Federal Defenders of San Diego, Inc. takes great pride in our outstanding advocacy for our clients before the trial courts as well as on appeal before the United States Court of Appeals for the Ninth Circuit. Recent appellate successes of FDSDI attorneys include:

• United States v. Lopez, 998 F.3d 431, 433 (9th Cir. 2021).  The Ninth Circuit held, as a matter of first impression, that an individual is barred from safety valve relief under § 3553(f)(1) only if the individual has (A) more than four criminal-history points, (B) a prior three-point offense, and (C) a prior two-point violent offense.  In other words, “§ 3553(f)(1)’s ‘and’ is unambiguously conjunctive.  Put another way, we hold that ‘and’ means ‘and.’”

• United States v. Martinez-Lopez, ___ F. App’x ___,  2021 WL 351966 (9th Cir. Feb. 2, 2021).  The Ninth Circuit held the government breached the plea agreement when, due to a “miscommunication,” the attorney appearing at sentencing recommended a sentence inconsistent with the government’s prior Guideline calculations. The panel also held that upon remand the sentencing judge could not treat a prior California sentence to county jail as exceeding thirteen months in the absence of any evidence of a waiver under People v. Johnson, 82 Cal.App.3d 183, 147 Cal. Rptr. 55, 58 (1978). 
• United States v. Moran-Garcia, 966 F.3d 966 (9th Cir. 2020).  The Ninth Circuit vacated the conviction and remanded for dismissal of the indictment without prejudice because the government failed to establish sufficient evidence that venue was proper in the Southern District of California.
• United States v. Lara, 809 Fed. Appx. 421 (9th Cir. 2020). The Ninth Circuit remanded for the district court to modify the written judgment to conform to the oral pronouncement and vacated the district court’s imposition of a custodial sentence as a condition of supervised release. 
• United States v. Ballesteros, 816 Fed. Appx. 74 (9th Cir. 2020). The Ninth Circuit vacated conditions of supervised release that required client to refrain from assisting undocumented aliens and from associating with undocumented aliens.
• United States v. Razo, 789 F. App’x 78 (9th Cir. 2020). The Ninth Circuit remanded for a new trial because the district court erred by admitting material witness deposition testimony when the Government failed to carry its burden of showing that the material witness was unavailable to testify in person. 
• United States v. Gomez-Gomez, 788 F. App’x 469 (9th Cir. 2019). The Ninth Circuit remanded for resentencing because the district court committed plain error when it relied on a 2005 sentencing transcript without notifying the parties beforehand. 
• United States v. Castellanos, 803 F. App’x 90 (9th Cir. 2020). The Ninth Circuit remanded for resentencing because the district court erred by dividing the client’s continuous flight from Border Patrol into two segments and applying a § 2L1.1(b)(6) adjustment for the highway segment and the additional § 3C1.2 enhancement for the surface-street segment. 
• United States v. Jauregui, 918 F.3d 1050 (9th Cir. 2019). The Ninth Circuit vacated Mr. Jauregui’s sentence for conspiracy to import methamphetamine, because the sentence could not be supported by Mr. Jauregui’s admission that he conspired to import marijuana.
• United States v. Corrales-Vasquez, 931 F.3d 944 (9th Cir. 2019). The Ninth Circuit vacated a § 1325 conviction for eluding examination and inspection by immigration officers, because the government failed to prove the conduct occurred at a port of entry that was open for inspection.
• United States v. Cano, 934 F.3d 1002 (9th Cir. 2019). The Ninth Circuit held the search of a cell phone exceeded the proper scope of a border search in violation of the Fourth Amendment.
• United States v. Ochoa-Oregel, 904 F.3d 682 (9th Cir. 2018). The Court vacated Mr. Ochoa’s illegal-reentry conviction because both of his prior removal orders were fundamentally unfair.  The 2008 removal order was invalid because Mr. Ochoa’s California battery conviction was not a categorical crime of violence.  The defects in the 2008 removal hearing, in turn, infected Mr. Ochoa’s 2011 removal.
• United States v. Salinas-Mandujano, 735 F. App’x 421 (9th Cir. 2018). The Ninth Circuit vacated Mr. Salinas’s sentence for a second time.  The Court remanded for resentencing because it could not determine whether the district court was aware of its duty, when considering a minor-role adjustment under U.S.S.G. section 3B1.2,  to consider all likely co-participants in the offense.
• United States v. Sanchez-Martinez, 2018 WL 4090116 (9th Cir. 2018). The Ninth Circuit vacated Mr. Sanchez-Martinez’s conviction for importing drugs into the United States because the district court erred in denying his motion to dismiss the superseding indictment.  The superseding indictment was issued well past the 70-day speedy trial clock.
• United States v. Payne, 739 F. App’x 468 (9th Cir. 2018). The Court remanded Mr. Payne’s case for the district court (1) to clarify that the supervised release condition restricting access to the internet is aimed only at devices having the capacity to access child pornography and (2) to strike the family responsibilities condition.
• United States v. Urias-Espinoza, — F.3d —-, 2018 WL 493194 (9th Cir. Jan. 22, 2018). The Ninth Circuit reversed Mr. Urias-Espinoza’s conviction because the district court applied the wrong legal test to exclude evidence of third-party culpability. Under the right test, the evidence that his neighbor had prior convictions for importing and distributing drugs was relevant and admissible, as it showed the neighbor had the opportunity, motive, and knowledge to use Mr. Urias-Espinoza as an unknowing courier.
• United States v. Vargas-Estudillo, 706 Fed. App’x 434 (9th Cir. 2017). The Ninth Circuit held that the district court erred in denying Mr. Vargas-Estudillo’s discovery request for a list of witnesses who may have observed his interaction with Border Patrol agents at the Port of Entry. The Court therefore remanded for the district court to order production of the witness list and determine whether it would have led to information that might have altered the verdict.
• United States v. Tokunaga-Fujigaki, 708 Fed. App’x 368 (9th Cir. 2017). The Ninth Circuit remanded because the district court’s oral pronouncement did not include a term of supervised release, but the written judgment did. The Court ordered the district court, on remand, to strike the supervised release terms and make the written judgment conform to the oral pronouncement.
• United States v. D.M., 869 F.3d 1133 (9th Cir. 2017). The defendant appealed the denial of his motion for a sentence reduction under 18 U.S.C. section 3582(c)(2). The government agreed he was eligible for a sentence reduction under Amendment 759 to the Sentencing Guidelines but argued that the appeal was moot because he had already been released from federal prison. The Ninth Circuit held that the appeal is not moot and that the defendant was eligible for a sentence reduction. The Court remanded to the district court for resentencing.
• United States v. Zitlalpopoca, 2017 WL 4269006 (9th Cir. Sept. 26, 2017). The Ninth Circuit found that the district court committed procedural error at sentencing when it failed to adequately addressed the mitigation arguments raised in the defendant’s sentencing memorandum, specifically, those arguments that similarly situated defendants were given lighter sentences. The Court therefore remanded to the district court to consider the disparity argument and explain why it accepted or rejected that argument.
• United States v. Martinez, 850 F.3d 1097 (9th Cir. 2017). The Court reversed Mr. Martinez’s conviction for illegal reentry because the district court failed to consult with defense counsel before responding to a jury note, in violation of Federal Rule of Criminal Procedure 43 and the Sixth Amendment.
• United States v. Arriaga-Pinon, 852 F.3d 1995 (9th Cir. 2017). The Court vacated Mr. Arriaga’s sentence and remanded for resentencing because his prior conviction under California Vehicle Code section 10851(a) for unlawful driving or taking of a vehicle is not an aggravated felony theft offense, and he should not have received an eight-level enhancement.
• United States v. Mendoza-Peralta, 624 F. App’x 656 (9th Cir. 2017) (unpublished). The Court vacated Mr. Mendoza’s sentence because the district court, in imposing the condition of supervised release that he not access materials depicting sexually explicit conduct involving children and/or adults, failed to follow the heightened procedural requirements required to limit a particularly significant liberty interest. The court’s comments further made it unclear whether it was not intending to implicate such a particularly significant liberty interest.
• United States v. Sanchez-Gomez,859 F.3d 649 (9th Cir. 2017), cert. granted in part, 138 S. Ct. 543 (U.S. Dec. 8, 2017) (No. 17-312).The Ninth Circuit, sitting en banc, held that before a presumptively innocent defendant may be shackled in a courtroom, the district court must make an individualized decision that a compelling government purpose would be served, and that shackles are the least restrictive means of maintaining courtroom order and security. The district court cannot delegate that individualized decision to the U.S. Marshals.
• United States v. Salinas-Mandujano, 691 Fed. App’x 842 (9th Cir. May 31, 2017). The Court vacated Mr. Salinas’s sentence and remanded for resentencing because it was unclear whether the district court followed the amended minor-role Guidelines and considered all of the required factors.
• United States v. Miguel-Mariano, 2016 WL 7422716 (9th Cir. December 23, 2016). The Ninth Circuit remanded for resentencing because the district court improperly treated the prior Nevada coercion conviction as a “crime of violence” warranting a 16-level sentencing enhancement under the Guidelines.
• United States v. Santos-Cordero, 2016 WL 5404068 (9th Cir. September 28, 2016). The Ninth Circuit remanded the case to the district court to conduct a proper analysis under Batson v. Kentucky, 476 U.S. 79 (1986), because the district court improperly offered its own speculative reason as to why the prosecutor may have challenged the juror.
• United States v. Soto-Zuniga, 837 F.3d 992 (9th Cir. September 2016).  The Ninth Circuit vacated Mr. Soto’s conviction and remanded to the district court to grant a discovery request challenging the constitutionality of the San Clemente checkpoint and to order the government to disclose its investigation into a smuggler’s use of juveniles. The defendant was stopped at the San Clementine immigration checkpoint. The officer supposedly suspected the defendant, a lawful permanent resident, was smoking marijuana, and a subsequent search found methamphetamine in a backpack. The defendant challenged the constitutionality of the checkpoint search, asking for statistics of drug arrests versus immigration interdictions. The court denied the request under Armstrong. The court also denied disclosure to the defense of a government investigation into a smuggling operation using juveniles. The defendant had argued that he had picked up juveniles who left the backpack in the vehicle. The Ninth Circuit found the defendant had made sufficient showing under Armstrong of a need for statistics to challenge the constitutionality of the checkpoint stop. The defendant was also entitled to the investigation to support his theory that someone else was responsible, even if the discovery was replete with hearsay.