8/25/22: Case on threatening a person assisting federal officers in violation of 18 U.S.C. § 115(a)(1)(B

In United States v. Anderson, --- F.4th ---, No. 20-50207 (9th Cir. 2022), a divided Court affirmed Anderson’s jury conviction for threatening a person assisting federal officers and employees in violation of 18 U.S.C. § 115(a)(1)(B).

The issue was whether a private Protective Security Officer -- an employee of a private company that had been contracted by the Federal Protective Service to “provide security services at government-owned and leased properties" -- qualifies as a covered official for purposes of section 115(a)(1)(B). 

The majority said yes.  It held,  "§ 115(a)(1)(B) includes all individuals covered by 18 U.S.C. § 1114."  And § 1114 includes "any person assisting such an officer or employee in the performance of such duties."  

"Although we acknowledge that Congress could have more carefully drafted 18 U.S.C. § 115, we join our sister circuits in concluding that, plainly read, the statute incorporates all persons covered by 18 U.S.C. § 1114. When Anderson threatened PSO Bacchus, he was assisting the FPS in performing its official duty to protect the Social Security Office. Thus, her conduct violated 18 U.S.C. § 115."

8/23/22: case on money laundering conspiracy

In United States v. Jaimez, --- F.4th ---, No. 19-50253 (9th Cir. 2022), the Court affirmed Alexis Jaimez’s convictions for conspiracy to distribute a controlled substance, money laundering conspiracy, and RICO conspiracy. 

The case is very fact specific and does not add too much to the law. The Court notes: 

"To convict an offender of money laundering conspiracy, 18 U.S.C. § 1956(h) requires the government to prove the following elements beyond a reasonable doubt: (1) There was an agreement to commit money laundering.  (2) The defendant knew the objective of the agreement. (3) The defendant joined the agreement with the intent to further its unlawful purpose." The Court found the evidence sufficient as to these elements. 

Jaimez further argued, "the district court erred by instructing the jury, in the course of generally defining the term “knowingly,” that the government was “not required to prove that the defendant knew that his acts or omissions were unlawful.” Jaimez maintains that this standard instruction could have allowed jurors to convict him of money laundering conspiracy even if they did not believe the government had proven that at least some of the laundered proceeds were unlawfully obtained."

On plain error review,  the Court concluded that, because "Jaimez has failed to demonstrate that the alleged error affected his substantial rights, let alone seriously affected the fairness, integrity, or public reputation of his judicial proceedings, we need not decide whether he has established a clear or obvious instructional error."

8/22/22: Right to a public trial

In United States v. Ramirez-Ramirez, --- F.4th ---, No. 21-10127 (9th Cir. 2022), the Court vacated a judgment of conviction, following a bench trial, for possession of marijuana with intent to distribute and remanded for specific findings of fact.

Following the bench trial, the district court issued a written finding of guilt, but did not make a public, in-person finding of guilt until sentencing.  

The Court held that the district court plainly erred by making only a written finding of guilt after trial, in violation of the defendant’s Sixth Amendment right to a public trial. The Court concluded that, although the usual remedy would be a remand to announce the finding in open court, the district court had already reiterated its finding of guilt publicly during the defendant’s sentencing, rendering such a remedy superfluous.

As such, the Court remanded for the district court to make specific findings of fact, as the defendant requested. 

"The requirement that findings of guilt be announced in open court vindicates core constitutional and human values. While a trial court is free to recess after the close of a bench trial to consider its decision further or to issue a written opinion elaborating on its oral finding of guilt, denying a criminal defendant the opportunity to be present in a public hearing at the time his guilt is determined undermines the fairness, integrity, and legitimacy of the judicial proceedings. Such a closure cannot be permitted to stand."

8/17/22: Important minor role decision out of SDCA and a decision on the First Step Act

First, in United States v. Rodriguez, --- F4th ---, No. 21-50108 (9th Cir. 2022), the Court vacated Rodriguez's sentence, concluding the district court erred in denying minor role. 

"We have [] held that district courts must consider all of these factors when determining whether to grant a mitigating-role adjustment. See United States v. Quintero-Leyva, 823 F.3d 519, 523 (9th Cir. 2016). Thus, gone are the days when district courts had virtually unlimited discretion to simply deem a defendant to be of above average, average, or below average culpability. Now, “the assessment of a defendant’s eligibility for a minor-role adjustment must include consideration of the factors identified by the Amendment, not merely the benchmarks established by our case law that pre-dates Amendment 794’s effective date.”

"We recently clarified that the mitigating-role commentary’s reference to the “average participant” refers to “the mathematical average,” and that to calculate that average “‘all likely participants in the criminal scheme’ must be included.” This means that even “those that the district court believe[s] were leaders or organizers or who were otherwise highly culpable” must be included in the calculation. Therefore, each co-participant’s culpability affects the minor role analysis, and the district court erred by holding that Gordo’s culpability was not relevant. 

In addition, "the district court appeared to treat each factor as presenting a binary choice: either it was satisfied, and it weighed against a minor role reduction, or it was not, and it weighed in favor of the reduction. But the commentary instructs courts to analyze the degree to which each factor applies to the defendant. The question is not simply whether the defendant “understood the scope and structure,” “participated in planning or organizing,” or “stood to benefit” from the crime. This is because the purpose of these factors is to determine the defendant’s role relative to other participants in the crime. And even a defendant who knows some of the scope and structure of the organization, participates in some of the planning, and receives a large payment for his participation could still play a relatively minor role compared to his co participants if they know more about the scope and structure of the organization, are more heavily involved of the planning, and receive a larger share of the proceeds. The key question is how the defendant compares with the other participants in the offense."

As to the first factor, "when applying the first factor, a district court must examine the defendant’s knowledge of the scope and structure of the broader group of people involved in the offense." 

"This approach is also more consistent with the purpose of the factors, which is to help the district court assess the defendant’s role relative to other participants in the offense. High-level or more-involved participants are likely to know more about the scope and structure of a criminal organization than are minor participants who may be junior members of the organization or who, like Rodriguez, appear to be akin to independent contractors carrying out one-off tasks. The district court’s approach, by contrast, would render this factor essentially useless for ascertaining the defendant’s relative role because every defendant who is convicted of a crime is aware of his own conduct in committing the offense. If a defendant’s knowledge of his own conduct were sufficient to weigh this factor against a defendant, it would never weigh in the defendant’s favor, and thus would never help clarify the defendant’s relative role."

"In this case, the district court appeared to conclude that a larger drug trafficking organization was involved in the offense. On remand, then, the district court should examine the degree to which Rodriguez knew of the scope and structure of that organization."

The district court's "interpretation of the second factor is also erroneous. First, the plain language of this factor indicates that the district court must assess the degree to which the defendant participated in devising the plan. The use of the words “planning or organizing,” as verbs, indicates that the defendant must take an active role in developing the plan. One who simply receives instructions and follows them does not “plan” or “organize” the crime."

"Second, the district court’s interpretation is inconsistent with how we analyzed this factor in Diaz. There, we held that the fact that Diaz “did not know the type or quantity of the drugs hidden in his vehicle[] suggest[ed] he did not play a significant role in planning or organizing.”  This was the case even though he had crossed the border twice—once as a practice run and once to support his friend—before crossing the border on the day he was arrested. See id. at 913. If simply being told the plan and following it were sufficient to weigh this factor against the defendant, we could not have held that this factor weighed in Diaz’s favor because he, like Rodriguez, was aware of the plan before committing the offense."

"Third, for the reasons stated above, the district court’s interpretation—that following instructions is “planning or organizing”—would render this factor useless for determining the defendant’s relative role since virtually every defendant who participates in a multi-defendant crime has either devised the plan or followed it. Our interpretation in Diaz, on the other hand, is consistent with the purpose of this factor: one who devises a plan and organizes others is likely to play a more significant role, while one who simply follows instructions is likely to play a less significant role."

"The fifth factor is “the degree to which the defendant stood to benefit from the criminal activity.” The district court held that this factor weighed against Rodriguez because $1,500 “is not an insubstantial amount of money.”4 This, too, is inconsistent with Diaz."

"In Diaz, the defendant was “to receive a set fee of $1,000” for driving drugs across the border. 884 F.3d at 917. We held that the district court erred by weighing this factor against Diaz because the district court “ignored that [the defendant’s] compensation was relatively modest and fixed.” Id. at 918. To properly apply this factor, we explained, the district court must consider whether the defendant has a “proprietary interest in the criminal activity,” such as “an ownership interest or other stake in the outcome of the trafficking operation.” Id. at 917–18; see also U.S.S.G. § 3B1.2, cmt. 3(C) (“[A] defendant who does not have a proprietary interest in the criminal activity and who is simply being paid to perform certain tasks should be considered for an adjustment under this guideline.”). 

"Because Diaz did not have a proprietary interest in the drugs and because the amount he would be paid “was relatively modest and fixed” this factor weighed “in favor of granting the adjustment.” Id. at 918. Here, the district court did not consider that Rodriguez was to be paid a fixed amount to perform a discrete task, that he did not have a proprietary interest in the drugs, and that the amount he was to be paid was relatively modest compared to the value of the drugs. Like all of the other factors, the purpose of this factor is to aid in determining the defendant’s relative role, not just to determine whether the defendant received what the district court considers to be a lot of money in an absolute sense." 

Congrats to John Lanahan on a great win!

Next, in United States v. Cartner, --- F.4th ---, No. 19-10411 (9th Cir. 2022), the Court vacated the district court’s order granting in part and denying in part Carter’s motion to be resentenced under the First Step Act of 2018. 

"Because the district court decided Carter’s motion without demonstrating that it considered his nonfrivolous arguments, we vacate and remand."

"While this case was pending, the Supreme Court decided Concepcion v. United States, 142 S. Ct. 2389 (2022). Concepcion has three holdings relevant here. First, Concepion held that “the First Step Act allows district courts to consider intervening changes of law or fact in exercising their discretion to reduce a sentence.” Id. at 2404. Second, Concepcion held that because district courts must “consider nonfrivolous arguments presented by the parties, the First Step Act requires district courts to consider intervening changes when parties raise them.” Id. at 2396. And third, Concepcion held that district courts ruling on First Step Act motions bear the “standard obligation to explain their decisions,” and accordingly must give a “brief statement of reasons” to “demonstrate that they considered the parties’ arguments”—including arguments pertaining to intervening changes in law or fact. Id. at 2404. 

"Concepcion’s first holding conflicts with our decision in United States v. Kelley, 962 F.3d 470 (9th Cir. 2020). Kelley held that “the First Step Act . . . does not authorize the district court to consider other legal changes,” outside of Sections 2 and 3 of the Fair Sentencing Act, “that may have occurred after the defendant committed the offense.” Id. at 475. Concepcion held otherwise, instructing that “the First Step Act allows district courts to consider intervening changes of law or fact in exercising their discretion to reduce a sentence pursuant to the First Step Act.” On this issue, Concepcion abrogates Kelley and we apply Concepcion, not Kelley."

"Applying Concepcion’s principles here, the district court erred . . . . the district court granted in part and denied in part Carter’s resentencing motion with no explanation whatsoever. We thus vacate the resentencing order below and remand."

8/11/22: Supervised release conditions that relate to siblings

In United States v. Magdaleno, --- F.4th --- (9th Cir. 2022), the Court affirmed the district court’s imposition of a special condition of supervised release set forth in the plea agreement that prohibits Johnny Magdaleno from associating with any member of the Norteño or Nuestra Familia gangs.

On appeal, Magdaleno argued that this condition violates his fundamental right to familial association because it does not exclude his siblings who might be gang members.  

The Court disagreed.  Although it held that the challenge was not barred by the invited-error doctrine, the Court concluded that Magdaleno's relationship with a sibling or half sibling does not inherently constitute an “intimate relationship” with a “life partner,” child, or fiancée, and thus does not give rise to a “particularly significant liberty interest” that would require the district court to undertake additional procedural steps at sentencing.  

Further, the condition was not substantively unreasonable. "Although we do not rule out the possibility that a sibling relationship could, under certain circumstances, give rise to a particularly significant liberty interest, Magdaleno offers no evidence to suggest that any of his sibling relationships is comparable, in its level of support and intimacy, to a relationship with one’s child, “life partner,” or fiancée. Furthermore, Magdaleno’s scheduled release date is more than two decades away. His familial circumstances could change significantly in that time. Thus, while Magdaleno can move to modify the Gang Condition closer to his release date if the circumstances warrant, it would be inappropriate for us to do so now when he has cited no evidence to show the existence of an intimate familial relationship to begin with."

8/2/22: Case on “enhancement” of a sentence under 18 U.S.C. § 3553(f)(5)

In United States v. Brown, --- F.4th ---, No. 20-50313 (9th Cir. 2022), the Court affirmed a sentence imposed following Marquis Brown’s guilty plea to importing methamphetamine under 21 U.S.C. §§ 952 & 960.

On appeal, Brown argued that the district court committed a procedural error because it improperly enhanced his sentence in violation of the First Step Act of 2018. The First Step Act, which in part amended 18 U.S.C. § 3553(f), prohibits district judges from using information disclosed by a defendant in a safety valve proffer to enhance a sentence, unless the information relates to a violent offense. 

Here, during his safety valve proffer, Brown admitted to smuggling drugs on prior occasions.  During the sentencing, the court cited this fact, and others, in imposing a sentence above what the government and probation recommended but below the Guidelines range. The district court stated it would be “a disingenuous exercise” to sentence Brown even to the 71 months requested by the Government, given the fact that Brown had smuggled drugs on prior occasions.

"We hold that the district court did not impose an improper sentence enhancement here . . . . It is clear that the district court considered information disclosed in the safety valve proffer to impose a sentence, such as Brown’s previous drug smuggling trips. This is not prohibited . . . . The sentencing court considered the safety valve information in conjunction with other mitigating and aggravating factors in its determination of a downward sentence variance. The district court imposed a sentence of 78 months—a sentence not just below the mandatory minimum, but also 30 months below the low end of Brown’s guidelines range. This does not constitute an enhancement."

The opinion, however, does not take the extra step of saying what would constitute an improper "enhancement."