Shortly before I moved on after 28 years of work as a Federal Public Defender, one of the younger attorneys I had the honor to mentor forwarded me an e-mail he'd received from an Assistant United States Attorney. The e-mail complained that my younger colleague was being extremely frustrating, that my colleague was making far too much of a "simple little case," that the client in the case was going to be deported no matter what, and that my colleague was forcing the prosecutor to "expend[ ] a tremendous amount of effort" on what the prosecutor characterized as a "silly issue." He ended his e-mail by asking, "Have you been hanging out with Carl Gunn?"
Some people would have been insulted by this, but I felt rather proud. Making as much as we can out of what the government sees as "simple little cases," litigating issues despite the government's view that they might be "silly," and "expend[ing] a tremendous amount of effort" on behalf of clients who have the full weight of the government thrown up against them – often with the government's view that the case is open and shut, or "simple" – is our calling as public defenders and defense attorneys. We all have our different reasons for doing it, but it's a crucial task – for our clients, our system, and ourselves. As Sir Thomas More was said to say in "A Man for All Seasons" in response to his future son-in- law's exclamation that he'd "cut down every law in England" to get at the devil: "Oh, and when the last law in England was down and the Devil turned round on you – where would you hide, Roper, all the laws being flat?"
I'm proud if "hanging out with Carl Gunn" means not just accepting the government's view that cases are "simple" and "little," that issues are "silly," and that we shouldn't expend resources on our clients. Hence the name of this blog: "Hanging out with Carl Gunn." I hope to offer some thoughts and ideas that the government may think are "silly," but I respectfully don't; that you can use in cases that the government may think are "simple," but aren't so simple when looked at more critically; and that are an entirely appropriate way to expend our resources. And in the spirit of this being a "hanging out" together, there might be guest bloggers from time to time with their "silly" ideas to offer. I hope you find some of the ideas on this blog helpful and offer whatever comments you might have to add to them.
Some Last Thoughts on the Categorical Approach -- From a Guest
This week, we have a guest blogger – Deputy Federal Public Defender Sam Josephs. Sam clerked for both District Judge William Pauley in New York and Ninth Circuit Judge M. Smith. Sam had the good sense to choose California over New York and has been a deputy with the Federal Public Defender in Los Angeles since September, 2010. He was the recipient of the "Hanging out with Carl Gunn" e-mail that led to the title of this blog, as described in the lefthand column. He has a particular interest in categorical approach and related sentencing enhancement issues.
- Litigate even issues that seem foreclosed because law in this area changes often
- Ninth Circuit has overruled its prior decisions on numerous occasions based on change in the law
- Supreme Court has been active in this area so watch for circuit splits
NOW THE BLOG:
Carl’s examples illustrate the type of creative arguments that have prevailed in a number of cases. Those arguments have resulted in opinions excluding certain offenses, at least under the categorical approach, from consideration under the Armed Career Criminal Act, career offender guideline, illegal reentry guideline, and various immigration law provisions.
But there’s been so much change in the law over the last three or four years, it’s important to continue to litigate these issues, even if the Ninth Circuit has seemingly foreclosed them.
Here’s an example: In United States v. Terrell, 593 F.3d 1084, 1089-90 (9th Cir. 2010), the court held that Arizona’s version of sexual assault qualifies as a "violent felony" under the so-called "residual clause" of the Armed Career Criminal Act, allowing a prior sexual assault conviction to trigger the fifteen-year mandatory minimum sentencing enhancement. The residual clause, also found in the career offender provision of the Guidelines, defines as a "violent felony" or "crime of violence" an offense that "involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii); U.S.S.G. § 4B1.2(a). The Arizona statute defines sexual assault to include situations in which there is no force or threat of force used -- such as instances in which the victim is incapable of consenting to sexual conduct because of mental disorder, drugs, or "other similar impairments known to the defendant."
Terrell, 593 F.3d at 1089. In finding the offense qualifies as a "violent felony," the court compared the Arizona law to simple rape, reasoning that the "typical" rape case involves violence and aggression.
Judge M. Smith wrote a persuasive dissent from the denial of rehearing en banc in Terrell, joined by Chief Judge Kozinski, and Judges Pregerson and Reinhardt.
See United States v. Terrell, 621 F.3d 1154 (9th Cir. 2010). The dissenting judges pointed out that, in addition to qualifying as a "violent felony" under the Armed Career Criminal Act,
Terrell probably means that a sexual assault offense also qualifies as a "forcible sex offense[ ]", and thus a "crime of violence" under the career offender guideline, even if it does not require any force.
See id. at 1160-61. Note that the
Terrell panel opinion doesn’t expressly consider whether a sexual assault offense not requiring force is a "crime of violence" for career offender purposes, so defense attorneys should still be challenging those priors, perhaps making many of the same arguments raised by Judge M. Smith in his dissent.
The dissent’s argument also provides a good road map for challenging Terrell’s holding with respect to the Armed Career Criminal Act. For example, the dissent points out that in
Chambers v. United States, 555 U.S. 122 (2009), the Court required that the government point to more than a few examples in order to show that the "typical" set of facts underlying a particular offense "involves conduct that presents a serious potential risk of physical injury to another." Defense attorneys should be citing to this aspect of
Chambers, and arguing that the burden is on the government to prove the "typical" case.
Defense attorneys should also look to out-of-circuit cases that have interpreted the more recent Supreme Court decisions -- Begay,
Sykes -- as a way of litigating issues that may seem foreclosed under older circuit precedent. The Ninth Circuit has certainly been willing to reconsider its prior opinions in light of intervening case law in other instances; see as one example the en banc decision in
Ruiz-Fernandez, 466 F.3d 1121 (9th Cir. 2006) (en banc) and cases applying and extending it outside its particular facts. One case from another circuit that has done this specifically with rape is
United States v. Owens, 672 F.3d 966 (11th Cir. 2012). In that case, the court overruled prior circuit case law, and held that neither second degree rape nor second degree sodomy under Alabama law qualify as a "violent felony" under the Armed Career Criminal Act.
The second degree rape statute at issue in Owens is strikingly similar to the sexual assault statute addressed in
Terrell -- both require only slight penetration, and lack of consent is defined to include mental incapacity. It could provide an avenue to seek en banc review -- or perhaps certiorari -- based on a split in the circuits. Remember Carl’s point in his first post on the categorical approach (see "Recent Posts" in the righthand column) that this is an area in which the Supreme Court has taken a number of cases.
Carl Gunn was an Assistant Federal Public Defender for over 28 years from 1983 through 2011, mostly in the Los Angeles office, but with additional three-year and four-month stints in Tacoma, Washington and Anchorage, Alaska, respectively. During much of his tenure, he supervised, trained, and/or mentored newer attorneys. He is now of counsel at Kaye, McLane, Bednarski & Litt, where he specializes in federal criminal appellate practice and motions and sentencing support. He has a reputation for raising issues that lead prosecutors to make comments such as the one discussed in the far left column of this blog. Those comments also reflect prosecutorial concern about the successful outcomes raising such issues can produce – whether it's getting an acquittal, getting charges dismissed, or getting a much lower sentence or favorable plea agreement. For more on Mr. Gunn and the other attorneys at Kaye, McLane, Bednarski & Litt, Click Here.