12/27/19: geometric isomers of methamphetamine?

In United States v. Rodriguez-Gamboa, --- F.3d ---, No. 19-50014 (9th Cir. 2019), the Court once again confronted the difference between the federal definition of methamphetamine and California's definition.  (this was previously addressed in the now withdrawn Lorenzo opinion).

The relevant federal statute defines methamphetamine as including only methamphetamine and its optical isomer, while California law defines methamphetamine as including its geometric and optical isomers.

This is important because it would seem to make California methamphetamine convictions overbroad such that they could not generally serve as predicate convictions for federal law. 

BUT, "the government contends that this apparent difference is illusory because there is no such thing as a geometric isomer of methamphetamine."

Here, the Court did not resolve the factual issue but remanded to the district court for an evidentiary hearing.

So stayed tuned on this important issue.

The opinion also has some good language on withdrawing a guilty plea:

• The district court may allow a guilty plea to be withdrawn if “the defendant can show a fair and just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). A fair and just reason includes “intervening circumstances, or any other reason for withdrawing the plea that did not exist when the defendant entered his plea.”  A change in the law can justify withdrawal of a plea. 

12/24/19: Guidelines case about U.S.S.G. § 2A2.2(b)(4)

In United States v. Harrington, --- F.3d ---, No. 18-30141 (9th Cir. 2019), the Court affirmed the defendant's sentence following his conviction for "assault by strangling a spouse in Indian country in violation of 18 U.S.C. § 113(a)(8)."

The issue was whether the district court impermissibly double counted when it applied a three-level enhancement for strangling a spouse under § 2A2.2(b)(4).

The Court held it did not: "We hold that application of the three-level adjustment for strangulation to Harrington’s sentence does not constitute impermissible double counting."

12/16/19: Good Guidelines decision

In United States v. Wang, --- F.3d ---, No. 17-10275 (9th Cir. 2019), on plain-error review, the Court vacated the defendant's sentences imposed at the same hearing in two cases – one in which the defendant pleaded guilty to mail fraud, visa fraud, money laundering, and willful failure to pay over tax; the other in which the defendant pleaded guilty to conspiracy to commit visa fraud.

This case demonstrates how tricky the Guidelines can be when the court holds a single sentencing hearing on two separate cases.

The issue on appeal was the district court's application of section 2B1.1 -- the offense Guideline that covers general fraud offenses -- to the defendant's mail fraud conviction pursuant to 18 U.S.C. § 1341.

The Court held: "the district court erred by applying § 2B1.1 to calculate the offense level for Wang’s mail fraud count of conviction. The allegations underlying this count established an immigration visa fraud offense expressly covered by § 2L2.1. Therefore, the district court should have followed the § 2B1.1(c)(3) cross-reference and applied § 2L2.1."

In short, section 2B1.1contains a cross-reference directing the district court to apply another Guideline when, among other conditions, “the conduct set forth in the count of conviction establishes an offense specifically covered by another guideline in Chapter Two." 

Here, the conduct alleged in the indictment's mail fraud count established a visa fraud offense specifically covered by § 2L2.1.  Thus, the district court should have applied 2L2.1.

The Court went on to explain why the error was plain and required resentencing.  It also detailed the proper method of determining whether to impose consecutive or concurrent time for multiple counts under U.S.S.G. § 5G1.2.

12/9/19: Impossible bribery

In United States v. Kimbrew, --- F.3d ---, No. 18-50251 (9th Cir. 2019), the Court affirmed the defendant's bribery conviction. 

"Kimbrew does not dispute that he took money in exchange for a promise that he made as a federal public official. He instead argues that he promised to do the impossible, so his conduct falls outside the purview of § 201 bribery.1 We are not persuaded, and we affirm."

Some important points about § 201 bribery.

• The statutory definition of “official act” contains broad temporal language that indicates the question or matter at issue need not currently be pending or capable of being brought before a public official.

• § 201 liability does not depend on an outcome; the offense is complete at the moment of agreement, and that agreement need not even be accompanied by the bribe recipient’s genuine intentions to follow through.

• Nowhere in the statute or in the governing case law is there a requirement that the bribe recipient be able to succeed in exerting that pressure or persuading through his advice to realize the desired result.

• The official can be convicted even if he never intended to perform the official act for which he was bribed. Id. at 2371. In short, execution is immaterial. It logically follows, then, that § 201 is not limited by the odds of success of the quo at issue.

• the “official act” core of § 201 carries with it a requirement that there be a nexus between the public official’s position and the quo he promises. 

12/2/19: Two crimes of violence

In two recent decisions the Ninth Circuit held that:

1. assault with a dangerous weapon described in 18 U.S.C. § 113(a)(3) is a crime of violence under 18 U.S.C. § 924(c)(3)(A).   United States v. Gobert, --- F.3d ---, No. 17-35970 (9th Cir. 2019)

2. armed robbery involving controlled substances described in 18 U.S.C. § 2118(c)(1) is a crime of violence under 18 U.S.C. § 924(c)(3)(A).  United States v. Burke, --- F.3d ---, No. 17-35446 (9th Cir. 2019)

The cases use the same reasoning to reach the same result.  Nothing else to report on them.