Sunday, December 27, 2020

Case o' The Week: The Real McCoy - Compassionate Release and "Second Look" Sentencing

 “We return to the Second Circuit's description of the First Step Act and its amendment of § 3582(c)(1)(A): an “incremental” change that does not mandate more lenient sentences across the board but instead gives new discretion to the courts to consider leniency.”


United States v. McCoy, 981 F.3d 271 (4th Cir. 2020), decision available here.

 [Ed. Note: A slow spell in the Ninth lets us flag an important – and time-sensitive – recent Compassionate Release case out of the Fourth Circuit].

Players: Decision by Judge Harris, joined by Judges Diaz and Thacker.

Big win for AFPDs Paresh Patel and Shari Silver Darrow, District of Maryland Office of the Federal Public Defender.   

Facts: These appeals were from Compassionate Release grants for defendants convicted of “stacked” § 924(c) charges. Id. at 274. Their sentences ranged from 35 to 53 years. Id. Because of the First Step Act, if sentenced today the terms for these defenders would be 30 years less. Id.

  After the defendants’ Compassionate Release motions were denied by the BOP, counsel litigated for reductions in the district court. Id. at 277.

  The lead appellee, McCoy, was nineteen when he received a 35 year sentence. Id. McCoy had served seventeen years when the district court granted his C/R motion and reduced his sentence to time served. Id. The Fourth consolidated several government appeals of these resentencing decisions.

Issue(s): “[T]he government presents two primary arguments . . . . First, the government contends that treating a disproportionately long sentence as an ‘extraordinary and compelling’ reason for a potential sentence reduction is not ‘consistent with applicable policy statements issued by the Sentencing Commission,’ as required by § 3582(c)(1)(A).” Id. at 280.

  “And second, the government argues, even if consideration of the defendants’ § 924(c) sentences were not precluded by § 1B1.13, the First Step Act's elimination of sentence-stacking still could not constitute an ‘extraordinary and compelling reason’ for compassionate release . . . .” Id.

Held: Issue One: “[W]e agree with the Second Circuit and the emerging consensus in the district courts: There is as of now no ‘applicable’ policy statement governing compassionate release motions filed by defendants under the recently amended § 3582(c)(1)(A), and as a result, district courts are empowered . . . to consider any extraordinary and compelling reason for release that a defendant might raise.” Id. at 285 (internal quotations and citation omitted).

  Issue Two: “[W]e find that the district courts permissibly treated as ‘extraordinary and compelling reasons’ for compassionate release the severity of the defendants’ § 924(c) sentences and the extent of the disparity between the defendants’ sentences and those provided for under the First Step Act. We emphasize, as did the district courts, that these judgments were the product of individualized assessments of each defendant’s sentence. And we note that in granting compassionate release, the district courts relied not only on the defendants’ § 924(c) sentences but on full consideration of the defendants’ individual circumstances . . . .” Id. at 286.

Of Note: Critical to this great outcome is dusty guideline § 1B1.13, that predated the First Step Act. Short of a quorum, the Sentencing Guideline Commission has been unable to update this guideline and thus slam the door on this opportunity. See id. at 282 & n.6.

When the Commission does get a forum, will its skepticism of Compassionate Release change?  Who knows – but why risk it? This window of opportunity may not last forever: the time for these “Second Look” motions is now.

How to Use: Stacked § 924(c)s are great candidates for these motions. So are drug cases with changed mand mins.

For a great holiday example, check out United States v. Blanco, CR 93-20042 CW (N.D. Cal. Dec. 14, 2020), Ord., Dkt. 2784. 

In Blanco, ND Cal FPD Appellate Chief Carmen Smarandoiu brought a Compassionate Release motion to earn a resentencing on a life mand-min drug case. The resentencing result? Time served after twenty-five years in, and a “lifer” home for Christmas!                                           

For Further Reading: Like the A.G. slot, President Biden has been mum thus far on his potential Sentencing Commission nominees.

  How about another shot for a great President Obama nominee, whose nomination expired with the 114th Congress? See Press Release here 


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



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Sunday, December 20, 2020

Case o' The Week: Jury Finding Not So Binding - Hardiman and Pimentel-Lopez challenges

 Per curiam coal, in the defense stocking . . .

  United States v. Hardiman, 2020 WL 7350248 (9th Cir. Dec. 15, 2020), decision available here.

 Players: Per curiam opinion with Judges Paez and Owens, and Sr. D.J England, Jr. Hard-fought appeal by ND Cal CJA stalwart James Thomson, along with Ethan Stone.

 Facts: At trial, a jury found Hardiman responsible for distributing at least 28 grams, but less than 280 grams, of crack. Id. at *1. At sentencing the district court rejected the jury’s finding, held Hardiman responsible for more than 280 grams, and imposed a guideline sentence. Id. 

 After Hardiman’s direct appeals were final, the Ninth decided United States v. Pimentel-Lopez, 859 F.3d 1134 (9th Cir. 2016). In Pimentel-Lopez, the Ninth held “that a district court is not entitled to make a drug quantity finding in excess of that found by the jury in its special verdict.” 2020 WL 7350248, *1 (internal quotations and citation omitted); see generally blog here

  After Pimentel-Lopez, the district court denied Hardiman’s § 2255 and § 3582(c)(2) motions.” Id.

 Issue(s): Issue One: “Hardiman argues that the district court erred by denying his § 2255 motion because, under Pimentel-Lopez, the court violated his Sixth Amendment rights when it found for sentencing purposes that he was responsible for distributing a higher amount of drugs than the jury specifically found.” Id.

 Issue Two: “Hardiman also argues that the district court erred by denying his § 3582(c)(2) motion in light of Pimentel-Lopez. Hardiman filed a § 3582(c)(2) motion to reduce his sentence based on Amendment 782 to the Guidelines. . . . The district court determined that Amendment 782 retroactively reduced Hardiman's base offense level and that he was eligible to be resentenced pursuant to a new Guidelines range, but that the 18 U.S.C. § 3553(a) factors and the circumstances of his case did not warrant a sentencing reduction.” Id. at *3.

 Held:  Issue One: “[W]e hold that Pimentel-Lopez does not apply retroactively to cases on collateral review under Teague v. Lane . . . .” Id. at *1. “Pimentel-Lopez announced a ‘new’ rule of criminal procedure which is not retroactive under Teague. Accordingly, Pimentel-Lopez is inapplicable to Hardiman's § 2255 motion, and the district court did not err by denying the motion.” Id. at *3.

  Issue Two: “Hardiman’s arguments about Pimentel-Lopez “were not affected by” Amendment 782 and therefore are outside the scope of the proceeding authorized by § 3582(c)(2) . . . Moreover, even under Pimentel-Lopez, a district court has the discretion in its assessment of the § 3553(a) factors to consider a drug quantity higher than the amount specifically found by the jury. . . .” Id. at *3 (footnote, quotations and citation omitted).

 Of Note: Should the § 3582(c)(2) decision be reviewed for abuse of discretion, plain error, or de novo? The Ninth dodges this standard of review – note that the standard of review issue remains open. Id. at *3 & n.4.

 How to Use: The Ninth doesn’t mention that Mr. Hardiman is serving 188 months – despite the fact that the jury found lower drug amounts than the sentencing court. There’s no habeas help, and no drug resentencing love. Do any options remain? Mull whether there is there any Compassionate Release action, litigation that permits revisiting unjust sentences imposed under laws that have since changed? (Note that Compassionate Release is a different subsection of § 3582).                                            

For Further Reading: The science is clear: inmates should be near the front of the line for the COVID vaccine. For a compelling podcast explaining why, see NPR piece here

  California is one of the few states that has prisoners in the list for vaccine in the next three months. See LA Times article here. 

  The CDC votes today on the next round of the vaccine schedule – here’s hoping our poor incarcerated clients don’t get washed out by the massive lobbying effort now underway. See CNN article here.  


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



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Friday, December 18, 2020

US v. Hardiman, No. 16-50422 (12/15/20) (per curiam w/Paez, Owens, & England). This Sixth Amendment appeal from a habeas denial revolves around US v. Pimentel-Lopez, 859 F.3d 1134 (9th Cir. 2016). In Pimentel-Lopez, the 9th held that a court could not make a drug quantity finding over that found by a jury. The petitioner argues Pimentel-Lopez applies to his case post-conviction. The 9th disagrees, characterizing Pimentel-Lopez as a “new rule” under Teague v. Lane, 489 US 288 (1989) and thus not retroactive. The 9th also rejected the 3582(c)(2) argument, under amend. 782 (reducing base offense level). The court determined that a reduction was not warranted; Pimentel-Lopez falls outside of that consideration.

The decision is here:

Sunday, December 13, 2020

Case o' The Week: Stretch on Loss Gets Sentence Tossed - Gainza and Guideline Loss Calculations for Identity and ATM Schemes

 "The lesson in this case is that trying is not the same as succeeding."

United States v. Gainza, 2020 WL 7222136, *1 (9th Cir. Dec. 8, 2020), decision available here.

Players: Decision by Judge McKeown, joined by Judge Nguyen and visiting DJ Vitaliano. Nice win for ED AFPD David Porter.  

Facts: Gainza and his co-D set up “skimmers” in ATMs, along with hidden cameras to capture pin numbers. Id. at *1. Though over eight hundred people used these compromised ATMs, only 37 reported fraudulent access. Id. at *2.

  Gainza and his co-D were arrested, charged with conspiracy to possess at least fifteen counterfeit access devices, bank fraud, access device fraud, possession of device-making equipment, and aggravated identity theft. Id. They plead guilty to all charges.

  Over defense objection, at sentencing the district court calculated guideline loss by multiplying the number of people that visited the ATMs by $500 (resulting in loss amounts of several hundred thousand dollars). Id. The pair were hit with a twelve offense level by virtue of these loss amounts, and sentenced to four and five years. Id.

 Issue(s): “The issue on appeal . . . is how much loss the scheme caused.” Id. at *1. “[T]he Guidelines recommend that a minimum of $500 in loss be applied for each account number that Gainza and Gabriele-Plage obtained. The pivotal question, then, is how many account numbers [they] obtained.” Id. at *3.

Held: “In calculating the loss amount, the district court concluded that Gainza and Gabriele-Plage obtained account information for each person who visited the ATMs while the cameras and skimmers were installed. But while there is evidence that Gainza and Gabriele-Plage hoped to obtain account information for each ATM customer, there is insufficient evidence that they succeeded in doing so. The district court's conclusion to the contrary was clear error, so we promptly vacated the sentences and remanded the cases for resentencing.” Id. at *1.

  “The government offered insufficient evidence that the defendants obtained or used 852 account numbers. And while the government showed how many people used the ATMs while the skimmers were installed, it did not provide any evidence of the skimmer success rate, either for these transactions or even for hypothetical transactions. Without this evidence, the record cannot support a finding that Gainza and Gabriele-Plage obtained information ‘that can be used to initiate a transfer of funds’ from each ATM customer. 18 U.S.C. § 1029(e)(1). And while it is true that the sentencing judge ‘need only make a reasonable estimate of the loss,’ U.S.S.G. § 2B1.1 cmt. n.3(C), that estimate must be based on facts, not conjecture.” Id. at *3.

 Of Note: The Ninth had decided the sentences were erroneous several months before the opinion was ready. To its great credit, way back in October the panel issued an order “vacating the sentences and remanding for expeditious sentencing.” Id. at *1 & n.1. The happy result? Both defendants were sentenced to time served, long before this opinion was even issued. Id. This is an admirable approach (particularly in the era of COVID): would be nice to see these expedited orders more often, in defense sentencing wins.

 How to Use: Note an important caveat: Judge McKeown doesn’t say the government couldn’t prove possession of cards or account numbers – just that it failed to do so here. She works through cases where the government met that burden, where defendants had spreadsheets with credit card numbers, possessed stolen cards, or used account numbers. Id. at *3. Very fact-based stuff, making Gainza an important Guidelines read.                                            

For Further Reading: Who will get the COVID vaccines, and when? In a courageous letter, Oregon Chief D.J. Hernandez argued that criminal defendants should get a shot (pun intended). See article here

  California is deciding vaccine schedules now. Incarcerated folks should be in Phase 1b, before the judiciary. See OpEd here.  


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





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Thursday, December 10, 2020

1. US v. Gainza, No. 19-10430 (12-8-20)(McKeown w/Nguyen & Vitaliano). The 9th vacated and remanded for resentencing after the court erroneously enhanced a sentence for the number of victims. The enhancement came because of an ATM skimmer scheme. The government had the number of people who used the ATM on camera; but the user number does not translate into the success rate. The defendants did not make fraud claims on all the people who used the ATMs. Sometimes the skimmers were discovered; other times things went awry. The defendants were caught. At sentencing, the court simply multiplied the total (852) of users by $500. This resulted is a loss range which increased the offense range by 12.

The 9th found no evidence of 852 victims. The minimum number was 37 (number of fraud claims). The government could have used an expert to testify about the success rate in the schemes; or evidence of similar frauds and the percentage of losses; or some estimate grounded on evidence.  However, the government and court simply could not use the number of victims that appeared on the camera at the ATMs.

Congrats to David Porter, AFPD, Cal E (Sacramento)(for Gainza) and Kresta Daly, CJA, for co-defendant.

The decision is here:

2. US v. Sineneng-Smith, No. 15-10614 (12-8-20)(Tashima w/Berzon & Hurwitz). The 9th affirms convictions on 1324 immigration offenses for encouraging and inducing aliens to remain in the US for financial gain. On remand from SCOTUS, for reconsideration, after “shorn[ing]” a finding of constitutional over breadth, the 9th found that government presented sufficient evidence that the defendant misled and induced the victims into believing they could get a green card from a 245i Labor Certification. They could not: they retained the defendant believing they moved to the front of the queue for permanent residency. They were encouraged to keep applying for a Labor Certificate all the while standing in front of a legally closed door. This misleading was fraudulent and fell within the statute.

The decision is here:

Sunday, December 06, 2020

Case o' The Week: Six v. Five, Means Two v. Eight -- Collazo En Banc, and Mens Rea for 841 Drug Cases and 846 Conspiracies

“This should be an easy case.” 

The Honorable Judges Sandra Ikuta (Majority Opinion), and William Fletcher (Dissent)

United States v. Collazo, 2020 WL 7052298 (9th Cir. Dec. 2, 2020) (en banc) (W. Fletcher, J., dissenting), decision available here.

 Players: En banc decision by Judge Ikuta, joined by Judges M. Callahan, M. Smith, Jr., Miller, Bade and Bress.

  Thoughtful dissent by Judge W. Fletcher, joined by C.J. Thomas, and Judges Nguyen, Watford and Hurwitz.

  Hard-fought battle by former Fed. Def. San Diego AFPD Ben Coleman, among many other amicus allies.   

 Facts: Collazo his co-D’s were tried for, among other things, violating 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), 841(b)(1)(B)(i), and 846. Id. at *3. The case involved schemes to smuggle drugs into jails.

  The jury was instructed that, if they found the defendants guilty of these conspiracy charges, they would have to make special findings as to the type and amounts of drugs if they were “reasonably foreseeable or fell within the scope of the [conspiracy’s] agreement.” Id.

  The jury found requisite drug amounts to trigger big mand-mins for six defendants. Id. at *4. See blog entries here 

 Issue(s): “[W]e voted to hear the appeals en banc to clarify our jury instructions for conspiracy under § 846 and the facts that trigger the penalties under § 841(b) (1)(A)–(B).” Id. at *4.

 Held: “[W]e conclude that in order to obtain a particular sentence under § 841(b)(1)(A)(viii) and § 841(b)(1)(B)(i) for a violation of § 841(a), the government must prove beyond a reasonable doubt the specific type and the quantity of substance involved in the offense, but not the defendant’s knowledge of (or intent) with respect to that type and quantity.” Id. at *14.

  “[W]e conclude that to obtain a conviction and a particular sentence for conspiracy to distribute controlled substances under § 846, the government must prove only that the defendant's mental state was the same as if the defendant had been charged with the underlying offense. Applying that principle here, the government need not prove the defendant’s knowledge of the drug type and quantity under § 841(b).” Id. at *17.

 Of Note: Judge Fletcher’s compelling dissent sets forth precisely why Collazo is such a deeply troubling outcome. Id. at *20. The majority, he explains, breaks with SCOTUS’s increasing concern with the protections of mens rea requirements in criminal statutes. The majority decision also dodges the natural interpretation of a statute that does, after all, start with the words “knowingly” and “intentionally!” Id. at *23 (quoting Section 841(a)(1)).

  Will Collazo be the law of the Circuit until the Supremes grant cert.? Maybe – or maybe Ninth Circuit Rule 35-3 will come to the rescue. . . . (“In appropriate cases, the Court may order a rehearing by the full court following a hearing or rehearing en banc.”)

 How to Use: This partisan-split opinion (six majority republicans versus five democrat dissenters) splits in other ways as well. Most notably, the Ninth parts ways with eight other circuits in this outlier opinion. Continue to preserve mens rea objections to Section 841 and 846 instructions: whether through a full en banc decision, or a Supreme Court reversal, this decision is unlikely to be the last word on federal drug mens rea requirements.

  ND Cal. Sr. Litigator Dan Blank also noted Collazo has parted ways with Buckland: Judge Ikuta now officially deems drug type and quantity as elements after Alleyne. Id. at *7 (“Under Alleyne’s reasoning, the facts of drug type and quantity under § 841(b) constitute elements or ingredients of the crime because they affect the penalty that can be imposed on a defendant) (emphasis added). 

 Now that the Ninth’s characterization of these facts has -- evolved – from the “sentencing factors” of Buckland to the “elements” of Collazo,  demand a Rule 29 dismissal to the entire drug case when the charged “elements” of specific drug type and quantity are not proved.                                                 

For Further Reading: “The presumption of mens rea embodies deeply rooted principles of law and justice that the Supreme Court has emphasized time and again. The presumption of mens rea is no mere technicality, but rather implicates ‘fundamental and far-reaching’ issues . . . .”

Judge Fletcher, dissenting in Collazo

Nope: this full-throated tribute to mens rea requirements is from then Judge, now Justice - Kavanagh. See United States v. Burwell, 690 F.3d 500, 527 (D.C. Cir. 2012) (Kavanaugh, C.J., dissenting).




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Thursday, December 03, 2020

US v. Lozoya, No. 17-50336 (12-3-20)(en banc).Venue takes flight. Sitting en banc, the 9th considers where venue lies for an assault upon a plane in flight. Previously, a panel had focused on exactly over which State the offense took place. Going en banc, the 9th (Bennett) holds the offense took place in the special aircraft jurisdiction of the United States. Under 18 USC 3237(a), venue for in-flight federal crimes is proper in the landing district. Since the offense involves transportation in interstate commerce, prosecution could be in any fly-over jurisdiction or the take-off jurisdiction (see n. 8). This joins the 10th and 11th Circuits and finds support in decisions in the 2nd and 4th. This decision also keeps pace with Pace, a 9th precedent involving venue on the high seas.

The partial concurrence and partial dissent (Ikuta and others) argues this “fly over” venue is absurd. Venue is proper only where the defendant is arrested, first brought, or resides. 

The majority and dissent both write at length about venue, its importance to the framers, and obviously the fact that the founders and early Congresses never considered air flight. They depart with reliance on legislative history and the meaning of what “in state” means.

As for the defendant here, the 9th affirms the misdemeanor conviction and venue where the defendant’s flight had landed.

James Locklin, Deputy Federal Defender, Cal Central (Los Angeles), facing fight-or-flight, chose appellant fight, and put up a good creative one.

The decision is here:

This is an important opinion regarding conspiracy jurisprudence and sentencing.

US v. Collazo, No. 15-50509 (12-2-20)(en banc). Conspiracy, Knowledge, and Apprendi is the subject of this en banc appeal. The case involves conspiracy convictions under 21 USC 846 and sentencing enhancements under 841(b)(1)(A)-(B). The issue is the mens rea or mental state of those conspiring. The majority (Ikuta writing) reaffirms “conspiracy” as requiring an agreement between a defendant and another person to commit an offense (841—possession with intent) and the defendant had the intent for the underlying offense. While the government must prove the drugs, and amount, it need not prove the defendant knew of that drug or amount.  The majority focuses on conspiracy as an agreement, and not the knowledge of the scope and any joint undertaking. It rejects prior precedent and the Guidelines formulation that required, for relevant conduct, foreseeable acts and jointly undertaken. The 9th uses the mental state (knowingly) of the substantive offense and applies it to the conspiracy.  The 9th joins the 6th and is counter to the 1st, 3d, 4th, 5th, 7th, 8th, 10th, and DC. There is a circuit conflict and a possible cert.

The dissenters (Fletcher with others) argue that it is presumed that Congress requires a culpable mens rea to each element of an offense, and that would apply to a conspiracy that carries enhanced penalties under 841. Apprendi requires such proof.

The majority opinion does contain a useful overview of the 9th’s conspiracy law, and development. It is a good starting point.

Spirited fight by Ben Coleman.  The 9th defenders weighed in with an amicus.

The decision is here: