• Decision on Appeal,  Sentencing

    When the Attorney General agrees with you

    Respondents sometimes must concede minor points along the way while arguing that such points do not require reversal. But seldom does one see the respondent agree that a judgment is even partially reversible. One is more likely to see it in a criminal appeal than in a civil appeal, especially when the criminal appeal involves errors in sentencing, as in People v. Frausto, case no. B212054 (2d Dist. Dec. 28, 2009), where the attorney general agreed that the trial court erred in imposing three cumulative 5-year sentencing enhancements under Penal Code section 667, subdivision (a)(1) for each of three prior serious felony convictions tried in a single proceeding and that…

  • Appellate Jurisdiction,  Appellate Procedure,  Criminal Procedure,  Federal Procedure,  Plea Bargains,  Sentencing,  Waiver of Issues

    Waiver of Appeal Rights in Plea Agreements

    Plea agreements often waive the right to appeal, but they aren’t always what they seem, especially when it comes to how they define the scope of the waiver. For a lesson in how to determine whether a defendant has waived the right to bring a particular appeal, check out United States v. Cope, case no. 06-50441 (9th Cir. June 4, 2008). Cope pled guilty to a single count of possession of child pornography and was sentenced to 120 months imprisonment and lifetime supervised release. His plea agreement stated that he waived appeal of his sentence so long as it met three criteria. On appeal, he challenged the length of his…

  • Appellate Jurisdiction,  Appellate Procedure,  Federal Procedure,  Sentencing

    Ninth Circuit Amends Garcia on Appellate Jurisdiction

    According to Ninth Circuit Blog, the Ninth Circuit “came to its jurisdictional senses” with its amended opinion in U.S. v. Garcia, case no. 05-30356 (9th Cir. Nov. 19, 2007, amended Apr. 17, 2008). While I might have said that a little more gently, I agree with the sentiment. I covered the relevant holding regarding appellate jurisdiction in my original coverage: The two defendants challenging their sentences in this case claimed that the trial court erred even though the sentences imposed were within the ranges stipulated in their respective plea agreements made under Federal Rule of Criminal Procedure 11(c)(1)(C). Both defendants contended that the trial court’s miscalculation under the sentencing guidelines…

  • Criminal Procedure,  Immigration,  Judgment,  Sentencing

    Be Careful with those Plea Agreements

    Be very, very careful with the language of your plea agreement. After all, it’s a contract, and deserves the same careful consideration before entering into it. You might live to regret it, even if it takes 20 years for it to catch up with you, as happened to the defendant in People v. Paredes, case no. D050150 (4th Dist. Feb. 26, 2008). Paredes, a legally resident alien, pleaded guilty to voluntary manslaughter in 1987 in part because the prosecutor agreed to a “JRAD” — a judicial recommendation against deportation — that, under 1987 federal law, precluded the government from removing him from the country on the basis of the conviction.…

  • Appellate Jurisdiction,  Appellate Procedure,  Federal Procedure,  Sentencing

    Is a Sentence within the Range Stipulated in a Plea Agreement Appealable?

    UPDATE (4/23/08): The holding described in this post was changed by the court’s amended opinion of April 17, 2008).  See my coverage. The Ninth Circuit rejects such a challenge in U.S. v. Garcia, case no. 05-30356 (9th Cir. Nov. 19, 2007), at least where the plea agreement was not contingent on the sentencing guidelines and the only error asserted was a miscalculation of the guidelines or failure to properly consider the factors in Title 18 United States Code section 3553. The two defendants challenging their sentences in this case claimed that the trial court erred even though the sentences imposed were within the ranges stipulated in their respective plea agreements…

  • Criminal Procedure,  Federal Procedure,  Plea Bargains,  Sentencing

    Summary Rejection of Plea Agreement is Error

    It’s not often that you see an opinion on a writ petition start with a statement that the trial court erred but the writ is denied. The reason for that sort of introduction in Morgan v. U.S. District Court (D.Ariz.), case no. 07-70201 (9th Cir. Oct. 9, 2007), is because the petitioner sought just a little more relief than he was entitled to. Morgan accepted a plea agreement that included a sentencing term pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). So far, so good. The stipulated sentence was near the upper limit of the guidelines but the district court opined that an upward departure may be appropriate. This led…

  • Criminal Procedure,  Sentencing

    The Limited Retroactivity of Cunningham

    If you had been convicted of a crime and either exhausted or foregone your right of appeal, and then the United States Supreme Court decided a case that suggests your sentencing was error, you’d file a habeas petition, wouldn’t you?  Of course you would. But you’d be out of luck in California if the U. S. Supreme Court case you were counting on was Cunningham v. California (2007), ____ U.S. ____ [127 S.Ct. 856], in which the Supreme Court held that upper term sentences may not be imposed based on facts found by the court rather than the jury beyond a reasonable doubt.  In In re Gomez, case no. B197980…

  • Federal Procedure,  Ninth Circuit,  Sentencing

    Grandstanding Does Not Equal Intent

    I watched the movie Minority Report last night.  It’s about a “precrime” department of the Washington, D.C. police department around 50 years in the future that, through the use of visions recorded from three gifted “precognitive” individuals, arrests persons for future murders they were going to commit.  The murder rate in D.C. drops to zero.  I recommend the movie, especially if you’re a sci-fi fan. Coincidentally, today the Ninth Circuit issues United States v. Jimison, case no. 06-30417 (July 16, 2007), in which Judge Kozinski frames the issue as “when a defendant can be subject to a sentencing enhancement” under U.S. Sentencing Guidelines “for possessing a firearm in connection with…

  • Federal Procedure,  Ninth Circuit,  Sentencing

    Ninth Circuit Allows 35-Year-Old Conduct to Enhance Child Porn Conviction

    The decision begins: “This appeal tests the temporal and relational limits of prior conduct as a sentencing enhancement.”  That seems to be putting it mildly.  In U.S. v. Garner, case no. 06-10417 (June 18, 2007), the Ninth Circuit allows the defendant’s sexual abuse of his children more than 35 years ago to be considered in enhancing his sentence for attempted receipt and distribution of child pornography.  The court finds no time or relationship limitations built into the “pattern of activity involving the sexual abuse or exploitation of a minor” requirement for enhancement under section 2G2.2(b)(5) of the Sentencing Guidelines. Nothing from Ninth Circuit Blog yet (which is almost certain to…

  • Criminal Law,  Federal Procedure,  Ninth Circuit,  Sentencing

    Ninth Circuit: Prior Conviction of Any Age May be Used to Enhance Sentence for Illegal Entry

    Joining the Tenth and Eleventh Circuits, the Ninth Circuit holds that there is no limit on the age of convictions that may be used under section 2L.1.2 of the 2003 Sentencing Guidelines to enhance a sentence on a conviction for entering or remaining in the United States illegally. The defendant in this case was apprehended in 2003 and the trial court correctly considered convictions from 1972 and 1976. The case is United States v. Olmos-Esparza, Ninth Circuit case no. 06-50276 (April 24, 2007). UPDATE: Jon Sands at Ninth Circuit Blog gives his detailed take on the case here. CORRECTION: The author at Ninth Circuit Blog is Steve Kalar, posting here.