2/27/20: Sheriff Joe, verdicts, pardons, and dismissals with prejudice.

In United States v. Arpaio, --- F.3d ---, No. 17-10448 (9th Cir. 2020), the Court affirmed the district court’s judgment dismissing the criminal proceeding with prejudice, and denying vacatur of the district court’s verdict finding Arpaio guilty of criminal contempt.

As you may recall, after the guilty verdict, but before sentencing, the president pardoned Mr. Arpaio, who then moved to vacate the verdict and dismiss the case.

The district court granted the motion to dismiss the case with prejudice, but refused to vacate the verdict. The Ninth Circuit affirmed, holding: "because the mootness issue here arises from the fact that the district court’s findings of guilt can be given no future preclusive effect . . . Arpaio is not entitled to vacatur."

There is some good stuff in the opinion about guilty verdicts:

"Though colloquially we refer to the district court’s finding of guilt as a 'conviction,' in reality, Arpaio never suffered a final judgment of conviction for criminal contempt. 'Final judgment in a criminal case means sentence. The sentence is the judgment.'"

"[T]here is no final judgment of conviction in this case; instead, there was a final judgment of dismissal with prejudice. This lack of a final judgment of conviction precludes the attachment of 'legal consequences,' such as a sentencing enhancement in a subsequent criminal case or claim or issue preclusion in a civil case."

"Although the U.S. Sentencing Guidelines contemplate an enhanced sentence after a guilty verdict and pending sentencing, U.S.S.G. § 4A1.2(a)(1), no such enhancement can be imposed where no sentence was ultimately imposed and the case was dismissed."

2/26/20: SCOTUS gives us two categorical methodologies

In Shular v. United States, 589 U.S. ---, No. 18-6662 (2020), the unanimous Court wrote: "This case invites us to decide which of the two categorical methodologies [] applies in determining whether a state offense is a 'serious drug offense' under ACCA."

The Court described the two approaches as follows: 

"Under some statutes, using a categorical approach requires the court to come up with a “generic” version of a crime—that is, the elements of “the offense as commonly understood.” We have required that step when the statute refers generally to an offense without specifying its elements. In that situation, the court must define the offense so that it can compare elements, not labels.  For example, in Taylor, confronted with ACCA’s unadorned reference to 'burglary,' we identified the elements of 'generic burglary' based on the 'sense in which the term is now used in the criminal codes of most States." 

"In contrast, other statutes calling for a categorical approach ask the court to determine not whether the prior conviction was for a certain offense, but whether the conviction meets some other criterion. For example, in Kawashima v. Holder, 565 U. S. 478 (2012), we applied a categorical approach to a statute assigning immigration consequences to prior convictions for “an offense that . . . involves fraud or deceit” with a loss exceeding $10,000. §1101(a)(43)(M)(i). The quoted language, we held, “mean[s] offenses with elements that necessarily entail fraudulent or deceitful conduct.” Id., at 484 (emphasis added). Consequently, no identification of generic offense elements was necessary; we simply asked whether the prior convictions before us met that measure.

The Court was unanimous in holding that section 924(e)(2)(A)(ii)’s “serious drug offense” definition requires only that the state offense involve the conduct specified in the statute; it does not require that the state offense match certain generic offenses.  In other words, the second of the two categorical methodologies applied.

I'm hopeful this will be less confusing in practice than it sounds.  Basically, (I think) when the federal statute refers to what is well-established as a distinct criminal offense -- e.g., robbery, burglary, extortion -- but does not include the elements, the categorical approach will require defining the generic offense.   

On the other hand, when the federal statute refers to conduct that is not itself a crime -- e.g., possession, distribution, deceit -- the categorical approach does not require identification of a generic crime.  Instead, the question is whether that conduct was an element of the predicate conviction.

To be sure, this will not always be straightforward, but it is now the law of the land.  

In other news, in Holguin-Hernandez v. United States, 589 U.S. ---, No. 18-7739 (2020), the Supreme Court held there is no need to object to the reasonableness of the sentence in order to preserve a claim on appeal that the sentence is too long.  

This is because a defendant who, by advocating for a particular sentence, communicates to the trial judge his view that a longer sentence is "greater than necessary" has thereby informed the court of the legal error at issue in an appellate challenge to the substantive reasonableness of the sentence. This was already the law in the 9th Cir. 

2/13/20: Aggravated identity theft case

In United States v. Gagarin, --- F.3d ---, No. 18-10026 (9th Cir. 2020), the Court affirmed a conviction for aggravated identity theft under 18 U.S.C. § 1028A(a)(1), a three-level role sentence enhancement, and the restitution order.

The case arose from a scheme to defraud an insurance company by submitting fraudulent life insurance applications. 

The defendant was convicted of the 1028A based on an application she submitted for her cousin.  The cousin testified she had asked for the policy and had intended to pay it, but had not been the one to sign it. 

On appeal, the defendant argued that, given her cousin's consent, the evidence was insufficient to support the conviction because: "(1) she did not 'use' a means of identification 'during and in relation to' the commission of wire fraud under the terms of the statute, (2) she did not act 'without lawful authority,' and (3) she did not use the means of identification of 'another person.'"

The Court rejected each of these arguments. 

First, it held, "Gagarin purported to take action on behalf of her cousin Melissa Gilroy, and in so doing used Gilroy’s identity to further the fraudulent insurance application."

Second, "[w]e have further held that § 1028A’s prohibition of the use of another person’s means of identification 'without lawful authority' 'clearly and unambiguously encompasses situations . . . where an individual grants the defendant permission to possess his or her means of identification, but the defendant then proceeds to use the identification unlawfully.'"

Third, the Court declined to adopt the Seventh Circuit's construction of the term "another person" to mean only a person who did not consent to the information’s use: "even if Gagarin had Gilroy’s consent, we follow our circuit precedent to hold that Gagarin used the means of identification of 'another person' by using the identification of another 'actual person.'"

As to the Guidelines issue, the Court explained, "[a]lthough '[i]t is not necessary that the district court make specific findings of fact to justify the imposition of the role enhancement,' there must be evidence in the record to support the enhancement.'"  On the facts before it, the Court found sufficient evidence.

Finally, the Court affirmed the joint and several restitution order. 

2/5/20: Unconditional guilty plea waives appellate rights

In United States v. Chavez-Diaz, --- F.3d ---, No. 18-50391 (9th Cir. 2020), the Court held the defendant "waived his right to appeal his equal protection and due process claims by entering an unconditional guilty plea."  Thus, it dismissed his appeal. 

The case arose out of the 1325 plea procedures in the S.D. Ca., where magistrate judges take misdemeanor illegal entry pleas from multiple defendants at the same time.   The defendant objected to the procedure on equal protection and due process grounds, but then pleaded guilty.  

On appeal, he argued his claims fell within the Menna-Blackledge exception—which allows for constitutionally-based appeals, despite an unconditional guilty plea, where the appeal, if successful, would mean that the government cannot prosecute the defendant at all. 

The Court disagreed, explaining: "Chavez-Diaz’s claims do not fall within the narrow Menna-Blackledge exception. None of those claims “would extinguish the government’s power to constitutionally prosecute the defendant if the claim[s] were successful.” Unlike the defendant in Class, Chavez-Diaz does not argue that Congress lacked the power to criminalize illegal entry into the United States or that the government could not prosecute him for such a violation. Indeed, Chavez-Diaz concedes that Congress has “broad plenary power to draft laws (such as § 1325),” and he does not “challenge the executive’s right to exercise prosecutorial discretion in a manner it sees fit.” At oral argument, moreover, ChavezDiaz conceded, as he understandably must, that if his claims were successful, the government could still retry him. That inevitable concession necessarily removes Chavez-Diaz from the limited ambit of the Menna-Blackledge exception, because his challenges do not “amount[] to a claim that ‘the State may not convict’ him.”"

2/4/20: Case on enhancement for substantial financial hardship to 25 or more victims

In United States v. George, --- F.3d ---, No. 18-50268 (9th Cir. 2020), the Court affirmed the defendant’s sentence for several fraud offenses. 

The Court held that U.S.S.G. § 2B1.1(b)(2)(C), which provides for a six-level enhancement if the offense “resulted in substantial financial hardship to 25 or more victims,” requires the sentencing court to determine whether the victims suffered a loss that was significant in light of their individual financial circumstances.  In other words, "substantial financial hardship" is relative to the resources of the individual victim. 

Under this standard, the Court affirmed the district court’s application of the enhancement.   It held the district court was not required to identify specific victims by name even if it had been asked to do so, and that it was sufficient for the government to produce evidence for enough of the victims to allow the sentencing court reasonably to infer a pattern.

The panel further held the “resulted in” language imposes a causation requirement, which “embraces two distinct concepts: but-for causation and proximate causation.”  The Court found both were met.