Sunday, September 29, 2019

Case o' The Week: Hoping Ninth Gets Conjunctive-itus - E.B. Grant on Drug Conspiracy Jury Instructions

 “Or” no more, urge fans of “and.”

United States v. Robert Collazo, No. 15-50509, (9th Cir. Sept. 19, 2019), Ord. granting rehearing e.b., available here.

Players: Court-ordered brief for initial en banc consideration by former Federal Defender of San Diego, Inc. AFD, John Lemon.    

Facts: Appellants in Collazo were co-conspirators convicted of drug man-mins. They also suffered guideline enhancements, based on drugs distributed by co-conspirators in prison. See United States v. Rodriguez, Appellants’ Brief for E.B. Consideration, 2019 WL 3947844 at *1. 
  Defendant Rodriguez argued at trial that he did not distribute over 100 grams of heroin: he was an addict, and explained that he consumed “copious amounts” of the drug smuggled to him in prison. Id. at *4-*5. Rodriguez argued for a jury instruction that required that the heroin attributable to him must have been both jointly undertaken in furtherance of the conspirators’ agreement and reasonably foreseeable (i.e., the “conjunctive formulation.”) Id. at *2. 
  The district court refused. 
  The district court instead instructed in the disjunctive: the amounts of drugs must have either been jointly undertaken or reasonably foreseeable. Id. Using this disjunctive instruction, the jury found Rodriguez guilty of conspiracy, and that 100 grams or more of heroin was attributable to him. Id. at *7. 
  Rodriguez was sentenced to a whopping high-end sentence of 175 months, when the court relied on the jury’s findings on the amounts of heroin attributable to him. Id. 
  After briefing on appeal and oral argument, the Ninth issued an order and asked the parties to “address the proper jury instruction under 21 U.S.C. § 841(b) for determining the drug type and quantity involved in a conspiracy offense.” Id. at *2.
 On September 19, the consolidated Collazo cases went en banc.

Issue(s): How is the Ninth going to “sort the whole mess out”? United States v. Torres, 869 F.3d 1089, 1106 (9th Cir. 2017) (Clifton, J. concurring).

Held: T.B.D.

Of Note: Judge Clifton was right in Torres: the Ninth’s law on drug conspiracy is a “mess.” 
  The most straightforward path to victory is for the Ninth to follow its own (and the Supreme Court’s) clear precedent: guidelines and statutes are supposed to be interpreted consistently. See United States v. Becerra, 992 F.3d 960, 967 (1990); see also Dorsey v. United States, 567 U.S. 260, 264 (2012).
   The Ninth got off track because old guidelines handled drug-attribution in the disjunctive. See Becerra, 992 F.3d at 966. In 1992, however, the guidelines were amended to require the conjunctive. Torres, 869 F.3d at 1097 (“[T]he Sentencing Commission . . . amended the Guidelines in 1992 and adopted a conjunctive approach.”) 
  Despite that amendment, the Ninth never corrected its own law and jury instructions – that will change (we hope) with this en banc decision.

How to Use: Object, obviously, in a drug conspiracy trial, and demand the conjunctive formulation. The current problematic disjunctive language is in the “Special Verdicts” section of Ninth Model Instruction 9.19, available here
   Query, moreover, what grand juries have been told, as they’ve returned federal drug conspiracy indictments? Fed. Rule Crim. Proc. 6 disclosures of grand jury transcripts may be in order, for drug conspiracy cases heading for trial.
For Further Reading: The sure win is always the best defense approach: anticipate that Rodriguez will be hammering on the guideline and instruction dissonance in the argument to the en banc court.
  A more interesting argument, however, is Judge Berzon’s very thoughtful concurrence, and compelling conspiracy analysis, in Jauregui, 918 F.3d 1050, 1060 (9th Cir. 2019). Judge Berzon carefully explains how the Ninth’s mélange of conspiracy intent requirements have “muddied an already-confusing area of law.” Id. at 1063.
  For a description of Judge Berzon’s clarion call for en banc action on the Ninth’s conspiracy jurisprudence, see COTW blog entry here 

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


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Tuesday, September 24, 2019

US v. Shelby, No. 18-35515 (9-19-19)(Hurwitz w/Murguia & Zipps). The 9th follows the categorical approach mandated by the Supreme Court in holding that first-degree armed burglary under Or. Rev. Stat. 164.415 is not a violent crime for ACCA purposes. The 9th has held that this statute is not a COV for ACCA under US v. Strickland, 860 F.3d 1224 (9th Cir. 2017), and that it survives Stokeling v. US, 139 S. Ct 544 (2019). In Stokeling, the Court held that there was no distinction between substantial and minimal physical force.  Stokeling does require some force. It does not apply when there is no physical force.  The 9th in Ward v. US, No. 17-35563, slip op. at 9 (9th Cir. Sept. 3, 2019) noted that snatchings where there is no resistance as the robbery happens so fast  is not sufficient to fall under ACCA’s force clause. The state statute here is thus overbroad, as it allows for such no resistance snatchings, and thus the conviction is not a COV. This is true even if there is a deadly weapon. It could be covert.  The statute is also not divisible. Since the district court found it to be divisible, and sentenced for force, the sentence is reversed and remanded for resentencing.

Congrats to AFPD Elizabeth Daily of FPD Oregon (Portland).

The decision is here:

US v. Becerra, No. 17-30050 (9-23-19)(Berzon w/Robreno; Graber dissenting). Failure of the court to orally instruct the jury was structural error.  The 9th so held nearly thirty years ago in Guam v. Marquez, 963 F.2d 1311 (9th Cir. 1992) and reaffirms the holding here.  The majority goes through why orally reading is so critical, and what it connotes.  

Graber, dissenting, would find the error harmless. The guilt was overwhelming; the jury had correct written instructions; and the jurors affirmed with the court that they had read them.

Congrats to Michael Levine for the win.

The decision is here:


Sunday, September 22, 2019

Case o' The Week: (Not) Making a List, (Not) Checking it Twice - Garay and Listless Inventory Searches

Q: What does one call an “inventory” that neglects to actually inventory the items purportedly inventoried?

 A: An "inventory" search.
United States v. Garay, 2019 WL 4419679 (9th Cir. Sept. 17, 2019), decision available here.

Players: Decision by Judge Schroeder, joined by Judges Graber and DJ Watson.

Facts: Garay lead officers on a high-speed chase, crashed the car in a ditch, and fled on foot. Id. at *1-*2. When Garay was arrested, cash and drugs were found on him. Id. 
  The officers searched the car (without a warrant) before it was towed. Id. They found guns, ammo, and a cell phone attributed to Garay. Id. A later search revealed that the phone had pictures on it that tied Garay to one of the guns. Id. at *1. 
  Contrary to the Sheriff’s inventory policy, the officers who, well, rummaged through the car did not complete an inventory sheet listing the property recovered. Id. at *3. 
  State and, later, federal search warrants for the cell phone asserted that “that individuals who possess firearms take pictures of them and communicate via text messages to further their criminal activity.” Id. at *2. The federal warrant application added an assertion that the “‘collective experiences’ of law enforcement agents that felons prohibited from possessing guns use mobile phones to coordinate buying and selling guns.” Id. 
  The motion to suppress was denied. Id. at *1.

Issue(s): “Garay contends that the warrantless seizure of the phone itself was unreasonable and that the affidavits supporting the search of the contents of Garay’s phone were inadequate.” Id. at *2. 
   “Garay contends . . . that the officers used their authority to inventory the car’s contents here to unlawfully rummage for evidence. Inventory searches are consistent with the Fourth Amendment only if they are not used as an excuse to rummage for evidence.” Id.

Held: “[W]e see no reason to hold that the officers were rummaging for evidence. The contents of the wrecked car had to be removed and safeguarded before the car was towed from the site. That is the essence of an inventory search. Because the site was in effect a crime scene, the items in the car were sensibly treated as evidence. The searching officer complied with the department’s inventory-search policy in material respects. . . . . That the officer did not complete the inventory list that ordinarily would be completed as part of a department inventory search is not, on its own, a material deviation from policy.” Id. at *3.
  “Given the circumstances leading up to the search, the officers no doubt expected to find evidence of criminal activity inside the vehicle. But that expectation would not invalidate an otherwise reasonable inventory search.” Id. at *4.

Of Note: The Ninth’s holding on the “inventory” search is disappointing; its holding on the phone search doubly so.
  Garay persuasively argued that “the affiants’ belief on the basis of their ‘training and experience,’ unadorned by sufficient supporting details, cannot properly be considered in establishing probable cause. He argues that, before the affiants’ beliefs may be taken into consideration, the affiants must detail the nature of their expertise or experience and how that experience bears on the facts prompting the search.” Id. at *4.
  Judge Schroeder explains the Ninth’s “standards . . . are not so stringent.” Id.
  Bad facts make bad law: the high-speed chase, crash, drugs, wads of cash, guns, and ammo of Garay makee for a troubling opinion on search warrant affidavits.

How to Use: The only bright spot in a dark decision? Garay’s flight is not a threshold jurisdictional issue that prevents the Court from getting to his Fourth challenge. Id. at *2 (citing the Supreme Court's 2018 decision in Byrd). 
  Garay and Byrd can get our fleeing clients around any jurisdictional bars and to a Fourth Amendment analysis (although our quest for the suppression remedy may get a little complicated).  
For Further Reading: President Trump has nominated two more candidates to the Ninth (one without a California Blue Slip). See article here
  If these appointments are confirmed, the President will have nominated ten of the Ninth’s twenty-nine judges. See WSJ Op Ed here 

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


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Thursday, September 19, 2019

US v. Garay, No. 18-50054 (9-17-19)(Schroeder w/Graber & Watson). A traffic violation led to chase led to a crash, and then the inventory search, and further warrants to investigate cell phones.  The 9th affirmed the denial of the suppression motions, and affirmed the conviction for being a felon in possession.

Interesting facts include the 9th deciding not to decide if the defendant had in fact abandoned the car, after crashing into a ditch, and running.  The 9th held that Byrd v. US, 138 S. Ct 1518 (2018) did not require standing for jurisdiction, and so no need to decide.

More concerning was the warrant for the cell phones, where the officers said that their experience with gun traffickers is that selfies and photos are taken and stored to facilitate sales.  Really?  The 9th also permits “conclusory” statements on warrant affidavits so long as some facts are referenced, and relying on the experience of the officer or affiant.

The decision is here:
US v. Schopp, No. 16-30185 (9-16-19)(Berzon w/Tashima & Fletcher).  In a production of child porn case, 18 USC 2251(a), the 9th reverses defendant’s sentence and remands for resentencing. Applying a categorical approach, the 9th concludes that the defendant’s prior state convictions (Alaska) for sexual abuse and sexual assault with minors do not “relat[e] to the sexual exploitation of children.” The “exploitation” has to do with visual depictions of children engaging in sexual explicit conduct and does not include conduct that lack visual depictions. As such, the prior convictions cannot serve as predicate offenses under 2251. The defendant avoided the bar of an appellate waiver because the sentence was illegal: the multiple-convictions enhancement was illegal.  The error was plain.

Congrats to Myra Sun for the win.

The decision is here:

Monday, September 16, 2019

US v. Hong, No. 17-50011 (9-12-19)(Paez w/Clifton & England).  In this appeal from conviction for health care fraud, illegal remuneration, and aggravated identity theft, the 9th affirmed the health care fraud and illegal remuneration convictions but reversed on the aggravated identity ones.  The 9th found that use of a patient’s identity to falsely bill does not constitute a “use” of the patients’ identities for purposes of aggravated identity theft. 

In this case, the defendant operated an acupuncture and massage clinic. He fraudulently billed for services and got kickbacks from physical therapy companies. For the health care fraud convictions, the 9th sidestepped the issue of error in giving a deliberate ignorance instruction because of the overwhelming evidence of actual knowledge. For the illegal kickbacks, there was sufficient evidence of the purpose of referrals and the arranging.

The reversal of the aggravated identity convictions was required because the identities were not “used” by the defendant to pass himself off as someone else or by others.

Congrats for that win, and a spirited fight on the other issues, to Carlton Gunn.

The decision is here:


Sunday, September 15, 2019

Case o' The Week: Ninth Needles Government - Hong and "Use" in Section 1028A

Judge Paez drives the point home, in a case of first impression.

United States v. Hong, 2019 WL 4315165 (9th Cir. Sept. 12, 2019), decision available here.

Players: Decision by Judge Paez, joined by Judges Clifton and D.J. England. Big win for former CD Cal AFPD Carlton Gunn.   

Facts: Hong owned and operated massage and acupuncture clinics. Id. at *1. He gave his patients’ Medicare-eligibility info and identities to physical therapy companies, who then billed Medicare. Id.
  In reality, however, the clients received massage and acupuncture (not covered by Medicare), and essentially no physical therapy (covered by Medicare). Id. at *2. Hong received the majority of the Medicare payments. Id. Notably, this is what the patients wanted – they came seeking massage and acupuncture, not physical therapy. Id.
  Hong was charged, tried, and convicted of fraud and kickback counts, and of two counts of aggravated identity theft. Id. at *3. “The government alleged that Hong used the names and Medicare-eligibility information of patients to submit, with the help of his co-schemers, claims for benefits without lawful authority.” Id. at *7.

Issue(s): “Hong argues there was insufficient evidence of aggravated identity theft [because] . . . this fraudulent billing does not constitute a ‘use’ of the patients’ identities within the meaning of the aggravated identity theft statute.” Id. “[This] argument presents a new question for our court: whether the fraudulent billing demonstrated in this case constitutes a ‘use’ of the patients’ identities under section 1028A.” Id.

Held: Hong provided massage services to patients to treat their pain, and then participated in a scheme where that treatment was misrepresented as a Medicare-eligible physical therapy service . . . Neither Hong nor the physical therapists ‘attempt[ed] to pass themselves off as the patients.’ . . . . Hong’s fraudulent scheme ran afoul of other statutes—namely, health care fraud and unlawful remunerations—but not section 1028A. We hold that Hong did not ‘use’ the patients’ identities within the meaning of the aggravated identity theft statute. Accordingly, we reverse Hong’s [agg ID] convictions . . . . .” Id. (citations omitted).
   “Hong participated in and, through kickbacks, profited from a health care fraud scheme. His conduct, however, falls short of aggravated identity theft as it is contemplated in the statute. We therefore reverse Hong’s convictions for aggravated identity theft and remand for resentencing.” Id. at *9.   

Of Note: Section 1028A is the infernal “agg ID theft” statute. Carrying a two-year mand-min, it is a charge frequently abused by the government. See, e.g., United States v. Bercovich, 615 Fed.Appx. 416 (9th Cir. 2015), mem. (permitting § 1028A counts where identities were used with the person’s active consent). Hong is thus particularly welcome -- a rare appellate limitation for this generally boundless offense.
  In Hong, Judge Paez carefully analyzes the word “use” in the agg ID statute, and recounts with approval the approaches of the First and Sixth Circuits (both of which reject § 1028A charges in this context). Hong, 2019 WL 4315165 at *7-*8.
  Beware of the boundaries of Hong’s new rule –convictions can be upheld where there was impersonation or forgery. Id. at *8 & n.8. Nonetheless, any limit is a good limit: Hong helps.

How to Use: Must one argue all defense theories when moving for a Rule 29 dismissal? When that didn’t happen in Hong, the government argued that several appellate theories were waived. See id. at *5 (discussing Graf). 
  Federal trial attorneys should read Hong’s Rule 29 discussion carefully: if we articulate a specific Rule 29 theory at trial, our appellate comrades will thank us later if we try to articulate them all.
For Further Reading: Az Appellate AFPD Keith Hilzendeger found a hen’s tooth: a full week’s calendar staffed by Ninth judges. See Ninth Circuit calendar here.  No visiting judges, no D.J.s, see blog entries here, just Western appellate judges. 
  This feat was made possible with the influx of Trump-nominated jurists: Judges Miller, Bennett, and Bade all sat on this Pasadena calendar.

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


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Thursday, September 12, 2019

Ramirez v. Ryan, No. 10-99023 (9-11-19)(Thomas w/Clifton; Berzon concurring and dissenting). Note: This is an Az FPD CHU case. The 9th grants relief on the procedural bar due to Martinez IAC and remands for an evidentiary hearing on the IAC of trial counsel. The 9th found that post-conviction representation was deficient (the State so conceded). Post-conviction counsel should have raised the IAC claim regarding trial counsel’s failure “to present or pursue evidence of intellectual disability, failed to provide relevant and potentially mitigating evidence to the psychologist … “ and submitted a psychology report with contrary facts.  On remand, petitioner should be allowed to develop evidentiary facts for the merits of his IAC claim.

The 9th affirmed denial of the Ake claim and the unconstitutional casual nexus argument.

Berzon would grant a COA on the Atkins claim, find Martinez IAC, and remand for further proceedings.

Congrats to Paula Harms and Tim Gabrielsen of the Az FPD CHU.  

The decision is here:


Saturday, September 07, 2019

Case o' The Week: Benamor, Encore - Benamor, Plain Error, and Rehaif Claims

  A felon, 
   charged with "felon in possession," 
      with a "felon in possession" prior, 
         may have known he was a felon.
United States v. Benamor, 2019 WL 4198358 (9th Cir. June 6, 2019, amend. Sept. 5, 2019), decision available here.
Hon. Judge Susan Graber
Players: Decision by Judge Graber, joined by Judges Bybee and DJ Harpool.  

Facts: Cops found a shotgun in a van which Benamor, a felon, had driven. Id. at *2. He went to trial on § 922(g) charges, and stipulated that he was a felon. Id. at *5. Benamor was convicted and appealed. Id. at *2.
  In the original opinion, Judge Graber denied Benamor’s challenge based on a failure to instruct on the “antique firearm” aspects of the statute. See COTW blog here
  Benamor then filed a petition for rehearing, arguing that – under Rehaif – there was insufficient evidence for a conviction because the government failed to prove he knew he was a felon when he possessed the old shotgun. Id. at *5. (Rehaif was decided after Benamor was convicted).

Issue(s): Under plain error review, was there "a probability that, but for the [Rehaif] error, the outcome of the proceeding would have been different"? Id. at *5. Did "this error in not instructing the jury to make such a finding affect Defendant’s substantial rights or the fairness, integrity, or public reputation at trial"? Id

Held: “[T]he third and fourth prongs of the plain-error test are not met. Here, there is no probability that, but for the error, the outcome of the proceeding would have been different. . . . When Defendant possessed the shotgun, he had been convicted of seven felonies in California state court, including three felonies for which sentences of more than one year in prison were actually imposed on him. The felonies included one case in which Defendant sustained convictions for being a felon in possession of a firearm and a felon in possession of ammunition; he was sentenced to five years and eight months in prison. Defendant spent more than nine years in prison on his various felony convictions before his arrest for possessing the shotgun. At a minimum, the prior convictions for being a felon in possession of a firearm and being a felon in possession of ammunition proved beyond a reasonable doubt that Defendant had the knowledge required by Rehaif and that any error in not instructing the jury to make such a finding did not affect Defendant’s substantial rights or the fairness, integrity, or public reputation of the trial.” Id. (italics in original).

Of Note: In the amended opinion, Judge Graber recounts the many ways in which she believes the government could have proved the Rehaif “knowledge” element (although, it bears noting, it did not). Specifically, the Court emphasizes Mr. Benamor’s previous felon in possession convictions (which Judge Grabers deems enough to “prove beyond a reasonable doubt” that Benamor knew of his status as a felon). This particular prior is an unfortunate criminal history for Mr. Benamor, but note that the opinion is not a per se rule for all felons with Rehaif claims. Depending on your client’s felony priors, a bit of light may still shine through this dark decision.

How to Use: Judge Graber seems tempted to hold that the mere fact of an old-school Old Chief stip to a felony prior “end[s] the discussion as to Defendant’s knowledge of his status as a felon.” Id. at *5. A close read of the opinion, however, reveals that the Ninth does not actually so hold. See id. 
  If your client does not have the regrettable fact of Benamor’s previous “felon in possession” conviction (and Benamor’s seven felony priors), don’t quite fold the tent yet on the Rehaif claims now perking in the Ninth – plain error will require a case-by-case analysis.
For Further Reading: Plain confused by plain error? For a very helpful outline written by experienced federal defense counsel, see “Plain-Error Review from Top to Bottom, or Slaying the Four-Headed Hydra,” available here.

Image of the Hon. Judge Susan Graber from

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


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Friday, September 06, 2019

1.     US v. Waggy, No. 18-30171 (9-5-19)(Graber w/Owens; dissent by Tashima). When does free speech become harassment? In this case, the 9th, in a divided panel, affirms the conviction for telephone harassment under the Assimilative Crimes Act for numerous calls. The defendant, a Marine veteran, called the VA Center (where he had been barred for disruptive behavior) and complained about, well, everything; stating he owned the land and facilities, he made statements about defending himself, seizing property, and laced his diatribe with vulgarities directed at the secretary to the director. Charged and convicted of telephone harassment, the 9th affirmed because the state statute was sufficiently constitutionally cabined: requiring specific intent to threaten and harass and not just to express speech.

Tashima dissent, arguing that the statute criminalizes speech – vulgar and rough and harassing – but public and political speech nonetheless.

Matt Campbell of the Fed Def of E. Wash. & Idaho (Spokane) mounted a spirited defense and raised interesting First Amendment issues.

The decision is here:

2.     Clark v. Chappell, No. 14-99005 (9-5-19)(per curiam w/Callahan, Ikuta, & Owens). The 9th affirmed the denial of habeas in this pre-AEDPA capital case, except for issue 2, which is remanded. Issue 2 concerned a juror declaration that during the punishment phase of the case, the juror consulted with a minister. The 9th remanded for reconsideration in light of Godoy v. Spearman, 861 F.3d 956 (9th Cir. 2017). Godoy sets a two-step framework for juror improper contact. The court must determine whether the contact was possibly prejudicial. If so, the contact is then deemed presumptively prejudicial, and the next step is for the state, bearing a heavy burden, to show that it was harmless. On remand, applying the test, the district court must determine if the contact was “sufficiently improper” and “raised a credible risk of affecting the outcome in the case.”

The decision is here:

Tuesday, September 03, 2019

Ward v. US, No. 17-35563 (9-3-19)(Paez w/Bea & Royal). The 9th affirms a mandatory ACCA sentence. The 9th concludes that a prior Minnesota state conviction for aiding and abetting a simple robbery is a “violent felony” under Stokeling v. US, 139 S.Ct. 544 (2019).  As required by Stokeling, the minimum force required includes an “amount of force necessary to overcome a victim’s resistance.” The 9th’s prior distinction between “substantial” and “minimal” force is erased by Stokeling’s test. 

Tough loss in a spirited categorical fight by Melissa Weinberg, Deputy Defender, Federal Defender Services of Idaho (Boise).

The decision is here:


Sunday, September 01, 2019

Case o' The Week: One Outta Three? May Earn the Full Three! - Acceptance of Responsibility and Relevant Conduct

Hon. Judge Marsha Berzon

  Ninth skeptical of "safe" sentencing . . . 
   United States v. Jeffrey Green, 2019 WL 3939348 (9th Cir. Aug. 21, 2019), decision available here.

Players: Decision by Judge Berzon, joined by Judges Tashima and W. Fletcher.  

Facts: While arresting Green cops found a gun in his pocket. Id. A later search produced two more pistols, locked inside a safe accessible from Green’s apartment. Id. The guns in the safe had been reported stolen. Id.
   Green plead open to the § 922(g) charge, admitting guilt for the gun in his pocket. Id. & n.1.
  [Ed. Note: Unlikely that the Rehaif knowledge element was charged, or admitted, in this open plea].
   Probation hit Green with higher guidelines for three guns, plus a “stolen weapon” guidelines bump for the guns in the safe. Id. The PSR denied Green acceptance, because he had not admitted to possessing the pistols in the safe. Id. Green objected, arguing the government had not proven that the firearms in the safe were in his possession. Id.
  At a sentencing evidentiary hearing, the district court heard Green express dismay in a post-arrest recorded call, when he learned a locksmith had been brought in to open the safe. Id. at *2. The court concluded Green was good for all of the guns, and for the stolen gun bump, and those higher associated guidelines. The district court left open the question of whether Green should get a reduction for acceptance of responsibility.
   At the second sentencing hearing, the court decided against the acceptance reduction -- before it heard the defendant’s allocution. Id. at *2.

Issue(s): “Must a district court decide on a defendant’s eligibility for an acceptance-of-responsibility reduction in his Guidelines level before listening to the defendant’s allocution?” Id. at *1.

Held: “Our answer is ‘No.’” Id.
   “A misapprehension of law occurred here. The district court believed that it had to determine whether Green had accepted responsibility before allowing Green his opportunity to allocute. That is not so.” Id. at *3.
   “We hold that the sentencing court erred by concluding that it could not first hear from the defendant before determining whether a reduction for acceptance of responsibility was warranted under the Sentencing Guidelines. We also conclude that this misapprehension was plain error and so vacate the sentence and remand for resentencing.” Id. at *7.

Of Note: Green’s counsel did not raise this issue on appeal – briefing was sought by the Ninth. Id. at *5. Judge Berzon gets to plain error review anyway, with a useful analysis of plain error factors. Id.
  Note the Ninth also rejects the government’s argument that Green waived the claim – a nice appellate-waiver distinction to tuck away for future use. Id. at 5 & n.4. 
  In an encouraging nod for Green, the Ninth concludes the plain error analysis by predicting he has a shot at a lower sentence on remand. Id. at *6.
   The Ninth’s “reasonable probability of a lower sentence” analysis is of particular interest – see “How to Use” below.

How to Use: Relying on the Ninth’s old Ginn case, the district court denied acceptance because Green only admitted guilt as to one gun.
  “Not so fast,” concludes Judge Berzon. Id. at *6 - *7.
  In Ginn, the defendant didn’t admit all charged counts. Here, by contrast, Green admitted the pocketed revolver in the charged count – he just didn’t admit additional “relevant conduct” guns. Id. Judge Berzon explains that a defendant doesn’t lose acceptance for not admitting relevant conduct (although acceptance may be at risk if a defendant falsely denies, or frivolously contests, relevant conduct. Id). at *6. Green, she muses, may thread the acceptance needle on remand. Id. at *7.
  Probation and AUSAs often want defendants to shoulder sins back to Adam’s apple to earn acceptance. This Green discussion on acceptance is thus the most intriguing part of this interesting decision. Read Green when navigating the “acceptance” labyrinth in the face of relevant conduct worries.
Hon. Judge Danielle Hunsaker
For Further Reading: Last week President Trump nominated Judge Danielle Hunsaker, an Oregonian appellate judge, to Judge O’Scannlain’s vacant Ninth seat. See article here.  
  Judge Hunsaker was jointly recommended by Oregon Senators Wyden and Merkley (D). See Ballotpedia entry here
  Like Ninth Circuit Judges Ikuta, Watford, and Owens, Judge Hunsaker was a Ninth Circuit clerk, having worked for Judge O’Scannlain early in her career. Id.

Image of the Hon. Judge Marsha Berzon from .

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


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