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. Esparza, 2015 WL 3938093 (9th Cir. June 29, 2015). The Ninth Circuit vacated Mr. Esparza's conviction for importing methamphetamine because the government's introduction of DMV documents violated the Confrontation Clause. The documents were testimonial within the meaning of Crawford because they were prepared in anticipation of litigation.
· United States v. Bibo-Lopez, 2015 WL 3898652 (9th Cir. June 25, 2015) (unpublished). The Ninth Circuit vacated Mr. Bibo's sentence because the district court sentenced him above the mandatory minimum based in part on the risk that he would graduate from observing child pornography to actual conduct -- a finding that had no support in the record and was clearly erroneous.
· United States v. Morales-Landa, 2015 WL 3826643 (9th Cir. June 22, 2015) (unpublished). The Ninth Circuit agreed that Utah Code section 76-5-404.1(2) is broader than the generic offense of sexual abuse of a minor because it criminalizes non-sexual conduct. The Court further held that the statute is not divisible under Descamps because the two prongs of the intent element are alternative means of satisfying a single intent element. As a result, Mr. Morales was not convicted of an aggravated felony, and the entry of his removal order was fundamentally unfair. The cCourt accordingly reversed the district court's denial of Mr. Morales's motion to dismiss the illegal-reentry indictment.
· United States v. Sanchez-Soto, 2015 WL 3757775 (9th Cir. June 17, 2015) (unpublished). The Ninth Circuit vacated Mr. Sanchez's conviction for importing cocaine because the statement made by his wife during a jail call with him was improperly admitted as an adoptive admission and because the prosecutor's closing argument improperly referred to facts not in evidence and misstated evidence that was introduced at trial.
· United States v. Alcantara-Castillo, 2015 WL 3619853 (9th Cir. June 11, 2015). Reviewing for plain error, the Ninth Circuit vacated Mr. Alcantara-Castillo's conviction for illegal reentry due to the government's improper cross-examination at trial. The prosecutor improperly asked Mr. Alcantara to comment on the veracity of a government agent's testimony, violating the province of the jury to assess facts. Additionally, the government improperly vouched for the agent's credibility in rebuttal closing when the prosecutor compared Mr. Alcantara's motive to tell the truth with that of a border patrol agent who was "sworn to uphold the law."
· United States v. Lugo, 2015 WL 3372374 (9th Cir. May 26, 2015) (unpublished). Reviewing for plain error, the Ninth Circuit vacated Ms. Lugo's conviction for importing methamphetamine because the prosecutor made a number of improper arguments during closing and rebuttal closing. Specifically, the prosecutor argued facts not in evidence, used the TECS records of Ms. Lugo's prior border crossings as improper propensity evidence, and diluted the government's burden of proof.
· Camacho-Garcia v. Lynch, 786 F.3d 789 (9th Cir. 2015). The Ninth Circuit held that the BIA should have granted Mr. Garcia's motion for reconsideration because the Immigration Judge incorrectly advised him that his prior conviction, California Penal Code § 487(a) (theft), was for an aggravated felony and that he was therefore ineligible for relief from removal. As a result, his waiver of his right to appeal to the BIA was not considered and intelligent.
· United States v. Urrutia-Contreras, 782 F.3d 1110 (9th Cir. 2015). The Ninth Circuit vacated Mr. Urrutia's sentence and remanded for resentencing because the district court committed procedural error by failing to solicit the government's position with respect to sentencing for a violation of the terms of supervised release.
· United States v. Bravo-Rosas, 2015 WL 1619458 (9th Cir. Apr. 13, 2015) (unpublished). The Ninth Circuit vacated Mr. Bravo's illegal reentry conviction and remanded for further proceedings related to his motion to dismiss the indictment. Specifically, the Ninth Circuit found that his prior removal hearing did not comport with due process, and remanded for the district court to conduct a prejudice inquiry in the first instance in light of United States v. Raya-Vaca.
· United States v. Franco, 2015 WL 1812818 (9th Cir. Apr. 22, 2015) (unpublished). Mr. Franco challenged two conditions of his supervised release which prevented him from living with his mother and brother in the family home. After his case was submitted, the California Supreme Court held as unconstitutional the blanket enforcement of sex offender residency restrictions in San Diego County. This holding was later extended to apply statewide. California will now consider each offender's individual circumstances in crafting residency restrictions. The Court therefore remanded the matter to the district court, in light of these new developments in California law, to determine where Mr. Franco may live while serving the remainder of his term of supervised release.
· United States v. Garcia, 599 Fed. App'x 775 (9th Cir. Apr. 15, 2015) (unpublished). Mr. Garcia appealed the district court's revocation of supervised release after he sustained a new conviction for misdemeanor illegal entry. Mr. Garcia argued that there was insufficient evidence to establish that he was found in the United States. The Ninth Circuit agreed, reversed the revocation of supervised release, vacated his revocation sentence, and remanded to the district court.
· United States v. Zaragoza-Moreira, 780 F.3d 971 (9th Cir. 2015). The Ninth Circuit vacated Ms. Zaragoza's conviction, with directions to dismiss the indictment, where the government's failure to preserve video footage of the Port of Entry, potentially useful evidence for a duress defense, was in bad faith, and there was no comparable evidence to the video recordings to support her duress defense.
· United States v. Cruz, 592 Fed. App'x 623 (9th Cir. Feb. 18, 2015) (unpublished). The Ninth Circuit vacated Mr. Cruz's conviction for prosecutorial misconduct after the government told the jury in rebuttal closing argument to "do the right thing and make him finally take responsibility for what he did."
· Jones v. Cate, 590 Fed. App'x 701 (9th Cir. Jan. 22, 2015) (unpublished). The Ninth Circuit held that Christopher Jones was entitled to equitable tolling to excuse his failure to file a timely habeas petition in district court. Due to his mental impairment, Mr. Jones was unable to meet the filing deadline, and he diligently pursued available remedies. The Court therefore reversed and remanded.
· United States v. Beltran-Sandoval, 590 Fed. App'x 685 (9th Cir. Jan. 14, 2015) (unpublished). The Ninth Circuit granted the motion to dismiss the indictment under 8 U.S.C. § 1326(d). Although Mr. Beltran was removable due to his conviction for a crime of violence, he nevertheless had a plausible claim to a 212(h) waiver given his deportation would result in extreme hardship to his U.S. citizen daughter, who suffered from developmental disabilities. Since the Immigration Judge failed to advise Mr. Beltran of his eligibility for a 212(h) waiver, his removal proceedings were fundamentally unfair, and the resulting removal order cannot be used to sustain his illegal reentry conviction. The 9th circuit remanded to the district court to determine whether a visa would have been available for Mr. Beltran had he sought to adjust his status.
· United States v. Gnirke, 775 F.3d 1155 (9th Cir. 2015). Mr. Gnirke appealed a special condition of supervised release prohibiting him from possessing depictions of "sexually explicit conduct" involving children or adults and from patronizing any place where such depictions are available. The Ninth Circuit narrowed the condition so that it does not prohibit Mr. Gnirke's access to non-pornographic depictions of adults because such speech is protected by the First Amendment.
· United States v. Sanchez-Carrillo, 588 Fed. App'x 571 (9th Cir Dec. 12, 2014) (unpublished). The Ninth Circuit vacated Mr. Sanchez's sentence because the district court relied on a clearly erroneous finding that Mr. Sanchez had previously smuggled ten pounds of methamphetamine. There was no proof regarding either the type or quantity of drugs involved in the prior incident.
· United States v. Camou, 773 F.3d 932 (9th Cir. 2014). The Ninth Circuit held that a border patrol agent's warrantless search of a cell phone did not fall within the exception to the warrant requirement for searches incident to arrest, exigent circumstances, the vehicle exception, the inevitable discovery exception, or the good faith exception to the exclusionary rule. The Court therefore vacated Mr. Camou's conviction and reversed the district court's denial of his motion to suppress.
· United States v. Varelas-Garcia, 585 Fed. App'x 630 (9th Cir. Nov. 7 2014) (unpublished). The Ninth Circuit vacated Mr. Varelas's sentence because the district court plainly erred in the modified categorical approach by relying on the factual description in the PSR alone, rather than consulting the record-of-conviction documents.
· United States v. Raya-Vaca, 771 F.3d 1195 (9th Cir. 2014). The Ninth Circuit vacated Mr. Raya-Vaca's conviction for illegal reentry because the predicate expedited removal proceeding was fundamentally unfair. Specifically, the immigration officer did not comply with the regulation that aliens in expedited removal proceedings be advised of charges against them and be permitted to read the sworn statement prepared in their names. Moreover, Mr. Raya-Vaca suffered prejudice because he plausibly could have been granted relief in the form of withdrawal of his application.
· United States v. Bayardo-Garcia, 590 Fed. App'x 660 (9th Cir. Oct. 24, 2014) (unpublished). The Ninth Circuit vacated Mr. Bayardo's conviction for illegal reentry because the expedited removal proceeding resulting in the predicate order of removal was fundamentally unfair. Specifically, the immigration officer's failure to read Mr. Bayardo portions of the Form I-867A deprived him of knowledge that he could be barred from the country for five years. Had Mr. Bayardo known about the drastic consequences of expedited removal, he would have requested that his application be withdrawn, which was a plausible form of relief.
·United States v. Andrade-Castillo, 585 Fed. App'x 346 (9th Cir. Oct. 7, 2014) (unpublished). The Ninth Circuit held that district courts may not consider as a sentencing factor the costs of apprehending and prosecuting an individual for repeated illegal reentry, and remanded for district court "to clarify the basis for its sentence...."
· United States v. Aguilera-Rios, 769 F.3d 626 (9th Cir. 2014). The Ninth Circuit vacated Mr. Aguilera's conviction for illegal reentry because the entry of his prior removal order was fundamentally unfair. Specifically, he was previously removed on the basis that his California conviction was a federal firearms aggravated felony, but the Supreme Court's recent decision in Moncrieffe v. Holder confirmed that his California conviction was not a categorical match with a generic firearms aggravated felony. The Court also held that it was appropriate to look to Moncrieffe as controlling authority, even though it came down after Mr. Aguilera's removal hearing, because he was challenging whether he was, in fact, removable at the deportation hearing, not whether he was eligible for relief.
· United States v. Lopez-Chavez, 757 F.3d 1033 (9th Cir. 2014). The Ninth Circuit vacated Mr. Lopez-Chavez's conviction for illegal reentry because the underlying order of removal was fundamentally unfair. At the removal hearing, his immigration attorney provided ineffective assistance of counsel by conceding that his state conviction was an aggravated felony, failing to appeal the removal order to the Board of Immigration Appeals, and failing to petition the Seventh Circuit for review. Had his counsel not performed deficiently, Mr. Lopez-Chavez would not have been removed.
· United States v. Pimental, 755 F.3d 1095 (9th Cir. 2014). The Ninth Circuit held that the district court clearly erred when it determined that the delay in presenting Mr. Pimental to a magistrate judge was reasonable and necessary. Because the Court concluded that Mr. Pimental's statements should have been suppressed under the McNabb-Mallory rule and statute, it reversed the district court's denial of his suppression motion, and vacated his conviction.
· United States v. Contreras-Martinez, Fed. App'x 660 (9th Cir. June 10, 2014). The Ninth Circuit vacated Mr. Contreras's sentence because the district court erroneously applied a sixteen-level enhancement on the basis that his prior conviction for Oregon third-degree rape was a categorical crime of violence. The Court held that Oregon third-degree rape is broader than the generic federal definition, which requires a four-year age difference between the victim and defendant.
· United States v. Medina-Castro, 575 Fed. App'x 800 (9th Cir. May 28, 2014) (unpublished). The Ninth Circuit vacated Mr. Medina's sentence and remanded to a different district court judge for resentencing because it found that the district court improperly sentenced Mr. Medina as a knowing drug smuggler. The district court's factual finding that Mr. Medina knew about the 17.88 kilograms of methamphetamine was not supported by a preponderance of the evidence, and the court relied on false and unreliable information in concluding so.
· United States v. Ramirez-Estrada, 749 F.3d 1129 (9th Cir. 2014). The Ninth Circuit vacated Mr. Ramirez's conviction based on a Doyle error (use of post-Miranda silence to impeach a testifying defendant). The government's impeachment about booking questions commented on Mr. Ramirez's silence (what he did not say), and the error was prejudicial.