The Criminal Docket


 September 2010                            Criminal Docket Archive

Volume III, Number 12   

Ninth Circuit Reports

September 4, 2010
September 1, 2010
August 31, 2010 

September 4, 2010
United States v. Munoz-Camarena, No. 09-50088 (9/3/10) (S.D. Cal.) (per curiam) (B. Fletcher, Pregerson, Graber).  Sentencing: Illegal Reentry, Harmless Error.  The deft received a 65-month reentry sentence, after a Guideline calculation that assigned him an 8-point increase for a prior aggravated felony conviction, based on his three California simple possession convictions, which the dct treated as tantamount to a conviction for federal recidivist simple possession.  In Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010), however, a unanimous Supreme Court held that a simple possession conviction is not an aggravated felony if not charged as recidivist simple possession, even if it could have been so charged because the deft had a prior possession conviction.  Consequently, the dct erred, and the deft should have received only a four-level enhancement.  However, the dct stated that it would have sentenced the deft to 65 months regardless of whether a four-level or eight-level enhancement applied, so the govt argued that the Guideline error was harmless.  In Menyweather, 447 F.3d 625, the Ninth Circuit held that a dct’s Guideline error was harmless where the record demonstrated that the dct would impose the same sentence again on remand.  Here, the panel held that the Supreme Court’s decision in Kimbrough effectively overruled Menyweather’s application of harmless error analysis to the miscalculation of a Guideline sentence, as Kimbrough emphasized that the Guideline range must be correctly calculated and then kept in mind by the dct throughout the sentencing process.  Thus – despite the dct’s statement that it would sentence deft to 65 months even if a four-level enhancement applied – the panel held that it “cannot say that the district court’s incorrect application of the eight-level enhancement was harmless” as the court “may have arrived” at a different sentence if it had calculated the proper range. 

September 1, 2010
United States v. Wipf, No. 09-50291 (8/31/10) (C.D. Cal.) (Hall, w/ Farris and Silverman).  Sentencing: Mandatory Minimums.  The circuit held that Section 3553(a) does not give a dct discretion to sentence below a statutory mandatory minimum.  Here, the deft received a ten-year mandatory minimum sentence for PCP, and the dct rejected the deft’s argument that it could use its Section 3553(a) discretion to sentence below the Section 841(b)(1)(A) minimum, though the district court said it would do so if it were within its discretion.  The claim that Section 3553(a) permits a court to sentence below another statute’s minimum was one of first impression in this circuit.  The panel reasoned that because Section 3553(e) specifically includes language allowing the court to reject a mandatory minimum sentence for cooperation, it should be presumed that the absence of such authority in Section 3553(a) is meaningful.  Further, Kimbrough indicated the mandatory minimum sentences were still binding.

United States v. Armstrong, No. 09-30395 (8/31/10) (D. Idaho) (Berzon, w/ Canby and Noonan).  Sentencing: Hate Crime Motivation, Obstruction.  Deft was convicted under Sections 241 and 245 of a racially motivated assault on an African-American man outside of a Wal-Mart, in which he and two co-defts beat the man.  Deft received a 46-month low-end sentence after imposition of a three-level 3A1.1(a) enhancement for intentionally selecting the victim based on race and a two-level 3C1.1 obstruction enhancement for false trial testimony.  As to the hate crime enhancement, deft argued that he was only an aider and abettor, and that a co-deft actually “selected” the victim, even if deft was motivated by racial animus.  The panel held that it did not matter whether deft was the first to select the victim, only that he too selected that victim in committing the crime.  Deft received the obstruction enhancement for testifying that he did not conspire to assault the victim because of the victim’s race.  At sentencing, the dct found that was perjury and marshaled the evidence to support that view (such as deft’s extensive use of the racial slurs during the beating.)  Though the dct did not explain how each element of perjury was met, its findings nevertheless encompassed all the factual predicates for a perjury finding, so the enhancement was proper.  Finally, the panel found the dct’s explanation for the sentence sufficient.

August 31, 2010
United States v. Havelock, No. 08-10472 (8/23/10) (D. Ariz.) (Canby, w/ Fletcher, dissent by Graber).  Mailing Threatening Communications.  The panel reversed the deft’s convictions for mailing a threatening communication under 18 U.S.C. § 876(c).  About 30 minutes before the 2008 Super Bowl in Glendale, Arizona, the deft put an assault rifle and several clips of ammunition in his car and drove to a nearby post office, where he deposited six priority mail envelopes addressed to the NY Times, the LA Times, the AP, and other media.  The envelopes contained various threats, including his “planned massacre” at the Super Bowl.  Section 876(c) makes it a felony to mail a communication “addressed to any other person and containing . . . any threat to injure the person of the addressee or of another.”  The majority held that “§ 876(c) does indeed require that the mailed item containing the threat be addressed to an individual person, as reflected in the address on the mailed item.”  After finding that “addressed” means addressed on the envelope (so that the letter inside cannot be considered for this purpose), the panel majority found that the convictions could not be sustained because the envelopes were not addressed to a natural person.  It distinguished a Tenth Circuit case and also found that legislative history supported its interpretation.  Judge Graber dissented, pointing to legislative history and the result of the majority rule, including that though the statute provides an enhancement for a threatening letter addressed to a federal judge, it would not prohibit mailing a letter to the “Ninth Circuit Court of Appeals” with the threat:  “I will hunt down and take vengeance on the judges responsible for today’s decision.  It is an outrageous injustice, and you will not escape.” 

United States v. Kloehn, Nos. 06-50456 & 07-50274 (8/30/10) (C.D. Cal.) (Reinhardt, w/ Wardlaw; dissent by Trott).  Trial Continuances.  On an evening while deft was on the stand near the end of his retrial on fraud charges after a mistrial, deft’s son, who had end-stage melanoma, suffered a “massive seizure” out of town and was expected to die soon.  Defense counsel requested a two-day continuance for deft to visit his son, representing that deft had trouble concentrating and might be unable to testify effectively.  The continuance was denied, deft’s testimony completed, and he left at day’s end, visiting his son before the son in fact died.  The trial concluded with a waiver of deft’s presence for the taking of the verdict, and he was convicted.  The panel majority applied the four factors from United States v. Flynt, 756 F.2d 1352 (9th Cir. 1985), and held that, despite the dct’s broad discretion to grant or deny continuances, the denial in this case was arbitrary and unreasonable.  The continuance request was not a delaying tactic, it would have served its stated purpose, it would not have inconvenienced the court and the parties more than slightly, and it would have prejudiced the deft by affecting the tone and demeanor of his continued testimony.  The panel further found that the govt had waived a harmlessness analysis by not arguing it.  In dissent, Judge Trott argued that the “error, if any, was demonstrably harmless” as there was no support in the record for any harm from the denial of the continuance and the case involved “a transparent scam which anyone with an IQ over room temperature would have seen as illegal.”

United States v. Kuo, No. 08-10314 (8/30/10) (D. Haw.) (Graber, w/ Breezer and Fisher).  Restitution.  The defts forced two women to travel from Asia to engage in prostitution in the U.S. by purporting that they would work as cashiers but then imprisoning them in brothels and coercing them to provide sex to customers.  The defts kept all the money paid for the sex acts.  The dct imposed restitution to the two women victims in the amount of (1) $4226 seized from the defts at the time of arrest and (2) additional amounts ($6387 and $8937) to each woman based on the number of sex acts performed multiplied by the average charge to the customer for the sex, with the $4226 recovery credited.  Under the Supreme Court’s recent decision in Dolan, the dct properly awarded restitution after the 90-day Section 3664(d)(5) deadline after making clear to the parties that it would be ordering restitution later.  Nevertheless, the court plainly erred in its order.  Under Section 3663, restitution is limited to a victim’s actual losses.  Here, the dct used a “ill-gotten gains” theory of restitution that is authorized under the Trafficking Victims Protection Act for Section 1593(a) crimes, but these defts were convicted of a Section 241 conspiracy to violate civil rights, so were governed by the Section 3663 standard.  The govt would need to charge a Section 1593(a) Trafficking Act offense in order for the dct to employ the restitution theory used here.  The panel remanded for a determination of the victims’ actual losses for purposes of restitution.  The panel left the restitution award of the $4226 seized in place because it was not challenged.

Millender v. County of Los Angeles, Nos. 07-55518 (8/24/10) (C.D. Cal.) (opinion by Ikuta; dissents by Callahan and Silverman).  Section 1983/Qualified Immunity.  In a 60-page opinion, the en banc Ninth Circuit ruled 8-3 that a search warrant was so lacking in probable cause “as to render official belief in its existence unreasonable.”  The plaintiffs had sued sheriff’s deputies and supervisors and several individual members of the sheriff’s department, alleging violations of their civil rights.  In short, the search warrant authorized a search for multiple firearms and firearms- and gang-related evidence, but the probable cause related to one particular weapon used in a domestic assault and there was no evidence that the assault was gang-related.  Thus, the circuit found that the defts were not entitled to qualified immunity with respect to the overbreadth of the search warrant.

United States v. Ali, Nos.  07-10529, 07-10539, & 07-10542 (8/25/10) (N.D. Cal.) (R. Smith, w/ Rymer and McKeown).  Money Laundering; Mail and Wire Fraud.  The defts were convicted of mail and wire fraud in a scheme where they purchased Microsoft software at discounted prices and then resold the software for a profit.  The panel reversed ten counts of promotional money laundering under Santos because the govt did not prove that profits from the fraud were used in the software purchases charged in those counts.  The panel upheld counts of concealment and exportation money laundering that were clearly based on profits as those purchases did not merge with the fraud scheme, and the panel upheld the fraud convictions finding that (1) a right to payment of money for the sale of software is “money or property” as defined in 18 U.S.C. §§ 1341 and 1343; and (2) neither statute requires a transfer directly to the deft from the party deceived by the deft.  The panel also affirmed the dct’s sentencing, finding that the dct properly used the preponderance of evidence standard and “decline[d] application of the clear and convincing standard for establishing losses in fraud cases where the losses are based on conduct for which the defendant was charged and convicted.”

Back to Criminal Docket Main Page

Questions?  Feedback?  
 Send an email to
Readers are advised that changes in the law
may affect the accuracy of this publication or
the functionality of links after the publication date.