Thursday, July 22, 2021

1.  Shepherd v. Unknown Party, Warden, FCI-Tucson, No. 19-15834 (per curiam; panel is Schroeder, M. Smith, and VanDyke) –- [Ed. note: This is an AZ FPD case.]  The Ninth Circuit held that a federal prisoner cannot challenge a sentence imposed under the advisory Guidelines by way of a § 2241 habeas petition, because that challenge does not qualify as a claim of “actual innocence” like the one recognized in Allen v. Ives, 950 F.3d 1184 (9th Cir. 2020).  The per curiam opinion notes that it found persuasive some statements in Judge Fletcher’s opinion concurring in denial of rehearing en banc that suggested this limitation on the holding in Allen.

The decision is here:


2.  United States v. Warren, No. 20-10213 (Graber with Tashima and Vratil (D. Kan.)) –- The Ninth Circuit held that a defendant who pleaded guilty to conspiracy to engage in sex trafficking “in violation of Title 18, United States Code, Sections 1594(c) and 1591(a)(1), (b)(2)” was convicted only of the conspiracy count, and thus affirmed the judgment as written without correcting it to remove the references to section 1591.  The judgment is not required to list the substantive offense that is the object of the conspiracy, but it is not error for it to list that offense.  The panel noted that the defendant was disqualified from certain programs in BOP because it thought he had been convicted under § 1591, but told him to furnish BOP with a copy of the opinion which clarifies that he was convicted only of the conspiracy count under § 1594.

The decision is here:


3.  United States v. Halamek, No. 19-10366 (M. Smith with Schroeder and VanDyke) –- The Ninth Circuit affirmed a conviction for two counts of interstate transportation of a minor with intent to engage in sexual activity, but remanded for resentencing because the sentence on one of the counts exceeded the statutory maximum.  It rejected on plain-error review a Daubert challenge to expert testimony regarding grooming of victims, on abuse-of-discretion review a challenge to admission of prior acts of child molestation under FRE 414, and on plain-error review a challenge to a Guidelines upward adjustment for molesting a child under the “custody, care, or control” of the defendant.  It also rejected on plain error a challenge to the improper criminal history category because the defendant could not show prejudice.

The defendant picked up his cousin’s 12-year-old stepdaughter from a school bus stop outside of Safford, Arizona, and took her camping a short distance away in New Mexico.  During this excursion, he molested her.  While they were camping, an Amber Alert went out for the girl because of the defendant’s wife’s fear that he might touch the girl improperly.  Witnesses saw the defendant and the girl walking back toward Arizona, and called the police.  He was charged with one count of transporting a minor across state lines with intent to engage in criminal sexual activity, in violation of 18 U.S.C. § 2423(a), and one count of traveling in interstate commerce with intent to engage in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b).  A jury convicted him on both counts, and the judge sentenced him to 35 years imprisonment on both counts, to run concurrently.

Before trial, the government noticed the expert testimony of Karen Blackwell on the subject of grooming for sexual abuse.  Defense counsel did not object to her testimony.  On appeal, the court held that admitting her testimony was not reversible plain error.  First, the court cleaned up (finally!) the law in this area.  In the 1997 case of United States v. Bighead, 128 F.3d 1329 (9th Cir. 1997), the court held that “experiential expert testimony” was not subject to Daubert’s gatekeeping requirements.  Two years later, the Supreme Court held in Kumho Tire v. Carmichael, 526 U.S. 137 (1999), that all expert testimony was subject to Daubert’s gatekeeping requirements.  The panel wrote that Kumho Tire overruled Bighead to the extent that Bighead said the expert testimony in question here was categorically exempt from Daubert’s gatekeeping requirements.  But the panel found no reversible plain error here; defense counsel’s lack of an objection to the expert’s qualifications meant that the district court correctly could have relied on the government’s assertions about the expert’s qualifications in order to satisfy Daubert.

Evidence of prior acts of molestation were properly admitted under FRE 414 because they were probative of the defendant’s intent to molest the girl in this case and not unduly prejudicial under FRE 403.  The district court did not abuse its discretion in admitting this testimony.

Applying the 2-level upward adjustment for the victim being in the “care, custody, or control” of the defendant was not reversible plain error.  The testimony at trial showed that the defendant “played a caretaking role” in the girl’s life.

Because the statutory maximum sentence for a violation of § 2423(b) is 30 years, the 35-year sentence on that count is illegal, and the government conceded that the case should be remanded for resentencing.

The court agreed with the parties that adding criminal history points for a state-court conviction that arose from the same conduct in this case was improper, and that the defendant’s criminal history category was thus improperly elevated from II to III. But this was not reversible plain error because the Guidelines range in both categories was the same in this case.

The decision is here:


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