Monday, January 14, 2019

US v. Valencia-Mendoza, No. 17-30158 (1-10-19)(Graber w/McKeown & Christen).   

In a 1326 sentencing case, the 9th considers what is a Guidelines “felony.” The Guidelines define a “felony” as an offense punishable by more than a year.  However, the 9th finds its prior precedent to be overruled by the Supremes, and that a binding state range of less than a year, even if the maximum is more than a year, is not a felony.  In this case, from Washington, the defendant had a prior with a theoretical maximum of five years.  Yet, because Washington sets a binding sentencing range unless specific additional findings are made, the top of Washington’s range was 6 months.  This was the actual maximum the defendant could have and did received.  The 9th found that Carachuri-Rosendo v. Holder, 560 US 563 (2010) and Moncrieffe v. Holder, 569 US 184 (2013) overruled the 9th’s past precedent and that the offense was not “punishable by imprisonment for a term exceeding one year.”

Editorial note: This case supports those States that have bridge or open ended sentences, arguably like Arizona’s “open 6.”

Congrats to Miles Pope of Fed Defenders of Eastern Washington & Idaho -- a significant victory with repercussions.

The decision is here:

2.  US v. Lopez, No. 16-10261 (1-10-19)(Bybee w/Friedman; dissent by Rawlinson).  This is an Arizona case (and win). The 9th writes:
          Defendant-Appellant Lashay Marie Lopez was convicted

on three federal charges stemming from her purchase of a

firearm through the use of false identification (ID). Because

Lopez admitted to the offense conduct, the only issue before

the jury was the affirmative defense of duress. Lopez claims

that she purchased a handgun for Hector Karaca using her

identical twin sister’s ID in violation of her probation and

federal law because Karaca threatened to harm Lopez and her

family if she failed to acquire a gun for him.

In support of her duress defense, Lopez asked the district

court to allow her to introduce expert testimony on Battered

Woman Syndrome (BWS) and the effects of past abuse.

Lopez, who had been physically and sexually abused by her

stepfather, contended that this evidence would “help provide

context” to the jury regarding her fear of Karaca and why she

did not seek help from the police. Lopez similarly asserted

that the expert’s description of the “characteristics of [a]

domestic violence victim” would help explain her

“counterintuitive” behavior regarding Karaca. The court,

however, excluded this evidence in a series of oral rulings,

concluding that BWS evidence is incompatible with the

duress defense’s use of an objective reasonable-person


We join the weight of authority in holding that such

expert testimony may be used by a defendant to support her

duress defense and rehabilitate her credibility. We therefore

find that the district court committed legal error in precluding

Lopez’s expert witness from testifying and conclude that this

decision was prejudicial to her defense. Accordingly, we

vacate her conviction and remand this case to the district

court for a new trial.

Dissenting, Rawlinson argues that the district court did not abuse its discretion in precluding the evidence.  The evidence is usually raised in self-defense, not duress.

Congrats to Mike Burke of Az FPD (Phoenix).

The decision is here:




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