6/26/23: Case on the categorical approach

In United States v. Castro, --- F.4th ---, No. 22-30050 (9th Cir. 2023), the Court vacated Benito Castro’s sentence and remanded for resentencing in a case in which Castro pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

Benito Castro pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). In calculating Castro’s recommended sentence, the district court increased his offense level based on a finding that Castro had previously committed a crime of violence. Castro contends that the crime in question, a Montana conviction for partner or family member assault (“PFMA”), Mont. Code Ann. § 45-5-206(1)(a), is not a crime of violence under the federal Sentencing Guidelines. We agree. 

Montana’s PFMA statute penalizes intentionally causing “bodily injury.” Id. While bodily injury may sound like it entails “force capable of causing physical pain or injury to another person,” Johnson v. United States, 559 U.S. 133, 140 (2010), in Montana that is not necessarily true. Under that state’s unusual definition, bodily injury “includes mental illness or impairment.” Mont. Code Ann. § 45-2-101(5). Montana courts have concluded that one can cause “bodily injury” solely through the infliction of mental anguish unaccompanied by any actual or threatened physical violence. Because we must determine whether PFMA categorically requires violent force—not whether Castro actually used it in his prior offense—we hold that PFMA is not a crime of violence under the Sentencing Guidelines. Therefore, we vacate Castro’s sentence and remand for resentencing. 

6/23/23: SCOTUS Case on 8 U. S. C. §1324(a)(1)(A)(iv)

As you probably know, SCOTUS has released numerous decisions this week.  I read but generally don't summarize them.  I'm making an exception for United States v. Hansen, 599 U.S. ___ (2023), because it specifically overrules Ninth Circuit precedent. 

You may recall that, in Hansen, the Ninth held that 8 U. S. C. §1324(a)(1)(A)(iv) -- which forbids “encourag[ing] or induc[ing] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such [activity] is or will be in violation of law -- was unconstitutional under the First Amendment. 

The Supreme Court reversed, holding: "Properly interpreted, this provision forbids only the intentional solicitation or facilitation of certain unlawful acts. It does not “prohibi[t] a substantial amount of protected speech”—let alone enough to justify throwing out the law’s 'plainly legitimate sweep.'"

The issue is whether Congress used 'encourage' and 'induce' as terms of art referring to criminal solicitation and facilitation (thus capturing only a narrow band of speech) or instead as those terms are used in everyday conversation (thus encompassing a broader swath).

We hold that clause (iv) uses “encourages or induces” in its specialized, criminal-law sense—that is, as incorporating common-law liability for solicitation and facilitation. In truth, the clash between definitions is not much of a contest. “Encourage” and “induce” have well-established legal meanings—and when Congress “borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word.” 

6/20/23: Case on collateral versus direct consequences of a guilty plea

In United States v. Hollins, --- F.4th ---, No. 21-10320 (9th Cir. 2023), the Court held that Hollins’ guilty plea was knowing and voluntary, and the appellate waiver included in his plea agreement was therefore in force.

Hollins contended that his plea was invalid because the court failed to inform him of three post-release “consequences” of his guilty plea: (1) the possibility of civil commitment under state or federal law, (2) geographic restrictions imposed against sex offenders by state law, and (3) community notification required under state law. 

The Court disagreed. 

"We reaffirm that Rule 11 requires a court to inform a defendant of the direct consequences of his guilty plea, but not those that are merely collateral. Padilla did not change this. We further hold that possible civil commitment,  geographic restrictions, and community notification were collateral consequences of Hollins’ guilty plea to a sex offense. Because the district court had no duty to inform Hollins of these specific consequences, his plea was knowing and voluntary. Thus, his appellate waiver is in force, and we therefore dismiss his appeal."

6/14/24: Case about U.S.S.G. § 2K2.1(a)(4)(B) (“semiautomatic firearm that is capable of accepting a large capacity magazine.”

In United States v. Lucas, --- F.4th ---, No. 22-50064 (9th Cir. 2023), the Court reversed the district court’s sentencing order, which imposed a heightened base offense level under U.S.S.G. § 2K2.1(a)(4)(B).  The Court held that the district court committed error in finding, by clear and convincing evidence, that the subject magazine could accept more than 15 rounds of ammunition at the time of the offense.

What is more interesting about the opinion are the issues discussed but not decided.  

First, the Court left open the possibility that Application Note 2 to U.S.S.G. § 2K2.1(a)(4)(B), which defines a “semiautomatic firearm that is capable of accepting a large capacity magazine,” is inconsistent with U.S.S.G. § 2K2.1(a)(4)(B) or that U.S.S.G. § 2K2.1(a)(4)(B) is unambiguous so as to defeat resort to Application Note 2.  

In a future case, we could see the Court hold that this application note does not control.

Second, the Court left open the possibility of reconsidering the Circuit law that where the use of a sentencing enhancement has an “extremely disproportionate impact on the sentence,” due process requires facts underlying such an enhancement be proven by clear and convincing evidence.  

The Court noted, "[t]his rule was crafted before the Supreme Court altered the sentencing landscape in United States v. Booker, 543 U.S. 220 (2005), and this court stands alone in continuing to apply such a rule after Booker."  

Who knows if the Court will take this issue en banc. 

6/13/23: Case on the constitutionality of U.S.S.G. § 2D1.1(b)(1) under Bruen

In United States v. Alaniz, --- F.3d ---, No. 22-30141 (9th Cir. 2023), the Court considered whether U.S.S.G. § 2D1.1(b)(1), which provides for an enhancement of the Guidelines calculation if a defendant possessed a dangerous weapon at the time of a felony drug offense, is constitutional under the Second Amendment following New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 (2022).

The Court held it was.  First, the Court "assume[d], without deciding, that step one of the Bruen test is met."  Second, it found "§ 2D1.1(b)(1) constitutional under step two because it clearly comports with a history and tradition of regulating the possession of firearms during the commission of felonies involving a risk of violence." 

"The analogues show a longstanding tradition of enhancing a defendant’s sentence for the increased risk of violence created by mere possession of a firearm during the commission of certain crimes. Drug trafficking fits squarely within that category of crimes. Like burglary or robbery, drug trafficking plainly poses substantial risks of confrontation that can lead to immediate violence."  "Section 2D1.1(b)(1), therefore, imposes a 'comparable burden' to the historical analogues and is 'comparably justified.'”

The "historical record assures us that the two-level enhancement here is of a kind that the Founders would have tolerated.  We thus conclude that application of § 2D1.1(b)(1) to Alaniz’s sentence is constitutional."

6/8/23: Major SCOTUS 1028A (aggravated identity theft) decision

In Dubin v. United States, 599 U.S. --- (2023), the vacated the judgment of the Fifth Circuit and significantly narrowed the scope of 1028A. 

This is a must read for anyone practicing in federal court.  Here are some highlights:

Section 1028A(a)(1)’s title and terms both point to a narrower reading, one centered around the ordinary understanding of identity theft. This cuts against the Government’s broad reading, which the Government admits bears little relationship to the common understanding of identity theft. In contrast, a more targeted reading accurately captures the ordinary understanding of identity theft, where misuse of a means of identification is at the crux of the criminality. 

Start at the top, with the words Congress chose for §1028A’s title: “Aggravated identity theft.” 118 Stat. 831. This Court has long considered that “‘the title of a statute and the heading of a section’ are ‘tools available for the resolution of a doubt’ about the meaning of a statute.”

[U]se of the means of identification is at the crux of the underlying criminality. These definitions refer to offenses built around what the defendant does with the means of identification in particular. In other words, the means of identification specifically is a key mover in the criminality. This central role played by the means of identification, which serves to designate a specific person’s identity, explains why we say that the “identity” itself has been stolen. 

[I]dentity theft is committed when a defendant uses the means of identification itself to defraud or deceive. This tracks the Sixth Circuit’s heuristic. When a means of identification is used deceptively, this deception goes to “who” is involved, rather than just “how” or “when” services were provided. Use of the means of identification would therefore be at “the locus of [the criminal] undertaking,” rather than merely “passive,” “passing,” or ancillary employment in a crime.

Generally, to unlawfully “possess” something belonging to another person suggests it has been stolen. And to unlawfully “transfer” something belonging to another person similarly connotes misappropriating it and passing it along.

“Transfer” and “possess” not only connote theft, but identity theft in particular. The verbs point to (1) theft of a (2) means of identification belonging to (3) another person. That tracks ordinary understandings of identity theft: “a crime in which someone [1] steals [2] personal information about and [3] belonging to another.” Black’s 894. Similarly, “the [1] fraudulent appropriation and use of [3] another person’s [2] identifying data or documents.”

In sum, §1028A(a)(1)’s title and text are mutually reinforcing. Both point toward requiring the means of identification to be at the crux of the criminality.

A far more sensible conclusion from the statutory structure is that §1028A(a)(1)’s enhancement is not indiscriminate, but targets situations where the means of identification itself plays a key role—one that warrants a 2-year mandatory minimum. This points once more to a targeted reading, where the means of identification is at the crux of the underlying criminality, not an ancillary feature of billing. 

Finally, the Government makes a familiar plea: There is no reason to mistrust its sweeping reading, because prosecutors will act responsibly. To this, the Court gives a justas-familiar response: We “cannot construe a criminal statute on the assumption that the Government will ‘use it responsibly.’” “[T]o rely upon prosecutorial discretion to narrow the otherwise wide-ranging scope of a criminal statute’s highly abstract general statutory language places great power in the hands of the prosecutor.” 

Taken together, from text to context, from content to common sense, §1028A(a)(1) is not amenable to the Government’s attempt to push the statutory envelope. A defendant “uses” another person’s means of identification “in relation to” a predicate offense when this use is at the crux of what makes the conduct criminal. To be clear, being at the crux of the criminality requires more than a causal relationship, such as “‘facilitation’” of the offense or being a but-for cause of its “success.”  Instead, with fraud or deceit crimes like the one in this case, the means of identification specifically must be used in a manner that is fraudulent or deceptive. Such fraud or deceit going to identity can often be succinctly summarized as going to “who” is involved.

6/6/23: Case on parole searches

In United States v. Estrella, --- F.4th ---, No. 22-10027 (9th Cir. 2023), the Court affirmed the district court’s denial of Christian Alejandro Estrella’s motion to suppress evidence in a case in which Estrella entered a conditional guilty plea to being a felon in possession of a firearm and ammunition. 

The opinion's introduction provides a good summary.  Here it is: 

On August 14, 2019, Appellant Christian Alejandro Estrella (“Estrella”) was arrested as a felon in unlawful possession of a firearm after two officers discovered a handgun and ammunition concealed in his vehicle. At the time of this encounter, Estrella was a registered gang member on California state parole, and was subject to a suspicionless search condition that has been upheld by the Supreme Court. See Cal. Penal Code § 3067(b)(3); see also Samson v. California, 547 U.S. 843, 857 (2006). After entering a plea of guilty and preserving his right to appeal, Estrella appeals the district court’s denial of his motion to suppress evidence, arguing that the officers did not have advance knowledge that he was on parole at the time of this encounter. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. 

It is firmly established that “[a] search of a parolee that complies with the terms of a valid search condition will usually be deemed reasonable under the Fourth Amendment.” United States v. Cervantes, 859 F.3d 1175, 1183 (9th Cir. 2017). As a threshold requirement, we have held that “an officer must know of a detainee’s parole status before that person can be detained and searched pursuant to a parole condition.” Moreno v. Baca, 431 F.3d 633, 641 (9th Cir. 2005). However, this Court has yet to specifically address how precise that knowledge must be. 

For the reasons articulated below, we now hold that a law enforcement officer must have probable cause to believe that a person is on active parole before he may be detained and searched pursuant to a parole condition. Although a law  enforcement officer must have “advance knowledge” that the detainee remains on active parole, United States v. Cesares, 533 F.3d 1064, 1076 (9th Cir. 2008), the officer need not “know to an absolute certainty,” with precise day by-day or minute-by-minute information of the detainee’s parole status, People v. Douglas, 193 Cal. Rptr. 3d 79, 89 (Cal. Ct. App. 2015). It is sufficient for the officer to determine, using the well-established rules governing probable cause, that the individual to be detained and searched is on active parole, and that an applicable parole condition authorizes the challenged search or seizure. 

Applying this standard, we conclude that the arresting officers had probable cause to believe that Estrella remained on active parole when he was detained and searched on August 14, 2019. We further hold that this encounter did not violate California’s independent prohibition on arbitrary, capricious, or harassing searches. Accordingly, we affirm the denial of Estrella’s motion to suppress.