Today's decision in United States v. Jauregui, --- F.3d ---, No. 16-50429 (9th Cir. 2019), is a must read.
It is a plain-error sentencing reversal out of the SD Ca. The case addresses the intricacies of drug-conspiracy sentencing.
The essential point is that, in a drug conspiracy -- such as conspiracy to import -- for the defendant to be sentenced based on a specific drug type, the district court must make a two-part finding:
Under Banuelos, two findings are necessary to hold a
defendant liable for conspiracy involving a particular drug
type or quantity. First, the district court must find “that the
conspiracy distributed a particular type and quantity of
drugs”—that is, the existence of a conspiracy involving the
particular drug type and quantity. Banuelos, 322 F.3d at 704.
And second, the district court must also make a
determination about the defendant’s personal
responsibility—“that the type and quantity were either
within the scope of [the defendant’s] agreement with his
coconspirators or that the type and quantity were reasonably
foreseeable to [the defendant].” Id.
Here, the indictment charged methamphetamine, and the defendant admitted at the plea colloquy that “it was reasonably foreseeable that the controlled
substance” he would transport “would be methamphetamine
under the Pinkerton case.”
But that was not enough to hold him responsible at sentencing for methamphetamine. This was so because "[n]othing Jauregui admitted during his plea colloquy,
however, even hints at Banuelos’s first prong—“that the
conspiracy distributed a particular type and quantity of
drugs.” Id. Jauregui never admitted that there was in fact a
conspiracy whose object was importing methamphetamine,
nor did he ever admit that the substance found in his vehicle
was, in fact, methamphetamine."
The court went on to find plain error and vacate the sentence.
This is a split decision. And the concurrence makes a strong case for reconsidering Banuelos.
Final note, although the case is about sentencing, it has a thorough discussion of the mens rea for conspiracy in general. It also reminds us "that 'attempts to broaden
the already pervasive and wide-sweeping nets of conspiracy
prosecutions' are disfavored[.]"
Friday, March 22, 2019
Thursday, March 21, 2019
3/21/19: Interesting 4th Amendment-ish case
In United States v. Cooley, --- F.3d---, No. 17 -30022 (9th Cir. 2019), the Court affirmed the district court's grant of the defendant's suppression motion.
The case arose from a search performed by a tribal police officer. Much of the decision focuses on tribal authority to seize and search non-Indians. The Court ultimately held that the officer exceeded his authority as a tribal officer on a public, non-tribal highway crossing a reservation when he detained the defendant and twice searched the truck without having ascertained whether the defendant was an Indian.
The Court also found suppression the appropriate remedy under the Indian Civil Rights Act’s Fourth Amendment counterpart. On this issue, the Court reminds us of helpful language on suppression that case be used more generally: “[i]f letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the [Fourth] Amendment, declaring his right to be secure against such searches and seizures, is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution.” Weeks v. United States, 232 U.S. 383, 393 (1914).
The case arose from a search performed by a tribal police officer. Much of the decision focuses on tribal authority to seize and search non-Indians. The Court ultimately held that the officer exceeded his authority as a tribal officer on a public, non-tribal highway crossing a reservation when he detained the defendant and twice searched the truck without having ascertained whether the defendant was an Indian.
The Court also found suppression the appropriate remedy under the Indian Civil Rights Act’s Fourth Amendment counterpart. On this issue, the Court reminds us of helpful language on suppression that case be used more generally: “[i]f letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the [Fourth] Amendment, declaring his right to be secure against such searches and seizures, is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution.” Weeks v. United States, 232 U.S. 383, 393 (1914).
Friday, March 15, 2019
3/15/19: 4th Amend decision on parolees, but also covers CSLI
In United States v. Korte, --- F.3d ---, No. 18-50051 (9th Cir. 2019), the Court affirmed the denial of the defendant's suppression motions in a bank robbery case.
The defendant was on parole in California. As part of his parole, he consented to warrantless, suspicionless searches of his person, residence, and any property under his control.
He challenged the warrantless searches of: (1) the trunk of his car; (2) the use of a GPS tracking device on his car; and (3) his CSLI (cell site location information).
The Ninth Circuit found the search of the trunk and the use of the GPS tracker were permissible based on the defendant's parole status.
As to the CSLI, the Court did not decide the constitutional issue. Instead, it found the good faith exception applied. At the time of the CSLI search, Carpenter had not yet been decided. Thus, the Court concluded the government relied in good faith on the then-applicable authorizing statute, the Stored Communications Act.
The defendant was on parole in California. As part of his parole, he consented to warrantless, suspicionless searches of his person, residence, and any property under his control.
He challenged the warrantless searches of: (1) the trunk of his car; (2) the use of a GPS tracking device on his car; and (3) his CSLI (cell site location information).
The Ninth Circuit found the search of the trunk and the use of the GPS tracker were permissible based on the defendant's parole status.
As to the CSLI, the Court did not decide the constitutional issue. Instead, it found the good faith exception applied. At the time of the CSLI search, Carpenter had not yet been decided. Thus, the Court concluded the government relied in good faith on the then-applicable authorizing statute, the Stored Communications Act.
Thursday, March 14, 2019
3/14/19: Right to reject insanity defense and rape shield rule.
Two cases today.
First, in United States v. Read, --- F.3d ---, No. 17-10439 (9th Cir. 2019), the Court vacated the defendant's convictions for assault with a deadly weapon with intent to bodily harm, and assault with a deadly weapon resulting in serious bodily injury, in violation of 18 U.S.C. § 113(a). The case arose out of a prison stabbing.
The defendant was adamant that he did not want to pursue an insanity defense. His attorney and the district court overruled him.
On appeal, the Court held that, under McCoy v. Louisiana, 138 S. Ct. 1500 (2018), a district court commits reversible error by permitting defense counsel to present a defense of insanity over a competent defendant’s clear rejection of that defense.
The case also has some other issues regarding the jurisdictional element of § 113(a), which prohibits assaults “within the special maritime and territorial jurisdiction of the United States.”
Second, in United States v. Haines, --- F.3d ---, No. 17-50059 (9th Cir. 2019), the Court affirmed the defendant's conviction for sex trafficking a minor. This was a pimping case. The alleged victim recanted and testified favorably to the defendant at trial. The defense wanted to ask her about prior prostitution but the government successfully kept it out under the rape shield rule in Fed. R. Evid. 412.
The Ninth finds no error. It rejected the defendant's contention that evidence of the victim's prior prostitution activities should have been admitted under the exception in Rule 412(b)(1)(C) for “evidence whose exclusion would violate [his] constitutional rights.”
The Court further held that the applicability of Rule 412 should not depend on the alleged victim’s desire to testify.
First, in United States v. Read, --- F.3d ---, No. 17-10439 (9th Cir. 2019), the Court vacated the defendant's convictions for assault with a deadly weapon with intent to bodily harm, and assault with a deadly weapon resulting in serious bodily injury, in violation of 18 U.S.C. § 113(a). The case arose out of a prison stabbing.
The defendant was adamant that he did not want to pursue an insanity defense. His attorney and the district court overruled him.
On appeal, the Court held that, under McCoy v. Louisiana, 138 S. Ct. 1500 (2018), a district court commits reversible error by permitting defense counsel to present a defense of insanity over a competent defendant’s clear rejection of that defense.
The case also has some other issues regarding the jurisdictional element of § 113(a), which prohibits assaults “within the special maritime and territorial jurisdiction of the United States.”
Second, in United States v. Haines, --- F.3d ---, No. 17-50059 (9th Cir. 2019), the Court affirmed the defendant's conviction for sex trafficking a minor. This was a pimping case. The alleged victim recanted and testified favorably to the defendant at trial. The defense wanted to ask her about prior prostitution but the government successfully kept it out under the rape shield rule in Fed. R. Evid. 412.
The Ninth finds no error. It rejected the defendant's contention that evidence of the victim's prior prostitution activities should have been admitted under the exception in Rule 412(b)(1)(C) for “evidence whose exclusion would violate [his] constitutional rights.”
The Court further held that the applicability of Rule 412 should not depend on the alleged victim’s desire to testify.
Tuesday, March 12, 2019
3/12/19: A couple of interesting Guidelines cases
First, in United States v. Door, --- F.3d ---, No. 17-30165 (9th Cir. 2019), the Court addressed whether two Washington statutes -- felony harassment and second degree assault -- qualify as crimes of violence, as defined in U.S.S.G. § 4B1.2.
The opinion has a thorough explanation of how the categorical analysis works differently with respect to the force clause, the enumerated offense clause, and the residual clause.
Based on prior precedent, the Court held that the conviction for felony harassment in violation of Wash. Rev. Code §§ 9A.46.020(1)(a)(i) constitutes a crime of violence pursuant to the force clause of § 4B1.2(a)(1).
On the other hand, the conviction for second-degree assault in violation of Wash. Rev. Code § 9A.36.021(1)(c) did not qualify as a crime of violence pursuant to the force clause, or the residual clause.
Most noteworthy about this opinion is it limitation of United States v. Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017), which held that Washington aiding an abetting was overbroad because it did not require specific intent. For a while, it looked like that holding would render all Washington crimes overbroad for federal sentencing-enhancement purposes, but today the Court limited Valdivia-Flores's holding to the enumerated clause. In other words, the aiding and abetting overbreadth applies to crimes falling within the enumerated clause but not others.
Frankly, this does not mesh with my understanding of categorical analysis, but I don't make the rules.
Second, in United States v. Pien-Pinto, --- F.3d ---, No. 18-30055 (9th Cir. 2019), the Court reaffirmed its holding that the lack of a mens rea requirement in § 2K2.1(b)(4) (use of a stolen firearm in a crime) does not violate due process. In doing so, it rejected a number of creative and compelling defense arguments.
The opinion has a thorough explanation of how the categorical analysis works differently with respect to the force clause, the enumerated offense clause, and the residual clause.
Based on prior precedent, the Court held that the conviction for felony harassment in violation of Wash. Rev. Code §§ 9A.46.020(1)(a)(i) constitutes a crime of violence pursuant to the force clause of § 4B1.2(a)(1).
On the other hand, the conviction for second-degree assault in violation of Wash. Rev. Code § 9A.36.021(1)(c) did not qualify as a crime of violence pursuant to the force clause, or the residual clause.
Most noteworthy about this opinion is it limitation of United States v. Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017), which held that Washington aiding an abetting was overbroad because it did not require specific intent. For a while, it looked like that holding would render all Washington crimes overbroad for federal sentencing-enhancement purposes, but today the Court limited Valdivia-Flores's holding to the enumerated clause. In other words, the aiding and abetting overbreadth applies to crimes falling within the enumerated clause but not others.
Frankly, this does not mesh with my understanding of categorical analysis, but I don't make the rules.
Second, in United States v. Pien-Pinto, --- F.3d ---, No. 18-30055 (9th Cir. 2019), the Court reaffirmed its holding that the lack of a mens rea requirement in § 2K2.1(b)(4) (use of a stolen firearm in a crime) does not violate due process. In doing so, it rejected a number of creative and compelling defense arguments.
Monday, March 4, 2019
3/4/19: Good faith and CSLI post Carpenter
In United Sates v. Elmore, --- F.3d ---, No. 16-10109 (9th Cir. 2019), the Court reversed the district court's order granting suppression of historical cell-site location information (CSLI).
The CSLI was obtained pursuant to a warrant. But the district court found it lacked probable cause as to this particular defendant. The Ninth Circuit agreed with that point. Nevertheless, it found exclusion unwarranted under the good faith exception. It concluded: "Although we agree with the district court that the warrant authorizing the seizure of Gilton’s location data was not supported by probable cause, we conclude that the deficiencies were not so stark as to render the officers’ reliance on the warrant 'entirely unreasonable.'"
The CSLI was obtained pursuant to a warrant. But the district court found it lacked probable cause as to this particular defendant. The Ninth Circuit agreed with that point. Nevertheless, it found exclusion unwarranted under the good faith exception. It concluded: "Although we agree with the district court that the warrant authorizing the seizure of Gilton’s location data was not supported by probable cause, we conclude that the deficiencies were not so stark as to render the officers’ reliance on the warrant 'entirely unreasonable.'"
Wednesday, February 27, 2019
2/27/19: Good SCOTUS case on appeal waivers
Today in Garza v. Idaho, 586 U.S. ___, (2019), the Supreme Court extended Roe v. Flores-Ortega, 528 U. S. 470 (2000), which held that when an attorney’s deficient performance costs a defendant an appeal that the defendant would have otherwise pursued, prejudice to the defendant should be presumed “with no further showing from the defendant of the merits of his underlying claims.”
Under today's decision, the same rule applies even when the defendant has signed an appellate waiver: "This case asks whether that rule applies even when the defendant has, in the course of pleading guilty, signed what is often called an 'appeal waiver'—that is, an agreement forgoing certain, but not all, possible appellate claims. We hold that the presumption of prejudice recognized in Flores-Ortega applies regardless of whether the defendant has signed an appeal waiver."
Additionally, the Court made clear, "simply filing a notice of appeal does not necessarily breach a plea agreement, given the possibility that the defendant will end up raising claims beyond the waiver’s scope."
Under today's decision, the same rule applies even when the defendant has signed an appellate waiver: "This case asks whether that rule applies even when the defendant has, in the course of pleading guilty, signed what is often called an 'appeal waiver'—that is, an agreement forgoing certain, but not all, possible appellate claims. We hold that the presumption of prejudice recognized in Flores-Ortega applies regardless of whether the defendant has signed an appeal waiver."
Additionally, the Court made clear, "simply filing a notice of appeal does not necessarily breach a plea agreement, given the possibility that the defendant will end up raising claims beyond the waiver’s scope."
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