August 10, 2010
Notable common-law discussion in Ninth Circuit alien-smuggling sentencing reversalI am gearing up for teaching Criminal Law to first-year students starting next week, and a new Ninth Circuit sentencing decision handed down today is helping me get in the mood. Specifically, in US v. Pineda-Doval, No. 08-10240 (9th Cir. Aug. 10, 2010) (available here), the meaning of the old common-law classic "malice aforethought" is at issue in the sentencing part of the appeal. Here is the basic issue as explained in parts of the panel's opinion:
Adan Pineda-Doval was convicted, after a seven-day jury trial, on ten counts of transportation of illegal aliens resulting in death, 8 U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(B)(iv). The district court sentenced him to a term of life imprisonment on each count, sentences to be served concurrently. On appeal, Pineda-Doval challenges his convictions, primarily on the basis that the jury should have been instructed that it could find the defendant guilty only if his conduct was the proximate cause of the ten charged deaths. In addition, he argues that his conviction should be vacated because of improper jury instructions regarding the lesser included offense of transportation of illegal aliens, incorrect evidentiary rulings, and prosecutorial misconduct at closing arguments. Finally, Pineda-Doval challenges his sentence; he argues that the district court did not find that he acted with malice aforethought and therefore should not have calculated his recommended Guidelines sentence using the second-degree murder guideline, and also that the district court should have applied the heightened “clear and convincing” standard of proof at sentencing. We affirm Pineda-Doval’s conviction, vacate his sentence, and remand for re-sentencing....
Because this court requires strict compliance with Rule 32, we cannot give the district court the benefit of the doubt and assume it meant “malice aforethought” when it said “recklessness.”... The court “demonstrated no recognition” that second-degree murder required a finding of extreme recklessness evincing disregard for human life, not simple recklessness. Herrera-Rojas, 243 F.3d at 1143. Perhaps the district court mistakenly believed that malice aforethought and recklessness are one and the same. We have interpreted Rule 32 strictly in order to avoid just this sort of uncertainty on appeal. The district court did not find “malice aforethought,” as required by Rule 32.
The panel in Pineda-Doval also requires that, because of the significant impact on the applicable guideline range, the finding of “malice aforethought” will have to be made by the "clear and convincing" standard of proof.
August 10, 2010 at 04:24 PM | Permalink
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"The panel in Pineda-Doval also requires that, because of the significant impact on the applicable guideline range, the finding of 'malice aforethought' will have to be made by the 'clear and convincing' standard of proof."
Is it just me, or is this burying the headline? An appellate court requiring a district court to find a fact that increases the guideline range by "clear and convincing" evidence (instead of preponderance) seems like a significant development. I am aware of dicta discussing "tail wagging the dog" at sentencing, but I believe this is the first case (or at most one of a small few cases) where an appellate court requires a heightened finding for calculating the guidelines. Am I correct?
Posted by: question | Aug 10, 2010 5:57:59 PM