8/29/17: A good 851 mandatory-minimum case

I'm happy to be writing about one of my cases today.

In United States v. Ocampo-Estrada, --- F.3d ---, No. 15-50471 (9th Cir. 2017), the Court vacated my client's mandatory-minimum, 20-year sentence (although it affirmed his conspiracy conviction). 

The government filed an 851 enhancement before trial, based on Mr. Ocampo's prior conviction under Cal. H&S 11378.    As a result, after the conviction, the district court was forced to impose a 20-year sentence for essentially street-level methamphetamine sales.  

The principal issue addressed by the Court was whether the government proved up the 851 enhancement at sentencing, because the state-court documents it used to establish the prior 11378 conviction did not specify the drug type.  Our argument was that, because the California drug statutes are overbroad compared to their federal counterparts, the mere existence of the 11378 was insufficient to support the federal enhancement without proof of the substance. 

The Ninth Circuit agreed.  Based on the recent en banc decision in Martinez-Lopez, the Court confirmed that section 11378 was  overbroad and divisible.  But it concluded the conviction documents did not satisfy the modified-categorical approach and thus vacated the enhanced sentence. The mandatory minimum is now 10 years, rather than 20.   

8/28/17: All about 3582

In United States v. Mercado-Moreno, --- F.3d ---, No. 15-10545 (9th Cir. 2017), the Court undertakes a lengthy analysis of the proper procedures for resentencing proceedings under 3582(c)(2).  The opinion is full of new rules. None of them help the defendant in this case, as the Court affirms the denial of his motion for a sentencing reduction. 

In a nutshell, when the Guidelines change such that a defendant is eligible for a sentencing reduction under 18 U.S.C. 3582(c)(2): "a district court may supplement the original sentencing court’s quantity findings only when supplemental findings are necessary to determine the defendant’s eligibility for a sentence reduction in light of a retroactive Guidelines amendment. However, the district court may not make supplemental findings that are inconsistent with the findings made by the original sentencing court. We also hold that a district court has broad discretion in how to adjudicate § 3582(c)(2) proceedings, including whether to hold a hearing when making supplemental findings of drug quantity."

While this does not sound all that bad, in practice, it means that if, at the original sentencing, the court found the defendant responsible for "more than" or "at least" X amount of drugs, the court can then supplement those findings at the resentencing to find the defendant responsible for more drugs.  And based on that finding, it can deny the motion for a sentencing reduction.  

So the next time you file a motion under 3582, read this case first. Also, if you have a situation where you can get a favorable finding on specific drug quantity, you might want to ask the district court to make it on the record.  That way, at any resentencing, a new judge cannot go above the previously found amount.  

Finally, for all us appellate people, here is line we are sure to see cited by the government: "In reviewing for abuse of discretion, we may affirm the 'district court on any ground supported by the record, even if the district court’s reasoning differs from our own.'"  

8/25/17 - Two criminal cases

Sorry for the delay, but I'm on vacation.  

Anyway, two cases yesterday.  

In United States v. Walter-Eze, --- F.3d ---, No. 15-50315 (9th Cir. 20017), the Court considered a variety of issues in a health care fraud prosecution. 

The bulk of the opinion focused on the defendant's claim that a conflict of interest created by the district court -- when it conditioned an adjournment on counsel’s paying jury costs and witness fees -- violated her Sixth Amendment right to counsel.  The Court rejected the claim because the defendant could not show prejudice.  The Court also disagreed that prejudice should be presumed because of an actual conflict of interest.  (Concurring, Judge Nguyen explains why the majority's analysis on presuming prejudice was flawed).

The Court also held that the district court did not abuse its discretion in denying a continuance on the day of trial.  

Additionally, the Court found no error in the district court's decision to give a deliberate ignorance instruction after closing arguments completed.  The Court essentially concluded that the defendants' closing argument made the instruction appropriate.  

Finally, the Court rejected the defendant's arguments on loss calculation, leadership role, and restitution. 

In United States v. Robinson, --- F.3d ---, No. 16-30096 (9th Cir. 2017), the Court vacated the defendant's sentence, holding that the Washington crime of second-degree assault, Wash. Rev. Code § 9A.36.021, is not a “crime of violence” within the meaning of U.S.S.G. § 2K2.1. 

The parties agreed the statute was overbroad, and the Court rejected the government's argument that it was divisible under Descamps and Mathis. 

Of note, the Court also determined its prior precedent in United States v. Lawrence, 627 F.3d 1281 (9th Cir. 2010) (considering the same statute) was effectively overruled by Descamps and Mathis. 

8/22/17: Good news in two cases

First, in United States v. Peralta-Sanchez, No. 14-50393 (9th Cir. 2017), the Court granted panel rehearing, and vacated its prior published decision. 

This is good news because the prior majority opinion held that aliens subject to expedited removal proceedings under 8 U.S.C. § 1225 have no Fifth Amendment due process right to hire counsel.  This was true, even if the person is not caught at the border, but inside the country where due process protections are greater.  

In place of the old published opinion, the Court filed a memorandum.  Although the defendant's conviction remains affirmed, the memorandum "assume[d] for purposes of this case only that Peralta-Sanchez had a due process right to retain counsel at his own expense and to be advised by the government of the right to seek withdrawal of admission under 8 U.S.C. § 1225(a)(4) during the proceedings, and thus that his due process rights were violated[.]"

Second, in United States v. Brito, --- F.3d ---, No. 15-30229 (9th Cir. 2017), the Court considered whether a sentencing reduction under 18 U.S.C. § 3582(c)(2) based on retroactive Sentencing Guidelines Amendment can include credit for time spent in state custody. 

The Court said, yes (thus reversing the district court).  It held, “term of imprisonment,” as used in § 3582(c)(2) and § 1B1.10(b)(2)(A), can include time spent in state custody, and  if the district court at the original sentencing gave credit for time spent in state custody , the “term of imprisonment” on the motion for sentence reduction can include the time spent in both federal and state custody. 

8/21/17: Good "official restraint" case from the S.D. Ca

In United States v. Castillo-Mendez, --- F.3d ---, No. 15-50273 (9th Cir. 2017), the Court vacated the defendant's conviction for attempted illegal reentry, and remanded for a new trial.

The Court concluded the district court erred in providing a flawed supplemental instruction on official restraint.  After summarizing the relevant precedent on official restraint, the Court reiterated that, in the attempt to reenter context -- as opposed to a "found in" case -- the key is whether the defendant intended to enter free from official restraint, not whether he or she was actually under official restraint.

Because the district court's supplemental instruction confused those concepts, the conviction could not stand.  The Ninth Circuit concluded with the following:

On remand, the district court should instruct the jury that to convict CastilloMendez of attempted illegal reentry the government must prove specific intent to enter free from official restraint. Should the jury again ask for the definition of official restraint, the district court should remind the jury that official restraint is relevant only as a part of the defendant’s requisite mens rea, and answer with a definition drawn from attempted illegal reentry cases, such as “you must find that the defendant had the specific intent to enter free from official restraint, which means intent to enter without being detected, apprehended, or prevented from going at large within the United States and mixing with the population.”

8/10/17: Interesting qui tam / forfeiture decision

In United States v. Smith, --- F.3d ---, No. 16-10160 (9th Cir. 2017), the Court considered whether two qui tam relators were entitled to intervene in a criminal forfeiture action so that they could recover a share of the proceeds.  

It held they could not, because a criminal forfeiture action does not constitute an “alternate remedy” to a civil qui tam action under the False Claims Act, entitling a relator to intervene.  

Further, because the relators had no interest in the property when the criminal acts were committed, and they were not qualifying bonafide purchasers for value, they did not have standing to intervene under the forfeiture statute, 21 U.S.C. § 853(n)(6).