The Criminal Docket


July 2006 

Volume 1, Number 5

In This Issue:

United States Supreme Court Decisions
United States Supreme Court Reviews Granted
United States Court of Appeals (9th Circuit) Decisions

United State Supreme Court Decisions 

United States v. Ortuno-Higareda
United States v. Pintado-Isiordia
United States v. Scott

United States v. Staten
United States v. Thomas
United States v. Weber

Vo v. Benov

United State Supreme Court Reviews Granted: 


U.S. Court of Appeals (9th Circuit):

Perez v. Rosario,
No. 04-15279, May 22, 2006, (N. D. Cal.) (O'Scannlain, with Cowen (3d Cir.), and Bea).  Ineffective Assistance. Counsel failed to advise defendant that one of his priors would count as a "strike" under California law. In offering the plea bargain, however, the prosecutor mistakenly believed the prior would not count, and that was the only reason the plea offer was made.  Under these circumstances, the court held that defendant could not establish prejudice because he was not entitled to a plea bargain based on mistaken legal assumptions and in all likelihood the prosecutor would have realized the error before finalizing the deal.  The court also upheld the factual findings of the state court rejecting defendant's other claims of ineffective assistance.
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United States v. Casch, No. 05-30270, May 24, 2006 (D. Idaho) (Noonan, with Tashima, and Fletcher).  Venue.  The 9th Circuit affirmed a drug conviction.  The court found error in the failure to instruct the jury regarding venue because the indictment charged defendant with offenses committed in Idaho "and elsewhere" and there was evidence of conduct
committed in Washington.  Nevertheless, the court held that the error was not structural and found the error harmless because the evidence was overwhelming that defendant had formed a conspiracy to distribute drugs in Idaho.
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United States v. Delamora, No. 05-50589, June 22, 2006, (C.D. Cal.) (Sliverman, with Lay and Wardlaw).  Supervised Release Revocation.  A government appeal reversing the dismissal of a supervised release petition. The district court had dismissed the petition for lack of a sworn warrant based on United States v. Vargas-Amaya, 389 F.3d 901 (9th Cir. 2004).  The 9th Circuit reversed, agreeing with us that the supervised release term was tolled because defendant was a fugitive,
based on United States v. Murguia-Oliveros, 421 F.3d 951 (9th Cir. 2005).  The court rejected defendant's argument, based on some language in Murguia-Oliveros, that the supervised release term was only tolled until the date his term would have expired absent a violation.  The court held instead that tolling of the supervised release term extends the date the term is to expire so long as the defendant remains a fugitive because to hold otherwise would reward fugitives.  The court also rejected defendant's arguments that the Anti-Drug Abuse Act only allows for imposition, not revocation, of supervised release and that revocation based on the Sentencing Reform Act would violate the Ex Post Facto Clause.
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United States v. Howard, No. 05-10469, May 25, 2006, (D. Nev.) (Bybee, with Noonan (Concurrence), and Schwarzer).  Search/Seizure - Probation Searches, Probable Cause.  The 9th Circuit reversed the denial of a motion to suppress the fruits of a warrantless probation search, finding no probable cause to support the officers' belief that defendant resided in the apartment that was searched.  The court explained that it applies a "relatively stringent standard" in determining probable cause that a residence belongs to a supervisee. The court found the standard not to be met here because there was
evidence that defendant still lived at another address, police watched the address in question for a month and did not see defendant there, no credible witnesses had seen defendant at the apartment for some time before the search, defendant did not have a key to the apartment, and neither defendant nor his purported co-resident admitted to his residence at the apartment.  Judge Noonan concurred, dubitante, noting Supreme Court authority that probationers have a diminished
expectation of privacy and that "the Fourth Amendment protects people, not places."
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United States v. Lo,  No. 03-50608, May 19, 2006, (C.D. Cal.) (Hug, with Wardlaw, and Singleton).  Narcotics Statutes - Precursor Statutes; Sufficiency of Evidence - Conspiracy; Booker - Mandatory Minimum.  The district court granted a Rule 29 motion after the jury's guilty verdict based on the court's conclusion that defendants did not possess ephedrine when they possessed ma huang, which is a plant that contains ephedrine along with other substances.  After re-affirming that such post-verdict acquittals are appealable, the 9th Circuit reversed the district court and held that possession of ma huang
qualified as possession of ephedrine because there was sufficient evidence that the ephedrine (1) maintained its distinct chemical identity within the combination of substances and (2) maintained its utility in the manufacture of a controlled substance. On the defendant's cross-appeal, the court upheld the district court's denial of a Rule 29 as to the conspiracy count, holding that there was sufficient evidence that defendant conspired with a co-defendant even though the co-defendant was acquitted.  The court also upheld the jury instructions, first holding that the precursor statute does not
require the mens rea that the defendant know that the chemicals possessed are listed chemicals (only that the defendant know or have reason to believe they will be used to manufacture a controlled substance).  Second, the court found error in the jury instructions on aiding and abetting the manufacture of controlled substances because they did not contain the mens rea required for manufacturing, but the court held that the error did not affect defendant's substantial rights because the jury instructions as a whole required the jurors to find the requisite knowledge. The court also upheld the constitutionality of defendant's mandatory minimum sentence, rejecting defendant's argument that Booker requires
severance of the enhanced penalty provisions of 21 USC 841(b). Finally, the court sent the case back for an Ameline remand.
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United States v. Lopez-Solis, No. 03-10059, May 19, 2006, (D. Ariz.) (T.G. Nelson, with Graber (Dissent), and W. Fletcher).  Sentencing - Immigration Offenses.  The 9th Circuit reversed a 1326 sentence, holding that the district court had improperly applied the 16-level enhancement for a crime of violence based on defendant's statutory rape conviction.  The court held that statutory rape was not "sexual abuse of a minor," and therefore a "crime of violence," under USSG 2L1.2(b)(1)(A) as it existed at the time of defendant's offense. Subsequently, the commentary was amended to include statutory rape in the definition of "crime of violence," but the court held that that was a substantive amendment that could not be applied retroactively. Judge Graber dissented based on her view that the amendment to the application note was a clarifying, not a substantive amendment, and therefore should have been applied retroactively.
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United States v. Manzo-Jurado, No. 05-30186, June 20, 2006 (D. Mont.) (Bea, with Canby; Gould, dissenting).   Search/Seizure - Terry Stop. The court reversed the denial of a suppression motion, holding that officers lacked reasonable suspicion to believe defendant was in the country illegally.  Defendant was part of a group of Hispanic men stopped outside a high school championship football game near the Canadian border.  The Border Patrol officers suspected them of being illegal aliens based on their apparent Hispanic ethnicity, their appearance as a work crew, their proximity to the Canadian border, their inability to speak English, the fact that they appeared out of place at the football game, and defendant's behavior in leaving the game early and changing course when he saw a Border Patrol officer. The court held that while the individuals' Hispanic appearance, language, proximity to the border, and appearance as a work crew could
have some relevance, those factors were insufficient by themselves to establish reasonable suspicion.  The court held that the individuals appearing "out of place" at the game was not relevant because it amounted to nothing more than intuition and that defendant's behavior was not in fact evasive because he walked right by the marked Border Patrol car twice and then waited in his own car for fifteen to twenty minutes.  The court also rejected the government's argument that even
if the stop was improper, defendant's fake social security card should not be suppressed because a defendant cannot suppress his identity, holding that defendant was trying to suppress his identity but rather evidence that he used a fake social security card to gain employment. Judge Gould dissented, believing that the court should have deferred to the judgment of the immigration officials in drawing inferences from their observations of the individuals and that those inferences were sufficient to justify the minimal intrusion of privacy involved in the brief detention for questioning.
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United States v. Mix, No. 05-10088, June 8, 2006, ( D. Ariz.) (Alarcon, with McKeown and Holland) (amended opinion).  The court amended its previous opinion in this case to eliminate an interesting footnote that had said that "[p]ursuant to 18 U.S.C. 3742(f)(1), guideline sentences are reviewed for violations of law incorrect application of the Guidelines, not reasonableness.  Pursuant to 3742(f)(2), departures from the Guidelines are reviewed in several respects, including reasonableness."  Just further cementing the fact that every sentence is fair game on appeal.  The previous Skinny on
this case is attached below (in teal).
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United States v. Mix, No. 05-10088 (3/30/06) ( D. Ariz.) (Alarcon, with McKeown and Holland, D.J.).  Booker -  Reasonableness.  The court affirmed as reasonable concurrent life and 120-month sentences imposed on a defendant convicted of kidnaping, aggravated sexual abuse, and assault with a deadly weapon on an Indian reservation.  The court
reaffirmed that district courts must conduct a two-step analysis, first calculating the guideline range (including consideration of relevant departures under the guidelines) and then applying the 3553(a) factors.  In this case, the court determined that the district court had not departed pursuant to USSG 5K2.21 (which would have been erroneous because that provision did not go into effect until after defendant committed his offenses) but rather had varied from the guidelines pursuant to Booker (which was okay).  The court noted that "it is important that district courts clearly and carefully
differentiate between the findings and conclusions as regards the application of the Guidelines, and the findings and conclusions as regards the application of non-Guidelines factors pursuant to 18 U.S.C. 3553(a)."  The court held that the district court's sentencing explanation was adequate, stating that "'[j]udges need not rehearse on the record all of the considerations that 18 U.S.C. 3553(a) lists; it is enough to calculate the range accurately and explain why (if the sentence lies outside it) this defendant deserves more or less'" (quoting United States v. George, 403 F.3d 470, 472-73 (7th Cir. 2005).  Here, the district court's recitation of the "grisly circumstances" of the offense and the defendant's 17-year history of extremely violent sexual abuse of women, and its statement that "the guidelines do not sufficiently provide for the heinous, brutal, continued nature upon the victims in this case" was an adequate explanation and justified the sentences imposed.
In an interesting footnote, the court held that pursuant to 18 U.S.C. 3742(f)(1), guideline sentences are reviewed for violations of law and incorrect application of the Guidelines, not reasonableness, while pursuant to 18 U.S.C. 3742(f)(2), departures are reviewed in several respects including reasonableness.  The statement with respect to guideline sentences is probably dicta because this case did not involve a guideline sentence. Finally, the court rejected the defendant's arguments that the application of Booker violated ex post facto principles (citing United States v. Dupas, 419 F.3d 916, 920-21 (9th Cir. 2005)) and that the judge's reliance on uncharged conduct that had not been proven to a jury BRD violated the Sixth Amendment.
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United States v. Ortuno-Higareda , No. 04-10257, June 8, 2006, (D. Ariz.) (Rawlinson, with Wallace (dissent), and Bybee).  The 9th Circuit reversed itself this time, with the panel withdrawing its own previous opinion (8/26/05) vacating the a supervised release revocation order and issuing this new opinion affirming the order.  Defendant was violated for reentering the country without authorization, and he challenged revocation on the grounds that he did not receive the conditions of supervised release in writing and that there was insufficient evidence that he violated. First, the court
held that there was no Vargas-Amaya problem because defendant's supervised release was revoked prior to expiration of his term of supervised release, so section 3583(i) did not apply and it did not matter that the warrant was unsworn.  Next, the majority reconsidered its previous opinion reversing on the ground that defendant had not received actual notice of the conditions, and held, based on previous case law, that knowledge of the criminal law is imputed to a defendant and therefore he need not be given actual notice of a condition the violation of which would constitute a criminal act.  Finally, the majority held there was sufficient evidence to establish defendant's reentry and found no due process violation in the court's reliance on an arrest report and criminal complaint in defendant's A-file to establish the violation.  A miffed Judge Wallace -- who wrote the original opinion reversing -- dissented.  He was particularly miffed at the government for not raising the imputed knowledge argument at any point before their petition for rehearing and thought the majority should not have entertained the argument at this late stage.  He also believed the other cases cited by the majority do not squarely address the issue presented in this case.
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United States v. Pintado-Isiordia, No. 05-50489, May 26, 2006, (S.D. Cal.) (Lay (8th Cir.), Silverman, and Wardlaw) (per curiam).  Hearsay - Public Records [add]; Sentencing - Categorical Approach.  The court affirmed this 1326 conviction but remanded for resentencing.  The court found error in the introduction of a birth record because the attestation that established it was a public record was illegible, but the court held the error to be harmless because the defendant's own
mother testified that she had his birth registered in Mexico (just goes to show you should always be very nice to your mother).  The court found no error in the admission of a National Guard letter to rebut the suggestion that defendant's enlistment contract proved that he was a U.S. citizen and no error in the exclusion of defendant in his military uniform.  As to sentencing, the court remanded because it was unclear whether the court applied the categorical approach or the
modified categorical approach in determining that defendant's conviction qualified as a "crime of violence."
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United States v. Scott, No. 04-10090, June 9, 2006 (D. Nev.) (Kozinski, with Fletcher, and Bybee (Dissent); dissent from denial of en banc by Callahan). The 9th Circuit denied rehearing en banc and issued an amended opinion.  This is the case that held that suspicionless searches conducted pursuant to pretrial release conditions violated the Fourth Amendment.  Judge Kozinski, joined by W. Fletcher, issued a rewritten majority opinion, still holding that a condition of pretrial release that includes consent to searches based on less than probable cause is unconstitutional, but now noting that its conclusion does not necessarily invalidate the federal pretrial program because it may be supported by different legislative findings and also that such a condition might be warranted based on individual findings in a particular case (nn. 8 & 11).  Judge Bybee continued to vigorously dissent, and was joined by seven additional judges objecting to the denial of rehearing en banc.
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United States v. Staten, No. 05-30055, June 7, 2006 (D. Mont.)  (Berzon, with Gould and Schwarzer (D.J.)).  Booker - Procedures;  Sentencing - Burden of Proof; Sentencing - Methamphetamine Issues.  The 9th Circuit reversed the defendant's post-Booker sentence for methamphetamine manufacture, finding that the district court's conclusion that the Guidelines enhancement for substantial risk of harm should apply was inadequate.  The defendant was a participant in
an attempted meth cook in a hotel room, and the haz mat team seized a variety of chemicals and apparatus from the room that were to be used in the cook.  The PSR recommended, and at sentencing, the district court found that the 2D1.1(b)(5)(B) enhancement for substantial risk to human life or the environment applied, based on the govt's expert witness testimony on the wide variety of significant hazards associated with meth cooks, and the court's findings that there were
risks to the life of both the cook and the ultimate user of the meth, and that future occupants of the motel room were at risk of exposure. 
The circuit first set out an Application Note 20 to (then) 2D1.1(b)(5)(B), which says that the sentencing court "shall consider" the quantity of hazardous substances & how they are stored, how they were disposed of &  the likelihood of release, the duration & extent of the offense, and the location (eg, whether close to residences) & number of human lives placed at risk.  The court stated that the note is mandatory, and that there was "no finding" with respect to these
factors.  It said that general risks attendant on all meth manufacturing may not be considered in determining whether the
enhancement applies (therefore, most of the expert's testimony and the risk to the cook and the ultimate users were irrelevant). 
The court also found as another flaw in the district court's factual findings its apparent reliance on a preponderance standard rather than clear and convincing evidence, because the substantial risk enhancement resulted in a 15-level increase in the base offense level. In perhaps the most frustrating part of the opinion, the government here conceded that the clear and convincing test should apply (frustrating because it means I can't really get mad at the 9th Circuit about it, and also that we won't be able to seek further review).  The court agreed and expressly held that "the clear and convincing standard still obtains for an enhancement with an extremely disproportionate effect."  The court concluded that the same due process concerns motivating the Hopper line of cases still exist post-Booker because district courts still have to perform accurate guidelines calculations.
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United States v. Thomas, No. 04-30541, May 18, 2006, (E.D. Wash.) (O'Scannlain, with Silverman, and Gould).  Search/Seizure - Standing; Sentencing - Career Offender; Booker - Ameline Remand.  The court affirmed the denial of a motion to suppress and remanded pursuant to Ameline.  The court, adopting an approach from the Eighth Circuit (and
differing from several other circuits), held that a driver of a rental car not listed on the rental agreement can have standing to challenge a search of the car if he or she has received permission to use the car.  In this case, however, the court held that defendant failed to show that he received permission from the authorized driver to use the car and therefore held that he lacked standing.  As to sentencing, the court rejected defendant's argument that his career offender sentence violated Blakely, holding that the statutory maximum was that provided in the statute, not the guidelines.  The court also rejected, again, that tired old "Almendarez-Torres has been overruled" argument.  The court rejected the government's argument that a remark by the district court that it considered whether defendant shouldn't be sentenced to a sentence greater than the low end was sufficient to establish no prejudice, and the court therefore ordered an Ameline remand.
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United States v. Weber,
No. 05-50191, June 20, 2006, (C.D. Cal.) (Berzon, with Canby; Noonan, concurring).  Supervised Release Conditions; Child Pornography.  The 9th Circuit vacated and remanded a kiddie porn sentence that included a supervised release condition that required participation in a sex offender treatment program that could include submitting to plethysmograph testing.  First, the court held the issue to be ripe for review even though defendant had not yet been
(and might never be) subjected to plethysmograph testing, because a supervised release condition is part and parcel of the sentence and can be challenged on direct appeal.  On the merits,
the court held that the government had the burden of justifying such a discretionary supervised release condition and that, because this condition affects a "particularly significant liberty interest," the court must support its decision on the record with evidence that the condition is necessary to accomplish one or more of the 3583(d)(1) factors and involves no greater deprivation of liberty than reasonably necessary.
After a lengthy discussion of the history and uses of plethysmograph testing, the majority held that, although it would not say categorically that plethysmograph testing can never be included as a condition of supervised release, it was improperly ordered in this case because the court did not make an individualized determination that it would, in this particular case, promote the goals of 3583(d)(1) and involve no greater deprivation of liberty than reasonably necessary.  The court noted that such an individualized determination must include consideration of the defendant's specific psychological profile, the particular sexual offenses committed, and related offenses likely to be committed.  A generalized assessment based on the class of sex offenders is not sufficient.
Judge Noonan concurred, but said that he would go further and hold that the "Orwellian procedure" can never be ordered because it is simply too great a violation of personal dignity.
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Vo v. Benov
, No. 04-56689, May 22, 2006, (C.D. Cal.) (Reinhardt, with Kozinski and Berzon).  Extradition Issues.  Vo was involved in a bombing plot at the Vietnamese embassy in Bangkok and fled to Los Angeles, where we initially charged him with conspiring to use a weapon of mass destruction and then dismissed our charge and sought an extradition arrest warrant.  Vo sought a stay of extradition and a writ of habeas corpus, which the district court denied.  The 9th Circuit affirmed, holding first that the offense did not fall within the "political offense" exception to extradition because the violence in Vietnam did not rise to the level of an "uprising," and in any event Vo did not qualify for the exception because his conduct occurred outside of Vietnam.  Second, the court found no due process violation in the extradition court's failure to invoke or make findings regarding the exception to extradition where the United States has "proceeded against" the extraditee.  The court held that that exception is discretionary with the Secretary of State and an extradition court has no authority to deny extradition on that basis and no obligation to make the determination whether the individual has
been "proceeded against."
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