9/16/21: Two opinions from Judge Bea

A busy day in the Ninth brings two opinions worth noting from Judge Bea. 

First, Alcaraz-Enriquez v. Garland, --- F.4th ---, No. 15-71553 (9th Cir. 2021), is an immigration case with criminal law implications.  I'm not going to summarize the entire opinion.  From the criminal law perspective, the relevant aspect has to do with the right to cross-examine the author of a probation report.

These principles—reliable evidence and fundamental fairness—converge when it comes to Alcaraz’s probation report. Alcaraz was never given any sort of opportunity to cross-examine the witnesses whose testimony was embodied in the probation report, and upon whose testimony the BIA ultimately relied in denying his appeal. Nor was any effort made—good faith or not—by the DHS to procure the witnesses, after Alcaraz preserved his right by adequate objection. This rendered the BIA’s procedure fundamentally unfair, especially given that probation reports may not offer a “highly reliable basis” on which to make important immigration decisions. Dickson, 346 F.3d at 54. So in light of the BIA’s failure to give Alcaraz an opportunity to confront the witnesses against him, the BIA’s reliance on the probation officer’s report was error.

If probation reports may not offer a highly reliable basis on which to make important immigration decisions, it stands to reason that the same is true for contested sentencing decisions.  

Second, in United States v. Shaefer, --- F.4th ---, No. 19-30266 (9th Cir. 2021), the Court affirmed the convictions and sentence for a variety of offenses, including assault on a federal officer (18 U.S.C. § 111(a)–(b)) and possession of an unregistered destructive device (26 U.S.C. §§ 5841, 5861(d), 5871). 

This is a long opinion covering numerous issues.  Much of the focus is on the right to self-representation and a court's ability to deny reappointment of counsel once a defendant has been granted permission to proceed pro se.  

One new rule from the opinion addresses a situation when, in the course of taking a waiver of counsel, the district court fails to inform the defendant of the correct minimum penalties.

[A]lthough it was made clear that Schaefer’s sentencing range was thirty years to life, his actual sentencing range—with § 844(h)’s stacking provision and assuming the merger of Schaefer’s counts under that subsection—was forty years to life.

We have not directly encountered a circumstance in which, like here, a district court incompletely identified only the defendant’s minimum sentence. Instead, we usually encounter circumstances in which the district court inaccurately identified the defendant’s maximum sentence.  In those circumstances, we evaluated the defendant’s “awareness of the range of possible penalties,” and whether the defendant understood “the magnitude of the loss” he faced and “knew of his substantial penal exposure.”

We see no reason to apply a different rule to the defendant’s knowledge of the minimum penalties than that which we apply to the defendant’s knowledge of the maximum penalties. Therefore, we hold that to find a defendant knowingly and intelligently waived his right to counsel, he must have substantially understood the severity of his potential punishment under the law and the approximate range of his penal exposure. Ideally, of course, a district court should strive to ensure that the defendant unquestionably understands all possible penalties, including any statutory minimums, maximums, and stacking provisions 

There is also an extended discussion of whether Schaefer's "homemade explosive device constituted a 'destructive device' within the scope of 18 U.S.C. § 921(a)(4) and 26 U.S.C. § 5845(f)."  The Court concluded it did.