11/29/21: Case on exhaustion requirement for 1326(d)

In United States v. De La Mora-Cobian, --- F.4th ---, No. 20-30187 (9th Cir. 2021), the Court affirmed the district court’s order denying a motion to dismiss the indictment for illegal reentry under 8 U.S.C. § 1326 on the basis that De La Mora-Cobian was precluded from collaterally attacking the underlying order of removal.

"We hold under the statutory framework enacted by Congress that an alien who raises a claim for asylum during expedited removal proceedings is provided with an administrative remedy that must be exhausted before that order of removal can be collaterally challenged in a subsequent criminal prosecution for reentering the United States."

"De La Mora-Cobian initiated an application for asylum, received a credible fear interview, and had the opportunity to appeal the adverse credible fear determination to an immigration judge—an administrative remedy he failed to exhaust. While Congress has generally limited administrative challenge to expedited removal orders, see 8 U.S.C. § 1225(b)(1)(C), Congress did allow administrative review of the denial of an asylum claim as part of the expedited removal process, see id. § 1225(b)(1)(B)(iii)(III). De La Mora-Cobian chose to waive this administrative review of his asylum claim, and such a failure to exhaust the statutory remedy constitutes a bar to collateral review of the deportation order now."

11/26/21: Case on special conditions of supervised release

In United States v. Reyes, --- F.4th --- No. 20-50016 (9th Cir. 2021), the Court vacated the supervised release portion of the sentence, affirmed the custodial portion, and remanded.  

This is a SDCA case.  At sentencing, without notice, the district court imposed a very broad Fourth waiver (search condition) that was not on the list of mandatory or discretionary conditions.  Reyes objected, but was cut off by the judge. 

On appeal, the Court reaffirmed that, under United States v. Wise, 391 F.3d 1027 (9th Cir. 2004), when a particular “condition of supervised release is not on the list of mandatory or discretionary conditions in the sentencing guidelines, notice is required before it is imposed, so that counsel and the defendant will have the opportunity to address personally its appropriateness.”  Here, because there was no notice, the search condition was improper. 

In reaching this conclusion, the Court rejected the government's arguments that plain-error review applied and that Wise had been overruled.  The Court sent the case back to the district judge on a limited remand to redo the conditions of supervised release. 

11/23/21: Big case on sentencing law

In United States v. Franklin, --- F.4th ---, No. 20-30136 (9th Cir. 2021), the Court affirmed the sentence for possession of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i)–(ii) and 2, and robbery affecting interstate commerce (Hobbs Act robbery) in violation of 18 U.S.C. § 1951(a).

This case is a must read for anyone practicing federal criminal law.  It focuses on the minimal-indicia-of-reliability doctrine, which governs the type of information that district judges can rely on at sentencing. 

It is a lengthy opinion with a concurrence.  

Here are the most relevant passages:

• Mr. Franklin contends that the district court violated his due-process rights at sentencing by relying on his codefendants’ unsworn hearsay statements, which accused him of trying to influence their testimony, in imposing the obstruction-of-justice enhancement. Finding the appropriate standard of review unclear from our precedents, we take this opportunity to clarify it. Under the correct standard, Mr. Franklin’s challenge fails.

• Hearsay is generally admissible in sentencing hearings, as neither the Confrontation Clause nor the Federal Rules of Evidence apply to such hearings. United States v. Petty, Nevertheless, “[d]ue process requires that some minimal indicia of reliability accompany a hearsay statement” introduced at sentencing.  In particular, “relying on accomplice hearsay without adequate indicia of reliability violate[s]” due process. The defendant typically has the burden to show that disputed hearsay is false or unreliable. 

• But a statement by a coconspirator that inculpates the defendant “is inherently unreliable.”  We presume such statements unreliable because the coconspirator “may very well have been hoping to curry favor with law enforcement officials by implicating his accomplice.” 

• Whether the government rebuts that presumption turns on whether the coconspirator’s statements have independent corroboration. That corroboration may come from trial testimony, the defendant’s own testimony, or even from other codefendants’ hearsay accounts.

• Reviewing our cases, we find that we have not yet clearly enunciated the standard by which we review a district court’s determination of whether coconspirator hearsay is unreliable.

• We conclude that there are two distinct questions that we answer in examining a hearsay statement at sentencing: (1) whether the statement is “procedurally reliable” and (2) whether the statement is “substantively reliable.” This is a disjunctive test: If we answer either question in the affirmative, then the statement may be considered at sentencing. 

• First, procedural reliability. We ask whether there are sufficient procedural protections so that the defendant does not have to “prove a negative” in the face of government allegations. This is an essentially legal question because whether the defendant is in that position “implicate[s] constitutional rights” and requires us “to exercise judgment about the values that animate legal principles. Generally, if the government supports the hearsay statements with extrinsic evidence that the defendant can challenge on cross-examination, then we have found the process to be adequate to ensure that the defendant is not sentenced on the basis of unreliable or false information.  The district court may then consider the hearsay statement under the rubric of procedural reliability after finding the extrinsic evidence to sufficiently corroborate the hearsay statement.

• Second, if the government offers no corroboration of a hearsay statement that the defendant can challenge at sentencing through the normal adversarial process, we proceed to the substantive inquiry. As our cases show, substantive indicia of reliability can be enough to safeguard the defendant’s right not to be sentenced on the basis of unreliable or false information. Thus, hearsay from a source that is self-demonstrably reliable is permissible on its own. See Chee, 110 F.3d at 1492. And even if the hearsay is from a presumptively unreliable source, such as a coconspirator, the government can prove its reliability by exhibiting other, independently obtained, consistent hearsay statements— even other presumptively unreliable statements, as in Berry. But, unlike procedural reliability, substantive reliability is an essentially factual issue. It requires judging whether a statement is probably truthful in light of all the circumstances—that is, “the application of the fact-finding tribunal’s experience with the mainsprings of human conduct.”

• The upshot is this. A determination of procedural reliability—that the hearsay in question does not put the burden on the defendant to prove a negative and that the defendant has adequate opportunity to confront corroborative evidence of the hearsay—is an essentially legal question that we review de novo. A determination of substantive reliability—whether hearsay statements admitted at sentencing are from reliable sources or are consistent enough with one another to indicate their probable truth—is an essentially factual question that we review for clear error. And so long as each hearsay statement offered by the government at sentencing is either procedurally reliable or substantively reliable, due process is not offended.

Applying these standards, the Court found the subject evidence was both procedurally and substantively reliable.  

Judge Berzon concurred because she "disagree[d] that we have developed a disjunctive test under which a hearsay statement may form the basis for a defendant’s sentence if it is either “procedurally reliable” or “substantively reliable.”  I read our cases as requiring, at a minimum, "substantive reliability."

11/16/21: No due process right to use medical marijuana

In United States v. Langley, --- F.4th ---, No. 20-50119 (9th Cir. 2021), the Court affirmed the district court’s denial of Richard Langley’s motion to amend the conditions of his supervised release to permit him to use medical marijuana as allowed by California state law.

The case is not really about marijuana, but instead the rules of prior binding authority. 

Langley argued he has a fundamental constitutional right under the Fourteenth Amendment’s Due Process Clause to use medical marijuana. The Court disagreed, holding it was bound by Raich v. Gonzales, 500 F.3d 8850 (9th Cir. 2007), which rejected the identical substantive due process claim.

Langley argues that we are no longer bound by Raich’s conclusion. He points out that Raich acknowledged that widespread legal recognition of a practice can sometimes provide additional evidence that a right is fundamental, id. at 865–66 (discussing Lawrence v. Texas, 439 U.S. 558, 571–72 (2003)), and that 36 states and the District of Columbia no longer criminalize the use of marijuana for medical purposes. But this argument misunderstands our rule that “a published decision of this court constitutes binding authority which must be followed unless and until overruled by a body competent to do so,” Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012) (cleaned up), aff’d sub nom. Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1 (2013). Raich’s conclusion that medical marijuana use is not “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty,” 500 F.3d at 864, is binding on us until it is overturned by a higher authority. Even if state laws decriminalizing marijuana use could constitute additional evidence under the Glucksberg test, we are bound by our holding in Raich until such time as a higher authority determines that there is a fundamental right to medical marijuana use that we are “blind to” today, id. at 866. See Wilson v. Lynch, 835 F.3d 1083, 1098 n.9 (9th Cir. 2016) (holding that a substantive due process claim based on a fundamental right to use medical marijuana is “foreclosed by our decision in Raich”). 

11/15/21: What constitutes "custody" for purposes of 2254

In Munoz v. Smith, --- F.4th ---, No. 20-16327 (9th Cir. 2021), the Court held that the district court lacked jurisdiction to adjudicate the subject petition under 28 U.S.C. § 2254.

As a result of a prior, Nevada sex offense, Munoz was on lifetime supervision, which consisted of the following conditions: (1) a $30 monthly fee to defray the costs of his supervision; (2) electronic monitoring; and (3) a requirement that he may reside at a location only if the residence has been approved by his parole officer, and that he keep his parole officer informed of his current address.

Munoz filed a 2254 arguing that his lifetime supervision conditions violated his due process rights and the Ex Post Facto Clause.

The Court held the district court did not have jurisdiction over the petition because Munoz was no longer in custody.  

"A person may seek federal habeas relief if he is 'in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.' 28 U.S.C. § 2254(a). . .  . We hold that under our precedents and on this record, the[] conditions do not severely and immediately restrain the petitioner’s physical liberty. Petitioner is therefore not challenging his 'custody,' and his claims are not cognizable in federal habeas."

"On remand, the district court may determine whether to allow Munoz, upon a proper showing, leave to file an amended habeas petition that could secure jurisdiction under § 2254. In addition, or alternatively, the district court may consider whether it would be appropriate to construe [Munoz’s] petition for habeas corpus to plead a cause of action under § 1983 after notifying and obtaining informed consent from Munoz."

11/8/21: Criminal forfeiture case

In United States v. Prasad, --- F.4th ---, No. 19-10454 (9th Cir. 2021), the Court affirmed the district court’s forfeiture order under 18 U.S.C. § 982(a)(6)(A)(ii) in the amount of $1,193,440.87, in a case in which a jury convicted Abhijit Prasad of twenty-one counts of visa fraud, in violation of 18 U.S.C. § 1546(a), and two counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1).

The case is about how to measure the forfeitable amount under the statute.  As a result of the visa fraud, Prasad's company was paid $1,193,440.87 but most of that money was then paid to the visa recipients as wages for their legitimate work.  Prasad's profit from the scheme was $238,688.17. 

• The government argued that $1,193,440.87 “represent[s] the amount of proceeds Prasad obtained as a result of the criminal conduct for which he was convicted.” Prasad opposed the government’s motion but did not dispute that Maremarks received $1,193,440.87 from the end-clients for the work the H-1B beneficiaries performed. Instead, Prasad argued that the most the court could order him to forfeit was $238,688.17, which was the estimated amount he kept after paying the beneficiary employees for the work they performed for the end-clients.5 The district court disagreed and ordered forfeiture in the full amount the government requested. Prasad filed a timely notice of appeal, see Fed. R. App. P. 4(b)(1), and we have jurisdiction pursuant to 28 U.S.C. § 1291.

• Under our precedent, it does not matter that Prasad paid portions of the $1,193,440.87 to the H-1B beneficiaries and at that point no longer possessed those portions.

• Thus, 18 U.S.C. § 982(a)(6)(A)(ii)(I) only requires that the government show that the defendant had possession of the property at some point to establish that the defendant “obtained” it. See id. In sum, because Prasad controlled the $1,193,440.87, he possessed it and so necessarily had obtained it. We therefore conclude that Prasad “obtained” the $1,193,440.87 that the end-clients paid to Maremarks.

• Considering the term “proceeds” in the context of the forfeiture statute, the statute’s punitive purpose, and our prior construction of virtually identical criminal forfeiture provisions, we conclude that the term “proceeds” extends to receipts and is not limited to profit.

• In sum, while the term “proceeds” is ambiguous on its own, we must look to the entire text of a statutory provision when interpreting the meaning of a particular term. Here, placing “proceeds” in its proper context by interpreting it in light of the term “obtained” and 21 U.S.C. § 853(c) (as incorporated by 18 U.S.C. § 982(b)) supports that “proceeds” under 18 U.S.C. § 982(a)(6)(A)(ii)(I) denotes receipts.

• In sum, we have consistently held that “proceeds” means receipts when used in criminal forfeiture provisions that are materially similar to 18 U.S.C. § 982(a)(6)(A)(ii)(I), specifically 18 U.S.C. § 982(a)(2), 18 U.S.C. § 1963(a)(3), and 21 U.S.C. § 853(a)(1). We see no reason to make § 982(a)(6)(A)(ii)(I) an outlier, especially considering the statutes’ nearly identical language and shared punitive purpose. United States v. Novak, 476 F.3d 1041, 1051 (9th Cir. 2007) (en banc) (“[C]ourts generally interpret similar language in different statutes in a like manner when the two statutes address a similar subject matter.” (citations omitted)).

• The term “proceeds” under 18 U.S.C. § 982(a)(6)(A)(ii)(I) could mean either profits or receipts. However, in the context of the entire text of the provision, the punitive purpose of 18 U.S.C. § 982, and our prior construction of substantially similar criminal forfeiture provisions, we conclude that the better construction is that “proceeds” means receipts. The term “proceeds” is not limited to Prasad’s profits. Rather, Prasad must forfeit the receipts he “obtained directly or indirectly from” his commission of visa fraud. 18 U.S.C. § 982(a)(6)(A)(ii)(I). Thus, the district court did not err by including the portions of the $1,193,440.87 that Prasad received from the end clients and paid the H-1B beneficiaries as wages in its calculation of the “proceeds” subject to forfeiture.