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

The United States appealed from the district court’s dismissal of an indictment charging Defendant with illegal reentry after removal, in violation of 8 U.S.C. Section 1326. According to the district court, defects in the notice to appear (“NTA”)—which initiated the immigration proceedings against Defendant resulting in his eventual removal from the United States— deprived the immigration court of subject matter jurisdiction to effect the removal in the first place, rendering the entire immigration proceeding “void ab initio.”   The Ninth Circuit held, consistent with precedent and that of every other circuit to consider this issue, that the failure of an NTA to include time and date information does not deprive the immigration court of subject matter jurisdiction, and thus the defendant’s removal was not “void ab initio,” as the district court determined.   The court explained that hat 8 C.F.R. Section 1003.14(a)—a regulation by which the Attorney General purported to condition the “jurisdiction” of immigration courts upon the filing of a charging document, including NTAs—is a claim-processing rule not implicating the court’s adjudicatory authority. The en banc court read Section 1003.14(a)’s reference to “jurisdiction” in a purely colloquial sense. The en banc court wrote that although the statutory definition of an NTA requires the date and time of the removal hearing, 8 U.S.C. Section 1229(a)(1)(G)(i), this provision chiefly concerns the notice the government must provide noncitizens regarding their removal proceedings, not the authority of immigration courts to conduct those proceedings. View "USA V. JUAN BASTIDE-HERNANDEZ" on Justia Law

In 2011-2013, Fierro made six requests to be placed into protective custody, insisting that he was at risk of harm because he had received threats from the Border Brothers, a gang active throughout Arizona’s prisons. All six requests were denied. Fierro was physically assaulted in the prison yard by two other prisoners, at least one of whom was a suspected member of the Border Brothers. Fierro brought suit, 42 U.S.C. 1983. The district court instructed the jury to “give deference to prison officials in the adoption and execution of policies and practices that, in their judgment, are needed to preserve discipline and to maintain internal security in a prison.”The Ninth Circuit vacated a verdict in favor of the prison officials. The evidence at trial reflected a genuine dispute whether the decisions to deny Fierro’s requests for protective custody were made pursuant to a security-based policy, and, if so, whether the decisions were an unnecessary, unjustified, or exaggerated response to security concerns, so the district court’s deference instruction was erroneous. View "Fierro v. Smith" on Justia Law

Petitioner-appellant Jemere Guillory was convicted in California state court of multiple offenses arising from an investigation into a shooting in San Diego. In Guillory’s direct appeal of his conviction, the state appellate court rejected his argument that his Sixth Amendment right to a public trial had been violated by the alleged exclusion of his family members from the courtroom during jury selection. In subsequent state habeas proceedings, Guillory sought to re-raise this claim, but with new evidence consisting of declarations from two family members who had been excluded from the courtroom, as well as his own declaration. The state court of appeal denied his petition on the state law grounds that it was untimely and that his public trial claim had previously been raised and rejected on the merits. Guillory then sought federal habeas relief under 28 U.S.C. § 2254, but the district court denied the petition. According to the district court, Guillory’s procedural default in his state habeas petition barred any federal review of his Sixth Amendment public trial claim. The Ninth Circuit Court of Appeals agreed that the augmented version of Guillory’s public trial claim presented in his state habeas petition was procedurally defaulted, but the same could not be said of the properly exhausted public trial claim that Guillory presented on his direct appeal in state court. The Court therefore vacated the district court’s order and remanded for further proceedings. View "Guillory v. Allen" on Justia Law

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

Petitioner was detained under 8 U.S.C. Section 1226(c), which provides for mandatory detention of noncitizens with certain criminal convictions. After Petitioner filed a habeas petition, the district court ordered that he receive a bond hearing, reasoning that his prolonged mandatory detention violated due process. An IJ denied bond, and the BIA affirmed. The district court asserted jurisdiction over Petitioner’s claims but denied habeas relief.   Affirming in part and vacating in part the Ninth Circuit held that: 1) federal courts lack jurisdiction to review the discretionary determination of whether a particular noncitizen poses a danger to the community such that he is not entitled to bond; and 2) the district court correctly denied Petitioner’s claims that the BIA erred or violated due process in denying bond.   The court held that the district court lacked jurisdiction to review the determination that Petitioner posed a danger to the community, concluding that dangerousness is a discretionary determination covered by the judicial review bar of 8 U.S.C. Section 1226(e). In concluding that the dangerousness determination is discretionary, the court observed that the only guidance as to what it means to be a “danger to the community” is an agency-created multifactorial analysis with no clear, uniform standard for what crosses the line into dangerousness. As to Petitioner’s remaining claims, the court concluded that the district court had jurisdiction to review them as constitutional claims or questions of law not covered by Section1226(e), but agreed with the district court that they must be denied. View "JAVIER MARTINEZ V. LOWELL CLARK" 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