Defendant's Supplemental Briefing — United States v. Cassie Will-Darnall (Dkt. 89)

Summary

Defendant's Supplemental Briefing, Document 89 in United States v. Cassie Will-Darnall, Case No. CR 24-00292 PCP, in the U.S. District Court for the Northern District of California, filed September 8, 2025. It is dated September 7, 2025, with the /S signature of Varell Fuller, Assistant Federal Public Defender. The brief states that the defense asked at the September 4, 2025 sentencing hearing to submit briefing on the Sentencing Guidelines. It argues that the Court must apply the 2018 Guidelines in effect at the time of the offense because using the 2024 Manual violates the Ex Post Facto Clause, citing Amendment 827 (loss) and Amendment 821 (a two-level reduction for zero-point offenders). It also argues that zero-point offenders are less likely to reoffend and that a variance applies.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Cite this document

“Defendant's Supplemental Briefing — United States v. Cassie Will-Darnall (Dkt. 89).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/gov-uscourts-cand-430212-89-0-347ace77a2/, SHA-256 77bc0fe67b1a47aa8b44afc6fd2689a1c4b8da72771457f46daed472434d1cea.

Full text

Case 5:24-cr-00292-PCP Document 89 Filed 09/08/25 Page 1 of 6

1 JODI LINKER, Bar No. 230273
Federal Public Defender
2 Northern District of California
VARELL FULLER, Bar No. 202680
3 Assistant Federal Public Defender
8th Floor - Suite 820
4
55 South Market Street
5 San Jose, CA 95113
Telephone: (408) 291-7753
6 Facsimile: (408) 291-7399
Email: Varell_Fuller@fd.org
7

8 Counsel for Defendant Will-Darnall
9

10 IN THE UNITED STATES DISTRICT COURT
11 FOR THE NORTHERN DISTRICT OF CALIFORNIA
12 SAN JOSE DIVISION
13

14 UNITED STATES OF AMERICA, Case No.: CR 24–00292 PCP
15 Plaintiff, DEFENDANT’S SUPPLEMENTAL
BRIEFING
16 v.
Court: Courtroom 8, 4th Floor
17 CASSIE WILL-DARNALL,
18 Defendant.
19
INTRODUCTION
20
On September 4, 2025, the Court held a sentencing hearing in this matter and heard argument
21
regarding the applicable Sentencing Guidelines. At that hearing, the defense requested leave to
22
submit supplemental briefing to address issues raised by the Court. The tension between the Ex Post
23
Facto Clause and the 2024 Guidelines arises from two amendments in the 2024 Manual: Amendment
24
827, which disadvantages Ms. Will-Darnall by foreclosing any argument, consistent with Kisor v.
25
Wilkie, that the Court may not rely on intended loss, and Amendment 821, which benefits her by
26
authorizing a two-level reduction for zero-point offenders. This conflict presents a novel issue. For
27
these reasons, Ms. Will-Darnall respectfully submits this supplemental memorandum in support of
28
her prior sentencing submission (ECF No. 84), to address the following:
DEFENDANT'S SUPPLEMENTAL BREIFING
WILL-DARNALL, CR 24–00292 PCP
1
Case 5:24-cr-00292-PCP Document 89 Filed 09/08/25 Page 2 of 6

1 I. The Court Must Apply the 2018 Guidelines in Effect at the Time of the Offense Because
Using the 2024 Manual Violates the Ex Post Facto Clause
2
In accord with 18 U.S.C. § 3553(a)(4)(A)(i) the Court must apply the Guidelines in effect on
3
the date the defendant is sentenced, unless doing so would violate the Ex Post Facto Clause of the
4
United States Constitution; in that circumstance, the Court must apply the Guidelines in effect on the
5
date the offense was committed.1 Peugh v. United States, 569 U.S. 530, 537–38 (2013); U.S.S.G. §§
6
1B1.11(a), (b)(1). Ms. Will-Darnall stands convicted of an offense that took place between March 31,
7
2020, and March 1, 2021. PSR ¶31; see also Information ECF Dkt. 1. At the prior sentencing
8
hearing, the government argued that the 2018 Guidelines Manual applies and that Amendment 827 is
9
a clarifying amendment that therefore applies to earlier versions of the Guidelines. The defense will
10
address these points in turn.
11
As to the applicable Guidelines Manual, upon further consideration, the government is correct
12
that the 2018 Guidelines Manual applies; however, the relevant provisions of § 2B1.1 are identical,
13
and thus this does not alter the Kisor v. Wilkie analysis or the Ex Post Facto considerations. As to the
14
government’s contention that Amendment 827 is a clarifying amendment that applies retroactively,
15
that analysis is incorrect and misses the point. For purposes of the Ex Post Facto Clause, it does not
16
matter whether a Guidelines amendment is characterized as clarifying or substantive. See United
17
States v. Lopez-Solis, 447 F.3d 1201, 1204 (9th Cir. 2006) (“Typically, we apply clarifying but not
18
substantive amendments retroactively. We cannot do so if retroactive application would violate the
19
Ex Post Facto Clause, however.”).2 At bottom, if applying an amendment violates the Ex Post Facto
20
Clause, the Court may not apply it to sentence Ms. Will-Darnall, regardless of whether it is labeled
21
clarifying or substantive.
22
As to the implications of applying Amendment 827, the Ex Post Facto Clause prohibits, inter
23
alia, laws that “make more burdensome the punishment for a crime, after its commission.” Collins v.
24
Youngblood, 497 U.S. 37, 42 (1990); see also Peugh v. United States, 569 U.S. 530, 538 (2013)
25

26
1
Upon further consideration of the arguments in ECF 84, the defense respectfully withdraws its
27 request that the Court apply the 2024 Guidelines to afford Ms. Will-Darnall the benefit of § 4C1.1
(zero-point offender), should the Court decline to limit loss to actual loss under Kisor v. Wilkie and
28 grant a zero-point offender variance under the 2018 Guidelines.
2
Moreover, Ammendment 827 is not a clarifying ammenment because it amended the text of §2B1.1
DEFENDANT'S SUPPLEMENTAL BREIFING
WILL-DARNALL, CR 24–00292 PCP
2
Case 5:24-cr-00292-PCP Document 89 Filed 09/08/25 Page 3 of 6

1 (citing Calder v. Bull, 3 U.S. 386 (1798)); Fleming v. Oregon Bd. of Parole, 998 F.2d 721, 723 (9th
2 Cir. 1993). There are two elements to determine whether a law violates the Ex Post Facto Clause: (1)
3 the law must be retrospective, that is, it must apply to events occurring before its enactment, and (2) it
4 must disadvantage the offender affected by it. Fleming, 998 F.2d at 723 (citing Miller v. Florida, 482
5 U.S. 423 (1987)). Sentencing Guideline amendments, like Amendment 827 at issue here, are
6 considered “laws” for purposes of Ex Post Facto analysis. See Peugh, 569 U.S. at 544. In Peugh, the
7 Supreme Court held that applying a later version of the Sentencing Guidelines that results in a higher
8 advisory range than the Guidelines in effect at the time of the offense violates the Ex Post Facto
9 Clause, even though the Guidelines are advisory after Booker. Id. at 544. This principle is grounded
10 in the most basic notions of fairness. Id.
11 As applied here, Ms. Will-Darnall’s offense conduct ended in March 2021. Amendment 827
12 was adopted on November 1, 2023, more than two years after her offense. The Ex Post Facto Clause
13 squarely prohibits applying that amendment because it retroactively increases her punishment. The
14 2018 Guidelines contained no textual definition of “loss,” leaving room for this Court, consistent
15 with Kisor v. Wilkie, to consider her argument that “loss” is limited to actual loss. By contrast, the
16 2023 Guidelines remove both the argument and the Court’s discretion by defining loss to include
17 intended loss. That change disadvantages Ms. Will-Darnall because it forecloses the possibility of a
18 lower advisory range based on actual loss and mandates a harsher standard.3 The Ninth Circuit has
19 long recognized that sentencing courts may not apply a later, more “onerous” version of the
20 Guidelines to earlier conduct. United States v. Johns, 5 F.3d 1267, 1272 (9th Cir. 1993)4. Amendment
21 827 thus operates to Ms. Will-Darnall’s detriment and cannot be applied.
22 The government argues that the availability of § 4C1.1’s two-level reduction for zero-point
23 offenders renders it a “wash” whether the Court applies the 2018 Guidelines or the 2023 Guidelines.
24 That contention misses the mark. The Ex Post Facto Clause analysis provides no consideration of
25

26 3
The government contends that applying the 2018 Guidelines Manual requires deference to the
commentary defining “loss” as the greater of actual or intended loss. See Gov’t Sent. Memo at 7:7–8.
27 Post-Kisor v. Wilkie, that is incorrect. Kisor governs the judicial standard of review regardless of the
Guidelines’ date. See, e.g., United States v. Castillo, 69 F.4th 648 (9th Cir. 2023) (applying Kisor
28 analysis to an earlier version of the Guidelines).

DEFENDANT'S SUPPLEMENTAL BREIFING
WILL-DARNALL, CR 24–00292 PCP
3
Case 5:24-cr-00292-PCP Document 89 Filed 09/08/25 Page 4 of 6

1 whether later amendments contain offsetting provisions, but rather whether application of a later
2 manual increases the risk of a harsher sentence. See Peugh. The addition of § 4C1.1 does not cure the
3 constitutional defect created by Amendment 827, which eliminates Ms. Will-Darnall’s ability to
4 argue for a lower sentence based on actual loss. Fleming is instructive on this point. There, the State
5 made a similar argument that was rejected. The panel cited approvingly Miller v. Florida, 482 U.S.
6 423 (1987)(overruled in part on other grounds), where the Supreme Court rejected precisely this
7 reasoning. In Flemming, the Ninth Circuit applied Weaver v. Graham, 450 U.S. 24 (1981) (holding
8 that new discretionary opportunities could not “offset” the loss of automatic credits), and rejected the
9 State’s offset argument, making clear that a disadvantageous change to one provision cannot be
10 neutralized by possible favorable treatment elsewhere. Id. at 727. The Court in Miller similarly
11 rejected this reasoning, explaining that ameliorative provisions do not neutralize the constitutional
12 prohibition against retroactively applying a law that increases punishment, even if the sentence
13 imposed under the new law was not more onerous. Id. at 430–33. The Ex Post Facto Clause looks to
14 whether the new law creates a significant risk of increased punishment, not whether it also contains
15 offsetting benefits. Accordingly, application of the 2024 Guidelines would violate the Ex Post Facto
16 Clause.
17 II. Ms. Will-Darnall is a zero-point offender, and fundamental fairness warrants a two-level
variance to reflect that status, because applying the 2024 Guidelines Manual containing §
18 4C1.1 would violate the Ex Post Facto Clause
19 Ex Post Facto concerns further support a variance, as Ms. Will-Darnall is a zero-point offender
20 whose status warrants the leniency codified in § 4C1.1, and it is uncontested that she meets its
21 eligibility requirements. As discussed, the Ex Post Facto Clause precludes the Court from applying
22 the 2023 Guidelines Manual. The conflict between Amendments 821 and 827 has nothing to do with
23 Ms. Will-Darnall’s conduct and should not subject her to harsher treatment, particularly where it is
24 undisputed that she qualifies as a zero-point offender. The tension between Amendment 827 and the
25 Ex Post Facto Clause, and the resulting unavailability of a § 4C1.1 departure, raises concerns of
26 fundamental fairness, especially since it has nothing to do with Ms. Will-Darnall’s conduct.
27 Amendment 821 was adopted to reflect the Commission’s data showing that true first-time offenders
28 are far less likely to reoffend and should be treated more leniently. Ms. Will-Darnall plainly qualifies.

DEFENDANT'S SUPPLEMENTAL BREIFING
WILL-DARNALL, CR 24–00292 PCP
4
Case 5:24-cr-00292-PCP Document 89 Filed 09/08/25 Page 5 of 6

1 Yet because Amendment 827 was adopted at the same time, and retroactively redefined “loss” to her
2 detriment, she is denied the benefit of § 4C1.1 even though her offense ended more than two years
3 earlier. Nothing about the nature and circumstances of the offense justifies her harsher treatment. To
4 the contrary, the disparity arises solely from the bad timing of two unrelated amendments. In these
5 circumstances, fundamental fairness and the sentencing purposes set forth in § 3553(a) strongly
6 support granting Ms. Will-Darnall a two-level variance to reflect her zero-point offender status.
7 Amendment 821 became effective November 1, 2023, and was made retroactive effective
8 February 1, 2024. Thus, even defendants sentenced before November 1, 2023, may seek reductions
9 under 18 U.S.C. § 3582(c)(2). Anticipating this change, district courts granted variances in
10 recognition of zero-point status. See, e.g., United States v. Cora-Alicea, 100 F.4th 478 (3d Cir. 2024)
11 (affirming downward variance expressly based on zero-point status); United States v. Osemwengie,
12 No. 4:22-cr-00198 (S.D. Tex. August 5, 2025) (variance granted on the same basis).
13 Moreover, § 4C1.1 merely codified what courts had already recognized: true first-time
14 offenders present a markedly lower risk of recidivism and warrant more lenient treatment under §
15 3553(a). Even before the formal codification, judges routinely recognized the lower recidivism risk of
16 true first-time offenders. They often granted downward variances under § 3553(a) based on zero
17 criminal-history points, particularly post-Booker. These variances reflected an understanding that
18 zero-point offenders were empirically distinct from those with even minimal criminal histories. Long
19 before the Sentencing Commission codified the zero-point offender reduction in § 4C1.1, district
20 courts recognized that true first offenders warranted more lenient treatment under § 3553(a). See, e.g.,
21 United States v. Cabrera, 567 F. Supp. 2d 271, 279 (D. Mass. 2008) (recognizing that “true first
22 offenders” are statistically the least likely to reoffend); United States v. Baird, 580 F. Supp. 2d 889,
23 894–95 (D. Neb. 2008) (granting variance in part due to no prior criminal history); United States v.
24 Shipley, 560 F. Supp. 2d 739, 745–46 (S.D. Iowa 2008) (same). The empirical data underlying
25 Amendment 821 confirms that zero-point offenders like Ms. Will-Darnall are statistically far less
26 likely to reoffend. Because they pose little risk of recidivism, longer sentences are unnecessary for
27 deterrence, and fairness and proportionality weigh strongly in favor of a variance here.
28

DEFENDANT'S SUPPLEMENTAL BREIFING
WILL-DARNALL, CR 24–00292 PCP
5
Case 5:24-cr-00292-PCP Document 89 Filed 09/08/25 Page 6 of 6

2
Dated: September 7, 2025 Respectfully submitted,
3
JODI LINKER
4 Federal Public Defender
Northern District of California
5
/S
6 VARELL FULLER
Assistant Federal Public Defender
7

DEFENDANT'S SUPPLEMENTAL BREIFING
WILL-DARNALL, CR 24–00292 PCP
6

File and source

File: gov.uscourts.cand.430212.89.0.pdf
Size: 157,323 bytes
SHA-256: 77bc0fe67b1a47aa8b44afc6fd2689a1c4b8da72771457f46daed472434d1cea
Our copy: gov.uscourts.cand.430212.89.0.pdf
Original: No public link identified.