Sunday, January 29, 2017

Case o' The Week: The Slings and Arrows of Outrageous Fortune - Simon and Guideline Sentencing of Hobbs Act conspiracies

2B, or Not 2B?
 That is the question.
United States v. Simon, 2016 Westlaw 6610233 (9th Cir. Nov. 9, 2017)(mem.)
 Ord. granting en banc review, No. 15-10203, Jan. 27, 2017, order available here.

Players: Order granting call for en banc review by Chief Judge Thomas. Underlying mem dispo by Judges Graber and Murguia, and District Judge O’Connell.

Hon. Judge Graber
Facts: Simon and co-Ds conspired with a CI to rob drugs from a delivery van. Id. at *1. Simon, arrested on route to the robbery, had a gun. Id.
  He was convicted after trial of § 1951, § 922(g), § 371, and § 659 (Hobbs Act conspiracy, felon in possession, conspiracy to commit theft in interstate shipment, and theft). Id. 
 Simon was sentenced to 192 months. Id. The district court applied U.S.S.G. § 2X1.1 – the “conspiracy” cross-reference guideline. Id. at *2; see also Guideline § 2X1.1 here. The court used this cross-reference to apply several adjustments that increased the guideline range. Id.

Issue(s): The e.b. order is enigmatic on the basis for this sua sponte call.
Hon. Judge Murguia
The oral argument, however, gives us a good clue, as the panel struggled with whether or how to apply U.S.S.G. § 2X1.1 See here.
  In the mem dispo, the panel describes the issue thus: “Simon argues that the district court committed a procedural error at sentencing by applying U.S.S.G. § 2X1.1. In Simon’s view, the court was required to apply U.S.S.G. § 2B3.1. The district court applied several enhancements through operation of § 2X1.1 that likely would not have applied under § 2B3.1.” Id. at *2.
  During the oral argument, Judge Graber describes the issue as whether the selection of the controlling guideline for Hobbs Act conspiracies to commit robbery should be “based on the statute, or based on the guideline.” See video here, at 23:26.

Hon. District Judge O'Connell
Held (by Panel): “We defer ruling on that issue.” Id. at *2.

Of Note: During oral argument, Judge Graber flagged a “disconnect” in the Ninth’s “own caselaw” on the question. See video of argument here, at 11:44. The panel asked about United States v. Temkin, 797 F.3d 682, 692-93 (9th Cir. 2015), a decision which tackled § 2X1.1 in the context of solicitation to commit murder.
  Also discussed during argument was the Second Circuit’s decision in United States v. Amato, 46 F.3d 1255 (2nd Cir. 1995), which concluded that § 2X1.1 was appropriate for a Hobbs Act conspiracy (instead of § 2B3.1, as urged by the defense here).
  (Interestingly, the argument revealed that Guideline Commission staff advised Probation that § 2X1.1 was the appropriate guideline – and then gave the opposite advice to defense counsel in a different call!)
  To hazard a guess, the issue for the en banc court will be how a district court determines the correct guideline for Hobbs Act conspiracies to commit robbery: by starting with the statute's terms, or by turning to the guidelines? It is a "choice of guidelines" or "how to apply the guidelines" case.
   Much is at stake in the approach – Simon’s counsel reported that the guideline range for his client nearly doubled when the district judge turned to § 2X1.1 in this case.

How to Use: Flag and fight, for Hobbs Act “conspiracy to commit robbery” sentencings. Our position? Section 2B3.1 is the correct guideline.
For Further Reading: We’ve previously reported the “Safe Schools” litigation in NorCal, where thirty-seven black defendants (and only black defendants) were targeted in a series of federal drug busts near schools in San Francisco's Tenderloin district. See blog entry here. The office of the Federal Public Defender, Northern District of California, filed motions seeking discovery relating to race-based law enforcement actions.
  This hard-fought litigation ultimately resulted in one of the most comprehensive Armstrong discovery orders ever delivered. See the Honorable District Judge Edward Chen’s order here.
  (The government, interestingly, did not appeal this order).
  After the order, the parties spent seven months wrestling with the SF Police Department for the discovery at issue. The U.S. Attorney’s office then filed a motion to dismiss the cases – with prejudice. The government declined to explain why it moved to dismiss the cases.
  District Judge Edward Chen signed the government’s motion to dismiss on January 25, 2017. See order here.
  A remarkable chapter in SF history, and a stunning victory for AFPD Galia Amram and the huge FPD team who collaborated on this litigation. Most importantly, it is a vindication of the enormous courage of our clients, who risked high sentencing exposures to continue the fight against racially-targeted law enforcement. See article here.
  The transcript of the hearing regarding dismissal – reflecting Judge Chen’s thoughtful remarks and serious questions about this law enforcement effort– has been ordered, and will be posted on when completed.
  A proud day for indigent criminal defense, though a somber reminder of the many fights that remain.

Images of the Honorable Judges Graber, Murguia, and District Judge O’Connell from

Image of “Greetings from the Tenderloin”  from

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



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