9/12/24: A couple of sentencing decisions

First, in United States v. Brewster, --- F.4th ---, No. 23-329 (9th Cir. 2024), the Court affirmed a sentence imposed following the defendant’s guilty plea to one count of being a felon in possession of a firearm.

The Court rejected a variety of sentencing claims.  The only thing that jumped out at me was the Court's conclusion that data from the Sentencing Commission’s Judiciary Sentencing INformation (JSIN) online tool was sufficiently reliable to consider at sentencing.  I don't recall seeing this in a prior published opinion (but I certainly could be wrong about that).  

In sum, the district court did not err, much less clearly err, in finding that the JSIN data was reliable. Thus, perforce, it bore some minimal indicia of reliability. The JSIN data came from a reliable source designed specifically for judges to use during sentencing to fulfill their obligations under § 3553(a)(6). The JSIN data was also corroborated by other unchallenged evidence. Finally, even though he could have, Brewster offered no evidence to contradict or materially undermine JSIN’s reported average and median sentences. 

Next, in United States v. Avendano-Soto, --- F.4th ---, No. 23-281 (9th Cir. 2024), the Court affirmed the defendant’s conviction and sentence following his guilty plea to assaulting a federal officer resulting in bodily injury.  Again, not much new in this case, but the Court's discussion of the Montoya pronouncement requirement is somewhat noteworthy.  

In the District of Arizona, General Order 17-18 "lists thirteen 'standard' conditions, all based on the thirteen 'standard' conditions recommended for supervised release in § 5D1.3 of the Guidelines."  The Court noted that: 

Under Montoya, “a district court must orally pronounce all discretionary conditions of supervised release in the presence of the defendant.” “[T]his 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.” 

Because Avendano reviewed and understood the PSR, and the PSR incorporated the conditions in General Order 17-18, Avendano had sufficient notice that he would be subject to the conditions in General Order 17-18.4 Thus, the district court satisfied Montoya’s pronouncement requirement.