The Criminal Docket


February 2006 

Volume 1, Number 2

In This Issue:

United States Court of Appeals (9th Circuit) Decisions

U.S. Court of Appeals (9th Circuit), continued:
United States v. Allen, No. 05-50078 (1/12/06) (S.D. Cal.) (Berzon, with Canby and Fernandez).  Sentencing: Counterfeiting; Plea Agreements: Breach/Interpretation.  A counterfeiting deft pled guilty pursuant to a plea agreement with sentencing stipulations, but the PSR recommended an enhancement for manufacturing that was not contemplated by the agreement, and the dct asked the govt to call the agent to testify about what items were found at deft's home.  The agent testified he had found some manufacturing items, the dct applied the enhancement, and deft claimed the govt had breached the plea agreement.  On appeal, the panel held that, under note 4 to the counterfeiting guideline (2B5.1), the dct erred in failing to determine whether the quality of the bills was sufficiently high that they would plausibly pass for real currency, a prerequisite for the manufacturing enhancement for which the government has the burden of proof.  Along the way to this holding, the panel also held that the manufacturing enhancement applies only where the items possessed actually have been used for making bogus currency, not where they could be used but haven't yet been.  The panel held that the govt did not breach the plea agreement, because it was not making "an attempt to persuade" the dct to impose a higher sentence than agreed to (which would be a breach) but instead stuck by the plea agreement and only responded to the court's questions about the case by offering brief and neutral testimony from the agent.  The panel noted that b/c "the line between neutral questioning and impermissible advocacy is thin," it would have been preferable for the dct to question the agent itself.
Click here for full text of case.

Mancebo v. Adams, No. 04-17167 (1/12/06) (E.D. Cal.) (D.W. Nelson, with Rawlinson and Bea).  Ineffective Assistance (of counsel).  The circuit held that counsel was not ineffective in failing to object at trial to the introduction of improper evidence that deft had stated that he did not wish to take a polygraph test.  The panel held that the evidence played a very small role in the trial and, along with the other strong evidence of guilt, was not prejudicial.
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United States v. Cantrell, No. 03-30562 (1/13/06) (D. Mont.) (Gould, with Graber and Pregerson).  Booker: Procedures.  The circuit today issued its most comprehensive case to date on Booker review procedures.  Since we're all going to be doing Booker appeals, not just those of us on the 10th floor, here are the key points:
-- District courts must consult the Guidelines, and this duty is statutory under section 3553(a).
-- The application of the Guidelines is reviewed just as before -- de novo for Guideline interpretations, clear error for factual findings.  "Reasonableness" review on appeal applies only to the ultimate sentence imposed.
-- If the dct errs in applying the Guidelines, the circuit will remand for resentencing unless the error is harmless (or, if no objection, if the error is not plain.) 
-- Where there is an erroneous Guideline calculation, the circuit will not affirm the sentence based on its overall reasonableness and instead will send the case back down.  (In a long footnote 5, the panel claims that two circuits are operating differently.)
-- Reasonableness review occurs only after the circuit determines that there was no Guidelines error; if there is Guidelines error, the circuit doesn't reach this step.
Having established this framework, the circuit then addressed an assortment of unremarkable Guidelines claims brought by meth co-conspirators -- and, true to promised form, reviewed them just as the panel would have pre-Booker.  The dct had an adequate basis for attributing drug quantities to the defts, having placed only reasonable restrictions on the cross-examination of a dirty cooperator who provided the info.  The dct did not err in denying minor and minimal participant reductions, nor did it err in denying an acceptance of responsibility reduction, where the deft was not contrite.  The sentences thus were affirmed without reaching reasonableness, which defts did not challenge, though the one deft who wanted it received an Ameline remand.
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Gonzales v. Oregon, No. 04-623 (1/17/06) (S. Ct.) (6-3) (Kennedy; dissents by Scalia, and Thomas).  Narcotics Statutes.  The Court struck down an Interpretive Rule issued by Attorney General Ashcroft that prohibited physicians from prescribing regulated drugs for use in physician-assisted suicide.  Oregon's Death-with-Dignity Act permits physicians under certain circumstances to prescribe a lethal dose of controlled substances upon the request of a terminally ill patient.  In apparent response to the passage of the Act, in 2001, the Attorney General issued an Interpretive Rule pronouncing that using controlled substances to assist suicide is not a "legitimate medical purpose" and that prescribing or dispensing them for that purpose therefore violates the Controlled Substances Act, regardless of whether state law permits such conduct.  The Court first held that the Rule was not subject to deference as would be given to an agency interpreting its own regulation or carrying out rulemaking as part of authority delegated by Congress.  The Court then went on to hold that the Attorney General's interpretation of the statute was not persuasive.  The Court concluded that "Congress regulates medical practice insofar as it bars doctors from using their prescription-writing powers as a means to engage in illicit drug dealing and trafficking as conventionally understood.  Beyond this, however, the statute manifests no intent to regulate the practice of medicine generally."  The latter, the Court held, is left to the states.

Justice Scalia dissented, with Chief Justice Roberts and Justice Thomas joining.  They contended that the Rule should have been given deference and, in any event, was the correct interpretation of the statute because the phrase "legitimate medical purpose" cannot reasonably be read to include assisted suicide.  Justice Thomas wrote separately to note the tension between today's opinion and the opinion last term in Raich v. Gonzales, invalidating California's medical marijuana law.  Noting his own dissent in Raich, Justice Thomas in principle agreed with limiting the reach of the CSA based on principles of federalism, but concluded that at this point that was "water over the dam."
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United States v. Plouffe, No. 05-30045 (1/18/06) (D. Mont.) (Gould, with Berzon and Schwarzer, DJ NDCA).  Booker: Reasonableness.  The 9th Circuit affirmed a post-Booker high-end guidelines sentence of 71 months as "reasonable" in an assault case.  The court noted that in determining whether a sentence is unreasonable, it would be guided by the 3553(a) factors, including the sentencing range established by the Sentencing Guidelines.  The court held that the district court considered the factors and its approach was reasoned and that therefore the circuit would not disturb the discretion of the sentencing court.  The court specifically rejected the defendant's argument that his sentence was unreasonable because it was nearly twice as long as his co-defendant's, noting that because the defendants' criminal histories were different, the district court had a "reasonable basis" under the advisory guidelines for the difference in the sentences.
Click here for full text of case.

United States v. Guerrero-Velasquez, No. 05-30066 (1/19/06) (E.D. Wash.) (Bybee, with W. Fletcher and Hansen, 8th Cir.).  Guilty Pleas/Alford Pleas; Sentencing: Categorical Approach; Sentencing: Enhancements.  The court remanded for resentencing in a government appeal, where the district court had refused to apply the 16-level enhancement in a 1326 case based on its conclusion that the defendant's Washington state second-degree burglary conviction was not a "crime of violence."  First, the circuit held that the district court misapplied the modified categorical approach by failing to consider the defendant's signed plea agreement.  The court held that by pleading guilty, the defendant had admitted all the factual allegations in the charging information, which had alleged that the burglary was of a residence (the dispositive fact that makes a burglary a crime of violence).  Second, the court held that the fact that the defendant entered an Alford plea does not change the analysis because the question is whether the defendant has a conviction for a crime of violence, not whether he admitted to being guilty of such a crime.
Click here for full text of case.

Kenna v. U.S. District Court for the Central District of California, No. 05-73467 (1/20/06) (C.D. Cal.) (Kozinski, with Goodwin; Friedman (Fed. Cir.) dubitante (yes, you read that right; I'll get to that in a minute)).   This case interpreted the new Crime Victims' Rights Act (18 U.S.C. 3771).  The Ninth Circuit held that crime victims have the right to allocute at sentencing.  In this father-son fraud case (US v. Leichner), Judge Walter had received over 60 victim impact statements and, at the previous sentencing of the father, had heard orally from several victims, including the petitioner here.  However, at the sentencing of the son three months later, the judge did not permit the victims to speak.  One of the victims brought a mandamus petition, which he was permitted to do under 18 U.S.C. 3771(d)(3).  The 9th Circuit held that the victim's "right to be reasonably heard" means that he had the right to speak in open court, not merely that he be permitted to file a written statement.  The court did not find it sufficient that the victim had made a statement at the previous sentencing of the codefendant because the effects of a crime on the victims can change over time and victims have the right to confront every defendant who has wronged them. The circuit left open the question of whether the error permitted reopening of the sentencing, remanding to the district court to decide that question in the first instance after giving the defendant the opportunity to respond. Finally, the circuit noted apologetically that it had blown the 72-hour deadline for deciding the petition and noted that it was in the process of promulgating procedures for expeditious handling of future CVRA petitions. 

Judge Friedman filed a "dubitante," which we have learned is a rare form of opinion that is not quite a dissent but rather an expression of doubt about the correctness of the majority opinion.  He questioned the majority's apparent holding that all victims have an absolute right to speak at sentencing, no matter how many victims or what the circumstances, opining that the statutory standard of "reasonably heard" may permit a district court to place reasonable limitations on certain oral statements.
Click here for full text of case.


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