1/17/20: Case stemming from the killing of a border patrol agent

In United States v. Soto-Barraza, --- F.3d ---, No. 15-10586 (9th Cir. 2020), the Court affirmed the defendants' convictions (with the exception of one count) and life sentences.

The case stemmed from the 2010 killing of a border patrol agent in Arizona.

The defendants were extradited from Mexico.  They moved to dismiss the indictment, arguing that the extradition was unlawful because Mexico did not have equivalent offenses. They later moved for a declaratory judgment on the same ground.   The district court denied the motions and the Ninth Circuit affirmed.

It held: "In its extradition orders, Mexico listed the United States federal charges at issue, and stated that extradition for these charges conformed to the Treaty’s terms. The orders also identified analogous statutory provisions under Mexico’s Federal Penal Code for each of the offenses in the indictments. The principle of dual criminality does not require that the crimes be identical; rather, only the 'essential character' of the acts criminalized by the laws of each country must be the same, and the laws 'substantially analogous.' Because Mexico elected to extradite the defendants on all charges listed in the indictment, the Treaty’s principles of specialty and dual criminality are satisfied."

The Court also rejected the defendants' challenges to their convictions for attempted Hobbs Act robbery.  [The charge resulted from the defendants' admission that they were in the area to rob drug smugglers]. The Court found the differences between the jury instructions and the statutory elements did not constitute a constructive amendment.  Nor were the jury instructions plainly erroneous: "The omission of the phrases 'against his will' and 'fear of injury' did not make the instruction 'misleading or inadequate to guide the jury’s deliberation.'"

In addition, the Court rejected the defendants' challenge to the district court’s denial of their motion for judgment of acquittal as to attempted robbery.  The Court found there was enough to show they took a substantial step: "a reasonable jury could conclude that Soto-Barraza and Sanchez-Meza took a substantial step toward robbery of marijuana smugglers because they equipped themselves with assault-style weapons (as well as packing food, water and ammunition) and traveled to an area where they expected to find the intended victims. Given that the defendants admitted that they entered the Mesquite Seep to search for marijuana smugglers and to rob them at gunpoint, and given their preparations for doing so, a reasonable jury could conclude that defendants would have carried out the crime once the opportunity presented itself and failed to do so only because they were interrupted by the BORTAC agents."

Of note: In a memorandum filed with the opinion, the Court accepted "the government’s concession that conspiracy to commit Hobbs Act robbery is not a crime of violence under 18 U.S.C. § 924(c)(3) in light of the Supreme Court’s decision in United States v. Davis, 139 S. Ct. 2319, 2336 (2019) (holding that 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague). Therefore, we vacate defendants’ convictions for carrying and discharging a firearm in furtherance of a crime of violence."

1/3/20: Interesting 1326 case

The first published criminal case of 2020 is a reminder that Federal Defenders of San Diego continues leading the way in 1326 litigation.  Although the case was not a defense win, the argument was novel and compelling.

In United States v. Mayea-Pulido, --- F.3d ---, No. 18-50223 (9th Cir. 2020), the Court affirmed the defendant's conviction for illegal reentry in violation of 8 U.S.C. § 1326. 

Here is how the Court framed the issue: "Luis Mayea-Pulido challenges his conviction for illegal reentry, which he contends is invalid because he is not an 'alien' who could be guilty of that crime. Mayea argues that he should have automatically become a United States citizen as a result of the naturalization of one of his parents prior to the reentry in question. But because his parents were married, and the derivative citizenship statute at 8 U.S.C. § 1432(a) (1996) required married parents to both naturalize to confer citizenship to their child, he did not become a citizen. Mayea argues that, by making his parents’ marital status a factor in the derivative citizenship determination, § 1432(a) violates the Constitution’s equal protection guarantee."

The Court continued:  "Mayea’s equal protection challenge focuses on the difference between § 1432(a)(1), which allows the child of parents who are not legally separated to derive citizenship only upon the naturalization of both parents, and the first clause of § 1432(a)(3), which allows the child of legally separated parents to derive citizenship upon the naturalization of one parent if that parent has sole legal custody."

To make a long story short, the Court found there was no equal protection violation and thus affirmed. 

12/27/19: geometric isomers of methamphetamine?

In United States v. Rodriguez-Gamboa, --- F.3d ---, No. 19-50014 (9th Cir. 2019), the Court once again confronted the difference between the federal definition of methamphetamine and California's definition.  (this was previously addressed in the now withdrawn Lorenzo opinion).

The relevant federal statute defines methamphetamine as including only methamphetamine and its optical isomer, while California law defines methamphetamine as including its geometric and optical isomers.

This is important because it would seem to make California methamphetamine convictions overbroad such that they could not generally serve as predicate convictions for federal law. 

BUT, "the government contends that this apparent difference is illusory because there is no such thing as a geometric isomer of methamphetamine."

Here, the Court did not resolve the factual issue but remanded to the district court for an evidentiary hearing.

So stayed tuned on this important issue.

The opinion also has some good language on withdrawing a guilty plea:

• The district court may allow a guilty plea to be withdrawn if “the defendant can show a fair and just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). A fair and just reason includes “intervening circumstances, or any other reason for withdrawing the plea that did not exist when the defendant entered his plea.”  A change in the law can justify withdrawal of a plea. 

12/24/19: Guidelines case about U.S.S.G. § 2A2.2(b)(4)

In United States v. Harrington, --- F.3d ---, No. 18-30141 (9th Cir. 2019), the Court affirmed the defendant's sentence following his conviction for "assault by strangling a spouse in Indian country in violation of 18 U.S.C. § 113(a)(8)."

The issue was whether the district court impermissibly double counted when it applied a three-level enhancement for strangling a spouse under § 2A2.2(b)(4).

The Court held it did not: "We hold that application of the three-level adjustment for strangulation to Harrington’s sentence does not constitute impermissible double counting."

12/16/19: Good Guidelines decision

In United States v. Wang, --- F.3d ---, No. 17-10275 (9th Cir. 2019), on plain-error review, the Court vacated the defendant's sentences imposed at the same hearing in two cases – one in which the defendant pleaded guilty to mail fraud, visa fraud, money laundering, and willful failure to pay over tax; the other in which the defendant pleaded guilty to conspiracy to commit visa fraud.

This case demonstrates how tricky the Guidelines can be when the court holds a single sentencing hearing on two separate cases.

The issue on appeal was the district court's application of section 2B1.1 -- the offense Guideline that covers general fraud offenses -- to the defendant's mail fraud conviction pursuant to 18 U.S.C. § 1341.

The Court held: "the district court erred by applying § 2B1.1 to calculate the offense level for Wang’s mail fraud count of conviction. The allegations underlying this count established an immigration visa fraud offense expressly covered by § 2L2.1. Therefore, the district court should have followed the § 2B1.1(c)(3) cross-reference and applied § 2L2.1."

In short, section 2B1.1contains a cross-reference directing the district court to apply another Guideline when, among other conditions, “the conduct set forth in the count of conviction establishes an offense specifically covered by another guideline in Chapter Two." 

Here, the conduct alleged in the indictment's mail fraud count established a visa fraud offense specifically covered by § 2L2.1.  Thus, the district court should have applied 2L2.1.

The Court went on to explain why the error was plain and required resentencing.  It also detailed the proper method of determining whether to impose consecutive or concurrent time for multiple counts under U.S.S.G. § 5G1.2.

12/9/19: Impossible bribery

In United States v. Kimbrew, --- F.3d ---, No. 18-50251 (9th Cir. 2019), the Court affirmed the defendant's bribery conviction. 

"Kimbrew does not dispute that he took money in exchange for a promise that he made as a federal public official. He instead argues that he promised to do the impossible, so his conduct falls outside the purview of § 201 bribery.1 We are not persuaded, and we affirm."

Some important points about § 201 bribery.

• The statutory definition of “official act” contains broad temporal language that indicates the question or matter at issue need not currently be pending or capable of being brought before a public official.

• § 201 liability does not depend on an outcome; the offense is complete at the moment of agreement, and that agreement need not even be accompanied by the bribe recipient’s genuine intentions to follow through.

• Nowhere in the statute or in the governing case law is there a requirement that the bribe recipient be able to succeed in exerting that pressure or persuading through his advice to realize the desired result.

• The official can be convicted even if he never intended to perform the official act for which he was bribed. Id. at 2371. In short, execution is immaterial. It logically follows, then, that § 201 is not limited by the odds of success of the quo at issue.

• the “official act” core of § 201 carries with it a requirement that there be a nexus between the public official’s position and the quo he promises. 

12/2/19: Two crimes of violence

In two recent decisions the Ninth Circuit held that:

1. assault with a dangerous weapon described in 18 U.S.C. § 113(a)(3) is a crime of violence under 18 U.S.C. § 924(c)(3)(A).   United States v. Gobert, --- F.3d ---, No. 17-35970 (9th Cir. 2019)

2. armed robbery involving controlled substances described in 18 U.S.C. § 2118(c)(1) is a crime of violence under 18 U.S.C. § 924(c)(3)(A).  United States v. Burke, --- F.3d ---, No. 17-35446 (9th Cir. 2019)

The cases use the same reasoning to reach the same result.  Nothing else to report on them.