Saturday, November 26, 2016

Case o' The Week: Time for Land's End - McCandless and Bail Pending Habeas Resolution

Black Friday and Cyber Monday -- a fine time for the Ninth to be mulling Land's end.
United States v. McCandless, 2016 WL 6647768 (9th Cir. Nov. 10, 2016), decision available here.

Players: Per curiam decision with Judges Wallace, Farris, and Watford. Hard-fought appeal by Hawaii Federal Public Defender Peter Wolff and First Assistant Alexander Silvert.

Facts: McCandless, a Career Offender, is serving a 145-month sentence. Id. at *1. He received a § 5K1.1 departure on his original sentence: if the same percentage reduction was applied to his post-Johnson sentence, his term would be an (already-served) 71 months. Id. The district court stayed its decision on McCandless’s Johnson habeas petition pending Beckles. Id. at *2. The court then denied McCandless’s motion for bail.

Issue(s): Is a district court’s order denying bail pending resolution of a habeas decision a final decision subject to review under 28U.S.C. § 1291, or otherwise appealable under the collateral order doctrine?

Held: “Our precedent holds that a district court's order denying bail pending resolution of a habeas petition is not a final decision subject to review under 28 U.S.C. § 1291 and is not otherwise appealable under the collateral order doctrine. Land v. Deeds, 878 F.2d 318, 318 (9th Cir. 1989) (per curiam).” Id. at *2.

Of Note: Having found the bail order was not appealable, the panel construed this case as a petition for a writ of mandamus – then denied it under the high mandamus standard. Id. at *2 (discussing Bauman’s "exceptional circumstances amounting to a judicial usurpation of power” standard). The problem, however, was the fundamental threshold issue -- the appealability of the district court's bail order.
  The Ninth, respectfully, has it wrong.
  The panel itself flagged this problem, conceding that the Ninth is really alone on a “lopsided split”: six other circuits have all held that an order denying bail pending resolution of a habeas petition is appealable. Id. at *2 & n.1. 
  What Ninth decision handcuffed this three-judge panel and forced this outcome? Land, a dusty two-paragraph opinion, where the habeas petitioner does not appear to have been represented. Ironically, the Ninth itself has parted ways with the gist of Land, correctly holding that the denial of bail in connection with probation revocation proceedings is appealable under the collateral order doctrine. See United States v. Loya, 23 F.3d 1529,1530 n.1 (9th Cir. 1994).
  McCandless should go en banc, the Court should overrule Land, and the Ninth should end its lonely outlier status on this important issue.

How to Use: For Johnson warriors watching clients overserve illegal sentences while stays stall for Beckles, McCandless is a discouraging outcome. Even under the tough mandamus standard, however, hope remains.
  McCandless argued that an original § 5K1.1 reduction, applied to his post-Johnson sentence, would have meant that he was overserving his custodial term. Id. at *3. The Ninth rejected that argument as “entirely speculative.” Id. 
   We have no shortage, however, of Johnson petitioners who are currently overserving their vanilla Guideline terms, when the correct post-Johnson calcs are applied. If your client is overserving a post-Johnson guideline term (without departures or variances), don’t let McCandless dissuade you from bringing a mandamus petition on a bail denial. Even if the Ninth doesn’t correct its Land precedent on the appealability of bail orders, there still may be mandamus hope for a subset of petitioners with “clean” Johnson overserving claims.
For Further Reading: District courts should not punt on habeas decisions, staying cases while SCOTUS lumbers towards its Beckles decision. So says the Tenth Circuit in a string of recent enlightened decisions. See e.g., United States v. Smith, 2016 WL 6609499 (10th Cir. Nov. 9, 2016) (mem.).
  That was, we thought, also the longstanding Ninth rule, based on a thoughtful opinion penned by Judge Thompson: United States v. Yong, 208 F.3d 1116,1121 (9th Cir. 2000) (“The writ of habeas corpus, challenging illegality of detention, is reduced to a sham if ... trial courts do not act within a reasonable time . . . A long stay also threatens to create the perception that courts are more concerned with efficient trial management than with the vindication of constitutional rights.”) (quotations and citations omitted).
  Sadly, and despite Yong, the Ninth has proven far more tolerant of stays than the Tenth.  See, e.g., United States v. Dunlap, No. 16-16271 (Oct. 20, 2016) (Ord.) (“This appeal is dismissed for lack of jurisdiction because the district court’s order staying proceedings pending the Supreme Court’s decision in Beckles v. United States is not appealable as a final judgment or as an order that comes within the collateral order doctrine.”)
   How many petitioners will overserve unlawful terms, as petitions are back-burnered while Beckles is mulled by the Supreme Court? Law students looking for a Note subject should take a close look at the Johnson litigation experience. As Judge Thompson correctly predicted in Yong, it’s tough to vindicate constitutional rights when petitioners can’t pry decisions from the federal courts.

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


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Friday, November 18, 2016

Case o' The Week: Lin Win - Lin, Sex Trafficking Conspiracy and Guideline Sentencing

The Honorable Judge Jerome Farris
  The Ninth confirms what we thought we knew - look to the guidelines for a crime of conviction.
United States v. Wei Lin, 2016 WL 6678368 (9th Cir. Nov. 14, 2016), decision available here

Players: Decision by Senior Judge Farris, joined by Judges Wallace and Watford.

Facts: Wei Lin was charged with conspiracy to commit sex trafficking, in violation of 18 USC § 1594(c), and with counts of sex trafficking, in violation of 18 USC § 1591(a). Id. at *1. He pled to a conspiracy count. In exchange, the substantive sex-trafficking offenses were dismissed (charges that carried fifteen-year mandatory minimums). Id. His defense attorney told Lin the base offense level would be 14, under USSG § 2G1.1(a)(2). Id. Instead, the district court found the base to be 34, using a guideline that is tied to the mand-min punishment provision of the substantive sex trafficking offense. Id. The court denied Lin’s motion to withdraw based on his previous understanding of the guideline range, and sentenced Lin to 235 months. Id.

Issue(s): Is the base offense level for conspiracy to commit a sex trafficking offense 14, under USSG § 2G1.1(a)(2)? Or is it 34, for Lin’s “offense conduct” and the guideline for the substantive sex trafficking crime?

Held:We hold that the district erred in calculating Lin’s base offense level. . . ..” Id. at *1. “In sum, common sense, the plain language of the guidelines, and the Sentencing Commission’s commentary, all show that USSG § 2G1.1(a)(1) only applies to defendants who are subject to a fifteen-year mandatory minimum sentence under 18 USC § 1591(b)(1). Since Lin was not subject to 18 USC § 1591(b)(1)’s mandatory minimum, the district court erred in applying § 2G1.1(a)(1) to Lin.” Id. at *3.

Of Note: Peculiar sentencing. The district court’s theory was that the offense conduct underlying the conspiracy was the sex trafficking counts – and those counts carried a 15-year mand-min and the associated high guideline range. Id. at *2. 
  Judge Farris however, isn’t keen on looking at offense conduct to match federal statutes to federal statutes. Id. To the Ninth, “[i]t seems tortured” to break federal statutes down and compare their conduct, as opposed to simply comparing the federal statutes on both sides of the equation. Id. at *2. In this case, the simple question is to ask whether the defendant had been convicted of an offense subject to the (15 year) punishment in § 1591(b)(1). Id. at *3. Lin had not: his plea was to a different statute (conspiracy), with no mand-min.  
  Lin is a good, practical decision, emphasizing the obvious link between the controlling guideline, and the offense of conviction.

How to Use: For sentencing wonks, Lin is a useful explanation of how the “offense of conviction” instructions in USSG § 1B1.2(a) is actually supposed to be used. Id. at *2. In a nutshell, a court shouldn’t be rummaging about in the offense conduct when a simple matching of the statute of conviction, listed in the judgment, will do.
For Further Reading: Whither the Sentencing Commission, in the post-11/8 world? Well, the Commission needs four members for a voting quorum. See 28 USC § 991(a). At the end of this year, only two confirmed Commissioners will remain: Judge William Pryor and Commissioner Rachel Barkow. While Commission Vice Chair Judge Charles Breyer has been re-nominated and Judge Danny Reeves has been nominated and has had his hearing, neither have been confirmed. 
  It remains theoretically possible that Judges Breyer and Reeves could be confirmed by the current lame-duck Senate. If not, the Commission will effectively lapse, and no amendments can be voted through until a future Senate confirms Judges Breyer and Reeves (or confirms whomever is nominated by President Trump).  Recall that Section 991(a) of Title 28 requires that no more than 4 of the 7 potential members of the Commission be of the same party. (The practice has been to pair a Republican and Democrat as nominees sent to the Senate). 
  What will be the priorities, when (or if) a new quorum-Commission is constituted? No one can know, though a "presumptive guidelines" speech by Judge Pryor may be prescient. See text of Judge Pryor’s speech here.


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


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Fue v. Biter, No. 12-55307 (11-17-16)(en banc-Bybee). 

In an en banc decision on equitable tolling, the 9th reversed the dismissal for untimeliness and remanded further hearings.  The petitioner alleged that the California Supreme Court never notified him that it denied his state petition.  He wrote them after 14 months inquiring, and stated that the petition was still pending when he filed his federal claim.    The 9th held that if the petitioner proves his lack of knowledge of the denial, he would be entitled to equitable tolling.

Congrats to Michael Tanaka, Deputy Federal Defender, Cal Central (Los Angeles).

The decision is here: