8/22/24: large capacity magazine under U.S.S.G. § 2K2.1(a)(4)(B)

In United States v. Trumbull, --- F.4th ---, No. 23-912 (9th Cir. 2024), the Court affirmed a sentence imposed on Derek Steven Trumbull following his guilty plea to being a felon in possession of a firearm. 

Trumbull challenged the district court’s calculation of his Guidelines range—specifically, the increase of his offense level under U.S.S.G. § 2K2.1(a)(4)(B) on the ground that the offense involved a semiautomatic firearm that is capable of accepting a large capacity magazine. 

Section 2K2.1 does not define a “semiautomatic firearm that is capable of accepting a large capacity magazine."  Instead, the definition is found in the an application note and turns on whether the magazine can accept more than 15 rounds. 

Trumbull attacked Application Note 2 on its face as an invalid interpretation of § 2K2.1 under Kisor v. Wilkie, 588 U.S. 558 (2019).

The Ninth Circuit rejected his argument, concluding that Application Note 2’s definition of “large capacity magazine” warrants deference under Kisor because: (1) the term “large capacity magazine” is ambiguous within the meaning of Kisor because of the relative nature of the word large; (2) Application Note 2 is a reasonable interpretation of “large capacity magazine”; and (3) Application Note 2 meets the three “especially important markers for identifying” when deference is appropriate in that (a) Application Note 2 is the Sentencing Commission’s official position, (b) the interpretation implicates the agency’s substantive expertise, and (c) Application Note 2 was an exercise of the Commission’s fair and considered judgment.

8/21/24: attempting to aid and abet possession with the intent to distribute cocaine

In United States v. Bellot, --- F.4th ---, No. 22-10247 (9th Cir. 2024), the Court affirmed Lemack Bellot’s conviction on two counts of attempting to aid and abet possession with the intent to distribute cocaine.

On appeal, Bellot argued that the jury instructions and proof adduced at trial constructively amended the indictment such that he was convicted of a crime different than the one for which he was indicted.

Specifically, "Bellot argues that the indictment was constructively amended because the government initially proposed jury instructions consistent with the theory that Bellot aided and abetted an attempt by the CS to possess with intent to distribute cocaine, but that after intervention by the court, the jury was instructed consistent with the theory that Bellot attempted to aid and abet the possession of cocaine with intent to distribute."

The Court rejected this argument, explaining that "aiding and abetting an attempt requires a “guilty principal,” while attempting to aid and abet does not. But in either case, paradoxically, the crime ultimately charged is the same: the aider and abettor is charged with an attempt to possess with the intent to distribute cocaine."

The Court continued: 

Bellot’s case indisputably lacked a “guilty principal” because it involved an undercover government agent who did not intend to commit a crime and never possessed real cocaine. The government, accordingly, could only proceed under the theory that Bellot attempted to aid and abet possession with intent to distribute cocaine. 

While it is true that the parties mischaracterized the theory as “aiding and abetting the attempted possession” of cocaine in pre-trial preparations, this does not mean “the crime charged in the indictment was substantially altered at trial.” As explained above, whether characterized as aiding and abetting an attempt to possess cocaine or an attempt to aid and abet the possession of cocaine, “the crime ultimately charged is the same.”  In either scenario, the charge was—and Bellot was in fact charged with—“knowingly attempt[ing] to possess with the intent to distribute” cocaine. And although the government was not required to specify its theory of the case in the indictment, the undisputed facts supported only one theory. Bellot, thus, had sufficient notice of the charges against him.

8/19/24: Second Amendment case

In United States v. Manney, --- F.4th ---, No. 23-716 (9th Cir. 2024), the Court affirmed Gail Manney’s conviction for violating 18 U.S.C. § 922(a)(6), which makes it a crime for any person in connection with the acquisition or attempted acquisition of any firearm knowingly to make any false or fictitious oral or written statement with respect to any fact material to the lawfulness of the sale of such firearm. 

In short, the Court held that because the Second Amendment does not protect an individual’s false statements, the conduct that § 922(a)(6) regulates falls outside the scope of the Second Amendment’s plain text.

In support of its conclusion, the Court explained: 

Although the Supreme Court has yet to expound on all conduct the Second Amendment’s plain text covers, it has not held that an individual can invoke the Second Amendment’s constitutional protection by describing the conduct in question at such a high level of generality. Nor has the Court held that every requirement making it slightly more difficult to possess a firearm demands a full historical inquiry into its origin. Both Bruen and Rahimi dealt with prohibitions, or near prohibitions, on the ability to possess firearms

[W]e find that § 922(a)(6) prohibits making false statements. The statute only relates to firearms insofar as it regulates statements made in connection with firearm acquisitions and information “material to the lawfulness of the sale.” But the regulated conduct is unrelated to the possession of a firearm. In other words, the statute regulates statements made by the individual purchasing a firearm to ensure that a purchaser is not lying to a firearms dealer about who is purchasing the firearm. The fact that the information a purchaser provides may trigger a separate statute that may bar the purchase of a firearm does not transform § 922(a)(6) into a statute regulating the possession of firearms. 

8/9/24: Two big Ninth Circuit decisions

First, in United States v. Valdivias-Soto, --- F.4th ---, No. 20-10415 (9th Cir. 2024), the Court affirmed the district court’s judgment dismissing an indictment charging  Valdivias with illegally reentering the United States after he had previously been removed. 

The decision largely turned on the fact that, during the immigration proceedings, the Spanish-language interpreter made a mistake in explaining the right to counsel. 

The Court held that Valdivias satisfied the requirement in 8 U.S.C. § 1326(d)(3) that the entry of the order was fundamentally unfair. Valdivias’s right to counsel was effectively lost in translation by the interpreter’s repeated use of the Spanish word for “hire” in describing that right during the removal hearing, incorrectly suggesting that Valdivias could enjoy the privilege of being represented only if he could pay for an attorney. As a result of the erroneous translation, Valdivias did not enter a knowing and voluntary waiver of the right to counsel. The translation errors at his removal hearing also rendered his waiver of the right to appeal invalid, and the immigration judge’s acceptance of his waiver therefore violated Valdivias’s due process rights.

The Court further held that notwithstanding Valdivias’s failure to appeal the removal order to the BIA, he satisfied the requirement in 8 U.S.C. § 1326(d)(1) that the alien exhaust any administrative remedies that may have been available. The erroneous translations at Valdivias’s removal hearing rendered administrative review of his removal order unavailable. The Court held that because Valdivias’s waiver of his right to appeal was invalid, he satisfied the requirement in 8 U.S.C. § 1326(d)(2) that he was improperly deprived of the opportunity for judicial review.

Next, in United States v. Osorio-Arellanes, --- F.4th ---, No. 20-10003 (9th Cir. 2024), the Court reversed the district court’s order reconsidering its suppression of a confession by Osorio, vacated his convictions and sentences, and remanded for further proceedings. 

Osorio participated in a gunfight with U.S. Customs and Border Patrol agents in Arizona. Osorio fled back into Mexico, and one of the agents died from wounds he sustained in the confrontation. 

Nearly seven years later, Osorio was arrested by Mexican authorities and interrogated by U.S. officials in a Mexico City prison. During this interrogation, he confessed essential elements of the Government’s case on the advice of a Mexican attorney.  

On direct appeal, Osorio claimed he is entitled to a new trial because his confession was taken and admitted in violation of his Fifth Amendment right against self-incrimination and his Sixth Amendment right to effective assistance of counsel.

The Court exercised its discretion to hear the Sixth Amendment claim on direct appeal because: (1) the record was sufficiently developed in that there is no ambiguity as to what Pimentel said to Osorio, and (2) the developed record showed that Pimentel’s mid-interrogation advice—that Osorio would not be affected if he confessed information about his intent toward drug smugglers because robbing drug smugglers is not a crime—was obviously inadequate and legally unjustifiable.

Addressing the substance of the claim under the Strickland framework, the Court held (1) Pimentel’s counsel was deficient; and (2) Pimentel’s advice was prejudicial because there is a reasonable probability that, absent Pimentel’s advice, Osorio would not have been convicted of any of the charges. 

Because Osario established his Sixth Amendment claim, the Court did not need to reach his Fifth Amendment claim. The Court rejected the Government’s argument that the absence of a Fifth Amendment Miranda violation would bar Osario’s Sixth Amendment claim.

This case has lots of good language for IAC claims.  And fun fact, former AUSA, now DJ, Todd Robinson makes an appearance in the opinion. 

7/23/24: Case on mootness and compassionate release

In United States v. Yepez, --- F.4th ---, No. 22-50233 (9th Cir. 2024), the Court dismissed as moot Roberto Yepez’s appeal from the district court’s order dismissing his motion for compassionate release.

Before briefing in the appeal was concluded, he was released from prison.  

The Court held "that a motion for compassionate release may not be used to shorten a term of supervised release."  

However, the Court also noted "that, even when a person has been released from imprisonment, a challenge to his sentence is not moot if a favorable ruling could be used as a factor weighing in favor of reducing the term of supervised release under § 3583(e)."  But it held that this rule did not apply in the context of Yepez's appeal because a resolution on the merits "would be irrelevant to the evaluation of any future motion under § 3583(e)."

7/18/24: Case on selective prosecution

In United States v. Rundo, --- F.4th ---, No. 24-932 (9th Cir. 2024), the Court reversed the district court’s judgment dismissing, based on a claim of selective prosecution, an indictment charging Robert Paul Rundo and Robert Boman with conspiracy to violate the Anti-Riot Act as well as with substantively violating the Act; reinstated the indictment; and remanded the case for trial.

The indictment alleged that Rundo was a founding member of the “Rise Above Movement” or “RAM,” a  "combat-ready, militant group of a new nationalist white supremacy and identity movement.” It also alleged that Rundo and his colleagues, including Boman, attended a number of peaceful protests, when they chased down and violently attacked counter-protesters.

The district court granted the defense motion to dismiss for selective prosecution, concluding the government prosecuted RAM members such as Defendants while ignoring the violence of members of Antifa and related far left groups because RAM engaged in what the government and many believe is more offensive speech.

The Ninth Circuit reversed, finding the district court erred in virtually every aspect of its analysis.

To succeed in a selective prosecution claim, the defendant bears the burden to demonstrate that (1) other similarly situated individuals have not been prosecuted and (2) his prosecution was based on an impermissible motive.  

On prong one, the Court held that Rundo did not meet his burden to establish that similarly situated individuals were not prosecuted, that the district court erred by comparing collective conduct to individual conduct when it referred broadly to “Antifa and far-left groups” and comparing them to “Defendants,” and that the district court erred in holding that the individual Antifa members it did discuss were similarly situated to Rundo. 

Moving to the second prong, the Court concluded that Rundo failed to meet his burden to demonstrate that his prosecution was based on an impermissible motive. 

7/15/24: One case with a gaggle of opinions on plea agreements and breaches

In United States v. Livar, --- F.4th ---, No. 22-30213 (9th Cir. 2024), the Court vacated Adam Lloyd Livar’s sentence and remanded in a case in which Livar pled guilty to failing to register as a sex offender in violation of 18 U.S.C. § 2250(a).

One case with 4 different opinions:

Per Curiam Opinion; 

Concurrence by Judge Vratil; 

Concurrence and Dissent by Judge VanDyke; 

Concurrence and Dissent by Judge Sanchez.

"Because each panel member has issued their own opinion and the composition of the majority changes for different conclusions, this per curiam opinion provides (1) the necessary factual background to understand the individual decisions that follow, (2) the panel’s unanimous mootness analysis, and (3) a summary of the panel’s other holdings derived from the separate writings."

As to mootness: 

We first address whether this appeal has become moot based on Livar’s release from the Federal Bureau of Prisons on June 6, 2023, to begin serving his five-year term of supervised release. After considering the parties’ supplemental briefing, we agree with Livar that this appeal is not moot.

The government contends that the case is moot because the district court sentenced Livar to the minimum supervised release term allowed under the statute. 

After sentencing, however, the district court has discretion to “modify, reduce, or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release.” 18 U.S.C. § 3583(e)(2). The court may also terminate an individual’s term of supervised release “at any time after the expiration of one year . . . if it is satisfied that such action is warranted by the conduct of the defendant released and the interest of justice.” 18 U.S.C. § 3583(e)(1). Under our precedent, the “possibility” that the district court may exercise its discretion at a future proceeding to reduce a term or modify the conditions of supervised release under 18 U.S.C. § 3583(e) is sufficient to prevent the case from being moot.

Because the district court has the authority to modify or terminate Livar’s current supervised release obligations under 18 U.S.C. § 3583(e) following a successful appeal, the possibility that the district court may do so is sufficient to prevent the appeal from being moot.

Here is the summary of the other opinions:

First, all three panel members agree that when the government seeks to be relieved of its obligations under the plea agreement because, in its view, the defendant breached the plea agreement or failed to satisfy a condition precedent, the district court must hold an evidentiary hearing to resolve any such factual disputes. Because the district court declined to adjudicate whether Livar committed a new crime and therefore never made the required determination in this case, the panel unanimously concludes that Livar’s sentence should be vacated. 

Second, a majority of the panel (Judges VANDYKE and VRATIL) concludes due process does not require the government to seek or receive a judicial determination of a defendant’s failure to comply with the plea agreement before it submits a sentencing recommendation that differs from the terms of the agreement. The government thus does not breach its obligations under an agreement simply by submitting a different sentencing recommendation without a prior judicial determination of whether the defendant failed to comply with the plea agreement, nor is it required to first seek a preliminary determination as to whether its recommendation complies with the agreement. There must be a judicial determination, but it need not necessarily come first. 

Finally, a different majority of the panel (Judges SANCHEZ and VRATIL) concludes the proper remedy in this case is remand with instructions that judgment be entered with a term of imprisonment of time served and all other terms and conditions—including Livar’s five-year term of supervised release—to remain the same as the original judgment.