Sunday, December 31, 2017

Case o' The Week: Ninth Disinclined on Second Werle - Werle and Taylor / Johnson Analysis, "Crimes of Violence" and USSG Sec. 2K2.1

Batting .50 saves client 40. United States v. Justin Werle, 2017 WL 6346659 (9th Cir. Dec. 13, 2017), decision available here.
 Players: Per curiam decision by Judges O’Scannlain, Tallman, and Watford. Dogged appellate advocacy by ED WA AFPD Matt Campbell.

Facts: Werle pled guilty to § 922(g)(1), and possession of an unregistered gun. Id. at *1. The district court found qualifying prior crimes of violence, and deemed Werle subject to the ACCA’s fifteen-year mand-min. Id. 
  In the Ninth’s first Werle, a different panel held that a “riot” prior was not categorically a violent felony (hence no ACCA!), and remanded. Id., see also blog entry here. 
  On remand, the district court hit Werle with a guideline increase under USSG § 2K2.1(a). Id. The court found that prior Washington convictions for “felony harassment via a threat to kill” were crimes of violence, increased the offense level, and imposed a custodial term of 140 months. Id. at *15.

Issue(s): “Werle argues that the district court erred in concluding that his convictions for felony harassment under § 9A.46.020(2)(b)(ii) were crimes of violence.” Id. at *1. “Werle argues that § 9A.46.020(2)(b)(ii) is overbroad because
  (1) it lacks the requisite mens rea to constitute a threatened use of force,
  (2) it includes threats to kill in the distant future, and
  (3) it does not necessarily require threatened violent force.” Id. at *2.

Held: (1): “Werle’s argument is unavailing because § 4B1.2(a)(1) only requires that the state crime has as “an element . . . the threatened use of physical force.” (emphasis added). It is clear that the first element of a conviction under § 9A.46.020(2)(b)(ii)—a knowing threat of intent to kill someone—requires a sufficient mens rea, and so that element by itself may render the conviction a crime of violence. That other elements of the statute may be satisfied with a lower mens rea adds nothing to our inquiry under § 4B1.2(a)(1), because requiring the state to prove additional elements only narrows the reach of the crime.” Id. at *3.
  (2) “[W]e find no support for any such immediacy requirement in the language of § 4B1.2(a)(1).” “[Section] 4B1.2(a)(1) does not contain the ‘substantial risk’ language used in § 16(b). Rather, § 4B1.2(a)(1) largely mirrors the language of § 16(a) and only requires a ‘threatened use of physical force,’ regardless of any substantial risk that the force will actually occur . . . . Id. at *3.
  (3) “Werle argues that a threat to kill does not necessarily include a threatened use of violent physical force, as required by Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), because one could kill someone via the application of poison or other non-forceful means. Werle may have luck with this argument in other circuits . . . but we have categorically rejected it . . . .. By threatening to kill, Werle necessarily threatened violent physical force.” Id. at *4 (citations omitted).

Of Note: Werle (I & II) are poster children for the complexity of the Taylor analysis. As noted above, Werle I was a big defense win. See 815 F.3d. 614 (9th Cir. 2016). In Werle I, the Ninth explained that “felony riot” was not a violent felony triggering the ACCA under Johnson. In Werle II, by contrast, the Ninth is looking at a different prior, and different definition for “crime of violence”: the definition used by USSG § 2K2.1. See Werle II, 2017 WL 6346659 at *3. Different prior, different definition, different outcome. Before despairing at this complexity, consider the results: Taylor and Johnson ultimately meant over three-years knocked off of Mr. Werle’s ACCA term. Well worth the “probe into the undergrowth of [the] . . . convictions,” as this panel put it. Id. at *2.

How to Use: We just touted the reverse use of the ACCA / Guidelines definitional whipsaw, in Rick Allen Jones. See blog entry here
  In Werle II, however, the Court rejects that approach in the context of § 16(b) and USSG § 4B1.2(a)(1) definitions. Id. at *3. 
  Tricky business, this: take care in the definitional analogues used when attacking a “violent crime” or “crime of violence” definition.
For Further Reading: 2018 may be a year of change, for the Ninth.
  Seven of twenty-nine (24%) of Ninth Circuit judgeships are now or will be open in 2018, awaiting appointments by President Trump and Senate confirmations. See Ninth Circuit report here

Steven Kalar, Federal Public Defender, Northern District of California. Website at


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Friday, December 29, 2017

Apelt v. Ryan, No. 15-99013 (12-28-17)(Callahan w/Farris & Owens). Note: Az FPD CHU represented a co-defendant. 

The 9th reverses the district court’s finding of IAC in the capital sentencing. The panel held that while IAC did take place, AEDPA requires deference to the state supreme court’s conclusion that there was no prejudice. The 9th further found that the state court did not apply an unconstitutional nexus requirement for mitigation nor was there prejudice if there had been such an application. Further, there was no IAC as to failure to challenge competency at trial.

The decision is here:

Wednesday, December 27, 2017

US v. Wells, No. 14-30146 (12-19-17)(Walter w/concurrence by Nguyen and partial dissent by Tashima).  

This is a significant opinion, reversing double first degree murder convictions for improper admission of prejudicial profiling evidence. Along the way, the opinion disapproves of the government’s interference in appointment of counsel (although the removal of second counsel by the magistrate court was not an abuse of discretion); and reassigns the case on remand to a different judge. All the panel agrees the government should “tend to its own knitting” when it comes to representation, the concurrence would not have chided the magistrate judge with a “cautionary note”. The dissent would not have reassigned to a different judge.

The significance of the reversal goes to the improper use of a “profile” for workplace multiple-homicide violence. The expert’s profile was substantive evidence of guilt that the prosecutor argued “fit like a t” to the defendant.  The opinion discusses at length the use of profile evidence (cautiously allowed with strict limits in drug courier cases) and the dangers involved. The court failed to preclude under 401-403, 404, and 608. 

This opinion is essential reading for challenges to profile evidence.

In assessing challenges to other evidence under 404(a) and 404(b), the 9th also found error in the admission of other Act evidence dating years before the start of the government’s chain of workplace discipline that supposedly provided a motive.

The 9th permitted the admission of various government forensic experts as to a tire puncture and the type of car.

Prosecutorial misconduct occurred with questioning and with presentation of evidence that gave a false impression.  It was wrong but was not prejudicial.

Lastly, as indicated, the strong opinions of the court at sentencing led the panel to reassign the case on remand for the appearance of justice.

Of note too is the issue of second counsel in a nondeath case. This case was being considered for the death penalty and second counsel was appointed. When DOJ decided not to seek death, the government moved to remove the second counsel.  And the court let them!  This was during sequestration, when the FPD was strapped and begged for second counsel.  The magistrate court found this case, a double homicide with circumstantial evidence, was not sufficiently extraordinary.  

Congrats to Davina Chen, CJA counsel, for this significant win.

The decision is here:

Sunday, December 24, 2017

Case o' The Week: "Tend to Your own Knitting," Ninth Warns Gov't - Wells and CJA Appointments

“As Justice Louis D. Brandeis warned many years ago: ‘The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.’ Olmstead v. United States, 277 U.S. 438, 479, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting). 
  After all, United States prosecutors are bound to appear in the name of Justice. We are of the opinion that the Government overstepped its bounds early in the pretrial process and continued to overreach during trial. The Government's actions, unchecked by the district court at critical points, so tipped the scales of justice as to render Wells' trial fundamentally unfair. Therefore, we reverse and remand for a new trial.”
  United States v. James Michael Wells, 2017 WL 6459199 (9th Cir. Dec. 19, 2017), decision available here.

Players: Decision by visiting DJ Walter, joined by Judges Tashima and Nguyen. Concurrence by Judge Nguyen. Partial concurrence and partial dissent by Judge Tashima. Big win for former CD Cal AFPD Davina Chen (the case was reversed on grounds not reported here).

Facts: Wells was charged with death-eligible homicide counts. Id. at *3.
  Federal Defender Rich Curtner was appointed to represent Wells, and second CJA counsel was appointed under 18 USC § 3006A. Id. The government challenged the ex parte nature of the CJA appointment. Id.
  The government proceeded on the case with three attorneys.
  After the government confirmed it would not be seeking death, it moved to have the second CJA counsel removed. Id. FPD Curtner fought the motion, explaining he was managing an office in financial crisis because of sequestration, that another AFPD was not available to try the case, that CJA counsel had a relationship with the client and a deep understanding of discovery, and that if CJA counsel was removed it would be three government prosecutors against one public defender. Id.
  Despite FPD Curtner’s objections, the magistrate judge granted the government’s motion, CJA counsel was removed, and Wells was convicted after trial. Id. at *4.

Issue(s): “[ ] Wells challenges the district court’s removal of his second court-appointed attorney following the Government’s decision not to seek the death penalty.” Id. at *4.

Held: Applying [a] deferential standard, we do not find that the removal of [CJA counsel] was reversible error, but neither can we accept without comment the Government’s interference in the status of Wells’ representation.” Id. at *5.
  “[W]e find no indication that the magistrate judge considered the candid statements of FPD Curtner, advising of the crippling effects of the unprecedented fiscal crisis as it related to his ability to serve as Wells’ sole counsel.” Id. at *6.
  “[O]f much greater concern to this Court, is the means by which the question of [CJA counsel’s] continued appointment was placed before the magistrate judge. After contesting the initial dual appointment, the Government again placed itself in an ethically compromised position by challenging the continuation of [CJA counsel’s] appointment once the death penalty was eliminated. This strikes the Court as highly unusual. Indeed, it constitutes two improper insertions by the prosecution into a matter exclusively within the province of the judiciary. While such a motion would be disfavored in any setting, it is particularly so where a successful challenge would leave a uniquely beleaguered FPD battling against the unlimited resources of the Government, on behalf of a client whose liberty is at stake. . . .
   The Government's decision to insert itself into the important determination of Wells’ fair representation carries with it a reproachable air of stacking the deck, for which we cannot offer tacit acceptance.” Id. at *6 (citations omitted) (emphasis added).

Of Note: What role should the government play in the question of CJA representation?
  The Ninth is unequivocal: “[I]n the future, the Government should tend to its own knitting.” Id. at *7.
  Wells is a seminal case on the need for independent and realistic assessment of the need for CJA counsel --and the USAO is to play no role in this assessment.
  Wells also calls out the injustice of the resource imbalances facing CJA counsel, calling out the “stacked deck” orchestrated by the government.
  A must-read for FPD and CJA counsel (and, as Judge Ngyuen warns, an opinion that DOJ should mull deeply). Id. at *29.

How to Use: When Death departs, so does Learned Counsel, right?
  Maybe not.
  The Ninth provides a sympathetic discussion of the procedure by which second CJA counsel can stay in a (former) capital case. Id. at *5. 
  RICO-wrestling CJA counsel should give this primer a very close read: seconds should stay, in some cases.

For Further Reading: The homicides on this remote Alaskan island have a vaguely Fargo-esque quality. 
  For an article describing the work feud that (allegedly) triggered the murders, see the article here

Image of James Wells from 

Steven Kalar, Federal Public Defender Northern District of California. Website at



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Monday, December 18, 2017

US v. Jones, No. 17-15869 (12-15-17)(Per curiam w/Motz, M. Smith, and Nguyen).

This is an Az FPD case.  The 9th holds that Arizona's armed robbery, Ariz. Rev. Stat. 13-1904, does not qualify as a COV under ACCA because of the categorical approach.  The 9th follows US v. Molinar, No. 15-10430, 2017 WL 5760565 (9th Cir. Nov. 29, 2017), where the 9th held that Az's armed robbery is not a COV under the force clause of the Guidelines, but was under the enumerated felonies clause.  However, Molinar does not apply to ACCA's enumerated felonies clause.  See US v. Dixon, 805 F.3d 1193 (9th Cir. 2015).  "Therefore, Arizona armed robbery also does not qualify as a violent felony under ACCA's enumerated felonies clause."

Congrats to AFPD Keith Hilzendeger (FPD Az -Phoenix).  A shout out is also in order for  AFPD Ryan Moore (FPD Az - Tucson) for his work and partial but significant victory in Molinar.
The decision is here:

Sunday, December 17, 2017

Case o' The Week: A Present in the Johnson Stocking - Jones, Arizona Armed Robbery, and ACCA "Crime of Violence"

 Merry Christmas, and Happy New Year, Mr. Jones.
United States v. Rick Allen Jones, 2017 WL 6395827 (9th Cir. Dec. 15, 2017), decision available here.

Players: Per curiam decision with Judges M. Smith, Motz, and Nguyen. 
  Big win for AFPD Keith Hilzendeger, District of Arizona.

Facts: Jones pleaded guilty to 18 USC § 922(g)(1). Id. at *1. The court found he had been convicted of at least three violent felonies, and sentenced him under the ACCA. Id. 
  After the Supreme Court’s 2015 Johnson decision and Welch, Jones filed a § 2255 motion attacking these priors. Id. 
  The district court denied the motion.

Issue(s): “Of Jones’s five prior felony convictions, three were for armed robbery under Arizona Revised Statutes § 13-1904. Therefore, whether Jones is subject to the ACCA’s fifteen-year mandatory minimum sentence depends on whether these convictions qualify as violent felonies.” Id. (footnotes omitted).  

Held:We conclude that [the holding in United States v. Molinar, 2017 WL 5760565 (9th Cir. Nov. 29, 2017)] applies equally to the question of whether Arizona armed robbery is a “violent felony” under the ACCA's force clause. The ACCA’s force clause is identical to the Sentencing Guidelines’ force clause, and we see no reason to analyze these provisions differently. . . . .The fact that Johnson I specifically defined “physical force” with respect to the ACCA's force clause (which definition was extended by Molinar to the Sentencing Guidelines' force clause) further bolsters our conclusion. See Johnson I, 559 U.S. at 135. Therefore, we hold that Arizona armed robbery does not categorically qualify as a violent felony under the ACCA's force clause.” Id. at *2.

Of Note: The holding above was the first half of this admirable win: Arizona armed robbery not a C.O.V. under the ACCA’s force clause. What about the “enumerated felonies” clause, and the wacky government theory that “generic extortion” is the same as “generic robbery?” Another defense win: “Arizona armed robbery also does not qualify as a violent felony under the ACCA’s enumerated felonies clause.” Id. at *3.
  A clean Ninth sweep makes for a great Christmas for Mr. Jones, and a Happy New Year resentencing.  

How to Use: Jones reverses that damnable whipsaw that has long sliced against our clients. 

  After years of suffering adverse guideline decisions extended to the ACCA, and vice versa, the Court now flips that approach and extends a favorable Johnson guideline analysis to our benefit, in the context of the ACCA. Id. at *2 ("The ACCA's force clause is identical to the Sentencing Guidelines' force clause, and we see no reason to analyze these provisions differently.") 
  Jones is a good reminder to mine both veins of law - Guidelines and ACCA - when mounting a Johnson challenge.
For Further Reading: The big shoe yet to drop in the Johnson saga is Dimaya.
 You’ll recall that great Ninth decision applied Johnson to a civil statute – 18 USC § 16(b) – that defines “crime of violence” in the context of immigration. Judge Reinhardt persuasively explained that the same due process principles that drove the vagueness analysis in Johnson applied with equal force to this important immigration definition, in Dimaya. See blog entry here
  The SCOTUS case was carried over onto Court’s October 2017 term, to give Justice Gorsuch a chance to weigh in. As of this writing, we’re waiting anxiously for the decision (note at least one veteran observer reads the tea leaves favorably). See SCOTUS blog here
  When will we know the outcome? “Opinions are typically released on Tuesday and Wednesday mornings and on the third Monday of each sitting, when the Court takes the Bench but no arguments are heard.” See Suorene Court website here
  Last Spring the Court handed its final decisions at the end of June.  See article here Pundits predict a 5-4 decision in Dimaya, which takes a little longer to write, but the Court also had this case the previous term – so it has had much time to start hammering on an earlier draft.
   Punchline? Look for the decision sometime in the next 195 days . . .

Image of whipsaw from 

Steven Kalar, Federal Public Defender, Northern District of California. Website at


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Thursday, December 14, 2017

US v. Werle, No. 16-30181 (12-13-17)(per curiam w/O’Scannlain, Tallman, and Watford).

The 9th finds that a Washington state conviction for felony harassment is a COV under the Sentencing Guidelines. 

The 9th focuses solely on the felony harassment, the subsection of conviction, because the general harassment statute is categorically overbroad. The divisible subsection requires a threat to kill. Such a threat has a mens rea of intent and so qualifies. 

The 9th rejects defendant’s arguments that the threat may be too far in the future to be viable or evidence intent; that it may be negligent; and that it may not require force such as poison.

The decision is here:

Sunday, December 10, 2017

Case o' The Week: Expert Case A Bitter Pill to Swallow - Diaz and Expert Testimony on Ultimate Legal Issue

  A doc prescribes 5 million opiate pills in four years.
  (Yet the government still needs an expert to opine on the ultimate legal issue: that this was “outside the usual course of professional practice?”)
United States v. Julio Diaz, 2017 WL 6030724 (9th Cir. Dec. 6, 2017), decision available here.

Players: Decision by Judge Christen, joined by Judges Kleinfeld and Graber. 
  Hard-fought appeal by former CD Cal AFPD Davina Chen.  

Facts: Dr. Diaz operated a clinic that served geriatric patients. Id. at *1. Over four years, he wrote 50,000 prescriptions and distributed over 5 million opiate pills – some patients were prescribed over 60 tablets a day. Id.
  He went to trial on 79 counts of unlawfully distributing controlled prescription drugs, in violation of 21 USC § 841(a)(1). Id. Among other things, that statute requires proof that the distribution of the drugs was “outside the usual course of professional practice and without a legitimate medical purpose.” Id. (citation omitted).
  At trial, a government expert testified without defense objection that Dr. Diaz’s prescriptions were written “outside the usual course of medical practice” and “without a legitimate purpose.” Id.
  Diaz was convicted on all counts, and sentenced to the maximum Guideline range: 327 months. Id.

Issue(s): “Diaz timely appeals, arguing that Dr. Chavez impermissibly offered opinion testimony as to a legal conclusion.” Id.  

Held: “We hold that if the terms used by an expert witness do not have a specialized meaning in law and do not represent an attempt to instruct the jury on the law, or how to apply the law to the facts of the case, the testimony is not an impermissible legal conclusion.” Id. at *3.
  “[The government’s expert’s] testimony passed muster under Rules 702 and 704, and the district court did not plainly err by admitting it into evidence.” Id. at *4.  

Of Note: Julio Diaz joins a long list of disappointing expert testimony cases. AUSAs will try to stretch the opinion to argue that “professional” experts can opine at will as to all legal conclusions. Judge Christen, however, strictly limits this “ultimate issue” testimony to a doc’s testimony on “legitimate medical purpose” – a term (we’re told) that does not have a “separate, distinct, and specialized meaning in law.” Id. at *3. The Ninth quotes favorably from a Fourth Circuit case, which distinguished this permitted physician testimony from – for example – testimony about “extortion, deadly force, fiduciary, and unreasonably dangerous.” Id. (quoting United States v. McIver, 470 F.3d 550,561-62 (4th Cir. 2006)). Invoke Diaz’s internal limitations to help prevent further erosion of the vulnerable bulwarks of FRE 702 and 704.

How to Use: While this is a plan error case, there is no plain error analysis in the opinion – just a cursory acknowledgement at the outset, id. at *2, and the “no plain error” holding at the end, id. at *4. Absent is any explanation of how the Court’s decision jives with the Olano plain error prongs. From ambiguity, opportunity. If the government offers similar doctor testimony in your trial, object and (try) to distinguish Julio Diaz as an extraordinarily deferential, plain error review decision.
For Further Reading: What a difference perspective makes. For those in the trenches of indigent criminal defense, the American Bar Association can sometimes seem like a conservative organization – filled with former AUSAs who sit on the ABA’s white collar and criminal justice committees. Senate Republicans, however, have a decidedly opposite view – they “have declared war on the American Bar Association.” See Republicans step up defense of ‘not qualified’ judicial nominees, available here at Politico.
   Four of President Trump’s judicial candidates have earned a “not qualified” rating from the ABA. The ABA’s role (or lack thereof) in judicial vetting will faces an upcoming test with a Senate procedural vote on Mr. Leonard Steven Grasz. Mr. Grasz is nominated for the Eighth Circuit Court of Appeals, and received a unanimous “not qualified” stamp from the ABAs evaluators. Id.
  Will be interesting to see what role (if any) the ABA plays in the Trump candidates for the vacant Ninth Circuit seats.

Steven Kalar, Federal Public Defender Northern District of California. Website at


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Friday, December 08, 2017

US v. Valdivia-Flores, No. 15-50384 (12-7-17)(O'Scannlain w/Marquez; O'Scannlain concurring; Rawlinson dissenting).

The 9th reversed a 1326 judgment and remanded because the defendant's Washington prior was not an aggravated felony.  Seems pretty cut and dried? Well, it gets interesting.

The 9th first found that the defendant's waiver of rights to seek judicial review was not considered and knowing.  The form was confusing as to what he could challenge, and under what basis.

Once the defendant cleared the procedural hurdle, the 9th looked at his conviction for drug trafficking.  The 9th was shocked to discover that the state aiding and abetting statute was broader than the federal statute.  It required only knowledge, and not specific intent.  The federal statute and most other state statutes, require the defendant to intend to act, not just merely know his acts could help or further.  As such, since all jurisdictions have eliminated the distinction between the principal liability and aiding and abetting, the conviction of the latter is like a conviction for the former.  Thus the conviction could be under both theories.  The statute was not divisible in this regard.  Because it was not divisible, the modified categorical approach cannot be used.

As observed by Davina Chen, a longtime CJA counsel, this may allow us to argue that most convictions in the mere knowledge aiding and abetting states should not be agg felonies.  The states appear to be Indiana, Iowa, Massachusetts, Nebraska, Oklahoma, and Washington.

It does not even matter if the defendant was the only participant, because a jury could have found on separate theories.  Because the statute is overbroad on its face, the defendant here and elsewhere need not show that there is any actual conduct that is broader than the generic statute.

Concurring, O'Scannlain expresses frustration at the overbreadth and the expansion of the categorical approach.

Dissenting, Rawlinson argues that the majority goes looking for trouble.  The statute in question was drug trafficking; the majority should not have considered aiding and abetting.

The decision is here:

Thursday, December 07, 2017

US v. Diaz, No. 15-50538 (12-6-17)(Christen w/Kleinfeld & Graber). 

How far can an expert go in pronouncing a legal conclusion?  Pretty far.  Here, in a drug distributing prosecution involving a doctor prescribing opiate pills, the prosecutor had to prove there was no legitimate reason for the defendant doctor to prescribe the drugs. To prove that element, the prosecution expert testified that the prescriptions were written "outside the usual course of medical practice" and "without a legitimate purpose."  Counsel did not object.  This mirrored the jury instruction language.  On appeal from the 79 counts, the defendant argued that the expert offered a legal conclusion.  The 9th affirmed the convictions.  Under Fed R Evid 702 and 704, the panel observed that sometimes it is "impossible" for an expert to render an opinion without resorting to the same language that is the applicable legal standard. "We hold that if the terms used by an expert witness do not have a specialized meaning in law and do not represent an attempt to instruct the jury on the law, or how to apply the law to the facts of the case, the testimony is not an impermissible legal conclusion." (10). The 9th joins other circuits in this conclusion.

This opinion is important if you have expert cases, and the experts are going to go forth into areas of intent and meaning.  Remember, this was decided using plain error.

The decision is here:

Rowland v. Chappell, No. 12-99004 (12-6-17)(Owens w/Wardlaw & Clifton).

AEDPA's "extreme deference" to state court decisions resulted in the affirming of a denial of a capital petition.  The 9th agreed with the state Supreme Court that IAC occurred in the late retention of a psychiatrist days before the penalty phase began, and with inadequate preparation.  The 9th deferred to the state supreme court that there was no prejudice.  Likewise, with inappropriate statements by the prosecutor in closing, the 9th again deferred to the state supreme court's conclusion that constitutional rights were not violated.  The 9th agreed with the state supreme court that there was no conflict arising when the defense counsel had a close personal relationship and friendship with the chief investigating officer.

The decision is here:

Monday, December 04, 2017

US v. Murillo-Alvarado, No. 14-50354 (12-4-17) (Clifton w/Friedland & Chen).

A holding foretold by precedent.  In a sentencing appeal from a 1326 conviction, the 9th finds that Cal Health & Safety Code 11351, possession or purchase for sale of a designated controlled substance, is divisible.  The 9th, in US v. Martinez-Lopez, 864 F.3d 1034 (9th Cir. 2017) (en banc), had concluded that section 11352 of that code, very similar to 11351, relating to transportation, was divisible.  Based on that reasoning, divisibility is applied here. The government could use a modified categorical approach, which it did successfully, and proved that the defendant sold cocaine. This is a drug trafficking offense under the guidelines and the +16 level enhancement is affirmed.

Saturday, December 02, 2017

Judge o' The Week: The Honorable Judge Harry Pregerson

  I’m invoking author’s privilege to pay tribute to Judge Harry Pregerson, for whom I clerked. He passed away last week.

  At the memorial service on Friday eloquent speakers struggled with their tasks before a huge (and teary) crowd. Think of that that trope of blind men describing their parts of an elephant – it was a life far too big to take in with any one grab. I’ll therefore mull one small corner of the Pregerson pachyderm: Harry the Judge.
  In the Ninth the senior active member of a three-judge panel assigns the job of writing the majority disposition. That senior judge can accordingly horde a juicy plum of an opinion to write for themselves. Appointed by Carter in 1979, the very senior Judge Pregerson often controlled this valuable power of the pen. 
 So what high-profile appeals did he assign himself to write? 
  Inevitably, he took the Social Security benefit cases, the immigration appeals, the guideline arguments – legions of obscure and “unimportant” opinions that some of his colleagues may have been secretly relieved to dodge. Sure, he’d tackle cutting-edge con law cases, and yes, his decisions have made the New York Times. His real passions, however, were disability insurance benefits and the absurd intricacies of the Immigration and Nationality Act. The less powerful, prestigious and newsworthy the plaintiff or criminal defendant, the more likely that appeal would end up on the desk of a Pregerson clerk to help with a draft. See e.g., Tackett v. Apfel, 180 F.3d 1094 (9th Cir. 1999) (Admin law judge required to call vocational expert for a disability claim) (citing, coincidentally, the persuasive authority of other J. Pregerson disability decisions!)
  Lipman is a notable example of this opinion cherry-picking. Michael Lipman got twenty-one months for illegal reentry. See United States v. Lipman, 133 F.3d 726, 728 (9th Cir. 1998). He had “numerous” felony convictions. Id. Lipman argued his guideline sentence should have been lower because he had been assimilated into American society. Id. Honestly, who really cares about the Lipmans in our world – undocumented aliens who have racked up multiple felony priors and are convicted of illegal reentry?
  Harry cared. Harry really cared.
  In Lipman, the Judge explained that cultural assimilation is a valid departure basis from the (then) mandatory guidelines. Id. at 732. This 19-year old opinion is now a quirky little corner of the increasingly-irrelevant sentencing guidelines. Yet judicial recognition of this important facet of our clients’ humanity has made a real difference for hundreds of assimilated undocumented aliens facing harsh federal sentences.
  Pregerson cared about the little guy. He even cared when the little guy was – well, a bit of a schmuck. The Judge was a proud Marine, a Purple Heart recipient who was grievously wounded on Okinawa in WWII. Yet in two published cases Judge Pregerson came out swinging hard on behalf of our nutty clients who lied about receiving Purple Hearts. See e.g. Blog entry here see also blog entry here . Remarkable opinions, written by a jurist and a veteran still limping from the shrapnel he carried.
  I am one of the one hundred and fifty lawyers who proudly serve in Harry’s Clerk Corps (he never discharged us from duty). We clerks know that Judge Pregerson’s legal legacy isn’t a single bold constitutional opinion, or his brave feuds with a misguided SCOTUS. His true judicial legacies are the innumerable, obscure opinions of which you’ve never heard -- the “unimportant” dispos that made a world of difference to the poor, to immigrants, to our indigent clients facing unjust laws and punitive sentencing guidelines.
  Gandhi allegedly observed that “a nation’s greatness is measured by how it treats its weakest members.” That’s an equally good yardstick for a judicial career. By that standard (and by many others), the Ninth Circuit’s Honorable Judge Harry Pregerson was one of the greatest.
  Semper fidelis, HP.  

Image of Marine Harry Pregerson from Memorial Service, Shrine Auditorium, December 1, 2017.

Steven Kalar, Federal Public Defender Northern District of California. Website at