Monday, July 31, 2017

United States v. Seminole, No. 16-30202 (Owens with Watford and Chhabria (N.D. Cal.)) --- The Ninth Circuit affirmed a conviction for assault of a domestic partner by strangulation under 18 U.S.C. § 113(a)(7). The defendant argued that the district court should not have compelled his wife, the victim of the charged crime, to testify against him under the marital privilege. In Wyatt v. United States, 362 U.S. 525 (1969), the Supreme Court held that the privilege does not apply when one spouse is the victim of a crime committed by the other spouse. The panel rejected the defendant's argument that Trammel v. United States, 445 U.S. 40 (1980), overruled Wyatt. The trial judge did not err in compelling the defendant's wife to testify against him at trial. 

Fans of Judge Owens will note that this opinion continues his lament against domestic violence in Indian country, which began with his dissent from denial of en banc rehearing in United States v. Bryant, No. 12-30177. 

The decision is here: 

Case o' The Week: Frustrated with the Whole Endeavor - Martinez-Lopez and Indivisible vs. Divisible Statutes

“Concurring in part and dissenting in part, but frustrated with the whole endeavor.”
   Judge Bybee’s candid assessment is a good preview for the Ninth’s latest foray into Taylor categorical / modified categorical sentencing.
  United States v. Martinez-Lopez, 2017 WL 3203552 (9th Cir. July 28, 2017) (en banc) decision available here.

Earl Warren Building, home of the California Supreme Court, San Francisco, California

Players: Decision by Judge Tallman, joined by Judges Kozinski, O’Scannlain, McKeown, Clifton, Bybee, Callahan and Bea.
  Judge Berzon, CJ Thomas, and Judge Reinhardt concurring in part. Partial concurrence and partial dissent by Judge Bybee. 
  Judges Reinhardt and CJ Thomas dissenting in part.
  Hard fought appeal by CD Cal Deputy Public Defenders David Menninger and Matthew Larsen, with Defender amicus by Assistant Federal Defenders Vincent Brunkow and Kara Hartzler, Federal Defenders of San Diego, Inc.

Facts: Mr. Martinez-Lopez was convicted of illegal reentry following deportation, in violation of 8 USC § 1326. Id. at *2. The court treated a California H&S Code § 11352 (drug prior) as divisible, employed the modified categorical approach, determined it was a +16 offense level offense under (the old) reentry guidelines, and sentenced him to 77 months. Id.
  The case went on banc: during the litigation the Supreme Court decided Mathis v. United States, 136 S. Ct. 2243 (2016).

Issue(s): “We took this case en banc to revisit the divisibility of California drug statutes.” Id. at *1.
  “On appeal, Martinez-Lopez argues that section 11352 is indivisible with regard to both its controlled substance requirement and its actus rea requirement.” Id. at *2.

Held:We disagree, and conclude that both requirements are elements under Mathis, thus rendering section 11352 divisible and subject to the modified categorical approach. Because Martinez-Lopez previously pled guilty to selling cocaine, which qualifies as a drug trafficking offense under the guidelines . . . we affirm.” Id. at *2.

Of Note: What are the elements of § 11352? On that answer much hinges: elements determine the "divisibility" of a statute, and divisibility determines whether a federal court can muck about prior conviction records in a modified categorical approach (which translates into radically more time for our clients). 
  Judge Berzon, an expert in this area of law (see Descamps), balks at Judge Tallman’s categorization of the actus rea component of § 11352 as an “element.” See id. at *9 (Berzon, J., concurring). A majority of the California Supreme Court did not so hold in People v. Patterson, 778 P.2d 549 (1989)id. at *12, and nary a single Cali court has cited Patterson for the proposition claimed in the majority opinion, id. at *13. 
  In a recommendation that would do a Federalist proud, Judge Berzon suggests that the Ninth Circuit not presume to tell the State of California what California law means. Instead, the Ninth should ask. Id. at *19.
   Penning this from the federal building in San Francisco, across the street from the home of the California Supreme Court, the irony of this dilemma is palpable. The
Tenderloin Neighbors: the California Supreme Court, and the Ninth Circuit Court of Appeals
California Supreme Court is a whopping .4 miles from the Ninth Circuit, here in the City by the Bay. The Justices and Judges could have trudged through the Tenderloin, met at Philz, and hashed it out over a cup of joe. Or, as Judge Berzon less flippantly suggested, the Ninth could have certified this state law issue to the Cal Supreme Court for a definitive answer on whether the actus rea in Cal H&S Code § 11352 is a means, or an element. Id. at *20.
  Recall that Judge Berzon’s formidable arguments in Aguila Montes de Oca ultimately prevailed in Descamps. Knock wood that SCOTUS again recognizes that she has the better argument in Martinez-Lopez.

How to Use: When this case went en banc we mused a bit about the potential downstream effects of Martinez-Lopez. See blog entry here
  As to the immediate impact, note that Martinez-Lopez was sentenced under the November 1, 2012 edition of the guidelines. Id. at *2 & n.2. The November 1, 2016 (current) version of this guideline, § 2L1.2, is no longer plagued with this specific offense adjustment. See USSG Sec. 2L-X (Nov. 1, 2016), available here.
     Like the recent Chavez-Cuevas case, , Martinez-Lopez is, in some sense, an instant relic – it involves a guideline which no longer exists.
For Further Reading: When Martinez-Lopez went en banc, we also wondered what impact the (at that point unknown) Ninth Justice would have on the Supreme Court’s Taylor jurisprudence. See blog entry here
  Now, with Justice Gorsuch on the Court, it is worth a revisit to Professor Evan Lee’s thoughtful post on the tight SCOTUS majority in Mathis (and the potential impact of a fed-up Kennedy on the Taylor line of law). See SCOTUS blog here

Image of the walk from the Ninth Circuit Court of Appeals to the California Supreme Court, in San Francisco, from Google Maps.

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


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Friday, July 28, 2017

United States v. Martinez-Lopez, No. 14-50014 (Tallman for the 9-2 en banc panel; Berzon concurring and dissenting; Bybee, concurring and dissenting but frustrated) --- The Ninth Circuit affirmed a sentence for illegal reentry, holding that a violation of Cal. Health & Safety Code § 11352 can qualify for the +16 enhancement under former U.S.S.G. § 2L1.2 as a "drug trafficking offense" because both the list of substances punished under the statute and the acts punished under the statute were separate elements of the crime under Mathis v. United States, 136 S. Ct. 2243 (2016), and Descamps v. United States, 133 S. Ct. 2273 (2013). 

Section 11352 of the California Health & Safety Code punishes drug trafficking. It punishes various acts in relation to drug trafficking -- transportation, importation, sale, furnishing, administering, or giving away, or offering to do any of those things. It also punishes these acts with respect to a list of drugs, some of which are on the federal schedules and some of which are not. As a result, the Ninth Circuit has held that § 11352 is overbroad with respect to the federal definition of "drug trafficking offense." The question the panel had to resolve here was whether the statute was divisible with respect to the acts and the drugs, such that a federal sentencing court could look to the documents relating to the prior conviction in order to determine whether the defendant had been convicted of a "drug trafficking offense" as defined by the Sentencing Guidelines. 

In Mathis, the Supreme Court said that this inquiry would be "easy" when state law already held that a jury must unanimously decide which of the statutory alternatives meets an element of the crime under state law. Here, the en banc panel found two decisions of the California Supreme Court that made this inquiry easy with respect to § 11352. As to the list-of-drugs aspect of the case, the panel said that in In re Adams, 536 P.2d 473 (Cal. 1975), the California Supreme Court had held that a violation of § 11352 happens with respect to one drug on the statutory list -- simultaneous possession of different drugs on the list constitutes different crimes under § 11352. And as to the acts punished under § 11352, the panel said that in People v. Patterson, 778 P.2d 549 (Cal. 1989), the California Supreme Court held that each of the alternative acts listed in § 11352 constitutes a separate crime. Thus the modified categorical approach was available to determine whether the defendant's prior conviction under § 11352 qualified for the +16 enhancement. 

Here, it plainly did. The defendant pleaded guilty to selling .42 grams of cocaine base, and was convicted under § 11352 based on these admissions during the change-of-plea colloquy. Thus, his prior conviction qualified as a "drug trafficking offense" under former U.S.S.G. § 2L1.2(b)(1)(A). The panel also held that the 77-month sentence, at the low end of the Guidelines range, was substantively reasonable. 

Judge Berzon, whose views about the categorical approach carried the day in Descamps, concurred in the outcome but criticized Judge Tallman's deployment of Mathis. She did not believe that the California Supreme Court had answered the actus reus question so clearly in Patterson as Judge Tallman said it did. Patterson, she said, did not directly address the question whether a California jury must unanimously determine that the defendant committed one of the alternative acts punished under § 11352. Her review of decisions of the California Court of Appeal that applied Patterson bolstered her assessment. Rather than having the federal courts guess about what state law means, Judge Berzon would have certified the question to the California Supreme Court. On the other hand, Judge Berzon did agree with Judge Tallman about the question regarding the statutory list of drugs and his reading of Adams.  

Judge Bybee, "frustrated with the whole endeavor," did not agree with Judge Tallman that the actus reus question was clearly resolved by Patterson. 

Judge Reinhardt, joined by Chief Judge Thomas, disagreed with Judge Berzon and Judge Tallman about both aspects of § 11352 based on his reading of California decisional law, and would have certified both questions to the California Supreme Court. 

Kudos to DFPD David Menninger of Los Angeles and AFPDs Vince Brunkow and Kara Hartzler of San Diego for their vigorous advocacy on behalf of the defense in this case. 

The decision is here:

Sunday, July 23, 2017

Case o' The Week: Ninth Throws the Book(ing Q's) at 'em - Zapien and the "Booking" Exception to Miranda

 This time, “book ‘em” . . . . (and use their custodial statements against ‘em, too).
 United States v. Zapien, 2017 WL 2836162 (9th Cir. July 3, 2017), decision available here.

Players: Per curiam decision with Judges McKeown, Friedland, and D. Nevada District Judge Boulware.  

Facts: Zapien was arrested, Mirandized accused by DEA agents of being a drug dealer, and he invoked his right to counsel. Id. at *1. The agents switched up and began asking custodial, or “booking,” questions -- Zapien then said he wanted to provide additional information. Id. Zapien was Mirandized again, explained he wanted to talk – and then admitted he’d been involved in drug trafficking. Id. Over defense objection, the district court permitted the questions on the theory that the biographical questions did not constitute interrogation. Id. Zapien was convicted of meth charges after a jury trial and sentenced to ten years. Id. at *2.

Issue(s): “On appeal, Luna Zapien challenges the district court’s denial of the motion to suppress . . . . Luna Zapien argues that the questioning following his invocation of his right to counsel constituted interrogation.” Id. at *3.

Held: “We disagree. We conclude that the questioning was covered by the booking exception.” Id.

Of Note: Whether the “booking exception” applies is an intensely fact-bound inquiry. Here, the booking questions didn’t relate to the charged offense, there was no evidence that the agents played upon Zapien’s weaknesses or knew that he was particularly disoriented or upset, or no facts in the record that the agents used the booking questions as a pretext. Id. at *4. The panel also collects other fact patterns, looking at both booking questions and their context. Id. 
  The Zapien outcome is what it is, and the panel carefully portrays the DEA agents as boy scouts scrupulously respecting Miranda protections. As a practical matter, however, when it is investigating agents – and not U.S. Marshals –asking these “booking” questions, and when these agents are launching into these “booking” questions right on the heels of a defendant’s solid invocation, we who represent indigent clients know that this “booking exception” is an inevitable subterfuge of Miranda protections.   

How to Use: Two footnotes may provide a foothold to distinguish Zapien in future “booking exception” cases. First, the per curiam decision dodges the (apparently unresolved) question of whether the government, or the defense, bears the burden of “establishing the applicability of the booking exception.” Id. at *4 & n.1 On a case with closer facts, tagging the government with that burden may save the day. (And really, how can it not be the government’s burden, to show invoke an exception and dodge Miranda limits?)
  The panel is also careful to note that there was no indication that Zapien’s undocumented status (discovered during the booking questions) was “used or leveraged” by the agents. Id. at 4 & n.2. Watch for the abuse of that fact – discovered during booking – even where (as here), undocumented status is not an element of the charged offense.
For Further Reading: How will the richest and most powerful country in history treat the poorest, and most vulnerable, among us?
  That question may be answered in San Francisco.

  On Tuesday, July 18, the acting director of ICE pledged to target Sanctuary Cities with new waves of ICE agents, to apprehend undocumented aliens. See article here
  Two days later, the Honorable District Judge William Orrick (N.D. Cal) denied the federal government’s motion for reconsideration of his Sanctuary City order: his refusal to dismiss the civil suits of Bay Area Sanctuary Cities stands. See Ord. here.  Judge Orrick also concluded that the City of San Francisco stated a sufficient claim for declaratory relief. Id. at 2:9-10.
   Yesterday, Attorney General Sessions gave a speech in Philadelphia and called on local governments to assist the “crackdown on illegal immigration.” See article here
   Fitting that our city, named for Saint Francis of Assisi, has become an epicenter for this brewing immigration battle.

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


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Sunday, July 16, 2017

Case o' The Week: Of Articles IIIs and Guilty Pleas - Chavez-Cuevas, Cal Penal Code 211, and "Crime of Violence"

The Hon. Judge Carlos Bea
   How does one end up serving five years in federal custody, with no trial, and no District Judge having accepted a plea of guilt?
  (Hint: The answer ain’t stacked misdemeanors).
United States v. Chavez-Cuevas, 2017 WL 2927635 (9th Cir. July 10, 2016), decision available here.

Players: Decision by Judge Bea, joined by Judges Callahan and Ikuta. 
  Hard fought appeal by AFDs Alana McMains and Sara Weinman, Federal Defenders of San Diego, Inc. 

Facts: Chavez-Cuevas was convicted of Cal. Penal Code § 211 robbery. Id. at *1. He was removed, and re-entered illegally to visit his sick mother. Id. Chavez-Cuevas was found, charged with § 1326, and stated his intent to plead guilty before the magistrate.
  The magistrate judge recommended that the district court accept the offered guilty plea. Id. However, “[a]t no point did the district court orally accept Chavez-Cueva’s guilty plea or address the magistrate judge’s above-discussed recommendation.” Id. at *3. The defense did not object. Id. at *3.
  The district court moved onto sentencing, and imposed a 57 month term. Id. at *1. The bulk of that guideline sentence was a sixteen level enhancement for a “crime of violence.” Id. The district court held that California Penal Code § 211 was a crime of violence, based upon the Ninth’s ’08 Becerril–Lopez decision.

Issue(s): “Chavez-Cuevas asserts that the district court erred . . . in applying a 16-level crime of violence sentencing enhancement in light of recent Supreme Court precedent purportedly in conflict with the Ninth Circuit precedent on which the district court relied.” Id.

Held: “[T]he Becerril–Lopez court’s approach complies with the rationale behind the categorical approach, which seeks to impose a sentencing enhancement only for prior crimes that were categorically crimes of violence. In considering the full range of relevant generic offenses, the Becerril–Lopez court properly analyzed exactly this question and rightly determined that while California robbery (§ 211) may be broader than two particular generic offenses, it nevertheless was categorically a crime of violence because its elements would always constitute either generic robbery or generic extortion, both of which are defined as crimes of violence in U.S.S.G. § 2L1.2(b)(1)(A)(ii). For these reasons, the district court properly relied on Becerril–Lopez to impose a 16–level sentencing enhancement.” Id. at *8.
Of Note: The lead issue in this case was the plea (or lack thereof). Can a defendant get five years, without an Article III district judge expressing accepting a guilty plea?
  He can now.
   Chavez-Cuevas argued that the failure of the district court to expressly accept a guilty plea was structural error. Id. at *4. Makes sense – as the Seventh has warned, Congress did not authorize D.J.’s to delegate the “vital task” of accepting a guilty plea to magistrates. Id. (quoting Harden, 758 F.3d at 891).
   Judge Bea, unfortunately, does not agree, and concludes that this issue falls into the curséd “plain error” standard of review. Id. *5. With that threshold question decided, it was short work for the panel to find no plain error. Id.
 Another frustrating chink in the eroding bulwark of structural error protections.

How to Use: N.B.: Chavez-Cuevas is instantly outdated. The decision analyzed the definition of “crime of violence” under the old 2015 § 2L1.2 guideline. The new 2016 guideline definitions narrow the definition of “extortion.” (The example used in Chavez-Cuevas wouldn’t satisfy the new extortion definition).
  For any case with a sentencing after 11/1/16, Chavez-Cuevas is a yawner: CPC § 211 robbery does not satisfy the new Guideline definition of “crime of violence.” The Ninth’s Johnson habeas warriors have already briefed this critical distinction -- make sure your court understands that Chavez-Cuevas’ CPC § 211 holding is yesterday’s news.
For Further Reading: Just last May, an en banc court of the Ninth vindicated the hard-fought litigation of the San Diego Defenders, and prohibited the indiscriminate shackling of pretrial inmates. See Sanchez-Gomez blog here
  The United States Marshal in Arizona, and the Arizona Magistrate Judges, seem to have concluded that this en banc decision doesn’t apply to them.
  The Ninth, apparently, disagrees.
  On Friday, the Ninth granted an injunction against the District Court of Arizona and its shackling practices, pending resolution of a mandamus filed by the Defender’s office there. See Rodrigo Zermeno-Gomez, et al v. USDC-AZP, No. 17-71867.
  Congratulations to Arizona AFPD Dan Kaplan for this important first victory: stay tuned for further developments on the Arizona FPD’s mandamus petition.

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



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Friday, July 14, 2017

Alfaro v. Johnson, No. 15-55337 (7-14-17)(M. Smith w/Bybee & Christen).  The 9th reverses the granting of capital habeas relief.  The 9th holds that petitioner's claim is barred by failure to exhaust state court remedies and is untimely under Fed. R. Civ Pro 15(c). The 9th found that petitioner could not amend her petition to include the Eighth Amendment systematic delay ground for relief as it could have been raised, and that such a claim is still pending in the state courts.  The raising of the claim is not futile in the state court.

Spirited fight and tough loss for Michael Weinstein and Celeste Bacchi of FPD Cal C. (Los Angeles).

The decision is here:
Grant v. Swarthout, No. 13-55584 (7-7-17)(Reinhardt w/Tashima & Paez). This is an equitable tolling case.  Do not ask for whom the petition tolls, it tolls for thee (if prevented from filing by the prison's delay).  In this matter, as petitioner's one year AEDPA statute neared its running, he asked for forms to file his federal petition. The prison delayed, and he was 20 days out.  The State then said that he should have been more diligent.  The 9th said he was diligent, and that the petitioner had the full year, not part of it, or most of it.  The petition should be regarded as timely due to tolling.

The decision is here:

US v. Chavez-Cuevas, No. 15-50480. (7-10-17)(Bea w/Callahan & Ikuta). The 9th resolutely holds that California robbery (211) is a "crime of violence" under the categorical approach of Deschamps and Mathis.  The 9th rejects the challenge to prior precedent, Becerril-Lopez, which had so held, reasoning that its finding of a COV is not contrary to Deschamps and Mathis. Rather, the 9th explains, although the state robbery statute is broader than a generic robbery, the offense it also encompasses is extortion, which is itself a COV. Any way you cut it, a COV occurred.

The 9th also deals with what happens when a district court fails to "accept" the plea agreement. The colloquy was held before a magistrate, the recommendation made to accept, and then at sentencing, everything preceded as usual except the plea agreement was never accepted.  Under a plain error analysis, even if there was error, the 9th finds it unclear how the court's failure affected substantive rights or was especially grave. Everyone acted as if it was accepted. 

The decision is here:

Monday, July 10, 2017

1.  US v. Padilla-Diaz, No. 15-30279 (7-5-17)(Fletcher w/McKeown & Fisher).  The 9th rejects three challenges to the amendment that lowered the drug guidelines by two levels, but stated that the reduced sentence could not be lower than the minimum guideline range.  The first challenge argues that the retroactive authority conflicts with the purposes authority.  The defendant states this had the effect of converging sentences toward the minimum sentence rather than an individualized determination.  The 9th granted that the argument had some appeal, but reconciled the two statutory provisions by one being a general mission directive and the other being specific for retroactivity and limited in scope.  The second challenge is equal protection: the 9th finds that the retroactive policy is not irrational.  The government has two rational bases for the policies--simplicity and to promote cooperation with the government.  Those two do the trick.  Lastly, two defendants raise a due process challenge as their plea agreements reserve the right to seek further reductions for future retroactive amendments.  The 9th reasoned that the amendment came after the plea was entered into, and was not a retroactive deprivation.  The reduction itself was limited.

The decision is here:

2.  Petrocelli v. Baker, No. 14-99006 (7-5-17)(Fletcher w/Friedland; concurrence by Christen).  The 9th affirmed denial of a petition contesting a conviction for first degree murder.  The 9th granted capital sentencing relief, finding that the State had committed Estelle error -- the State prosecutor used a psychiatrist as an expert to evaluate the petitioner for competency and the psychiatrist had (1) failed to give Miranda warnings; (2) notify defense counsel; and (3) testified at sentencing as to future dangerousness. The 9th also found that the State had waived any defense to the admission.  Concurring, Christen would find that the prosecutor had engaged in egregious misconduct, and so under Brecht (fn 9), prejudice need not be shown as the integrity of the process was compromised.

As to the merits, the 9th found that petitioner had failed to invoke his Miranda rights by his unambiguous statements in one interrogation.  Two subsequent interrogations resulting in statements were only used for impeachment, and were not involuntary.

The decision is here:

Sunday, July 09, 2017

Case o' The Week: In a Lone Star State of Mind - Ochoa and Section 1326(d) Challenges

 Should the Ninth be brought “in line” with the Fifth and other circuits?

 A visiting Texas district judge thinks so (as do two members of the Ninth).
United States v. Ochoa, 2017 WL 2836820 (9th Cir. July 3, 2017), decision available here.

Players: Per curiam decision, with Judges Graber, McKeown, and visiting ND Texas Chief District Judge Barbara M.G. Lynn. 
The Honorable Judge Susan Graber
Concurrence urging en banc review by Judge Graber, joined by Judge McKeown and Chief D.J. Lynn.
  Admirable victory for ND Cal FPD Chief Ass’t Geoff Hansen, and Research & Writing Attorneys Lara Vinnard and Steven Koeninger.

Facts: Ochoa pleaded guilty to conspiring to commit a violation of the Arms Export Control Act (22 USC § 2778). Id. at *1.
  While incarcerated, Ochoa was served with an immigration notice to appear. The notice alleged Ochoa was convicted of conspiracy to export defense articles without a license, including guns and ammo as alleged in the indictment. Id. The notice alleged that this conviction was an agg felony. Id. at *2.
  The IJ found Ochoa removable and explained he did not see “any relief available.” Ochoa accepted the decision, did not appeal, and was removed. Id.
  He reentered, was found in California, and charged with illegal reentry. Id. Ochoa moved under § 1326(d) to dismiss the indictment, alleging the original removal was illegal. Specifically, Ochoa argued that § 2278 was overbroad, not divisible, and was thus not an agg felony. Id. at *4.
   The motion was denied, and Ochoa was found guilty after a stipulated facts bench trial. United States v. Ochoa, CR 14-00525-RS, Dkt. # 37.

Issue(s): “[Ochoa] argues that the removal order was invalid because his . . . conviction for conspiring to violate 22 USC § 2778 was not a categorical match to the Immigration and Nationality’s Act . . . aggravated felony or firearms categories.” 2017 WL 2836820, *1.

Held: “[W]e hold that Defendant was not originally removable as charged, and so could not be convicted of illegal reentry. We therefore reverse the judgement of conviction.” Id. at *1.

Of Note: Huge win on the merits.
The Honorable Judge Michael Hawkins
  The buzz worthy issue, however, is the panel’s most reluctant application of the Ninth’s Pallares-Galan and Camacho-Lopez decisions – and Judge Graber's concurrence seeking en banc review (joined by Judges McKeown and Lynn). See id. at *10 (Graber, J., concurring) ("These anomalies call for en banc consideration to bring our jurisprudence in line with the statute and other circuits.")
  The 2006 Camacho-Lopez opinion by Judge Hawkins relied on the 2004 Pallares-Galan decision. Camacho-Lopez logically held that if an alien was convicted of an offense for which he was not originally removable, and the IJ erroneously advised on discretionary relief, the alien would be excused from proving the first two prongs of a § 1326(d) challenge:
1. that he exhausted administrative remedies, and

  2. that the deportation proceedings improperly deprived him of the opportunity for judicial review.

Id. at *2, discussing Camacho-Lopez, see also id. at *5 (Judges Graber, McKeown, and D.J. Lynn, concurring).

  Judge Graber 's concurrence attacks this line of established Ninth jurisprudence. The concurrence argues that a Ninth Circuit en banc court should bring the Ninth “in line” with other Circuits (like the Fifth, from whence visiting ND Texas Chief D.J. Lynn hails). Id. at *10, *9 (citing Villanueva-Diaz).
  The concurrence, however, fails to note that the government squarely waived this argument. See, e.g., United States v. Ochoa, CR 14-00525-RS, Dkt. # 27, Gov’t Opp at 3:9-12. (“More to the point, if Mr. Ochoa was ‘removed when he should not have been,’ then he suffered a prejudicial violation of his rights, and his motion should be granted. United States v. Camacho-Lopez, 450 F.3d 928, 930 (9th Cir. 2006).”). 
  (Worth pointing out that way back in Camacho, the government made this identical concession – a concession which Judge Hawkins appropriately enforced. 450 F.3d at 930).
  For Ochoa to go en banc, the Ninth would have to turn a very deliberate blind eye to this whopping government waiver or forfeiture. See generally United States v. Garcia-Lopez, 309 F.3d 1121, 1123 (9th Cir. 2002) (enforcing government’s waiver of argument on appeal).
   Judge Graber says it best in her Ochoa concurrence: “We will enforce a valid waiver even if the claims that could have been made on appeal absent that waiver appear meritorious . . . .” Ochoa, 2017 WL 2836820, *9 (Judges Graber, McKeown, and Chief DJ Lynn, concurring).

How to Use: This is a grudging holding on the merits, but a correct Taylor analysis. 
  Ochoa is now a lead Ninth case on Taylor overbreadth: worth a close read for your next § 1326(d) statutory challenge. See id. at *3-*4.
For Further Reading: Seems like a silly question, but should the government have to, well, you know, appeal, to have its issue heard on appeal?
  For a thoughtful piece discussing this very timely question, see Yates, Morgan, Truth or Unintended Consequences: Reining in Appellate Court Action in the Absence of a Government Appeal Vol. 82 : Iss. 3 , Article 11 (2015), available here.

Image of the Honorable Judge Michael Hawkins from  

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


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Wednesday, July 05, 2017

US v. Zapien, No. 14-10224 (7-3-17)(Per curiam w/ McKeown, Friedland, and Boulware). The 9th affirmed a denial of Miranda suppression motion.  The defendant was arrested on drug trafficking charges.  Accused of being a "drug dealer," the defendant invoked his Miranda rights.  The agent then asked him some biographical booking questions.  The defendant then reinitiated conversation and gave a statement.  In affirming the denial, the 9th found that the Miranda invocation was honored, and that subsequent question related to booking.  The questions came from DEA Form 202 and concerned emergency contact and to process the defendant.  The questions were not designed to elicit incriminating responses or to be an interrogation.

The decision is here:
Hall v. Haws, No. 14-56159 (7-3-17)(Pregerson w/Bastian; dissent by Callhanan).  The 9th affirms the district court's order reopening a habeas under Fed R Crim P 60(b).  The affirmance did not run counter to AEDPA.  In this "extraordinary case," the order grants the same relief to this petitioner as to his co-defendant based on the same claim for the same error at the same trial.  The petitioner, proceeding pro se, had acted diligently.  The error arises from California's Jury Instruction 2.15, which allows an inference of guilt of murder from possession of stolen property with slight corroborating evidence.  The 9th agreed with the district court finding constitutional error and prejudice.

Callahan dissented, she argues that the case granting relief to the co-defendant, in the face of additional facts, was wrongly decided. The error was not constitutional; nor was it prejudicial.  The co-defendant was retried and convicted.  This decision runs counter to AEDPA deference.

The decision is here:
US v. Ochoa, No. 15-10354 (7-3-17)(Per curiam w/Graber, McKeown, and Lynn; Graber concurs and is joined by the others).  The 9th remands a 1326 conviction with instructions to dismiss the indictment.  The 9th held that the underlying removal order, based on a conviction for conspiracy to export defense articles without a license, was invalid.  The conviction for conspiring was not a categorical match to the INA's aggravated felony or firearms categories.  The statute was overbroad and indivisible.  As such, the defendant should not have been removed, and hence, cannot be convicted of illegal reentry.

Concurring, Graber, and the panel, grit their teeth in applying 9th precedent.  The concurrence though views the precedent as having expanded the scope of collateral challenges far beyond the statutory text, and the 9th is out of step with other circuits.  The concurrence argues that the case law which finds a due process violation when the IJ erroneously informs a defendant of ineligibility for discretionary relief is an outlier.  Such an error should not be a constitutional violation.  The concurrence also decries the availability of collateral challenges for finding that a legal error constitutes a due process violation and a de novo review. The panel wants this case heard en banc to bring the 9th's jurisprudence in line with the statute and other circuits.

We will see if the request results in an en banc order, which would have far-reaching and dreadful consequences.

Congrats to AFPD Geoff Hansen of Cal N (San Francisco).  Keep fighting the fight.

The decision is here:
Godoy v. Spearman, No. 13-56024 (6-30-17)(en banc: Fisher). Sitting en banc, the 9th reversed the district court's denial of a habeas petition alleging juror misconduct during a California murder trial.

The petitioner was convicted of second degree murder. At sentencing, the petitioner presented a declaration from an alternate juror that one juror, during trial, was in continuous contact with supposedly a friend who was a "Judge up north." The juror would ask the friend questions, and gave the responses to the jurors. The state courts denied relief, or even a hearing, as did the district court, because the petitioner failed to show prejudice. 
The 9th reversed the denial. The 9th states that the state court's refusal to hold a hearing and to require the state to rebut the presumption of prejudice violated clearly established Supreme Court precedent.  The state and the court all agree that juror misconduct was raised. It is not enough to assume no prejudice from the evidence of misconduct; a presumption of prejudice attached and the State had to rebut it.

The decision is here:


Saturday, July 01, 2017

Case o' The Week: Strickland Effective Assistance of Counsel - Purse Snatching Does not a C.O.V. Make

  For Judge Owens, getting to a guideline answer is as complicated as the calculations based upon the Staff of Ra.

 (Though for Indy -- and Judge Kozinski -- getting it right seems pretty easy).
United States v. Strickland, 2017 WL 2723926 (9th Cir. June 26, 2017), decision available here.

Players: Decision by Judge Kozinski, joined by Judges Fisher and Watford. Admirable win for R&W Attorney Elizabeth Daily and Chief Deputy FPD Steve Sady, District of Oregon FPD.  

Facts: Strickland pleaded guilty to being a felon in possession of a gun. Id. at *1. That § 922(g)(1) offense made him an Armed Career Criminal, in the view of the district court. Id. 
  Strickland objected to the ACCA-predicate characterization of one of the three priors – an Oregon third degree robbery – arguing that it did not qualify as a “Crime of Violence” for the ACCA. Id.

Issue(s): “He appeals, arguing that he should be resentenced.” Id. “The government argues that we should nevertheless affirm Strickland’s sentence because his third degree robbery conviction is a predicate offense under the force clause. We thus examine whether the state offense satisfies the force clause’s requirements.” Id. “Our question is whether the term ‘physical force’ as used in the Oregon statue is coextensive with the term’s use in the ACCA.” Id. at *2.

Held:We hold that it is not, so a conviction for third degree robbery under Oregon law is not a predicate offense under the ACCA. State cases show that Oregon doesn’t require physically violent force . . . [Oregon] state cases demonstrate that state courts don’t interpret the Oregon statute as requiring the use or threatened use of violent force. Therefore, Oregon’s third degree robbery statute is not a categorical match to the force clause.Id. at *2.

Of Note: Oregon purse snatching does not a violent offense make. So says Judge Kozinski in Strickland. Id. at *2. And, last year, so said Judge Watford in United States v. Parnell,818 F.3d 974, 979 (9th Cir. 2016). (Albeit a little reluctantly -- see id. at 982, Watford., J., concurring: “I join the court's opinion in full, although I confess I was initially inclined to affirm the sentence. The notion that robbery is not a “violent felony,” as that term is defined in the Armed Career Criminal Act (ACCA), strikes me as counterintuitive to say the least. Holding that armed robbery doesn't qualify as a violent felony seems even more absurd. But, as the court's opinion persuasively explains, that conclusion is compelled by two oddities of Massachusetts law.”)
  Interesting that Judge Watford was, at one time, a Ninth Circuit clerk, working for his colleague that is now the author of the Strickland decision.
  For a big Circuit, it is a small world.

How to Use: Johnson warrior Liz Daily has observed that the Oregon third degree robbery statute is similar to that of many other states. 
  The Strickland win certainly undermines the C.O.V. dangers of Oregon Robbery II (ORS 164.405(1)(b), and gives us a welcome boost attacking the robbery convictions of other states as well.
For Further Reading: Last week Judge Owens complained that guideline sentencing is “more complicated than reconstructing the Staff of Ra in the Map Room to locate the Well of Souls.” United States v. Perez-Silvan, 2017 WL 2784971, *7 (9th Cir. June 28, 2017)

   An apt analogy, the Federal Sentencing Guidelines and the Well of Souls: dank places infested with dangers, threatening permanent entombment with the slightest misstep.
  Judge Owens continues to “urge the Commission to simplify the Guidelines.” Id. Simplification, however, can be dangerous business. At least one prominent Sentencing Commissioner seems keen on simplifying the guidelines to the point of becoming presumptive (read, “mandatory.”) See Remarks of Judge William Pryor, May 17, 2017 at Scalia Law School, George Mason University, available here.

Image of Indy with the Staff of Ra. identifying the Well of Souls from

Image of Indy in the Well of Souls from 

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


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