3/25/24: Case on border-bust trial issues

In United States v. Jimenez-Chaidez, --- F.4th ---, No. 22-50069 (9th Cir. 2024), a divided panel affirmed Jose Jimenez-Chaidez’s jury conviction for knowingly importing cocaine and methamphetamine, vacated his sentence, and remanded for resentencing. 

This was a border-bust case with lack-of-knowledge as the defense. 

First, the Court held that the district court properly admitted evidence of Jimenez’s prior drug transports, including the testimony of a cooperating witness. The Court concluded this prior-act evidence was admitted for the proper purpose of showing knowledge and intent under Federal Rule of Evidence 404(b)(2), and the evidence was not unduly prejudicial under Rule 403.

Second, the majority held that the district court did not abuse its discretion in allowing an FBI agent to testify about the Cellebrite extraction of data from a cellphone as a lay witness rather than an expert witness because the agent’s testimony did not require specialized knowledge.  The dissent disagreed, explaining this was plainly unnoticed expert testimony. 

Third, the Court held that the district court erred by not making an explicit reliability finding related to an expert’s testimony about the value of the drugs found in Jimenez’s vehicle when he was arrested, but this error was harmless.

Finally, the Court vacated Jimenez’s sentence and remanded for resentencing because of recent authority clarifying the process for conducting a mitigating role inquiry under U.S.S.G. § 3B1.2.

3/18/24: Interesting Second Amendment decision

In United States v. Perez-Garcia, --- F.4th ---, No. 22-50314 (9th Cir. 2024), the Court denied Appellants’ motion to dismiss the appeal as moot, and held that the Bail Reform Act of 1984’s firearm condition on pretrial release is constitutional as applied to the appellants. 

This is a case out of the SDCA. 

After their arrests in unrelated cases, two magistrate judges released Fencl and Perez-Garcia pending their trials but subjected them to a condition of pretrial release that temporarily barred them from possessing firearms pending trial.  The magistrate judges concluded that the firearm condition was the least restrictive way to assure the safety of the community and the defendants’ appearances in court. Two district court judges agreed.

In consolidated appeals, Appellants Fencl and Perez-Garcia contended that the pretrial firearm condition violates their Second Amendment rights under New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022). 

The Ninth Circuit affirmed in a brief dispositive order stating: “We affirm the district court’s orders. An opinion explaining this disposition will follow.”

Fencl and Perez-Garcia moved to dismiss their appeals as moot after the Court ruled against them but before the opinion was released. 

Today, the opinion was filed.  As noted, the Court declined to dismiss the appeals.  

Next, the Court held that "the Bail Reform Act’s firearm condition on pretrial release is constitutional as applied to Fencl and Perez-Garcia. Our holding is consistent with how we have long balanced the constitutional rights of pretrial detainees and releasees with legitimate public safety and logistical considerations. And our holding is consistent with our nation’s long history of temporarily disarming criminal defendants facing serious charges and those deemed dangerous or unwilling to follow the law."

3/15/24: The SCOTUS safety-valve decision

Today, in Pulsifer v. United States, 601 U.S. ___ (2024), the Supreme Court resolved the Circuit split on safety valve, with the majority holding that a defendant facing a mandatory minimum sentence is eligible for safety-valve relief under 18 U. S. C. §3553(f)(1) only if he satisfies each of the provision’s three conditions—or said more specifically, only if he does not have more than four criminal-history points, does not have a prior three-point offense, and does not have a prior two-point violent offense.

Rather than begin with the majority opinion, I am going to start with part of Justice Gorsuch's dissent: 

This dispute concerns who is eligible for individualized sentencing and who remains subject to mandatory minimums after the First Step Act. Before the Act, a defendant seeking to avoid a mandatory minimum had to satisfy five stringent statutory tests. After the Act, all those tests remain, only the first is now less demanding. As revised, it provides that a defendant may be eligible for individualized sentencing if he “does not have” three traits: (A) more than 4 criminal history points, (B) a 3-point offense, and (C) a 2- point violent offense. In lower court proceedings, the government admitted that this new test is “most natural[ly]” read to mean what it says: A defendant may be eligible for individualized sentencing unless he possesses all three listed traits—A, B, and C. Despite its admission, however, the government urges us to adopt a different construction. It asks us to read the First Step Act as promising a defendant a chance at individualized sentencing only when he does not have any of the three listed traits— A, B, or C. 

If this difference seems a small one, it is anything but. Adopting the government’s preferred interpretation guarantees that thousands more people in the federal criminal justice system will be denied a chance—just a chance—at an individualized sentence. For them, the First Step Act offers no hope. Nor, it seems, is there any rule of statutory interpretation the government won’t set aside to reach that result. Ordinary meaning is its first victim. Contextual clues follow. Our traditional practice of construing penal laws strictly falls by the wayside too. Replacing all that are policy concerns we have no business considering. Respectfully, I would not indulge any of these moves.

Justice Gorsuch's analysis, however, did not carry the day.  Instead, Justice Kagan found a majority to hold for the government's view: 

In sum, Paragraph (f )(1)’s criminal-history requirement sets out an eligibility checklist. A defendant is eligible for safety-valve relief only if he satisfies each of the paragraph’s three conditions. He cannot have more than four criminal-history points. He cannot have a prior three-point offense. And he cannot have a prior two-point violent offense. Because Pulsifer has two prior three-point offenses totaling six points, he is not eligible. It makes no difference that he does not also have a prior two-point violent offense.

3/12/24: Good 1326(d) decision on carjacking in violation of PC § 215

In United States v. Orozco-Orozco, --- F.4th ---, No. 22-50146 (9th Cir. 2024), the Court reversed the district court’s order denying Orozco’s motion to dismiss under 8 U.S.C. § 1326(d), and remanded for further proceedings.

Orozco was originally removed from the United States in 2013 through an expedited process after an immigration officer determined that his 2005 conviction for carjacking in violation of California Penal Code § 215 was an aggravated felony under the Immigration and Nationality Act (INA).

The district court (in the SDCA) denied Orozco's motion, agreeing with the government that his carjacking conviction qualified as a “theft offense,” and thus as an aggravated felony, under the INA.

The Ninth Circuit reversed: "In sum, despite § 215’s use of the common-law phrase 'felonious taking,' carjacking in California does not require a showing of intent to steal. Rather, § 215 requires only that the defendant intend to permanently or temporarily deprive the current driver or passengers of their possession of the vehicle, by force or by fear. We are bound by the California Supreme Court’s statement of the elements of § 215. We therefore hold that § 215 is not a categorical match for a generic theft offense and thus is not an aggravated felony under the INA."

The Court thus reversed and remanded for the district court to consider whether Orozco satisfied all three prongs of § 1326(d).

3/11/24: One case, two victories

No published criminal decisions today gives me time to share some good news about a case I won this morning in a memorandum.  

The case is United States v. Graves, No. 22-50289 (9th Cir. 2024).  This is my second appellate victory for Mr. Graves. 

The first time, after trial, the Ninth Circuit vacated his life sentence.  See United States v. Graves, 925 F.3d 1036 (9th Cir. 2019).   On remand, he got 25 years.  

We appealed again and I argued it last month.  The Ninth vacated the sentence again, finding the district court plainly erred in determining the mandatory minimum.  

There is helpful language in the decision for plain error sentencing appeals.   

The memorandum also discusses the statutory maximum for state offenses under the old California sentencing regime, pre-Cunningham.

Great way to start the week.

3/7/24: Speedy Trial Act case

In United States v. Layfield, --- F.4th ---, No. 22-50047 (9th Cir. 2024), the Court affirmed Philip James Layfield’s convictions for wire fraud, mail fraud, and various tax offenses. 

Layfiend argued that the twenty-one days it took the U.S. Marshals Service to transport him from the District of New Jersey (where agents arrested him) to the Central District of California (where the grand jury indicted him) should have triggered a Speedy Trial Act violation.

The Court rejected his argument.  It explained, Section 3161(c)(1) provides that the seventy-day STA clock is triggered only by the public filing of the indictment or the first appearance before a judge of the court in which the charge is pending, whichever date last occurs.  Thus, the twenty-one-day delay between Layfield’s detention in New Jersey and his first appearance before a judge in the CDCA was immaterial to the Speedy Trial Act analysis.

3/5/24: Receipt of the proceeds of extortion under 18 U.S.C. § 880

In United States v. Lemus, --- F.4th ---, No. 22-50046 (9th Cir. 2024), the Court affirmed convictions for conspiracy under 18 U.S.C. § 371; aiding and abetting the receipt of the proceeds of extortion under 18 U.S.C. §§ 880, 2(a); and receiving the proceeds of extortion under § 880.

The Court's introduction provides a good summary:

Federal law criminalizes receiving the proceeds of extortion. See 18 U.S.C. § 880. But must a person know that the money or property at issue was in fact payment from extortion? Or is it sufficient for a person to know that the money was somehow “unlawfully obtained”? Id. In this case, Edgar Hernandez Lemus and Junior Almendarez Martinez (collectively, “Defendants”) ask us to resolve these questions. Based on its plain language, we conclude that § 880 requires only that the government prove knowledge that the proceeds were “unlawfully obtained.” And so we affirm Defendants’ convictions, rejecting their § 880 mens rea arguments. 

*****

As stated above, § 880’s knowledge requirement is satisfied if the defendant knew the proceeds at issue were “unlawfully obtained”—meaning obtained in any manner contrary to or prohibited by law.