Justia Criminal Law Opinion Summaries

After pleading guilty to charges stemming from possessing stolen mail, credit cards, and other financial devices, Defendant was sentenced to 36 months in prison. He appealed his custodial sentence. But, under the terms of Defendant’s plea agreement, he waived the right to appeal his sentence. Defendant argued the court should invalidate the waiver because the district court violated Rule 11 of the Federal Rules of Criminal Procedure. That Rule provides that the district court must address the defendant “personally” and determine that the defendant understands the terms of any appellate waiver. Fed. R. Crim. Proc. 11(b)(1)(N). Defendant asserted that the district court failed to follow this requirement and so he should be permitted to appeal his sentence.  The Ninth Circuit affirmed. The court reviewed for plain error because Defendant failed to object to the alleged violation during the plea colloquy. The court cited several factors in the record including the plea agreement’s specificity as to the scope of the appellate waiver, the counsel’s certification of her discussion and advice concerning the consequences of the entering the agreement, and Defendant’s assurances during the change-of-plea hearing and plea colloquy that he understood the proceedings and the agreement. The court wrote that nothing in the record supports a reasonable probability that Defendant would not have entered the guilty plea had the district court separately addressed the appellate waiver as Rule 11 requires. Thus, the court held that the appellate waiver is enforceable, and did not consider Defendant’s challenges to his custodial sentence. View "USA V. JASON DAVID" on Justia Law

Defendant appealed his conviction for possession of child pornography in violation of 18 U.S.C. Section 2252A(a)(5)(B), (b)(2). He contended that the district court should have granted his pretrial motion to suppress evidence, which asserted that FBI agents executing a search warrant at his residence deliberately violated Federal Rule of Criminal Procedure 41(f)(1)(C) by failing to supply a complete copy of the warrant.   The Ninth Circuit affirmed the district court’s denial. As the government conceded on appeal, the agents violated Rule 41(f)(1)(C) by delivering only the face page of the warrant rather than a complete copy. Explaining that suppression is automatic only for “fundamental” violations of Rule 41, at least without any applicable exception to the exclusionary rule, the court noted that Defendant contended neither that the violation here was fundamental nor that he was prejudiced by it.The only remaining question, therefore, was whether the district court correctly concluded that the agents’ failure to deliver a complete copy of the warrant at the completion of the search was merely negligent, rather than the product of a deliberate disregard of the rule. The court held that the district court properly concluded that Defendant had not carried his burden to show a deliberate disregard of the rule. Thus, the court found no clear error in the district court’s finding that the agent did not act intentionally, and rejected Defendant’s contention that the district court failed to adequately consider the possibility that another agent had deliberately disregarded Rule 41(f)(1)(C) by unstapling the pages of the warrant and leaving only an incomplete copy. View "USA V. GRANT MANAKU" on Justia Law

Defendant argued that his conviction and sentence under 18 U.S.C. Section 924(c)(1) for using or carrying an explosive device during a crime of violence should be vacated. The Government conceded that Defendant’s conviction under 18 U.S.C. Section 844(i) is not a crime of violence under Section 924(c)(3) after United States v. Davis.   The Ninth Circuit reversed the district court’s denial of Defendant’s 28 U.S.C. Section 2255 motion and remanded with instructions to vacate his conviction and sentence under 18 U.S.C. Section 924(c)(1). Applying the categorical approach, the court explained that because a person can be convicted under Section 844(i) for using an explosive to destroy his or her own property, Section 844(i) criminalizes conduct that falls outside Section 924(c)’s definition of a crime of violence definition—an offense committed against the person or property of another. The court wrote that the district court—which relied on this court’s decision in Defendant’s direct appeal rejecting his argument that his property-damage and firearm convictions violated the double jeopardy clause “as punishment for the same conduct”—erred by not applying the categorical approach, which is required when determining whether an offense is a crime of violence. View "USA V. RICHARD MATHEWS" on Justia Law

Defendant argued that Hawai’i’s second-degree robbery statute, Haw. Rev. Stat. Section 708-841 (1986), is not divisible and sweeps too broadly to be a crime of violence because Section 708-841(1)(c) criminalizes reckless conduct. He conceded that, if the statute is divisible, his conviction under Section 708-841(1)(b) (in the course of committing theft, threatening the imminent use of force with intent to compel acquiescence) is a crime of violence.   Noting that the Supreme Court of Hawai’i has weighed in on the question, the Ninth Circuit held that the subsections in the statute describe unique elements of separate offenses, not alternative means of committing the same offense, and that the statute is therefore divisible. The court wrote that this conclusion is confirmed by the jury instructions for Defendant’s offense, and therefore rejected Defendant’s contention that because Hawai’i requires jury unanimity for various reasons, unanimity cannot establish divisibility. The court explained that even if there are some instances when unanimity may be required for other reasons, the Hawai’i courts use unique jury instructions for each subsection of the second-robbery statute, such that the jury cannot disagree on whether a defendant charged with violating subsection (b) threatened the imminent use of force with intent to compel acquiescence. View "USA V. ALLEN TAGATAC" on Justia Law

In three defendants’ consolidated appeals, the Ninth Circuit (1) vacated the sentences imposed at resentencing on two 18 U.S.C. Section 924(c) counts that remained after the district court—in light of United States v. Davis, 139 S. Ct. 2319 (2019)—had granted 28 U.S.C. Section 2255 relief and vacated the defendants’ convictions on two other Section 924(c) counts; and (2) remanded for resentencing.   The court held that the version of 18 U.S.C. Section 924(c)(1) that was amended by the First Step Act of 2018, and not the original version of Section 924(c)(1), applies at post-Act resentencing of Defendants whose sentences were imposed before the Act’s passage and vacated. In so holding, the court interpreted Section 403(b) of the Act, which provides that the statute applies to “any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.” The court held that because vacatur of the prior sentences here wiped the slate clean, a sentence had not been imposed for purposes of Section 403(b) at the time of resentencing. The court wrote that the most reasonable reading of Section 403(b) is that “a sentence” means an existing valid sentence, not a prior valid one; and that the vacated sentence—a legal nullity—cannot form the legal predicate for the exclusion from the application of the First Step Act, which Congress expressly made retroactive under Section 403(b). View "USA V. VERNE MERRELL" on Justia Law

Denying Petitioner’s motion to recall a mandate, the Ninth Circuit wrote (1) motions that assert a judgment is void because of a jurisdictional defect generally must show that the court lacked even an arguable basis for jurisdiction, (2) Petitioner has not met that standard in arguing that the statutory “in-custody” requirement was satisfied, and (3) the additional details provided in the motion and accompanying exhibits do not demonstrate the Ninth Circuit’s holding on mootness lacked an arguable basis. View "STEPHEN MAY V. DAVID SHINN" on Justia Law

In Petitioner’s first Section 2255 motion, which the district court denied, Petitioner, argued that his Section 924(c)(1)(A) conviction and sentence were invalid under United States v. Davis, 139 S. Ct. 2319 (2019). In the second or successive Section 2255 motion he later sought to file, he again raised a claim that his Section 924(c)(1) conviction and sentence are unlawful under Davis; and he added a claim that under Borden v. United States, 141 S. Ct. 1817 (2021), his conviction for assault resulting in serious bodily injury, in violation of 18 U.S.C. Sections 113(a)(6) and 1153, cannot serve as a predicate crime of violence for his Section 924(c) conviction, because a violation of Section 113(a)(6) can be committed recklessly.   The court held that Section 2244(b)(1) does not apply to applications for leave to file second or successive motions under Section 2255. Instead, when faced with an application such as that presented by Jones, the court must ask whether it makes a prima facie showing that the second or successive motion relies on a “new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. Section 2255(h)(2). The court explained here, that Petitioner does not make a prima facie showing that either his Davis claim or his Borden claim satisfies this test. Davis was not “previously unavailable,” and Borden did not state a constitutional rule, but rather a statutory one. View "WILLIE JONES, SR. V. USA" on Justia Law

Defendant, who placed Wi-Fi cameras in the eye of a stuffed animal and surreptitiously filmed a teenage girl masturbating, argued that the evidence was insufficient to support his conviction because he taped the minor surreptitiously and did not cause her “to engage in” sexually explicit conduct. The appeal centered on whether the defendant “used” his minor victim to engage in sexually explicit conduct by taping her in her bedroom, without her knowledge or participation.   The Ninth Circuit affirmed Defendant’s conviction under 18 U.S.C. Section 2251(a), which criminalizes the conduct of any person who “employs, uses, persuades, induces, entices, or coerces” a minor “to engage in . . . sexually explicit conduct for the purpose of producing any visual depiction of such conduct.”   Applying the broad interpretation of Section 2251(a) adopted in United States v. Laursen, 847 F.3d 1026 (9th Cir. 2017), the court wrote that the active conduct that is required is that of the perpetrator, not the target of the visual depiction; that the defendant’s placement of hidden cameras in a teenage girl’s bedroom is active conduct in the heartland of a statute criminalizing the production of child pornography; and that the “use” element is satisfied whenever a minor is the subject of the photography. The court concluded that the evidence was, therefore, sufficient under 18 U.S.C. Section 2251(a) and (e) to support the conviction for attempting to “use” a minor “to engage in . . . sexually explicit conduct” for the purpose of producing a visual depiction of that conduct. View "USA V. LORENZO MENDEZ" on Justia Law

Plaintiff sued various Arizona Department of Corrections, Rehabilitation & Reentry (“ADCRR”) officials and the Arizona Attorney General (collectively “Defendants”) challenging Defendants’ proposed protocol for his execution. Plaintiff filed a motion for a preliminary injunction prohibiting his execution until such time as Defendants can assure the district court that his execution would comply with various federal statutes and the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. The district court denied the motion for a preliminary injunction and Plaintiff appealed and filed two motions to stay his execution.   The Ninth Circuit denied the motions because: (1) it deferred to the district court’s finding that Defendants’ accommodations for Plaintiff’s degenerative spinal disease preclude a finding that their lethal injection protocol creates a substantial risk of severe pain; (2) even assuming without deciding that Defendants’ Execution Protocol may give rise to a liberty interest, there is insufficient evidence that Plaintiff’s due process rights were violated; and (3) given that Defendants shall execute Plaintiff by lethal injection, he lacks standing to challenge Defendants’ protocol for execution by lethal gas. View "FRANK ATWOOD V. DAVID SHINN" on Justia Law

Petitioner was convicted of forgery under Section 472 for possession of a counterfeit government seal. The Board of Immigration Appeals concluded that this conviction was a crime involving moral turpitude that made him ineligible for cancellation of removal. Petitioner argued that intent to defraud is not a required element under Section 472, and therefore, his forgery conviction was not a categorical crime involving moral turpitude.   The Ninth Circuit denied in part and dismissed in part Petitioner’s petition for review of a decision of the Board of Immigration Appeals, the court held that a forgery under California Penal Code Section 472 is a crime involving moral turpitude.   The court considered the elements of Section 472 and concluded that California law does not support Petitioner’s reading of the statute. The court explained that it is reasonable to read the statutory text as requiring that all the prohibited acts be done “with the intent to defraud another,” and that no California court has held that Section 472 has separate clauses or that the intent-to-defraud element is limited to specific clauses or actions. The court also explained that California caselaw establishes that forgery requires intent to defraud and that California’s pattern jury instructions confirm that conclusion.   Finally, Petitioner contended that his argument to the BIA that his conviction did not render him inadmissible was sufficient to alert the BIA to the relevance of the petty offense exception. The court concluded that the record belied that assertion, noting that the BIA did not read Petitioner’s brief as raising that assertion. View "PEDRO VASQUEZ-BORJAS V. MERRICK GARLAND" on Justia Law