8/31/23: Case on 1326(d)

In United States v. Portillo-Gonzalez, --- F.4th ---, No. 21-10260 (9th Cir. 2023), the Court affirmed the district court’s judgment in a case in which Praxedis Saul Portillo-Gonzalez entered a conditional guilty plea to unlawful reentry by a previously removed alien, in violation of 8 U.S.C. § 1326, after the district court denied his motion under 8 U.S.C. § 1326(d) to dismiss the indictment.

Portillo-Gonzalez's argument was that his indictment should have been dismissed on the ground that the removal order underlying his unlawful reentry charge was invalid due to an error by the immigration judge at his removal hearing, as to whether he was eligible for voluntary departure. 

Portillo-Gonzalez claimed that, under controlling Ninth Circuit precedent, the IJ’s error sufficed to establish that he satisfied all of the § 1326(d) requirements for collaterally challenging a removal order in the context of a § 1326 prosecution. 

The Court rejected that argument, holding that United States v. Palomar-Santiago, 141 S. Ct. 1615 (2021) abrogated the prior Ninth Circuit case law on which Portillo-Gonzalez relied: 

Because, under Palomar-Santiago, an administrative appeal to the BIA was “available” to challenge PortilloGonzalez’s 2000 removal order, his failure to exhaust that remedy means that he did not satisfy § 1326(d)(1). Because he could have sought judicial review had he taken such an appeal, he was not “deprived . . . of the opportunity for judicial review” and therefore did not satisfy § 1326(d)(2). And because he must satisfy all three requirements to invoke § 1326(d)’s exception, see Palomar-Santiago, 141 S. Ct. at 1620–21, he remains subject to § 1326(d)’s general rule that he “may not challenge the validity” of his predicate removal order. See 8 U.S.C. § 1326(d). The district court therefore properly denied Portillo-Gonzalez’s motion to dismiss the indictment. Its judgment is therefore affirmed.

8/28/23: Case on traveling in foreign commerce with the purpose of committing illicit sexual acts

In United States v. Pepe, --- F.4th ---, No. 22-5024 (9th Cir. 2023), the Court affirmed Michael Pepe’s jury conviction on two counts of violating 18 U.S.C. § 2423(b) by traveling in foreign commerce with the purpose of committing illicit sexual acts and two counts of violating 18 U.S.C. § 2241(c) by crossing a state line to sexually abuse a child under 12 and then so doing.

On appeal, Pepe contended that no rational finder of fact could have found beyond a reasonable doubt that he violated §§ 2423(b) and 2241(c).  The Court disagreed, concluding that a jury could rationally find that the sexual abuse of children was one of Pepe’s primary motivations for returning from the United States to Cambodia.

The Court also rejected Pepe's argument about the jury instructions.  

Here's the conclusion:  "Sexually abusing children was one of Pepe’s primary activities during his time in Cambodia. A jury convicted him of traveling in foreign commerce and crossing state lines with a motivating purpose of sexually abusing those children. And also for, in fact, sexually abusing them. The most Pepe shows in this appeal is that a jury could have rationally found that he did not commit these crimes. But that is not the standard. A rational jury could have found beyond a reasonable doubt that Pepe committed the charged crimes and the district court neither erred nor abused its discretion in instructing the jury."

8/25/23: Another supervised release sentencing decision

In United States v. Taylor, --- F.4th ---, No. 22-10203 (9th Cir. 2024), the Court  affirmed the special conditions of supervised release imposed by the district court in a case in which Arnold Ray Taylor argued that the district court (1) unconstitutionally delegated its judicial authority to Taylor’s probation officer to determine the duration of the substance abuse treatment required in Special Condition 2, and (2) erred because it imposed an above-Guidelines sentence and failed to specifically explain its reasons for doing so.

It held that the district court, which ordered a specific time range for Taylor’s inpatient substance treatment with a hard upper limit of one year, did not unconstitutionally delegate its judicial authority by ordering the probation officer to supervise Taylor’s progress in inpatient treatment, and allowing the probation officer the discretion to reduce—but not increase—the duration of his inpatient treatment in consultation with Taylor’s care provider.  It further held that the district court’s imposition of Special Condition 2 in addition to a high-end Guidelines sentence did not constitute an upward variance. 

8/24/23: Case on supervised release sentencing

In United States v. Estrada, --- F.4th ---, No. 23-50012 (9th Cir. 2023), the Court affirmed the district court’s judgment on the third revocation of Carlos Armando Estrada’s supervised release.

On appeal, Estrada argued that the district court lacked jurisdiction to revoke his supervised release because, at the time of his third violation, he was serving a term of supervised release that exceeded the applicable statutory maximum.

The Court rejected this argument, concluding: "Estrada was serving a term of supervised release when he committed the instant violation. This is sufficient to confer jurisdiction on the district court. Thus, regardless of any error in the sentence imposed on his second revocation—an issue we do not decide—the district court had jurisdiction over proceedings on the third revocation of Estrada’s supervised release."

"As we have indicated, we decline to reach Estrada’s argument that the term of supervised release imposed on his previous revocation of supervised release exceeded the statutory maximum. Consistent with Castro-Verdugo and our earlier precedent, we hold that an appeal challenging a supervised release revocation is not the 'proper avenue' through which to attack the validity of the underlying sentence."

8/15/23: two decisions today

 In United States v. Eckford, --- F.4th ---, No. 17-50167 (9th Cir. 2023), the Court affirmed Leon Eckford’s conviction and sentence.

It held that aiding and abetting Hobbs Act robbery is a crime of violence that properly served as a predicate for Eckford’s conviction and mandatory minimum sentence for the use of a firearm during a crime of violence under 18 U.S.C. § 924(c).

The Court concluded that its prior precedent on the issue was not clearly irreconcilable with, and thus not overruled by, United States v. Taylor, 142 S. Ct. 2015 (2022), which held that attempted Hobbs Act robbery is not a crime of violence.  

In United States v. Sadler, --- F.4th --- No. 21-30277 (9th Cir. 2023), the Court affirmed the sentence imposed on Jason Sadler following his guilty plea to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).

"After pleading guilty to a single count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1), Defendant Jason Sadler argued at his sentencing that the district court should not consider certain prior convictions in determining his sentencing range under the U.S. Sentencing Guidelines. According to Sadler, subsequent case authority made clear that the guilty plea that produced those prior convictions was not knowing and voluntary, thereby rendering those convictions constitutionally invalid. We hold that the district court properly refused to entertain such a collateral challenge to a prior conviction in the context of this federal sentencing proceeding, and that those prior convictions were therefore properly considered in determining Sadler’s sentence. We therefore affirm Sadler’s sentence."

There is also a good footnote about mootness: 

The Government has suggested in a post-argument filing that Sadler’s challenge to his underlying sentence is moot. The Government notes that, earlier in 2023, Sadler’s supervised release was revoked twice, and in connection with the second such revocation Sadler is now serving a 140-day term of imprisonment to be followed by a new 24-month term of supervised release. As a result, the Government argues, Sadler “is no longer serving” the sentence “that is the subject of this appeal,” and any error in calculating his original sentence “would thus not affect the sentence he is now serving.” We conclude that the Government—which has cited no authority that would support this mootness argument—has failed to carry its burden to show that the case is moot. “[B]ecause district courts have broad discretion to modify conditions of supervised release” under 18 U.S.C. § 3583(e)(2), United States v. Bainbridge, 746 F.3d 943, 948 (9th Cir. 2014), there is a possibility that the district court could reduce or modify Sadler’s supervised release terms in light of a correction of the calculation of the sentencing range. This ‘“possibility of the court’s reducing or modifying [Sadler’s] supervised release’ satisfies the case or controversy requirement.” United States v. D.M., 869 F.3d 1133, 1137 (9th Cir. 2017) (citation omitted). Thus, Sadler’s appeal is not moot.

8/7/23: Case on restitution orders

In United States v. Dadyan, --- F.4th ---, No. 21-50237 (9th Cir. 2023), the Court affirmed the district court’s imposition of restitution obligations on Vahe Dadyan and Artur Ayvazyan following their convictions of various offenses stemming from a conspiracy to fraudulently obtain federal Covid-relief funds. 

The Court held that, under the Mandatory Victims Restitution Act (MVRA), the district court properly imposed restitution in the full amount of the loss caused by the conspiracy instead of just the loss caused by the fraudulent loan applications Vahe and Artur personally played a role in submitting.

The Court further held that the district court properly ordered a restitution amount under the MVRA based on the “value” of fraudulently obtained property, which exceeded the amount of “actual loss” the district court found when sentencing him under U.S.S.G. § 2B1.1(b)(1).

Finally, the Court held that precedent foreclosed Artur’s argument that his Fifth and Sixth Amendment rights to due process and a jury trial required that a jury, not a district judge, find all facts underpinning restitution beyond a reasonable doubt.

8/2/23: Case on abduction under U.S.S.G. § 2A3.1(b)(5)

In United States v. Scheu, --- F.4th ---, No. 22-10044 (9th Cir. 2023), the Court affirmed the defendant's sentence for aggravated sexual abuse of a child in violation of 18 U.S.C. §§ 2241(c), 2246(2), & 1152, in a case in which the district court applied a four-level enhancement under U.S.S.G. § 2A3.1(b)(5) because “the victim was abducted.”

The Court held that the victim was “abducted” when the defendant forced her from the roadside into a nearby cornfield to perpetrate the sexual assault.  This was true under both the plain meaning of the word abducted and under the definition in the Guidelines commentary.  

8/1/23: public right to court access and racially motivated violence in violation of 18 U.S.C. § 249(a)(1).

In United States v. Hougen, --- F.4th ---, No. 21-10369 (9th Cir. 2023), a divided Court affirmed Ole Hougen’s conviction for attempting to commit racially motivated violence, in violation of 18 U.S.C. § 249(a)(1).

First, reviewing for plain error, the Court rejected Hougen's claim that the district court violated his right to a public trial based on restrictions to access due to the COVID-19 pandemic: "In sum, the balance of costs in this case counsels against reversal. In the absence of evidence of any harm to the fairness of Hougen’s trial flowing from the alleged public trial error and in light of the costs that would be imposed by reversal, we conclude that the drastic relief that Hougen seeks is unwarranted. For these and all of the foregoing reasons, we decline to reverse on this ground."

Second, the majority rejected Hougen's argument that § 249(a)(1), as applied to his case, exceeds Congress’ authority under the Thirteenth Amendment.  The majority held "that § 249(a)(1) is a constitutional exercise of Congress’ enforcement authority under Section Two of the Thirteenth Amendment."  In reaching this conclusion the majority determined that Congress rationally determined that violence (or attempted violence) perpetrated against victims on account of the victims’ race is a badge or incident of slavery is well established.