2/10/22: Section is 1324(a)(1)(A)(iv) is unconstitutional as facially overbroad

In United States v. Hanson, --- F4th ---, No. 17-10548 (9th Cir. 2022), the Court vacated convictions on two counts of encouraging or inducing an alien to reside in the United States for private financial gain in violation of 8 U.S.C. § 1324(a)(1)(A)(iv), and remanding for resentencing.  

The Court held that subsection (iv) is overbroad under the First Amendment and unconstitutional.

We []"interpret subsection (iv) as prohibiting someone from (1) inspiring, helping, persuading, or influencing, (2) through speech or conduct, (3) one or more specified aliens (4) to come to or reside in the United States in violation of civil or criminal law."

"It is clear that subsection (iv) covers a substantial amount of protected speech. Many commonplace statements and actions could be construed as encouraging or inducing an undocumented immigrant to come to or reside in the United States. For example, the plain language of subsection (iv) covers knowingly telling an undocumented immigrant 'I encourage you to reside in the United States.' Such a statement is protected by the First Amendment."

"[T]the government’s interpretation of subsection (iv)’s reach is subject to change and is irrelevant: 'the First Amendment protects against the government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the government promised to use it responsibly.'" 

"We are mindful that invalidating subsection (iv) for overbreadth is 'strong medicine' that is not to be 'casually employed.'  However, for the reasons we have set forth above, subsection (iv) is overbroad and unconstitutional."

2/3/22: Federal kidnapping case

In United States v. Jackson, --- F.4th ---, No. 19-10070 (9th Cir. 2022), the Court reversed a conviction for kidnapping under 18 U.S.C. § 1201(a)(2), and remanded for resentencing.

The basic facts were that Jackson assaulted his ex-girlfriend.  During the assault, he restrained her.  The government charged him with assault and kidnapping.  The jury convicted him of both.

As to the kidnapping charge, the Court noted the Supreme Court's warning that the statute should be narrowly construed to cover only true kidnapping:  "Were we to sanction a careless concept of the crime of kidnaping or were we to disregard the background and setting of the Act the boundaries of potential liability would be lost in infinity. A loose construction of the statutory language conceivably could lead to the punishment of anyone who induced another to leave his surroundings and do some innocent or illegal act of benefit to the former . . . . The absurdity of such a result . . . is sufficient by itself to foreclose that construction."

The Court explained, "[t]he facts here, viewed in the light most favorable to the government, do not bear the hallmarks of a 'true kidnaping[].'"

"[T]o distinguish facts that constitute kidnapping from those that do not," the Court adopted the analysis in Government of the Virgin Islands v. Berry, 604 F.2d 221, 224 (3d Cir. 1979).  Specifically, there are "four factors to guide courts and juries in defining kidnapping . . . . (1) the duration of the detention or asportation; (2) whether the detention or asportation occurred during the commission of a separate offense; (3) whether the detention or asportation which occurred is inherent in the separate offense; and (4) whether the asportation or detention created a significant danger to the victim independent of that posed by the separate offense."

"[W]e hold that, in kidnapping prosecutions under 18 U.S.C. § 1201(a)(2), courts should consider the Berry factors to evaluate whether the charged conduct constitutes kidnapping. This is a factual inquiry, taken up during a Rule 29 motion and, if appropriate based on the circumstances of the case, incorporated into jury instructions."

"Applying these factors, we conclude that the government failed to prove beyond a reasonable doubt that a kidnapping occurred." 

2/1/22: Interesting decision related to collateral attacks

 In United States v. Schlenker, --- F.4th ---, No. 20-30141 (9th Cir. 2022), the Court affirmed the district court’s orders (1) granting the government’s motion to dismiss Jeremy Schlenker’s civil action seeking a declaration that filing a 28 U.S.C. § 2255 motion would not breach the plea agreement he entered in his criminal case in 2016, and (2) denying Schlenker’s motion to clarify the terms of the plea agreement.

Schlenker pleaded guilty to second-degree murder in violation of 18 U.S.C. §§ 1111 and 1153(a), and possession of a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A).  As part of the plea agreement, Schlenker waived his right to collaterally attack his conviction and sentence, except for ineffective assistance of counsel claims.

A few years after his sentencing, the Supreme Court held that the residual clause of § 924(c)(3), the provision defining a “crime of violence,” was unconstitutionally vague.  The Ninth Circuit then held that second-degree murder is not a “crime of violence” under the elements clause of § 924(c)(3).

As a result of these developments, Schlenker sought to challenge the validity of his § 924(c) sentence in a habeas proceeding, and his counsel so informed the government. The prosecutors responded that the government would oppose such relief and consider the filing of such an action to be a breach of the plea agreement. Schlenker then filed a motion to clarify the terms of his plea agreement (“Motion to Clarify”) in his criminal case. He also filed a civil action seeking a declaration that filing a motion under 28 U.S.C. § 2255 would not breach the plea agreement. In both cases, the district court concluded that it lacked jurisdiction because there was no “case or controversy” as required under Article III. See U.S. Const. Art. III, § 2, cl. 1.

The Court affirmed "because Schlenker’s declaratory action and Motion to Clarify improperly seek to carve out a collateral legal issue from a potential habeas petition and to use the Declaratory Judgment Act, 28 U.S.C. § 2201, as a substitute to challenge his sentence."