9/29/23: Case on 1326

In United States v. Cabrera, --- F.4th ---, No. 21-50259 (9th Cir. 2023), the Court affirmed Cabrera’s 2021 convictions and sentence for attempted illegal entry and attempted illegal reentry under 8 U.S.C. §§ 1325 and 1326. 

First, the Court held that the district court did not err in denying Cabrera’s motion to suppress a statement he made to a Border Patrol agent about coming to the United States to find work. The Court explained that, on the facts before it, the questioning was permissible pursuant to Terry. 

Second, the Court held the district court did not abuse its discretion in excluding lay witness testimony about the “factual situation in Tijuana in November 2019”—specifically, the “enormous backlog of Central American migrants seeking asylum” due to the “metering” and “Remain in Mexico” policies in place at the time.

Third, the Court determined the district court did not abuse its discretion in formulating jury instructions on the requisite intent for a § 1326 conviction.  This issue had to do with the intent to enter and go about free from official restraint. 

Finally, the Court concluded that the district court did not err in calculating Cabrera’s criminal history score.  This issue had to do with how to calculate prior time-served sentences for purposes of criminal history.  

9/20/23: Case on shipping misbranded drugs in interstate commerce 21 U.S.C. §§ 331(a), 333(a)(2).

In United States v. Marschall, --- F.4th ---, No. 22-30048 (9th Cir. 2023), the Court affirmed Richard Marschall’s conviction under the Federal Food, Drug, and Cosmetic Act (“FDCA”) for shipping misbranded drugs in interstate commerce in violation of 21 U.S.C. §§ 331(a) and 333(a)(2).

On appeal, Marschall argued that the district court erred in concluding that the charged offense did not require proof that he knew that the drugs he shipped were misbranded.

The Court rejected this argument, concluding there was no mens rea requirement: 

[W]e conclude that this is the unusual case in which a public welfare offense lacks a scienter element even though it is a felony with moderately severe potential penalties. In short, (1) Congress augmented, into a felony, a predicate misdemeanor offense that concededly lacks a scienter requirement; (2) it did so by adding, not a scienter requirement, but a prior conviction requirement; (3) this action contrasts with Congress’s explicit addition of a scienter requirement in the other clause of § 333(a)(2); and (4) the prior conviction requirement, as a functional matter, largely serves the same purposes as an express scienter requirement. Under this confluence of circumstances, we conclude that the first clause of § 333(a)(2) does not require the Government to prove that the defendant knew that the drugs were misbranded. Accordingly, the indictment here did not need to allege that Marschall knew that the labeling of the “Dynamic Duo” rendered those products misbranded in the respects described in the indictment. The district court therefore properly denied Marschall’s motion to dismiss the indictment. 

9/13/23: En banc decision regarding the procedure for imposing supervised release conditions

In United States v. Montoya, --- F.4th ---, No. 21-50129 (9th Cir. 2023) (en banc), the Court considered whether a district court must orally pronounce all discretionary conditions of supervised release, including those referred to as “standard” in U.S.S.G. § 5D1.3(c), in order to protect a defendant’s due process right to be present at sentencing.  The Court held in the affirmative. 

Because a defendant has a right to be present at sentencing “to the extent that a fair and just hearing would be thwarted by his absence,” Snyder, 291 U.S. at 108, it follows that a defendant has the right to be present during the oral pronouncement of conditions of supervised release to the extent “his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against” the condition, id. at 105–06. 

A defendant’s due process right to be present at a critical stage is not violated if the district court imposes mandatory conditions of supervised release only in the written judgment. See Napier, 463 F.3d at 1043. Because these conditions are required under 18 U.S.C. § 3583(d), a defendant cannot defend against them, see Diggles, 957 F.3d 14 USA V. MONTOYA at 558, and so a defendant’s presence during the oral pronouncement of mandatory conditions “would be useless, or the benefit but a shadow,” Snyder, 291 U.S. at 106–07.13 

The situation is different when a court imposes a condition that is not mandated by 18 U.S.C. § 3583(d) and is thus discretionary. Because district judges enjoy “wide latitude” to impose non-mandatory conditions of supervised release, United States v. Weber, 451 F.3d 552, 557 (9th Cir. 2006), which is constrained only by the requirements of 18 U.S.C. § 3583(d)(1)–(3), the defendant has a due process right to be present to defend against them, Snyder, 291 U.S. at 105.

A defendant’s right to be present for the imposition of a condition of supervised release to which a defendant could raise a defense applies to any condition imposed by the district court that is not mandated by statute, without regard to whether the Guidelines label this condition “standard” under § 5D1.3(c) or “special” under § 5D1.3(d). Although the “standard” conditions might be “boilerplate” in form, Napier, 463 F.3d at 1043, the district court retains full discretion over the decision to impose them, subject only to the requirements of 18 U.S.C. § 3583(d)(1)–(3), based on its individualized assessment of the defendant.

We therefore overrule Napier to the extent it held that a district court need not orally pronounce the standard conditions recommended by § 5D1.3(c) at the sentencing hearing.

In reaching this conclusion, we join five of our sister circuits in holding that, for purposes of determining whether a defendant has a due process right to be present for sentencing (specifically, for the oral pronouncement of a condition of supervised release), what matters is whether a condition is mandatory or discretionary under 18 U.S.C. § 3583(d).  

If a condition is mandatory, then a defendant need not be present for its oral pronouncement. If a condition is discretionary, the district court must orally pronounce it in the presence of the defendant, without regard to how it is classified by the Guidelines. This bright-line rule ensures that a defendant’s right to be present at sentencing is protected and more faithfully adheres to the text of § 3583(d).

We agree with our sister circuits that the district court may satisfy the oral pronouncement requirement when imposing discretionary conditions of supervised release at the sentencing hearing in two different ways. The district court can recite each condition it elects to impose. Alternatively, where the defendant has been informed of the proposed conditions of supervised release in advance of sentencing, the court can incorporate those conditions by reference at the hearing.

In sum, we hold that a district court must orally pronounce all discretionary conditions of supervised release in the presence of the defendant. We further hold that this pronouncement requirement is satisfied if the defendant is informed of the proposed discretionary conditions before the sentencing hearing and the district court orally incorporates by reference some or all of those conditions, which gives the defendant an opportunity to object. 

In this case, the limited remand approach is appropriate. We vacate only the conditions of supervised release that were referred to as the “standard conditions” in the written sentence but were not orally pronounced. 

Remand is required so that the district court can cure its error by orally pronouncing any of the standard conditions of supervised release that it chooses to impose and by giving Montoya a chance to object to them. Because the failure to pronounce those conditions is the only sentencing error—the district court made adequate findings supporting the reasonableness of the custodial sentence and properly imposed the mandatory conditions and orally pronounced special conditions—we exercise our discretion “to remand to the district court for the limited purpose of” reconsidering the supervised release conditions we have vacated herein.  

8/31/23: Case on 11(c)(1)(B) plea agreements

In United States v. Torres-Giles, --- F.4th ---, No. 22-50112 (9th Cir. 2023), the Court affirmed a sentence in a case in which Urbano Torres-Giles pleaded guilty to attempted reentry following removal and entered a Federal Rule of Criminal Procedure 11(c)(1)(B).  

During sentencing, the district court stated it rejected the plea agreement because of its fast-track recommendation.  On appeal, the Court explained that the defendant has no right to withdraw a Type B plea if the court does not follow the government’s recommendation or the defendant’s request, and a Type B agreement is not binding upon the court. Further, so long as the defendant is apprised of the consequences of entering into a Type B plea agreement and accedes to them voluntarily, he has no right to withdraw from the agreement on the ground that the court does not accept the sentencing recommendation or request. Accordingly, the district court’s use of the word “reject” in the context of a Type B plea agreement can have no legal effect.

The majority also held the district court did not plainly err in its factual finding that Torres-Giles had assured the court at the prior sentencing hearing that he would not return to the United States. 

There is a good dissent on this issue by Judge Mendoza.  He explains: "a district court’s speculation about statements potentially made during a prior hearing is a “clearly erroneous fact” that cannot be used as a sentencing factor."

Moreover, the attorney-client relationship “is a quintessential principal-agent relationship” where “the client retains ultimate dominion and control over the underlying claim.” Mr. Torres-Giles exercised that control by correcting his lawyer. Unlike trial management decisions, which are “the lawyer’s province,” the decision to admit or deny an aggravating sentencing factor is of the kind “reserved for the client.” The sentencing court should not have relied on the attorney’s uncertain memory given Mr. Torres-Giles’s statement that his attorney was wrong; that “I didn’t say those things.” The majority also faults Mr. Torres-Giles for not presenting a transcript from the prior hearing or other evidence to support his claim. But that is not his burden. A sentencing court may not assume an aggravating factor and require the defendant to disprove it.