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The First Circuit’s decision in United States v. Lopez-Pastrana, 15-1894 (1st. Cir. May 4, 2018) is long, but can be summed up simply: federal courts can’t impose a term of supervised release on a charge that resulted in no prison time, even if the sentencing court is trying to help the defendant obtain federally-subsidized medical care for a serious condition.  Here’s what happened in Lopez-Pastrana:

The Government charged Mr. Lopez-Pastrana with two drug crimes and two weapons crimes.  He entered into a plea agreement.  Mr. Lopez-Pastrana would plead guilty to possession of marijuana with intent to distribute (Count III) and possession of a firearm in furtherance of drug trafficking (Count IV).  In exchange, the Government would dismiss Counts I and II.  The agreed-upon (but non-binding) sentencing range was zero to six months imprisonment for Count III, and a 60 month mandatory-minimum on Count IV.  Of course, there was an appeal waiver in the plea agreement.

At sentencing, Mr. Lopez-Pastrana explained he has Chronic Obstructive Pulmonary Disease (“COPD”), which, if you believe the commercial, makes you feel like an elephant or some other large animal is sitting on your chest.  His sentencing attorney told the district court that Mr. Lopez-Pastrana had a 20% chance of surviving the next four years.  The Government thought he was overstating the matter.  According to the Government, the Bureau of Prisons represented that “his medical condition is not an end-stage disease” and that his condition had improved during the four months he was incarcerated and awaiting sentencing.  (Aside: BOP has a very high opinion of its ability to care for sick people.  Check out the 11th Circuit’s opinion in United States v. Seecharan, where a defendant’s doctor opined the defendant would die of infection if he went to prison, and the district court ordered incarceration based on BOP’s response was that it “could handle anything.”  Happily, the 11th Circuit reversed for resentencing).

Back to Mr. Lopez-Pastrana. The district court sentenced him to 60 months in a prison medical facility on Count IV, with 5 years of supervised release.  But the sentence on Count III engendered some debate.  The district court basically gave Mr. Lopez-Pastrana an ultimatum.  Option 1: 12 months of home confinement with federally funded medical care as a condition of supervised release, and no time in prison.  Option 2: 6 months in prison.  Mr. Lopez-Pastrana took the 12 months of home confinement and appealed.

Michael Brownlee is board-certified as an appellate expert by the Florida Bar.  He practices in federal appellate courts around the country and is the founding member of The Brownlee Law Firm.  To learn more visit or email Mike at

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The First Circuit rarely reverses, particularly in criminal cases.  You can read First Circuit opinions for months without coming across a defense-friendly opinion.  And a federal grant of a 2254 habeas petition by any court is a unicorn, in and of itself. See, e.g., Nancy J. King, Non-capital Habeas Cases after Appellate Review: An Empirical Analysis, 24 Fed. Sent. Rptr. 308, 310 (2012) (observing that, after both district and circuit court review, habeas relief was granted in only .8 percent of noncapital habeas cases).  That’s what makes the First Circuit’s decision in Rivera v. Thompson, 879 F.3d 7 (1st Cir. 2018) such a welcome surprise.

The facts: Rivera was in a fight with Williams and it was not going well.  Williams was much bigger than Rivera and the fight quickly became lopsided.  When fellow partygoers realized Williams was in full control and showing no signs of relenting, a group went outside to break up the fight.  Soon after, Williams keeled over on top of Rivera, and one witness said Williams remarked as he fell, “I think he [Rivera] stabbed me.”  But it happened fast and no one was willing or able to identify who stabbed Williams.  Rivera ran and a police officer saw him and ordered him to stop, but Rivera kept going.  When the officer drew his gun and told Rivera to get down, Rivera complied.  With Rivera still on the ground and the officer’s gun drawn, the officer asked Rivera a few questions, but did not issue Miranda warnings.  Rivera responded with some indirect, but inculpatory answers.  Backup arrived soon after, Rivera refused to talk further, and he was brought to the police station.

After a trial, Rivera was found guilty and sentenced to 9-10 years and 5 years of supervised release.  While his appeal was pending, he filed a motion for new trial, arguing his trial attorney was ineffective for failing to move for suppression of his inculpatory statements to the police officer.  The Massachusetts trial court denied the motion for new trial without comment or a hearing.  Rivera pressed his ineffective assistance argument on appeal.  The appellate court rejected it, stating that “it was not ineffective assistance for counsel not to move to suppress the defendant’s initial statements to the police where the questions did not constitute interrogation for purposes of Miranda warnings.” Id. at 11.  The Massachusetts Supreme Judicial Court denied review, and Rivera was off to federal habeas land.

Michael Brownlee is board-certified as an appellate expert by the Florida Bar.  He practices in federal appellate courts around the country and is the founding member of The Brownlee Law Firm.  To learn more visit or email Mike at

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United States v. Diaz, 884 F.3d 911 (9th Cir. 2018): Ninth Circuit remands for improper application of Sentencing Guidelines “minor role” adjustment

Once upon a time, teenage boys called “newsies” stood on street corners hawking newspapers. Each was a knowing and integral participants in the newspaper’s business, but each played only a “minor role” in the enterprise as a whole. Section 3B1.2(b) of the Sentencing Guidelines recommends that defendants who played such a “minor role” in a criminal enterprise should receive lesser sentences than more important players.

Can a drug courier be the drug-trafficking organization’s analog to the newsie? Alejandro Diaz thought so. After pleading guilty to importation of cocaine and heroin, Mr. Diaz argued that he was entitled to a minor-role adjustment in his sentence. The district refused to grant the adjustment. The Ninth Circuit held that this was error. The Ninth Circuit noted that to properly address the minor-role issue, the district court would have had to consider that Mr. Diaz was ignorant of the type and quantity of drugs concealed in the car he tried to drive across the border, that he knew only two other participants in the enterprise, and that he was to receive a set fee of $1,000 for his work and had no ownership interest or other stake in the outcome of the drug trafficking operation. Because the district court failed to take these pertinent facts into account, the Ninth Circuit vacated Mr. Diaz’s sentence and remanded the case for resentencing.

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How often does one see a multiplicity victory? Not that often. Gary Cooper (per Judge Henderson, “not that one”), was convicted on a five-count indictment for his role in a scheme to steal from a labor union. On appeal, he successfully argued that the two charges (18 U.S.C. were in effect one and the same and therefore multiplicitous.  Because his sentence rested on an erroneous application of a U.S.S.G. § 2E5.1(b)(1) enhancement, Mr. Cooper pointed out that it was further marred. And finally, Mr. Cooper added that his 68-month sentences exceeded the statutory maximum provided for the conspiracy, wire fraud and honest services fraud counts (18 U.S.C. §§ 371, 1343, 1346)

In agreeing with Mr. Cooper, the panel (Henderson, Tatel and Williams, JJ) first examined the standard of review. Brushing aside the Government’s insistence that the multiplicity argument was forfeited, Judge Henderson found that the defense’s pretrial motion to dismiss (Rule 12(b), FED. R. CRIM. P.)  preserved the issue . (Slip. Op. at 8-9).

Moving on, and applying a de novo standard of review, Judge Henderson examined the two conspiracy counts to determine whether two counts of the same indictment charged a violation of the general conspiracy statute, 18 U.S.C. § 371?  “The question is, then, whether the counts charge ‘the same act or transaction”—i.e., the same conspiracy—at all.   (Slip. Op. at 10) (quoting and citing Blockburger v. United States, 284 U.S. 299, 304 (1932); Braverman v. United States, 317 U.S. 49,  52,54 (1942) (conspiracy  counts  are  multiplicitous  if  they  charge same agreement  under same conspiracy  statute); Ward  v. United States, 694 F.2d 654, 661 (11th Cir. 1983) (same, citing additional cases)).  Referring to United States v. Gatling, 96 F.3d 1151, 1152 (D.C. Cir. 1996), and applying the test used for double jeopardy case, viz., allegations of “common purpose, overlaps of participants and time, location where acts occurred, and interdependence,” the Circuit found that “[h]ere, all the factors point in the same direction: Counts One and Two charged the same conspiracy.” (Slip Op. at 11).

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United States v. Laney, __ F.3d __, 2018 WL 706497 (9th Cir. Feb. 5, 2018): Stipulations bearing only counsel’s e-signatures failed to show that defendants knowingly waived their right to a jury trial

Federal courts often remind us that they must “indulge every reasonable presumption against waiver of fundamental constitutional rights,” and that such waivers must be “voluntary, knowing, and intelligent” to be effective. What to do, then, when the only record confirmation that two fraud defendants waived their right to a jury trial consists of two stipulations bearing their lawyers’ electronic signatures?

Reverse, that’s what.

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United States v. Walton, — F.3d —, 2018 WL 650979 (9th Cir. Feb. 1, 2018): Armed Career Criminal Act sentence enhancement reversed where prior state convictions were not predicate offenses under the Act

The Ninth Circuit held that Donnie Lee Walton was improperly subjected to a sentencing enhancement under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. 924(e)(1), on his plea of guilty to being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. 922(g). The enhancement applies to defendants who have at least three prior convictions for “serious drug offenses” and/or “violent felonies.” Mr. Walton had four priors, including one for Alabama first-degree robbery and one for California second-degree robbery. Applying the “categorical approach” set forth in Supreme Court caselaw, the court looked only to the fact of conviction and the statutory definitions of the offenses, rather than the underlying facts of the cases, to determine whether these offenses triggered ACCA. Alabama first-degree robbery did not qualify, because it did not categorically require the use of violent physical force. California second-degree robbery did not qualify either, because it covers incidents in which force is used only negligently. The Ninth Circuit accordingly vacated the sentence and remanded the case for resentencing.

(Congratulations to Deputy Federal Public Defender Jonathan D. Libby and Federal Public Defender Hilary L. Potashner, of Los Angeles, California.)

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United States v. Brown, — F.3d —, 2018 WL 414106 (9th Cir. Jan. 16, 2018): Washington state drug conspiracy not a categorical match for federal drug conspiracy because it applies to conspiracy with undercover agent

Michael N. Brown pleaded guilty to being a felon in possession of a firearm. In sentencing him, the district court applied section 2K2.1(a)(4)(A) of the sentencing guidelines, which elevates the recommended sentencing range when the defendant has previously been convicted of a crime of violence or a “controlled substance offense.” Mr. Brown had previously been convicted of violating a Washington state drug conspiracy statute. The Ninth Circuit applied the “categorical approach” to determining whether that state-law prior was properly treated as a “controlled substance offense,” meaning that the court compared the state crime’s statutory elements to the generic federal version of the offense. The Ninth Circuit found that the Washington and federal versions were not a “categorical match,” because the Washington version applies to a situation in which the defendant’s sole coconspirator is actually an undercover agent, while the federal generic version does not. The court accordingly vacated Mr. Brown’s sentence and remanded the case for resentencing. Judge Owens concurred, acknowledging that the holding was correct under the governing law, but complaining that the categorical approach has “deviated from common sense,” and urging the Supreme Court to “junk this entire system” in favor of a regime based on the length of previous sentences.

(Congratulations to Davina T. Chen of Glendale, California.)

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United States v. Wells, — F.3d —, 2017 WL 6459199 (9th Cir. Dec. 19, 2017): District court breached Federal of Rule of Evidence 404(a)(1) and (b) by admitting improper expert “profile” testimony and prior act evidence

If Federal Rule of Evidence 404 were the Brady Bunch, Rule 404(b) would be Marcia. Perpetually cited in motions in limine to preclude priors, flaunting its unnecessarily catchy “mimic” rule, tracing its provenance to hoary common law precedents — its sisters could be forgiven for feeling jealous sometimes. But in this case, murder defendant James Michael Wells was fortunate to see lesser-known sibling Rule 404(a)(1) get some serious screen time.

Mr. Wells came under suspicion after two of his co-workers at a U.S. Coast Guard antenna maintenance facility on Kodiak Island, Alaska were found shot to death. The government’s theory was that Mr. Wells planned and executed the murders because of workplace humiliations, compounded by his narcissism. To support its theory, the government presented the expert testimony of a forensic psychologist who painstakingly outlined the profile of a person “who would perpetrate a workplace targeted homicide.” Such a person, the expert explained, would most likely be a pathologically narcissistic male, with a grandiose view of himself and an unreasonable sense of entitlement, who would decide to kill out of humiliations in love or work. Having elicited this bespoke profile of the killer, the government urged the jurors to find that it “fit Mr. Wells to a T.” They did, convicting him of first degree murder. The Ninth Circuit held that this “profile” evidence violated Rule 404(a)(1), which provides that “[e]vidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.” Or, as Chief Justice Roberts recently put it, “[o]ur law punishes people for what they do, not who they are.” Buck v. Davis, 137 S. Ct. 759, 778 (2017). Because such evidence may not be used in the government’s case-in-chief as substantive evidence of guilt — which is how it was clearly, and prejudicially, used against Mr. Wells — its admission was prejudicial error.

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United States v. Jones, — F.3d —, 2017 WL 6395827 (9th Cir. Dec. 15, 2017): Armed Robbery in violation of Arizona Revised Statutes 13-1904 not a “violent felony” under the Armed Career Criminal Act

In 2006, Rick Allen Jones pleaded guilty to one count of being a felon in possession of a firearm, and an armed career criminal, in violation of 18 U.S.C. 922(g)(1) and the Armed Career Criminal Act, 18 U.S.C. 924(e) (ACCA). ACCA imposes a mandatory minimum sentence of 15 years on a person who violates section 922(g) and has three previous convictions for a “serious drug offense,” a “violent felony,” or some combination of the two. In Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme Court struck down the “residual clause” portion of ACCA’s “violent felony” definition as unconstitutionally vague, leaving intact the definition’s “force clause,” which refers to offenses that have the use of physical force as an element, and its “enumerated felonies” clause, which lists several covered crimes. The Supreme Court later held that Johnson applied retroactively, and Mr. Jones filed for relief pursuant to 28 U.S.C. 2255. The district court denied relief, and Mr. Jones appealed to the Ninth Circuit. The Ninth Circuit observed that, because three of Mr. Jones’ five prior felony convictions were for armed robbery under Arizona Revised Statutes 13-1904, his ACCA sentence could stand only if this offense categorically qualified as an ACCA “violent felony.” It did not. Arizona Armed Robbery does not fall under the “force clause,” because it does not require the use of violent force. And it does not fall under the “enumerated felonies” clause, because robbery is not among the felonies enumerated. The court accordingly reversed the district court’s denial of Mr. Jones’ section 2255 motion.

(Congratulations to Assistant Federal Public Defender Keith J. Hilzendeger of Phoenix, Arizona.)

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United States v. Valdivia-Flores, 2017 WL 6044232 (9th Cir. Dec. 7, 2017): Because of Washington’s aiding and abetting statute, Washington drug-possession crime is not categorically an aggravated felony

Say what you will about Jose Valdivia-Flores — the guy loves this country. He came here illegally in 1995, pleaded guilty to a Washington drug-trafficking offense, was removed, returned illegally the next year, pleaded guilty to another crime, was removed to Mexico again in 2009, remained there “for a few days,” returned illegally again, pleaded guilty to illegal entry, was removed to Mexico again, and attempted to enter illegally once more using a false identity — whereupon he was arrested and charged with attempted illegal reentry and fraudulent use of an immigration document. At that point, he collaterally attacked the validity of his 2009 removal, arguing that it rested on the erroneous finding that his Washington drug-trafficking offense qualified as an aggravated felony pursuant to federal immigration law.

His first hurdle under 8 U.S.C. 1326(d) was to show that the denial of his right to appeal the 2009 removal violated his right to due process, despite the fact that at the time he had signed a form waiving that right. He cleared this hurdle by showing that his waiver was not considered and intelligent, because the form’s list of check-box options did not include a box for: “I want to contest the classification of my drug-trafficking conviction as an aggravated felony.” And it didn’t help that he was unrepresented and never appeared before an immigration judge who might have explained this option to him.