Sunday, April 26, 2020

Case o' The Week: The Ninth Giveth and SCOTUS Taketh Away (then the Ninth Giveth Again!) - Baldon and California Carjacking

Hon. Judge Mark Bennett

  Lost a win, then won again!
United States v. Baldon, 2020 WL 1921963 (9th Cir. April 21, 2020), decision available here.

Players: Decision by Judge Bennett, joined by Judge Lee and D.J. Piersol.

Facts: Baldon pleaded guilty to possession with intent to distribute meth, in violation of 21 USC § 841(a)(1) and (b)(1)(C). Id. at *1. Using a “modified categorial approach,” the district court looked at charging documents for Baldon’s prior California carjacking convictions, to determine whether they were crimes of violence under USSG § 4A1.1(e). Id. at *2. (The carjacking statute is California Penal Code Section 215).
  After finding the prior convictions were crimes of violence, the district court imposed a two-point increase to Baldon’s criminal history, and sentenced Baldon to 184 months. Id.
   A previous Ninth Circuit decision, Solorio-Ruiz, had held that California carjacking is not a crime of violence under a different statute. See Solorio-Ruiz v. Sessions, 881 F.3d 733 (9th Cir. 2018). See id. at *2. After sentencing, the Supreme Court decided Stokeling v. United States, –––U.S. ––––, 139 S. Ct. 544, 202 L.Ed.2d 512 (2019). On appeal, the government argued Stokeling undermined the rational of Solario-Ruiz.

Issue(s): “[W]hether Baldon’s prior convictions for carjacking under section 215 1 of the California Penal Code qualify as crimes of violence under U.S.S.G. § 4A1.1(e) . . . .” Id. at *1. “Can a section 215 conviction be based on fear of injury to property alone?” Id. at *5.

Held: The Supreme Court’s clarification of ‘violence force” in Stokeling as “any force sufficient to overcome a victim’s physical resistance) is “clearly  irreconcilable” with our reasoning in Solorio-Ruiz. Our  opinion rested on the analytical distinction between substantial and minimal force. This distinction no  longer exists. See Ward v. United States, 936 F.3d 914, 919 (9th Cir. 2019). As a result, Solorio-Ruiz’s holding is no longer good law.” Id. at *3.
 But . . .
  “We hold that section 215 is not a categorical crime of violence, and thus the district court erred in calculating Baldon’s sentence.” Id. “Baldon argues that section 215 may be violated through fear of injury to property alone, without any fear of injury to a person, and therefore, the statute “criminalizes a broader range of conduct than the federal definition captures.” Edling, 895 F.3d at 1155. We agree.” Id. at *5.

Of Note: The Ninth giveth, the Ninth taketh away. While Baldon won the “crime of violence” issue, he lost a challenge to a two-level enhancement for possessing a gun during the offense. See id. at *8 (citing USSG § 2D1.1(b)(1)). The gun was in a backpack that contained drugs, found in a storage unit tied to Baldon. Id.   
  Distinguishing some (good) Ninth law, Judge Bennet finds that Baldon has “constructive possession” of the gun, and upholds the two-level bump. Id. at *9. The gun-increase under Section 2D1.1 is a fuzzy, fact-specific spectrum: for better or worse, Baldon is another entry in that continuum.

How to Use: The government beefs about the Ninth’s carjacking decision, complaining there have been no published California decisions citing the statutory definition of fear (that is, no decisions permitting a carjacking conviction when there was fear of injury to property). Id. at *6. Judge Bennett is unimpressed. As he explains, “[W]e can rely, and have previously relied, on unpublished California cases to show that the state has applied the statute in a non-generic manner. . . . And, importantly, the jury instructions routinely used by California courts include fear of injury to property. It would be one thing if the fear of injury to property element were simply invented by creative defense lawyers. It is quite another when that element is part of the standard California jury instructions that are perhaps given in every case.” Id. at *8 (citations omitted).
  Use Baldon to brush back on the government’s unduly restrictive view of the state law, used to show a “realistic probability” that a state offense is broader than the generic definition of a crime.
For Further Reading: “As district attorneys around the Bay Area are breaking character and releasing hundreds of pretrial detainees to prevent the spread of COVID-19 in jails, the local wing of the U.S. Department of Justice has taken a strikingly different tack. Amid the global pandemic — and as cases of the novel coronavirus mount across California and the United States — the U.S. Attorney’s Office for the Northern District of California has refused to release almost any of the more than 400 federal inmates held in the Santa Rita Jail, most of whom have been charged with crimes but not yet convicted.” Nate Gatrell, Santa Rita Jail houses hundreds of federal detainees. Despite COVID-19 outbreak, U.S. Dept. of Justice has opposed releasing all but one, San Jose Mercury News, Apr. 24, 2020. 

  For a thoughtful piece on a deeply troubling policy from the NorCal USAO, see Mr. Gatrell’s article here.

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


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