Starting next month (January 2020), all clients in BOP custody will be subject to a risk and needs assessment under the First Step Act. By January 2022, the BOP is supposed to provide all clients programming based on their identified needs. As an incentive for participating in programming, the First Step Act directs that some clients be able to earn …
Certiorari Granted
The Supreme Court recently granted (November 15, 2019) certiorari in James Walker, Petitioner v. United States of America. The petition is attached. The question presented is: Whether a criminal offense that can be committed with a mens rea of recklessness can qualify as a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. 924(e). Here’s how the opening paragraph …
2019 Good Time Table
Attached you will find a Good Time Table PDF by Daniel Hesler, a staff attorney of the Federal Defender Program in Chicago. Although it is not an official BOP document, and shouldn’t be relied as such, the table calculations seem to be accurate and a handy tool. You can also do your own calculation, and it should be accurate, by …
Valle and "Clear and Convincing" Standard of Proof at Sentencing
Judge Friedland wades through a nice factual analysis in United States v. Valle, and comes out the right way on a guideline enhancement in an illegal reentry case: a good result. Of much broader interest, however, is Judge Friedland’s insistence that that the government shoulder the “clear and convincing” standard of proof for this guideline enhancement, instead of a mere “preponderance …
Begay, Reckless Conduct, and Crimes of Violence
The majority decision in United States v. Begay is written by Judge D.W. Nelson. In a thoughtful analysis, she explains why federal second-degree murder is not a crime of violence, supporting a Section 924(c) charge. It is a great opinion, and an important victory for AFPD Edie Cunningham, D. Arizona FPD – congratulations due on this big win. Re: United States v. Begay, 2019 WL 3884261 …
Ninth Circuit Opinion – Bottinelli et al v. Salazar
Bottinelli et al v. Salazar, No. 19-35201 (7-15-19)(Owens w/Fernandez & Graber). The 9th holds that the First Step’s “good time” credit amendment does not take immediate effect upon enactment, but becomes effective with the establishment of the First Step’s “risk and needs assessment system” on July 19, 2019. The petitioner had argued on appeal that the First Step’s amendment to “good …
Nice Win for Alan Zarky + Mo Hamoudi
The 9th held that Washington second-degree murder (felony murder) does not qualify as a crime of violence since it is overbroad and indivisible and rejected the Government’s argument, raised for the first time on appeal, that second-degree murder qualifies under the force clause given that Washington law imposes liability for negligent or even accidental felony murder. It also held that …
Mandatory Minimum Penalties for Sex Offenses
In January 2019, the Commission issued a report, Mandatory Minimum Penalties for Sex Offenses in the Federal Criminal Justice System, highlighting recent trends in the charging of federal sexual abuse and child pornography offenses. This publication is the sixth and final in a series of new reports building on the Commission’s 2011 report to the Congress on mandatory minimum penalties. …
Valencia-Mendoza and State Priors in federal sentencing
After a lousy week for federal employees it is a pleasure to be writing with some particularly good news: United States v. Valencia-Mendoza. This is a huge case. The narrow holding is that a particular Washington state prior doesn’t count in that case to increase an illegal reentry sentence under the guidelines. The much bigger implications, however, are for the general …
Ninth Circuit Opinions
1. US v. Landeros, No. 17-10217 (1-11-19)(Berzon w/Rawlinson & Watford). The 9th reverses denial of a suppression motion. The 9th holds that a police cannot extend a lawfully initiated car stop because a passenger refuses to identify himself, absent a reasonable suspicion that the person has committed a criminal offense. The 9th recognizes that Rodriguez, 135 S. Ct 1609 (2015) abrogates previous 9th Circuit, US …
Sineneng-Smith and First Amendment Overbreadth
A great early Christmas gift from the Ninth is the subject of the COTW memo (and a case arising out of the San Jose division of NorCal). In United States v. Sineneng-Smith, Judge Tashima writes for a unanimous panel and finds a criminal immigration statute unconstitutionally overbroad. This is a very important First Amendment decision of first impression. How important? …
Sentencing Reforms That May Pass In the Lame Duck Session
A sentencing reform bill was introduced last night to provide for programs to help reduce the risk that prisoners will recidivate upon release from prison, and for other purposes. It’s limited, but will affect some clients. Trump has agreed to sign it, and there appear to be more than enough votes to pass it, but it depends on whether McConnell …
Terrific Holding On Selective Enforcement Discovery
Re: United States v. Sellers, 2018 WL 4956959 (9th Cir. Oct. 15, 2018): Selective Enforcement / Discovery Players: Decision and concurrence by Judge Nguyen. DJ Simon, concurring Dissent by Judge Graber. Tremendous victory for former AFPD Carl Gunn. Facts: Sellers, who is black, was arrested in an ATF stash house sting and indicted. Id. at *1-*2. He sought discovery based …
Death Penalty Abolished In Washington
A five-member majority on the State Supreme Court did not say that executing people who commit heinous crimes is inherently wrong, but said evidence showed that death sentences had been “imposed in an arbitrary and racially biased manner.” Four other justices concurred with the conclusion in a separate, equally sweeping decision. “We are confident that the association between race and …
Ninth Circuit Opinions – The Gonzalez Decision
US v. Gonzalez, No. 15-50483 (10-10-18)(Watford w/Rogers & Bybee). The 9th affirmed “across the board” convictions of three LA Deputy Sheriffs who brutally beat a visitor to the central jail. The visitor was suspected of smuggling in a cell phone. While handcuffed, the sheriffs punched and kicked the victim and subsequently covered it up. There was sufficient evidence to find …
Jury Finds Client Not Guilty Of Attempted 2nd Degree Murder
A 2nd Circuit Court jury found criminal defense attorney Cary Virtue’s client not guilty of attempted second-degree murder. The case was presided by Judge Peter Cahill. The incident occurred shortly after midnight New Year’s Day 2017. The 55-year old defendant had an argument with his then-girlfriend (now-wife) and left her Harbor Lights apartment. He took his backpack and planned to …
Another nice win for Davina Chen, in United States v. Michael Brown
The Ninth ponders a Washington state conspiracy statute, where a defendant can be found guilty for conspiring with a cop. “Not a generic fit,” explains Judge Clifton in a welcome decision. The opinion and the COTW memo ends with Judge Owens’ concurrence. He’s had his fill of the Taylor analysis, and calls for the approach to be scrapped. Maybe we …
The Latest Postconviction Remedy Notes
Members of the federal judiciary, federal court practitioners, law professors, and law librarians: Below is a link for the latest quarter’s edition of the Postconviction Remedies Note, a legal publication summarizing important federal habeas corpus decisions and discussing new developments in the area of federal postconviction remedies. If there is someone whom you would like to receive this publication, please …
Unshackled! The 9th Grants Mandamus
The panel granted a petition for a writ of mandamus ordering the judges within the District of Arizona to comply with this court’s decision in United States v. Sanchez-Gomez, 859 F.3d 649 (9th Cir. 2017) (en banc), which held that before placing a defendant in shackles, the district court must “make an individualized decision that a compelling government purpose would …
Assisting Public Defenders In Building A Case
We just came across an interesting article about how family members of a client facing trial can be an excellent source for building a case. Read this article on how a prisoners’ family members can help: Family Members Can Assist Overworked Public Defenders – The Atlantic