Metropolitan News-Enterprise


Friday, May 17, 2019


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Ninth Circuit Remands Case to Allow Judge To Clarify His Intent in Imposing Sentence


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals has remanded a case to the District Court for the Central District of California so a judge can make clear whether he was trying to impose a sentence that’s permissible or was actually seeking to do something that’s not allowed.

Judge André Birotte Jr. of the Central District of California on July 13, 2018, sentenced Jan Brewer to a two-year prison term “to run concurrently with defendant’s state sentence.” Brewer’s current federal offense was violating a term of his supervised release, imposed in 2012 by a judge in the Eastern District of Louisiana.

The allegation, found true by Birotte, was:

“Having been ordered by the court not to commit another federal, state or local crime, on October 24, 2017, Jan Brewer, committed the offense of Corporal Injury on a Spouse or Cohabitant, in violation of Section 273.5(a) of the California Penal Code, as evidenced by his conviction of that charge in the Superior Court of California, County of Los Angeles, Case Number BA463036.”

No Credit Applied

Brewer was sentenced in Los Angeles Superior Court to incarceration for six months in connection with the beating. However, the federal Bureau of Prisons did not credit him with those six months because he had already been released by the state when Birotte sentenced him, and Brewer appealed from the sentence.

A three-judge Ninth Circuit panel said in a memorandum opinion, filed Wednesday:

“A term of imprisonment may not be imposed to run concurrently with a discharged term of imprisonment….But a district judge can give a defendant “credit for time served” by imposing a lesser sentence, ‘thereby achieving the same result….Here, the record indicates that the district judge may have attempted to ‘give [Brewer] a break’ by running the federal sentence ‘concurrently’ with Brewer’s discharged state sentence. This he could not do. We therefore remand for resentencing to give the district judge an opportunity to clarify his intent.”

Condition Imposed

The panel—Circuit Judges Andrew D. Hurwitz and Kim Wardlaw, joined by District Court Edward R. Korman of the Eastern District of New York, sitting by designation—also dealt with a condition of the one-year supervised released imposed by Birotte to follow the incarceration. It reads:

“As directed by the probation officer, the defendant shall notify specific persons and organizations of specific risks and shall permit the probation officer to confirm the defendant’s compliance with such requirement and to make such notifications.”

The opinion says:

“The challenged condition of supervised release is unconstitutionally vague…because it fails to specify that the risks to be disclosed must be specific risks posed by the defendant to the persons and organizations to be notified.”

The opinion advises that “[t]o correct this deficiency,” Birotte could “modify the condition to conform to the Sentencing Guidelines’ current standard notification condition” or resort to “the standard notification condition adopted by Central District of California.”

The federal sentencing guidelines condition reads:

“If the probation officer determines that the defendant poses a risk to another person (including an organization), the probation officer may require the defendant to notify the person about the risk and the defendant shall comply with that instruction. The probation officer may contact the person and confirm that the defendant has notified the person about the risk.”

The Central District’s stock condition says:

“As directed by the probation officer, the defendant must notify specific persons and organizations of specific risks posed by the defendant to those persons and organizations and must permit the probation officer to confirm the defendant’s compliance with such requirement and to make such notifications.”

The case is United States v. Brewer, 18-50237.

Brewer’s sentence in Louisiana was based on his guilty plea to access device fraud. At a motel in that state in 2011, he accepted a package containing 25 counterfeit credit cards and two bogus California drivers’ licenses.

He was sentenced to five years in prison, to be followed by three years of supervised release.


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