5/20/22: Case on five-level enhancement under § 2G2.2(b)(3)(B) and the Justice for Victims of Trafficking Act, 18 U.S.C. § 3014(a)

In United States v. Randall, --- F.4th ---, No. 20-10339 (9th Cir. 2022), the Court affirmed a sentence and special assessment for distributing and receiving child pornography in violation of 18 U.S.C. § 2252A. 

The Court considered two questions:

First, USSG § 2G2.2(b)(3)(B) provides for a five-level enhancement for offenders who distribute child pornography “in exchange for any valuable consideration.” The question was whether the offender must actually receive the “valuable consideration.”

Second, the Justice for Victims of Trafficking Act, 18 U.S.C. § 3014(a), mandates a $5,000 special assessment for defendants convicted of certain sex crime offenses.  The Court considered whether the $5,000 assessment attaches to each offense of conviction or whether the statute permits only a single assessment of $5,000 for each defendant per case. 

The Court held: "(1) that § 2G2.2(b)(3)(B) does not require the defendant to receive any “valuable consideration”; and (2) that § 3014(a) requires a $5,000 fine per offense." 

Judge Wardlaw dissented as to the second point. 

Finally, here is a good line that can be used in other circumstances: "when Congress adopts a phrase with a settled judicial interpretation, absent some indication to the contrary, we presume that Congress chose to give the phrase its established meaning."

5/16/22: Covid and the Sixth Amendment right to a public trial

In United States v. Allen, --- F.4th ---, No. 21-10060 (9th Cir. 2022), the Court vacated Allen’s conviction and the district court’s denial of his motion to suppress, and remanded for a new suppression hearing and a new trial.

In 2020, due to COVID-19, the district court prohibited members of the public from attending Allen’s suppression hearing and trial, and rejected his request for video-streaming of the proceedings. 

The Court held that these protocols violated Allen’s Sixth Amendment right to a public trial.  It found the restrictions were not narrowly tailored.  

The Court noted that other trial courts throughout the country, facing the same need to balance public health issues against a defendant’s public trial right, consistently developed COVID protocols that allowed some sort of visual access to trial proceedings.

"Here, the public could not observe or attend either the suppression hearing or the trial. Accordingly, the only remedy 'appropriate to the violation,' is a new suppression hearing and a new trial. We therefore vacate Allen’s conviction and the district court’s denial of the motion to suppress, and remand for these proceedings."

5/13/22: Case on felon in possession and government concessions

In United States v. Davis, --- F.4th ---, No. 19-10066 (9th Cir. 2022), the Court affirmed Davis’ conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), vacated his sentence, and remanded for resentencing.

As to the felon in possession convictions, Davis argued that, based on Rehaif,  "the government and district court’s failure to advise him of an essential element of [the] offense should invalidate his conviction and guilty plea."

Applying plain-error review, the Court disagreed. 

"Because Davis had been incarcerated for more than three years for his prior felony convictions, it defies common sense to suggest that he was unaware of his felon status at the time he possessed the firearm at issue."

"Again, the district court’s failure to include the knowledge of status element in its plea colloquy satisfies the first two prongs of our plain error inquiry. And again, Davis fails to show that this error implicates substantial rights."

"[W]hen the record contains indisputable evidence of prior felony convictions, as is true in this case, a trial court’s omission of the knowledge of status element during the plea colloquy generally does not implicate substantial rights."

As to the sentence, the "Federal sentencing guidelines call for a six-point sentence enhancement for defendants that have a previous conviction for a controlled substance offense. The district court concluded that Davis’ 2011 conviction for possession with intent to sell marijuana in violation of N.R.S. § 453.337 constitutes a “controlled substance offense” and thus applied the enhancement."

"[U]nder our recent decision in Bautista, the [parties] agree that Davis’ predicate conviction is not sufficient to trigger the sentence enhancement." 

"We need not decide whether Bautista controls. Rather, we defer to the government’s concession on the sentencing issue. Specifically, the government has twice declined to defend imposition of the “controlled substance offense” enhancement. Under such circumstances, we decline to decide a question of law that is not presented by the parties, particularly when the government has made a concession in a criminal case."

5/5/22: En banc opinion in Begay

Remember Begay, in which a divided three-judge panel agreed with Begay’s argument that second-degree murder can be committed recklessly and therefore does not qualify as a crime of violence for purposes of § 924(c)?

Well, today, in United States v. Begay, --- F.4th ---, No. 14-10080 (9th Cir. 2022), the en banc Court (still divided) concluded otherwise: "we hold that second-degree murder qualifies as a crime of violence pursuant to § 924(c)(3)(A)."

The Court affirmed Begay’s convictions for second-degree murder (18 U.S.C. §§ 1111(a) and 1153) and for discharging a firearm during a crime of violence (18 U.S.C. § 924(c)), vacated the district court’s order of mandatory restitution, and remanded. 

"Begay raises three primary arguments. First, he argues the district court erred because it failed to instruct the jury that to convict Begay of second-degree murder, the government bore the burden of proving beyond a reasonable doubt that he did not act in the heat of passion or “upon a sudden quarrel.” Second, Begay urges us to reverse his § 924(c) conviction because second-degree murder, he argues, can be committed recklessly and therefore does not constitute a crime of violence. Last, Begay argues the district court’s restitution award was plainly erroneous."

On the first issue, the Court explained: "In a murder trial, evidence of a sudden quarrel or heat of passion can serve as a defense to the murder charge,  because a heat of passion and adequate provocation finding “negates the malice that would otherwise attach,” A defendant who acts in the heat of passion is guilty of voluntary manslaughter rather than murder."

"For this reason, the prosecution bears the burden of proving beyond a reasonable doubt the absence of the heat of passion when the issue is properly presented, and the trial court must instruct the jury that the government bears this burden. But such an instruction is only required if the defense is fairly raised."

"Here, the evidence presented at trial certainly suggested that Begay and Williams quarreled prior to the shooting, but defense counsel did not request an instruction for voluntary manslaughter, nor an instruction that the prosecution bore the burden of establishing the absence of heat of passion, nor did the defense object to the lack of those instructions."

"On this record, we cannot conclude the district court plainly erred by failing to instruct the jury that the government bore the burden of proving the absence of heat of passion. Begay’s counsel did not attempt to demonstrate to the court that the evidence would allow the jurors to conclude that Begay acted in the heat of passion, and the evidence did not suggest sudden provocation; rather, it suggested that Begay and Williams had argued about her alleged infidelities before."

"Because the district court did not plainly err by giving the jointly requested jury instructions, we affirm Begay’s conviction for second-degree murder."

"Begay’s second argument asks us to reverse his § 924(c) conviction for discharging a firearm during a crime of violence. He argues that second-degree murder can be committed recklessly under § 1111(a), and urges us to conclude that the statutory definition of “crime of violence” does not encompass offenses that can be committed with a reckless mens rea."

"[T]he inquiry in Begay’s case is limited to deciding whether his murder conviction qualifies as a crime of violence under the elements clause."

"As applied to the charges in Begay’s case, the categorical approach requires that we ask whether the elements of the second-degree murder statute necessarily involve a defendant’s “use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A). Unless the least culpable act criminalized in the second-degree murder statute entails that force, the statute is not a categorical match with the elements clause, and it does not qualify as a crime of violence."

"When identifying crimes of violence, the law distinguishes between the 'four states of mind, as described in modern statutes and cases, that may give rise to criminal liability.' '[I]n descending order of culpability,” those mental states are: purpose, knowledge, recklessness, and negligence.'"

"Borden decided that reckless conduct does not meet the standard for a 'violent felony' because '[t]he phrase ‘against another,’ when modifying the ‘use of force,’ demands that the perpetrator direct his action at, or target, another individual' and reckless conduct is not aimed in that prescribed manner."

"But the Borden Court only considered whether ordinary reckless conduct necessarily satisfies the elements clause; it expressly declined to reach whether offenses that may be committed with mental states between ordinary recklessness and knowledge can qualify as crimes of violence."

"Drawing on Borden, we conclude that a conviction for second-degree murder pursuant to § 1111(a) constitutes a crime of violence because murder is the unlawful killing of a human being with malice aforethought, see 18 U.S.C. § 1111(a), and to kill with malice aforethought means to kill either deliberately or recklessly with extreme disregard for human life. As we explained in Pineda-Doval, malice aforethought requires a quantum of risk that is very high and also requires that the nature of the risk concern injury to others."

"A § 1111(a) conviction qualifies as a crime of violence because a defendant who acts with the requisite mens rea to commit second-degree murder necessarily employs force 'against the person or property of another,' and rather than acting with ordinary recklessness, the defendant acts with recklessness that rises to the level of extreme disregard for human life."

"Finally, Begay challenges the district court’s award of restitution."  “Remand is appropriate where the restitution award lacks an adequate evidentiary basis and the district court failed to explain its reasoning. Because the district court did not comply with § 3663A, we vacate its restitution award and remand for recalculation and for the district court to explain its reasoning."

As to the concurrences and dissents, it is worth noting Judge Ikuta's dissent.  She would hold that the "principles set out in Borden establish that § 1111(a) second-degree murder is not a categorical match to a generic “crime of violence” as defined by the elements clause of § 924(c)."  Thus, she "would vacate Begay’s entire sentence and remand for resentencing."

5/4/22: Case on the Posse Comitatus Act and Batson

In United States v. Hernandez-Garcia, --- F.4th ---, No. 20-50228 (9th Cir. 2022), the Court affirmed a conviction for illegal reentry after deportation.

The case began when a Marine Corps surveillance unit spotted Hernandez-Garcia immediately after he entered the United States, and notified Customs and Border Patrol agents who soon detained him.

Hernandez-Garcia argued that the Marine Corps surveillance violated the Posse Comitatus Act, which codified the longstanding prohibition against military enforcement of civilian law.

The Court disagreed: "the Posse Comitatus Act posed no obstacle to the U.S. Marines assistance because Section 1059 of the 2016 NDAA expressly authorizes surveillance by the military at the southern border."  In short, the Court held there was no violation of the Posse Comitatus Act because Congress specifically authorized the Marines to do what they did in this case. 

Next, the Court rejected Hernandez-Garcia's Batson claim.  The Court "acknowledge[d] that the district court’s oral Batson ruling is not a paragon of clarity."  But "conclude[d] that Hernandez-Garcia did not prove that the prosecution purposefully discriminated against Asian jurors."