6/28/18: Case about supervised release conditions to address a defendant’s history of sexual misconduct,

In United States v. Hohag, --- F.3d ---, No. 17-30049 (9th Cir. 2018), the defendant violated supervised release by failing to register as a sex offender, based on a 27-year-old conviction.

The Court affirmed the district court’s imposition of supervised release conditions requiring that the defendant participate in a sex offense-specific assessment and that, if recommended by a probation officer, he submit to polygraph testing in conjunction with the assessment. In doing so, it explained:

[W]hen we consider a condition of supervised release meant to address a defendant’s history of sexual misconduct, we look to at least two factors. First, as in every case, we consider the burdensomeness of the condition at issue. An assessment is significantly less burdensome than required treatment.

Second, we ask whether the condition is reasonably necessary to accomplish one of the legitimate goals of supervised release. In answering that question in this context, we approach with some skepticism a condition that rests solely on an old sex offense. But when some recent event suggests that a defendant still poses a risk of engaging in sexual misconduct, there exists a greater need for a condition meant to address a defendant’s history of sexual misconduct.

Under this standard, the Court held, "the conditions at issue are not particularly burdensome and because they relate to Defendant’s crime of conviction, we conclude that the district court did not abuse its discretion."

6/26/18: Another case about bears

This is the second published bear killing case in less than a year.

In United States v. Charette, --- F.3d ---, No. 17-30059 (9th Cir. 2016), the Court vacated the defendant's misdo conviction for killing "a protected grizzly bear (Ursus arctos horribilis) that was harassing his horses in a pasture behind his rural home near Ronan, Montana."

Among other things, the Court held defendants have the burden of proving a valid permit as an affirmative defense.

But because the district court erred in applying an “objectively reasonable” standard rather than a subjective belief standard to the defendant’s self-defense evidence, the Court reversed.

6/25/18: Helpful sentencing decision

In United States v. Vera, --- F.3d ---, No. 16-50364 (9th Cir. 2018), for the second time, the Ninth Circuit vacated the defendants' sentences for drug conspiracy.

The case focused on the district court's drug-quantity finding.

The Court determined the district court committed reversible error by relying heavily upon coconspirator plea agreements to determine the drug quantities attributable to the defendants on the ground that the plea agreements were reliable statements against interest under Fed. R. Evid. 804(b)(3).

Specifically, the Court held: "At sentencing, district courts may not rely solely on Rule 804(b)(3) to use non-self-inculpatory statements in a co-conspirator’s plea agreement to determine a defendant’s drug-quantity liability."

Nor did the Court find the government's other evidence sufficiently corroborating. 

Accordingly, the Court concluded: "Here, the factual bases in the plea agreements were neither inherently reliable as statements against interest nor corroborated by other information that made their reliability apparent. They were also demonstrably made the bases of the Veras’ sentences. Accordingly, we vacate the sentences and remand for resentencing."

6/22/18: Important SCOTUS 4th Amend decision

In United States v. Carpenter, 585 U.S. ---, No. 16-402 (2018), the Supreme Court limited the third-party doctrine, and held that the government must typically get a warrant to obtain cell-cite location information.

As framed by the Chief Justice, the issue was "whether the Government conducts a search under the Fourth Amendment when it accesses historical cell phone records that provide a comprehensive chronicle of the user’s past movements."

In holding that it does conduct a search under those circumstances, the Court considered a person’s expectation of privacy in his physical location and movements, as well as the third-party doctrine, under which the Government is typically free to obtain information from the third-party recipient without triggering Fourth Amendment protections.

The Court held: "Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. Whether the Government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI [cell-site location information]."

Although the Court was careful to craft a narrow ruling, this case has broad implications for other digital data held by third parties, like Google. On this point, I suggest also reading Justice Gorsuch's dissent, which is less an actual dissent and more of a call toward broader protection of digital data.

6/18/18: SCOTUS decisions of note

Yesterday gave us two SCOTUS sentencing decisions. 

In Rosales-Mireles v. United States, 585 U.S. ---, No. 16-9493 (2018), the Court considered "whether a miscalculation of the United States Sentencing Guidelines range, that has been determined to be plain and to affect a defendant’s substantial rights, calls for a court of appeals to exercise its discretion under Rule 52(b) to vacate the defendant’s sentence." 

It held, "such an error will in the ordinary case, as here, seriously affect the fairness, integrity, or public reputation of judicial proceedings, and thus will warrant relief."  In other words, Guidelines calculation error will almost always satisfy Olano's fourth prong -- "seriously affects the fairness, integrity or public reputation of judicial proceedings." 

This is an important decision because it helps makes clear the fourth prong should not be an undue obstacle to plain error relief: "By focusing instead on principles of fairness, integrity, and public reputation, the Court recognized a broader category of errors that warrant correction on plain-error review."

In Chavez-Meza v. United States, 585 U.S. ---, No. 17-5639 (2018), the Court addressed the requirement that the district court provide an adequate explanation for its sentence. 

The case arose out of a resentencing.  It does not really break new ground.   But there is a helpful reminder that can be cited in sentencing appeals:

[O]f particular relevance here, the judge "shall state in open court the reasons for [the] imposition of the particular sentence.” §3553(c). If the sentence is outside the Guidelines range (whether because of a “departure” or a “variance”), the judge must state “the specific reason for the imposition of a . . . different” sentence. §3553(c)(2). If the sentence is within the Guidelines range, and the Guidelines range exceeds 24 months, the judge must also state “the reason for imposing a sentence at a particular point within the range.” §3553(c)(1).

6/18/18: Interesting cases

Two interesting cases today.

First, in United States v. Reinhart,  --- F.3d ---, No. 16-10409 (9th Cir. 2018) (a government appeal) the Court affirms the district court's conclusion that the defendant's prior, state convictions for child porn offenses do not qualify as sentencing predicates for a federal cp conviction. 

The opinion is complicated.  But its conclusion provides a good summary: "We hold that 18 U.S.C. § 2252(b)(2)’s reference to offenses 'relating to' child pornography must be read more narrowly due to the statutory text that limits the meaning of 'child pornography' and 'sexually explicit conduct.' See 18 U.S.C. § 2256(2)(A), (8). In accordance with this more narrowed reading of 'relating to,' we apply the categorical approach in determining whether [the defendant's] prior California statutes of conviction trigger the federal sentencing enhancement provision at 18 U.S.C. § 2252(b)(2). Under the categorical approach, we conclude that both California Penal Code § 311.11 and § 311.3 are overbroad compared to the federal statute and indivisible."

The important takeaways: 

1.  In a federal cp case where the client has a state prior that the government is trying to use as an enhancement, remember the categorical approach applies and the federal definitions are relatively narrow.

2.  There is now significant intra- and inter-Circuit tension on this issue.  For example, in United States v. Sullivan, 797 F.3d 623, 635 (9th Cir. 2015), the Court held that the term “relating to” in § 2252(b)(2) mandated a broader comparison of the offenses in the federal and state statutes rather than the usual comparison between the elements of the state and federal statutes.   This is the exact same section at issue in Reinhart.  The Court, however, distinguishes Sullivan: "The case at bar is distinguishable from Sullivan [] because in those cases, the applicable terms were not defined within the same chapter that the terms appeared. Here, we conclude that, applying well-established statutory principles, where there is a federal definition of 'child pornography' in the same statutory chapter as the sentencing enhancement provision at § 2252(b)(2), we apply that definition."

Sounds confusing and it is. 

Moving on.

In United States v. Espino, --- F.3d ---, No. 16-50344 (9th Cir. 2018), yet another defendant falls victim to plain-error review: 

"Espino appeals and argues that the district court erred as a matter of law in the language used in the verdict form and its subsequent submission to the jury. Espino contends the district court shifted the burden of proof, requiring the jury to find her not guilty beyond a reasonable doubt. We agree that the instruction was erroneous, but we affirm because Espino has not shown that the error was prejudicial."

The Court ends with the following:  "Although we find that, in this case, the erroneous verdict form was harmless, we reaffirm that a defendant’s right to be found guilty only upon proof beyond a reasonable doubt is sacrosanct."

6/11/18: Sneaker can be "dangerous weapon"

In United States v. Swallow, --- F.3d ---, No. 16-30224 (9th Cir. 2018), the Court vacated the defendant's sentence for assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 113(a)(6), 1153.

In a $10 drug dispute, the defendant knocked the "victim" to the ground and repeatedly kicked him while wearing tennis shoes.

On appeal, the defendant challenged two enhancements: (1) a four-level increase under § 2A2.2(b)(2)(B), which applies if “a dangerous weapon (including a firearm) was otherwise used” during commission of the offense; and (2) a two-level increase under § 2A2.2(b)(5), which applies if “the assault was motivated by a payment or offer of money or other thing of value."

The Court found the dangerous-weapon enhancement was proper: "the district court did not abuse its discretion in concluding that Swallow's tennis shoes qualify as dangerous weapons, given the manner in which they were used. Although tennis shoes are not inherently dangerous, Swallow undoubtedly used his shoes to augment the force of the kicks and the stomp he delivered to the victim’s head; the shoes enabled Swallow to inflict greater harm than if he had delivered the kicks and stomp with his bare feet."

However, the district court erred in imposing a "thing-of-value" enhancement: "No evidence remotely suggests that Swallow had been hired by someone to assault the victim, or that he had been paid or offered anything of value for undertaking the assault. Instead, the undisputed evidence showed that Swallow engaged in the assault because he had been egged on by his wife, who called him a coward for letting the victim take their money without providing the promised methamphetamine in return. On these facts, the two-level enhancement under § 2A2.2(b)(5) cannot be applied."

6/8/18: Important decision on robbery not being a crime of violence

In United States v. Edling, --- F.3d ---, No. 16-10457 (9th Cir. 2018), the Court vacated the defendant's sentence, following a conviction for being a felon in possession. The Court concluded the district court erred in determining that two of the defendant's prior convictions under Nevada law for robbery and coercion qualified as crimes of violence.

There are a couple of important points in this decision.

First, the Court held that the rule of lenity continues to apply in the Guidelines context, despite Beckles holding that the vagueness doctrine does not apply to the Guidelines.

Second, the Court's discussion of robbery should also apply to California robbery under 211. The Court concluded that robbery under Nevada Revised Statutes § 200.380 is not a crime of violence under the elements clause, and it is also not categorical match for “generic robbery” under the enumerated offenses clause, because the offense can be accomplished by instilling fear of injury to property alone.

The Court further held that Nevada robbery does not qualify as “extortion” under the enumerated offenses clause, because the definition was amended in 2016 to require that the wrongful use of force, fear, or threats be directed against the person of another, not property.

Previously in United States v. Becerril-Lopez, 541 F.3d 881, 891 (9th Cir. 2008), the Ninth Circuit relied on generic extortion to conclude that California robbery (211) was a crime of violence. With the amendment to the Guidelines and today's decision in Edling, it seems that is no longer good law.

6/6/18: Kicking the can

In United States v. Figueroa-Beltran, --- F.3d ---, No. 16-10388 (9th Cir. 2018), the Court certified three questions to the Nevada Supreme Court regarding whether a Nevada drug statute (Nev. Rev. Stat. § 453.337) is divisible for purposes of the modified categorical approach.

The case is a good remainder that, if you have a federal appeal with an outcome determinative question of state law, you can ask the Court to certify the question to the state's high court. Obviously, whether that is a good tactic is a case-by-case decision.

6/4/18: A moot point

Sorry for the cheesy subject title.

In King v. United States, --- F.3d ---, No. 17-10006 (9th Cir. 2018), the Court dismissed as moot the defendant's appeal from the district court's revocation of supervised release. 

Adopting the reasoning of Spencer v. Kemna, 523 U.S. 1, 8–16 (1998), the Court held that an unconditional release from custody moots a defendant's challenge to his allegedly erroneous revocation.  Thus, "[b]ecause King has been released from custody with no supervision conditions, Spencer’s mootness standard applies."  (Emphasis added).

The key thing to remember is that, if there were additional supervised release, the appeal would not be moot. 

Also, the Court rejected the defendant's argument that the appeal was not moot because the revocation charge involved a finding that he committed statutory rape, which theoretically could require him to register as a sex offender in the future.  The Court found this remote possibility was "too remote to constitute the 'concrete and continuing injury' required to avoid mootness."