Friday, April 29, 2016

US v. Adebimpe, No. 14-10303 (4-27-16)(Murguia with Hurwitz; Paez dissenting). We have a circuit split here: Can there be an abuse of trust enhancement under 3B1.3 appropriate for suppliers of durable Medicare equipment--mobile electric wheelchairs. The majority says "yes" because the supplier has to make sure the wheelchair is correct, independent of the physician prescribing and final approval. (The physician here was in on the fraudulent prescribing). The defendant thus had managerial discretion.

The dissent argues that the supplying was just ministerial. The prescription came in and the electric wheelchairs rolled out.

The 9th sides with the 5th against the 11th. 
The decision is here:

Saturday, April 23, 2016

Case o' The Week: Quicks Sticks in Time Not Saved in Nine - Onuoha and Sell Involuntary Medication

  Here’s an efficient idea: why not involuntary medicate our clients with six times the recommended dose of psychotropic drugs? Easier for BOP staff, and a quicker hustle to restored competency. 
  (The Ninth, thankfully, doesn't buy it either).
United States v. Onuoha, 2015 WL 1579952(9th Cir. April 20, 2016), decision available here.
Honorable Judges Gould and Berzon
Players:  Decision by Judge Gould, joined by Judge Berzon and District Judge Steeh. Important win for CD Cal AFPD Briana Fuller Mircheff.

Facts: Onuoha, a mentally ill man and former TSA screener, is charged under 18 USC §§ 844(e) and 1038(a)(1) for allegedly making threatening calls to LAX and telling them to clear the airport. Id. at *1. The defense noticed a diminished capacity defense before trial, and the district court then granted the government’s motion for a competency evaluation. Id. at *2. 
  After the BOP found Onuoha incompetent the government sought forced medication to restore competency under Sell v. United States, 539 U.S. 166 (2003). Id. at *2. 
  Over defense objection, the district court ordered involuntary medication. Id. at *2. Onuoha filed an interlocutory appeal. Id.

Issue(s): “On this appeal Onuoha challenges only the district court’s conclusions on the first and fourth [Sell] factors, and so we limit our discussion, first, to whether important government interests are at stake in prosecuting Onuoha and, second, to whether administration of the prescribed drugs is medically appropriate, i.e., in the patient's best medical interests in light of his medical condition.” Id. at *3.

Held: “We conclude that the first factor is met but that the fourth factor is not: there is an important  governmental interest in prosecuting Onuoha, but the proposed treatment is not in his best medical interests.” Id.

Of Note: Onuoha’s Guideline range is only at 27-33 months. Id. at *4. When the Ninth upheld the “important governmental interest” in this case (the first Sell factor), Onuoha becomes the lowest guideline range to satisfy the “important governmental interest” test. Id. The Ninth adds many caveats, however, that make this a one-off case for this factor.  Onuoha was a former TSA screener who allegedly made threatening calls to LAX on the eve of 9-11, who left notes leading law enforcement to believe he was an active shooter, and generally caused much havoc. Id. at *5. Moreover, the Ninth rejects the district court’s reliance on “future dangerousness” as a basis for the “governmental interest” inquiry. Id. 
  Don’t let an AUSA get away with a casual cite to this low range for this factor – this is a nuanced and fact-bound analysis of “governmental interest,” and is readily distinguishable in most low-guideline range cases.

How to Use: The BOP’s Dr. Lucking recommended forced injections of Haldol, at doses higher than the BOP’s own own recommendations. Id. at *7. Dr. Lucking recommended this high dose – up to six times higher than the BOP’s guidelines– “so that treatment moves on in a more rapid manner.” Id. at *8. The Ninth is appropriately unimpressed: “restoring competency quickly is not a controlling concern under the fourth Sell factor – only the best medical interests are considered.” Id. 
  Not that Judge Gould refuses to demure to the BOP’s doc’s “expertise:” “a physician's word is not absolute, not even the word of a reputable and experienced doctor. Although Dr. Lucking has administered involuntary medication hundreds of times, his recommendations are still subject to Sell’s rigorous analysis.” Id. at *9.
  Onuoha illustrates why the defense really has to tear apart any BOP forced-med recommendation: it is a defendant-centered (actually, patient-centered, id. at *9) opinion that rightly puts our client’s health front and center. 
  A new leading opinion on Sell litigation, and a must-read for any forced-med case.
For Further Reading: Nna Alpha Onuoha is a former U.S. Army vet, and a former TSA worker, who allegedly made the threats to LAX the day after he resigned. For a news account of this sad and troubled man, see Former SoCal TSA Employee Arrested After Threats to LAX, available here.

Images of the Honorable Judges Gould and Berzon from

Steven Kalar, Federal Public Defender, ND Cal FPD. Website at


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Wednesday, April 20, 2016

1.  US v. Onuoha, No. 15-50300 (4-20-16)(Gould with Berzon and Steeh, D.J.)  This is a Sell involuntary medication issue.  The 9th reverses the district court's order for involuntary medication to treat defendant's schizophrenia and to restore him to competency.  The 9th found that the government had an important interest in prosecuting the defendant, who had made a threat that shut down LAX.  However, under Sell, the defendant has a self-interest in the best medical course of action.  The district court clearly erred in finding that involuntary medication was in the defendant's best interests given the effect of anti-psychotic medication under the circumstances, the course of treatment, and the amount proposed to be given.  The 9th remands to the court for a full consideration of the best medical interest of the defendant and the contradictory medical evidence.

The decision is here:

Congrats to Brianna Mircheff, Deputy FPD, Cal Central (L.A.).

2.   US v. Cruz, No. 10-50115 (4-20-16)(Bybee with Farris and N. Smith).  The 9th affirms a life sentence for a mid-level drug dealer because he had two prior drug felonies and such a sentence is mandated by 21 U.S.C. § 841.  The sentence is mandated even though, under California's Prop 47, one of the state priors was reclassified as a misdemeanor.  The 9th holds that a subsequent change and reclassification of a state conviction would not impact a federal sentence properly imposed at the time.  The 9th has previously found that a prior conviction, even subsequently expunged or dismissed, would not alter a sentence.  If a dismissal didn't cause a resentencing on the recidivist statute, a reclassification also would not.  The 9th also stated that Congress could have allowed for such reconsideration, or have changed 841, but it hasn't.  The recidivist statute also serves a purpose to "send a message."

The decision is here:

Monday, April 18, 2016

Welch: Building Blocks For Retroactively Challenging Unconstitutional Career Offender Designations

For defenders, the retroactive application of Johnson to clients serving unconstitutional Armed Career Criminal Act sentences seemed like a no brainer. In Johnson, the Supreme Court held that the ACCA’s residual clause was unconstitutionally vague. Our clients serving sentences based on convictions that were ACCA predicates under the residual clause were serving unconstitutional sentences. Because the change in the scope of who is covered under the ACCA is substantive, Johnson applies retroactively to ACCA sentences. In other words, a final ACCA conviction is remediable either as a first § 2255 motion, a second or successive motion under § 2255(h)(2), or as a sentencing innocence claim under § 2241 (as outlined in this post-Johnson blog post and article).

In Welch, with the agreement of both the government and the defense, the Court held today that Johnson applies retroactively because the decision is substantive within the meaning of retroactivity doctrine. Welch provides all of the building blocks we need to apply Johnson retroactively to the Career Offender statute and guideline. The key is the functional analysis the Supreme Court set out for distinguishing between substantive and procedural changes for the purposes of retroactivity: “[T]his Court has determined whether a new rule is substantive or procedural by considering the function of the rule, not its underlying constitutional source.”

The Career Offender statute requires that persons with the requisite predicate convictions “shall” have guidelines “at or near the maximum term authorized.” 28 U.S.C. § 994(h). The Career Offender guideline then defines predicate convictions to include the identical residual clause held unconstitutional in Johnson because of its indeterminacy. Many courts have been reluctant to make retroactive remedies available for prisoners serving unconstitutional Career Offender sentences. Seizing upon that reluctance, the government has advocated a hyper-technical view that, regardless of the gross effect of Career Offender designations on the ultimate sentence, the unconstitutional designation is merely a procedural hiccup rather than a substantive problem because the sentence remains within the statutory maximum.

The functional analysis declared in Welch destroys that argument. In LaBonte, the Supreme Court held that the Career Offender guideline cannot ameliorate the harsh effect required by the Career Offender statute. And the result of falling within the Career Offender guideline is drastic: the offense level can skyrocket and the Criminal History Category, no matter how low otherwise, automatically becomes a VI, the worst class of offenders. U.S.S.G. § 4B1.1(b). The same drastic effect pervades other guideline enhancements based on prior “crimes of violence” like the +6 or +10 enhancements in U.S.S.G. § 2K2.1. We have been arguing that Johnson renders an unconstitutional Career Offender sentence just as retroactively remediable as an unconstitutional ACCA sentence. In both contexts, Johnson “narrows the the scope of a criminal statute by interpreting its terms,” Schriro, 542 U.S. at 351-52, it “alters the range of conduct or the class of persons that the law punishes,” id. at 352, and “prohibit[s] a certain category of punishment for a class of defendants because of their status or offense,” Saffle v. Parks, 494 U.S. 484, 494 (1990).

And remember, unconstitutional enhancement of the guideline range under the Career Offender residual clause drastically affects the ultimate sentence. In Peugh, the Supreme Court, in finding that the ex post facto clause applied to the advisory guidelines, held that an increase in the advisory guideline range creates a “‘significant risk’ of a higher sentence.” The Court cited empirical data establishing that “when a Guidelines range moves up or down, offenders’ sentences move with it.” Justice Kennedy famously said in the context of Sixth Amendment violations in Lafler and Glover that “any amount of jail time has Sixth Amendment significance.”

Given the drastic practical effect of the Career Offender designation, the functional analysis announced in Welch should put an end to the artificial distinction between unconstitutional ACCA designations and unconstitutional Career Offender designations. Applying Johnson to the identical Career Offender guideline – as all circuits save one have agreed makes sense – has the same functional effect described in Welch:

• As in Schriro, the rule changed “the substantive reach” of the Career Offender statute and guideline by altering “the class of persons” that they punish;

• Because Johnson changed which predicate convictions qualify for Career Offender treatment, “even the use of impeccable factfinding procedures could not legitimate” a sentence based on an invalid predicate;

• The Career Offender designation is not procedural because “Johnson had nothing to do with the range of permissible methods a court might use to determine” the Career Offender status; and

• “Johnson affected the reach of the [Career Offender] statute rather than the judicial procedures by which the statute is applied.”

Under Welch, the functional effect of Johnson on Career Offender status makes it a substantive decision that has retroactive effect under Teague in cases on collateral review.

For pending cases that depend on whether Johnson applies retroactively to sentences imposed based on Career Offender designation, we need to provide courts with Welch as supplemental and controlling authority in favor of retroactivity. For those cases not yet filed, Welch is a reminder to provide our Career Offender clients affected by Johnson with petitions for relief prior to Johnson’s one-year anniversary on June 25, 2016.

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

Saturday, April 16, 2016

Case o' The Week: Karmic Wheel Spins on Appeal -- Parnell and Johnson Crimes of Violence

  What happens when state legislatures and appellate courts cram too much conduct into common law crimes, and salvage lousy convictions on appeal?
  Parnell happens.
United States v. Parnell, No. 14-30208 (9th Cir. Apr. 12, 2016), decision available here.

The Honorable Judge Raymond Fisher
Players: Decision by Judge Fisher, joined by Judge Berzon. Concurrence by Judge Watford. Big win for AFDs Robert Schwarz and Melissa Winberg, Federal Defender Services of Idaho.

Facts: Parnell was convicted of armed robbery in Massachusetts. Slip Op. at 3. He was later convicted of 18 U.S.C. § 922(g)(1), felon in possession of a firearm. The government sought a fifteen-year mand-min sentence, arguing that the Mass. prior was a “crime of violence” that – along with other priors -- triggered the Armed Career Criminal Act (ACCA). Id. The district court agreed. Id. at 4.

Issue(s): “The district court concluded Parnell qualifies as an armed career criminal based in part on his [Mass.] conviction for armed robbery . . . . Parnell argues this offense does not have ‘as an element the use, attempted use, or threatened use of physical force against the person of another.’” Id.

Held:We agree with Parnell that the force required by the actual force prong of robbery under Massachusetts law does not satisfy the requirement of physical force under § 924(e)(2)(B)(i) – ‘force capable of causing physical pain or injury to another person.’ Johnson, 559 U.S. at 140. Because the ‘degree of force is immaterial’ [under Massachusetts’ law], any force, however slight, will satisfy this prong so long as the victim is aware of it. Such force is insufficient under Johnson.” Id. at *6.
 “[B]ecause the degree of force required to commit armed robbery in Massachusetts is immaterial so long as the victim is aware of it, Massachusetts’ armed robbery statute does not have ‘as an element the use, attempted use, or threatened use of physical force against the person of another.’ 18 U.S.C. § 924(e)(2)(B)(i). Under the categorical approach, therefore, a conviction under the Massachusetts statute does not qualify as a violent felony under ACCA’s force clause. The government does not argue Parnell’s conviction falls under § 924(e)(2)(B)(ii) or that the modified categorical approach applies. Accordingly, we hold Parnell’s 1990 armed robbery conviction does not qualify as a predicate conviction for purposes of a sentencing enhancement under ACCA.” Id. at *11.

The Honorable Judge Paul Watford
Of Note: “Holding that armed robbery doesn’t qualify as a violent felony seems . . . absurd.” Id. at *13 (Watford, J., concurring) (emphasis in original). Judge Watford is a reluctant convert to the Johnson religion, but is ultimately convinced by the absurdity of what the Commonwealth will tolerate to uphold an “armed robbery” conviction. Id. at *14 (“[S]trange as it may seem, in Massachusetts a defendant can be found guilty of armed robbery without using or threatening to use any violence whatsoever.”) 
  This frank concurrence illustrates two points. First, take nothing for granted when thinking about Johnson crimes of violence: even armed robbery can be vulnerable. 
  Second, think back on all of those aggravating decisions we've suffered over the years, where courts stretched criminal statutes to the breaking point and beyond to uphold a conviction. Johnson is our spin of the karmic wheel – it is those selfsame crazy decisions that now make whole swaths of prior convictions subject to Johnson attack.

How to Use: This is a very good opinion. We like the outcome, of course, but Judge Fisher’s decision also clearly works through the steps of a (successful!) Johnson challenge. He explains the modified categorical approach, and its limitation to divisible statutes. Id. at *4. He works through the force prong of the Crime of Violence analysis, and rejects the argument that being armed – alone – satisfies that prong. Id. at *5. Judge Fisher also discusses the “realistic probability” requirement, and applies it to the Mass. statute. Id. at *7 & n.4. Plus, look for a bonus holding: reckless assault and battery by dangerous weapon doesn’t count, either! Id. at 12 & n.5. 
  If you’re mounting a Johnson challenge, you'll find Parnell an accessible and helpful starting point and guide.
For Further Reading: Is Johnson retroactivity for guideline sentences a substantive inquiry, or procedural? And why is the government arguing that at all in a non-guideline case? 
  For some troubling dicta-baiting by DOJ, see the transcript of the Welch Supreme Court argument, available here.

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


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