United States v. Lucas

101 F.4th 1158

UNITED STATES of America, Plaintiff-Appellee, v. Francisco LUCAS, Jr., aka Choko, AKA Francisco Lucas, Defendant-Appellant.

No. 22-50064

United States Court of Appeals, Ninth Circuit

Argued and Submitted En Banc January 23, 2024 Pasadena, California

Filed May 2, 2024

Appeal from the United States District Court for the Central District of California, James V. Selna, District Judge, Presiding, D.C. No. 8:21-cr-00017-JVS-1

Bram M. Alden (argued), Assistant United States Attorney, Criminal Appeals Section Chief; Bradley E. Marrett, Assistant United States Attorney, Santa Ana Branch Office; Stephanie S. Christensen, Acting United States Attorney; E. Martin Estrada, United States Attorney; United States Department of Justice, Office of the United States Attorney; for Plaintiff-Appellee.

Sonam A.H. Henderson (argued), Deputy Federal Public Defender; Cuauhtemoc Ortega, Federal Public Defender; Federal Public Defender's Office, Los Angeles, California; for Defendant-Appellant.

Jessica Agatstein and Vincent Brunkow, Federal Defenders of San Diego Inc., San Diego, California, for Amici Curiae Ninth Circuit Federal Public and Community Defenders.

Before: Mary H. Murguia, Chief Judge, and Kim McLane Wardlaw, Johnnie B. Rawlinson, Consuelo M. Callahan, Sandra S. Ikuta, Morgan Christen, Mark J. Bennett, Bridget S. Bade, Kenneth K. Lee, Lucy H. Koh and Holly A. Thomas, Circuit Judges.

OPINION

MURGUIA, Chief Judge:

We voted to rehear this case en banc to reconsider our heightened standard of proof for factual findings at sentencing. Under this standard, we have long required trial courts to make factual findings by clear and convincing evidence "when a sentencing factor has an extremely disproportionate effect on the sentence relative to the conviction." United States v. Staten, 466 F.3d 708, 717 (9th Cir. 2006) (quoting United States v. Lynch, 437 F.3d 902, 916 (9th Cir. 2006) (en banc) (per curiam)).

On rehearing en banc, we overrule our prior precedent and fully adopt the "preponderance of the evidence" standard. We remand this case for the district court to apply the proper standard in the first instance.

I

Francisco Lucas, Jr., was previously convicted of two felonies under state law in California. While Lucas was on probation in late 2020, law enforcement searched his cell phone and found photographs and videos that appeared to depict Lucas in his home with a firearm and magazine. Lucas was indicted for and pleaded guilty to a single count of illegal possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1).

At sentencing, the main issue was whether to apply a heightened base offense level, which turned on whether Lucas possessed a "semiautomatic firearm that is capable of accepting a large capacity magazine." U.S. Sent'g Guidelines Manual § 2K2.1(a)(4)(B) (U.S. Sent'g Comm'n 2021) ("U.S.S.G."). Relevant to this appeal, Application Note 2 to this Guideline defines "large capacity magazine" as a magazine that "at the time of the offense . . . could accept more than 15 rounds of ammunition." U.S.S.G. § 2K2.1 app. n.2.¹ The government conceded in its sentencing memorandum that "the magazine was not seized in this case, and thus the magazine itself was not examined by investigators." Nonetheless, the government maintained "that the magazine could hold more than 15 rounds of ammunition."

Both parties submitted reports from experts who had reviewed the photograph and video evidence. The government expert observed that the magazine in the photos appeared unusually long, "consistent with an extended magazine that is capable of accepting more than 15 rounds of ammunition." Although he had never encountered a magazine with a blocker installed to limit capacity, the expert acknowledged that magazines could be modified in that way.² Accordingly, the expert explained that "[w]ithout physical examination, it cannot be conclusively determined whether the magazine seen in photographs and video is capable of accepting more tha[n] 15 rounds of ammunition or only ten (10) rounds of ammunition." The defense expert offered a largely similar analysis.

The district court found that Lucas had possessed a large capacity magazine. Even if the magazine were modified to accept less ammunition, the district court reasoned that "it was susceptible to easy conversion to accept a high capacity magazine." In a footnote, the district court briefly alluded to the government's discussion of a recorded jail phone call. That recorded call involved an individual incarcerated alongside Lucas who said that Lucas was "here for a 40 Glock with a 30 round stick." Altogether, the district court found this evidence clear and convincing, "notwithstanding the absence of either the weapon or the magazine." The district court therefore applied the sentencing enhancement and sentenced Lucas to a 57-month term of incarceration.³

A divided three-judge panel reversed the sentence. United States v. Lucas, 70 F.4th 1218, 1220 (9th Cir.), vacated, 77 F.4th 1275 (9th Cir. 2023). The panel majority first assumed that application of the Section 2K2.1(a)(4)(B) sentencing enhancement requires the heightened standard of proof. 70 F.4th at 1221-22. The panel then held that "the district court clearly erred in finding, by clear and convincing evidence, that Lucas's magazine could accept more than 15 rounds." Id. at 1222. Thus, "the district court improperly increased Lucas's base offense level." Id. at 1223.

We received supplemental briefing on "whether the clear and convincing standard applies for factual findings that have an extreme impact on the sentence in light of Beckles v. United States, 580 U.S. 256, 137 S.Ct. 886, 197 L.Ed.2d 145 (2017)." We subsequently voted to rehear the case en banc.

II

A

The federal Sentencing Guidelines became law in 1987. Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 Hofstra L. Rev. 1, 1 (1988). The Guidelines were intentionally formulaic, see id. at 6-7, and undoubtedly "limit[ed] a sentencing judge's discretion," United States v. Brady, 895 F.2d 538, 540 (9th Cir. 1990). "One of the most important features of the original Guidelines was that sentencing within the Guidelines range was mandatory." United States v. Fisher, 502 F.3d 293, 301 (3d Cir. 2007). Thus, in response to this new Guidelines regime, we soon recognized "that a defendant's due process right to ensure the reliability of information used at sentencing includes the requirement that facts underlying sentencing factors be proved according to a specified standard of proof." United States v. Wilson, 900 F.2d 1350, 1354 (9th Cir. 1990). And like every other circuit, we identified preponderance of the evidence as the appropriate standard. Id.; see also United States v. Restrepo, 946 F.2d 654, 655-56 (9th Cir. 1991) (en banc) (collecting cases).

At the same time, we hinted that "there may be an exception to the general rule that the preponderance standard satisfies due process when a sentencing factor has an extremely disproportionate effect on the sentence relative to the offense of conviction." Restrepo, 946 F.2d at 659 (citing McMillan v. Pennsylvania, 477 U.S. 79, 87-91, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986)); see also id. at 662 (Tang, J., concurring) ("[T]he quantitative effect of a sentencing factor does remain relevant in deciding what procedural safeguards are appropriate."). In carving out that exception, we followed the lead of the Third Circuit, which had recognized that "if a sentencing factor has an extreme effect on the sentence, . . . the factor must be proven by clear and convincing evidence." Id. at 656 n.1 (citing United States v. Kikumura, 918 F.2d 1084, 1101-02 (3d Cir. 1990)).⁴ Since Restrepo, the clear and convincing standard became well-established circuit precedent. See United States v. Jordan, 256 F.3d 922, 927-31 (9th Cir. 2001); United States v. Mezas de Jesus, 217 F.3d 638, 643 (9th Cir. 2000); United States v. Hopper, 177 F.3d 824, 833 (9th Cir. 1999).

Sentencing law underwent a sea change with United States v. Booker, which rendered the Guidelines advisory rather than mandatory. 543 U.S. 220, 264, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) ("The district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing."). Yet post-Booker, our court recommitted to the clear and convincing standard. Staten, 466 F.3d at 718 (holding that "the clear and convincing standard still pertains post-Booker for an enhancement applied by the district court that has an extremely disproportionate effect on the sentence imposed"). We noted that Booker "does not discuss the role that standards of proof play in criminal sentencing," and that Booker was therefore not clearly irreconcilable with the clear and convincing standard. Id. at 718-20. Further, we explained that "our heightened standard on sentencing due process jurisprudence traces back to a case, United States v. Kikumura, in which the reliance on disputed facts to greatly increase a sentence was discretionary rather than mandatory." Id. at 719; see also id. at 719-20 (citing Kikumura, 918 F.2d at 1097-1101). Because Booker did not require our court to overturn the heightened standard of proof, the clear and convincing standard survived.

In Beckles, the Supreme Court reaffirmed the advisory nature of the modern Guidelines. See 580 U.S. at 265-67, 137 S.Ct. 886 (rejecting a void-for-vagueness challenge to a Guidelines sentence). Critically, the Court elaborated that any expectation grounded in due process "that a criminal defendant would receive a sentence within the presumptively applicable Guidelines range did not survive our decision in [Booker]." Id. at 266, 137 S.Ct. 886 (alteration in original) (quoting Irizarry v. United States, 553 U.S. 708, 713, 128 S.Ct. 2198, 171 L.Ed.2d 28 (2008)). In other words, the Court made clear that Booker fundamentally changed what process is due...