8/17/21: Rule 11 violations not automatically prejudicial

In United States v. Ferguson, --- F.4th ---, No. 19-10228 (9th Cir. 2021), the Court affirmed a bank robbery conviction.  

Ferguson sought to vacate his conviction because, during the plea colloquy, the magistrate judge  failed to ask him, as required by Fed. R. Crim. P. 11(b)(2), whether he was entering his plea voluntarily or whether his plea resulted from force, threats, or promises.

Applying plain-error review, the Court reaffirmed that a Rule 11 error does not automatically lead to reversal; a defendant must continue to show a Rule 11 violation’s impact on substantial rights.  Because Ferguson did not make that showing, the Court affirmed. 

8/16/21: Hobbs Act robbery is not a “crime of violence” under USSG § 4B1.2(a)

In United States v. Prigan, --- F.4th ---, No. 18-30238 (9th Cir. 2021), the Court vacated a sentence for illegally possessing firearms, and remanded for resentencing.

The Court held the district judge erred in concluding that Prigan's prior conviction for Hobbs Act robbery under 18 U.S.C. § 1951(b)(1) is a “crime of violence” under United States Sentencing Guidelines § 4B1.2(a).

Judge Murguia's opinion takes a straightforward approach to the categorical analysis.  So, if you need a quick refresher, this is a good opinion to read. 

Here's the conclusion: "In sum, Hobbs Act robbery sweeps more broadly than (1) § 4B1.2(a)’s force clause, (2) § 4B1.2(a)’s enumerated offense of robbery, and (3) § 4B1.2(a)’s enumerated offense of extortion. Hobbs Act robbery covers using force or threatening to use force against persons or property, while § 4B1.2(a)’s crime-of-violence definitions do not cover using force or threatening to use force against property. Accordingly, Prigan’s 2014 conviction for Hobbs Act robbery is not categorically a crime of violence under § 4B1.2(a). The district court erred in ruling otherwise when calculating Prigan’s Guidelines range."

Two things to note: 

1.  The opinion also addresses harmless error in the Guidelines context and reminds us:  "[n]ormally, [a] mistake in calculating the recommended Guidelines sentencing range is a significant procedural error that requires us to remand for resentencing."

2. The crime of violence definition in 4B1.2 is different from other statutes because it includes only force against the person (not property).  Thus, this case does not conflict with United States v. Dominguez, 954 F.3d 1251, 1260 (9th Cir. 2020), which held that Hobbs Act robbery constitutes a “crime of violence” under 18 U.S.C. § 924(c)(3)(A).  This issue is currently pending before the Supreme Court. 

8/13/21: 8/13/21: Case on sending threats via mail

In United States v. Bachmeier, --- F.4th ---, No. 20-30019 (9th Cir. 2021), the Court affirmed a conviction under 18 U.S.C. § 876(c) for sending a communication that threatened a state judge assigned to the defendant’s civil proceeding.

Section 876(c) prohibits an individual from (1) knowingly sending a communication through the mail that (2) is addressed to any other person and (3) contains any threat to kidnap any person or any threat to injure the person of the addressee or of another. 

Although Bachmeier sent his threat addressed to the Kenai Courthouse, not an individual, the Court held that the evidence was legally sufficient to support the jury's finding that the judge, a natural person, was the addressee because the letter specifically mentioned and threatened her. 

The Court further concluded the jury instructions were erroneous because they allowed the jury to convict based on Bachmeier's knowledge of the threat rather than his subjective intent to threaten. 

In reaching this conclusion, the Court explained that Ninth Circuit Model Criminal Jury Instruction 8.47A is incorrect.     "[C]ase law makes clear that a subjective intent to threaten is the required mental state, not, as Instruction 8.47A allows, mere 'knowledge that the [communication] would be viewed as a threat.'' Nevertheless, the error was harmless. 

8/11/21: "deferential standards of review have real consequences for real people"

Let's start today with a quote from the dissent: 

"I laud the deference which the majority affords to the experience and judgment of federal district judges. At some point, however, this deference must yield to reality and common sense. Courts of appeal must patrol the boundaries of procedural fairness and remind themselves that deferential standards of review have real consequences for real people. In Mr. Wilson’s case, he will serve 52 additional months in prison for reasons that—I respectfully submit—are not clear."

In today's case, United States v. Wilson, --- F.4th ---, No. 20-50015 (9th Cir. 2021), the majority affirmed the district court’s denial of Wilson’s second motion for a sentence modification under 18 U.S.C. § 3582(c)(2).

This is NOT a compassionate release case. 

This is a case where the original sentence was based on a sentencing range that has subsequently been lowered by the Sentencing Commission. 

There is a per curium majority, a concurrence, and a dissent. 

As the quote above suggests, the case turned on the majority's conclusion that the district court, in denying the second modification motion, sufficiently explained its reasons.  

There is also considerable discussion about whether Mr. Wilson's sentence even qualified for a reduction, because he had previously been resentenced.