Justia U.S. 9th Circuit Court of Appeals Opinion Summaries

Defendant appealed from his conviction under the Federal Food, Drug, and Cosmetic Act (“FDCA”) for shipping misbranded drugs in interstate commerce. Along with other challenges, Defendant contended that the district court erred in concluding that the charged offense did not require proof that Defendant knew that the drugs he shipped were misbranded. Defendant moved to dismiss the indictment, and the district court denied that motion.   The Ninth Circuit affirmed Defendant’s conviction. The panel first held that the text of the various provisions of the FDCA at issue does not contain any language that imposes a scienter requirement of the sort that Defendant advocates. The panel then addressed whether there are convincing reasons to depart from the presumption that Congress intended to require a defendant to possess a culpable mental state regarding each of the statutory elements that criminalize otherwise innocent conduct, even when Congress does not specify any scienter in the statutory text. The panel concluded that such convincing reasons are present here. The panel wrote that this is the unusual case in which a public welfare offense lacks a scienter element even though it is a felony with moderately severe potential penalties, given the confluence of circumstances: (1) Congress augmented, into a felony, a predicate misdemeanor offense that concededly lacks a scienter requirement; (2) it did so by adding, not a scienter requirement, but a prior conviction requirement; (3) this action contrasts with Congress’s explicit addition of a scienter requirement in the other clause of Section 333(a)(2); and (4) the prior conviction requirement largely serves the same purposes as an express scienter requirement. View "USA V. RICHARD MARSCHALL" on Justia Law

Petitioner has been a lawful permanent resident (LPR) of the United States since 2003. Since that time, he has been convicted of various crimes, including theft, criminal trespass, a DUI, and, as relevant here, possession of heroin in violation of Oregon law. After he received a notice to appear (NTA) initiating removal proceedings, Petitioner applied for cancellation of removal. The immigration judge (IJ) denied the petition and the Board of Immigration Appeals (BIA) dismissed Petitioner’s appeal.   The Ninth Circuit denied Petitioner’s petition for review. The court held that the agency did not err in concluding that the stop-time rule set forth in 8 U.S.C. Section 1229b(d)(1)(B), which terminates accrual of the requisite seven years of continuous physical presence, is calculated from the date a petitioner committed the criminal offense that rendered him removable, rather than the date he was convicted. A lawful permanent resident becomes removable once he is convicted of a qualifying offense, and if the offense is committed within seven years of being admitted into the United States, the Attorney General lacks discretion to cancel removal. Here, Petitioner committed the offense a few months shy of satisfying the seven-year continuous residence requirement, but the conviction became final outside the statutory seven-year period. The panel held that the agency did not err in deciding that the stop-time rule is calculated from the date Petitioner committed the criminal offense that rendered him removable, rather than the date he was convicted. View "RUDNITSKYY V. GARLAND" on Justia Law

Defendant appealed her sentence on the ground that her due process rights were violated when the district court failed to pronounce certain discretionary conditions of supervised release in her presence.   The Ninth Circuit affirmed in part and vacated in part. The en banc court held that a district court must orally pronounce all discretionary conditions of supervised release, including those referred to as “standard” in U.S.S.G. Section 5D1.3(c), in order to protect a defendant’s due process right to be present at sentencing. In so holding, the en banc court overruled in part the opinion in United States v. Napier, 463 F.3d 1040 (9th Cir. 2006). The en banc court further held that the pronouncement requirement is satisfied if the defendant is informed of the proposed discretionary conditions before the sentencing hearing, and the district court orally incorporates by reference some or all of those conditions, which gives the defendant an opportunity to object. The en banc court vacated only the conditions of Defendant’s supervised release that were referred to as the “standard conditions” in the written sentence but were not orally pronounced. The en banc court remanded for the limited purpose of allowing the district court to cure its error by orally pronouncing any of the standard conditions of supervised release that it chooses to impose and by giving Defendant a chance to object to them. View "USA V. CYNTHIA MONTOYA" on Justia Law

Petitioner filed a Section 2255 motion in the district court challenging her restitution order in a case in which Petitioner was convicted of wire fraud and aggravated identity theft. The district court dismissed the motion on the ground that restitution claims are not cognizable in a Section 2255 motion. Petitioner then filed a second-in-time Section 2255 motion asserting new grounds for relief. The district court denied it as an unauthorized second or successive motion filed in violation of 28 U.S.C. Section 2255(h). Pursuant to Circuit Rule 22-3(a), the district court referred the matter to this court, which opened the matter as an application for authorization to file a second or successive motion.
The Ninth Circuit denied Petitioner’s s application for leave to file a second or successive motion. The panel held that the district court’s dismissal of Petitioner’s first motion constitutes an adjudication “on the merits” for purposes of the second-or-successive bar. The panel explained that when an initial petition or motion is dismissed because its claims cannot be considered by the court or do not otherwise establish a ground for habeas relief, regardless of their underlying merits, any later-filed petition or motion is second or successive. Accordingly, to the extent Petitioner's second motion raises claims that could have been adjudicated on the merits when she filed her first motion, that aspect of her second motion is second and successive for purposes of Section 2255(h). Because Petitioner has not argued or otherwise made a showing that she meets the requirements of Section 2255(h), the panel denied her application to file a second or successive motion. View "TONG V. UNITED STATES OF AMERICA" on Justia Law

Defendant appealed his sentence of twenty-seven months’ imprisonment followed by three years’ supervised release for attempted reentry following removal. Defendant had been deported from the United States six times, most recently about a month before his arrest. The same district court judge who sentenced Defendant in this case had presided over his prior sentencing hearing for illegal reentry. On appeal, Defendant raised two challenges to the court’s sentence.   The Ninth Circuit affirmed Defendant’s sentence. The panel held that so long as Defendant is apprised of the consequences of entering into a Type B plea agreement and accedes to them voluntarily, he has no right to withdraw from the agreement on the ground that the court does not accept the sentencing recommendation or request. Accordingly, the district court’s use of the word “reject” in the context of a Type B plea agreement can have no legal effect. The panel wrote that the record establishes that Defendant was aware of the consequences of entering into a Type B plea agreement, and concluded that the district court therefore did not abuse its discretion under the circumstances.   Defendant argued that the district court committed procedural error when it used Defendant’s alleged promise at his prior sentencing hearing not to return to the United States as a sentencing factor. Reviewing for plain error, the panel held that the district court’s factual finding that Defendant had assured the court at the prior sentencing hearing that he would not return to the United States is supported by the record. View "USA V. URBANO TORRES-GILES" on Justia Law

Defendant appealed from his conviction after a conditional plea of guilty to a single count of unlawful reentry by a previously removed alien. Defendant contended that his indictment should have been dismissed on the ground that the 2000 removal order underlying his prior removals was invalid due to an error by the immigration judge (“IJ”), at his removal hearing, as to whether he was eligible for voluntary departure.   The Ninth Circuit affirmed. The panel held that, in the respects relevant here, Palomar-Santiago abrogated that caselaw as well. Even assuming arguendo that the IJ’s incorrect statement about Defendant’s eligibility for voluntary departure violated due process and rendered his removal proceedings “fundamentally unfair,” that would not automatically or “effectively” satisfy the requirement in 8 U.S.C. Section 1326(d)(1) that the alien exhausted available administrative remedies, or the requirement in 8 U.S.C. Section 1326(d)(2) that the deportation proceedings improperly deprived the alien of an opportunity for judicial review. The panel therefore concluded that Defendant remains subject to Section 1326(d)’s general rule that he may not challenge the validity of his predicate removal order. View "USA V. PRAXEDIS PORTILLO-GONZALEZ" on Justia Law

Defendant moved from the United States to Cambodia in the spring of 2003. Between June 2005 and June 2006, he sexually abused young girls. The government presented evidence at trial from which a jury could infer that one of Defendant’s primary activities in Cambodia was molesting children. A jury convicted Defendant of two counts of violating 18 U.S.C. Section 2423(b) by traveling in foreign commerce with the purpose of committing illicit sexual acts and two counts of violating 18 U.S.C. Section 2241(c) by crossing a state line with intent to sexually abuse a child under 12 and then so doing. Defendant appealed the sufficiency of the evidence for each of these convictions, as well as the district court’s instructions to the jury.   The Ninth Circuit affirmed. The panel wrote that Mortensen does not remove from the jury’s province its ability to rationally find that a person embarked on a trip with an innocent purpose but returned home with a motivating purpose of illicit conduct. The panel held that a jury could rationally find that the sexual abuse of children was one of Defendant’s primary motivations for returning from the United States to Cambodia, which is sufficient to uphold his convictions under Section 2423(b) (Counts 1 and 2). Noting that Section 2241(c) (Counts 3 and 4) requires the jury to find a slightly more specific motivating purpose, the panel held that a rational trier of fact could have found that Defendant’s charged victims were, in fact, under 12, and that Pepe crossed state lines with a motivating purpose of sexually abusing girls under 12. View "USA V. MICHAEL PEPE" on Justia Law

Defendant challenged the sentence he received after violating several conditions of his supervised release. Defendant first argued that the district court unlawfully delegated its judicial authority to his probation officer to determine the duration of his inpatient substance abuse treatment. His second argument is that the court erred because one year of inpatient treatment, plus the prison time he was sentenced to serve, exceeds the maximum recommended sentence for his offense, and the district court failed to explain what Defendant considers an upward variance.
The Ninth Circuit affirmed the special conditions of supervised release. The panel held that the district court, which ordered a specific time range for Defendant’s inpatient substance treatment with a hard upper limit of one year, did not unconstitutionally delegate its judicial authority by ordering the probation officer to supervise Defendant’s progress in inpatient treatment, and allowing the probation officer the discretion to reduce—but not increase—the duration of his inpatient treatment in consultation with Defendant’s care provider. The panel held that the district court’s imposition of Special Condition 2 in addition to a high-end Guidelines sentence did not constitute an upward variance. View "USA V. ARNOLD TAYLOR" on Justia Law

Petitioner appealed the denial of his 28 U.S.C. Section 2254 habeas petition. Petitioner was convicted in California state court of making criminal threats and assault with a deadly weapon. The victim was not authorized to reside in the United States at the time of the crimes. Prior to testifying in Petitioner’s trial, the victim received a U-Visa, which provides immigration benefits for victims of certain crimes who cooperate with law enforcement. At trial, the court barred Petitioner from cross-examining the victim about his U-Visa status, which Petitioner asserted was relevant to the victim’s credibility.   The Ninth Circuit affirmed. The court explained that under the standard prescribed in Brecht v. Abrahamson, 507 U.S. 619 (1993), which requires a habeas petitioner to persuade the court that a constitutional error at trial had a “substantial and injurious effect or influence” on the verdict, the panel held that Petitioner is not entitled to habeas relief. The panel wrote that nothing in the record indicates that the victim had an eye toward immigration benefits when he made his initial statement implicating Petitioner; rather, the record suggests the opposite. The panel therefore did not harbor the requisite “grave doubt” that the jury would have convicted Burgos had it known about the victim’s immigration status. View "ORLANDO BURGOS V. RAYMOND MADDEN" on Justia Law

Defendant challenged the district court’s judgment on the third revocation of his supervised release. He contends that the district court lacked jurisdiction because, at the time of his third violation, he was serving a term of supervised release that exceeded the applicable statutory maximum.   The Ninth Circuit affirmed. Applying the rationale of United States v. Castro Verdugo, 750 F.3d 1065 (9th Cir. 2014), which involved the same issue in the context of probation revocation, the panel held that because Defendant was serving a term of supervised release when he committed the instant violation, the district court had jurisdiction to revoke his supervised release and impose an additional term of imprisonment, regardless of any error in the sentence imposed on the second revocation. The panel declined to reach Defendant’s argument that the term of supervised release imposed on his second revocation exceeded the statutory maximum. Consistent with Castro Verdugo and earlier precedent, the panel held that an appeal challenging a supervised release revocation is not the proper avenue through which to attack the validity of the underlying sentence. View "USA V. CARLOS ESTRADA" on Justia Law