United States v. Bryan K. Kaluna

Thаt the church of their choice. revised so as to enter must be injunction that the should not be countenanced. their First interference defendants of deprive id. rights. See Amendment speech ordinance bans di- The Lincoln unwilling listen- principally at those rected question a different with Action dealt church services or activities. attending ers there was us. At issue before than the one interest here is substan- government’s The enjoined could be defendants whether the tial, scope the nature and of the ordinance disrupting a cathedral and entering from tailored, narrowly prohibition make the district court court held This services. ample retain alternative protestors and the however, court, The them. enjoin could City of communication. channels preserve to the de- injunction revised has enacted a wise and of Lincoln Council In we protest. this case right fendants’ declaring In the ordinance fair ordinance. govern- it is within the whether consider unconstitutional, majority of this court time, and place to enforce power ment’s churchgoing par- disregards rights on demonstrations manner restrictions intimidating ents and children who suffer protect premises religious near They should protestors. tactics from some rights Anendment First churchgoers’ required gauntlet. to face such assembly worship. and freedom Therefore, strongly I dissent. event, Action hold- supports any In Action stands propo- for the ing I reach. shall not interfere individuals

sition It religion. exercise of the free

with in this case to allow the a basis

serves as the interference of prevent the church. entering leaving

those Action holding supports respect,

this constitutional. the ordinance is America, STATES UNITED The ordi- I this final comment. Plaintiff-Appellee, add to all who violate question applies nance in Obviously, impossi- it would be its terms. Bryan KALUNA, K. Defendant- ordinance ble to write a content-neutral Appellant. signs graph- with that drew a line between ic, pro- carried some bloody images as No. 96-10527. messages car- and informational testors Appeals, United States Court of plaintiffs here as ried others. Ninth Circuit. they they claim picketers, which peaceful are, restriction on then- really face little Argued Submitted Nov. they may At all walk on activities. times Aug. Decided entryways to church the sidewalk and expressing leaflets property, Rehearing Opinion distribute En Banc Granted views, speak and ask to to those their Dec. Withdrawn vicinity willing who are to listen to Argued and Submitted March may carry signs and They them. also Sept. Filed times, that except very banners limited is, from one-half hour before to one-half activity

hour after a scheduled or service. plaintiffs’ minor limitation on the

This incivil- pales comparison

activities and intimi-

ity, tranquility, invasion seeking to upon

dation tactics visited those

H89 FACTUAL AND PROCEDURAL

BACKGROUND prеsent For purposes, the relevant facts are not disputed. government indict- ed defendant Bryan K. Kaluna for the robbery crimes of bank conspiracy commit robbery, bank in violation of 18 2113(a) U.S.C. and 18 U.S.C. 371. In an Notice, Amended Information and stated its intention to seek penalty an enhanced under the three- law,1 strikes should Defendant be convict- ed. The Amended Information and Notice listed prior felony Defendant’s convictions on which rely. intended to All involved robberies: (United States) (Inter- No. 78-01291-01 Loan); national Savings and (State Hawaii) (Pioneer No. 52405 of Bank); (State Hawaii) (Pex No. 50282 of of Ha- Silvert, Alexander First Assistant Fed- waii); Defender, Honolulu, Hawaii, eral for the (State Hawaii) (E.G.Mar- No. 50148 of defendant-appellant. shal’s); Kris, David S. Depart- United States (State Hawaii) (Bill’s No. 47685 Bak- Justice, D.C., ment of Washington, for the ery); and plaintiff-appellee. (State Hawaii) (Pioneer No. 85-1266 Thrift). Bank/Honolulu Federal/Hawaii parties stipulated that Defendant had been convicted of the crimes listed HUG, Before: Judge, Chief Amended Information and Notice. BROWNING, SCHROEDER, jury A found guilty, Defendant as PREGERSON, RYMER, KLEINFELD, charged, robbery of bank and conspiracy TASHIMA, THOMAS, GRABER, to commit bank robbery. Defendant’s co- McKEOWN, WARDLAW, Circuit and, conspirator gun robbery used a in the Judges. found, the district court Defendant knew that he would. Defendant concedes that GRABER; Oрinion Judge Dissent present crimes of conviction are “seri- Judge THOMAS ous violent within the meaning felonies” GRABER, Judge: Circuit the three-strikes law.

In impression case, this case of first In for the the E.G. Marshal’s Defendant Circuit, reject Ninth we. several robbery constitu- had been convicted of in the first tional challenges to the federal “three- degree. He concedes this conviction law,” 3559(c). § strikes 18 U.S.C. We counts as a felony” “serious violent under 3559(c)(2)(F)®. therefore affirm the See Haw. § sentence of life im- 18 U.S.C. 708-840(1) prisonment that the district court imposed. Rev.Stat. (providing portions quoted Relevant p. three-strikes law are below at 1193. rob- bank those three any of during gun use or robbery involves the first-degree beries. force, with while armed use threatened instrument, course of robbery of Bill’s to the dangerous respect With theft). charged Defendant Bakery, the indictment

committing Howev- degree. robbery the first with were convictions Defendant’s re- to the guilty er, pleaded Defendant Under degree. in the second robbery in the second robbery charge of duced robbery in commits law, person Hawaii degree. com if, the course degree second case, district present In the (a) force “uses theft, person mitting a pen enhanced Defendant sentenced with anyone present” pеrson against imprisonment mandatory life alty of (b) resistance, or overcoming intent of doing, the so law. the three-strikes of force imminent use “threatens as convictions present court counted the pres who is anyone person against first- strike, Marshal’s the E.G. the third acquiescence compel with ent intent the second robbery conviction degree (c) “reck or property,” taking of second-degree Bakery strike, the Bill’s injury upon bodily serious lessly inflicts the first strike. robbery conviction 708-841(1). Haw.Rev.Stat. another.” qualified three strikes that all held court by maximum a punishable That offense 3669(c)(2)(F)(i). The § under U.S.C. years. See of 10 imprisonment term of had held that Defendant also court thus § Defendant 706-660. Haw.Rev.Stat. non- strike was the first that demonstrated robbery second-degree that concedes 3559(c)(8). § 18 U.S.C. under qualifying felony” as de is a “serious violent Hawaii concluded court Additionally, expressly the 3659(c)(2)(F)(ii). § in 18 fined U.S.C. second-degree rob prior the that all other trial on during the testified Defendant as strikes qualified bery convictions that he He testified charges. present the 3669(c)(2)(F)(ii). Finally, the § 18 U.S.C. a use of the with tellers threatened had testi trial of Defendant’s took notice court bank prior three during each gun Bank, Hono the Pioneer regarding mony (Pi- in No. 85-1266 encompassed robberies Federal, Thrift Hаwaii robberies and lulu Federal/Hawaii oneer Bank/Honolulu No. 85-1266. conviction encompassed by the Ha- Thrift). regarding example, For chal- He first appealed. Defendant testified: Defendant robbery, waii Thrift case. present in the his convictions lenged a wearing you true that were Q. Isn’t it his convic- affirmed of this court panel A robbery? that mask at stocking nylon dis- memorandum unpublished tions in re- sought has Defendant position. A. Yes. to the affirmance respect with hearing of a hand inside your Q. you put And his convictions. bag? paper brown sentence, his challenged also Defendant A. Yes. un- law is three-strikes that the arguing putting significance Q. What re- respects that in several constitutional bag? paper the brown your inside hand disregard the first quire the gun. I had a that A. To indicate court, A of this panel strikes. purported respect opinion, concluded similarly with in a later-withdrawn Defendant testified law three-strikes Bank unanimously and that Federal Pioneer Honolulu instances, prin- separation-of-powers does not violate of the three each robberies. Clause, Ex Jeopardy Double stated, stocking a mask ciples, he wore Defendant Clause, Amend- Eighth in an Facto Post his hand and had over his head as- effective ment, to receive right or the so as gun” I had a act like bag “to opaque teller, counsel. See United al- sistance from obtain property Cir.1998) Kaluna, 161 F.3d carried actually having though he denied H93 withdrawn) (We (i) (opinion incorporate or more serious violent felo- nies; portions opinion relevant of the withdrawn or attach it an Appendix opin- and to this (ii) one or more serious violent felo- ion.). however, By majority, a two-to-one nies one or more drug serious panel held that the three-strikes law offenses; and process rights. violated Defendant’s due (B) each serious violent felony or seri- (Reinhardt, J., holding See id. at 1073-84 drug ous offense used as a basis for during that the use of a firearm subsection, under this element, robbery constitutes an so first, than the was committed after the allocation of the proof burden of to a de- defendant’s conviction of the preceding fendant pro- violates defendant’s due felony serious violent or drug serious id. at 1084-87 (Thomas, J., rights); cess offense. concurring ground on the that the “clear 3559(c)(2)(F), In 18 U.S.C. Congress de- convincing” level of fines the term felony” “serious violent statute allocates to a defendant violates 3559(c)(1) purpose to mean id. J., process); due (Leavy, (i) dissenting holding from the offense, the stat- a Federal or State process). ute violates due designation whatever and wherever committed, (as consisting of ... robbery government petitioned for rehear 2111, 2113, 2118); described in section or banc, ing request en with which Defen attempt, conspiracy, or or solicita- agreed. granted dant The court peti offenses; tion to commit any of the above rehearing tion for en banc and ordered panel’s opinion be withdrawn. (ii) any punishable by other offense Kaluna, See United States v. imprisonment maximum term of (9th of 10 Cir.1998). 1225 years or more that has as an element use, use, attempted the or threatened STANDARD OF REVIEW physical against use of force person the We review de novo a district that, nature, by of another or in- its interpretation of a statute. See court’s volves a substantial risk that physical Hunter, United States v. 101 F.3d 84 force against person may the of another (9th Cir.1996). alsoWe review de novo a be used the course of committing the district court’s determination that a statute offense[.] is constitutional. See United States v. 3559(c)(3)(A) § provides Title 18 U.S.C. Kim, (9th Cir.1996). 94 F.3d 1249 pertinent part: Robbery ... shall not serve as a basis THE THREE-STRIKES LAW for sentencing under this subsection Some of Defendant’s arguments require [3559(c) if the defendant by ] establishes us to construe the three-strikes law. Title clear convincing evidence that— 3559(c)(1) § 18 provides: U.S.C. (i) dangerous no firearm or other Notwithstanding any provision weapon was used the offense and no law, of person a who in a is convicted a threat of use of firearm or other dan- court of the United States of a serious gerous weapon was involved in the of- felony violent shall be sentenced to life fense; and if- imprisonment (ii) the offense did not result in death (A) person the has been convicted bodily injury or serious to any per- (and those convictions have fi- become son. nal) separate prior on in a occasions 3559(c)(1) court of the United States or of a State places Section the bur of- government den on the to demonstrate

1194 aof part or is the offense of element at least of was convicted a defendant that Almendarez-Tor sentencing factor. See as “serious qualify that offenses prior two 118 U.S. 3559(c)(2)(F). 523 res v. United felonies” violent L.Ed.2d 350 to fails the statute that asserts Defendant If (1998) (stating question). that of the existence prove must who tell us 3559(c)(3)(A) of the of element is an The struc disagree. We prior strikes. that a prove must fense, is government that this shows of the statute ture because, prior offenses in the ab committed defendant government’s use, dangerous convic to prior threatening or qualifying using, of of sence standard, involved offenses prior that the weapon, receives the or tions, a defendant from id. at bodily injury. thus benefits See or serious sentence death lesser pur Additionally, the must government (stating that proof. of absence re beyond with is consonant of the offense every statute element of the pose prove quali prove doubt); Young, to see also government quiring a reasonable convictions, they serve government that prior (stating fying F.3d at 32 See United sentence. a sen that enhances to a factor prove enhance must (9th evidence). Cir. F.3d Young, 33 v. States aby preponderance tence the burden 1994) (“The 3559(c)(3)(A) bears Government an affirma If, however, § enhancing a sentence proving factors part tive defense evidence.”); Unit preponderance require a defen factor, may Congress then Oberle, used, ed or weapon no prove dant Cir.) government (holding used, was threatened proving the burden bears resulted. or death bodily injury serious law), cert. three-strikes under the strikes Almendarez-Torres, at 1229- See — —, denied, and relies Patterson which cites L.Ed.2d 197, 205-07, York, New (upholding 2319, 53 L.Ed.2d 281 carried its burden required the defen New York statute that noted, stipulated that parties here. As by a prove dant, guilt stage, at the earlier ‍‌​‌‌‌‌​​​​‌‌​​‌​​‌​‌​‌‌​​‌‌‌‌‌​​​​​‌​‌​​‌​‌​‌‌‌​‍convicted had Defendant been affirma of thе evidence the preponderance definition that fit the several robberies distur emotional tive extreme defense the statute. under violent felonies” “serious bance). West, F.2d See United (9th Cir.1987) gov the (holding makes that the statute In whether arguing prior the defendant’s use death, established or threatened ernment or the use injury, presen in a detailing them by an “affirma- convictions or weapon an “element” of a did not defendant the report defense,” by that refer analo- parties tence both tive Oberle, at 1423-24 challenge); about statutes that construe gy to cases its carried government (holding crime, that the than underlying rather guilt of an under the prior however, strikes proving believe, sentencing. about We introducing certified law three-strikes decision Court’s recent Supreme that the convictions). previous of four copies our guide should in Almendarez-Torres task. interpretive that, argues nonetheless Defendant Almendarez-Torres, Supreme the falls under robbery that to a respect with U.S.C. whether 3559(c)(2)(F)(ii), Court considered § the the definition in for enhanced 1326(b)(2), provides § which before the prove more must who return for aliens prison sentences may be counted prior conviction de- having been after the United States viz., strike, exception the thаt felo- aggravated an committing ported 3559(c)(3)(A) The an not apply. § does a sen- crime or is separate ny, defines exception the swer turns whether that The Court concluded 3559(c)(3)(A), tencing strike, is an factor. § of a definition H95 1326(b)(2) does not create a separate § is convicted of a serious violent felony charged that in an crime must be indict when the defendant previously was con- ment, instead is a victed of at sentencing provision but least two other serious violent felonies. “simply that authorizes court to increase sentence for a recidivist.” Almenda context, We next consider wording, rez-Torres, 118 1222. In S.Ct. at deter 3559(c). § and structure of Section 3559 mining Congress whether intended the title, “Sentencing bears classification of 1326(b)(2) §by factor described to be an offenses,” and everything §in per- separate of a or element crime a sentenc tains to imposition of sentence after factor, ing “look[ed] Court to the stat Almendarez-Torres, conviction. See structure, subject matter, language, ute’s at 1226 (holding that a statute’s title context, history.” Id. at 1223. The is a tool for interpreting the statute and Supreme recently Court made clear that that a title containing word “penalties” good

Almendarez-Torres law. remains usually signals a sentencing provision rath- See Jones v. United element). than er Additionally, 143 L.Ed.2d 311 3559(c) § is worded to pertain only to the (1999) (citing ap Almendarez-Torres with sentence, imposition of a not to the offense stating that proval “recidivism increas itself. ing penalty the maximum need not be so Turning now to exception, we see charged”). that pertains first it to sentencing only. Court, Supreme As instructed we 3559(c)(3)(A) explains Section the narrow- structure, wording, subject examine circumstances “[rjobbery ... ” matter, context, and history of the three- shall not serve basis for do, law. When we we 3559(c). strikes conclude added.) § (Emphasis Sec- 3559(c) § only serves a ond, enhance we Congress see that has worded sentence on account prior 3559(c)(3)(A) defendant’s § plainly to shift to a defen- felonies, not to create an violent element of the burden of establishing excep- dant present offense. We also conclude “Robbery tion: shall not serve aas 3559(c)(3)(A) is a kind of affirmative for sentencing basis under this subsection ” to the use of defense certain violent if the certain establishes facts. defendant added.) felonies as a sentencing (Emphasis factor. foremost, We focus first and Contextually, as did the it significant Almendarez-Torres, Court in exception on the sub- quite narrow. Under outset, 3559(c)(3)(A), ject matter of the “At only statute: offenses did not death, note that the statutory subject we relevant fact injury, involve or the use or subject matter is recidivism. That dangerous mat- use of a weapon threatened es- prior commission a serious crime— cape being of counted strikes. All as ter — typical sentencing is as a many factor as one qualify offenses that as “seri- Almendarez-Torres, might imagine.” 3559(c)(2)(F) § 118 violent ous felonies” under (“[T]he 1224; at broad, see also id. statutory lower are strikes. The reach is uniformly interpreted crimes, courts have almost encompassing large a of number (that higher statutes authorize sentences exception while the certain limited- for recidivists) setting for as forth sentencing violence offenses is narrow. In that cir- factors, cumstance, creating not as new crimes.... it is that probable Congress 3559(c)(3)(A) And we have clearly § found no statute that intended to be an affirma- enhancement, makes recidivism offense element tive defense to a (citations circumstances.”) omitted). such rather than an element. See United Freter, (9th Like the statute at issue in Almendarez- 31 States F.3d 3559(c) Torres, Cir.1994) § (“[Wjhere, here, is a recidivist statute. It a statutory as the sentence of a enhances defendant who is broad prohibition exception and an is thаt this burden first contends Defendant excep- that the narrow, probable more it is be process, due se violates defense.”). shifting per an affirmative tion is is an “element.” We exception cause the history of nothing in the find Finally, we 3559(c)(3)(A) however, § held, that have from that detracts law the three-strikes sen to a defense an affirmative contains matter, wording, subject view of our may enhancement, Congress tencing of the statute. context, and structure See Al to establish. a defendant require fac applicable considering all After 1229-30; mendarez-Torres, con Circuit tors, the Seventh join we 2319; Patterson, found exception that cluding (“As as the Wicks, long F.3d at 389 to 3559(c)(3)(A) defense an affirmative § all elements proved has prosecution See United sentencing enhancement. a doubt, Patter beyond reasonable a crime (7th Wicks, 388-89 F.3d to allocate the held, is free the state son — U.S. —, denied, Cir.1997), cert. defense an affirmative proving burden allows such If Patterson to defendant. not need Therefore, did government of the trial stage at the even a result a had committed Defendant that prove decided, it fol guilt or innocence where or threatened the use robbery with prior prohibit the does not process that due lows or that serious dangerous weapon, use of a the sentenc defense at kind of affirmative occurred, that injury or death bodily 3559(c)(3)(A).”). §in found ing stage a to be considered “serious prior conviction alternative, Defendant ar In the 3559(c)(2)(F). § felony” under violent proof demanded that burden gues of prov Rather, had the Defendant 3559(c)(3)(A) convincing— § —clear used, or threatened had not ing that he not not and do reach high. need is too We committing use, his when firearm issue, cannot Defendant es bodily inju robberies, that no serious any under defense the affirmative tablish resulted. ry or death Washington v. proof. See standard Johnson, n. 3 ANALYSIS PROCESS DUE (in Cir.1996) process considering a due convictions present Because Defendant’s the burden of allocation of challenge to the strike, that Defen- establish qualify competency, the mental proof regarding under to be sentenced eligible dant was issue, noting to consider declined 3559(c)(1) only to had government § unhesitating con court’s “the district two had been convicted that he prove competent that Petitioner clusion felonies” violent under prior “serious in 1987 demonstrates to stand trial fact noted, do 3559(c)(2)(F). parties As § of burden of allocation a contrary rob- Marshal’s the E.G. dispute have been would not outcome-deter a “serious vio- qualifies bery conviction minative”). Indeed, would lose Defendant 3559(c)(2)(F)® and as under felony” lent if even as a matter law Moreover, 3559(c)(1). under strike proof. bore the burden remain- that Defendant’s stipulated parties not estab- could Defendant did “seri- qualified as convictions ing robbery qualifying “first the absence lish felonies” ous violent limited docu- He robbery. offered strike” 3559(c)(2)(F)(ii). Thus, sentencing during mentary evidence met its initial burden. trial, He testified phase of the case. to use however, had threatened that he to Defen then shifted The Bank, of Pioneer prior robberies gun in his remaining of those that none prove dant to Federal, Savings.2 and Thrift Honolulu a strike. qualified as robbery convictions however, robbery, has no Bakery. robbery Thai largely Bill's on the focuses 2. The dissent only that the district questions, Defendant asserts federal courts must consider testimony court could not consider nonconstitutional grounds his.trial for decision. whether prior judicial to determine those robber- This is a fundamental rule of re use, use, Nelson, 846, ies involved the or threatened straint.” Jean v. 472 U.S. dangerous weapon. 854, 2992, find support We 105 S.Ct. 86 L.Ed.2d 664 (1985) (citation for that contention. and internal quotation omitted); Spector marks see also Motor plain wording Serv., 101, Inc. v. McLaughlin, 323 U.S. 3559(c)(3)(A) reasonably cannot be inter 105, 152, (1944) (“If 65 S.Ct. 89 L.Ed. 101 preted precludе to a district court from there is one deeply doctrine more rooted considering a testimony defendant’s before any than the process of constitu it, oath, regarding the defendant’s adjudication, tional it is that ought we prior commission of offenses. areWe pass questions on of constitutionality suggest aware of no court that has held or adjudication unless such is unavoid ed that the statute a limita contains such able.”); Meinhold v. United Dep’t tion. (9th Defense, 34 F.3d Cir. Nor does the Constitution bar a 1994) (stating those principles and hold court from considering trial defendant’s that it ing pass is error to over a noncon- testimony about offenses when im claim). stitutional posing sentence for present offense. corollary A also is well estab right Defendant had the to remain silent lished: analysis harmless-error ap but instead chose to testify, and he did not plies to nonstructural errors even when object questions quoted at the be the claimed errors are constitutional. See ginning opinion. of this A district court — States, U.S. —, Neder v. United constitutionally can rely on a defendant’s 1827, 1833, (1999) L.Ed.2d 35 testimony during volunteered trial the sen (“For all [nonstructural] constitutional er Therefore, tencing phase of a trial. rors, reviewing apply courts must Rule district court did not err as Defendant 52(a)’s harmless-error analysis and must claims. ‘disregard’ errors are harmless ‘be ”) yond

The dissent faults us for not (quoting reasonable doubt.’ reaching 18, 23, constitutional Chapman California, issue 386 U.S. (1967) (alteration 824, 17 whether the convincing” “clear and bur L.Ed.2d 705 3559(c)(3) omitted) ). §by infringes den established A district use court’s process rights. Defendant’s due incorrect burden of argument dissent’s contravenes two well- a nonstructural error to which harmless- jurisprudential established analysis applies. doctrines. error Even the con First, ques capital decide the constitutional text of sentencing proceedings, the tion Supreme here would violate the maxim that applied Court has a harmless See, courts are not questions analysis. “to decide of a error e.g., Hitchcock v. absolutely constitutional nature Dugger, unless

necessary to a decision of the (reversing case.” 95 L.Ed.2d 347 a death Burton v. United sentence because there was a constitution 49 L.Ed. al error but the state did not show that the harmless); reaching any “Prior Skipper constitutional error was v. South bearing analysis; ground on our the dissent's discus dant’s sentence on an alternative it, therefore, sion of We irrelevant. con presented to the court below. See Her Bank, clude that the Pioneer al, FDIC, Honolulu Feder 1995) ring v. Cir. robberies, Savings and Thrift not the Bill’s ("We may any affirm on basis the record Bakery robbery, establish the first strike. suppоrts, including one the district court did (The conceded.) second and third strikes are reach.”). Therefore, simply affirming we are Defen

1198 1669, 7-9, 1,

Carolina, U.S. 476 in (1986) an error (analyzing 1 L.Ed.2d 90 the three-strikes argues Kaluna harmless- for proceeding sentencing the princi five constitutional violates statute Court ness). Supreme the Additionally, (2) separa (1) the jeopardy; ples: double analysis a harmless-error applied has (3) Post Facto the Ex powers; tion of was shifted of the burden when (4) against cruel Clause; prohibition v. See Rose process. due right violation punishment; unusual 570, S.Ct. 106 Clark, counsel. We 478 to effective assistance (1986). these 3101, 460 to address L.Ed.2d had occasion 92 have federal regard with arguments admitted Here, Defendant because statute, cir other but three three-strikes with tellers threatened he had trial challenges to various rejected have cuits Bank, Pioneer in the gun use of constitutionality. See general statute’s rob- Federal, Savings and Thrift Honolulu (5th Rasco, 222 123 F.3d States v. United clear- use beries, court’s the district — U.S. —, denied, 118 Cir.1997), cert. standard, if even unconsti- and-convincing (1998); 765 United 139 L.Ed.2d S.Ct. a reason- beyond tutional, harmless was 109 F.3d Washington, v. States doubt; not have altered it could able — U.S. —, denied, (7th Cir.), cert. error any Because case. outcome (1997); United L.Ed.2d 82 S.Ct. harmless, to decide decline we must Farmer, 836, 839-41 the clear-and-eon- constitutionality of denied, Cir.), cert. 3559(c)(3). §in provided vincing standard (1996). agree We L.Ed.2d 1086 circuits, court did the district summary, the and with district these with re court, com- statute’s had that the three-strikes concluding that Defendant err scheme, harsh and in violent felonies cidivist prior serious mitted two be, facially constitu may it flexible as the three-strikes meaning of within the general. tional law.

First, Kaluna contends CLAIMS CONSTITUTIONAL OTHER Dou statute violates the three-strikes it imposes Jeopardy Clause ble con- additional makes several Defendant the same for offenses. multiple punishment reject for them We arguments. stitutional already that he has argues he Specifically, panel Kaluna. the reasons stated previous for his two punishment his served Appendix. attached See again “strikes,” punished and he cannot be him in against counting them for them CONCLUSION true that the It is instant sentence. protects against Jeopardy Clause “Double and sentence convictions Defendant’s punish two imposition ... the actual are AFFIRMED. offense.” Witte for the' same ments United APPENDIX But con- general consider Kaluna’s firstWe might statute although the three-strikes “three strikes” challenges to stitutional Supreme principle, this to violate seem part in relevant provides The statute law. that re determined long hаs since Court any provi- “[notwithstanding jeop double do not violate statutes cidivist ... law, is convicted person who punishment sion “the enhanced ardy because sen- felony shall be not to violent ‘is serious for later offense imposed imprisonment” or addi [mandatory] jeopardy life a new tenced viewed either crimes,’ but occa- the earlier penalty “on convicted tional if he has been penalty for lat ‘a violent stiffened serious instead ... or more sions to be an crime, considered 3559(c)(1). est 18 U.S.C. felonies.” 1199 aggravated repetitive offense because law to avoid constitutional infirmity in ” because, given this area (quoting principles pre- Id. 115 at 2206 one.’ S.Ct. viously Court, announced Burke, 728, Supreme ‍‌​‌‌‌‌​​​​‌‌​​‌​​‌​‌​‌‌​​‌‌‌‌‌​​​​​‌​‌​​‌​‌​‌‌‌​‍732, Gryger v. 334 U.S. 68 question constitutional exists. 1256, (1948)); 92 L.Ed. S.Ct. 1683 see also Texas, 554, 559-60, Spencer v. 385 87 U.S. Third, Kaluna contends that 648, (1967); S.Ct. 17 L.Ed.2d 606 Moore v. three-strikes statute violates the Ex Post 673, Missouri, 179, 159 16 U.S. S.Ct. 40 Facto Clause because it changes legal (1895). Thus, argu- L.Ed. 301 Kaluna’s consequences of his bad acts. This prevail. ment cannot contention also lacks merit. Supreme Court and this court uniformly have held Second, Kaluna contends that the that recidivist statutes do not violate the three-strikes statute violates funda Ex Post Facto if they Clause are “on the principle separa mental constitutiоnal books at [present] the time the offense was tion of it powers impermissibly because committed.” United States v. Ahumada- discretionary power increases the of prose Avalos, 681, Cir.1989) 875 F.2d stripping judiciary cutors while of all curiam); Graham, (per see also Weaver v. to craft Alternately, discretion sentences. 24, 30, 960, 450 U.S. 101 S.Ct. should, argues Kaluna this court 17 This statute was enacted in difficulties, order to avoid constitutional 1994 and Kaluna committed the instant construe the statute to permit judges to offense in 1995. apply the statute their discretion. Fourth, Kaluna argues Again, are compelled by precedent we the three-strikes statute violates the pro reject both arguments. Supreme portionality guarantee the Eighth unequivocally Court has stated that “Con Amendment. See U.S. Const. amend. VIII gress power has the to define criminal (“cruel punishments and unusual [shall punishments without giving any the courts inflicted”). Supreme precedent be] Court Chapman discretion.” v. Unit once again forecloses his claim. In its States, 453, 467, ed 500 U.S. pronouncement subject, most recent on the 1919, (1991); 114 L.Ed.2d 524 see also the Court held that eighth “the amend 361, Mistretta v. United 488 U.S. ment only ‘forbids extreme sentences that 364, 647, (1989) 102 L.Ed.2d 714 grossly are disproportionate (upholding constitutionality of the fed ” Bland, crime.’ United States v. eral sentencing guidelines part (9th Cir.1992) (quoting Harmelin scope judicial “the discretion with re 957, 1001, Michigan, S.Ct. spect subject to a congres sentence is J., 115 L.Ed.2d 836 (Kennedy, control”). Furthermore, sional legisla joined Souter, JJ., O’Connor con tive law history of the leaves no doubt that curring) (constituting holding Congress require intended it to mandatory Court)). Moreover, while in evaluating the S12,525 Cong. sentences. See 103 Rec. sentence, proportionality aof courts “must 1994) (statement (daily Aug. ed. felony focus on principal felony —the Daschle) Sen. (stating that the three- sentence,” triggers life Solem v. require strikes law “will that Federal Helm, 277, 290, 296 n. judges mandatory hand down life sen (1983), they 77 L.Ed.2d 637 (statement tences”); S12,12544 id. recognize legislatures may must also Lautenberg) (emphasizing Sen. that under punish severely recidivists more than first- law, the three-strikes three-time offenders time offenders. Id. at ifs, away “put are for life.... And no L.Ed.2d 637. Because it.”). ands or buts about The statute itself application the statute its in restricts “mandatory” uses the words and “shall.” pri stances where both the defendants’ event, In any narrowly we cannot mary past construe convictions are “serious vio-

THOMAS, with whom Judge, Circuit BROWNING, and PREGERSON Judges makes felonies,” precedent Court’s the lent join, dissenting: TASHIMA for bank punishment Kaluna’s it clear statute, a strikes” the “three Under disproportionate sufficiently robbery is to committed must be defendant criminal Amendment. Eighth the contravene to is when he or she even imprisonment life Harmelin, See, e.g., con- qualifying the innocent of probably imprison- life (upholding the rest spend will This defendant duct. possessing of first offense ment for he cannot prison life in because of his Estelle, 445 cocaine); Rummel of grams he convincing proof that and clear muster 63 L.Ed.2d 263, 100 S.Ct. allegedly committed of act innocent an was af- imposed (1980) life sentence (upholding I Because century ago. of a a quarter conviction). felony nonviolent ter third holding that Circuit join the Sixth would an unconstitutional imposes the statute he was claims that Finally, Kaluna defendant, I re- the of assistance to effective right the of deprived dissent. spectfully advised never because he of counsel could offenses pleas prior guilty his to I leading to manda “strikes” later constitute “three the so-called Congress enacted Indeed, three- tory imprisonment. life 3559(c)(1), statute, § 18 U.S.C. strikes” of at the time exist did not strikes statute and attempt punish to part of a laudable Following crimes. pleas guilty his But offenders. violent recidivist deter however, the district convention, we affirm intended grasp exceeded its Congress’ claim to dismiss this determination court’s history of the stat- legislative The reach. it is рroperly prejudice without only the intent to reach clearly evinces ute proceedings, corpus through habeas raised statute The violent felonies.”1 “serious v. United review. See Custis not direct felonies non-violent includes nevertheless 1732, 1739, by cate- It does so offenses. as qualifying (ineffective assis non as “strikes” certain counting gorically crimes, conspiracy to com- statutes recidivist such claims under violent tance may ormay robbery, and others collaterally, not sen mit brought should act, robbery.2 such as not involve violent procedures). tencing *16; also 1994 See id. see Indeed, Adams. denom- Richard crimes are 1. enumerated (1994) (statement Repre- See 18 of at *5 felonies.” as "serious violent WL inated U.S.C. 3559(c)(2)(F). Report on House § The Livingston noting that three "[The sentative legislation containing strikes three bill apply felons-and does to violent strikes law] stated: felons.”); Cong. Rec. only violent problems three 3981 addresses H.R. ed., 24, 1994) (state- Aug. (daily S12393-94 problem first justice system. The criminal support Dorgan of Representative ment reached in America has violent crime is that citing the murders three strikes law were unacceptable there level. Jordan). entire The Lexie James and Patricia crimes, 23,760 I,982,274 violent history legislative toward thrust intend- .... H.R. 3981 murders were violent сrime. of serious reduction dangerous re- most ed to take the Nation's impri- streets and off the criminals cidivist 3559(c)(2)(F), Congress de- In 18 U.S.C. for life. 103-463, son them felony” for the violent the term "serious fines at *11 WL Rep. H.R. "(i) 3559(c)(1) a Fed- to include purpose added). (1994) (emphasis offense, designation by whatever testimony or State received eral report further noted committed, consisting murder of ... the brutal about wherever subcommittee Petaluma, Klaas, 2111, 2113, thirteen-year old Polly (as robbery in section described Su- girl; rape of state Senator California 2118); attempt, conspiracy, or solici- ... or or Sweetser; rape savage fatal san offenses any of the above commit tation ” Stephanie nineteen-year old strangulation of added). (emphasis .... Schmidt; execution-style murder Valjean4 the statute’s broad reach to thieves like prison To conform Jean Congressional punishing only lives, aim of their natural but that is the conse- and violent of- the most serious recidivist quence of this statute.

fenders, the statute allows defendants to provides perfect paradigm This case net cast escape sweeping inclusion problem. Kaluna’s instant offense can of non-violent felonies. defendant counted as one strike. A theft of the E.J. however, so, only if he or cаn prove do she jewelry Marshal with a store knife counted by convincing clear and evidence that the as the second. The third “strike” that crime did not involve a threat or use of a committed Kaluna to a in prison life was a dangerous weapon and did not result in robbery of in Bakery Bill’s Honolulu.5 3559(c)(3)(A).3 § bodily injury. serious See Valjean, Unlike Jean Kaluna did not steal Thus, statute, under the three strikes rather, bread bakery; from the he re purse-snatching pick- crimes such as moved from the till. After he $245 was pocketing may qualify as “serious violent apprehended, pled guilty Kaluna to sec felonies” and “strikes” because those ond-degree robbery pursuant to Haw.Rev. may defined “robbery” crimes be as under (1975). § Stat. 708-841 The difference be A applicable state law. defendant can robbery tween degree the first and rob avoid life sentence for three such convic- bery degree the second in Hawaii is the only by proving by tions clear and convinc- presence or absence of a dangerous weap ing bodily injury evidence that no serious - §§ on. See Haw.Rev.Stat. 708-840 to occurred and that there no was threat or 841; Halemanu, State v. 3 Haw.App. dangerous use of a weapon. When the (1982); 650 P.2d see also Haw. old, twenty years convictions are over § cоmmentary Rev.Stat. case, they are in this it is difficult to offense, For this Kaluna was sentenced to evidence, preponderance muster even a six probation; month’s much convincing proof. less clear and worthy court did not deem the crime Witnesses to such an ancient event are any prison time. gone; physical often evidence has almost certainly disappeared. only proof law, Under three strikes the Bill’s generally available the convicted defen- Bakery robbery qualified as a “strike” be- which, world, dant’s own words the real second-degree it cause was conviction for rarely convincing are clear and at sentenc- offense, robbery, by and thus “State ing. designation whatever and wherever com- mitted, consisting robbery” of ... purse-snatching the case of common 3559(c)(2)(F). 18 U.S.C. To avoid classi- by use of a knife to cut strap, “strike,” fication of the offense as a Kaluna likely defense would be available because convincing proof had to show clear and dangerous the crime would involve use of a Bakery robbery the Bill’s did not weapon. legislative If one believes the history, Congress dangerous did not intend to involve a threat or of a send use purse-snatchers, pick-pockets, weapon bodily and breаd and did not result in serious provides part Valjean "housebreaking 3.That section in relevant was convicted of robbery” stealing "[rjobbeiy a loaf bread. serve shall not as a basis for Miserables, (Norman Hugo, Victor Les sentencing under this subsection if the defen- trans., 1976) (1862). Denny Penguin Books convincing dant clear and establishes evi- crime, years He served counting for the nineteen (i) dangerous dence no firearm or that — attempted sentence extensions for weapon was used offense and no threat escape. dangerous of the use of a firearm or other (ii) weapon was involved in the offense and 5. The court noted other rob- district several the offense did not result in death or serious "strikes,” might qualify beries but declined (as 1365) bodily injury defined in section finding, relying to make ultimate instead 3559(c)(3)(A). any person.” 18 U.S.C. on the three crimes. identified im- ed life Thus, qualified for Kaluna injury. (1999) (Scalia, J., L.Ed.2d 311 of sec- guilty he prisonment concurring). himself but could save robbery, ond-degree convincing evi- by clear by proving II first-degree guilty that he was dence course, may have harsh that a statute robbery. Of it unconstitu no cause declare results is law in our criminal may unique It like a sentencing process, But a tional. of one impact only avoid may that one trial, satisfy require must criminal of an- innocent oneself by proving statute See Gardner process. of due ments the three import of other, that is the but Florida, case, chose to Kaluna In this law. strikes (1977) (plurality). Due first-degree guilty he was not show requires typically at process agree- referencing plea his robbery by enhancing fac government the prove that that he ment, only admitted in which he of the evidence. preponderance tors a robbery. second-degree guilty of was Pennsylvania, 477 v. See McMillan put on Normally, the because 2411, 67 79, 91, 91 L.Ed.2d 106 S.Ct. first-degree of guilty that was proof he (1986); Restrepo, v. 946 States United be probably his would robbery, defense Cir.1991) (en banc). (9th 654, 658-59 F.2d the Kaluna bore sufficient. But Moreover, standard “preponderance” the was not plea and his alone proof, of burden in all constitutionally adequate sen is not the convincing,” district and “clear Rather, process due re cases. tencing the strike. imposed proof of where higher a standard quires Kaluna, pled that who The result is “an would have proved to be the factor robbery of second-degree guilty the effect on extremely disproportionate as convict- if Bakery, Bill’s was sentenced offense of convic relative to the sentence Richard- robbery. See first-degree ed 659; at see also Restrepo, tion.” 946 F.2d 813, States, 119 526 U.S. son v. United 403, States, 389, 515 U.S. v. United Witte (1999) 1707, 1712, 985 143 L.Ed.2d 5.Ct. (1995) 351 issue, (“Where judge, the sentencing is not argue the did (noting that defendant recidivism, light enhancing a sentence of the the court’s sen that consideration ... individual conviction find a must significant, [it that tencing factor was “so an earlier fact-finder which means that dog the wags ‘a tail which became] that the defendant committed found ”) McMillan, (quoting offense’ substantive ”) added); (emphasis specific earlier crime 2411); 83-84, United 601- Taylor v. United (8th 365, 370 Townley, F.2d v. 929 L.Ed.2d 607 Cir.1991) heightened (recognizing due considering what context of (noting, sentencing fac where the process concerns un- offenses predicate burglaries qualify wags tail substantive dog tor 924(e), guilty “[I]f der 18 U.S.C. offense). was lesser, nonburglary to a offense plea narrowly circumscribed condi Under bargain, it seem plea result of a would proof tions, the burdens of production enhancement impose unfair to sentence in a criminal may shifted to a defendant guilty to pleaded had as if the defendant where a defendant example, case. For deprived thus burglary.”). Kaluna statute, a criminal exception on an jury relies to have assess opportunity the burden of establish generally he bears pre- congressionally “facts alter that he comes within that ing showing a crimi- range penalties scribed v. States Graven See United exception.6 v. Unit- exposed.” nal defendant is Jones actually “exception'1 in case sen argues this opinion persuasively panel 6. The Cir.1997); 69, meir, state-employed 121 F.3d 116 S.Ct. 1373. Two Freter, psychologists had conflicting opin offered United States Endell, (9th Cir.1994); regarding F.2d ions compe Walker the defendant’s (9th Cir.1987). 470, 472 None of the “stat tence. See id. at 116 S.Ct. 1373. utory exception” impose Although judge cases a “clear and the trial noted that one, question on the defen was a convincing” ultimately burden close he Indeed, dant, in some circum concluded that the however. defendant had not car stances, proof may the burden of not be ried his burden “clear and convincing” all. to the defendant at See Gra evidence and would therefore shifted be tried. venmeir, (noting 121 F.3d at 528 that the id. at See 116 S.Ct. 1373. hold unconstitutional, ought ing not to be shifted to the the statute the Su “overbearing”).7 preme rejected when it is Court defendant notion that a “proceed state could with a criminal trial proof, “The function of a standard of after the defendant has demonstrated that Pro- concept is embodied the Due likely he is more than not incompetent.” ‍‌​‌‌‌‌​​​​‌‌​​‌​​‌​‌​‌‌​​‌‌‌‌‌​​​​​‌​‌​​‌​‌​‌‌‌​‍factfinding, cess Clause and the realm of Id. at The Court’s concerning to instruct the factfinder analysis inquiries. focused on two main degree society of confidence our thinks he First, the Court considered the historical should have in the correctness of factual contemporary practices juris of most type adjudi- particular conclusions for height dictions to determine whether the Texas, 418, Addington v. 441 cation.” ened standard of proof “vindicate[d] the 423, 1804, 99 S.Ct. 60 L.Ed.2d 323 prompt orderly State’s interest in and dis (citations internal marks quotation and cases,” position of criminal or offended “a omitted). As the increases a justice principle deeply that is rooted in proof, defendant’s burden defen- peo the traditions and conscience of our concomitantly dant shoulders an ever-in- (cita 360-62, ple.” Id. at 116 S.Ct. 1373 creasing risk of an erroneous decision. quotation tions and internal marks omit point, particular At a placing See id. some ted). Second, the asked whether an Court proof burden of on a criminal defendant in requir evaluation of the risks inherent violates the Due Process Clause. The ing convincing a clear and standard of whether, question presented by this case is proof prac led to the conclusion that the convincing” in a “clear and placing tice was consistent with due process. See proof on defendants who seek to invoke 362-63, 116 id. at 1373. S.Ct. 3559(c)(3), Congress section has reached juncture. Addressing question, the first the Court jurisdictions that almost all other observed articulated Supreme Court the due applied protec a standard that was more by which process principles courts should rights a defendant’s than was tive of Okla in proof Cooper examine burdens of rule, convincing” provid homa’s “clear and Oklahoma, 1373, 116 S.Ct. did, fact, in ing evidence that the rule (1996). In Cooper, 134 L.Ed.2d 498 justice. deeply-rooted principle violate a Court struck down Oklahoma statute 360-62, 116 Id. at S.Ct. 1373. creating presumption a that a criminal de- question, competent Turning fendant was to stand trial un- second proved incompetence by explained less he his clear Court that the risk of error was convincing very high consequences and evidence. id. at and that See 368- “element,” sentencing tencing rebutting majority's 7. It is the doubtful that the scheme imposing pass a life would constitu analysis sentence question. of this See United States v. tional muster even if the defendant’s burden Kaluna, (9th Cir.), 1077-80 preponderance. a See United States v. were (9th withdrawn 161 F.3d Cir. Harrison-Philpot, 978 F.2d 1998). 659-60; 1992); Restrepo, F.2d at see Cir. Kaluna, 152 F.3d at 1080-82. also standard “preponderance that the firmed id. dire. See were the defendant error pro- due generally at satisfiеs risk of 1373. awas diver- there but noted because, cess” prepon a unlike high error was whether circuits as to only gence among standard, affect which would derance dramatically that would “relevant conduct the evi in which of eases class a narrow based on must be balanced, the sentence increase equally was side dence either Id. at convincing and evidence.” af clear would convincing standard a clear 633. the defendant in which of cases fect class that, likely than more had demonstrated principles these § 3559 turns 18 U.S.C. See id. The not, incompetent. he bur- negligible It places on their head. dire be would be of error consequences forces prosecution,8 but proof on the den of erroneously found Coo cause, if court high- one the defendant to shoulder in to assist his inability competent, his per proof in the law: extant burdens est him a fair trial. deny would defense own As one convincing evidence. clear By con 1373. id. See be ‘clear order to explained, “[i]n noted, “injury to trast, the Court must of ‘extraordi- convincing,’ evidence ” error-a conclusion opposite State Johnson, State nary persuasiveness.’ when incompetent he that the defendant (1994).9 P.2d Or.App. Id. at modest.” malingering-is in fact Thus, the notion of embracing than rather 365, 116 Cooper and risk” as articulated “shared McMillan, im- that, the statute approved Ultimately, the Court concluded weight on determination, evidentiary Sisyphean poses competency of a the context this case is The effect on the defendant. permit would Process Clause the Due Indeed, trivial. the standard defendant to a criminal to allocate state whether probably will determine employed accom- of the risk large “the share of his life spend Kaluna will the rest convincing evidence a clear and panies com- 1373; But that is what statute 366, prison. see at 116 S.Ct. standard.” Id. convincing” 83-84, Placing a “clear and McMillan, mands. at 106 477 U.S. also that he means on the defendant Su- burden Pennsylvania (affirming 2411 a guilty qualifying must be deemed Pennsylvania’s upholding of preme Court’s likely than even it is more Sentencing offense when Act Minimum Mandatory that he innocent. Pennsylvania Supreme Court where the of error under that the risk had reasoned pass cannot constitution- a scheme Such slight). the Act First, Court has Supreme muster. al may, consis- that a defendant never held United recently held The Court a clear and process, assume Watts, 148, tent with due 117 S.Ct. v. 519 U.S. as to matters curiam), convincing proof standard (per 136 L.Ed.2d 554 the sen- “dramatically increase in a cаse did not that an criminal acquittal Watts, at 117 S.Ct. 519 U.S. from en- tence.” sentencing judge preclude the fact, question salient sen- un- In facts 633. based on the hancing a sentence whether the has been not tencing reaf- cases Watts derlying alleged crime. En- 9. As Indeed, we Eastwood National noted in government argues that 3559 8. Inc., govern- evidentiary imposing a and convinc- puts quirer, burden on “clear is, Rather, only duty pro- its evidentiary ment at is means of ing” all. standard "a get argument, "to put at oral it consequences society tecting from the copies rolling" by producing certified ball lightly 123 grave too reached." decisions second-degree robbery convic- past (9th Cir.1997). This 5 1252 n. F.3d Therefore, prove it claims it need tions. by imposing grave logic this statute inverts preponderance of evidence that a even convincing consequences clear unless have been com- felonies three serious violent proof is tendered. mitted. 1205 defendant, prose- but rather whether the viction for second-degree robbery of higher cution should held to a burden Bakery Bill’s as Kaluna’s “third strike.” See, McMillan, proof. e.g., 477 at U.S. sentence, a order to avoid life Kaluna 2411; Restrepo, 106 S.Ct. 946 F.2d at 659- must assemble clear and convincing proof Lombard, 60; United States F.3d use, use, that he did not or threaten to (1st Cir.1995); Witte, firearm or another dangerous weapon in a 2199; Townley, at pled crime to which he guilty over two 370; F.2d Trujillo, United States v. ago. decades That task would be formida- Cir.1992); F.2d United standard; ble under a mere preponderance Kikumura, States v. 1100- it becomes a near-futile exercise under the (3d Cir.1990). constraint of producing “clear and convinc- ing” proof.

Where, here, The uncertainties inherent provi- enhancement relying decades-old, on a great sion results in a disparity undeveloped, between ambiguous the sentence for the crime in the record charged underscore the substan- imposed, indictment and the sentence tial making risk of the court an erroneous have placed higher courts burden on the determination based solely on the high prosecution. As the Third Circuit has not- burden of proof imposed on the defendant. ed, context, this extreme ... a “[i]n Finally, the consequences of an errone- reflexively apply pro- cannot the truncated ous determination are severe. if Even perfectly cedures that are adequate all that, Kaluna were able to show likely more mundane, of the more familiar not, than he did not use or threaten to use Kikumura, determinations.” 918 F.2d at dangerous firearm or other weapon Thus, precedent suggests that the Bakery the Bill’s robbery, the statute high of proof placed here on the imprisonment. would mandate life defendant cannot stand. imposed district court a life sentence on Second, the statute a grave creates risk entirely Kaluna based on the standard of of error. The “more stringent the burden proof, specifically finding that Kaluna had bear, party must the more that failed to preclude meet his burden “to party bears the risk of an erroneous deci any use of of his convictions.” The simi- Cooper, sion.” larities with Cooper are obvious: for Kalu- Director, 1373 (quoting Cruzan v. Mo. situations, na and those in like the risk of Health, 261, 283, Dept. error high, consequences is ex- (1990)). L.Ed.2d 224 Be treme. cause the sentence enhancement is found events, ed on probability historical of Thus, notwithstanding stringent the less an erroneous decision under section govern constitutional standards which sen- 3559(c)(3)(A) substantially is higher than tencing, Restrepo, see at F.2d the corresponding risks in Cooper either or process. U.S.C. 3559 violates due Cooper, McMillan. In the issue was the not, Congress may as it sought has to do present defendant’s competency, one which here, objectives “advance the of its crimi- could be assessed from the at evidencе nal the expense laws at of the accurate hand. at In S.Ct. 1373. factfinding criminally owed to the accused McMillan, the sentencing factor was visi who suffer the nonpersuasion.” risk of possession ble of a firearm in the commis McMillan, 477 U.S. at 106 S.Ct. 2411 crime, charged sion of the again a fact (Stevens, J., Rather, dissenting). the val- which readily could be ascertained within underlying procedural ues process- due the case context. 477 of, particularly accuracy ap- those and the pearance fairness-require equal of a more Here, contrast, by prosecution seeks contemplat- distribution of the risk than is to use the almost twenty-five year by old con- ed this statute. appealed deci- of the not basis were consid recently has Circuit The Sixth Ctr., Med. Heights Peralta sion. See the same and reached matters these ered 80, 86, v. Gate States United conclusion. See Cir.1999). in the (6th so especially This is

wood, former Chief sentencing. As of it: “The defendant’s context put Judge As Merritt observed, 3559(c)(3)(A) “ordinarily of has Judge Wallace proof of burden remand, who is more ex judge thus fails to on the district statute three-strikes arguments by specific fairness’ as defined fully advised ‘fundamental hibit in- it make an analysis counsel, to is better situated Process Cooper’s Due appellate cost of error than is an risk and high such formed determination imposes ques- hypothetical at 554-55. answering Id. its own' court on defendants.” Jenkins, F.2d tions.” United reasons, imposi- the statute’s these For Cir.1989) (Wallace, J., (9th concur- 433, 441 convincing burden clear tion Indeed, appel- an cases where ring). “[i]n defen- unconstitutionally deprives proof improper an court determines that late of law. process of due dants the normal applied, burden can evidence so that remand course to Ill appropriate light reexamined lengths to some majority goes The F.3d Vasquez, 5 Mason v. standard.” of whether a question the crucial elude Cir.1993) J., (Pregerson, 1226, 1227 evidentiary burden convincing clear dissenting). on a crimi- constitutionally placed may be To avoid ‍‌​‌‌‌‌​​​​‌‌​​‌​​‌​‌​‌‌​​‌‌‌‌‌​​​​​‌​‌​​‌​‌​‌‌‌​‍that sentencing. nal defendant error is Thus, harmless doctrine of anal- decision, a new majority conducts error doctrine misapplied. harmless the district upon of crimes ysis fact-finder; not the it is func- supports the factual deter- and makes the rely,10 not did appellate allow doctrine to tion of the would not the defendant mination that findings. support new courts to make adjusted satisfied have “three strikes” apply of its decision Indeed, majority goes on to proof.11 statute, specifically iden- district сourt “Defen- finding that make the affirmative those As to robber- tified robberies. three even if matter of law as a dant would lose qualifica- ies, preliminary she determined of proof.” the burden bore proffered tion, the defendant’s assessed made the dis- findings are Those standard, statutory evidence under cited court, and the crimes trict statutory eligibility. then determined of the district not the basis majority were basis was sentenced defendant sentencing decision. court’s prov- our It is within findings. those based on the defendant review, ince to sentence it de Except in novo cases sentencing deci- outside the considerations decide issues that generally improper Referring question of whether to the 11. the statute did noted that 10. The court district high unconstitutionally prior imposes an of several statute "preclude the use" However, recognized that majority that proof, holds "[w]e crimes. burden of automatically issue, authorize finding does not "this that do not reach need not and of conviction prior use of all three occasions to establish affirmative defendant failed 3559(c)(1)." sentencing under U.S.C. for the lowest standard under defense even analysis of full only conducted a The court available, evi- preponderance proof offenses, finding convic- those prior that two course, rationale, Supporting this dence.” two seri- “permit use as tions their sentencing proposition that the is the doubtful violent, required felony convictions ous sentencing pass would imposing a life sentence scheme Thus, the court the [Act].” if the muster defendant’s even constitutional reasoned, unnecessary to is thferefore "[i]t Kaluna, preponderance. See a burden were other convic- analysis on the an conduct such 1080-82. 152 F.3d at felonies qualifying violent as serious tions here.” Appeals imposing are not sentenc- merits without an evidentiary sion. Courts ing courts. predicate. example, For in the seminal York, case of Patterson v. New the defen- charge, apply even if we were to Our dant challenged process grounds on due standard, is to harmless error assess New York law requiring criminal defen- whether the constitutional error is harm- prove dants to the affirmative defense of beyond less a reasonable doubt. See extreme emotional disturbance a pre- 18, Chapman California, 23- (1967). 197, 824, ponderance of the evidence. 432 U.S. 17 L.Ed.2d 705 87 S.Ct. 198-99, case, say this one cannot that the evidence

concerning Bakery robbery argued the Bill’s is so The defendant that this compelling that the constitutional еrror improperly persua- shifted the burden of beyond was harmless a reasonable doubt. prosecutor sion from the to the defendant. Indeed, arguably equi- the evidence is 200-01, id. at See 97 S.Ct. 2319. The poise. Accordingly, proper course is preliminarily Court did not assess whether proof, to determine the correct burden of burden, the defendant had met his or At resentencing. and remand for prosecution whether the would have met point, might the district court chose to its burden argument had the defendant’s a full analysis potentially conduct of other instead, prevailed; the Court addressed However, qualifying beyond crimes. it is the defendant’s challenge squarely. See our dominion to do it in the first instance. id. 97 S.Ct. 2319. majority imply seems to that a Historically, the Court has addressed standing criminal defendant lacks to chal- allegations defendants’ of unconstitutional lenge constitutionality of statute burden-shifting immediately and directly sentenced, under which he or she is absent evidentiary without assessment so, preliminary evidentiary showing. If Likewise, majority requires.12 in its defendant, this is incorrect. As a criminal opinion very question recent on the may challenge Kaluna the statute he is hand, the Sixth did Circuit not first re- charged violating with and under which he quire the defendant to a quantum tender Wright, is sentenced. See United Stаtes proof considering before his constitu- Cir.1997) 117 F.3d 1274 n. 18 Gatewood, challenge. tional See (“as defendant, a criminal Wright has (directly addressing at 552-54 the defen- ‘standing’ to assert a constitutional chal- challenge dant’s an requiring without evi- lenge charged to the statute he is with dentiary predicate noting and also violating”), part vacated in on other (11th Cir.1998). provided defendant “[t]he grounds by 133 F.3d 1412 any previous robbery of his felonies were Every Supreme time the Court has consid- ”).13 challenge ‘nonqualifying.’ gener- ered a constitutional Courts do not evi- burden, dentiary proceeded it has ally require criminal defendant to first See, e.g., Raley, prove Parke v. 506 U.S. fendant to that he acted in the heat of (1992) (consider 121 L.Ed.2d 391 passion provocation on sudden in order to ing Kentucky's burden-shifting persistent felo manslaughter); 790, reduce the homicide Le ny offender statute merits Oregon, land v. requiring without defendant to meet an evi (1952) (addressing 96 L.Ed. 1302 a defen Montana, dentiary predicate); Sandstrom v. challenge Oregon requir dant’s to an statute 61 L.Ed.2d 39 ing a the de criminal defendant establish (1979) (considering improper burden-shifting insanity beyond fense of a reasonable doubt jury requiring instruction without defendant any requiring without first him to evi tender to show shifted burden would have made dence). Wilbur, difference); Mullaney v. L.Ed.2d 508 Thus, majority procedural crеates a (considering on the merits without an eviden- Circuit, inter-circuit conflict with the Sixth as tiary predicate process a constitutional due well as one the merits. on challenge requiring to Maine’s statute a de deciding what her case before his or prove to be shouldered. proof ought

burden Baker, Joyce and Kevin THOMAS faith, good Thus, although acting Plaintiffs-Appellees, issue to finesse an attempts majority v. adage that consti- it not avert. should EQUAL COM- RIGHTS ANCHORAGE to avoided ought is questions tutional Municipality of An- and the MISSION However, this sound advice. certainly still Defendants-Appellants. chorage, and fair- squarely question constitutional findings on the It is founded ly presented. and of the district court the basis that form capacity Haley official Paula her findings ap- on Assembling new decision. Alaska Executive Director analyses conducting hypothetical peal and Rights, for Human Commission State our decision stretches the reconstituted Defendant. too far. domain error, Further, relying on harmless by Joyce Baker, and Kevin Thomas error. there is majority implies Plaintiffs-Appellees, to district doing, it does a disservice In so apply must labor judges, who statute, articulate the correct by failing to Anchorage Equal Rights Commission deferring than Rather standard. Anchorage, Municipality of and the day, mandating an another question for Defendants, makes the evidentiary predicate imposing in the fu- effectively unreviewable issue Thus, course appropriate

ture. capacity Haley in her official Paula par- question presented decide Director of the Alaska the Executive ties, sentencing decision and commit Rights, for Human Commission State the district court. hands of capable Defendant-Appellant. 97-35220, 97-35221. Nos. IV Appeals, Court of United States with the notion that quarrel would Few Circuit. Ninth receive stiff violent felons should recidivist Kaluna is Jean Bryan punishment, 19, 1999 Filed Oct. ably majority has shown. Valjean, as the it, Yet, before, “society Hugo put as Victor ORDER up thinking gives ‍‌​‌‌‌‌​​​​‌‌​​‌​​‌​‌​‌‌​​‌‌‌‌‌​​​​​‌​‌​​‌​‌​‌‌‌​‍itself and withdraws HUG, Judge. Chief forever,” we assure ourselves being must majority of a of nonre- Upon the vote accorded the defendant has been due court, it judges of this regular active cused sentencing. Requiring law in process of case be reheard is ordered that this proba- defendant is sentence when the life court, to Circuit Rule pursuant en banc act does not bly qualifying innocent of three-judge panel opinion, Thus, I 35-3. would comport process. with due Anchorage Equal Rights Thomas and hold the “clear join the Circuit Sixth Comm’n, Cir.1999), is 165 F.3d 692 proof imposed convincing” withdrawn. on defendants unconstitutional. respectfully

I dissent.

Case Details

Case Name: United States v. Bryan K. Kaluna

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 30, 1999

Citation: 192 F.3d 1188

Docket Number: 96-10527

Court Abbreviation: 9th Cir.