Sunday, August 18, 2019

Case o' The Week: Neutral Calls For Strikes and Balls - Sainz and Judicial Assertion of Defense Waivers

  The bench makes the calls, notes the Ninth: let the players play the game.
United States v. Sainz, 2019 WL 3770817 (9th Cir. Aug. 12, 2019), decision available here.

Players: Decision by visiting District Judge Piersol, joined by Judges Tashima and M. Smith.
  Big win on national issue of first impression for N.D. Cal FPD Chief of Appeals Carmen Smarandoiu.

Facts: Sainz pleaded guilty to drug crimes and was sentenced to 188 months. Id. at *1. Id.
  In a post-sentence cooperation agreement, Sainz waived his right to seek post-sentence reductions of his sentence under 18 U.S.C. § 3582(c)(2). Id. At the cooperation re-sentencing hearing, the court went down to 120 months. Id.
   Roughly a year later, Sainz moved for another reduction of his sentence under § 3582(c)(2) – specifically, for a reduction under Amendment 782, which had lowered his guideline range by thirty months or so. Id. at *2. Although neither party raised the earlier waiver of such claims, the district court denied Sainz’s motion based on the § 3582(c)(2) waiver in his cooperation-agreement. Id.
  Sainz appealed.

Issue(s): “We begin our analysis by nothing that no circuit has directly addressed whether it is appropriate for a district court to invoke sua sponte a defendant’s waiver in an agreement with the government of the right to file a § 3582(c)(2) motion.” Id. at *2.
  “In this case of first impression, we consider whether a district judge may sua sponte raise a defendant’s waiver of the right to seek relief under 18 U.S.C. § 3582(c)(2) and deny the defendant’s motion for resentencing on that ground.” Id. at *1.

Held: “We hold that it may not. . . . [and] reverse the . . . denial of Sainz’s motion for a sentence reduction.” Id.

Of Note: Our job is to take swipes at the government, but the wise exercise of prosecutorial discretion also merits a nod.
  Sainz’s counsel was ND Cal FPD Appellate Chief Carmen Smarandoiu. Ms. Smarandoiu reported to the Ninth that the N.D. Cal. U.S. Attorney’s Office generally did not assert § 3582(c)(2) waivers in the many cases where they existed. The Sainz decision cites this unrebutted assertion, id. at *6 n.3, which goes on to report that the majority of the district’s Drug Resentencing cases were resolved by stipulations between the FPD and USAO (despite the existence of waivers for many of our clients).
  Many of NorCal’s drug clients received real resentencing relief, and are now serving far fewer years in prison, because the USAO quietly, and deliberately, refrained from invoking § 3582(c)(2) waivers during the administrations of U.S. Attorneys Haag, Stretch and Tse.
  Nothing more becomes the federal government than self-imposed restraint.

How to Use: Sainz has a complicated procedural history, but a clean new rule: district courts cannot sua sponte invoke waivers that are not asserted by the government.
  The Ninth makes it clear that this rule applies to the Circuit as well: “Although we have not addressed whether a district court may raise a defendant’s waiver, we have concluded that, on appeal, courts should not raise waiver sua sponte.” Id. at *2.
  The Court declines “to hold that the government’s silence about a defendant’s waiver of the right to file a § 3582(c)(2) motion allows the district court to sua sponte raise the waiver.” Id. at *4. “In other words, the government must do more than remain silent: it must expressly invoke the waiver to avoid waiving it.” Id. Sainz is well-written and thorough in its discussion of the “waiver of waiver” problem.
  Turn to Sainz when your district (or appellate) judge edges out of their role as a neutral ump, and starts swinging at waivers not raised by the AUSA.
For Further Reading: Our problem with crime, A.G. Barr just explained, arises from District Attorneys who “style themselves as ‘social justice’ reformers, who spend their time undercutting the police, letting criminals off the hook, and refusing to enforce the law.” See DOJ Press Release here
  In a similar vein, E.D. PA U.S. Attorney McSwain just blamed a tragic shooting in Philadelphia on a “culture of disrespect for law enforcement” “promoted and championed” by D.A. Larry Krasner. See E.D. PA USAO Press Release here   Closer to home, 73 were just arrested in San Francisco's Tenderloin a single day, in an effort clearly coordinated with the NorCal USAO’s Helping HandFIT” project. See article here

  This is how Federalists respect states’ rights, and honor local control of local criminal justice issues? See essay by Edwin Meese, here

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




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