Tuesday, August 20, 2019

Two hard fought appeals from the FPD Oregon:

1. US v. Nejad, No. 18-30082 (8-13-19)(Watford w/N. Smith & R. Nelson). The 9th affirmed a “personal money judgment” in the criminal forfeiture context. The 9th did so based on prior precedent, finding that Honeycutt v. US, 137 S.Ct 1626 (2017) did not overrule it. The gov’t need not identify specific property, but can collect a sum of the forfeited value. However, the government must follow the provisions and constraints of 21 USC 853(p) and return to seek enforcement.

The decision is here:


2.  US v. Hernandez-Martinez, No. 15-30309 (8-13-19)(Berzon w/Graber & Robreno). 18 USC 3582(c)(2) allows a court to reduce a previously imposed sentence based on a guidelines reduction. However, the reduction is not allowed if the original sentence was below the new amended guideline range. This would not include substantial assistance departures.  See US v. Padilla-Diaz, 862 F.3d 856 (9th Cir. 2017).  Hughes v. US, 138 S. Ct 1765 (2018) did not overrule Padilla-Diaz. Hughes held that C pleas (stipulated) can be reduced under 3582c2 if the sentence had used the guidelines as a factor.

The decision is here:



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