3/8/23: Case on safety valve

In United States v. Salazar, --- F.4th ---, No. 22-50060 (9th Cir. 2023), on the government's appeal, the Court vacated a sentence and remanded for resentencing.

The Court concluded that the district court erred in granting safety-valve relief because Mr. Salazar never proffered what he knew about the offense to prosecutors as required by § 3553(f)(5). 

The Court further determined that there is no futility exception to the proffer requirement in § 3553(f)(5). Thus, even if Mr. Salazar had no further knowledge of the conspiracy beyond what the government already knew, he should have at least communicated that fact to the government in order to qualify for relief.

3/1/23: The Fourth Amendment implications of an unzipped fanny pack

Because truth is stranger than fiction, today's decision in United States v. Taylor, --- F.4th ---, No. 21-10377 (9th Cir. 2023), turned largely on an unzipped fanny pack. 

The Court affirmed the district court’s denial of a motion to suppress evidence discovered following a traffic stop.

"At the point when [the officer] asked Taylor . . . to exit the vehicle, the officers knew that Taylor was driving a vehicle without license plates or registration tags, that he lacked identification, and that he was on federal supervision for being a felon in possession of a firearm. But once Taylor stepped out of the car, officers had another data point: Taylor’s distinctive unzipped fanny pack slung across his chest. Both officers testified that fanny packs are commonly used to store weapons, with Gariano noting police had seen 'an uptick' in this behavior . . . . That the fanny pack was empty and unzipped added to the reasonable suspicion. As Officer Alvarado testified, it was 'odd' that Taylor had the fanny pack 'on his person' when 'there was nothing in it.'"

"We of course recognize that standing alone, a fanny pack is not necessarily an unusual item of apparel. We certainly do not suggest that officers have reasonable suspicion to frisk anyone who wears that accessory. But here, the fanny pack was curiously empty and unzipped, and it did not stand on its own: officers had just pulled Taylor over for driving without license plates, Taylor had no identification, and, most critically, Taylor had just disclosed that he was on federal supervision for being a felon in possession of a firearm. When combined with the officers’ experience with fanny packs, the circumstances taken as a whole created reasonable suspicion that Taylor, who was not permitted to have a gun, might have one."

Thus, the Court held that the officers did not unreasonably prolong the stop.  It further held: 

"[T]here is a second doctrinal pathway to affirming the denial of Taylor’s motion to suppress as to the duration of the stop once Taylor stepped out of the car. The second pathway is this: even if officers prolonged the encounter beyond the original mission of the traffic stop, they had a sufficient basis to do so. As we have described, the officers knew about Taylor’s traffic offenses and that he was on federal supervision for being a felon in possession, and once Taylor stepped out of the car, the officers could clearly see Taylor’s unzipped, empty fanny pack. At that point, under the totality of the circumstances, and for the reasons we gave above, officers had 'reasonable suspicion of an independent offense.' Thus, even if, contrary to precedent, the frisk and criminal history check were beyond the mission of the traffic stop, they were still permissible based on the officers’ reasonable suspicion of an independent offense: Taylor’s unlawful possession of a gun."

The Court also held that the warrantless search of Taylor's car was valid based on consent. 

So, the moral of the story.  Always zip your fanny packs! 

2/16/23: 1326(d) / Categorical approach decision

In United States v. Alvarez, --- F.4th ---, No. 21-50088 (9th Cir. 2023), a case out of the SDCA, the Court affirmed the district court's denial of a 1326(d) motion.  

Alvarez moved to dismiss an indictment charging him with illegal reentry under 8 U.S.C. § 1326, arguing that the underlying removal order was fundamentally unfair because his prior assault conviction under section 2903.13(A) of the Ohio Revised Code was not a crime of violence and thus not an aggravated felony under 8 U.S.C. § 1101(a)(43)(F).  The district court denied the motion, concluding the Ohio offense was an aggravated felony. The Ninth Circuit agreed. 

First, as to mens rea, it held that “knowledge” is sufficient to satisfy the crime of violence definition as a whole, including “attempted uses” of physical force. Accordingly, the knowledge mens rea requirement (as opposed to a specific intent requirement) for attempt under section 2903.13(A) does not make it overbroad.

Second, as to the amount of force required under the Ohio statute, the Court determined that the text of section 2903.13(A) only criminalizes force capable of causing physical pain or injury, and held that the type of conduct to which section 2903.13(A) has been applied by Ohio courts is force capable of causing physical pain or injury. The panel therefore concluded that section 2903.13(a) is a crime of violence under § 16(a), it thus qualifies as an aggravated felony under § 1101(a)(43)(F), and Alvarez’s removal order was not fundamentally unfair.

2/15/23: Two decisions from Judge Wardlaw

In United States v. Farias-Contreras, --- F.4th ---, No. 21-30055 (9th Cir. 2023), a divided panel vacated a sentence and remanded for resentencing before a different judge in a case in which the defendant contended that the government failed to meaningfully abide by its promise in the plea agreement not to recommend a sentence in excess of the low-end of the guidelines range.

On appeal, Farias-Contreras argued: "the U.S. Attorney implicitly breached the plea agreement by providing the court, both in its sentencing memorandum and its argument at sentencing, with inflammatory argument and information not relevant to the sentencing determination that could have had but one effect—to increase his sentence beyond the low-end of the U.S. Sentencing Guidelines range. Farias-Contreras argue[d] that, by doing so, the government failed to meaningfully abide by its promise in the plea agreement not to recommend a sentence in excess of the low-end of the guidelines range."

On plain-error review, the majority agreed:  "The government’s arguments implicitly breached the plea agreement, and amounted to plain error that affected FariasContreras’s substantial rights and undermined the integrity of the judiciary. We therefore vacate Farias-Contreras’s sentence and remand for resentencing before a different judge."

The opinion contains lots of helpful language on the government's obligations to present a united front at sentencing.  Here are a few notable quotes:

"[T]he government may not purport to make the bargained-for recommendation while 'winking at the district court” to impliedly request a different outcome.'"

"The government implicitly breaches an agreement to recommend a sentence at the low-end of the guideline range or the functional equivalent—here, not to recommend a sentence in excess of the low-end of the guideline range—if it 'then makes inflammatory comments about the defendant’s past offenses that do not ‘provide the district judge with any new information or correct factual inaccuracies.' '[W]hen the government obligates itself to make a recommendation at the low end of the guidelines range, it may not introduce information that serves no purpose but ‘to influence the court to give a higher sentence.’ 'This prohibition precludes referring to information that the court already has before it, including statements related to the seriousness of the defendant’s prior record, statements indicating a preference for a harsher sentence, or the introduction of evidence that is irrelevant to any matter the government is permitted to argue.' 'Such statements are recognized as introduced ‘solely for the purpose of influencing the district court to sentence [the defendant] more harshly.'"

Next, in United States v. Michell, --- F.4th ---, No. 19-10059 (9th Cir. 2023), another divided panel affirmed the defendant’s 2018 convictions for unlawful possession of a firearm under 18 U.S.C. §§ 922(g)(1) and 924(a)(2), in a case in which the defendant, relying on the Supreme Court's post-conviction decision in Rehaif v. United States, 139 S. Ct. 2191 (2019), argued on appeal that his convictions should be overturned due to the district court's failure to instruct the jury that the government must prove that he belonged to the relevant category of persons barred from possessing a firearm.

The main issue was whether, on appeal, the Court could take judicial notice of conviction documents not introduced at trial.  The Court concluded it could, because it was reviewing for plain error. 

"When an appellate court conducts plain-error review of a Rehaif error, any 'argument that plain-error review must focus exclusively on the trial record contravenes both logic and precedent.' Following the Supreme Court’s lead, the Ninth Circuit has frequently looked outside the trial record when deciding Rehaif claims."

"Under plain-error review of an instructional error, we ask simply whether there is a reasonable probability that, in a new trial, a jury would acquit a defendant.  And our precedent is clear that we can and should take judicial notice of facts outside the record on plain-error review to answer that question, which is not tantamount to filling gaps in the government’s case in an earlier trial. To do otherwise would burden courts with the expense and waste of judicial resources on retrial, even though the outcome is inevitable."

2/2/23: Case about what constitutes an “authentication feature"

In United States v. Barrogo, --- F.4th ---, No. 21-10228 (9th Cir. 2023), the Court affirmed the sentence in a case in which the defendant pleaded guilty to conspiracy to use, transfer, acquire, alter or possess Supplemental Nutrition Assistance Program benefits without authorization, in violation of 7 U.S.C. § 2024 and 18 U.S.C. § 371.

The principal issue was "whether the district court properly imposed a two-level sentencing enhancement for the defendant’s misuse of an 'authentication feature.' U.S.S.G. § 2B1.1(b)(11)(A)(ii)."  The Court held, "a personal identification number (PIN) associated with a debit-type card is an 'authentication feature' under the Sentencing Guidelines and the statutory provisions they reference."   Thus, it concluded the enhancement was correctly applied. 

1/30/23: Interesting Fourth Amendment decision

In United States v. Baker, --- F.4th ---, No. 20-50314 (9th Cir. 2023), the Court affirmed Terrance Baker’s convictions for Hobbs Act robbery and conspiracy to commit robbery in violation of 18 U.S.C. § 1951(a) and a sentence enhancement under U.S.S.G. § 3C1.1, reversed his conviction for brandishing a firearm in violation of 18 U.S.C. § 924(c)(1)(A)(ii), and remanded for a reduction of sentence or retrial on the § 924(c) count.

The essential facts of the case are these: A week after a robbery, the LAPD  stopped and frisked Baker.  Although no weapons or contraband were found on Baker, an officer removed a car key from his belt loop without his consent and walked to a nearby parking lot in search of the car associated with the key. Baker denied having a car. When officers located a red Buick whose flashing headlights responded to the key fob, Baker fled and was apprehended a short distance away. A handgun was recovered from the car and later introduced at Baker's trial as the weapon used in the Sprint store robbery.

On appeal, the Court concluded that the handgun evidence was illegally obtained and should have been excluded at trial, and that this error prejudiced Baker as to the brandishing conviction but was harmless as to the convictions for Hobbs Act robbery and conspiracy.  

The Court explained, "[a] Terry stop must be “confined in scope” to a “carefully limited search of the outer clothing … in an attempt to discover weapons.”

It is well established that a Terry stop is a seizure of an individual and a frisk is a search of the individual’s person within the meaning of the Fourth Amendment. Assuming officers reasonably suspected that Baker was trespassing and armed, they were authorized to briefly detain him to ask questions related to trespassing and to pat him down for weapons. But after officers confirmed that Baker did not possess weapons or contraband, they turned to other purposes. Officer Byun removed a key visibly hanging from Baker’s belt loop and searched for a car that corresponded to it. Officers continued to detain Baker, not for the purpose of inquiring about trespass, but to ask him questions about whether he owned a car. Officer Byun made no claim that he suspected the car key was a weapon or contraband.

Had officers limited their Terry stop to a brief detention and protective patdown search of Baker, they would have had no occasion to search for a car in an adjoining parking lot that matched the key fob hanging from Baker’s belt loop. 

Where a “protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed.” 

According to the Government, Baker’s assertion that he had no car operated to deny any ownership interest in the car key. The Government identifies no precedent in support of the proposition that a person abandons an item in his possession by stating he does not own a different, related item. Even if such a claim had a basis in law, an individual does not relinquish a possessory interest in an item merely by stating he does not own the item.

The discovery of the handgun was the product of illegal police conduct, whether that conduct is framed as exceeding the permissible scope of a Terry stop or as the warrantless seizure of the car key. Where evidence is obtained from an unlawful search or seizure, the exclusionary rule renders inadmissible both “primary evidence obtained as a direct result of an illegal search or seizure” and “evidence later discovered and found to be derivative of an illegality,” known as “fruit of the poisonous tree.”

No reasonable interpretation of the record suggests that Baker consented to, or even was equivocal about, the officers taking the car key off his belt. The record clearly demonstrates that Officer Byun removed the car key from Baker’s belt loop during the patdown without asking for permission or consent. We have held that suppression is favored where an officer violates the law “with the purpose of extracting evidence against the defendant.” The officers’ conduct following the patdown of Baker was plainly “investigatory,” an “expedition for evidence in the hope that something might turn up.”

Baker’s flight from police does not qualify as an intervening circumstance because the red Buick was discovered as a consequence of the officers’ misconduct before Baker fled from officers. 

We conclude the Government has demonstrated beyond a reasonable doubt that the jury would have convicted Baker of robbery and conspiracy to commit robbery in violation of 18 U.S.C. § 1951(a) based on substantial independent evidence establishing Baker’s involvement in the robbery. However, there is reasonable doubt whether the jury would have convicted Baker of brandishing a firearm in violation of 18 U.S.C. § 924(c) absent the admission of the handgun, and we accordingly vacate his conviction of this count.

The Court also rejected several evidentiary arguments raised by Baker. 

1/25/23: case on attempted coercion and enticement in violation of 18 U.S.C. §§ 2422(b) and (2)

In United States v. Eller, --- F.4th ---, No. 20-10425 (9th Cir. 2023), the Court affirmed the conviction for attempted coercion and enticement of a child in violation of 18 U.S.C. §§ 2422(b) and 2.

In doing so, the Court held: "Whether Eller’s intended victims were 'willing' to engage in these acts is ultimately irrelevant (much like the minors’ existence in the first place)—our 'focus always remains on the defendant’s subjective intent because the statute is designed to protect children from the act of solicitation itself. And with that focus, the evidence of Eller’s guilt, which far exceeded the passages excerpted here, was overwhelming.”