First in United States v. Hanson, --- F.3d ---, No. 18-30037 (9th Cir. 2019), the Court affirmed the defendant's conviction but vacated his sentence. There was an Ex Post Facto violation. The Court held the district court violated the Ex Post Facto Clause when it sentenced the defendant to five years’ imprisonment under 18 U.S.C. § 3583(k) (2006) upon revoking his supervised release rather than sentencing him under the statutes as they existed in 2005 when he committed his first child pornography offense. Under those statutes, the maximum term of reimprisonment the district court could impose after revoking the defendant’s supervised release on his Class C felony conviction was two years.
The Court remanded for resentencing on both the new conviction and the supervised release violation. It held the "sentencing package" rule applies where the sentence on a judgment of revocation of supervised release and the sentence on a count of criminal conviction, both based on the same underlying conduct, were calculated and imposed at the same sentencing proceeding but the revocation sentence was subsequently determined to be illegal.
Next in United States v. Lilliard, --- F.3d ---, No. 16-30194 (9th Cir. 2019), the Court reversed the district court’s order granting the government’s motion pursuant to § 3664(n) of the Mandatory Victims Restitution Act to seize funds in the defendant’s inmate trust account to be applied to the defendant’s outstanding restitution debt.
In very short, section 3664(n) provides that if a person “receives substantial resources . . . during a period of incarceration, such person shall be required to apply the value of such resources to any restitution or fine still owed.” Applying the rule of lenity, the Court held the "period of incarceration" did not include time in pretrial detention. Thus, because the defendant received the money while in pretrial detention, the restitution order was improper.
The Court also held the subsequent conviction and sentence did not moot the issue.
Of note, the Court opted not to apply plain error. Here's what it said:
We hold that de novo, rather than plain error, review is appropriate for three reasons.
First, “plain error review typically applies where an issue raised on appeal was not ‘brought to the [district] court’s attention.’” United States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004) (emphasis and alteration in original) (quoting Fed. R. Crim. Proc. 52(b)). The government argued before the district court that § 3664(n) applied to Lillard because, as a pretrial detainee, he was in “federal custody.” The issue of whether § 3664(n) applies to periods of pretrial detention was thus brought to the district court’s attention.
Second, “[o]nce a . . . claim is properly presented, a party can make any argument in support of that claim . . . .” Yee v. Escondido, 503 U.S. 519, 534 (1992) (string cite omitted). “[I]t is claims that are deemed waived or forfeited, not arguments.” Pallares-Galan, 359 F.3d at 1095. Lillard claimed below that § 3664(k), rather than § 3664(n), was the proper provision under which to address his changed economic circumstances. Amicus’s argument that § 3664(n) does not apply to pretrial detainees is a further argument in support of that claim.
Third, when this court is “presented with a question that is purely one of law and where the opposing party will suffer no prejudice as a result of the failure to raise the issue in the trial court,” this court is not limited to plain error review. United States v. Saavedra-Velazquez, 578 F.3d 1103, 1106 (9th Cir. 2009) (internal quotations and citation omitted); see also Yijun Zhou, 838 F.3d at 1011. Whether § 3664(n) applies to pretrial detention is a pure question of law, and the United States, which has had an adequate opportunity to defend its interpretation below and on appeal, suffers no prejudice.
Finally, in United States v. McAdory, --- F.3d ---, No. 18-30112 (9th Cir. 2019), the Court reversed in a case in which the defendant was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and remanded with instructions that the district court vacate the conviction and dismiss the indictment.
This is an important decision. An offense qualifies as a predicate felony for conviction under § 922(g)(1) if it is “punishable by imprisonment for a term exceeding on year.” This decision concerned the definition of "punishable by."
Rather than the statutory maximum, the Court held that, under United States v. Valencia-Mendoza, 912 F.3d 1215 (9th Cir. 2019), “punishable by” means the sentence to which the defendant is actually exposed under Washington’s mandatory sentencing scheme (often less than a year). If your client has a prior from a state with a mandatory sentencing scheme, this decision could make a big difference. What appears to be a felony might not be.
Of note is the extended discussion of what qualifies as mere dicta and what is binding precedent.
