United States v. Hunt

y persecution should generally outweigh egregious all most but the of adverse fac- jurisdiction We have to review the BIA’s N. Dec. tors.” 19 I. & at 474. denying final order relief in the form of While there is a sense of unfair asylum, despite the fact that the Board in singling purpose ness out Li for the 1003.1(d)(6). pursuant remanded Be- sending message potential asy to other properly cause the BIA considered the seekers, lum required the BIA not is totality of the and weighed circumstances grant asylum every applicant. qualified persecution against risk of the egre- Cardoza-Fonseca, See INS v. 480 U.S. gious entry nature of Li’s into the United n. 94 L.Ed.2d States, deny petition we for review. (1987). Otherwise there would be no Petition DENIED. meaning power behind the to exercise a discretionary denial. In dismissing Li’s

appeal, BIA specific considered Li’s

circumstances, positive including the negative asylum. factors associated example,

For addition to Li’s method of entry, the BIA considered likelihood severity persecution against Li if he China; returned to that other relief had America, UNITED STATES of granted; been that Li did not family have Plaintiff-Appellee, legal members who would lose their status as a asylum; result of his denial of that Li Mexico; compelled to leave Stacy HUNT, Defendant-Appellant. departure his from was not trig Mexico No. 09-30334. gered by impending threat to him or freedom; and that he was aware that Appeals, United States Court of he could walk to the United States and Ninth Circuit. asylum, seek but in attempt to avoid Argued and Submitted Dec. 2010. significantly detection chose a more dan gerous concluded, method. The BIA after Sept. Filed considering “all circumstances case,” that IJ did not abuse his discre in denying

tion asylum application. Li’s properly The BIA considered the totali- ty of circumstances weighed the rele- vant positive negative factors when

considering whether to appeal. dismiss Li’s Pula, See Matter 19 I. & N. Dec. at 473. entry Li’s egregious method of and he protected persecution from through oth- er forms of relief. Because the BIA’s

decision appear arbitrary, does not con- law, trary irrational, there was no abuse of discretion. therefore deny We petition. BEEZER,

Before: ROBERT R. O’SCANNLAIN, DIARMUID F. PAEZ, A. Judges. RICHARD Circuit PAEZ; Opinion by Judge Dissent Judge O’SCANNLAIN.

OPINION

PAEZ, Judge: Circuit The district Appellant court sentenced Hunt Stacy to 180 months in prison after pled guilty attempting controlled substance with the intent to dis- in 841(a), §§ tribute of 21 violation 846. Hunt appeals his sentence but not his conviction. alleges He that the district court Apprendi erred under v. New Jer- sey, (2000), by sentencing

L.Ed.2d 435 him for attempted possession with intent to dis- an unspecified tribute amount of cocaine though even he never admitted that he attempted to possess We con- clude that the district court erred under Apprendi and that the error was not harmless. Accordingly, we reverse and remand for resentencing.1 Background I.

Acting tip, police on a intercepted a suspicious Express package Federal at the in airport Anchorage, Alaska, on January Mendel, Associates, Allison E. & Mendel 26, 2004. police brought a drug- AL, Anchorage, appellant. for the sniffing dog that package. alerted to the Steward, T. Andrea Assistant United warrant, obtaining After a search po- Attorney, AL, States Anchorage, for the opened package lice and discovered it appellee. contained approximately kilogram one cocaine hidden in police candles. The re- most moved of the cocaine and resealed the package with a nominal amount of the inside. argues 1. Hunt substantively also that the district vio- court unreasonable. we Because va- lated Federal Rule of Criminal Procedure cate sentence and remand for resentenc- error, procedural the court committed due to the we do not fact-finding, its arguments. sentence was address Hunt's other court, later, state rather than federal days proceed an undercover officer A few lawyer, to an apartment court. was released. His package delivered pack- signed however, A for the him. Anchorage. woman lost contact with investigators conducting age, 17, 2004, February grand On federal put in the her watched surveillance Hunt, alleging he “did jury indicted later, the inves- of a car. trunk Sometime knowingly intentionally attempt Stacy Hunt take tigators observed with intent to distribute a con- it towards carry from the car and substance, grams trolled to wit: 500 thereafter, Shortly apartment. more of mixture and substance contain- Explorer in a Ford driven left white of cocaine” in violation 21 U.S.C. man. another 841(b)(1)(A). §§ On December Ford several officers followed the While California, Hunt was arrested and apartment others searched the Explorer, subject officers learned that he was the signed to woman for spoke and the who taken a federal arrest warrant. Hunt was police told that she had package. the She drug to the federal distribu- to Alaska face man package to the for a agreed receive charges. tion paid approxi- who her “Sterling,” named ultimately guilty Hunt decided to plead of three mately accepting delivery $400 plea a agreement. change without At the She she did separate packages. claimed hearing, there were refer- plea several package. what was inside the not know attempt possess to to ences Hunt’s tailing Explorer the con- The officers First, response inquiry to the court’s saw stop a traffic the Federal ducted offense, the the regarding elements of They package inside vehicle. Express (AUSA) Attorney Assistant United States Hunt, the driver and who carried arrested that the need to government stated with “Mar- identification the name Oregon “attempted at trial Hunt to prove that McCoy.” interrogated the police io parcel a little over possess that contained a driver, who them that he had driven told kilogram of ... and that he did cocaine Walker,” Hunt, “Buddy whom he knew as un- knowingly.” Hunt stated that he so package on two occasions. He pick up to those After a few mo- derstood elements. him given told them that Hunt had also passed, the AUSA stated that he ments into deposit or six thousand dollars to five “Mr. to the element that forgot include in order checking account to obtain attempted possess Hunt to that cocaine cashier’s check. the intent to distribute it thereafter.” present, With Hunt’s counsel that responded Hunt that he understood using Hunt as well. Still interviewed additional element. signed McCoy, Mario Hunt a written name The court restated elements then detailing transaction. statement you attempted offense as follows: “So drugs he had Hunt wrote that ordered cocaine, you knew it was cocaine possess to person in He wrote from a California. illegal you it with drug, some did person package received the that the who guess to I those are the intent distribute. that a supposed paid to be $400 elements, okay?” (emphasis add- the three put coke of kilo of was to be “package ed). elements, “To replied, Hunt those out- burgundy parked Mercedes S.U.V.” then that yes, agree.” I Hunt asked Immediately below a restaurant. side last the elements one government state statement, lawyer wrote Hunt’s gov- responded time. AUSA govern- with the cooperate Hunt would “Mr. prove would have government if the allowed the case ernment ment attempted every doubt,” which possess parcel Hunt benefit of the that it would kilogram a little of co- contained over accept argument and sentence him ... prove caine have to [and] [w]e’d attempted as if he had an un- possess attempt possess Mr. Hunt’s cocaine specified amount cocaine under 21 knowingly and then we’d have to done 841(b)(1)(C). prove that he intended to distribute that sentencing In the contesting memoranda possession of coming cocaine after into it.” 841(b)(1)(A), applicability section replied, “Yes I understand those ele- Hunt never raised issue of whether he amount, specific ments. As far I as the plea colloquy had admitted at the that he personal knowledge don’t have of it ... as attempted cocaine. When the opened I weighed never argument court heard oral on Hunt’s ob- it, accept but I do responsibility for what- jections presentence to the report at the ever it was.” however, sentencing hearing, initial After the stated facts it expressly denied that he had admitted to expected pro- if the case were to attempting cocaine when he and including ceed to that Hunt was trial — court engaged following ex- possession found in a package of of over change: grams of and cocaine later admitted Also, that he had HUNT: I drugs my objec- ordered the in a written when made said, part, tions, statement —Hunt “For overlooked, the most has which been I the facts are true. I admit all the ele- objected on also the grounds that I 841(a)(1), said, ments of also I I as did did not at plea colloquy admit to a it, not receive the package open so I specific substance, of type controlled specific knowledge have no of what it con- only and I agreed attempted that I tained other than it did contain con- a possess a controlled substance. substance, know, I trolled that do and I Right. THE COURT: attempt did that controlled sub- crack, cocaine, marijua- HUNT: Not or stance.” Hunt also confirmed that he had na, anything only like that. I give away intended to sell or the controlled agree to a Schedule II —not even a then gov- substance. court asked the only agree Schedule II. I to a con- ernment, sufficient, “That sounds doesn’t you trolled substance. So are also it, agreed counsel?” The AUSA making finding a for type of Hunt’s admission supply was sufficient to also? offense, factual basis for the and the court

accepted plea. Hunt’s Yes, THE okay. COURT: sentencing hearing Hunt’s stretched out like HUNT: So I’d sure make over a number of months because of sever- (indiscernible) my objection is in for First, al controversies. Hunt argued that just quantity but also to type as he should not be sentenced under 21 drugs. my position And is that I 841(b)(1)(A), § U.S.C. the penalty provi- fall to marijuana should back for no sion possession for with intent to distribute remuneration, statutory with a max of cocaine, grams more than 500 because (b)(1)(D). years, up five —under he specific did not admit to a amount of Very Boy, THE you’re COURT: well. drugs during change plea hearing. record, your made smart. You’ve but parties After both filed several competing you changed my haven’t mind. I— decided, issue, motions the court “in caution, giving abundance of Okay, defendant HUNT: that’s fine. acceptance responsibility, see id. sentencing hearing, tion subsequent At a 3El.l(a), § Felici- in a final resulting called Detective Elizer offense government Anchorage Department. Police of the of 26. ano level present when Feliciano was Detective Next, parties agreed the statement which signed history Category score criminal was IV. ordering receiving drugs admitted to lengthy history, on Hunt’s criminal Based Through detective’s

from California. upward departed court criminal testimony, introduced VI, history yielded score of which an advi- laboratory re- Drug Agency Enforcement sory guidelines range of 120 in the showing that the substance port considering months. After 1,102 grams Express package Federal 3553(a) factors, sentencing the court de- Further containing a mixture upward that a variance termined further that the mixture was analysis showed ultimately warranted. The court sen- pure cocaine. percent months, years, in tenced Hunt to 180 or 15 that, in train- testified The detective prison. receiving a person experience, cocaine, a kilo- quantity of such as large II. Review Standard of amount he wished specify gram, de a claim We review novo agree price on a purchase and would sentence violates defendant’s constitu the seller. He estimated rights. Raygosa- tional United States approxi- was worth cocaine Hunt received Cir.2009). F.3d Esparza, 566 $25,000. mately are Apprendi errors reviewed under the cross-examination, Detective Felici- On applied harmless error standard in Neder and of type that the amount ano testified States, 1, 527 v. United U.S. Federal drugs Express contained the (1999). 1827, 144 L.Ed.2d 35 See United police known to the before package were 909, v. 470 Zepeda-Martinez, F.3d States statement, and that the gave his (9th Cir.2006) that un (holding 913 informa- likely communicated this Apprendi is if the court finds der harmless attorney to before the inter- tion Hunt’s a that beyond reasonable doubt the result that took He also confirmed place. view er have been same absent the after Hunt and the the interview occurred ror). cooperation into a government had entered ability agreement contingent upon Hunt’s III. Discussion provide reliable information. A. Error of Detective Feliciano’s tes- On basis prior than fact of a con “Other was timony, court found that Hunt viction, any the penalty fact that increases grams for than 500 responsible more beyond statuto prescribed for crime calculating purpose cocaine for jury, must be ry maximum submitted to a sentencing advisory applicable proved beyond and reasonable doubt.” guidelines range. Pursuant the United 490, 120 U.S. S.Ct. 2348. Apprendi 530 Sentencing Guidelines States Buckland, v. ex In United States we 2Dl.l(c)(7), § the court determined intent honor the of Con plained “[w]e To this Hunt’s base offense level 26. requirements process and of due gress level, a two en- applied point court quantity type, and which by treating drug justice hancement for obstruction of as conviction, for a arrest, fix the maximum sentence after absconding result of Hunt in a 3C1.1, point any other material fact § a two reduc- as we would see id. at and 912 (2) prosecution: charged person,

criminal it must be another that the defendant indictment, jury, submitted to the did that was a something step substantial evidence, subject committing to the rules of and toward See crime. Ninth Jury proved beyond reasonable doubt.” 289 Cir. Model Instr. 9.17. ex- (9th (en bane) (em Cir.2002) 558, pressly F.3d pos- 568 admitted he intended to added); phasis see v. sess a also United States controlled substance and that he (9th Thomas, Cir.2004) 1191, 1195 F.3d 355 intended to distribute the controlled sub- stance, ... (“[D]rug are type quantity materi and he does not his convic- appeal al facts that must be tion jury generic submitted for this offense. doubt.”). proved beyond a reasonable light colloquy of the at the however, change plea hearing,

When conviction obtained we con through guilty plea rather than a clude that Hunt did not admit that he verdict, government has the burden intended unspecified “[t]he amount 841(b)(1)(C). ‘at plea colloquy explicit seek cocaine under section We any admission of unlawful conduct it note seeks first that Hunt was of incor informed ” Thomas, to the attribute defendant.’ rect and inconsistent statements of the 355 1199 (quoting F.3d at States heightened United v. elements of the offense and the Cazares, (9th 121 F.3d sentencing drug 1248 Cir. provisions type.

1997)). plea A guilty constitutes an erroneously admis twice stated sion to the formal of an required elements offense. beyond reason Cazares, See 121 F.3d at 1246 able (citing “knowingly” doubt that Hunt attempt States, McCarthy United ed to knowing pos cocaine. While (1969)). L.Ed.2d session is an element completed of the held, however, We have quantity possession offense of intent distrib type ute, are formal 9.15; elements Ninth Model Jury Cir. Instr. see, offenses out e.g., set 21 U.S.C. 841. States v. Orduno-Aguil United Thomas, era, Therefore, F.3d. at Cir.1999), 183 F.3d even though process requires due attempted possession proof that requires in of tent, drug type charged be in the knowledge. indictment not The district court beyond doubt, proved correctly reasonable govern informed Hunt the that plead defendant can to 21 guilty prove U.S.C. ment to needed that he intended to 841(a)2 § cocaine, the admitting type possess without of incorrectly but stated that drug. at government See id. the could by meet its burden proving that Hunt possess intended to co Here, purportedly Hunt pled guilty to caine “or some other controlled sub attempted possession the with intent to stance.” distribute a controlled in substance viola- 841(a) §§ tion of 21 846. The Nowhere in the record did either the (1) the elements of government offense are that the or the court Hunt inform that defendant intended to attempted controlled conviction possession for with substance the with intent to distribute it intent to to distribute cocaine under section 841(a) ture, distribute, § 2. 21 U.S.C. dispense, reads: or a controlled substance; (a) Unlawful acts or create, (2) distribute, Except subchapter, dispense, as authorized to or or any person it shall be unlawful for know- possess with intent to or distribute dis- ingly intentionally— or pense, a counterfeit substance. (1) manufacture, distribute, to or dis- pense, or to intent manufac- 841(b)(1)(B) (maximum § of 40 841(b) juana); beyond a reasonable requires proof grams than of cocaine years for more pos- intended that the defendant doubt in prison to the a maximum of life where death reference Ninth Quick sess cocaine. injury would results from the use of jury instructions or serious model Circuit’s Jury In- The court drug). this error. district sentenced likely have avoided 841(b)(1)(C) drug emphasizes pos- section for plainly 9.17 Hunt under struction element of the offense unspec- in first with intent to distribute an type session government cocaine, must to a exposing it states that Hunt when ified amount intended to pos- defendant prove years prison. “the of 20 maximum sentence ...” ] controlled substance [specify sess under Apprendi court erred district change original). 841(b)(1)(C) At (emphasis Hunt section sentencing under however, the gov- neither plea hearing, penalty his maximum increased because unequivocally the court ever ernment nor years prison year from one based that the would government informed Hunt possession fact—Hunt’s cocaine— that Hunt intended to required prove be never that Hunt admitted in addition to other possess cocaine beyond government proved never a rea- offense. elements a jury. doubt to sonable Notably, summa- after B. Error Harmless if that it intended rized the facts trial, finding of er Hunt Our constitutional proceed case were however, inquiry, of the con- ror does not end our knowledge expressly denied stated he did we must review errors tents because he know contained because not what for harmlessness. See United States opened it and looked inside. never F.3d Zepeda-Martinez, 470 only Cir.2006). court that he admitted harmlessness, informed the assessing In we 841(a), which the elements of U.S.C. the entire record to assist us in review (or type conspicuously specify does determining parties what evidence the amount) short, of controlled substance. presented drug-type would have had the during plea colloquy did at no time fully litigated at trial. issue been admit to facts expressly n.3. record is Id. therefore attempted to establish what guide determining evidence possess was cocaine. if the would have established case had trial; it is not a proceeded substitute did not admit that he Because Hunt trial, only a and there be evidence need cocaine, and because attempted contrary finding to support sufficient to not that government did fact to the show the error was not harmless. See that doubt, beyond fact jury a reasonable that Neder, 527 U.S. at 119 1827. S.Ct. in not an increase support could be used Thus, only Apprendi error harmless sentence Hunt statutory the maximum ‘overwhelming’ the record contains 841(b) “where numerous faced. Section contains supporting evidence ‘uncontroverted’ provisions correspond that vari- penalty (quoting the Id. of crime.” element drugs. of The types ous and amounts 1827). 17-18, Neder, at 119 S.Ct. of range from maximum one penalties “ if An error is not harmless ‘the Apprendi year prison to maximum life 841(b)(3) the omitted element See, § defendant contested e.g., 18 U.S.C. prison. (maximum support sufficient and raised evidence year schedule V sub- of one for ” Neder, 841(b)(1)(D) (maximum finding.’ (quoting stance); contrary § Id. of five 1827). 19, 119 of mari- 527 at S.Ct. years kilograms than 50 U.S. less 914

Here, in arguing Apprendi authenticity that the er of the warrant of removal. harmless, Hollis, government Id.; the relies ror was see also United States v. 490 principally Cir.2007) on our decision United (holding F.3d Zepeda-Martinez, F.3d States 909 that Apprendi was harmless where (9th Cir.2006). In Zepeda-Martinez, we several witnesses testified at trial without an Apprendi held that error was harmless contradiction defendant possessed had reviewing upon the sentence a defen and sold crack cocaine and did defendant was being dant who convicted of a re drug type contest evidence of at alien found in the States in moved United trial, objections in his presentence violation 8 U.S.C. 1326. Id. at 912- at report, sentencing). thus We were case, Zepeda-Martinez 13. beyond a “satisfied reasonable doubt that subjected to an enhanced sentence because ... the result ‘would have the same been ” sentencing at the court that he found had [Apprendi absent Zepeda- ] error.’ removed from been the United States af Martinez, Neder, 470 F.3d at (quoting having ter committed a crime of violence. 1827). 19, 119 527 U.S. at finding Id. at 911. The court based its sharply Zepe Hunt’s case contrasts record California of conviction dated Here, dar-Martinez. the record does not 21, 2002, May and a warrant removal contain overwhelming that Hunt evidence showing Zepeda-Martinez was or First, attempted dered removed on June 2004. Id. at intent, contested fact this case is Hunt’s 912. We concluded that the district court subject a fact is not easy proof like Apprendi by basing erred under the sen prior Zepeda-Mar date of removal in part tence in on the prior date of the tinez, a which proved through fact removal, a fact which was never admitted documentary uncontroverted evidence. by Zepeda-Martinez guilty during plea Here, government no presented evi proven jury nor to a beyond a reasonable dence that Hunt looked inside the Id. at doubt. 912-13. contents, verify its and neither the cir held that We error was cumstantial evidence surrounding of harmless, however, because the record at opinions fense nor Detective Feliciano’s sentencing overwhelming contained evi- beyond convince us doubt reasonable dence of date of the prior removal. Id. that a would have found Hunt intend at introduced the Neder, ed to receive cocaine.3 See removal, warrant of an official government (“Is clear document which Zepeda-Martinez’s bore beyond a reasonable doubt that a rational name, signature and as fingerprint well as jury would have found guilty the defendant name, signature title and the immi- error?”). absent the gration officer who witnessed removal. Significantly, Id. Zepeda-Martinez government’s strongest did not evidence is presentence undoubtedly contest report’s allegation Hunt’s post-arrest signed had been removed in nor where statement he wrote of 1 “package hold, suggests, do not 3. We as the dissent that statement. This reflects our of assessment evidence, circumstantial evidence weight is not sufficient to of not a criticism of the only intent. We quality conclude the cir- inherent of circumstantial evidence. evidence recognize cumstantial on the record in Although this we government’s that the government case insufficient is for the to meet jury evidence could convince a of Hunt’s review, upon its burden guilt, harmless error even beyond we are not convinced a reason- coupled opin- when with Detective jury Feliciano’s able that a doubt would do so. See drug Neder, signed ions trade and Hunt's 527 U.S. at 119 S.Ct. 1827. Moreover, to Hunt had no reason contin- put burgundy in was to be kilo of coke evidentiary hear- drug-type during issue litigating At the ue S.U.V.” Mercedes however, non-frivo- presented Hunt ing, sentencing hearings course of the several reliability of contesting the arguments lous had ruled at the initial because the court Detective Feliciano After the statement. that Hunt had admit- sentencing hearing regarding the information conceded at the attempting cocaine ted likely passed on to delivery was drug change plea hearing. of We faced simi- Hunt’s attorney preparation in Hunt’s Jordan, in States v. lar situation United argued Hunt police, with the interview sentenced based on where a defendant was contents of the only learned of the that he drug quantity that was finding a court’s lawyer. Hunt also through his package in indictment nor sub- alleged neither in only signed the statement stated jury. mitted to the 291 F.3d 1091 agreement with cooperation exchange for Cir.2002). concluding there signed state- and that the harm- Apprendi that was not error under of what the an affirmation ment reflected less, we said: hear, personal his wanted no notice from the because Jordan had record, we conclude knowledge. On would be an quantity indictment overwhelming is not so that the evidence trial, deter- issue at we would need to beyond a necessarily find jury that a would might mine whether Jordan have con- that Hunt intended doubt reasonable and what evidence Jor- quantity tested presented. Finally, to might dan have constitutional conclude that the We also sentence, to be affirm the we would need harmless be- case was not error in this any say beyond able to reasonable doubt Hunt, Zepe- unlike the defendant cause jury, considering the actual evi- that a dar-Martinez, contested the facts expressly other evi- perhaps dence at trial and sufficient pointed to “evidence at issue presented, never would dence that was Neder, 527 contrary finding” support higher- convicted Jordan of the have Although the offense. quantity not expressly in Neder did Supreme Court evidence is “suffi- quantum what define contrary finding,” support cient many unknowns ... there are too Here evidence, record

light of the available confidence, say any let to be able to with intent in this case denial of his doubt, that the beyond reasonable alone Here, as noted meets that standard. evidence error was harmless. What above, knowledge type of the Hunt denied Jordan, might proffered been have at the in the twice—once quantity, a defensive effort to minimize and a second time plea hearing change properly charged if had the indictment He also contest- sentencing hearing. aat offense, involved quantity signed statement reliability ed entirely speculative. Feliciano. If of Detective opinions and the Similarly, plea at 1096-97. Id. testify at trial consistent Hunt were to provide in this case sentencing proceedings credited, facts, testimony, if these in- because Hunt’s inadequate record as to his a reasonable doubt would raise litigat- drug type was never regarding tent beyond a rea- cannot conclude intent. We error review of ed. Harmless a rational doubt that sonable “ what requires ‘determine] errors us credible, where especially not find intro- would have parties] [the evidence opportunity has never had properly issue been at trial’ had the duced testify. 916 Thomas, hearing.

presented.” change plea 470 See Zepeda-Martinez, F.3d 355 (quoting at 914 States v. Nord- n.3 United F.3d at 1201-02. Without admission to (9th Cir.2000), by, 225 1061 n.6 F.3d type drug the the involved offense or Buckland, by grounds overruled on other rights waiver of his under Buckland and 568). us, the record before F.3d On Apprendi, Hunt faces maximum of one predict speculative is at best what year 841(b)(3), § prison under U.S.C. presented have parties evidence the would the least severe maximum sentence under possess at trial relevant to Hunt’s intent to 841(b). Thomas, section See F.3d at 1201-02; compare trial, If proceeded case had he § 841(b)(l)(C)(unspecified amount could have raised Sixth Amendment or substance), I II schedule or with 21 U.S.C. objections, he evidentiary pre- could have 841(b)(3) (schedule substance). V testimony expert sented to counter the The dissent that this result complains Feliciano, opinions of he could Detective unjust because it allows a criminal to “es- have the various civilian cross-examined cape richly deserved sentence based on and government witnesses called the technicality.” require- irrelevant The government, and he could have decided to ment that government prove facts sup- testify to story. tell his side Most porting greater beyond sentence a rea- importantly, have evaluated doubt, sonable or defendant admit weighed conflicting evidence. facts, however, such is not an irrelevant contrast, appeal we have us on before technicality. Supreme Court has ex- presentence few report, a documents ad- plained requirement this involves sentencing mitted at hearing, and a protections “constitutional of surpassing cold transcript of detective’s one testimo- importance.” Apprendi, 530 U.S. at ny. case, Given record in the limited 2348; 120 S.Ct. see also In re Winship, we speculate decline to on how a hypothet- 358, 364, ical may trial have unfolded because “we (“It (1970) L.Ed.2d important is ... cannot reasonably conclude that these is- our society every free going individual sues can fairly be answered based on rea- about ordinary his affairs have confidence Jordan, son and the presented.” record his cannot adjudge him 291 F.3d at 1096. guilty of a criminal offense without con- Accordingly, because contested the vincing a proper factfinder of guilt fact that the intended utmost A certainty.”). sentence cannot be was cocaine and because record evi- “richly deserved” under our Constitution if overwhelming, dence is far from we con- the facts supporting sentence have not clude that the error in Apprendi this case proven constitutionally been required. as was not harmless. easily result we announce could IV. Conclusion have been avoided had district court or prosecutor precise been more during error, Due to we are re- plea colloquy obtaining Hunt’s ex- quired to vacate Hunt’s sentence and re- plicit type admission to the of drug he mand for resentencing. recognize We intended to and distribute. our in a This is ruling will result substantial re- task, not an and when a remand, duction in arduous defendant Hunt’s sentence. On equivocates the district to admit an court must resentence refuses essen- sentence, within tial fact statutory range applicable given supporting the district reject facts that were at the court can original plea admitted the defendant’s delivery A controlled inside candles. what the dis- Avoiding to trial. proceed pack- reduction on the sentence at the address listed calls a “windfall” executed sent is achieved Apprendi package to an for the and age. signed due A woman compliance with faithful through a court’s a car. Police then it in the trunk of put through requirements, constitutional defendant, Hunt, remove Stacy saw that Hunt We are aware review. appellate car and from the trunk of the package record, but stellar criminal a less than has Explorer. it in a Ford leave with suggestion implicit dissent’s reject we Explorer, seized the police stopped some- record should criminal that Hunt’s cocaine, Hunt. and arrested analysis. harmless error influence our how that he ordered Hunt admitted that constitu- is to see responsibility Our paid the woman the cocaine and $400 they are met. When requirements tional to leave it for him sign package for the and is not constitutional error not and the are wrote a in the trunk of the car. He then doubt, a reasonable beyond a harmless stating own hand confession with his cannot stand. sentence up ... pick [the] “Kisha called me REMANDED for re- and VACATED “my understanding is that Kisha package,” opinion. this sentencing consistent with $400,” “package paid would be and put burgundy to be Kilo of coke was O’SCANNLAIN, Judge, Circuit Mercedes S.U.V.” dissenting: effec- orders Hunt’s sentence The court B years to time from fifteen tively reduced took judge trial who because the served that Hunt alleged A federal indictment explicit to seek an plea failed guilty intentionally attempted] “knowingly and illegal Hunt knew that the admission a con- with intent to distribute ordered, picked up, possessed drug he substance, grams trolled to wit: view, my In this error was cocaine. contain- of a mixture and substance more overwhelming light harmless in cocaine,” in violation of Hunt knew uncontroverted evidence 841(b)(1)(B) appeared Hunt §§ and 846. doing. exactly what he was plead guilty to the sole in federal court really dispute majority does not judge asked in the indictment. The count Instead, a new rule promulgates this. Attorney the Assistant United States circuit, essentially eliminating (AUSA) the crime the elements of to state viola- harmless error review pleading guilty. The to which Hunt was unwarranted Because of such tions. elements would be AUSA stated that “the I sentencing jurisprudence, change in our January Mr. on or about 26th respectfully dissent. must parcel attempted kilogram of co- a little over a contained

I knowingly.” ... that he did so caine Hunt if he under- asked A The court then would have to what the stood Anchorage Police January conviction, in order to obtain that a information Department received said, discussed you’ve “Yes.” “And trafficking cocaine “Stacy” was man named the court your attorney?” all this with Later, it in candles. by hiding Alaska into said, “Tes.” The Again, Hunt asked. intercepted officers law enforcement noting that he interrupted, AUSA then Anchorage airport which at the element, Mr. Hunt namely, “that forgot hidden of cocaine kilograms contained 1.2 departure to with in ulti- attempted possess upward reaching that cocaine you to distribute it.” under- of driven years intent “Do mate sentence fifteen were history. that additional element?” asked the stand Hunt’s extensive criminal As “Yes, it, I Again, replied, court. Hunt do.” court put the district Hunt a life has led activity.” with criminal “consumed point, At this the court added casual up in simple question phrase follow exaggeration. was no This In which, out, effectively as it turns knocks just seventeen, when Hunt was he at- years fourteen off Hunt’s The sentence. street, tacked a woman on the her dragged you judge attempted possess said: “So stairwell, attempted rape into a and her. cocaine, you knew it or some was cocaine police top The found Hunt on exposed and drug, you and the intent illegal did with woman, plead- of the who crying was and I guess to distribute. those are the three stop. him to punches Hunt’s left added). elements, okay?” (emphasis Hunt mouth, face, bleeding her with a a bruised elements, yes, I responded, “[T]o those and scratches on her neck. re- To avoid asked, agree.” you give Hunt then “Could Hunt sponsibility, told the those elements again?” me once The prostitute woman attempt- was and was court directed the the ele- AUSA to state ing to rob him. Hunt was convicted again, he Mr. ments and said “that Hunt but, rape attempted age, due to re- his possess attempted parcel which con- jail later, years ceived no time. Four a little kilogram tained over a of co- Hunt arrested for assault was sexual .... We’d have caine Mr. time, again. This he was of kid- accused attempt Hunt’s cocaine was woman napping a outside her home at knowingly done and then have to we’d gunpoint, forcing car, driving her into his prove that he intended to distribute that her park, raping to a and her. Hunt’s cocaine.” “Got it?” the court asked. defense, again, was that the woman was yes,” “Yes, “Okay, replied Hunt. I under- prostitute. charges No were filed. elements,” continued, stand those later, Hunt, A month in October specific amount, as the “As far I don’t have along with four others mem- claiming to be personal knowledge opened of it as I never Disciples,” severely bers of “the and beat it, I weighed but do ac- to kill a threatened man who refused had cept responsibility in for whatever was it.” give them the case of beer he was sufficient, Deeming this accepted the court carrying. Although Hunt was arrested for guilty plea. robbery, dismissed, the case part victim because the could be lo- longer no

C In cated. Hunt was convicted district court Hunt for sentenced cocaine, selling for which he received a attempting unspecified one-year sentence. cocaine, pursuant amount In 841(b)(1)(B), participated in the kid- statutory which carries a napping and murder of a rival dealer. drug twenty years’ maximum of imprisonment. Hunt claimed that his co-defendants forced The district court of- determined the base participate him to killing, story level twenty-six departed fense prosecutors apparently from which upward history category a criminal believed be- they arranged one of cause for him IV to VI to reach a Guidelines to receive sentence, three-year of 120 range suspended to 150 The court for twelve months. imposed months, exchange then for above-guidelines cooperation. sentence months. Both upgrade again Hunt was convicted of history category possession, jailed defendant’s criminal ninety days, put II years, three which probation for violated, ninety to serve more causing him majority correctly Ap recites the release, his Hunt year of days. aWithin rule: than the fact prendi “Other again, once this time probation violated his conviction, any fact that prior increases nightclub May in a in 1994. by gun firing penalty beyond pre for a crime years jail to two in Hunt was sentenced statutory maximum must be scribed sub finally of this when convicted he was proved beyond to a jury, mitted crime, failing appear origi- in the after doubt,” New Apprendi reasonable Jer proceedings. nal 466, 490, 2348, 120 S.Ct. 147 sey, 530 U.S. nightclub inci- days after eight Just (2000), astray 435 goes L.Ed.2d but there dent, 1994, Hunt committed “bat- in June Assuming arguendo after. dis injury deadly and a tery serious with error Apprendi trict court committed beating weapon,” by brutally ex-girl- his finding possession yet intentional cocaine cradle, baby a wooden friend with failing explicit to obtain an admission from in- injuries, a number leaving her with illegal drug that he knew the he required twenty cluding gash cocaine, precedent our possessed was re was to six He sentenced stitches to close. quires us determine whether such error (At time, the same he years prison. in States v. Zepe was harmless. See United kidnapping, sexual charged was also da-Martinez, 909, 470 F.3d 910 Cir. sex, oral not con- and forced but battery, 2006) (“Apprendi are errors reviewed for victed.) jail for Hunt went to these crimes harmlessness.”). is error harmless “[A]n 1996, parole released in but he was beyond if the court finds reasonable only parole to violate his years, after two ‘would have been doubt the result by testing positive three later for months ” absent Id. at 913 (quot same the error.’ for pa- He was arrested another States, 19, 1, Neder v. 527 U.S. United in 1999 and sentenced to six role violation (1999)). jail. He 144 L.Ed.2d 35 parole more violated months February he again may finding once for which The court such a make where 2007. was until ‘overwhelming’ not arrested “the record contains supporting” ‘uncontroverted’ evidence arrested on the current Hunt was Neder, (quoting omitted element. Id. charges in but absconded to Califor- 1827). 17-18, at S.Ct. Converse nia from custo- being after released if ly, the error is not harmless “the defen December dy. It not until when was dant the omitted element and contested beating arrested California for was support raised a con evidence sufficient women, up finally another Neder, trary at finding.” to face in the charges returned to Alaska a court must instant Where deter case. error Apprendi mine whether an history, criminal on this vicious Based harmless, “encompasses its review determined that a fifteen district court sentencing including proceedings.” whole record year necessary “protect sentence was Zeped at a-Martinez, F.3d public further crimes de- from of the (internal omitted). quotation n.3 marks 3553(a)(2)(C). fendant.” 18 U.S.C. is purpose of this broad review “to that, intelligence court added while determining what [the court] assist evi him may have enabled charisma parties would have dence introduced responsibility for taking significant avoid (internal marks omit quotation trial.” Id. past, in the would not do so actions ted). Thus, conclude, beyond a if we rea- this time. record, sonable doubt on the basis of the cocaine contained in the package (roughly that a would have convicted Hunt of kilogram) and how the up cocaine ended attempted possession of cocaine with in- in the trunk of the car: it was delivered to distribute, tent it, signed Kisha who placed for it in the harmless and we must affirm. car, and called Hunt to tell him it was ready pick-up. This evidence of Hunt’s A “overwhelming.” intent to possess surely cocaine is Here, the record overwhelming contains Zeped a-Martinez, 470 F.3d and uncontroverted evidence that Hunt at- at 913. tempted cocaine with the intent Further, Hunt has not “controverted” to distribute it. tip received a evidence, as he must to show that he “Stacy” that a man importing named prejudice suffered from the er Alaska, cocaine into hidden in candles. ror. Zepeda-Martinez, See 470 F.3d at Later, they intercepted package that ar- 913. Nor could he. Hunt admits that he just rived in Alaska containing over a kilo- package ordered the picked it up gram of cocaine hidden in candles. The knowing contained a controlled sub police then executed a delivery controlled stance, but he would have the Court be package of the at its intended address. lieve he did not know which controlled who, enough, Sure pre- as defendant — picked substance he ordered and up. Sure dicted, ‘Stacy’ is “a man named ”—re- ly however, it can presumed, be drug trieved package hours after it was dealers are not in the giving habit of each delivered.1 other they more than bargained for. It If this not enough were convince would therefore be absurd suggest jury that Hunt intended to co- Hunt&wkey;notwithstandinghis confession to a caine, Hunt confessed as much to po- “package of 1 Kilo of actually or coke” — lice. Hunt admitted that he ordered the dered a far illegal less valuable drug, such paid cocaine and a woman named Kisha marijuana, as just but the sender decided sign package for the $400 and leave it (on own) instead, his to mail cocaine with for him in the trunk of the car. He then out informing Hunt or asking to be paid wrote a confession with his own hand stat- drug for the upgrade. ing that “Kisha called me pick up [the] Moreover, if attempted package” and that to offer “understanding is $400,” trial, such an paid Kisha would be outlandish defense at and that “package of 1 put government likely Kilo of coke was to be would be able to intro- burgundy Mercedes S.U.V.” Hunt’s confes- duce Hunt’s string drug convictions correctly sion recounted the amount of order to show that Hunt experi- was an majority 1. The calls this always evidence "circum- proven circumstantially almost since government stantial” and only faults the for not direct evidence of intent is a confes- offering (which, evidence that Hunt "looked incidentally, inside the sion also verify case). See, Maj. Op. presented its contents.” e.g., Cnty. in this Court outrageous Allen, place 140, This is an Cnty., burden to Ulster N.Y. v. government, 2213, on the (1979) and one which is incon- 99 S.Ct. L.Ed.2d long-standing sistent with our rule (noting surely that "cir- that "it is rational to infer” cumstantial evidence can be used to from the fact that the defendants were in a fact,” any Ramirez-Rodriquez, United States v. guns car which contained "that [defen- each (9th Cir.1977), 552 F.2d fully and is no presence dant] was aware of the of the inherently probative less guns than is ability direct evi- and had both the and the intent dence, Jury Ninth Circuit Model Criminal In- to exercise dominion and control over” Moreover, (2010). them). structions 1.5 intent is drug dealer who would a majority enced have made asserts that “Hunt’s denial of his point exactly to know what he was intent this case”—which unaccompa- Vo, receiving. by any explanation See United States v. 413 nied of how he acciden- (9th Cir.2005) (holding F.3d 1018-19 tally possession came into kilogram of a prior drug that the defendant’s conviction requirement cocaine—meets the “ could be admitted rebut his claim that defendant show ‘evidence sufficient to ” knowledge he had no that a package support contrary finding’ on the omit- shipped contained methamphetamine Maj. be- ted element. Op. at 914-15 (quoting Neder, 1827). cause the “conviction tended to show that 527 U.S. at This, familiar illegal [he] was with distribution of majority explains, is because drugs and that credited, his actions this case testimony, such “if raise mistake”); were not an accident or a Unit- reasonable doubt as to his intent.” Id. But Howell, ed States v. 231 F.3d evidence is sufficient to support contrary Cir.2000) (holding that “prior finding only defendant’s if it “could rationally lead to a for possession Neder, convictions ... with contrary finding.” 19, intent 527 U.S. at to deliver cocaine Thus, to [were admissible] 119 S.Ct. 1827. we must ask wheth- show that [the defendant] knew that the er a jury rational could credit Hunt’s deni- narcotic”). substance in bag was a al of intent posses cocaine. The majority refuses to question, ask that stating in- sum, only possible defense that is stead that it “cannot beyond conclude available to Hunt —that he received a free reasonable doubt that a jury rational upgrade marijuana from to cocaine—is not credible, would not find Hunt especially rationally one that “could lead to a con- where Hunt has never had the opportunity trary finding respect to the omitted testify,” notwithstanding his conscious Neder, 19, element.” 527 U.S. at 119 S.Ct. plead choice to guilty and to waive trial. Indeed, majority has not offered Maj. Op. at 915. single theory that a defense counsel possibly could argued have to a This passage ignores requirement summation. Accordingly, there can be no that a defendant must both “contest[ ] the that, reasonable doubt absent Appren- omitted element and raise[ ] evidence suf- error, di the result —Hunt’s conviction for ficient to support a contrary finding.” Neder, attempted possession (em- of cocaine with the 527 U.S. at 119 S.Ct. 1827 added); intent phasis distribute it—would have been see also id. (requiring the same. defendant to “bring forth facts contesting element”). Instead, omitted the ma-

B jority allows a defendant to meet his Ned- majority The makes three efforts to obligation er based on the mere possibility conclusion, avoid this none of which with- that whatever he would have said at trial passing First, stand even scrutiny. might have been credible.2 majority impressed 2. The by is also Cir.2000), Hunt's 225 F.3d 1060-61 over- only claim that he confessed because that is grounds by ruled on other United States v. Maj. what the "wanted Op. to hear.” Buckland, (9th Cir.2002) (con- 289 F.3d 558 simply attacking at 914-15. But piece one cluding brought that the defendant forth evi- (the confession) evidence with one of the most support dence sufficient contrary finding common means which are confessions quantity marijuana grown on his challenged (by claiming that the confessor by demonstrating land that he "had been va- just seeking please interrogators) cationing for much of the time that the mari- support not sufficient evidence contrary juana crop ground, only had been in the finding. Compare Nordby, United States v. III “the con Next, majority 2, 5, 266 117 136 L.Ed.2d S.Ct. properly presented.” had the issue been curiam) (1996) that the fail (holding (per Zepeda-Martinez, 470 F.3d at (quoting Id. jury that it must find ure to instruct the n.3). that, objects But it “[o]n 913 defen intent to kill in order to convict the us, speculative record before it is at best to abetting murder was aiding dant of parties predict what evidence would analysis); subject to harmless error Carel trial,” at and thus presented have refuses 266-67, California, v. la trial speculate hypothetical “to on how (1989) 2419, 105 (holding L.Ed.2d 218 S.Ct. may have unfolded.” Id. indepen that foreclosed that an instruction objections apply These almost of whether the de jury dent consideration an every appeal Appren- in which there is to commit theft was sub fendant intended since, cases, error such the omitted di ject analysis). error to harmless almost never have been liti- element will majority heavily on Finally, the relies Thus, gated. precedent under the estab- Jordan, 291 F.3d 1091 United States asserting today, Ap- lished a defendant (9th Cir.2002), Appren- which held that can harmless error prendi error avoid not be deemed harmless when di error will analysis simply by pointing out that he did charged in necessary element “is neither opportunity litigate not have jury beyond to a proved Similarly, always the indictment nor it is omitted element. But Id. at 1097. Jor- what evi- “speculative” “determin[e] reasonable doubt.” analysis at parties to harmless error would have introduced exception dan’s dence the present- type properly here because the trial had the issue been apply does not Zepeda-Martinez, 470 F.3d intended to ed.” added) (internal quotation (emphasis charged in the indictment. n.3 arrested”). days being area five before returned to the omitted); Garner, Bryan marks A. for harmless-error review simply is ab- cf. (3rd ed.2009) Usage sent,” American

Modem requiring speculate the court (stating subjunctive that the mood is most a hypothetical about how may trial have commonly express used to states of irreali- (inter- unfolded. Id. at 119 S.Ct. 1827 fact”). ty contrary such as “conditions omitted). quotation But, nal again, marks Therefore, majority may while the be un- the Court deemed this concern inconsis- in a engaging comfortable eounterfactual tent with its cases which repeatedly have inquiry, explicit we are under instructions applied harmless error review even “where precedents just from our to conduct such jury did not render a ‘complete verdict’ inquiry.3 every on element of the offense.” Id. at 1827; Recuenco, see also B U.S. at 126 S.Ct. 2546 (rejecting the Supreme precisely Court made argument that applying harmless error points these in Neder when it held that the analysis to an Apprendi error would re- failure to an element submit crime to quire appellate courts to “hypothesize a subject jury analy to harmless-error guilty verdict that was never in fact ren- There, argued sis. the defendant (internal dered” quotation marks omit- rely overwhelming “[t]o record evidence ted)). guilt actually did not [that] If way there is one Apprendi errors ... consider would be to dispense with differ from other errors to which harmless by jury judges trial and allow to direct a analysis applies, it is this: where a Neder, 17, 119 guilty verdict.” 527 U.S. at sentence is reversed under Apprendi, omitted). (emphasis The Neder government does not have the opportunity rejected explicitly Court argument, retry Accordingly, defendant. Ap- noting that “[t]he erroneous admission of prendi errors often result in convicted evidence in violation of the Fifth Amend criminals receiving windfall sentence re- guarantee against ment’s self-incrimination ductions. exemplifies This case and the such wind- erroneous exclusion of evidence in falls: right fifteen-year violation of the to confront witnesses sentence —im- guaranteed by the Sixth posed chiefly Amendment are staggering because of his subject analysis,” both to harmless-error history effectively criminal reduced —is errors, though even such Apprendi or, like year, one realistically, more to time errors, “infringe upon jury’s factfind served. ways role” in readily that are “not C (in 18,

calculable.” Id. at 119 S.Ct. 1827 omitted). quotation ternal marks majority goes on to undermine harmless error The defendant in review even further Neder likewise insisted es- that, guilty- pousing judicial without “an actual verdict of views of the role that are beyond-a-reasonable-doubt, ... the basis explicit inconsistent with the limits that 490, way, majority's objection prendi, 3. Put another 530 U.S. at 120 S.Ct. 2348. If it former, is, regarding drug type either that "Hunt’s intent majority only is the if the litigated,” objects was never was never that the record of Hunt’s intent was latter, litigated jury. sufficiently developed in front of a If it is the during the sentenc then ing proceedings, this is the end of harmless error proper remedy review then the Apprendi (contrary violations in the Ninth holding) Circuit to its would be to remand only since such violations occur where an so that the hearing district court can hold a element a crime jury, finding is not "submitted to a and make a factual on whether Hunt proved beyond Ap- reasonable doubt.” intended to 924 little, changed any, having if likelihood of review of placed appellate

Congress has ” Neder, 527 U.S. of the trial.’ the result criminal sentences. v. 19, Chapman (quoting at 119 S.Ct. 1827 categorically pro First, majority 22, 824,17 California, 386 U.S. is to see responsibility claims that “[o]ur (1967)). Indeed, avoiding a 705 L.Ed.2d met.” requirements are that constitutional based on sentence reduction windfall however, has Congress, at Maj. Op. 917. will) (or “technicality,” you if “small error” reviewing criminal courts federal directed very purpose of the harmless is the judgment after ex “give convictions Sanders, 556 Shinseki v. doctrine. See regard to without of the record amination 396, 129 1696, 1705,173 L.Ed.2d S.Ct. do not affect U.S. defects which errors or (2009) (“The federal ‘harmless-error’ rights parties.” of the substantial rule, prevent appellate § This as well as ... seeks to statute Procedure, re ‘impregnable Federal Rules Criminal cita becoming from courts “ ” ‘disregard! errors quires ]’ that we v. technicality.’ (quoting Kotteakos dels of beyond a reasonable doubt.” are harmless States, 750, 759, 66 S.Ct. 328 U.S. United Neder, (quot at 527 U.S. S.Ct. (1946))). So, while 90 L.Ed. 1557 52(a)). Congress Since ing Fed.R.Crim.P. windfalls are majority is correct that such criminal defendants provide need not faithful “through a court’s ideally avoided whatsoever, see Ab remedy any appellate require with constitutional compliance States, 651, 656, 97 ney United statutory ments,” compliance with faithful (1977), it is L.Ed.2d 651 that windfalls requirements mandates appellate to limit certainly power its within “through appellate avoided must also be likely affect legal errors that remedies Maj. Op. at 917. review.” in the trial proceeding result of the ed the Last, majority maintains that “[a] Therefore, not have an un we do court. ‘richly under sentence cannot be deserved’ ... to see that “responsibility qualified supporting if facts our Constitution are met.” requirements constitutional proven as constitu sentence have not been contrary, we have Maj. Op. at 917. To the Yet Con tionally required.” Id. at 916. statutory responsibility “give explicit power under its constitutional gress, regard ... judgement [harm without courts, directed us the federal has regulate § 2111. This in errors.” 28 U.S.C. less] regard ... Recuenco, “give judgment without cludes errors. errors,” 222, 126 28 U.S.C. [harmless] S.Ct. 2546. establishing that a conviction and thereby Second, majority Ap- that an insists if a may still be warranted even sentence “technicality,” prendi error is never required procedure was constitutionally “[a]voiding what the dissent calls Kotteakos, followed. scrupulously not Cf. Ap- to an sentence reduction due ‘windfall’ 759, (stating that at 66 S.Ct. 1239 through a court’s error is achieved prendi error rule Congress passed the harmless re- compliance with constitutional faithful becoming criminal trials from prevent through appellate review.” quirements, doctrine” game”). “a “The harmless error Maj. ignores the fact that Op. at 917. This “ ‘recognizes principle thus applied has harmless Supreme Court trial is to purpose central criminal claims and has error review to of the defen question factual decide the that the harmless repeatedly stated ” “ Neder, 527 or innocence.’ guilt dant’s very purpose useful ‘serve[s] doctrine (quoting Dela 119 S.Ct. 1827 U.S. setting aside convic- insofar as it blocks Arsdall, 673, 681, 106 v. or defects that have ware Van tions for small errors (1986)); 1431, 89 L.Ed.2d 674 cf. ALVAREZ; Amar, Jonathan Emanuel Jimi Akhil Reed Sixth Amendment First nez; McCracken; (1996) Shaun Housam Principles, 84 Geo. L.J. Moumne; Moumne; Mohammad Kent (arguing deep principles under- “[t]he Cochran, Amendment,” on behalf of themselves and lying the Sixth and “consti- similarly situated, all others procedure generally,” tutional criminal are Plain tiffs-Appellants, protection pur- “the of innocence and the truth”). majority ignores suit of principle by vacating Hunt’s sentence de- CORPORATION; CHEVRON Chevron spite overwhelming evidence that he com- USA, Inc.; Corporation; Exxon Mobil necessary mitted each of the elements Conocophillips Company; Corpo BP support it. America, Inc.; ration North BP Prod America, Inc.;

ucts North BP West Products, LLC; IV Coast BP North Petroleum, Inc.; American Shell Oil The Supreme Court has warned that Company; Compa Shell Oil Products setting the harmless error standard “so ny; Equilon Enterprises, LLC; Vale high that never could be surmounted Energy Corporation; ro Valero Cali justify very criticism that Company, fornia Retail Defendants- spawned the harmless-error doctrine in Appellees. place.” the first Id. at 119 S.Ct. 1827. No. 09-56698. “ ‘[rjeversal That criticism is for er- ror, regardless judg- of its effect on the United States Appeals, Court of ment, encourages litigants to abuse the Ninth Circuit.

judicial process and public bestirs the Argued and Submitted Feb. 2011. ” (quoting Traynor, ridicule it.’ Id. R. Sept. Filed (1970)). Riddle Harmless Error 50

The Neder Court could have talk- been ing Today, about this case. a defendant consistently who has evaded responsibility for his criminal again conduct is once re- warded for his today, labors. And

public sees a criminal who has shown noth- cruelty but to his fellow citizens and

contempt escape richly for the law de-

served sentence based on an irrelevant technicality.

I respectfully dissent. notes intent, a case is Hunt’s fact in this tested it becomes opinion, the end of its Near easy proof like subject to fact that is not majority really apply- is not clear that the Zepeda-Mar prior removal Indeed, the date of analysis at all. ing harmless error through tinez, proved fact which was discuss majority refuses documentary evidence.” uncontroverted in this case. In- strength of the evidence is that implication stead, Maj. Op. at 914. it declines to find ap- limited analysis should be harmless for reasons error error harmless any Ap- case in which there is ply concerned an the error to cases where error, thereby effectively eliminat- prendi incon But this is easily element. provable error review in such case. ing harmless cases which Supreme Court sistent with com recognized that the “repeatedly have A at trial mission of a constitutional majority plea reasons that “the to auto alone does not entitle defendant provide in this case sentencing proceedings Recuenco, reversal,” Washington v. matic in- inadequate record because Hunt’s drug type litigat- was never regarding tent (2006), the defen L.Ed.2d 466 even where majority Maj. Op. at 915. The cor- ed.” jury finding on an deprived dant is harmless error review rectly explains that intent, element, easily is not such as which us to what evidence “requires ‘determin[e] See, e.g., Roy, provable. California would have introduced trial’ parties

Case Details

Case Name: United States v. Hunt

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 1, 2011

Citation: 656 F.3d 906

Docket Number: 09-30334

Court Abbreviation: 9th Cir.