Monday, December 30, 2019

US v. Rodriguez-Gamboa, No. 19-50014 (12-27-19)(Hurwitz w/Wardlaw & Bataillon). This opinion asks a fundamental question: do geometric isomers of methamphetamine exist?  It is more than an existential question. If they do, or can be easily constructed, or are not wholly illusory, then the California meth statute is broader than the federal meth statute; there is no categorical fit; and the defendant’s state conviction is not an agg felony. If it is only a “theoretical” possibility, then the statutes may be one and the same, which carries bad news for the defendant.

This case has an odd posture. The defendant pled guilty; then withdrew her plea when Lorenzo I, 902 F.3d 930 (9th Cir 2018) came out, which found the state definition broader. That case was then replaced by Lorenzo II, a memo disposition. The memo disposition stated that the govt is not foreclosed in arguing that any difference between the two statutes is illusory. The argument is that both statutes make isomers of meth illegal, which actually exist, while geometric isomers do not. So here we are now.

The panel declined such organic chemistry findings. It remanded to the district court to determine whether geometric isomers are theoretical (Stay tuned to see if Schrödinger’s cat will make a theoretical appearance as a drug-detecting feline).

In other opinion housekeeping, the 9th held that the district did not abuse its discretion in allowing the defendant to withdraw her plea. The 9th also vacated the district court’s dismissal of the indictment (for failure to state an offense) in light of the remand.

Kudos to David Menninger, Deputy Federal Public Defender, for his vigorous defense. He has the right chemistry.

The decision is here:

Saturday, December 28, 2019

Case o' The Week: Ninth Mulls Geometric Skeptics - Rodriguez Gamboa and Lorenzo Challenges to Cal H&S Section 11378

  Feds attack California’s efforts to criminalize meth.
United States v. Rodriguez-Gamboa, 2019 WL 7206435 (9th Cir. Dec. 27, 2019), decision available here.

Players: Decision by Judge Hurwitz, joined by Judge Wardlaw and DJ Bataillon. 
  Righteous fight by CD Cal AFPD David Menninger.  

Facts: Rodriguez-Gamboa, a Mexican national, was removed after sustaining what she was told was an agg felony: possession of meth for sale, in violation of California Health & Safety Code § 11378. Id. at *2.
 She reentered the U.S. without inspection, was charged with illegal reentry in violation of 8 USC § 1326, and pleaded guilty. Id.
  The Ninth then held in “Lorenzo I” that § 11378 does not qualify as a “controlled substance offense” under the immigration statute, because the California statute applied to both “optical and geometric isomers” of meth. Id. See generally Lorenzo Blog entry here
  Rodriguez withdrew her plea. Government experts then declared that geometric isomers of meth do not, in fact, exist. Id. at *3. Relying on Lorenzo I, the district court dismissed the Information: the government appealed. Along the way, the Ninth replaced Lorenzo I with Lorenzo II, a mem dispo that arrived at the same result at Lorenzo I. Id. at *1.   

Issue(s): “We are asked to decide whether the definition of methamphetamine under California law is broader than the definition under corresponding federal law. The issue is pivotal in this case because . . . Rodriguez-Gamboa did not commit illegal reentry under 8 U.S.C. § 1326 if the California law is categorically broader than the federal one.” Id. at *1.

Held:The government’s argument rests entirely on its factual assertion that the geometric isomer of methamphetamine does not exist. But, the district court never made such a finding, and we cannot do so for the first time on appeal. . . . . Because resolution of the factual issue of whether geometric isomers of methamphetamine exist has the potential to inform our disposition of this appeal and future cases, we remand to the district court for the limited purpose of resolving that evidentiary issue in the first instance. The panel will retain jurisdiction over the appeal and address its merits after the district court reports its factual findings.Id. at *4. (internal citation and footnote omitted).

Of Note: Rodriguez-Gamboa is fascinating, because it highlights one of many tensions in the categorical analysis. The government argues that there is no “realistic probability” that Rodriguez was convicted of a broader “geometric isomer” offense in California, because such geometric isomers do not exist.
  Rodriguez shrugs, and points to the literal text of the California statute – a state law indisputably broader than the federal offense, because it criminalizes isomers not covered by the feds. Id. at *4.
  The Ninth resolves this tension by, well, putting if off for another day. After the district court does some fact-finding on geometric isomers, the same Ninth panel will then tackle the question. Until that dust settles, continue to preserve Lorenzo challenges to § 11378 priors.   

How to Use: A threshold appellate issue was whether Rodriguez should have been allowed to withdraw her guilty plea. Judge Hurwitz makes short work of that question. Fed. R. Crim. Proc. 11(d)(2)(B) permits a district court to allow a defendant to withdraw a guilty plea. A defendant has to show a “fair and just reason” for requesting the withdrawal. Id. at *3. “A change in the law can justify withdrawal of a plea,” id., -- and Lorenzo I fit the bill. Remember Rodriguez-Gamboa when changes in law makes a plea agreement less attractive.
For Further Reading: Do new Trump appointees await the Ninth in the New Year? 2020 will begin with ten Trump jurists on the Ninth (as Judge VanDyke takes Senior Judge Bybee’s seat). See Seniority List here.
 A trio of active Bush appointees remain in the Circuit: Judges Callahan, Milan Smith, and Ikuta. See Federal Bar Association summary here. 

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


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Friday, December 27, 2019

Carter v. Davis, No. 13-99003 (12-26-19)(Per Curiam w/Rawlinson, Clifton, & Bybee). The 9th affirmed denials of post-conviction petitions challenging the capital convictions and sentence. The principal issue was the irreconcilable breakdown between counsel and client. The matter was brought to the state trial court as trial approached, in trial, and post-trial. Counsel and client differed on approaches, and arguably whether counsel was barring client from testifying. The state courts reviewing the issues found no breakdown sufficient for relief. The 9th upheld. Under AEDPA, the 9th disavowed the 9th’s precedent holding that an irreconcilable conflict was per se reversible. Rather, because there was no Supreme Court precedent on the matter of per se reversal, the state decision was not unreasonable. The 9th also rejected IAC on trial strategy and approach.

Hard fought appeal by Mike Weinstein and Mark Yim, Deputy Federal Defenders, Cal Central (Los Angeles).

The decision is here:


Thursday, December 26, 2019

US v. Harrington, No. 18-30141 (12-24-19)(Fletcher w/Callahan & Christen). This is a double counting challenge that the 9th rejected. In an Indian country case, the 9th affirms a three level enhancement for strangling a spouse. The defendant pled to assault by strangling a spouse in Indian Country in violation of 18 U.S.C. § 113(a)(8). Sentencing is under the guideline for agg assault. It has a three level enhancement for strangling of a domestic partner. The 9th held this was not double counting because the agg assault guideline, 2A2.2, covers a wide range of agg assaults. It is not double counting because the offense level of agg assault does not exclusively cover this conduct.

Valiant effort by Jeremy Sporn of the Fed Def of Washington (Yakima).

The decision is here:


Monday, December 23, 2019

Andrews v. Davis, No. 09-99012 (12-16-19)(en banc: Opinion by Murguia; dissent by N. Smith). The 9th finds IAC in sentencing for failure to present mitigating circumstances. Specifically, social history and trauma of the defendant. This failure was unreasonable and prejudicial. It is even so under AEDPA. The dissenters argue that AEDPA requires deference.

The decision is here:

2. US v. Wang, No. 17-10275 (12-16-19)(M. Smith w/Graber & Watford). Cross references need to be followed. The 9th vacated sentences and remanded when the court, on sentencing in a fraud and mail conviction, and conspiracy, used the fraud guideline, 2B1.1, rather than the visa fraud guideline, 2L2.1, as required by the cross reference. The error was plain and prejudicial.

Congrats to Deputy Fed Defender Gus Kim (Los Angeles).

The decision is here:

Sunday, December 22, 2019

Case o' The Week: The Ninth Gets Cross at Christmas (Cross-References, that is!) - Wang and Sentencing Guidelines

  Steven Wang contemplated the snowy hills around FCI Herlong while mulling his 2025 release date  -- the end of his 114 month sentence.

  Then a week before Christmas, he gets this call from his Federal Public Defender . . . 
   United States v. Steven Wang, 2019 WL 6835332 (9th Cir. Dec. 16, 2019), decision available here. 

Hon. Judge Milan Smith
Players: Decision by Judge M. Smith, joined by Judges Graber and Watford. 
  Admirable win for CD Cal AFPD Gia Kim.  

Facts: Wang facilitated visa fraud in Guam, by mailing I-129 petitions to Immigration that contained false statements. Id. at *2. Among (many) other counts of conviction, Want pleaded guilty to mail fraud, under 18 USC § 1341. Id. at *4. At sentencing, the district court applied USSG § 2B1.1 – the guideline for general fraud offenses – to the mail fraud convictions. The district court imposed consecutive sentences, resulting in a 114 month term. Id.

Issue(s): “[Wang] appeals his sentences imposed in two cases that the district court sentenced in the same hearing. In the first case, Wang pleaded guilty to mail fraud, visa fraud, money laundering, and willful failure to pay over tax. In the second case, Wang pleaded guilty to conspiracy to commit visa fraud. The key issue in these appeals is whether the district court properly calculated the offense level for Wang’s mail fraud conviction pursuant to the United States Sentencing Guidelines. . . .” Id. at *1. “The district court applied § 2B1.1—the offense Guideline that covers general fraud offenses—to Wang’s mail fraud conviction pursuant to 18 U.S.C. § 1341. By applying § 2B1.1, the court ultimately calculated a Guidelines imprisonment range of 46 to 57 months. The court imposed a 57-month term in Wang’s first case, and a consecutive 57- month term in his second case, resulting in a total sentence of 114 months. Wang challenges the district court’s application of § 2B1.1 to his mail fraud conviction and the imposition of consecutive sentences.” Id.

Held:We hold that the district court erred by applying § 2B1.1 to calculate the offense level for Wang’s mail fraud count of conviction. The allegations underlying this count established an immigration visa fraud offense expressly covered by § 2L2.1. Therefore, the district court should have followed the § 2B1.1(c)(3) cross-reference and applied § 2L2.1. The district court’s error was plain, and it substantially affected the Guidelines range the court used to sentence Wang. We reverse . . . and remand for re-sentencing.Id. at *2.

Of Note: The Ninth corrects, on plain error, the district court’s failure to cross-reference to the correct (and much lower) immigration visa fraud guideline. Judge Milan Smith strongly signals along the way that the consecutive sentences imposed were un peu trop. Id. at *8. 
  Wade through the Guideline morass, and the ultimate holding in this opinion is a great holiday outcome: a corrected guideline range that is probably 25% of the “plainly erroneous” original sentence.

How to Use: In a Grinch-ish gambit, the government tries to dodge plain error by arguing that Wang waived this guideline argument. 

  Judge M. Smith is unimpressed. 
 The Ninth “reject[s] the Government’s suggestion that Wang affirmatively waived his objection. If a defendant has intentionally relinquished or abandoned an objection, we do not review for error, plain or otherwise . . . . We require 'actual evidence' that the defendant knew of his rights and nevertheless chose to relinquish them. . . . Wang’s failure to raise his objection to the district court is not actual evidence of intentional abandonment.” Id. at *3 & n.6 (internal citations and quotations omitted).
  When the government next tries to ruin the Whoville Feast, remember the Judge Smith's waiver-saver in footnote 6.
For Further Reading: Tragic opioid deaths have sparked a trend of federal prosecutions, as addicts are charged with mand-min offenses. See  generally Press Release here
  Turns out, however, that the massive federal resources poured into prosecuting addicts don't actually reduce the rate of fatal overdoses. 
  For a thoughtful piece on the true realities of heroin and fentanyl offenses, see Vaidya Gullapali, Seeing the Humanity of People Who Sell Drugs, available here

Image of the Honorable Judge Milan Smith from

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

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Sunday, December 15, 2019

Case o' The Week: Ninth Says No to Iffy Quo - Kimbrew and federal bribery statute defenses

  It’s who you know, for quid pro quo.

United States v. Kimbrew, 2019 WL 6693744 (9th Cir. Dec. 9, 2019), decision available here.

Players: Decision by Judge Nguyen, joined by Judge Miller and ED NY DJ Vitaliano.  

Facts: Michael Kimbrew worked as a field representative for a Congresswoman. Id. at *1. He met with owners of a marijuana dispensary, and implied he could protect them despite their lack of a permit. Id.
 The FBI got wind of this overture.
  An undercover FBI agent, posing as the owner of the marijuana shop, met with Kimbrew. Id. at *2. Kimbrew assured the undercover agent that he had substantial influence in the City of Compton, a close relationship with the City Attorney, and the ear of the Congressman. Id. Kimbrew solicited and received a $5,000 payment from the undercover agent. Id.
  Kimbrew was charged with bribery of a public official, in violation of 18 U.S.C. § 201(b)(2)(A). Id. He was convicted after a jury trial. Id.

Issue(s): “Michael Kimbrew appeals his conviction[ ]. . . for . . . bribery of a public official. . . . Kimbrew does not dispute that he took money in exchange for a promise that he made as a federal public official. He instead argues that he promised to do the impossible, so his conduct falls outside the purview of § 201 bribery.” Id. at *1. “Kimbrew . . . contends that the government failed to prove that he could ‘make good’ on his promises, and therefore he did not commit an ‘official act’ within the meaning of the bribery statute.” Id. at *3.

Held: “We are not persuaded, and we affirm.” Id. at *1. “Kimbrew’s argument is both factually and legally incorrect.” Id. at *3. “The evidence shows that Kimbrew and the City Attorney knew each other, and that both worked out of Compton City Hall. . . Although the City Attorney denied that Kimbrew had any influence over him, the jury also heard recorded conversations in which Kimbrew attested that he did in fact have such influence.” Id. at *3. “Similarly, the jury could have reasonably concluded that Kimbrew had a means of influencing the Congresswoman’s actions.” Id. at *4.
  “The statutory definition of ‘official act’ contains broad temporal language that indicates the question or matter at issue need not currently be pending or capable of being brought before a public official . . . This language encompasses scenarios in which a briber might anticipatorily seek to induce official action relevant to a circumstance yet-to-come.” Id. at *4. “[ ][T]he prosecution was not required to prove that Kimbrew could achieve the outcome he promised. The relevant inquiry, instead, is whether Kimbrew agreed to use his official position to exert pressure on another official to perform an ‘official act,’ or to advise another official, knowing or intending that such advice will form the basis for an ‘official act’ by another official. . . . Nowhere in the statute or in the governing case law is there a requirement that the bribe recipient be able to succeed in exerting that pressure or persuading through his advice to realize the desired result.” Id. (internal citations and quotations omitted).  

Of Note: Quid pro quo
  Even an unsuccessful quo, or one tied to a contingency, is a federal bribe if the quid is proposed by a government official. Id. at *4. As Judge Nguyen explains, “a bribe tied to a contingency is no less a bribe.” Id. 
  Timely insight from the Ninth Circuit, into the federal bribery statute.

How to Use: Judge Nguyen warns that the “reach of § 201 is not unlimited.” Id. at *5. There must be nexus between the official’s position, and the quo he promises. Id. If the quos are more attenuated than those in Kimbrew, a defense to the federal bribery statue may be available.
For Further Reading: Last week the Senate confirmed the ninth and tenth Trump appointees, for the Ninth Circuit.

The Hon. Judge Bumatay (L), and the Hon. Judge VanDyke (R)

For an interesting overview of the historical context of these appointments, see “The changing makeup of the ‘nutty’ 9th Circuit,” available here

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


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Monday, December 09, 2019

US v. Kimbrew, No. 18-50251 (12-9-19)(Nguyen w/Miller & Vitaliano). The 9th affirms convictions for attempted extortion and bribery of a public official. The case arises from a medical marijuana dispensary. The aide visited the business, and said that it did not comply, and could have it shut down. Then an undercover agent followed up and exchanged funds. The aide explained that he could exert influence with the Congresswoman and the City Attorney. The defense was that the aide had no such power to control the decision makers. The 9th held that he could have had influence, and this was a jury decision – the jury could have believed that the aide, who knew the City Attorney, might have exerted influence, despite the City Attorney’s present denials.

The decision is here:

Sunday, December 08, 2019

Case o' The Week: An Intimidating Opinion - Burke and Johnson COV, Armed Robbery Involving Drugs

  The Ninth's Johnson analysis in Gobert Burke concludes federal offense is a C.O.V.
  United States v. Burke, 2019 WL 6462363 (9th Cir. Dec. 2, 2019), decision available here.

Hon. Judge Carlos Bea
Players: Decision by Judge Bea, joined by Judges Farris and Christen. Hard-fought appeal by AFPD David Ness.

Facts: Burke walked into a Wallgreen’s, pointed a gun at an employee, demanded OxyContin, and left with around 900 pills. Id. After a high-speed car chase, Burke was arrested and charged federally.
  He was charged with armed robbery involving controlled substances, in violation of 18 U.S.C. § 2118(c)(1). Id. Riding that first count was a second, § 924(c) charge. Id.
  Burke pleaded guilty, and later filed a § 2255 (habeas) challenging the § 2118(c)(1) conviction as a “crime of violence” basis for the § 924(c) offense.

Issue(s): “The sole question presented by this appeal is whether the offense of armed robbery involving controlled substances described in 18 U.S.C. § 2118(c)(1) is a crime of violence under 18 U.S.C. § 924(c)(3)(A).” Id. at *1. “Burke argues that robbery involving controlled substances ‘by force or violence or by intimidation’ does not constitute a crime of violence. Although such robbery ‘by force or violence’ would undoubtedly constitute a crime of violence, Burke argues that the least violent form of the offense—robbery involving controlled substances through mere ‘intimidation’—does not meet the requirements for a crime of violence.” Id. at *2.

Held: “We hold that it is.” Id. at *1.
 “There is simply no room to find robbery involving controlled substances under § 2118(a) is anything but a crime of violence under § 924(c)(3)(A)’s elements clause following Gutierrez and Watson’s binding precedent. The least violent form of each offense is the taking of something (money, a motor vehicle, or controlled substances) by intimidation, which under Gutierrez and Watson “necessarily entails” at a minimum the “threatened use of violent physical force” to qualify the offenses as crimes of violence under § 924(c)(3) (A)’s elements clause. Gutierrez, 876 F.3d at 1257; Watson, 881 F.3d at 785. Because robbery involving controlled substances ‘by force or violence or by intimidation’ is a crime of violence, so too is armed robbery involving controlled substances, which requires proof of all the elements of unarmed robbery involving controlled substances. See 18 U.S.C. § 2118(c) (1). Armed robbery involving controlled substances under § 2118(c)(1) thus cannot be based on conduct that involves less force than unarmed robbery involving controlled substances. For these reasons, armed robbery involving controlled substances under § 2118(c)(1) qualifies as a crime of violence under § 924(c)(3)(A).” Id. at *3.

Of Note: The Johnson analysis in Judge Bea’s Burke decision may seem similar to the Johnson analysis in Judge Bea’s recent Gobert decision, discussed in last week’s memo. See Gobert Blog Entry here
  These two Johnson decisions are indeed similar. 
  Very similar. 
  Actually, a fair chunk of the Johnson analysis in these two decisions are verbatim repetitions. Compare Burke, 2019 WL 6462363 at *2, with Gobert, 2019 WL 6316678 at *2.
   While the defense bar remains excited about the sea change presented by Johnson and Davis, Burke and Gobert suggest that the Ninth may not quite share our enthusiasm.

How to Use: As in Gobert, in Burke the Ninth held that the least dramatic way of committing this offense – robbing for drugs with a gun, by using “intimidation – necessarily involved the threatened use of violent force.
   Appellate folks gnash their teeth, but the opinions merit some trial brainstorming. Are there opportunities for creative jury arguments on whether “intimidation” really was a “threatened use of violent physical force?”
For Further Reading: On December 5th the Senate GOP tweeted “Big News”: two more Ninth Circuit judges will be confirmed next week.

Ninth Circuit Judicial Nominees VanDyke and Bumatay
See Senate GOP Tweet here

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


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Wednesday, December 04, 2019

US v. Burke, No. 17-35446 (12-2-19)(Bea w/Farris & Christen). The 9th affirms the denial of a 2255 petition involving the use of a firearm during a “crime of violence” (COV). The 9th holds that armed robbery involving a controlled substance under 18 U.S.C. § 2118(c)(1) is a COV under 924(c)(3)(A)’s elements clause. Because the lesser offense of robbery involving controlled substances “by force or violence or by intimidation” is a COV under 924(c)(3)(A)’s elements clause, so too is armed robbery involving controlled substances.  The 9th’s precedent in US v. Gutierrez, 876 F.3d 1254 (9th Cir. 2017) and US v. Watson, 881 F.3d 782 (9th Cir. 2018) involving robbery both held that intimidation entails the threat of use of physical force and this are COVs. The 9th finds this must apply to armed robbery too.

The decision is here:

Monday, December 02, 2019

Jones v. Shinn, No. 18-99006 (11-29-19)(Clifton w/Rawlinson & Watford). This is a 9th Cir CHU case. The 9th affirms the granting of habeas relief in this capital case. Finding Martinez procedural relief, the 9th then grants relief for IAC by trial counsel for failure to adequately investigate the cause of a child’s injuries, dating and timing of the bruises and injuries, and who may have caused the injuries.

Significantly, the 9th makes clear that a Martinez hearing must by necessity include a hearing on the merits to determine the extent of any IAC in an evidentiary context. It makes no sense and is not judicially economical to separate the hearings.

Congrats to Carey Sandman and Karen Smith, AFPDs, FPD Az (CHU).

The decision is here:

US v. Gobert, No. 17-35970 (11-26-19)(Bea w/Farris & Christen). The 9th affirms the denial of a habeas challenging whether an assault with a dangerous weapon under 18 U.S.C. § 113(a)(3) is a COV. The 9th holds that it is.

The petitioner argues that a display of force may cause immediate bodily harm. The 9th finds though that an AWDW has an element of force as required by Johnson. The 9th looks to US v. Juvenile Female, 566 F.3d 943 (9th Cir 2009)(similar statute) and US v. Calvillo-Palacios, 850 F.3d 1285 (9th Cir 2017)(Texas statute). The 9th concludes that there is “simply no room” to find AWDW to be anything else but a COV under these precedents. The least violent form of the defense is the threat to use violent force.

The decision is here: