Thursday, March 16, 2023

US v. Salazar, No. 22-50060 (3-8-23)(Tallman w/Schroeder & Ikuta).  This is a significant “safety valve” decision. On the government’s appeal, the 9th vacated a sentence and remanded for resentencing because the sentencing court did not make a finding under 18 U.S.C. § 3553(f)(5) for “safety valve” relief from a mandatory minimum sentence that the defendant had complied with the statutory proffer requirement. The defendant relied upon the lengthy factual basis in the plea agreement (conspiracy to distribute drugs in the LA County Jail system) to argue he gave all the information he had.  The 9th writes that the court, on the record, could not assume the defendant had truthfully disclosed all the information he had about the drug conspiracy.  The finding it would have been “futile” is not supported and the court’s conclusion that the prosecution already had all the information the defendant could have provided did not excuse or obviate the need for this finding. There is not a “implicit proffer” or “futile exception” to the statutory requirement of a proffer. In practical terms, the defendant needs to show they met or gave all the truthful information through an oral or written proffer or a like opportunity. The plea’s factual basis on this record does not suffice.

US v. Taylor, No. 21-10377 (3-1-23)(Bress w/VanDyke & Restani). This is about a car stop and whether the car stop was unreasonably prolonged. The 9th holds it was not. The defendant here was stopped for driving without a license plate or registration. The officers asked him if he had weapons (the defendant said “no”) and whether he had been arrested before (yes). The officers asked the defendant to get out of the car. The 9th states the asking of the defendant to get out of the car did not unreasonably prolong the stop; neither did running of a criminal records check. Also, the defendant had an unzipped fanny pack, which was reasonable to question given the lack of identification and the fact the defendant was under supervised release. Defendant’s consent to search the car was not forced. The case was remanded to conform the written judgment of a SR condition with the oral pronouncement (pay for programs if the defendant had the ability).

1. US v. Alvarez, No 21-50088 (2-16-2023)(R. Nelson w/M. Smith & Drain). The 9th affirms a 1326 conviction. The defendant’s prior Ohio assault conviction under Ohio Rev Stat 2903.13(a) is a COV. The 9th follows the 6th Circuit.

2. US v. Farias-Contreras, No. 21-30055 (2-15-23)(Wardlaw w/Gould; dissent by Bennett). The prosecutor agreed to recommend a low-end GL sentence. However, the prosecutor undermines the recommendation with an inflammatory sentencing memorandum decrying the harm and pain drug trafficking visited on the community by “pumping poison” to the streets. The majority, under plain error, concludes the inflammatory statements violated the plea agreement.  Bennett dissents. He argues the prosecutor complied by stating the recommendation, and as expressly permitted by the plea, could present other facts. Bennett concludes by calling for en banc or SCOTUS review.

3. US v. Michell, No. 19-10059 (2-15-23)(Wardlaw w/Garner; partial concurrence and dissent by Baker). This is a Rehaif issue. Under plain error, the 9th affirmed convictions for unlawful firearm possession. The error was plain – knowledge of a felony is an element – but here the 9th could take judicial notice outside the record of other convictions, where the knowledge of felonies was clear. No prejudice existed. Baker dissents. He argues the defendant had a fighting chance of arguing to the jury he really didn’t know.