Wednesday, October 28, 2015

Crayton Concurrence Should Guide Litigation On Alleyne Retroactivity, Guideline Facts, And ACCA Procedures

In June, the Seventh Circuit joined other circuits in refusing to give retroactive effect to Alleyne’s holding that the Sixth Amendment’s jury trial right and reasonable doubt standard apply to facts that increase a mandatory minimum sentence. In United States v. Crayton, the majority held that Alleyne did not provide a basis for collateral relief from a 20-year mandatory minimum under the drug statute for death resulting from distribution. But the assumption-breaking concurring opinion by Judge Ann Claire Williams should provide guidance for our efforts in three cutting-edge areas for potential Supreme Court litigation:

Alleyne’s holding on the reasonable doubt standard and mandatory minimum sentences should apply retroactively as both a procedural watershed rule and a substantive rule under Teague analysis, as signaled in Judge Williams’ concurrence;

• The reasonable doubt standard should apply to within statutory maximum sentences that, without guideline error, would be substantively unreasonable, as Justices Scalia, Thomas, and Ginsburg signaled in the 2014 dissent from denial of certiorari in Jones v. United States;

• Sixth Amendment trial rights and the Fifth Amendment right to grand jury indictment should apply to the sequence of prior convictions under the Armed Career Criminal Act (ACCA), as then-Chief Judge Wilkins signaled in his 2005 dissent in United States v. Thompson.

In each of these areas, the lower courts have been avoiding full application of governing Supreme Court authority on the Sixth Amendment. The lower courts’ feet-dragging on full application of the reasonable doubt standard in these three contexts is reminiscent of the reluctance to apply Taylor, which the Descamps decision corrected, and the reluctance to apply Apprendi, which the Booker decision corrected. By incorporating and building on Judge Williams’ analysis of Alleyne, we should be pushing lower courts to be faithful to controlling Supreme Court authority and, failing that, urging the Supreme Court to resolve the constitutional questions to benefit our clients.

Alleyne Retroactivity

Given the unanimity of superficial opinions finding Alleyne not to apply retroactively, Judge Williams’ concurrence is like the only clear-eyed person stating the obvious: the Emperor is wearing no clothes. The basic message is that the majority’s premise – the facts triggering the minimum do not constitute a new offense – is “simply not true.” As Judge Williams states, Alleyne made clear that “[w]hen a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms part of a new offense,” adding emphasis to “new offense.” From there, the judge points out how decisions finding Apprendi non-retroactive got it completely wrong because Apprendi and Alleyne are not about sentencing: “They are about the accurate determination of a defendant’s guilt of a particular offense.”

Judge Williams’ analysis demonstrates why Alleyne meets the standard for a “watershed” new rule of constitutional criminal procedure under Teague. She places special emphasis on two Supreme Court rulings – Ivan V. and Hankerson – both of which held that the expansion of the reasonable doubt standard in Winship applied retroactively. In support of her position, Judge Williams provides an eye-opening history of Gideon to illustrate how lower courts have interpreted Teague too narrowly over the years, treating the right to counsel as the unique exemplar of a watershed rule, instead of an incremental expansion in the right to counsel, following numerous Supreme Court decisions in the same vein.

Ultimately, Judge Williams reluctantly concurred in the majority’s holding that Alleyne does not apply retroactively on the grounds that the Supreme Court has never found a new rule to meet the Teague standard: “However, I hope that the Supreme Court will find in its retroactivity jurisprudence space on the Gideon pedestal for other new rules, particularly those so important to our criminal justice system as the reasonable-doubt standard.”

While we’re preserving challenges to mandatory minimum sentences in cases on collateral review, we can also build on Judge Williams’ concurrence to blaze another path to review in lower courts and, if necessary, to the Supreme Court. Judge Williams’ quarrel with precedent in this area “is the characterization of Alleyne as a decision about sentencing, rather than guilt.” Justice Thomas’s opinion in Alleyne points out (and repeats six times in the course of the opinion) that, under 18 U.S.C. § 924(c), the facts that aggravate the mandatory minimum from five to seven to ten years are elements of the offense. At the first step of Teague retroactivity analysis, a new rule regarding the substantive scope of a crime – both on whether acts are punishable or what the punishment shall be – always apply retroactively. As with Bousley and Fiore, when the high court speaks regarding the definition of the offense, the new rule applies retroactively, so the lower courts should apply the new substantive law to ameliorate existing sentences.

Clemency, retroactive drug amendments, and Johnson have forced open long closed files. For the clients who win the sentencing reform lottery, all is well. For our clients who are serving mandatory minimum sentences that were never proved to a jury beyond a reasonable doubt, we should be litigating the retroactivity of Alleyne, asserting that both the substantive and procedural aspects of the Supreme Court’s decision apply retroactively.

Reasonable Doubt Requirement For Factors Within The Statutory Maximum

Judge Williams missive to the Supreme Court regarding the retroactivity of Alleyne brings to mind the 2014 dissenting opinion on denial of certiorari in Jones v. United States. Three justices, relying on Alleyne, found the Court’s precedent to unavoidably require that “any fact necessary to prevent a sentence from being substantively unreasonable – thereby exposing the defendant to the longer sentence—is an element that must be either admitted by the defendant or found by the jury. It may not be found by a judge.” Justice Scalia’s logic, joined by Justices Thomas and Ginsburg, starts with the same point made by Judge Williams about Alleyne referencing guilt, not sentencing. Because any fact that increases the penalty to which a defendant is exposed constitutes an element of a crime, a fact that would render a sentence substantively unreasonable is an element and must be found by a jury beyond a reasonable doubt or admitted by the defendant.

Before Jones, the Court identified in Rita the Sixth Amendment question created when courts impose sentences that, but for a judge-found fact, would be reversed for substantive unreasonableness. But the Court “left [that question] for another day.” The lower courts to date have often allowed judicial fact-finding to support an otherwise unreasonable sentence as long as it is within the statutory maximum. The lower court decisions cited in the Jones dissent that allow judicial fact-finding predate Alleyne, and none focus on the substantive elements of an offense.

The three dissenters in Jones are saying the Court should put up or shut up on what look like unconstitutional sentences: “We should grant certiorari to put an end to the unbroken string of cases disregarding the Sixth Amendment – or to eliminate the Sixth Amendment difficulty by acknowledging that all sentences below the statutory maximum are substantively reasonable.” Our clients need us to push the former position, both in direct representation and collateral attacks. We can argue that the intervening decision in Alleyne undermines the reasoning of previous cases in this area and, failing that, the Supreme Court should accept certiorari to bring the lower courts into conformity with the reasoning and logic of Supreme Court precedent.

The Rights To Grand Jury Indictment And Petit Jury Verdict On The Sequence Of ACCA Predicates

The Alleyne clarification of Apprendi should have special resonance for our ACCA litigation regarding Fifth and Sixth Amendment rights. In 2004, then-Chief Judge Wilkins of the Fourth Circuit filed a dissent in United States v. Thompson, expressing the view that the sequence of ACCA predicates necessary to trigger the mandatory minimum of fifteen years had to be alleged by the grand jury and proven to a jury beyond a reasonable doubt under the Fifth and Sixth Amendments. Judge Wilkins’ reasoning is impeccable: the “different occasions” requirements for the predicates under the ACCA constitute facts that increase the penalty for a crime beyond the prescribed statutory maximum, and, therefore, must be both proven beyond a reasonable doubt to a jury under Apprendi and found by a grand jury under Cotton. We have litigated and lost on this theory, both directly under the Constitution and as a required construction of the ACCA to avoid serious constitutional problems (the argument is elaborated in the memorandum found here).

The Alleyne opinion supercharges Judge Wilkins’ reasoning. Any fact that provides the basis for an increased mandatory minimum must be proved to the jury beyond a reasonable doubt. And any fact that increases the statutory maximum triggers one of the key purposes of a grand jury: to insulate the community from overly harsh charges that are not warranted by the facts. The sequence of prior convictions is a fact subject to dispute and mistake in the absence of procedural protections.

As Judge Wilkins reminded us, the Court in Apprendi questioned the exception for the existence of a prior conviction from Alemendarez-Torres and characterized the case as creating a “narrow” exception. The dates and sequence of prior convictions go beyond “the fact of a prior conviction,” thereby triggering the reasoning of Apprendi, as now clarified by Alleyne. Justice Scalia’s footnote in the Jones dissent signals the last layer of our argument: if the sequence of prior convictions is included in the Almendarez-Torres exception, the Court should revisit and reverse Almendarez-Torres, just as the Court did in Alleyne by revisiting Harris, bringing precedent on proof of mandatory minimum facts into line with the Court’s post-Apprendi Sixth Amendment jurisprudence.

In layering our arguments under the ACCA, remember that the Supreme Court in Johnson has just found the residual clause of this miserably written statute unconstitutionally vague. Johnson should strengthen our arguments for strong procedural pleading and proof requirements to trigger the harsh ACCA consequences.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon

Tuesday, October 27, 2015

Crittenden v. Chappell, No. 13-17327 (10-26-15)(Fisher with Berzon; dissent by McKeown).
The 9th affirms the granting of habeas relief in a California capital case. The relief was given because of a Batson violation. The 9th affirmed that the district court's finding that the prosecutor's motivation in striking an African-American was substantially racial. The finding was not clearly erroneous.  A Batson violation occurs and relief can be granted, holds the 9th, even if the strike would have occurred for a nonracial reason (her qualms about capital punishment). See Cook v. LaMarque, 593 F.3d 810 (9th Cir 2010). AEDPA deference is not applicable because the California Supreme Court's decision was contrary to established federal law.

Dissenting, McKeown takes issue with the finding that the primary motivation was race. 
The decision is here:



Sunday, October 25, 2015

Case o' The Week: Welcome Clarity on Vagueness - Dimaya and Extension of Johnson to the Immigration (Civil) Context

Our Johnson Messiah: Due Process Dimaya.
  Dimaya v. Lynch, 2015 WL 6123546 (9th Cir. Oct. 19, 2015), decision available here.

Players:  Decision by Judge Reinhardt, joined by Judge Wardlaw. Dissent by Judge Callahan. Big win for Prof. Andrew Knapp, Southwestern Law School, with amicus help from Sejal Zota of Nat’ Immigration Project of Nat’ Lawyers Guild, for amici Immigrant Legal Resource Center, Immigrant Defense Project.

Facts: Dimaya was admitted to the US as an LPR. Id. He was twice convicted
Hon. Judge Stephen Reinhardt
of Cal. Penal Code Sec. 459, first degree burglary. Id. 

Under the Immigration and Nationality Act (“INA”), a conviction for an “agg felony” makes a petitioner like Dimaya subject to removal. Id. An Immigration Judge (“IJ”) held that Cal burgs are “crimes of violence,” and thus agg felonies, under the INA’s cross-reference to 18 USC § 16(b). Id. The IJ found Dimaya removable and ineligible for relief. Id. 

That decision was upheld by the Board of Immigration Appeals.

Issue(s): “Petitioner James Garcia Dimaya seeks review of the Board of Immigration Appeals' (BIA) determination that a conviction for burglary under California Penal Code Section 459 is categorically a ‘crime of violence’ as defined by 8 U.S.C. § 1101(a) (43)(F), a determination which rendered petitioner removable for having been convicted of an aggravated felony. During the pendency of petitioner's appeal, the United States Supreme Court decided Johnson . . . 135 S.Ct. 2551 . . . (2015), which held that the Armed Career Criminal Act's (‘ACCA’) so-called residual clause’ definition of a “violent felony” is unconstitutionally vague. In this case, we consider whether language similar to ACCA’s residual clause that is incorporated into § 1101(a)(43)(F)’s definition of a crime of violence is also void for vagueness.” Id. at *1.”

Held: “We hold that it suffers from the same indeterminacy as ACCA's residual clause and, accordingly, grant the petition for review.” Id.

Of Note: The most obvious impact of Dimaya is immigration – but this quickly bleeds into “crimigation.” 

Head’s up: crimigation is our job. 

After Padilla, criminal defense counsel have an affirmative obligation to accurately advise their clients on immigration consequences. See generally Rodriguez-Vega blog entry hereAfter Johnson and Dimaya, are you sure that case is still an agg felony, as you advise your criminal client? 

Read Dimaya, read Rodriguez-Vega, get spooked, then hit the Nat’l Immigrant Justice Center. See CJA Immigration Help Link here.  (Or try to hire immigration counsel– hiring an immigration attorney now on the CJA dime is much cheaper than paying for CJA habeas counsel later).  

How to Use: Dimaya will be the Ninth’s most important decision of the year. 

Here’s the rationale for that bold claim. If Johnson’s Due Process “vagueness” holding applies in a mere civil context (like the INA), id. at *2, the Supreme’s decision surely must apply to all criminal (albeit non-statutory) provisions. Johnson is our new hammer, and with Dimaya the whole world looks like a nail. USSG § 4B1.2(b) (CareerOffender); § 2K2.1 (felon in possession); § 2L1.2 (illegal reentry); USSG §7B1.1(1)(1) (Supervised Release Violations)– all have vulnerable “crime of violence” definitions, and all are now up for grabs.

Throw in due process challenges to statutes like 18 USC § 3142(f)(1)(A) (Bail Reform Act), the Hobbes Act, Section 924(c) offenses, and ACCA, and much welcome mischief awaits.

And don’t forget the thoughtful Dimaya analysis by Judge Reinhardt, specifically equating the ACCA “crime of violence” provision with the Section 16(b) “crime of violence” definition for the due process analysis, id. at *3 - *6 (analysis that cries out for logical extension to other “crime of violence” definitions).

Dimaya is the foundation upon which much good law will soon be built: a Very Big Case.
Prof. Andrew Knapp, Southwestern School of Law
For Further Reading: Dimaya was held in immigration detention, without bond, for five years. It was only after the Ninth appointed Prof. Knapp as pro bono counsel, and a “dedicated group of idealistic Southwestern law students took over [Dimaya’s] representation, was [Dimaya] finally able to obtain his release on bond.” 

For an article describing the moving human story behind this case, see here.  

Image of the Honorable Judge Stephen Reinhardt from

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


Labels: , , , , , , ,

Friday, October 23, 2015

United States v. Ochoa, No. 14-10124 (10-22-15)(Rawlinson with Murguia; Navarro, D.J., dissenting). 

This is an alarming procedural sentencing case.  The 9th holds that sentencing is not completed with an oral pronouncement of sentencing.  Rather, Fed. R. Crim. P. 35 does not bar the judge from altering the sentence in the course of the proceeding.
This case involved a Supervised Release violation.  The court chastised the defendant for various violations, and sentenced him to a year and a day and notified him of his right to appeal.  The court then said "Anything else?" And counsel sought to clarify whether Supervised Release was terminated.  The court observed the defendant apparently laughing.  The court stated that the defendant "just talked himself" into a higher sentence, and sentenced him to the max Supervised Release term of two years, twice his original sentence.  Counsel did not object.  Defendant appealed.

18 U.S.C. § 3582(c) states that a court may not modify a term of imprisonment once it has been imposed (except by statute or Rule 35).  Rule 35 goes on to read that a sentence can be corrected within 14 days for a technical or arithmetic or clear error.  "Sentencing" is defined as "the oral announcement of sentence." Fed. R. Crim. P. 35(a) and (c).
Seems pretty clear.  The court gave an oral sentence and then changed it.  The 9th finds though that so long as the hearing is unbroken, or ongoing, a sentence can be changed and altered and increased.

The 9th looks to other circuits, most notably the 5th.  The 5th establishes "this course of the same proceeding."  The 1st and 10th also supports this reading.  The reasoning, adopted by the 9th, is the concern that a rigid rule as to the oral pronouncement would deprive the court of flexibility during evolving circumstances.  Laughter signaled to the court that the defendant was uncooperative and disinterested.  This was an evolving circumstance.  The 9th did say this could allow a court after pronouncement to also reduce a sentence if there was mitigation that was presented. 
Dissenting, Navarro decries this "draconian" decision of the sentencing court to double the sentence solely based on a perception the defendant was laughing.  The dissent calls the trial court's decree as "injudicious" and runs counter to the unambiguous language of Rule 35 and the express limitation of statute.

The decision is here:

United States v. Eyraud, No. 14-50261 (10-22-15)(Trott with O'Scannlain and Bybee). 

The 9th affirmed restitution as to the lawyers' fees incurred by a corporation in investigating fraud.  The defendant was in payroll and embezzled to the tune of about $265,000.  Auditors found it, after some time, and the defendant confessed, was charged, and pled.  The corporation then got about $425,000 in restitution, including loss, tax issues, forensic auditing, and lawyers' fees.  The appeal challenged legal restitution. The 9th found it was proper, not unreasonable, and that due process was not violated by failure to see the original invoices but only summaries.

The decision is here:

Wednesday, October 21, 2015

United States v. Conti, No. 14-30232 (10-21-15)(Gould with Goodwin and Ikuta). 

The 9th embraces the Neder-world regarding jury instructions and error.

Here, the defendant was charged with defrauding a federal program designed to aid juveniles on an Indian Reservation. The grant aid was for mental health and substance abuse. The grant funds ended up in the defendants' pockets, with the theft amounting to millions. The defendant was convicted on numerous fraud counts and conspiracy. This opinion deals with the conspiracy conviction.

At trial, the court erred in instructing on the conspiracy count: 18 U.S.C. § 371, the trial court instructed on the "offense" clause (the means) and not the "defrauds" clause.  To convict on the "defraud clause," the government must prove (1) an agreement; (2) to obstruct a lawful government function; (3)) by deceitful or dishonest means; and (4) one overt act.  The difference is that the "defraud clause" has the element of "deceitful or dishonest" means.  This was missing.

A missing element requires reversal?  No. The missing element is subject to "harmless error" analysis.  The Supremes in Neder v. United States, 527 U.S. 1 (1999), held that failure to instruct on an element was subject to harmless error review.  In Neder, the missing element was "materiality."  In conducting the review, if the element was not contested, and there was overwhelming evidence presented, then the error in not instructing on the missing element can be deemed harmless.  If the element is contested, and defendant raised sufficient evidence to support a contrary finding, then the error is prejudicial.
The 9th in Caldwell, 989 F.2d 1056 (9th Cir. 1993) had required reversal if the element was missing. The 9th held that Caldwell is overruled in light of Neder.
Here, to make matters even more difficult for defendant's claim, he did not object.  The review is for plain error. 
The 9th found there was substantial, indeed, overwhelming, evidence that the defendant had engaged in deceitful and dishonest means.  It affirmed the conviction.
The decision is here:


Saturday, October 17, 2015

Case o' The Week: Ninth Says (No Need to) "Show Me the Money" -- Mobley and Fed J/X for Sec. 2114 Robbery

The good news? This terrific quote:

Existing federal criminal laws don't cover the subject, and it is an important norm of the criminal process that federal courts do not bend the statutes on the books to criminalize acts just because of a belief that they ought to be forbidden.

The bad news? That quote is from an Easterbrook decision – and a decision from which the Ninth has decided to split.

Hon. Judge Easterbrook
United States v. Mobley, 2015 WL 5973318, *4 (9th Cir. Oct. 15, 2015), decision available here, disagreeing with United States v. Salgado, 519 F.3d 411, 415 (7th Cir.) on reh'g in part sub nom. United States v. Pacheco-Gonzales, 273 F. App'x 556 (7th Cir. 2008) (Easterbook, Chief Judge).

Players: Decision by Judge Watford, joined by Judges Callahan and M. Smith. Hard fought-appeal by ND Cal CJA Counsel Mary Pougiales, appeal from ND Cal D.J. Gonzalez Rogers.

Facts: ATF set up a buy of a grenade launcher. Id. Mobley and co-D’s met with Cooperator McGrew, and ATF Agent Palmer. Id. Mobley, McGrew, and co-D Hucherson got into a car driven by Agent Palmer. Id. In the light most favorable to the government, Mobley then pulled a TEC-9, leaned forward from the back seat, and pointed the gun at Agent Palmer’s head. Id. Hucherson did the same. Id. Either Mobley or Hucherson shouted, “Where’s the money at?” Mobley twice demanded that Agent Palmer empty his pockets. Id. Officers eventually wrested the gun away. Id. Everyone but Mobley pled: he went to trial and was convicted. Id.

Issue(s): “Mobley attacks the sufficiency of the evidence supporting the robbery conviction under 18 U.S.C. § 2114(a). That statute provides, in relevant part: ‘A person who assaults any person having lawful charge, control, or custody of any mail matter or of any money or other property of the United States, with intent to rob, steal, or purloin such mail matter, money, or other property of the United States, [shall be guilty of a crime].’ (Emphasis added.) Mobley contends that the government did not introduce sufficient proof that Agent Palmer actually had the buy money in his ‘charge, control, or custody’ at the time Mobley assaulted him.” Id. at *2 (emphasis in opinion).

Held: “Mobley is wrong. Agent Palmer testified that he brought $2,000 in ATF funds with him to the deal, which he intended to use to buy the grenade launcher and any other weapons the defendants might have offered. Contrary to Mobley's argument, the fact that Agent Palmer never ‘showed’ the buy money during the transaction is of no consequence. It was enough for the government to prove that Agent Palmer had the ATF funds on his person, even if he never let Mobley see the money. Agent Palmer's uncontradicted testimony that he had the ATF funds in his custody provided ample evidence from which a rational jury could conclude that this element of the statute was satisfied.”

Of Note: Mobley was convicted of § 924(c)(1)(A), brandishing a firearm in furtherance of a crime of violence. Id. at *1. 

Which crime of violence?  The jury instructions here deemed both offenses to be crimes of violence in the Section 924 instruction -- but that was before Johnson.

After the Supremes trashed the residual clause of § 924(e)(2)(B) in Johnson, is there a constitutionally-valid crime-of-violence definition in § 924(c)(3)(A) that includes the charges here? “Assault on a federal officer”  may be problematic: the jury instructions here allowed a conviction for Section 111(b) if Mobley "intentionally threat[ened] another coupled with an apparent ability to inflict injury on another which causes a reasonable apprehension of immediate bodily harm."

Is that enough for the § 924(c)(3)(A) definition, deeming a crime of violence an offense with the "threatened use of physical force against the person or property of another?" Can § 111(b) be satisfied with a threat that falls short of the § 924(c) definition? 

Even the mail robbery statute (§ 2114(a)) may be vulnerable under a fair reading of the 924(c)(3)(A) “force” requirement. See Rodriguez, 925 F.2d 1049 (7th Cir. 1991) (pulling postman’s key chain enough). 

Perhaps Johnson habeas relief awaits Mr. Mobley?

How to Use: Agent Palmer was a fed, and had money on his person that belonged to the US. Robbing him violates § 2114(a). Id. at *4. But Mobley argued he meant to steal from snitch McGrew, not Agent Palmer – and Mobley certainly didn’t know that Palmer had federal funds. 

The Ninth is not convinced. 

In what appears to be a Ninth decision of first impression, Judge Watford holds that a defendant doesn’t need to know the federal nature of money targeted, to be guilty of § 2114(a) robbery. Id. at *4. 
Seems like the Ninth now splits with Judge Easterbrook's contrary take in the Seventh. Salgado, 519 F.3d 411, 475 (7th Cir. 2008) (“If the DEA wants to make sure that the robbery or attempted robbery of an informant can be prosecuted in federal court, it should issue a shiny dollar coin to everyone involved in a drug transaction.”) Judge Easterbrook has the better argument: seek cert. on this circuit split, for Ninth convictions on this theory.
For Further Reading: Does it seem like Johnson pervades everything – the whole tangled skein of crime of violence definitions enmeshed in the federal code? It does. For a useful article on Johnson in the immigration context, see here.

Image of the Honorable (former) Chief Judge Easterbrook from

Image of silver dollar from

Steven Kalar, Federal Public Defender ND Cal. Website at


Labels: , , , , , , , ,