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SAN FRANCISCO � Federal defense lawyers in the West have been hopping mad in recent weeks over 9th U.S. Circuit Court of Appeals rulings that have been “all over the map” on the esoteric issue of appellate jurisdiction to review plea bargained sentences. While Congress may step in to strip appellate judges of jurisdiction to review some appeals from time to time, it is another thing for appellate courts to freely relinquish it, as in a Washington state drug case. Adrian Garcia pleaded guilty to a drug conspiracy that fell within a specified sentence range. Under Federal Rule of Criminal Procedure 11(c)(1)(C), Garcia could withdraw his guilty plea if the judge did not go along with the sentence terms. U.S. v. Garcia, 2007 WL 4096184. Garcia availed himself of that right and appealed his top-of-the-range sentence, arguing that the judge used too lax a standard of proof to establish the drug quantity involved. The greater the drug quantity, the longer the sentence will be under the Federal Sentencing Guidelines. The 9th Circuit held in a November decision that it did not have jurisdiction to review a sentence imposed in accordance with the plea deal. “They have created a new jurisdiction stripping rule . . . when they could have dealt with the case on the merits in an unpublished memorandum disposition,” said Steve Kalar, a federal public defender in San Francisco, who is following the jurisdiction issue. A ‘huge issue’ Retaining jurisdiction for sentences within the guidelines “is a huge issue,” said Kalar. “The court is jumping the gun on bigger cases,” he said and complained the court has been “all over the map on this issue.” Earlier this year, defense lawyers protested a similar ruling in which a different 9th Circuit panel also found it lacked jurisdiction to review a Montana sentence in a similar plea bargain case. U.S. v. Bibler, 495 F.3d 621 (2007). In response to the defense uproar, the panel amended the opinion, excising the jurisdiction-limiting language. A majority of the circuit appears to oppose the jurisdiction stripping. In particular, the Garcia decision is at odds with a 15-judge en banc decision in July, U.S. v. Castillo, 496 F.3d 947 (2007), in which on a 14-1 vote the court protected appellate jurisdiction to review both conditional and unconditional plea bargains. “You have to look long and hard to reconcile these two cases [ Garcia and Castillo],” said David M. Porter, a federal defender in Sacramento, Calif., who won the day in the Castillo appeal. Porter said the National Association of Criminal Defense Lawyers plans to pursue an effort to get the 9th Circuit to reconsider the Garcia ruling en banc. Assistant U.S. Attorney James Lord in Seattle, who is prosecuting Garcia, did not return a message seeking comment. Four other circuits had previously ruled that plea agreements do not affect appellate jurisdiction: the 10th Circuit in U.S. v. Hahn, 359 F.3d 1315 (2004); the 6th Circuit in U.S. v. Caruthers, 458 F.3d 459 (2006); the 5th Circuit in U.S. v. Story, 439 F.3d 226 (2006); and the 3d Circuit in U.S. v. Gwinnett, 483 F.3d 200 (2007). Oddly, Garcia was initially held several months in anticipation of the 9th Circuit’s rulings on another pair of cases already under en banc review, which specifically pose the jurisdiction question. U.S. v. Carty, No. 05-10200, and U.S. v. Zavala, No. 05-30120. Both are pending. But both were filed more than a year ago. And both had been held while the 9th Circuit waited for the U.S. Supreme Court to rule in Gall v. U.S., No. 06-7949, and Kimbrough v. U.S., No. 06-6330, which the court did on Dec. 10. [See Page 18.] Big boost The Gall and Kimbrough decisions were a big boost for the defense position on jurisdiction, though the high court did not deal with jurisdiction directly. “Both the cases are the clearest recitation on sentencing and appellate review . . . .The Supreme Court made clear that sentencing inside or outside the guidelines requires a reasonableness review,” said Kalar. “They don’t deal with jurisdiction, but the Supreme Court is so far beyond that question that it is obvious,” he added. A 9th Circuit pronouncement is expected early next year to clarify jurisdiction in the Zavala and Carty rulings.

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