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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