6/28/24: The test for plea withdrawal under Fed. R. Crim. P. 11(d)(2)

In United States v. Hernandez, --- F.4th ---, No. 22-50134 (9th Cir. 2024), the Court vacated the district court’s order denying Vladimir Horowitz’s motion to withdraw his guilty plea, and remanded for further proceedings. 

We address whether a criminal defendant’s belated realization that his safety-valve proffer could lead to reprisal in prison counts as a “fair and just” reason to withdraw his guilty plea [under Federal Rule of Criminal Procedure 11(d)(2).]

When Vladimir Hernandez pleaded guilty to felony meth distribution charges, he agreed to tell the government everything he knew in exchange for a chance at a lower sentence under the safety-valve sentencing provision. But soon after Hernandez entered the plea, he apparently learned for the first time that other inmates may not take too kindly to his cooperation. He now swears that he would not have agreed to the favorable plea deal if he had known that seeking a safety-valve sentence reduction would subject him to potential peril in prison. 

District courts may allow a defendant to withdraw a plea before sentencing if he offers a “fair and just” reason for doing so. See Fed. R. Crim. Pro. 11. We have interpreted the “fair and just” standard to include a reason that did not exist when the defendant entered the plea. But a defendant cannot withdraw his plea for just any “new” reason. To withdraw a plea, a defendant must show that (1) the “new” reason is being offered in good-faith and that he subjectively did not know this reason for his plea withdrawal at the time of the plea, and (2) it was objectively reasonable to have not known about or anticipated this material new reason, either.

6/27/24: Three criminal decisions

In United States v. Terabelian, --- F.4th ---, No. 21-50291 (9th Cir. 2024), the Court dismissed under the fugitive-disentitlement doctrine Marietta Terabelian’s appeal in a case in which Terabelian removed her location-monitoring device and fled to Montenegro while awaiting sentencing. 

She was sentenced in absentia and counsel filed the appeal while she was a fugitive.  Although she was returned to custody during the pendency of the appeal, the Court concluded that, on balance, the policy rationales underlying the fugitive-disentitlement doctrine weigh in favor of its application.  Specifically, deterrence, the dignity of the courts, and the efficiency of the appellate process all support dismissal of the appeal.

The Court also explained that even if it had not dismissed the appeal, it would have rejected Terabelian’s claims on the merits. 

One other note:  The opinion contains some discussion of Kastigar hearings: "If a defendant’s statements were compelled in violation of the [F]ifth [A]mendment, he is entitled to a Kastigar hearing, in which the government must demonstrate that the evidence it intends to introduce in a subsequent criminal proceeding is not tainted by exposure to the compelled statements."

Next, in United States v. Sandeen, --- F.4th ---, No. 22-10003 (9th Cir. 2024), the Court dismissed an appeal to the extent it attacked the superseding indictment, and affirmed the judgment in all other respects in a case in which Andrew Sandeen’s plea agreement reserved the right to appeal the denial of his suppression motions but otherwise waived the right to appeal his conviction and sentence.

The main issue was whether the return of an indictment by an expired grand jury is a jurisdictional defect that may be raised by a defendant on appeal notwithstanding an enforceable appeal waiver in a plea agreement. The Court overruled its prior precedent on this issue based on intervening Supreme Court law and held that it is not a jurisdictional defect that can be raised over a valid appellate waiver. 

The Court also rejected on the merits Sandeen's suppression claims, which had been preserved by his conditional guilty plea. 

Finally, in United States v. Stackhouse, --- F.4th ---, No. 22-30177 (9th Cir. 2024), the Court affirmed Angelo Corey Stackhouse’s convictions for kidnapping a minor using a means or instrumentality of intrastate commerce, in violation of 18 U.S.C. §§ 1201(a)(1), 1201(g), and 3559(f)(2), and transportation of a person across state lines with intent to engage in illegal sexual activity, in violation of 18 U.S.C. § 2421(a).

Rejecting Stackhouse’s argument that his kidnapping conviction violates the Commerce Clause, the panel held that the application of the federal kidnapping statute, § 1201(a), to an intrastate kidnapping is constitutional where the defendant uses a cellphone—an instrumentality of interstate commerce—in furtherance of the offense.

The Court further held that the government presented sufficient evidence of Stackhouse’s contingent intent to commit sexual assault when he transported the victim of his assault across state lines in violation of § 2421. "[T]he fact Stackhouse may not have had an unconditional intent to commit sexual assault when he drove Hannah to Colorado does not undermine a finding of intent under § 2421."

"In sum, that Stackhouse may have intended to assault Hannah contingently—if the victim did not fully comply with his demands—is sufficient to meet the intent element of § 2421. Combining the adequacy of contingent intent with the evidence the government introduced—establishing Stackhouse’s pattern of assaultive behavior and prior interactions with other women, as well as his behavior leading up to and during his second trip to Denver with Hannah—there was sufficient evidence to convict Stackhouse of the § 2421 violation."

6/26/24: SCOTUS decision on bribes vs. gratuities under 18 USC 666

In Snyder v. United States, 603 U.S. ___ (2024), the Supreme Court majority held that 18 USC 666 proscribes bribes to state and local officials but does not make it a crime for those officials to accept gratuities for their past acts.  Here are some key quotes: 

Section 666 of Title 18 makes it a crime for state and local officials to “corruptly” solicit, accept, or agree to accept “anything of value from any person, intending to be influenced or rewarded” for an official act. §666(a)(1)(B). That law prohibits state and local officials from accepting bribes that are promised or given before the official act. Those bribes are punishable by up to 10 years’ imprisonment. 

The question in this case is whether §666 also makes it a crime for state and local officials to accept gratuities—for example, gift cards, lunches, plaques, books, framed photos, or the like—that may be given as a token of appreciation after the official act. The answer is no. State and local governments often regulate the gifts that state and local officials may accept. Section 666 does not supplement those state and local rules by subjecting 19 million state and local officials to up to 10 years in federal prison for accepting even commonplace gratuities. Rather, §666 leaves it to state and local governments to regulate gratuities to state and local officials. 

In sum, §666 tracks §201(b), the bribery provision for federal officials. A state or local official can violate §666 when he accepts an up-front payment for a future official act or agrees to a future reward for a future official act. See United States v. Fernandez, 722 F. 3d 1, 23 (CA1 2013) (the word “reward” “clarifies that a bribe can be promised before, but paid after, the official’s action” (quotation marks omitted)). But a state or local official does not violate §666 if the official has taken the official act before any reward is agreed to, much less given. Although a gratuity offered and accepted after the official act may be unethical or illegal under other federal, state, or local laws, the gratuity does not violate §666.

The Government asks this Court to adopt an interpretation of §666 that would radically upend gratuities rules and turn §666 into a vague and unfair trap for 19 million state and local officials. We decline to do so. Section 666 is a vital statute, but its focus is targeted: Section 666 proscribes bribes to state and local officials, while allowing state and local governments to regulate gratuities to state and local officials. Within constitutional bounds, Congress can always change the law if it wishes to do so. But since 1986, it has not, presumably because Congress understands that state and local governments may and often do regulate gratuities to state and local officials. We reverse the judgment of the U. S. Court of Appeals for the Seventh Circuit and remand the case for further proceedings consistent with this opinion.  

I would also recommend reading Justice Gorsuch's concurrence on the rule of lenity.  It is short and to the point. 

6/21/24: SCOTUS today

In United States v. Rahimi, 602 U.S. ____, (2024), the Court held that 18 U.S.C. 922(g)(8) is not facially unconstitutional under the Second Amendment. 

Section 922(g)(8) prohibits an individual subject to a domestic violence restraining order from possessing a firearm if that order includes a finding that he “represents a credible threat to the physical safety of [an] intimate partner,” or a child of the partner or individual. 18 U. S. C. §922(g)(8).  The majority explained: 

 When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed. Section 922(g)(8) is by no means identical to these founding era regimes, but it does not need to be. See Bruen, 597 U. S., at 30. Its prohibition on the possession of firearms by those found by a court to present a threat to others fits neatly within the tradition the surety and going armed laws represent.

Like the surety and going armed laws, Section 922(g)(8)(C)(i) applies to individuals found to threaten the physical safety of another. This provision is “relevantly similar” to those founding era regimes in both why and how it burdens the Second Amendment right. Id., at 29. Section 922(g)(8) restricts gun use to mitigate demonstrated threats of physical violence, just as the surety and going armed laws do. Unlike the regulation struck down in Bruen, Section 922(g)(8) does not broadly restrict arms use by the public generally. 

The burden Section 922(g)(8) imposes on the right to bear arms also fits within our regulatory tradition. While we do not suggest that the Second Amendment prohibits the enactment of laws banning the possession of guns by categories of persons thought by a legislature to present a special danger of misuse, see Heller, 554 U. S., at 626, we note that Section 922(g)(8) applies only once a court has found that the defendant “represents a credible threat to the physical safety” of another. §922(g)(8)(C)(i). That matches the surety and going armed laws, which involved judicial determinations of whether a particular defendant likely would threaten or had threatened another with a weapon. 

Moreover, like surety bonds of limited duration, Section 922(g)(8)’s restriction was temporary as applied to Rahimi. Section 922(g)(8) only prohibits firearm possession so long as the defendant “is” subject to a restraining order. §922(g)(8). In Rahimi’s case that is one to two years after his release from prison, according to Tex. Fam. Code Ann. §85.025(c) (West 2019). App. 6–7.

Finally, the penalty—another relevant aspect of the burden—also fits within the regulatory tradition. The going armed laws provided for imprisonment, 4 Blackstone 149, and if imprisonment was permissible to respond to the use of guns to threaten the physical safety of others, then the lesser restriction of temporary disarmament that Section 922(g)(8) imposes is also permissible.

In Heller, McDonald, and Bruen, this Court did not “undertake an exhaustive historical analysis . . . of the full scope of the Second Amendment.” Bruen, 597 U. S., at 31. Nor do we do so today. Rather, we conclude only this: An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment. The judgment of the Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

Next, in Smith v. Arizona, 602 U.S. ___ (2024), the Court considered the application of the Confrontation Clause "to a case in which an expert witness restates an absent lab analyst’s factual assertions to support his own opinion testimony."  

The majority held, "[w]hen an expert conveys an absent analyst’s statements in support of his opinion, and the statements provide that support only if true, then the statements come into evidence for their truth. As this dispute illustrates, that will generally be the case when an expert relays an absent lab analyst’s statements as part of offering his opinion. And if those statements are testimonial too— an issue we briefly address but do not resolve as to this case—the Confrontation Clause will bar their admission."

“Where testimonial statements are involved,” that Court explained, “the Framers [did not mean] to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence.”

[T]ruth is everything when it comes to the kind of basis testimony presented here. If an expert for the prosecution conveys an out-of-court statement in support of his opinion, and the statement supports that opinion only if true, then the statement has been offered for the truth of what it asserts. How could it be otherwise? “The whole point” of the prosecutor’s eliciting such a statement is “to establish—because of the [statement’s] truth—a basis for the jury to credit the testifying expert’s” opinion. Or said a bit differently, the truth of the basis testimony is what makes it useful to the prosecutor; that is what supplies the predicate for—and thus gives value to—the state expert’s opinion. So “[t]here is no meaningful distinction between disclosing an out-of-court statement” to “explain the basis of an expert’s opinion” and “disclosing that statement for its truth.” Williams, 567 U. S., at 106 (THOMAS, J., concurring in judgment). A State may use only the former label, but in all respects the two purposes merge.

Our holding today follows from all this Court has held about the Confrontation Clause’s application to forensic evidence. A State may not introduce the testimonial out-of-court statements of a forensic analyst at trial, unless she is unavailable and the defendant has had a prior chance to cross-examine her. See Crawford, 541 U. S., at 68; Melendez-Diaz, 557 U. S., at 311. Neither may the State introduce those statements through a surrogate analyst who did not participate in their creation. See Bullcoming, 564 U. S., at 663. And nothing changes if the surrogate—as in this case—presents the out-of-court statements as the basis for his expert opinion. Those statements, as we have explained, come into evidence for their truth—because only if true can they provide a reason to credit the substitute expert. So a defendant has the right to cross-examine the person who made them. 

That means Arizona does not escape the Confrontation Clause just because Rast’s records came in to explain the basis of Longoni’s opinion. The Arizona Court of Appeals thought otherwise, and so we vacate its judgment. To address the additional issue of whether Rast’s records were testimonial (including whether that issue was forfeited), we remand the case for further proceedings not inconsistent with this opinion. 

Finally, in Erlinger v. United States, 602 U.S. ___ (2024), the majority held that the Fifth and Sixth Amendments require a unanimous jury to make the determination beyond a reasonable doubt that a defendant’s past offenses were committed on separate occasions for ACCA purposes.

This case concerns the Armed Career Criminal Act (ACCA) and the Fifth and Sixth Amendments. ACCA imposes lengthy mandatory prison terms on certain defendants who have previously committed three violent felonies or serious drug offenses on separate occasions. The question we face is whether a judge may decide that a defendant’s past offenses were committed on separate occasions under a preponderance-of-the-evidence standard, or whether the Fifth and Sixth Amendments require a unanimous jury to make that determination beyond a reasonable doubt.

Commendably, the government concedes before us, as it did before the court of appeals, what all this means for Mr. Erlinger’s case and others like it. Under §922(g), Mr. Erlinger faced between 0 and 10 years in prison. §924(a)(2) (2012 ed.). To trigger ACCA and expose him to longer prison terms, the government had to prove that his past included three convictions for “violent felon[ies]” or “serious drug offense[s]” that were “committed on occasions different from one another.” §924(e)(1). And under Wooden, deciding whether those past offenses occurred on three or more different occasions is a fact-laden task. Were the crimes “committed close in time”? 595 U. S., at 369. How about the “[p]roximity” of their “location[s]”? Ibid. Were the offenses “similar or intertwined” in purpose and character? Ibid. All these questions, Wooden observed, “may be relevant” to determining whether the offenses were committed on one occasion or separate ones—and all require facts to be found before ACCA’s more punitive mandatory minimum sentence may be lawfully deployed. Ibid. 

As the government recognizes, there is no doubt what the Constitution requires in these circumstances: Virtually “any fact” that “‘increase[s] the prescribed range of penalties to which a criminal defendant is exposed’” must be resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea). Apprendi, 530 U. S., at 490; see Brief for United States 9. Judges may not assume the jury’s fact-finding function for themselves, let alone purport to perform it using a mere preponderance-of-the-evidence standard. To hold otherwise might not portend a revival of the vice-admiralty courts the framers so feared. See Part II–A, supra. But all the same, it would intrude on a power the Fifth and Sixth Amendments reserve to the American people.

While recognizing Mr. Erlinger was entitled to have a jury resolve ACCA’s occasions inquiry unanimously and beyond a reasonable doubt, we decide no more than that. For purposes of the proceedings before us, the parties take as given that Mr. Erlinger committed four burglaries and that each qualifies as a “violent offense” under ACCA. But they disagree vigorously about whether those burglaries took place on at least three different occasions (so that ACCA’s enhanced sentences would apply) or during a single criminal episode (so that they would not). Presented with evidence about the times, locations, purpose, and character of those crimes, a jury might have concluded that some or all occurred on different occasions. Or it might not have done so. All we can say for certain is that the sentencing court erred in taking that decision from a jury of Mr. Erlinger’s peers. 

The majority also explains, "traditional tools exist to address the prejudicial effect evidence about a defendant’s past crimes can have on a jury. Most obviously, a court can bifurcate the proceedings. In that “common,” Apprendi, 530 U. S., at 521, n. 10 (THOMAS, J., concurring), and often “fairest” practice, Spencer v. Texas, 385 U. S. 554, 567 (1967), a jury is first tasked with assessing whether the government has proved the elements of the §922(g) felon-in-possession charge. Then, and only if it finds the defendant guilty, the jury turns to consider evidence regarding whether the defendant’s prior offenses occurred on different occasions for purposes of applying ACCA’s mandatory minimum sentence under §924(e). 

I also thought it was worth noting the majority's footnote about Justice Jackson's dissent. 

 JUSTICE JACKSON pursues an argument neither the government nor amicus nor the principal dissent attempts. She says Apprendi v. New Jersey, 530 U. S. 466 (2000), “was wrongly decided,” and all but calls on the Court to overturn our many precedents applying it, post, at 1, and n. 1, 10–18. But rather than meaningfully engage with the Constitution, its original meaning and history, or our precedents, JUSTICE JACKSON would abandon “constitutional theory” and appeal to a different authority. Post, at 27. “In my view,” post, at 20, JUSTICE JACKSON contends, juries cannot “deal with the fine-grained, nuanced determinations . . . that are necessary to fairly adjudicate factual questions like the one that ACCA’s occasions inquiry raises,” post, at 23. But the Constitution does not take such a dim view about the capacity of jurors or the rigors of trial. Surely, too, juries are no less capable than judges to decide whether three past events happened on three separate occasions. Day in and day out, using everyday trial procedures, juries decide exponentially more complex questions than that. Nor, of course, does Apprendi prohibit legislatures from enacting reforms authorizing judges to lower sentences based on their own fact-finding. See, e.g., First Step Act of 2018, Pub. L. 115– 391, 132 Stat. 5194; 18 U. S. C. §3553(f ) (doing just that). The only thing judges may not do consistent with Apprendi is increase a defendant’s exposure to punishment based on their own fact-finding. All of which leaves JUSTICE JACKSON with her real complaint: In her view, it is “wildly inefficient” to require the government to call witnesses and present evidence—which is to say prove its case—when a judge might more easily enhance a defendant’s exposure to punishment by consulting “sometimes-decades-old,” post, at 23, and error-prone court records, infra, at 17–19. But does JUSTICE JACKSON really think it too much to ask the government to prove its case (as it concedes it must) with reliable evidence before seeking enhanced punishments under a statute like ACCA when the “practical realit[y]” for defendants like Mr. Erlinger is exposure to an additional decade (or more) in prison? Post, at 27. JUSTICE JACKSON may view juries as “roadblocks” to higher punishments. Post, at 18. But “[t]he bottom line is this”: the people ratified the Fifth and Sixth Amendments, not any of our personal views.

Finally, Justice Thomas again calls on the Court to overrule Almendarez-Torres. 

6/20/24: SCOTUS decision on expert testimony under Rule 704(b)

In Diaz v. United States, 602 U.S. ___ (2024), a divided Supreme Court affirmed Diaz's drug-smuggling conviction.  

At trial, the Government’s expert witness opined that most drug couriers know that they are transporting drugs. 

The majority held that because the expert witness did not state an opinion about whether Diaz herself had a particular mental state, the testimony did not violate Rule 704(b).

Because Agent Flood did not express an opinion about whether Diaz herself knowingly transported methamphetamine, his testimony did not violate Rule 704(b). Agent Flood instead testified about the knowledge of most drug couriers. Specifically, he explained that “in most circumstances, the driver knows they are hired . . . to take the drugs from point A to point B.” That opinion does not necessarily describe Diaz’s mental state. After all, Diaz may or may not be like most drug couriers. Diaz herself made this point at trial. She argued that another person, an alleged boyfriend, had deceived her into carrying the drugs. 

The jury was thus well aware that unknowing couriers exist and that there was evidence to suggest Diaz could be one of them. It simply concluded that the evidence as a whole pointed to a different conclusion: that Diaz knowingly transported the drugs. The jury alone drew that conclusion. While Agent Flood provided evidence to support one theory, his testimony was just that—evidence for the jury to consider or reject when deciding whether Diaz in fact knew about the drugs in her car. Because Agent Flood did not give an opinion “about whether” Diaz herself “did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense,” his testimony did not violate Rule 704(b).

An expert’s conclusion that “most people” in a group have a particular mental state is not an opinion about “the defendant” and thus does not violate Rule 704(b). Accordingly, the judgment of the Court of Appeals is affirmed. 

Here is the start of Justice Gorsuch's dissent: 

Federal Rule of Evidence 704(b) prohibits an expert witness from offering an opinion “about whether the defendant did or did not have [the] mental state” needed to convict her of a crime. “Those matters,” the Rule instructs, “are for the trier of fact alone.” Following the government’s lead, the Court today carves a new path around that command. There’s no Rule 704(b) problem, the Court holds, as long as the government’s expert limits himself to testifying that most people like the defendant have the mental state required to secure a conviction. 

The upshot? The government comes away with a powerful new tool in its pocket. Prosecutors can now put an expert on the stand—someone who apparently has the convenient ability to read minds—and let him hold forth on what “most” people like the defendant think when they commit a legally proscribed act. Then, the government need do no more than urge the jury to find that the defendant is like “most” people and convict. What authority exists for allowing that kind of charade in federal criminal trials is anybody’s guess, but certainly it cannot be found in Rule 704.

6/17/24: 1326 case on notice requirements in the immigration context

In United States v. Rivera-Valdes, --- F.4th ---, No. 21-30177 (9th Cir. 2024), a heavily fractured Court affirmed the district court’s denial of Leopoldo Rivera-Valdes’s motion to dismiss an indictment charging him with illegal reentry under 8 U.S.C. § 1326.   

Rivera-Valdes, who failed to appear at his 1994 deportation proceeding, argued that immigration authorities violated his due process rights by ordering him deported in absentia despite the notice of the deportation hearing being returned as undeliverable or unclaimed.

There is a per curiam majority opinion with each judge in the majority writing a separate concurrence.  There is also a dissent.  So, one case with four opinions. 

In any event, the per curium majority held that the deportation in absentia did not violate due process.  Regardless of whether Rivera-Valdes actually received the notice, the government followed its statutory obligations and reasonably attempted to inform him of the hearing by mailing notice to his last (and only) provided address.  The majority rejected Rivera-Valdes’s argument that additional steps to notify him of his deportation hearing were required under Jones v. Flowers, 547 U.S. 220 (2006).  

Of note, there is some good language we can use to get around prior opinions that touch on, but do not squarely address, a legal issue: 

While we must, of course, follow the binding precedent of prior panels, see Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc), this applies only when a prior panel “squarely addresses” the issue, United States v. Kirilyuk, 29 F.4th 1128, 1134 (9th Cir. 2022) (simplified). “Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” United States v. Ped, 943 F.3d 427, 434 (9th Cir. 2019) (simplified). Thus, when a “prior case does not raise or consider the implications of a legal argument, it does not constrain” a new panel’s analysis. Kirilyuk, 29 F.4th at 1134 (simplified).

6/13/24: Federal hate crimes and the categorical approach

In United States v. Howald, --- F.4th ---, No. 23-1182 (9th Cir. 2024), the Court affirmed John Howald’s convictions for a federal hate crime under 18 U.S.C. § 249(a)(2) and discharge of a firearm during a crime of violence under 18 U.S.C. § 924(c)(1)(A).

Howald argued that § 249(a)(2) is an unconstitutional exercise of Congress’s Commerce Clause power both facially and as applied to him. 

First, the Court held that the jurisdictional element in § 249(a)(2)(B)(iii)—that a defendant have used a firearm “that has traveled in interstate or foreign commerce”—defeats the facial challenge. 

In sum, we—as well as our sister circuits—have consistently approved statutes with jurisdictional hooks in the face of Commerce Clause challenges. See Hill, 927 F.3d at 204 (identifying no case “in which a federal criminal statute including an interstate commerce jurisdictional element has been held to exceed Congress’s authority under the Commerce Clause”). Howald conceded as much during a motion hearing before the district court—“he could not identify any valid case in which a federal court had invalidated a federal criminal statute containing an interstate commerce jurisdictional element.”

The jurisdictional element in § 249(a)(2)(B)(iii)—that a defendant have used a firearm “that has traveled in interstate or foreign commerce”—defeats Howald’s facial challenge. See Alderman, 565 F.3d at 645-46, 648; Dorsey, 418 F.3d at 1045-46; Hanna, 55 F.3d at 1462 & n.2. That hook is nearly identical to those approved of in Alderman (“sold or offered for sale, in interstate or foreign commerce”), Dorsey (“that has moved in or that otherwise affects interstate or foreign commerce”), and Hanna and the ensuing § 922(g) cases (“shipped or transported in interstate or foreign commerce”).

Howald has not established that § 249(a)(2) would be invalid in all circumstances or that the law lacks a plainly legitimate sweep. See Ams. for Prosperity Found., 594 U.S. at 615. Faced with a “presumption of constitutionality,” Howald has not made “a plain showing that Congress has exceeded its constitutional bounds.” Morrison, 529 U.S. at 607. Accordingly, we reject his facial challenge to § 249(a)(2). 

Next, the Court rejected Howald's as-applied challenge because the government proved that the firearms and ammunition used in the offense traveled across state lines.

Finally, Howald argued that his § 249(a)(2) hate crime conviction was not a predicate crime of violence for § 924(c)(1)(A). The Court held that § 249(a)(2) is divisible, and that Howald’s offense is categorically a crime of violence because an attempt to kill in violation of § 249(a)(2)(A)(ii)(II) necessarily involves “as an element the use, attempted use, or threatened us of physical force against the person or property of another” per § 924(c)(3)(A).

Attempting to kill someone in violation of § 249(a)(2)(A)(ii)(II) categorically implicates the attempted use of physical force; a person who has “taken a substantial step toward causing the death of another with the specific intent to cause that person’s death” has taken a substantial step toward the use of violent force. 8 United States v. Studhorse, 883 F.3d 1198, 1205-06 (9th Cir. 2018). As we explained in Studhorse, “such an intentional act, ‘strongly corroborative’ as it must have been of [a] purpose to cause death, necessarily involved the use, attempted use, or threatened use of force.” Id. Thus, “‘[e]ven if [the defendant] took only a slight, nonviolent act with the intent to cause another’s death, that act would pose a threat of violent force sufficient to satisfy’ the definition of a crime of violence” in § 924(c)(3)(A).

A person cannot attempt to kill without at least attempting to use force. 

6/3/24: En banc decision on implicitly breaching the plea agreement

In United States v. Farias-Contreras, --- F.4th ---, No. 21-30055 (9th Cir. 2024) (en banc), the Court affirmed a sentence in a case in which the defendant argued that the government breached its promise under the plea agreement not to recommend a sentence in excess of the low-end of the sentencing guidelines range when the government implicitly urged the district court to impose a harsher sentence.

Although the en banc majority found that the government implicitly breached the plea agreement, it affirmed because plain-error review applied.  So, this is a good reminder about the importance of objecting:

Under our rules, as clarified here, the government’s conduct in this case constitutes an implied breach of the agreement. But because the law was not clear at the time of sentencing, we do not find plain error. Accordingly, we affirm Farias-Contreras’s sentence. 

The Court also clarified the law on implicit breaches:

In cases involving an implicit breach claim such as this, courts must look first to the plain language of the plea agreement. As long as the agreement does not expressly prohibit the government from responding to a defendant’s request for a sentence lower than what is recommended by the government, the government has the latitude to respond. In other words, as a default rule, the government can respond even if the plea agreement is silent on the issue.

But the government’s response must be tethered to its obligations under the plea agreement, even when responding to the defendant’s specific request for a downward departure or to the court’s questions. While a prosecutor need not invoke magic words—such as reiterating the government’s recommendation for a low-end sentence—each time he or she argues against mitigation or answers the court’s questions, the government must comply with the letter and spirit of the plea agreement. That is, the government’s arguments must be made in good faith and advance the objectives of the plea agreement. Cf. Appling v. State Farm Mut. Auto. Ins. Co., 340 F.3d 769, 779 (9th Cir. 2003) (noting that state law implies a covenant of good faith and fair dealing in every contract). This is a fact-specific inquiry based on contract principles. Courts should look at the totality of circumstances and consider, inter alia, the sequencing, severity, and purpose of the statements.

Finally, to the extent our precedent can be read to prohibit the government from presenting any information that is already known and contained in the presentence report, we reject such a categorical rule. In cases where the government is entitled to respond to arguments by the defense, repeating facts in the presentence report does not constitute a per se breach.