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http://www.ca9.uscourts.gov/datastore/opinions/2009/02/10/0710368.pdf
Opinion by Judge Reinhardt
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After pleading guilty to a multiple-count indictment charg- ing, inter alia, two independent firearms counts under 18 U.S.C. § 924(c), Jose and Abraham Beltran-Moreno benefit- ted from the district court’s erroneous construction of that statute at sentencing. They should have quit while they were ahead.
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This was error, the result of which was the calculation of a mandatory minimum sentence of twenty years, which was twenty years lower than that required by statute, a sentence that would seem quite reasonable, but for the Court’s decision in Deal. Remarkably, the defendants’ good fortune did not stop here. Under the United States Sentencing Guidelines, each defendant’s offense conduct established an offense-level score of over forty-two points. Regardless of a defendant’s criminal history, the Guidelines recommend that someone convicted of so high an offense level be sentenced to no less than life in prison. See U.S.S.G. § 5A. However, as has been clear since United States v. Booker, 543 U.S. 220 (2005), the Sentencing Guidelines are now merely advisory. The Beltrans were fortu- nate enough to be sentenced by a district judge who appears to have taken Booker’s mandate to heart. Taking into account the defendants’ characteristics, the nature of their crimes, and other relevant factors, the district judge exercised his discre- tion under 18 U.S.C. § 3553(a) to depart downward from the Guidelines recommendation, sentencing the defendants to thirty-five years in prison instead of imprisoning them for the rest of their lives as the Guidelines suggest, but no longer mandate. In the end, the defendants did not just avoid life sentences. Because of the district court’s unawareness of Deal, they received sentences five years below the mandatory minimum. Such good fortune does not come often in our criminal justice system, especially in prosecutions under § 924(c), which fre- quently result in extremely harsh sentences. Cf. United States v. Hungerford, 465 F.3d 1113, 1119 (9th Cir. 2006) (Rein- hardt, J., concurring in the judgment) (criticizing a sentence of 159 years imposed pursuant to § 924(c) on “a 52 year-old mentally disturbed woman with no prior criminal record” who never touched a gun and believed herself to be actually inno- cent); United States v. Harris, 154 F.3d 1082, 1084 (9th Cir. 1998) (“urg[ing] Congress to reconsider its scheme of manda- tory consecutive minimum sentences”). As a result of the dis- trict court’s exercise of discretion and its separate statutory miscalculation, the Beltrans dodged two bullets: the Guide- lines’ recommended life sentence, and the mandatory mini- mum sentence required by § 924(c). [1] The Beltrans’ trial counsel had the good sense not to object to the district court’s sentence, which — given that it was lower than legally permitted — was certainly better than they could have possibly imagined. Their appellate counsel, however, have exhibited anything but good sense. For reasons beyond our understanding, the Beltrans have appealed their sentences, arguing that instead of imposing a mandatory mini- mum of twenty years, the district court should have consoli- dated the two § 924(c) sentences into a single five-year term and imposed a fifteen-year minimum sentence for each of them. This argument is squarely foreclosed by decades-old circuit precedents.
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Counsel do not urge us to reconsider any of these precedents; rather, they appear simply to be ignorant of the controlling law.
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[2] In short, if the Beltrans’ sentences were to be altered, there appears to be only one direction in which they could go, and that is up — by at least five years. Fortunately for the defendants, in a decision issued one year after they filed their notices of appeal, the Supreme Court held in a case with simi- lar facts to this one that an appellate court cannot raise a defendant’s sentence if the government has not appealed, even to raise the sentence to the statutorily required minimum. See Greenlaw v. United States, 128 S. Ct. 2559, 2562 (2008). Here, the government has for some reason — we would like to think out of a sense of justice or mercy — exercised its dis- cretion not to seek on appeal the additional years of incarcera- tion for which the statute provides. This decision alone has saved one of the Beltrans, Abraham, from a higher sentence, despite his counsel’s efforts to the contrary. [3] The other appeal, Jose’s, is more brazen, and accord- ingly holds more potential for self-immolation. Jose does not simply challenge the computation of the mandatory minimum sentence under § 924(c), but also challenges the district court’s exercise of its discretion in imposing a thirty-five year sentence instead of the recommended term of life in prison. Jose believes the thirty-five year sentence is unreasonably high as well as procedurally invalid and asks us to vacate it and remand for resentencing. Although the Supreme Court has observed that, were we to remand the matter, the district court would not be permitted to raise Jose’s mandatory mini- mum sentence sua sponte following the government’s failure to appeal, see Greenlaw, 128 S.Ct. at 2570 n.8, it is hard to imagine that were we to vacate the sentence and instruct the district court to start its reasonableness analysis anew, as Jose asks, it would ignore the fact that its original sentence was statutorily impermissible. In other words, were Jose to prevail on his challenge to the substantive and procedural validity of his sentence, we cannot imagine that he would receive a more favorable sentence, although he might very well receive a higher one. Compare id., with id. at 2576 n.2 (Alito, J., dis- senting) (discussing Booker remands resulting in higher sen- tences). [4] The odd posture of Jose’s appeal brings to mind Oscar Wilde’s oft-noted adage: “When the gods wish to punish us, they answer our prayers.” Judges, however, are not gods, and, fortunately for Jose, there is no basis in the law to grant his prayer for “relief.” The district court’s sentence was procedur- ally sound under § 3553(c), as it adequately explained the rationale for its discretionary decision to depart downward from the recommended life sentence. Nor could the sentence possibly be unreasonably high as a substantive matter, as it was lower than legally permitted. Cf. United States v. Valente, 961 F.2d 133, 134 (9th Cir. 1992) (“[D]istrict courts do not have discretion to depart downward from mandatory mini- mum sentences imposed by statute.”). Thus, Jose’s appeal fails on both grounds, thereby sparing him from the adverse consequences he likely would have suffered had he suc- ceeded.
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We hope that this case will serve as a strong warning for the defendants’ appellate counsel. Only by the unanticipated fortuity of Greenlaw, combined in Jose’s case with a failure to present persuasive arguments on the merits, have counsel avoided a disposition that would have raised their clients’ terms of incarceration by at least five years and, at least in Jose’s case, likely far more. Moreover, at the time the Bel- trans filed their appeal they did not know whether the govern- ment would file a cross-appeal, cf. Fed. R. App. P. 4(b)(1)(B)(ii); if it had, its success would have been inevitable and the imposition of higher sentences unavoidable.
[5] “The right to counsel plays a crucial role in the adver- sarial system embodied in the Sixth Amendment, since access to counsel’s skill and knowledge is necessary to accord defen- dants the ‘ample opportunity to meet the case of the prosecu- tion’ to which they are entitled.” Strickland v. Washington, 466 U.S. 668, 685 (1984) (emphasis added) (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 275-76 (1942)). We remind counsel that the professional norms that establish the constitutional baseline for their effective perfor- mance indisputably include the duty to research the relevant case law and to advise a client properly on the consequences of an appeal. While it is ultimately the client’s right to pursue an appeal, we seriously question the quality of counsel’s advice when an appeal with essentially zero potential benefit and a significant opportunity for harm is pursued in such a manner as this one has been. We also remind counsel of their ethical obligations not to present arguments to this court that are legally frivolous. Fortunately, in this instance, counsel did no serious harm to their clients, and have escaped this appeal without the imposition of sanctions. However, in the future, we caution counsel to be more diligent, for their own sakes and, more important, for their clients’.
The court refused to hold oral argument. That was a mistake. I wanted to hear it. What fun! Oh well.
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