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Federal defense lawyers in the West have been hopping mad in recent weeks over Ninth Circuit U.S. 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 the case of a Washington state drug case. Adrian Garcia pleaded guilty to a drug conspiracy that specified a 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 employed 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 guidelines. The Ninth 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 when they could have dealt with the case on the merits in an unpublished memorandum disposition,” said Steve Kalar, a federal public defender in San Francisco, who is following the jurisdiction issue.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 Ninth 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 Porter, a federal defender in Sacramento 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 full Ninth 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 Tenth Circuit in U.S. v. Hahn, 359 F.3d 1315 (2004); the Sixth Circuit in U.S. v. Caruthers, 458 F.3d 459 (2006); the Fifth Circuit in U.S. v. Story, 439 F.3d 226 (2006); and the Third Circuit in U.S. v. Gwinnett, 483 F.3d 200 (2007). Oddly, Garcia was initially held several months awaiting yet another pair of cases already under en banc review, which specifically pose the jurisdiction question. U.S. v. Carty, 05-10200, and U.S. v. Zavala, 05-30120. Both are pending. But both were filed more than a year ago. And both had been held awaiting the Dec. 10 decisions by the U.S. Supreme Court in Gall v. U.S., 06-7949, and Kimbrough v. U.S., 06-6330. 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 Ninth Circuit pronouncement is expected early next year to clarify jurisdiction in the Zavala and Carty rulings. Pamela A. MacLean is a reporter with The National Law Journal, a Recorder affiliate based in New York City.

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