Sunday, August 23, 2020

Case o' The Week: Of Form 12s and Aggravated Mopery - Cate and Challenges to Convictions via Supervised Release

Q: Is it a federal crime to possess a gun with a felony prior, after having been convicted of a state offense carrying a max term of three months? 

A: Close enough for government work (and a fifteen month supervised release violation sentence!)

  United States v. Cate, 2020 WL 4914049 (9th Cir. Aug. 21, 2020), decision available here.

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

 Hard-fought appeal by (former) AFPD Matt Campbell, Fed. Defenders of E. Wa. & Idaho (now the Federal Public Defender of the United States Virgin Islands).

Facts: Cate was convicted of § 922(g)(1): having a gun after being convicted of a Washington third-degree-assault conviction. Id. at *1. He was later charged with violating supervised release. While that Form 12 was pending, the Ninth held that the state offense of conviction had a maximum sentence of the state sentencing range (here, three months). Id. at *2 (discussing United States v. Valencia-Mendoza, 912 F.3d 1215 (9th Cir. 2019).

  Cate moved to terminate supervised release, arguing that this change in law meant that the underlying state offense was no longer a felony. Id. at *1.

   The district court held that Cate couldn’t challenge his federal conviction through terminating supervised release: he would have to pursue a habeas motion under 28 U.S.C. § 2255. Id. at *2.

  Cate’s challenge was denied, he was violated, and sentenced to 15 months. Id.

Issue(s): “In [United States v. McAdory, 935 F.3d 838, 840–41 (9th Cir. 2019)], we applied Valencia-Mendoza to hold that a defendant's convictions under Washington law were not felonies for purposes of § 922(g)(1) . . . . Cate . . . relies on McAdory to argue that his Washington offense was not a felony for purposes of § 922(g)(1) because the sentence to which he actually was exposed was less than a year.” Id. at *3.

Held:Although this may be correct, the supervised release hearing was not the proper proceeding in which to challenge his underlying federal conviction.” Id. at *3.

  “[W]e agree with the district court that the validity of an underlying conviction cannot be challenged in a supervised release revocation proceeding.” Id. at *1. “Just as § 3583(e) does not authorize a district court to modify or rescind an allegedly illegal condition, it does not authorize a district court to vacate an allegedly illegal conviction. Instead, the underlying conviction must be collaterally attacked in a proceeding under § 2255, not in a supervised release revocation proceeding. . . . . In so holding, we join every other circuit to have addressed the question.” Id. at *3.

Of Note: Fifteen months custody in a COVID-infested federal prison, for a supervised release violation off of a federal conviction that isn’t actually a crime? Surely there are other equitable ways to skin this unjust cat?

The defense tried. It logically argued for a reduced sentence under § 3553(a)(1), since the defendant shouldn’t be on supervised release in the first place. Id. at *4. The district court was unmoved – and distressingly, so was the Ninth. Id. The Ninth concludes that the D.J.’s initial reference was a habeas path of relief was enough to check the sentencing box, and the custodial sentence was “reasonable.” Id.

Note some bad facts lurking beneath this decision, including a (probably drunken) vehicular manslaughter conviction that prompted the Form 12 in the first place. Id. at *1. Bad facts make bad law: Cate is a disappointing tolerance of supervision (and custodial terms for violations!) despite an unlawful underlying federal offense.

 How to Use: Judge Tashima concedes that this scenario is vulnerable to attack on direct appeal. Id. at *3 & n.2. And the tortuously slow road of habeas relief remains available as well. Id. at *1. Can a new Form 12 (and custody) be stayed while a quickly-filed § 2255 habe is litigated? Presumably (though unlikely that Cate’s DJ would have been so inclined given the reported outcome in this case).                                         

For Further Reading: Ten of the top ten COVID infection clusters in the United States are linked to correctional facilities. For a compelling editorial calling for decarceration, see Coronavirus cases in prison are exploding: More people need to be let out, available here.


Image of “three months” from



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




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