2/27/19: Good SCOTUS case on appeal waivers

Today in Garza v. Idaho, 586 U.S. ___, (2019), the Supreme Court extended Roe v. Flores-Ortega, 528 U. S. 470 (2000), which held that when an attorney’s deficient performance costs a defendant an appeal that the defendant would have otherwise pursued, prejudice to the defendant should be presumed “with no further showing from the defendant of the merits of his underlying claims.”

Under today's decision, the same rule applies even when the defendant has signed an appellate waiver: "This case asks whether that rule applies even when the defendant has, in the course of pleading guilty, signed what is often called an 'appeal waiver'—that is, an agreement forgoing certain, but not all, possible appellate claims. We hold that the presumption of prejudice recognized in Flores-Ortega applies regardless of whether the defendant has signed an appeal waiver."

Additionally, the Court made clear, "simply filing a notice of appeal does not necessarily breach a plea agreement, given the possibility that the defendant will end up raising claims beyond the waiver’s scope."

2/8/19: Forfeiture case

In United States v. Soto, --- F.3d ---, No. 18-10070 (9th Cir. 2019), the Court affirmed the district court's forfeiture order for substitute property.

The defendant pleaded guilty to one count of attempting to export ammunition from the United States, in violation of 18 U.S.C. § 554, and one count of conspiracy to export firearms and ammunition, in violation of 18 U.S.C. § 371.

Although §§ 371 and 554(a) are not expressly mentioned in the federal forfeiture statutes, the Court concluded forfeiture was authorized under 18 U.S.C. § 924(d)(1), which covers forfeiture of firearms and ammunition "involved" in a federal crime.  Further, the district court properly ordered forfeiture of substitute property under 28 U.S.C. § 2461(c) and 21 U.S.C. § 853(p).

 

2/1/19: Good sentencing decision

The first day of February brings a good sentencing decision.

In United States v. Verderoff, --- F.3d ---, No. 17-30096 (9th Cir. 2019), the Court vacated a sentence for felon in possession of a firearm.

The short version is that the Court determined second-degree assault under Wash. Rev. Code § 9A.36.021(1) is overbroad when compared to the generic definition of aggravated assault. And it found second-degree murder under Wash.Wash. Rev. Code § 9A.32.050 (2003) is overbroad when compared to the generic definition of murder. The Court further found both statutes were indivisible.  Thus, because neither qualified as a  “crime of violence” under § 4B1.2, the district court erred in calculating the sentencing range.

And despite the fact that the district court said its 60-month sentence was appropriate regardless of what range applied, the Court vacated the sentence, rejecting the government's harmless error argument.  There is helpful language on this point:

Here, it appears that the district court started with the presumption that a 60-month sentence was the correct one, and it attempted to justify it as either a downward departure from the Guidelines calculation he accepted at sentencing or an upward departure from the Guidelines calculation advocated by defense counsel. Having now determined that the proper Guideline range would be 30 to 37 months, we cannot say that the district court’s incorrect calculation of the proper Guideline range was harmless. The explanation given by the district court does not explain why the court imposed a sentence nearly double the Guideline range. Nor does it demonstrate that the district court would impose the same sentence if the correct Guidelines range were “kept in mind throughout the process.” Id. at 1030 (citation omitted). Moreover, the explanation provided by the district court does not account for the amount or direction of the departure; the mitigating factors discussed by the district court could also have warranted a downward variance from the proper Guideline range. This case must therefore be remanded for resentencing with the correct Guidelines range in mind. United States v. Brown, 879 F.3d 1043, 1051 (9th Cir. 2018) (“The use of an incorrect starting point and the failure to keep the proper Sentencing Guidelines range in mind as the sentencing decision was made constituted ‘a significant procedural error,’ and the case must be remanded for resentencing.” (quoting Munoz-Camarena, 631 F.3d at 1030)).