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.  


Image of coal in stocking from

Image of COVID vaccine from



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



Labels: , , ,


Blogger Chilton programs said...


Afraid your girlfriend is cheating on you? CONTRACTHACKERS can get you into her email and social media accounts; that is, if you don't mind sliding past legal or ethical boundaries.

If you're looking to monitor an iPhone or an Android device, you can use some rooted application like the Copy9app to hack and monitor the phone. The app has a paid version (not sure of the price now).
Copy9 comes with 18 different features, including GPS tracking and sound recording. The app tracks the hacked phone's information even when the phone's offline, and once it's connected to the internet, all tracked info is uploaded right into your account.
A downside of the app is that you need to have the target phone in your hand to install the spyware app onto it. But When you hire a hacker from CONTRACT HACKERS, He can access any phone remotely from anywhere in the world with more features than any application!

To get unauthorized access to an account on Instagram, Twitter, Snapchat, or other social media platforms, HIRE A HACKER FROM CONTRACT HACKS TODAY!

Hire CONTRACT HACKERS TODAY for any wire transfer as long as you have the details of the account you wanna rob. You'll pay CONTRACT HACKS 5% of the money you drain from a bank account in return for US getting you into it.

Were you scammed of your hard earned funds? Common, what are you waiting for? Hire us to recover your funds as long as you are certain it is not spent yet.

You know, ONE UNIQUE THING ABOUT US IS THAT EVERY HACK DONE BY US DOESN’T GET TRACED BACK TO YOU! We erase every steps and loopholes after getting in!
We give you 98% guarantee and offer you best value you can't get from anywhere.

Contact us today. We got a lot to offer you!
contracthacks@gmail. com


Tuesday, December 22, 2020 7:40:00 AM  

Post a Comment

<< Home