8/31/18: Valdes-Vega strikes again

In United States v. Rogoza-Garcia, --- F.3d ---, No. 16-50490 (9th Cir. 2018), the Court affirmed the district court’s denial of the defendant’s motion to suppress drugs found in his car during a stop near Fallbrook, Ca.

The justification for the stop was paltry: Baja plates, multiple border crossings, slowing when passing law enforcement, driver both paying attention to the agents and not paying attention to the agents.

But under Valdez-Vega, the Court must "allow[] officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person." So, the Court finds sufficient reasonable suspicion.

There is a concurrence warning that "law enforcement may not support a stop using innocent conduct, in and of itself. Because many of these factors may disproportionately apply to the Latino population, as they did here, there is a risk of sanctioning race- or ethnicity-based stops."

8/29/18: Cal Meth is overbroad

This could be a big deal.

In Atenia Lorenzo v. Sessions, --- F.3d ---, No. 15-70814 (9th Cir. 2018), the Ninth Circuit holds that Cal. Meth is overbroad -- that is, it is not a match for the federal definition of meth.

Specifically, under California law, a methamphetamine conviction may involve methamphetamine or it may involve methamphetamine’s “salts, isomers, [or] salts of its isomers,” including both “optical and geometrical . . . isomers."

Under federal law, however, "[w]ith respect to methamphetamine, [] the CSA applies only to optical isomers, not geometric isomers."

Based on this difference, the Court held as follows:

[W]e conclude the definition of “methamphetamine” applicable to convictions under California Health & Safety Code §§ 11378 and 11379(a) is broader than the definition of methamphetamine under the federal Controlled Substances Act, 21 U.S.C. § 812. Under the first step in the categorical approach, therefore, a conviction for a methamphetamine offense under §§ 11378 or 11379(a) does not qualify as a “controlled substance” violation under 8 U.S.C. § 1227(a)(2)(B)(i).

We further conclude the methamphetamine element applicable to a conviction under §§ 11378 or 11379(a) is not divisible, because the different varieties of methamphetamine covered by California law are alternative means of committing a single crime rather than alternative elements of separate crimes.

We therefore do not apply the modified categorical approach. Because the methamphetamine element of §§ 11378 and 11379(a) is overbroad and the modified categorical approach does not apply, we hold a methamphetamine conviction under §§ 11378 or 11379(a) does not qualify as a controlled substance offense under 8 U.S.C. § 1227(a)(2)(B)(i).

This could have big ramifications for criminal cases in terms of sentencing enhancements (perhaps even 851s) based on prior CA meth convictions, and of course 1326(d) motions.

Also, the Court's reasoning should apply to any other substances that have the same overbreadth issue -- e.g. if Cal. cocaine is defined more broadly than Fed cocaine (I don't know the answer yet).

I'm sure we will have more on this soon.

8/28/18: Cal PC 496(a) is an aggravated felony theft offense

In United States v. Flores, --- F.3d ---, No. 16-50096 (9th Cir. 2018), the Court affirmed the defendant's sentence for illegal reentry.

There were two issues. First, whether the defendant's prior removals were valid. Second, whether, in a bench trial, the district court erred under Daubert by admitting a fingerprint examiner's testimony.

The first issue turned largely on whether the defendant's prior conviction for receiving stolen property under California Penal Code § 496(a) was an aggravated felony theft offense.

The Court's analysis was long and complex, with detours into Chevron deference. Ultimately, it held "California’s receipt of stolen property offense is a categorical match for the generic federal crime of receipt of stolen property and therefore it was not unreasonable for the Board of Immigration Appeals to construe it as a felony 'theft offense (including receipt of stolen property),' that is, as an aggravated felony as defined in the INA."

As to the fingerprint issue, the Court explained, "Flores waived his right to a jury trial and was convicted after a bench trial. Daubert is meant to protect juries from being swayed by dubious scientific testimony. When the district court sits as the finder of fact, there is less need for the gatekeeper to keep the gate when the gatekeeper is keeping the gate only for himself."

"Thus, where the factfinder and the gatekeeper are the same, the court does not err in admitting the evidence subject to the ability later to exclude it or disregard it if it turns out not to meet the standard of reliability established by Rule 702.”

8/23/18: Cal. robbery (211) not a crime of violence.

In United States v. Blankson, --- F.3d ---, No. 16-10124 (9th Cir. 2018), the Ninth Circuit finished the process it began a few months ago in Edling. 

Specifically, in Edling, the Court held that Nevada robbery was not a crime of violence under the Guidelines. 

Today, the Court extended that to California robbery (PC 211), holding that robbery under California Penal Code § 211 is not a “crime of violence” because it is no longer a categorical match to a combination of Guidelines-described robbery and extortion, and the contrary holding in United States v. Becceril-Lopez, 541 F.3d 881 (9th Cir. 2008), is no longer good law.

This is great news going forward, but it did not help the defendant, who was sentenced before the Guidelines were amended in 2016.  Under the prior version of the Guidelines, 211 was a crime of violence. 

In short, 211 is not a crime of violence for everyone sentenced after August 1, 2016.

8/22/18: Old version of Cal. P.C. 245(a)(1) is a crime of violence under 18 U.S.C. § 16(a).

In United States v. Vasquez-Gonzalez, --- F.3d ---, No. 15-10285 (9th Cir. 2018), the Court affirmed the defendant's conviction for illegal reentry.

The primary issue was whether his prior removal was invalid because it was based on a 245(a)(1) conviction, which the defendant argued was not a crime of violence under 18 U.S.C. § 16.

The Court disagreed. But there is a small silver lining for state court practice. The panel explained, "the Supreme Court of California has expressly stated that the mens rea for assault in California requires more than negligent conduct." So, if you have a state assault case where the prosecution is arguing a negligent/reckless assault theory, perhaps this case can be helpful. 

Finally, of note, this decision addressed only the prior version of 245(a)(1), which was amended in 2011.  So challenges to the newer version are not foreclosed.

8/21/18: The devil is in the details

Two criminal cases.

Each seems straightforward, but contains a troubling detail.

First, in United States v. Schram, --- F.3d ---, No. 17-30055 (9th Cir. 2018), the Court affirmed the district court's denial of a suppression motion.

The issue was "whether a person who is prohibited from entering a residence by a court’s no-contact order still may have a legitimate expectation of privacy that would entitle him to Fourth Amendment protection in that residence." The Court determined he or she cannot.

The crux of the Court's conclusion was the principle that a privacy interest is not reasonable when one’s presence in a place is “wrongful.”

That is fine as far as it goes, but here is the sentence I find troubling: "while a defendant does not lose his Fourth Amendment rights simply by engaging in illegal acts, a defendant still may lack Fourth Amendment rights to challenge the search of a residence when the law prevents him from being there in the first place."

The law "prevents" lots of people from being anywhere in the U.S. in the first place. Is the government going to claim they have no 4th Amend rights? I certainly hope we don't see such an absurd argument. But I wish the panel had used tighter language.


Second, in United States v. McCarns, --- F.3d ---, No. 16-10410 (9th Cir. 2018), the Court affirmed the defendant's conviction and sentence for real-estate fraud.

The Court rejected the defendant's Speedy Trial Act claim, which alleged a failure to sufficiently set forth reasoning on the record. The Court held that the district court’s references to Eastern District of California local codes – which correspond to the factors set forth in 18 U.S.C. § 3161(h)(7)(B) – sufficiently explained its findings that the "ends of justice” were served by granting continuances.

More interesting is the discussion of Guidelines error. Rarely, if ever, is Guidelines error considered harmless. Indeed, the Supreme Court said just that Molina-Martinez.

But this case finds harmlessness. In fact, the Court did not even reach the question of whether the district court erred in applying a three-level manager or supervisor enhancement.

Instead, it explained that, with or without the enhancement, the low-end would exceed the statutory maximum. And because the 240-month maximum was less than the minimum of the applicable Guidelines range, any error was necessarily harmless.

Again, this is fine as far as it goes (that is, cabined to its facts). But I expect to see this decision cited in other contexts for the proposition that Guidelines error is harmless.  Be aware.

8/17/18: Nevada battery committed with a deadly weapon is categorically a crime of violence

In United States v. Guizar-Rodriguez, --- F.3d ---, No. 16-10507 (9th Cir. 2018), the Court affirmed the defendant's illegal reentry conviction.

The case turned on whether the defendant's prior removal order was valid, which turned on whether he had a prior conviction for an aggravated felony, which turned on whether battery committed with the use of a deadly weapon under Nevada Revised Statute § 200.481(2)(e)(1) is categorically a crime of violence as defined in 18 U.S.C. § 16(a).

The Court held it was. For most, this is all you need to know.

But for those interested in categorical analysis generally, this case has an unusual twist. Nevada has a statute defining "deadly weapon" in the sentencing context. That statute is overbroad, in that it includes items that are not particularly dangerous and thus their use would not satisfy Johnson's physical force requirement.

The Ninth Circuit acknowledges the overbreadth in the statutory definition, but determines it is not controlling. Instead, it looks to the more limited Nevada common law definition, and finds it applies outside of the sentencing context, to the actual crime of conviction.

 

8/15/18: Case on the Federal Juvenile Delinquency Act

In United States v. Juvenile Male, --- F.3d ---, No. 17-10257 (9th Cir. 2018), the Court vacated the appellant's sentence and ordered his immediate release because his term of detention exceeded the statutory maximum.

This case has to do with whether custody time aggregates based on multiple revocations of juvenile delinquent supervision. The short answer is yes: "The text and structure of § 5037(d)(5), its legislative history, and the FJDA’s motivating purpose support Appellant’s argument that he was entitled to credit for "any term of official detention previously ordered."


In other news, we have a space in our office available for rent. Let me know if you're interested.

8/8/18: marital communications privilege

In United States v. Fomichev, --- F.3d ---, No. 16-50227 (9th Cir. 2018), the Court vacated the district court’s order denying a defendant’s motion to suppress, and remanded for further proceedings.

The issue was whether the sham marriage exception -- which has been applied to the spousal testimonial privilege -- should also apply to the marital communications privilege.

The sham marriage exception is a narrow exception that arises when there is a close temporal proximity between the date of a marriage and the date when a witness-spouse has been expected to testify. The Ninth Circuit has affirmed a district court’s ruling that the spousal testimonial privilege was not available to a witness-spouse because “the purpose of the marriage was for . . . invoking the [spousal testimonial] privilege.”

In this case, the Court held the sham marriage exception should not extend to the marital communications privilege. "We have never applied the sham marriage exception to the marital communications privilege, and doing so would expand the limited application the exception receives in the context of the spousal testimonial privilege. The government bears the burden to persuade us that the sham marriage exception should be extended, and it has offered no convincing reason to modify this longstanding rule."

8/6/18: dangerously under the influence of alcohol

Let's start with the case name: United States v. Nature. Seems timely.

Anyway, in United States v. Nature, --- F.3d ---, No. 17-10161 (9th Cir. 2018), the Court affirmed the defendant’s conviction for being dangerously under the influence of alcohol in violation of 36 C.F.R. § 34.5(b)(21), while he was in the El Portal Administrative Site, which is adjacent to Yosemite National Park.

The only reason for publishing this case seems to be the brief discussion of "mutatis mutandis," meaning making necessary alterations while not affecting the main point.

The Ninth Circuit used this doctrine to incorporate the relevant dangerous-drinking-prohibition into the regulations applicable to the Site.

8/2/18: helpful 1326(d) decision

In United States v. Ochoa-Oregel, --- F.3d ---, No. 16-50413 (9th Cir. 2018), the Ninth gives us good new law in the 1326(d) context.

The Court vacated the defendant's conviction, finding his two prior removals invalid.

First, the Court held that, because the defendant's 2008 removal proceeding was in absentia, he satisfied the exhaustion and deprivation-of-judicial-review requirements under 1326(d).

The Court also held that, because circuit precedent established California battery was not a categorical crime of violence, the IJ erred in ordering him removed for a crime of domestic violence based on the battery conviction.

Second, the Court held that the defects in the 2008 removal proceeding infected the defendant’s 2011 expedited removal for presenting invalid entry documents. This is new ground. 

The Court explained, "[a] person should not be stripped of the important legal entitlements that come with lawful permanent resident status through a legally erroneous decision that he or she had no meaningful opportunity to contest. Among those protections is that lawful permanent residents cannot be removed on an expedited basis." That meant, the 2011 removal was also invalid. 

One other point worth mentioning: 

The government contends that even if Defendant should have been treated as a lawful permanent resident in 2011, he was not prejudiced because he was an aggravated felon, who could have been removed anyway, and who would have been denied discretionary relief, including withdrawal of his application for admission. We reject the government’s contention for a fundamental reason. Because Defendant retained the protections afforded to lawful permanent residents, he was not removable as charged in the 2011 proceedings—he was removed for presenting invalid entry documents. But if he was still a lawful permanent resident, then his entry documents were not invalid. And even if the government might have been able to remove him on other grounds through a formal removal proceeding, his removal on illegitimate grounds is enough to show prejudice.

In other words, although in 2011 the defendant was arguably removable for being an aggravated felon, because he was not charged with that ground of removability, the removal order was invalid.