U. S. Supreme Court Happenings, Favorable Federal Circuit Opinions and No Formal Vote from US Sentencing Commission on Retroactivity of 2024 Guideline Amendments for the Week of August 5-9, 2024--
U. S. Supreme Court Happenings– Week ending August 9, 2024 –
The Court is currently in summer recess. The new term will begin in October, 2024.
Favorable Federal Circuit Opinions for the Week of August 5-9, 2024 –9th Circuit
United States v. Osorio-Arellanes, (No. 20-10003) (9th Cir. August 9, 2024)– The panel reversed the district court’s order reconsidering its suppression of a confession by Heraclio Osorio-Arellanes (“Osorio”), vacated his convictions and sentences, and remanded for further proceedings. Osorio claimed he is entitled to a new trial because his confession was taken and admitted in violation of his Fifth Amendment right against selfincrimination and his Sixth Amendment right to effective assistance of counsel. Addressing the substance of the claim under the framework identified in Strickland v. Washington, 466 U.S. 668 (1984), the panel 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.
United States v. Valdivias-Soto, (No. 20-10415) (9th Cir. August 9, 2024)– The panel affirmed the district court’s judgment dismissing an indictment charging Rosendo Valdivias-Soto (“Valdivias”) with illegally reentering the United States after he had previously been removed. The district court granted Valdivias’s motion to dismiss the indictment on the ground that the removal order underlying the illegal reentry charge was invalid. The panel 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 IJ’s erroneous advice about Valdivias’s right to counsel was not an error on the merits, but a misstatement concerning the procedural rules for obtaining administrative remedies. Accordingly, the erroneous translations at Valdivias’s removal hearing rendered administrative review of his removal order unavailable.
Clements v. Madden, (No. 22-55333) (9th Cir. August 9, 2024)– In Charles Clements’s appeal from the denial of his habeas corpus petition under 28 U.S.C. § 2254, the panel reversed the district court’s denial of Clements’s claim under Napue v. Illinois, 360 U.S. 264 (1959), and remanded with instructions to grant the petition with respect to aggravated kidnapping charges. The panel agreed with the parties and the district court that the Napue claim is subject to de novo review because the state court did not apply the governing standard for materiality established by the Supreme Court. The panel held that the prosecution violated Napue by permitting a jailhouse informant to testify that he had received no parole consideration for his actions and that his motives for coming forward were altruistic, when the prosecutors knew or should have known that this was false. As to materiality, the panel held that Clements met his burden of establishing “any reasonable likelihood that the false testimony could have affected the judgment of the jury,” where the informant’s testimony was highly probative of Clements’s consciousness of guilt and identity on the aggravated kidnapping counts, it was relevant regarding the criminal implications of his alleged aggravated kidnapping, and it went directly to the essential element of whether he created a substantial increase in risk to the victims.
11th Circuit
United States v. Bush, (No. 22-13867)(11th Cir. August 8, 2024)– Frederick Bush was convicted of escaping from a residentialreentry center in violation of 18 U.S.C. §§ 751(a) and 4082(a). On appeal, he argued, among other things, that the district court improperly instructed the jury regarding the mens rea required to convict him. While the pertinent instruction required the government to prove that Bush knew that “he was not allowed to leave the facility without permission,” it failed to specify, as Bush insisted it should have, that he had to know, more specifically, that his actions were unlawful. Because the district court erred when it omitted from its jury instruction the requirement that the government prove that Bush acted “willful[ly],” the Court agreed and therefore vacated and remanded for a new trial.
United States v. Munoz, (No. 22-11574)(11th Cir. August 7, 2024)– Three years after becoming a United States citizen, Melchor Munoz pleaded guilty to a drug-conspiracy offense, admitting under oath that he began trafficking marijuana in 2008. The government filed this action to denaturalize Munoz under 8 U.S.C. § 1451(a), alleging that he illegally procured his citizenship in 2009 because his prior participation in the drug conspiracy made him statutorily illegible for citizenship. After Munoz answered the complaint, the government moved for judgment on the pleadings. It argued that because of his admission Munoz was collaterally and judicially estopped from denying that he began trafficking marijuana in 2008. The district court granted the government’s motion and entered a judgment denaturalizing Munoz. On appeal, Munoz argued that the district court erred in determining that his guilty plea collaterally and judicially estopped him from relitigating the date he joined the drug conspiracy. The Court concluded that collateral estoppel is unavailable because the starting date of Munoz’s drug offense was unnecessary to his prior conviction. The district court also abused its discretion in applying judicial estoppel. It found that Munoz persuaded the district judge who accepted his plea and sentenced him that his drug trafficking began in 2008 and would derive an unfair advantage if not estopped from denying that fact in this proceeding. But these findings were clearly erroneous because they lack evidentiary support in the record. Because neither collateral nor judicial estoppel applies, the Court vacated the district court’s order and remanded for further proceedings.
OTHER NEWSNo Formal Vote from Us Sentencing Commission on Retroactivity of 2024 Guideline Amendments–
Yesterday, the US Sentencing Commission had a scheduled public meeting, and the big official agenda items were "Possible Vote on Final 2024–2025
Policy Priorities" and "Possible Vote on Retroactivity of Certain 2024 Amendments." The Commission did vote to adopt priorities that "reflect
calls to simplify sentencing, reduce the costs of unnecessary incarceration, and promote public safety" A Guidelines change that would reduce a
sentencing range does not apply to the sentence of a prisoner who has already been sentenced unless the Commission proposes a change in USSG §
1B1.10, the Guideline governing retroactivity. This year, the Commission proposed to make four Guideline changes, in areas of acquitted conduct,
gun enhancements, Guidelines calculation where a defendant is convicted of an 18 USC § 922(g) felon-in-possession count, a 21 USC § 841 drug
trafficking count , and a separate 18 USC § 924(c) gun conviction; and a change in the drug Guidelines to tie mandatory and high base offense
levels to statutory maximum sentences instead of more complex factors that inflate sentencing ranges. Interestingly, the Commission did not vote
on the issue of retroactivity of certain 2024 amendments. When reaching the retroactivity issue in the agenda (starting at around the 13:45 minute
mark of the meeting recording here), the matter failed "for lack of a motion." The Commission Chair subsequently explained that "many have called
for the Commission to identify clear principles that will guide its approach to retroactivity" and that, "after deep deliberation," the Commission
decided to heed those calls and apparently defer any vote on retroactivity. Whatever that means.
Fair Sentencing/Retroactive Sentence Reductions 4,146 Orders Granted to date.
Elderly Offender Home Confinement 1,246. Approved to date.
First Step Act Releases 35,917 granted to date.
Compassionate Releases/Reduction in Sentences 4,739 granted to date.
Population in RRC’s 8,431.
Population in Home Confinement 4,864.
The Sentencing Commission’s failure to vote for retroactivity is truly disturbing especially concerning acquitted conduct. The decision to not vote of retroactivity yesterday ensures that any decision on making the acquitted conduct and other amendments retroactive has been kicked down the road for a year or better.
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