8/24/23: Case on supervised release sentencing

In United States v. Estrada, --- F.4th ---, No. 23-50012 (9th Cir. 2023), the Court affirmed the district court’s judgment on the third revocation of Carlos Armando Estrada’s supervised release.

On appeal, Estrada argued that the district court lacked jurisdiction to revoke his supervised release because, at the time of his third violation, he was serving a term of supervised release that exceeded the applicable statutory maximum.

The Court rejected this argument, concluding: "Estrada was serving a term of supervised release when he committed the instant violation. This is sufficient to confer jurisdiction on the district court. Thus, regardless of any error in the sentence imposed on his second revocation—an issue we do not decide—the district court had jurisdiction over proceedings on the third revocation of Estrada’s supervised release."

"As we have indicated, we decline to reach Estrada’s argument that the term of supervised release imposed on his previous revocation of supervised release exceeded the statutory maximum. Consistent with Castro-Verdugo and our earlier precedent, we hold that an appeal challenging a supervised release revocation is not the 'proper avenue' through which to attack the validity of the underlying sentence."

8/15/23: two decisions today

 In United States v. Eckford, --- F.4th ---, No. 17-50167 (9th Cir. 2023), the Court affirmed Leon Eckford’s conviction and sentence.

It held that aiding and abetting Hobbs Act robbery is a crime of violence that properly served as a predicate for Eckford’s conviction and mandatory minimum sentence for the use of a firearm during a crime of violence under 18 U.S.C. § 924(c).

The Court concluded that its prior precedent on the issue was not clearly irreconcilable with, and thus not overruled by, United States v. Taylor, 142 S. Ct. 2015 (2022), which held that attempted Hobbs Act robbery is not a crime of violence.  

In United States v. Sadler, --- F.4th --- No. 21-30277 (9th Cir. 2023), the Court affirmed the sentence imposed on Jason Sadler following his guilty plea to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).

"After pleading guilty to a single count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1), Defendant Jason Sadler argued at his sentencing that the district court should not consider certain prior convictions in determining his sentencing range under the U.S. Sentencing Guidelines. According to Sadler, subsequent case authority made clear that the guilty plea that produced those prior convictions was not knowing and voluntary, thereby rendering those convictions constitutionally invalid. We hold that the district court properly refused to entertain such a collateral challenge to a prior conviction in the context of this federal sentencing proceeding, and that those prior convictions were therefore properly considered in determining Sadler’s sentence. We therefore affirm Sadler’s sentence."

There is also a good footnote about mootness: 

The Government has suggested in a post-argument filing that Sadler’s challenge to his underlying sentence is moot. The Government notes that, earlier in 2023, Sadler’s supervised release was revoked twice, and in connection with the second such revocation Sadler is now serving a 140-day term of imprisonment to be followed by a new 24-month term of supervised release. As a result, the Government argues, Sadler “is no longer serving” the sentence “that is the subject of this appeal,” and any error in calculating his original sentence “would thus not affect the sentence he is now serving.” We conclude that the Government—which has cited no authority that would support this mootness argument—has failed to carry its burden to show that the case is moot. “[B]ecause district courts have broad discretion to modify conditions of supervised release” under 18 U.S.C. § 3583(e)(2), United States v. Bainbridge, 746 F.3d 943, 948 (9th Cir. 2014), there is a possibility that the district court could reduce or modify Sadler’s supervised release terms in light of a correction of the calculation of the sentencing range. This ‘“possibility of the court’s reducing or modifying [Sadler’s] supervised release’ satisfies the case or controversy requirement.” United States v. D.M., 869 F.3d 1133, 1137 (9th Cir. 2017) (citation omitted). Thus, Sadler’s appeal is not moot.

8/7/23: Case on restitution orders

In United States v. Dadyan, --- F.4th ---, No. 21-50237 (9th Cir. 2023), the Court affirmed the district court’s imposition of restitution obligations on Vahe Dadyan and Artur Ayvazyan following their convictions of various offenses stemming from a conspiracy to fraudulently obtain federal Covid-relief funds. 

The Court held that, under the Mandatory Victims Restitution Act (MVRA), the district court properly imposed restitution in the full amount of the loss caused by the conspiracy instead of just the loss caused by the fraudulent loan applications Vahe and Artur personally played a role in submitting.

The Court further held that the district court properly ordered a restitution amount under the MVRA based on the “value” of fraudulently obtained property, which exceeded the amount of “actual loss” the district court found when sentencing him under U.S.S.G. § 2B1.1(b)(1).

Finally, the Court held that precedent foreclosed Artur’s argument that his Fifth and Sixth Amendment rights to due process and a jury trial required that a jury, not a district judge, find all facts underpinning restitution beyond a reasonable doubt.

8/2/23: Case on abduction under U.S.S.G. § 2A3.1(b)(5)

In United States v. Scheu, --- F.4th ---, No. 22-10044 (9th Cir. 2023), the Court affirmed the defendant's sentence for aggravated sexual abuse of a child in violation of 18 U.S.C. §§ 2241(c), 2246(2), & 1152, in a case in which the district court applied a four-level enhancement under U.S.S.G. § 2A3.1(b)(5) because “the victim was abducted.”

The Court held that the victim was “abducted” when the defendant forced her from the roadside into a nearby cornfield to perpetrate the sexual assault.  This was true under both the plain meaning of the word abducted and under the definition in the Guidelines commentary.  

8/1/23: public right to court access and racially motivated violence in violation of 18 U.S.C. § 249(a)(1).

In United States v. Hougen, --- F.4th ---, No. 21-10369 (9th Cir. 2023), a divided Court affirmed Ole Hougen’s conviction for attempting to commit racially motivated violence, in violation of 18 U.S.C. § 249(a)(1).

First, reviewing for plain error, the Court rejected Hougen's claim that the district court violated his right to a public trial based on restrictions to access due to the COVID-19 pandemic: "In sum, the balance of costs in this case counsels against reversal. In the absence of evidence of any harm to the fairness of Hougen’s trial flowing from the alleged public trial error and in light of the costs that would be imposed by reversal, we conclude that the drastic relief that Hougen seeks is unwarranted. For these and all of the foregoing reasons, we decline to reverse on this ground."

Second, the majority rejected Hougen's argument that § 249(a)(1), as applied to his case, exceeds Congress’ authority under the Thirteenth Amendment.  The majority held "that § 249(a)(1) is a constitutional exercise of Congress’ enforcement authority under Section Two of the Thirteenth Amendment."  In reaching this conclusion the majority determined that Congress rationally determined that violence (or attempted violence) perpetrated against victims on account of the victims’ race is a badge or incident of slavery is well established.

7/18/23: Export regulations case

In United States v. Shih, --- F.4th ---, No. 20-50144 (9th Cir. 2023), a case in which the government cross-appealed, the Court reversed the district court’s judgment of acquittal on one count, and affirmed Shih’s other convictions.  

The government charged Yi-Chi Shih with various offenses arising out of the export of monolithic microwave integrated circuits (MMICs) to the People’s Republic of China. 

In affirming the convictions, the Court discusses the export regulations in detail.  It also rejects a host of evidentiary challenges specific to this case. 

I'm including the Ninth Circuit's summary below:

In a case in which a jury returned a guilty verdict on all counts in an indictment charging Yi-Chi Shih with various offenses arising out of the export of monolithic microwave integrated circuits (MMICs) to the People’s Republic of China, the panel reversed the district court’s judgment of acquittal on one count, affirmed Shih’s other convictions, and remanded. 

The Export Administration Regulations (EARs), administered by the Department of Commerce’s Bureau of Industry and Security, impose controls on certain exports to “serve the national security, foreign policy, nonproliferation of weapons of mass destruction, and other interests of the United States.” After the expiration of the Export Administration Act of 1979, the EARs were continued pursuant to Executive Order 13,222, which declared a national emergency under the International Emergency Economic Powers Act (IEEPA). 

The panel rejected Shih’s argument that Executive Order 13,222 was an improper invocation of presidential authority. The panel also rejected Shih’s argument that IEEPA violates the nondelegation doctrine. 

The judgment of acquittal on Count 2 (exporting MMICs without first having obtained the required license) rested on the district court’s construction of the term “rated for operation” in Export Control Classification Numbers 3A001.b.2.b and 3A001.b.2.c. The panel held that the district court erred in concluding that this term requires postmanufacture, pre-export testing. The panel therefore ordered reinstatement of the jury verdict on that count. 

Shih argued that the district court erred by failing to give his proposed jury instruction on the fundamental research exemption. The panel rejected this argument because other instructions given in their entirety cover the defense theory. 

The panel found no error in the district court’s evidentiary rulings because they were well within the district court’s discretion and Shih was able to present the substance of his defense. The panel found no reversible error in the admission of expert testimony. The panel held that even assuming Shih’s objection was timely, he did not establish that statements by the prosecutor during rebuttal argument so infected the trial with unfairness as to make the conviction a denial of due process. The panel found any error in the wire and mail fraud instructions harmless.

Addressing sufficiency of the evidence, the panel held: (1) as to Counts 1 and 2, a rational factfinder could find that the exported MMICs were not exempt from the EARs as fundamental research; (2) as to Counts 3 through 8, a reasonable factfinder could find Shih’s misrepresentations material, and that the evidence supports a finding that Shih deprived a manufacturer of confidential information, a cognizable property interest under mail and wire fraud statutes; (3) the wire and mail fraud convictions were not based upon the invalidated right-to-control property theory; (4) as to computer fraud (Count 9), a rational factfinder could find unauthorized access to a web portal in furtherance of a specified crime; and (5) Shih’s attacks on Count 10 (money laundering) fail because the panel rejected his attacks on the underlying counts.

The district court rejected Shih’s contention that he was denied due process in connection with the district court’s determination—on the government’s ex parte, in camera motion—that none of certain allegedly classified material was discoverable.

7/6/23: Case on sentencing reductions under 18 U.S.C. § 3582(c)(1)(A)(i)

In United States v. Roper, --- F.4th ---, No. 22-30021 (9th Cir. 2023), the Court vacated the district court’s denial of Jerramey Lyndell Roper’s motion for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i), and remanding for the district court to consider the motion anew. 

The Court held that district courts may consider non-retroactive changes in post-sentencing  law affecting the applicable Sentencing Guidelines when assessing whether a defendant has established the requisite “extraordinary and compelling reasons.”

This is true, the Court held, for both statutory and decisional changes.  In other words, regardless of whether the sentencing change resulted from a modification of the relevant statute or from a court decision, the district court can consider the change in assessing whether the defendant has established “extraordinary and compelling reasons.”