FILED
NOT FOR PUBLICATION
OCT 26 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50248
Plaintiff-Appellee, D.C. No.
2:16-cr-00011-SJO-1
v.
RAMON SULLIVAN ALVAREZ, AKA MEMORANDUM*
Ramon Salgado Alvarez, AKA Ray
Alvarez, AKA Raymond Alvarez,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted July 14, 2017
Pasadena, California
Before: PREGERSON and WARDLAW, Circuit Judges, and CHEN,** District
Judge.
Ramon Alvarez, a former detective with the Los Angeles Police Department
(“LAPD”), appeals his sentence—12 months of imprisonment plus six months of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Edward M. Chen, United States District Judge for the
Northern District of California, sitting by designation.
home confinement—for one count of making a false statement in violation of 18
U.S.C. § 1001(a)(2). Alvarez was accused of stealing drug proceeds based, in part,
on some $6,000 in cash found in his car on the day the proceeds were seized. He
denied the theft, but later admitted lying about the source of the money found in
his car, and pleaded guilty to the one false statement count. We have jurisdiction
under 18 U.S.C. § 3742(a). We vacate Alvarez’s sentence and remand for
resentencing before a different district judge.
1. The district court plainly erred by applying the substantial evidence
standard of proof, rather than the heightened clear and convincing standard, in
increasing Alvarez’s offense level by nine on the basis of the uncharged theft.
“Because [Alvarez] failed to object to the district court’s application of the
[substantial evidence] standard, we review for plain error.” United States v.
Jordan, 256 F.3d 922, 926 (9th Cir. 2001); see Fed. R. Crim. P. 52(b) (“A plain
error that affects substantial rights may be considered even though it was not
brought to the court’s attention.”).
“[T]he Due Process Clause requires the application of a clear and convincing
evidence standard when an enhancement based upon uncharged conduct has an
extremely disproportionate effect on the length of a defendant’s sentence.” United
States v. Valensia, 222 F.3d 1173, 1182 (9th Cir. 2000). We determine whether a
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sentencing factor has an extremely disproportionate effect under the totality of the
circumstances test identified in Valensia. United States v. Hymas, 780 F.3d 1285,
1290 & n.2 (9th Cir. 2015).
Here, two of the six factors—whether the enhanced sentence departed from
the sentencing guidelines by more than four levels, and whether the enhancement
more than doubled the length of the initial sentence—indicate that the uncharged
theft offense, used by the court to increase Alvarez’s offense level by nine, had an
“extremely disproportionate effect” on sentencing. In addition, the third factor,
which assesses whether the facts offered in support of the enhancement create new
offenses requiring separate punishment, is also satisfied here. The government’s
arguments to the contrary—that four of the increased levels should be disregarded,
and that home confinement should not count towards the length of Alvarez’s
sentence—are unavailing.
2. The district court’s failure to apply the clear and convincing evidence
standard affected Alvarez’s substantial rights and undermined the fairness of the
judicial proceeding. See Johnson v. United States, 520 U.S. 461, 467 (1997). The
evidence at sentencing did not meet the clear and convincing evidence standard.
The district court relied on statements made by LAPD Detective Todd Hankel in an
unsworn police interview, to the effect that Hankel suspected Alvarez had taken
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money from the drug proceeds based on a partial view of Alvarez’s arm movement
and his belief that he saw the money outlined in Alvarez’s pocket. Hankel did not
testify under oath at the sentencing hearing, and Alvarez had no opportunity to
cross-examine him. Moreover, other record evidence casts doubt upon Hankel’s
statements, including potential impeachment evidence and repeated assertions both
before and after the search by Martin Hernandez, from whom the money was
seized, that he did not possess more than the $10,000 found in his lockbox. In
addition, Hankel’s own testimony indicates that it would have been difficult for
Alvarez to count the money in the lockbox and leave exactly $10,000, i.e., the
amount claimed by Hernandez to be in the lockbox. Although there was some
evidence that several minutes passed between the time Alvarez arrived at the
Conex storage and the time that the money was first photographed, Hankel testified
that he never left Alvarez alone; he only briefly turned away from Alvarez when
the alleged theft took place; and another officer, Michelle Jong, was also in the
storage unit.
Further, reliable evidence from the LAPD laboratory pointed to possible
DNA cross-contamination. Even the government admitted in its sentencing papers
that “partial uncertainty . . . exists with respect to the theft allegation,” and that
Hernandez’s statements “do not confirm that a theft ever occurred.” Under these
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circumstances, we cannot say that the uncharged theft enhancement was supported
by clear and convincing evidence.
3. Alvarez’s due process rights were violated because there was a risk
that Alvarez was “chilled” as a result of the district court’s statements that his
sentence could be increased if he pursued the right to introduce exculpatory
evidence. Cf. Nulph v. Cook, 333 F.3d. 1052, 1057 (9th Cir. 2003) (stating that
due process “requires that a defendant be freed of apprehension of such a
retaliatory motivation on the part of the sentencing judge[;] [o]therwise, the
defendant will be chilled in the exercise of his right to challenge a conviction or
sentence”) (internal quotation marks and citation omitted). At sentencing, the
district court found Detective Hankel’s police interview statements “compelling”
evidence that Alvarez had stolen the money. Defense counsel sought to introduce
evidence impeaching Hankel’s credibility and challenging his story. But defense
counsel chose not to proceed when the court indicated that it was “prepared to
impose a sentence of one year plus home confinement,” but that such a sentence
would not be sufficient if the defense were to bring Hankel in for a hearing and the
court still found his testimony “compelling.” This threat violated due process. See
Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978) (“To punish a person because
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he has done what the law plainly allows him to do is a due process violation of the
most basic sort . . . .”); Nulph, 333 F.3d at 1057.
However, because counsel failed to object and instead chose to acquiesce to
the district court’s warning, we review this claim for plain error only, and we
conclude that Alvarez has not satisfied that standard.
4. We ordinarily do not entertain claims of ineffective assistance of
counsel on direct appeal. United States v. Rahman, 642 F.3d 1257, 1259–60 (9th
Cir. 2011). We decline to depart from our standard practice here, because this is
not one of the “unusual cases where (1) the record on appeal is sufficiently
developed to permit determination of the issue, or (2) the legal representation is so
inadequate that it obviously denies a defendant his Sixth Amendment right to
counsel.” Id. at 1260.
5. Finally, Alvarez asks that this case be reassigned to a new district
judge on remand. Reassignment is warranted here because the judge may “have
substantial difficulty in putting out of his . . . mind previously expressed views or
findings determined to be erroneous,” making “reassignment . . . advisable to
preserve the appearance of justice.” United States v. Rivera, 682 F.3d 1223, 1237
(9th Cir. 2012) (citation omitted). We therefore instruct the Clerk of the United
States District Court for the Central District of California to reassign this case to a
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different district judge on remand. On remand, the new district judge shall
resentence Alvarez without the theft enhancement.
VACATED, REMANDED, AND REASSIGNED.
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