relevant Conduct guideline is overbroad and unjust, and is inconsistent with the broad sentencing principles of Apprendi and Booker. Thankfully, the “use of relevant conduct in offenses involving multiple participants” is a priority for the Sentencing Commission in its next cycle – here’s hoping we’ll see an amended § 1B1.3(a) in the New Year. See Commission Final Priorities here.  

How to Use: What is the standard of review for the district court’s application of the Guidelines to the facts? Who knows? Judge Murguia flags the intracircuit split on whether the proper standard of review is de novo, or for abuse of discretion. Id. at *3 (citing Tanke, 743 F.3d 1296, 1306 (9th Cir. 2014)). The panel in Reyes doesn’t try to reconcile the conflict, explaining that its decision would be the same under either standard of review. Which of the two standards of review should you argue on appeal? Depends on whether you’re attacking, or defending, a district court’s sentencing decision: as things currently stand, the S.O.R. is dealer’s choice.
   Note also footnote 6 of the opinion, where Judge Murguia deals with the government’s beef that the defense didn’t make certain legal arguments about the “unaccompanied minors” enhancement before the district court. Reyes, 2014 WL 6600420 at 3 & n. 6.  Not a waiver or forfeiture, explains the Court, “”We may consider new legal arguments raised by the parties relating to claims previously raised in litigation.” Id. (quoting Thompson v. Runnels, 705 F.3d 1089, 1098 (9th Cir. 2013)). A useful paragraph to fend off “plain error” claims by the government.
For Further Reading: The defense bar hates the expansive Relevant Conduct guideline. Turns out we’re in good company: the Sentencing Commission staff hates the guideline too! 
   For a very candid discussion of this “most troublesome” guideline, see the staff’s “Simplification Draft Paper” available here

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



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Sunday, December 21, 2014

Case o' The Week: Speedy Trial? (or Wait Awhile) - Gavilanes-Ocaranza, the Sixth Amendment, and Supervised Release

Hon. Judge Susan P. Graber

The Sixth Amendment and Supervised Release: never the twain shall meet.  
  United States v. Gavilanes-Ocaranza, 772 F.3d 624 (9th Cir. Nov. 25, 2014), decision available here.

Players: Decision by Judge Graber, joined by Judge Hawkins and District Judge Sedwick

Facts: Gavilanes-Ocaranza pled guilty to attempted illegal reentry and received a three-year supervised release term after his term of imprisonment. Id. at *626. He was removed, reentered, detected, and convicted of reentry again; he received a 46-month custody term from another court. Id. at 626. Gavilanes-Ocaranza was then brought back before the original district court to face allegations that he had violated his original supervised release conditions. Id. at 627. He admitted the allegations, was revoked, and received a twelve-month custodial term for the S/R violation, consecutive to his 46 month sentence for the second illegal reentry. Id. None of the issues in the appeal were raised in the district court (hence plain error review review).

Issue(s): “We have held that the supervised release system under 18 U.S.C. § 3583, including revocation of that release and imposition of additional prison time as a result of a violation of a term of the release, does not violate a defendant’s right to trial by jury. Huerta-Pimental, 445 F.3d at 1224. Defendant contends that Alleyne v. United States … 133 S.Ct. 2151 (2013), effectively overruled Huerta-Pimental.” Id. at 628.

Held: “We disagree . . . we hold that, after Allyene, Huerta-Pimental remains good law. We reaffirm that the revocation of supervised release and the imposition of additional prison time pursuant to 18 U.S.C. § 3583 do not violate a defendant’s right to trial by jury.” Id at 628-29.

Of Note: Supervised release defense is hammered, in this brief opinion. In addition to shooting down the Apprendi pitch, the Court also takes on a Sixth Amendment Speedy Trial challenge. In this case, Gavilanes-Ocaranza was actually promptly brought before the original district court for the revocation proceedings. Id. at 628. He creatively argued, however, that the revocation was an extension of the original criminal prosecution years before – and thus the revocation hearing violated his right to a speedy trial. Id. 

  The Ninth wipes out this narrow argument in a broad holding: “To the extent that our precedent is ambiguous on that point, we eliminate that ambiguity by holding now that there is no Sixth Amendment right to a speedy ‘trial’ in supervised release revocation proceedings and that a revocation proceeding is neither its own criminal prosecution nor an extension of the original criminal prosecution that led to the imposition of supervised release.” Id.   

How to Use: Gavilanes-Ocaranza is about the Sixth Amendment and its (non-application) to supervised release. While the decision’s Speedy Trial holding isn’t terribly surprising, the general problem of delayed revocation proceedings remains real. AUSAs and Probation Officers make no effort to bring clients over from state custody to face federal S/R charges – they know that the delay will hamstring the district court imposing a supervised release term, and will increase the odds of consecutive violation sentences. 

  As Gavilanes-Ocaranza explains, there’s no Sixth Amendment right to a speedy trial on violation charges, but Judge Graber acknowledges that there is a Fifth Amendment due process right to a “reasonably prompt hearing.” Id. at 628 (citing United States v. Santana, 526 F.3d 1257, 1259 (9th Cir. 2008)). When trying to get your client back before a DJ for violation proceedings, think Fifth, not Sixth, as the hook.
For Further Reading: We’re used to the shoddy evidence procedures with local cops, but the Feds have their act together, right? 

  Not so much. 

An internal inquiry has revealed that the FBI has mishandled and lost evidence, with errors discovered “in nearly half of the pieces of evidence it reviewed.” See F.B.I. Evidence is Often Mishandled, an Internal Inquiry Finds, NYT available here.

Image of the Honorable Judge Susan P. Graber from

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

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Sunday, December 14, 2014

Case o' The Week: Camou no L’Étranger to Cell Phone privacy - Fourth Amendment and Cell Phone Searches

  The risk, for the government, when it “throws it all up against the barn
Hon. Judge Harry Pregerson
to see what sticks?”
   You may draw the wrong barn.
   United States v. Camou, 2014 WL 6980135 (9th Cir. Dec. 11, 2014), opinion available here.

Players: Decision by Judge Pregerson, joined by Judges Fisher and DJ Gwin. Big win for James Fife and Jason Ser, Federal Defenders of San Diego, Inc.

Facts: Border Patrol agents stopped a truck driven by Camou, and found an undocumented alien hiding within. Id. at *1. Camou’s girlfriend was also inside. Id. Agents found a cell phone in the truck. Id. Camou’s girlfriend described smuggling trips, arranged by “Mother Teresa” who would call with details. Id. During the interview Camou’s cell rang, the girlfriend identified the number as belonging to “Mother Teresa,” and Camou admitted the cell was his. Id. An agent searched the phone without a warrant and discovered child porn. Id. at *2. Camou was never charged with alien smuggling, but after an FBI search warrant revealed hundreds of child porn images on the phone he was charged with possession of child pornography. Id. His motion to suppress was denied, and he entered a conditional plea that preserved his right to appeal.

Issue(s): “Camou argues that the warrantless search of his cell phone was unconstitutional because the search was not incident to arrest, and no other exceptions to the warrant requirement apply. Camou also argues that the exclusionary rule bars the admissibility of the images found on his phone.” Id. at *3.

Held: “We agree.” Id. “Agent Walla’s search of Camou’s cell phone was too far removed in time from Camou’s arrest to be incident to that arrest.” Id. at *4. “Given both the passage of one hour and twenty minutes between arrest and search and the seven intervening acts between arrest and search that signaled the arrest was over, we conclude that the search of the phone was not roughly contemporaneous with arrest and, therefore, was not search incident to arrest.” Id. at *5. “Even if there was probable cause to search Camou’s cell phone, we conclude that the government failed to meet the second prong of the exigency exception: exigent circumstances that require immediate police action.” Id. at *6. “If the vehicle exception applies to this case . . . . the one hour and twenty minute delay between the seizure of Camou’s cell phone and the search of its contents would not invalidate the search. We hold, however, that cell phones are not containers for purposes of the vehicle exception.” Id. at *7. “[C]ell phones are non-containers for purposes of the vehicle exception to the warrant requirement, and the search of Camou’s cell phone cannot be justified under that exception.” Id. at *9.

Of Note: A cell phone is not a “container” subject to search incident to arrest. See id. at *9. That logical extension of the Supreme Court’s recent decision in Riley, 134 S.Ct. 2473, 2491 (2014) is the best of many great holdings in this terrific opinion. Judge Pregerson reviews the Supreme’s rejection of cell phones as containers in the vehicle context in Riley, and finds “no reason” not to extend that reasoning to cell phones recovered when our clients are arrested. Judge Pregerson may be the most-senior non-Senior judge in the Ninth Circuit, but this Fourth Amendment jurisprudence on cell phones is bleeding edge, and drags the Ninth back into the modern world on technology issues.  

How to Use: Read Camou. The government takes a shotgun approach to try to salvage this (bad) search, and as the Court methodically knocks each argument down it gives the defense great tools on many fronts for our Fourth arsenal. Search incident to arrest, exigency, the automobile exception – each is covered (well) and merits quotation. Don’t overlook, however, a great Herring “good faith” discussion at the end of the opinion. Id. at *10-11. Judge Pregerson rejects a negligent agent’s attempt to assert the “good faith” discussion – a section that merits heavy quotation whenever the government throws that red Herring into its Fourth Amendment briefing.
For Further Reading: Little rusty on Riley? For a particularly thoughtful summary of this important decision, see Ten Key Issues from the Riley Opinion Protecting Cell Phone Data Seized During an Arrest, available here

Image of the Honorable Judge Harry Pregerson from

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


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