United States v. Alvarez, 102617 FED9, 16-50248

• Docket Nº: 16-50248
• Party Name: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RAMON SULLIVAN ALVAREZ, AKA Ramon Salgado Alvarez, AKA Ray Alvarez, AKA Raymond Alvarez, Defendant-Appellant.
• Judge Panel: Before: PREGERSON and WARDLAW, Circuit Judges, and CHEN, District Judge.
• Case Date: October 26, 2017
• Court: United States Courts of Appeals, Court of Appeals for the Ninth Circuit

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

RAMON SULLIVAN ALVAREZ, AKA Ramon Salgado Alvarez, AKA Ray Alvarez, AKA Raymond Alvarez, Defendant-Appellant.

No. 16-50248

United States Court of Appeals, Ninth Circuit

October 26, 2017

NOT FOR PUBLICATION

Argued and Submitted July 14, 2017 Pasadena, California

Appeal from the United States District Court for the Central District of California D.C. No. 2:16-cr-00011-SJO-1, S. James Otero, District Judge, Presiding

Before: PREGERSON and WARDLAW, Circuit Judges, and CHEN, ^[*] District Judge.

MEMORANDUM ^[**]

Ramon Alvarez, a former detective with the Los Angeles Police Department ("LAPD"), appeals his sentence-12 months of imprisonment plus six months of 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 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...