7/23/24: Case on mootness and compassionate release

In United States v. Yepez, --- F.4th ---, No. 22-50233 (9th Cir. 2024), the Court dismissed as moot Roberto Yepez’s appeal from the district court’s order dismissing his motion for compassionate release.

Before briefing in the appeal was concluded, he was released from prison.  

The Court held "that a motion for compassionate release may not be used to shorten a term of supervised release."  

However, the Court also noted "that, even when a person has been released from imprisonment, a challenge to his sentence is not moot if a favorable ruling could be used as a factor weighing in favor of reducing the term of supervised release under § 3583(e)."  But it held that this rule did not apply in the context of Yepez's appeal because a resolution on the merits "would be irrelevant to the evaluation of any future motion under § 3583(e)."

7/18/24: Case on selective prosecution

In United States v. Rundo, --- F.4th ---, No. 24-932 (9th Cir. 2024), the Court reversed the district court’s judgment dismissing, based on a claim of selective prosecution, an indictment charging Robert Paul Rundo and Robert Boman with conspiracy to violate the Anti-Riot Act as well as with substantively violating the Act; reinstated the indictment; and remanded the case for trial.

The indictment alleged that Rundo was a founding member of the “Rise Above Movement” or “RAM,” a  "combat-ready, militant group of a new nationalist white supremacy and identity movement.” It also alleged that Rundo and his colleagues, including Boman, attended a number of peaceful protests, when they chased down and violently attacked counter-protesters.

The district court granted the defense motion to dismiss for selective prosecution, concluding the government prosecuted RAM members such as Defendants while ignoring the violence of members of Antifa and related far left groups because RAM engaged in what the government and many believe is more offensive speech.

The Ninth Circuit reversed, finding the district court erred in virtually every aspect of its analysis.

To succeed in a selective prosecution claim, the defendant bears the burden to demonstrate that (1) other similarly situated individuals have not been prosecuted and (2) his prosecution was based on an impermissible motive.  

On prong one, the Court held that Rundo did not meet his burden to establish that similarly situated individuals were not prosecuted, that the district court erred by comparing collective conduct to individual conduct when it referred broadly to “Antifa and far-left groups” and comparing them to “Defendants,” and that the district court erred in holding that the individual Antifa members it did discuss were similarly situated to Rundo. 

Moving to the second prong, the Court concluded that Rundo failed to meet his burden to demonstrate that his prosecution was based on an impermissible motive. 

7/15/24: One case with a gaggle of opinions on plea agreements and breaches

In United States v. Livar, --- F.4th ---, No. 22-30213 (9th Cir. 2024), the Court vacated Adam Lloyd Livar’s sentence and remanded in a case in which Livar pled guilty to failing to register as a sex offender in violation of 18 U.S.C. § 2250(a).

One case with 4 different opinions:

Per Curiam Opinion; 

Concurrence by Judge Vratil; 

Concurrence and Dissent by Judge VanDyke; 

Concurrence and Dissent by Judge Sanchez.

"Because each panel member has issued their own opinion and the composition of the majority changes for different conclusions, this per curiam opinion provides (1) the necessary factual background to understand the individual decisions that follow, (2) the panel’s unanimous mootness analysis, and (3) a summary of the panel’s other holdings derived from the separate writings."

As to mootness: 

We first address whether this appeal has become moot based on Livar’s release from the Federal Bureau of Prisons on June 6, 2023, to begin serving his five-year term of supervised release. After considering the parties’ supplemental briefing, we agree with Livar that this appeal is not moot.

The government contends that the case is moot because the district court sentenced Livar to the minimum supervised release term allowed under the statute. 

After sentencing, however, the district court has discretion to “modify, reduce, or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release.” 18 U.S.C. § 3583(e)(2). The court may also terminate an individual’s term of supervised release “at any time after the expiration of one year . . . if it is satisfied that such action is warranted by the conduct of the defendant released and the interest of justice.” 18 U.S.C. § 3583(e)(1). Under our precedent, the “possibility” that the district court may exercise its discretion at a future proceeding to reduce a term or modify the conditions of supervised release under 18 U.S.C. § 3583(e) is sufficient to prevent the case from being moot.

Because the district court has the authority to modify or terminate Livar’s current supervised release obligations under 18 U.S.C. § 3583(e) following a successful appeal, the possibility that the district court may do so is sufficient to prevent the appeal from being moot.

Here is the summary of the other opinions:

First, all three panel members agree that when the government seeks to be relieved of its obligations under the plea agreement because, in its view, the defendant breached the plea agreement or failed to satisfy a condition precedent, the district court must hold an evidentiary hearing to resolve any such factual disputes. Because the district court declined to adjudicate whether Livar committed a new crime and therefore never made the required determination in this case, the panel unanimously concludes that Livar’s sentence should be vacated. 

Second, a majority of the panel (Judges VANDYKE and VRATIL) concludes due process does not require the government to seek or receive a judicial determination of a defendant’s failure to comply with the plea agreement before it submits a sentencing recommendation that differs from the terms of the agreement. The government thus does not breach its obligations under an agreement simply by submitting a different sentencing recommendation without a prior judicial determination of whether the defendant failed to comply with the plea agreement, nor is it required to first seek a preliminary determination as to whether its recommendation complies with the agreement. There must be a judicial determination, but it need not necessarily come first. 

Finally, a different majority of the panel (Judges SANCHEZ and VRATIL) concludes the proper remedy in this case is remand with instructions that judgment be entered with a term of imprisonment of time served and all other terms and conditions—including Livar’s five-year term of supervised release—to remain the same as the original judgment.  

7/3/24: Case on appellate waivers

In United States v. Atherton, --- F.4th ---, No. 21-30266 (9th Cir. 2024), the defendant pleaded guilty with a plea agreement that waived his right to appeal the sentence.  

He then appealed, arguing the district court violated his due process rights by relying on false and unreliable information at sentencing.  

A divided Court held that a due process challenge to sentencing, like Atherton’s, falls within the appeal waiver limitation identified in United States v. Wells, 29 F.4th 580 (9th Cir. 2022), for “a challenge that the sentence violates the Constitution.”  Thus, the Court considered the appeal on the merits, but affirmed. 

On the waiver issue, the majority explained: 

[W]e have repeatedly permitted defendants to raise due process challenges to their sentence despite the existence of a valid appeal waiver."

[G]iven that the sentencing proceeding has not yet occurred at the time an appeal waiver is entered, a presentencing waiver should not be taken as waiving the right to a constitutionally imposed sentence absent a clear statement to that effect, including specifying the constitutional rights waived. That, in essence, is what Wells held, as it permitted enforcement of an appeal waiver of “any underlying constitutional right that was expressly and specifically waived.” 29 F.4th at 587. That limitation to clearly enunciated, specific waivers avoids providing carte blanche to sentencing courts to trample constitutional rights during the all-important sentencing proceedings, and at the same time assures that the defendant’s quid pro quo for the prosecutor’s plea agreement concessions is limited to specific circumstances contemplated in advance. 

The concern that a defendant should not—absent a clear statement to the contrary—be taken to waive the right to unknown and unanticipated constitutional violations occurring during sentencing applies equally to procedural and substantive violations. There is no basis for limiting the Wells exception to one and not the other.