Saturday, February 21, 2015

Case o' The Week: "Dollars to Donuts" and Non-Existent Transcripts - Burgos-Ortega and Illegal Reentry Sentencing

  In our post-Guidelines world, we’re all for district courts having “great latitude . . . in choosing a sentence.”
   Except when the court varies upwards, doubles the guideline range, and doubles the joint recommendations of the government, Probation, and the defense.
 United States v. Burgos-Ortega, 2015 WL 468186 (9th Cir. Feb. 5, 2015), decision available here.

Players: Decision by Judge Callahan, joined by Judges Graber and Gould. Hard-fought appeal by AFD Kent Young, Federal Defenders of San Diego, Inc.

Facts: Burgos-Ortega entered the US illegally, was prosecuted, and plead guilty to 8 USC § 1326. Id. at *1. His PSR calculated a range of 18-24 months: the PO recommended 2 years. Id. This included a +12 OL bump for a 1992 Washington State conviction for “delivery of heroin.” Id. The defendant had two prior reentry convictions: one in ’98 for 70 months, and second in ’06 for 46 months. Id. Both the gov’t and defense counsel argued for 24 months; the defense noted the (favorable) change in the guidelines ranges, the staleness of the heroin prior, and the client’s resolved issues with his children in the US, negating the need to return. Id. 
   The district court, however, decided to “vary up,” speculating that the prior entries had “good excuses,” musing about the other illegal reentry defendants who also “have a reason to come back,” and complaining that to give a lower sentence would be like “giving probation.” The court varied up to 4 years. Id. When defense counsel objected, the court said it was willing to bet “dollars to donuts” that the transcripts of the prior sentencings had promises by the defendant not to return to the United States. Id. at *3.

Issue(s): “Burgos-Ortega [argues] that the district court clearly erred because its sentence was based on facts not found in the record. Specifically, Burgos-Ortega argues that the district court improperly speculated that he had offered good reasons for his prior two illegal re-entries when it rejected Burgos-Ortega’s contention that he had no reason for returning to the United States in the future.” Id. at *7.

Held: “Burgos-Ortega’s argument is not persuasive . . . Our review of the record reveals that the district court’s comments played no role in its determination of an appropriate sentence . . . Viewing the record as a whole, the district court did not rest its sentence on any clearly erroneous fact.” Id. at *7.

Of Note: The holding above is disappointing, and is joined by a brace of similarly disheartening outcomes. The Court held that the Washington heroin offense was a +12 crime, because there was no realistic probability that it was overbroad and criminalized administration of the drug. Id. at *5-*6. The Court also rejects an Amezcua staleness argument, finding that any staleness was taken into account under the post-Amezcua amendment taking this offense down from +16 offense levels to +12. Id. at *8. A tough decision all around, for the defense of illegal reentry cases.

How to Use: Arguing two Ninth en banc opinions, Burgos-Ortega argues that the defense needn’t show that anyone was actually prosecuted for administering heroin because the Washington statute was overbroad on its face. Id. at *6. Judge Callahan distinguishes these cases (Grisel and Vidal), because the Washington state statute “does not expressly include conduct not covered by the generic offense, but rather is silent as to the existence of a parallel administering exception.” Id. 
   This merits a close read, for its Taylor ramifications – seems like new territory after Grisel and Vidal.
For Further Reading: Let’s not talk about disparity when grappling with federal sentencing. That provocative intro kicks off a particularly thoughtful piece by Judge Nancy Gertner – How to Talk about Sentencing Policy – and Not Disparity, available here. While working her way towards proposals for reform, Judge Gertner also gives a candid history of the different sentencing regimes in the last forty years or so. Well worth a read, and perhaps snagging a quote or two for the next sentencing memo.

Steven Kalar, Federal Public Defender ND Cal Website at


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Sunday, February 15, 2015

Case o' The Week: 3553 and IAC - Ninth limits information permitted for variances

   No limitation* shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” 18 U.S.C. Section 3661, available here.
   (* No limitation, except for those carved out by the Courts of Appeal). United States v. Dibe, 2015 WL 542735(9th Cir. Feb. 11, 2015), decision available here.

Players: Decision by visiting Sixth Senior Circuit Judge Gilman, joined by Judges Graber and Callahan.

Facts: Dibe, and co-participants in Nigeria, ran a wire fraud scheme by contacting U.S. victims and telling them they had won a lottery or an inheritance. Id. Dibe represented
himself as diplomat “John Brown,” and solicited money from the victims to expedite the lottery winnings or inheritance proceeds. Id. Surprisingly, there was no actual lottery or inheritance; Dibe and his colleagues kept over a million dollars in proceeds for themselves. Id. Dibe was indicted, and extended negotiations produced a plea agreement with a range below that ultimately adopted by the district court. Id. Time to accept the deal was short -- Dibe later asserted that counsel did not explain the “tremendous benefits of the plea agreement.” Dibe rejected the deal. Id. Dibe later entered an open plea to wire fraud, and got a 120-month sentence (below the guideline range). Id. at *1. New counsel was appointed after the plea and before sentencing. New counsel argued I.A.C. at sentencing and urged a downward variance. Id. at *2. The district court rejected that argument, adopted (higher) guideline calculations, but still varied downwards on other bases. Id.

Issue(s): “Dibe now appeals on the ground that his sentence would have been even lower if the district court had considered Dibe’s ineffective-assistance-of-counsel claim as a mitigating factor under 18 USC § 3553(a).” Id. at *1. “Dibe seeks a limited remand that ‘affirms the district court’s authority to exercise its discretion and consider appellant’s ineffective assistance of counsel argument in full.’ He claims that the district court erred in (1) its belief that it lacked the authority to consider ineffective-assistance-of counsel claims at sentencing and (2) its failure to consider such a claim as part of the complete history and characteristics of the defendant under 18 U.S.C. § 3553(a)(1) and the mandate to promote respect for the law under § 3553(a)(2)(A).” Id. at *4.

Held:We conclude . . . that neither claim has merit.” Id. “We . . . conclude that the district court’s failure to consider ineffective assistance of counsel as a sentencing factor was not a procedural error, significant or otherwise.” Id. at *6. “[A] downward departure or variance at sentencing is not the appropriately tailored remedy for ineffective assistance of counsel.” Id.

Of Note: Does Judge Gilman’s name seem familiar? Remember the remarkable Maloney en banc case, where the (then) CJ Kozinski suggested an AUSA take the video of the argument back to the US Attorney and discuss the proper conduct of federal prosecutors? See en banc blog here
  The spark that fueled that en banc call was a terrific dissent in the original panel case – a dissent penned by visiting Judge Gilman. See blog on original three-judge panel decision here.  

How to Use: “A more appropriate remedy for the ineffective assistance of counsel would be to allow Dibe to withdraw his guilty plea, or to require the government to re-extend its proposed plea agreement.” Id. at *7. While Judge Gilman closes one door on IAC as a Section 3553(a) variance, he leaves another wide open for these other options.
   Take particular note of the idea of forcing the government to re-extend its deal. Judge Gilman cites Johnson v. Uribe, 700 F.3d 413, 426 (9th Cir. 2012) for that proposition, and invites Dibe to bring that claim on a Section 2255 habeas. Id. at *6. Remember these alternatives when inheriting a mess of a case.  
For Further Reading: In a remarkable victory, Penn. Governor Tom Wolf last week declared a moratorium on the death penalty. See article here. Nearly 200 inmates will receive temporary reprieves until a report on capital punishment is complete. Id. Governor Wolf's reservations over a “flawed system” required a “step back to examine the effectiveness of a system fraught with racial disparity, constant reversals, and the infinite warehousing of prisoners . . . “ Id. 
  While far from a permanent win, this is an important step in the right direction (and a fine example for California's Governor Brown, as he mulls his own legacy).

Image of “Free Money” mousetrap from

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


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Sunday, February 08, 2015

Case o' The Week: Venue, Anew - Hsuing and Venue in Federal Criminal Trials

  “Better late than never.”
  True, if you’re the government, and you’re arguing venue.
United States v. Hsuing, 2015 WL 400550 (9th Cir. Jan. 30, 2015) (Ord. amend.), decision available here.

Players: Decision by Judge McKeown, joined by Chief Judge Thomas and District Judge Kendall. Appeal of convictions from trial before Northern District of California District Judge Susan Illston.

Facts: Foreign companies and foreign-national executives were tried for price-fixing under the Sherman Act, for TFT-LCD technologies (flat panel screens). Id. at *1. (The colorful image to the left is the tech under a microscope).
   The defendants met repeatedly in Taiwan, and there fixed prices to charge US customers. Id. During closing arguments, the defense argued that the government had not proved venue. Id. at *3. In rebuttal, the government addressed venue for the first time, arguing defendants’ negotiations of fixed- priced technologies with HP in Cupertino was sufficient to prove venue. Id. at *3. Defense objections that this misrepresented the evidence were overruled. Id.

Issue(s): “[T]he defendants appeal on the basis of improper venue. Four issues are subsumed in the venue challenge (i) our standard of review (ii) the proper standard for proof at trial (iii) whether the government’s representation in closing arguments constituted prosecutorial misconduct, and (iv) whether the government proved venue.” Id. at *4.

Held: “[W]e review de novo whether venue was proper.” Id. at *4. 
  “It is well established that a preponderance of the evidence is the proper standard of proof for venue.” Id. 
  “The defendants accuse the government of sandbagging by relying on ‘late-breaking theories’ of venue in rebuttal. However, the defense invited a response by raising the venue issue in the first place. A prosecutor may respond in rebuttal to an attack made in the defendant’s closing argument.” Id. “[T]he prosecutor did not commit misconduct by making these statements during closing argument, and the district court properly overruled the defendant’s objection.” Id. 
  “Finally, the evidence referenced by the government was sufficient to establish venue by a preponderance of the evidence.” Id. at *5.

Of Note: Read the opening brief by able appellate counsel – one gets the sense that the government’s venue theory was late and, to be charitable, the proof, thin. 2013 WL 526193 at *64. Some of the govt’s venue theories were first “unfurled in post-trial briefing.” Id. The brief rejection of the venue argument in Hsuing also fails to wrestle with an interesting defense argument for a “reasonable doubt” standard (notably, the states are nearly evenly split on whether venue must be proven beyond a reasonable doubt, id. at *81 & n.15).

How to Use: An odd beast, venue. Proof of venue is the government’s burden, but as noted above, need only be shown by a preponderance. Id. at *4. Failure to prove venue can lead to a Rule 29 victory, but the district court can find venue as a matter of law (even when the jury did not find venue proper!). Id. at *4 (citing United States v. Lukashov, 694 F.3d 1107, 1120 (9th Cir. 2012)). Some impressive defense talent slugged away at venue in Hsiung; it is a disappointing decision, but the appellate briefing is well worth a read when mulling a venue attack.

For Further Reading: Practice tip. If these are the facial expressions of your panel during a Ninth Circuit argument, things are not going well.
   This screen shot is from the argument in Johnny Baca v. Derral Adams. If you have not yet watched the video of this remarkable Ninth habeas argument, do so now - it is available here.  
   In Baca, outraged Judges Kozinski, W. Fletcher, and Wardlaw wonder why California judges were not cracking down on prosecutorial misconduct. See L.A. Times article here.  
   By the end of the argument, Judge Kozinzki – encourages – the Deputy AG to make AG Harris aware of the prosecutorial misconduct in the case within 48 hours. Id.; video at 30:11. The AG’s office quickly folded its tent: Mr. Baca will get a new trial. See Prosecutorial Accountability blog article, here
   Recall that in 2013, (then) Chief Judge Kozinski warned, "There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it." See CJ Kozinski's 2013 dissent in Olsen, available here; Huff post here; see also recent McDavid Brady / Giglio debacle in the ED Cal. 

Image of TFT-LCD technology from "Dell axim LCD under microscope" by Deglr6328, Gabelstaplerfahrer - Transferred from en.wikipedia to Commons.. Licensed under CC BY-SA 3.0 via Wikimedia Commons -

Image of (skeptical) Judges Wardlaw, Reinhardt, and W. Fletcher, in Baca v. Adams, from

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


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