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

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

Defendant sought to vacate the conviction because he pled guilty without being informed of the mens rea element announced in Rehaif v. United States, 139 S. Ct. 2191 (2019). Defendant did not challenge the omission of this element in the district court or on direct appeal, his claim is procedurally defaulted, such that the district court may not consider the merits of the claim unless Defendant can overcome the default by showing (1) cause for not raising the error sooner; and (2) prejudice, which means a reasonable probability that Defendant would not have pled guilty had he been properly informed of the elements of the offense   The district court summarily denied the motion without supplementing the record, holding an evidentiary hearing, or making factual findings.  The court held that the district court’s summary denial was erroneous. The court wrote that the district court erred by applying plain-error analysis. Rejecting the Government’s specific arguments, the court held (1) neither the fact that Defendant was sentenced to more than one year in prison nor his acknowledgment at his sentencing hearing that he had been “convicted of felonies,” is conclusive evidence that he would have pled guilty even if he were informed of all of the elements of the offense; and (2) the potential loss of an acceptance-of-responsibility reduction is not so great that it alone conclusively establishes that Defendant would have pled guilty to the felon-in-possession count even if he were properly informed of the elements of the offense. View "USA V. JUSTIN WERLE" on Justia Law

This appeal arose from a class action filed under the Victims of Trafficking and Violence Protection Act of 2000 by individuals who were incarcerated in private immigration detention facilities owned and operated by a for-profit corporation, CoreCivic, Inc. These individuals were detained solely due to their immigration status alleged that the overseers of their private detention facilities forced them to perform labor against their will and without compensation. The inquiry on appeal concerns only whether the district court properly certified three classes of detainees.   The Ninth Circuit affirmed the district court’s order certifying three classes in an action. The court held that the district court properly exercised its discretion in certifying a California Labor Law Class, a California Forced Labor Class, and a National Forced Labor Class. The court held that, as to the California Forced Labor Class, Plaintiffs submitted sufficient proof of a class-wide policy of forced labor to establish commonality. Plaintiff established predominance because the claims of the class members all depended on common questions of law and fact. The court agreed with the district court that narrowing the California Forced Labor Class based on the California TVPA’s statute of limitations was not required at the class certification stage.   The court held that, as to the National Forced Labor Class, the district court did not abuse its discretion in concluding that Plaintiffs presented significant proof of a class-wide policy of forced labor. As to the California Labor Law Class, the court held that Plaintiffs established that damages were capable of measurement on a class-wide basis. View "SYLVESTER OWINO V. CORECIVIC, INC." on Justia Law