In Stokeling v. United States, --- F.3d ---, No. 17-5554 (2019), the Court addressed the definition of "physical force" in ACCA. It concluded: "'physical force,' or 'force capable of causing
physical pain or injury,' Johnson, 559 U. S., at 140, includes the amount of force necessary to overcome a victim’s resistance. Robbery under Florida law corresponds
to that level of force and therefore qualifies as a 'violent
felony' under ACCA’s elements clause."
As the dissent points out, after Johnson, we thought we knew what force was required under ACCA's elements clause: "This Court’s decision in Johnson tells us that when
Congress wrote the words “physical force” in the context of
a statute targeting “violent felon[ies],” it eschewed the
common-law meaning of those words and instead required
a higher degree of force."
The majority, however, adopted a different construction. Again, as the dissent notes, under the Florida robbery statute, "[i]f the resistance is minimal, the force need only be minimal as
well." Thus, under the majority's rule, even the most minimal force can qualify: "The Government concedes, similarly, that a thief
who grabs a bag from a victim’s shoulder also commits
Florida robbery, so long as the victim instinctively holds
on to the bag’s strap for a moment." This understanding of "force" is contrary to Johnson. But it is now the law.
This will likely have a substantial impact, given the implications for other statutes (e.g. 18 USC 16(a)) that contain similar language.
Tuesday, January 15, 2019
Monday, January 14, 2019
1/14/19: En banc decision on waiver vs. forfeiture
In United States v. Dupue, --- F.3d ---, No. 15-10553 (9th Cir. 2019), the Court confirmed the distinction between waiver of an issue, and mere forfeiture: a defendant waives his rights, which precludes plain error review, only when there is evidence that
he knew of his rights at the time and nonetheless
relinquished them.
The Court explained, "a failure to object or an uninformed representation to the court is not alone sufficient evidence of waiver. Rather, there must be evidence that the defendant was aware of the right he was relinquishing and relinquished it anyway. Absent such evidence, failure to preserve a claim constitutes forfeiture subject to plain error review."
Applying that rule: "Although Depue did object to the dates of incarceration in the PSR, his doing so is not evidence that he was aware of and considered objecting to other alleged errors, but “for some tactical or other reason, rejected the idea.” Perez, 116 F.3d at 845. The relevant question is whether Depue knew the substantive legal rules underlying the particular challenges to the Guidelines calculation he raises on appeal, and knew that the district court’s calculation violated those rules."
"The fact that Depue knew generally that he could object if he recognized a mistake, or that he recognized and raised other errors, does not mean that he waived the right to challenge the specific alleged errors he raises on appeal."
"[W]e underscore that the distinction between waiver and forfeiture is particularly important in the sentencing context. By requiring evidence that a waiver is knowing, and therefore permitting plain error review when such evidence is absent, we preserve our ability to review sentencing errors even if the parties were not diligent or knowledgeable enough to identify them during sentencing."
Ultimately, applying plain-error review, the Court affirmed the defendant's sentence because the alleged error did not affect his substantial rights.
The Court explained, "a failure to object or an uninformed representation to the court is not alone sufficient evidence of waiver. Rather, there must be evidence that the defendant was aware of the right he was relinquishing and relinquished it anyway. Absent such evidence, failure to preserve a claim constitutes forfeiture subject to plain error review."
Applying that rule: "Although Depue did object to the dates of incarceration in the PSR, his doing so is not evidence that he was aware of and considered objecting to other alleged errors, but “for some tactical or other reason, rejected the idea.” Perez, 116 F.3d at 845. The relevant question is whether Depue knew the substantive legal rules underlying the particular challenges to the Guidelines calculation he raises on appeal, and knew that the district court’s calculation violated those rules."
"The fact that Depue knew generally that he could object if he recognized a mistake, or that he recognized and raised other errors, does not mean that he waived the right to challenge the specific alleged errors he raises on appeal."
"[W]e underscore that the distinction between waiver and forfeiture is particularly important in the sentencing context. By requiring evidence that a waiver is knowing, and therefore permitting plain error review when such evidence is absent, we preserve our ability to review sentencing errors even if the parties were not diligent or knowledgeable enough to identify them during sentencing."
Ultimately, applying plain-error review, the Court affirmed the defendant's sentence because the alleged error did not affect his substantial rights.
Friday, January 11, 2019
1/11/19: Great 4th Amend decision & a good supervised release case
First, in United States v. Landeros, --- F.3d ---, No. 17-10217 (9th Cir. 2019), the Court reversed the district court's denial of the defendant's motion to
suppress evidence obtained as a result of a traffic stop.
The Court held that law enforcement officers may not extend a lawfully initiated vehicle stop because a passenger refuses to identify himself, absent reasonable suspicion that the individual has committed a criminal offense.
In reaching this conclusion, the Court found that Rodriguez v. United States, 135 S. Ct. 1609 (2015) (holding that an officer may not prolong a stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual), partially abrogated the Ninth Circuit's prior decision in United States v. Turvin, 517 F.3d 1097 (9th Cir. 2008).
As to the facts, "the officers insisted several times that Landeros identify himself after he initially refused, and detained him while making those demands. At the time they did so, the officers had no reasonable suspicion that Landeros had committed an offense. Accordingly, the police could not lawfully order him to identify himself."
The Court further noted "Landeros also refused to comply with the officers’ commands to leave the car. Police officers may order a suspect out of a car during a traffic stop. The Supreme Court has extended that rule to passengers detained during a lawful stop. But here, the stop was no longer lawful by the time the officers ordered Landeros to leave the car, as it had extended longer than justified by either the suspected traffic violation or any offense as to which there was independent reasonable suspicion. As Officer Baker had, before Landeros was ordered from the car, impermissibly extended the stop based on Landeros’s refusal to identify himself, the validity or not of the exit order standing alone does not matter."
Second, in United States v. Hall, --- F.3d ---, No. 17-10422 (9th Cir. 2019), the district court imposed a special condition of supervised release restricting the defendant's relationship with his son (and codefendant) Benton.
The condition provided that he was “permitted to have contact with Benton [] only for normal familial relations but is prohibited from any contact, discussion, or communication concerning financial or investment matters except matters limited to defendant’s own support.”
The defendant objected at sentencing that the condition is unconstitutionally vague. The Ninth Circuit agreed, and struck the offending words “only for normal familial relations” from the condition.
It explained, "[t]he phrase 'normal familial relations' is susceptible to many different interpretations, and so raises questions with no clear answers. Must relations be 'normal' for that particular family, or “normal” for families in general? If the latter, as the government contended at oral argument, how is a defendant to know what a 'normal' family is and does, in light of the tremendous diversity of family structures and family habits, customs, and activities in this country?
The Court held that law enforcement officers may not extend a lawfully initiated vehicle stop because a passenger refuses to identify himself, absent reasonable suspicion that the individual has committed a criminal offense.
In reaching this conclusion, the Court found that Rodriguez v. United States, 135 S. Ct. 1609 (2015) (holding that an officer may not prolong a stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual), partially abrogated the Ninth Circuit's prior decision in United States v. Turvin, 517 F.3d 1097 (9th Cir. 2008).
As to the facts, "the officers insisted several times that Landeros identify himself after he initially refused, and detained him while making those demands. At the time they did so, the officers had no reasonable suspicion that Landeros had committed an offense. Accordingly, the police could not lawfully order him to identify himself."
The Court further noted "Landeros also refused to comply with the officers’ commands to leave the car. Police officers may order a suspect out of a car during a traffic stop. The Supreme Court has extended that rule to passengers detained during a lawful stop. But here, the stop was no longer lawful by the time the officers ordered Landeros to leave the car, as it had extended longer than justified by either the suspected traffic violation or any offense as to which there was independent reasonable suspicion. As Officer Baker had, before Landeros was ordered from the car, impermissibly extended the stop based on Landeros’s refusal to identify himself, the validity or not of the exit order standing alone does not matter."
Second, in United States v. Hall, --- F.3d ---, No. 17-10422 (9th Cir. 2019), the district court imposed a special condition of supervised release restricting the defendant's relationship with his son (and codefendant) Benton.
The condition provided that he was “permitted to have contact with Benton [] only for normal familial relations but is prohibited from any contact, discussion, or communication concerning financial or investment matters except matters limited to defendant’s own support.”
The defendant objected at sentencing that the condition is unconstitutionally vague. The Ninth Circuit agreed, and struck the offending words “only for normal familial relations” from the condition.
It explained, "[t]he phrase 'normal familial relations' is susceptible to many different interpretations, and so raises questions with no clear answers. Must relations be 'normal' for that particular family, or “normal” for families in general? If the latter, as the government contended at oral argument, how is a defendant to know what a 'normal' family is and does, in light of the tremendous diversity of family structures and family habits, customs, and activities in this country?
Thursday, January 10, 2019
1/10/19: Important sentencing decision and a good case on admissibility of Battered Woman Syndrome evidence
Today brings the first published reversals.
First, in United States v. Valencia-Mendoza, --- F.3d ---, No. 17-30158 (9th Cir. 2019), the Court vacated the defendant's illegal reentry sentence. The Court concluded the defendant's prior Washington state conviction for cocaine possession did not constitute a "felony" under 2L1.2.
This is an important decision because it changes our understanding of the definition of a felony under 2L1.2 The Guidelines define "felony" as "any federal, state, or local offense punishable by imprisonment for a term exceeding one year." U.S.S.G. § 2L1.2 cmt. n.2 (emphasis added).
The Court determined that, although the defendant’s Washington conviction carried a general statutory maximum term of imprisonment of five years, under the Washington statutes that prescribe a binding sentencing range, the actual maximum term that the defendant could have received was six months. As such, the conviction did not qualify as a "felony."
In other words, instead of looking just at the maximum authorized term, the inquiry must focus on what the defendant could actually have received under state law.
"In sum, the Supreme Court has held that courts must consider both a crime’s statutory elements and sentencing factors when determining whether an offense is 'punishable' by a certain term of imprisonment. Here, we are called on to decide whether Defendant’s earlier offense was punishable under Washington law by more than one year, and we can no longer follow our earlier precedents that eschewed consideration of mandatory sentencing factors. As noted, Washington statutes prescribe a required sentencing range that binds the sentencing court. The sentencing range can be modified, or rendered inapplicable altogether, if but only if the judge or the jury makes certain factual findings. In this case, no such finding was made, so the court was bound to adhere to the statutory sentencing range. Defendant’s offense—as actually prosecuted and adjudicated—was punishable under Washington law by no more than six months in prison. The district court therefore erred by concluding that his offense was punishable by more than one year in prison."
Second, in United States v. Lopez, --- F.3d ---, No. 16-10261 (9th Cir. 2019), the Court vacated the defendant's convictions for false statement during the purchase of a firearm, aggravated identity theft, and felon in possession of a firearm.
The defendant pursued a duress defense, arguing she bought the gun because she was too scared to say no to her boyfriend. In support of that defense, she sought to introduce expert testimony on Battered Woman Syndrome. The district court excluded the evidence.
The Ninth Circuit reversed:
"[W]e are persuaded that expert testimony on how BWS can cause individuals to become hypervigilant to impending harm does not . . . seek to alter the duress defense’s reasonable-person standard. The question is still whether or not 'a person of reasonable firmness in [the defendant’s] situation would have been unable to resist.'"
"We acknowledge . . . that the “‘snapshot’ of circumstances” shown to the jury is not limited to just those circumstances existing immediately prior to the commission of the crime. This court has long recognized that a defendant’s particular situation includes consideration of past experiences."
"Moreover, BWS evidence is compatible with assessing whether a defendant had a reasonable opportunity to escape from the coercing party. As seen above, this inquiry often focuses on why the defendant did not call the police at the first opportunity."
"[E]xpert testimony on BWS serves an important role in helping dispel many of the misconceptions regarding women in abusive relationships. Such evidence was vital to Lopez’s defense, which hinged on persuading the jury that she acted only out of an objectively reasonable fear."
Additionally, the Ninth gives us this reminder: "We have cautioned, however, 'that the exclusion of evidence offered by the defendant in a criminal prosecution under Rule 403 is ‘an extraordinary remedy to be used sparingly.'"
First, in United States v. Valencia-Mendoza, --- F.3d ---, No. 17-30158 (9th Cir. 2019), the Court vacated the defendant's illegal reentry sentence. The Court concluded the defendant's prior Washington state conviction for cocaine possession did not constitute a "felony" under 2L1.2.
This is an important decision because it changes our understanding of the definition of a felony under 2L1.2 The Guidelines define "felony" as "any federal, state, or local offense punishable by imprisonment for a term exceeding one year." U.S.S.G. § 2L1.2 cmt. n.2 (emphasis added).
The Court determined that, although the defendant’s Washington conviction carried a general statutory maximum term of imprisonment of five years, under the Washington statutes that prescribe a binding sentencing range, the actual maximum term that the defendant could have received was six months. As such, the conviction did not qualify as a "felony."
In other words, instead of looking just at the maximum authorized term, the inquiry must focus on what the defendant could actually have received under state law.
"In sum, the Supreme Court has held that courts must consider both a crime’s statutory elements and sentencing factors when determining whether an offense is 'punishable' by a certain term of imprisonment. Here, we are called on to decide whether Defendant’s earlier offense was punishable under Washington law by more than one year, and we can no longer follow our earlier precedents that eschewed consideration of mandatory sentencing factors. As noted, Washington statutes prescribe a required sentencing range that binds the sentencing court. The sentencing range can be modified, or rendered inapplicable altogether, if but only if the judge or the jury makes certain factual findings. In this case, no such finding was made, so the court was bound to adhere to the statutory sentencing range. Defendant’s offense—as actually prosecuted and adjudicated—was punishable under Washington law by no more than six months in prison. The district court therefore erred by concluding that his offense was punishable by more than one year in prison."
Second, in United States v. Lopez, --- F.3d ---, No. 16-10261 (9th Cir. 2019), the Court vacated the defendant's convictions for false statement during the purchase of a firearm, aggravated identity theft, and felon in possession of a firearm.
The defendant pursued a duress defense, arguing she bought the gun because she was too scared to say no to her boyfriend. In support of that defense, she sought to introduce expert testimony on Battered Woman Syndrome. The district court excluded the evidence.
The Ninth Circuit reversed:
"[W]e are persuaded that expert testimony on how BWS can cause individuals to become hypervigilant to impending harm does not . . . seek to alter the duress defense’s reasonable-person standard. The question is still whether or not 'a person of reasonable firmness in [the defendant’s] situation would have been unable to resist.'"
"We acknowledge . . . that the “‘snapshot’ of circumstances” shown to the jury is not limited to just those circumstances existing immediately prior to the commission of the crime. This court has long recognized that a defendant’s particular situation includes consideration of past experiences."
"Moreover, BWS evidence is compatible with assessing whether a defendant had a reasonable opportunity to escape from the coercing party. As seen above, this inquiry often focuses on why the defendant did not call the police at the first opportunity."
"[E]xpert testimony on BWS serves an important role in helping dispel many of the misconceptions regarding women in abusive relationships. Such evidence was vital to Lopez’s defense, which hinged on persuading the jury that she acted only out of an objectively reasonable fear."
Additionally, the Ninth gives us this reminder: "We have cautioned, however, 'that the exclusion of evidence offered by the defendant in a criminal prosecution under Rule 403 is ‘an extraordinary remedy to be used sparingly.'"
Wednesday, January 9, 2019
1/9/19: The first criminal cases of 2019
Today brings the first criminal cases of 2019.
First, in United States v. Torres, --- F.3d ---, No. 15-10492 (9th Cir. 2019), the Court upheld the constitutionality of 18 USC 922(g)(5) (possession of firearms by an alien unlawfully present in the United States), against a Second Amendment challenge.
The case was decided under intermediate scrutiny.
Here's the conclusion: "The present state of the law leaves us unable to conclude with certainty whether aliens unlawfully present in the United States are part of 'the people' to whom Second Amendment protections extend. Nonetheless, assuming that unlawful aliens do hold some degree of Second Amendment rights, those rights are not unlimited, and the restriction in § 922(g)(5) is a valid exercise of Congress’s authority."
Next, in United States v. Martinez-Hernandez, --- F.3d ---, No. 16-50423 (9th Cir. 2019), the Court affirmed the defendants' illegal reentry convictions. The defendants brought collateral challenges to their predicate deportation orders under 8 U.S.C. 1326(d). They argued their prior convictions under CPC § 211 no longer qualified as aggravated-felony crimes of violence under § 1101(a)(43)(F).
The Ninth Circuit agreed with that argument, but held it did not matter because the 211 robbery convictions qualified as a generic theft offense under 8 U.S.C. § 1101(a)(43)(G), and thus were aggravated felonies under 18 U.S.C. § 1227(a)(2)(A)(iii).
The Court, therefore, found the prior removal orders were valid. Notably, it reached this conclusion despite the fact that the defendants were not charged with being removable for having a theft offense, only on the basis of a crime of violence. This case therefore is somewhat of a departure from prior cases focusing exclusively on whether the individual was "deportable as charged."
Finally, in United States v. Johnson, --- F.3d ---, No. 17-10252 (9th Cir. 2019), the Court affirmed the district court's denial of the defendant’s motion to suppress evidence recovered from the warrantless searches of his person and car and the search (with a warrant) of his house.
The meat of the opinion is the discussion of the search incident to arrest. Under Ninth Circuit law, incident to arrest, does not have to be after the arrest: "a search incident to a lawful arrest may occur before the arrest itself, even if the crime of arrest is different from the crime for which probable cause existed."
"So long as the search was incident to and preceding a lawful arrest—which is to say that probable cause to arrest existed and the search and arrest are roughly contemporaneous, Smith, 389 F.3d at 951—the arresting officer’s subjective crime of arrest need not have been the crime for which probable cause existed."
Judge Watford concurs to point out that the search-preceding-arrest rule should be overruled.
First, in United States v. Torres, --- F.3d ---, No. 15-10492 (9th Cir. 2019), the Court upheld the constitutionality of 18 USC 922(g)(5) (possession of firearms by an alien unlawfully present in the United States), against a Second Amendment challenge.
The case was decided under intermediate scrutiny.
Here's the conclusion: "The present state of the law leaves us unable to conclude with certainty whether aliens unlawfully present in the United States are part of 'the people' to whom Second Amendment protections extend. Nonetheless, assuming that unlawful aliens do hold some degree of Second Amendment rights, those rights are not unlimited, and the restriction in § 922(g)(5) is a valid exercise of Congress’s authority."
Next, in United States v. Martinez-Hernandez, --- F.3d ---, No. 16-50423 (9th Cir. 2019), the Court affirmed the defendants' illegal reentry convictions. The defendants brought collateral challenges to their predicate deportation orders under 8 U.S.C. 1326(d). They argued their prior convictions under CPC § 211 no longer qualified as aggravated-felony crimes of violence under § 1101(a)(43)(F).
The Ninth Circuit agreed with that argument, but held it did not matter because the 211 robbery convictions qualified as a generic theft offense under 8 U.S.C. § 1101(a)(43)(G), and thus were aggravated felonies under 18 U.S.C. § 1227(a)(2)(A)(iii).
The Court, therefore, found the prior removal orders were valid. Notably, it reached this conclusion despite the fact that the defendants were not charged with being removable for having a theft offense, only on the basis of a crime of violence. This case therefore is somewhat of a departure from prior cases focusing exclusively on whether the individual was "deportable as charged."
Finally, in United States v. Johnson, --- F.3d ---, No. 17-10252 (9th Cir. 2019), the Court affirmed the district court's denial of the defendant’s motion to suppress evidence recovered from the warrantless searches of his person and car and the search (with a warrant) of his house.
The meat of the opinion is the discussion of the search incident to arrest. Under Ninth Circuit law, incident to arrest, does not have to be after the arrest: "a search incident to a lawful arrest may occur before the arrest itself, even if the crime of arrest is different from the crime for which probable cause existed."
"So long as the search was incident to and preceding a lawful arrest—which is to say that probable cause to arrest existed and the search and arrest are roughly contemporaneous, Smith, 389 F.3d at 951—the arresting officer’s subjective crime of arrest need not have been the crime for which probable cause existed."
Judge Watford concurs to point out that the search-preceding-arrest rule should be overruled.
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