Ninth Circuit Blog: Good Citations No. 2

Now for our next installment of those miscellaneous cases that might help a client in need:

Notice of criminal forfeiture should be a little more demanding after the Supreme Court's reversal in Jones v. Flowers, where certified mail returned undelivered provided insufficient notice for tax sale of a home. In reaching the holding, Chief Justice Roberts distinguished Dusenbery, the criminal forfeiture case upholding mail notice without actual notice. Although actual notice is not required, this case involved the "new wrinkle" of the state being aware prior to the taking that its attempt at notice had failed. The Court required that further reasonable steps be taken before the property could be taken, which should apply equally in the criminal context.
FPDs Franny Forsman and Art Allen brought in a great opinion in Piccolo regarding the definition of "crime of violence" under the Career Offender Guideline. The Ninth Circuit provides a helpful template for the categorical analysis of prior convictions, then holds that escape does not categorically qualify given the escape statute's coverage of walkaways from non-secure facilities (in fact, the Ninth Circuit has found an escape based on failure to surrender to a halfway house in Keller, 912 F.2d 1058 (9th Cir. 1990)). This creates a conflict with other Circuits.
A nice case from the Second Circuit, blogged here, expands on the Section 1326 defense to illegal reentry based on constitutional problems with the underlying deportation. In Lopez, the court held that misinformation provided to the alien regarding eligibility for discretionary beneits deprived him of the opportunity for judicial review of the deportation.
In a district court case regarding the BOP's residential drug and alcohol treatment program, Oregon District Judge Ancer Haggerty granted relief based on the BOP's delay of release due to unfounded placement in the Special Housing Unit. Barq, 2006 WL 1030158 (D.Or. Apr. 19, 2006), provides a good reminder that the BOP has to play by the rules.
Another Second Circuit case, this time on substantial assistance. In Fernandez, the court not only joined the courts rejecting a presumption of reasonableness, but found that attempts at cooperation not resulting in a government motion should be considered: "[I]n formulating a reasonable sentence a sentencing judge must consider 'the history and characteristics of the defendant' within the meaning of 18 U.S.C. § 3553(a)(1),...including the contention that a defendant made efforts to cooperate, even if those efforts did not yield a Government motion for a downward departure pursuant to U.S.S.G. §5K1.1."
AFPD Lisa Hay litigated Garcia-Rosales (2006 WL 468320 (D.Or. Feb. 27, 2006), in which Oregon District Court Judge Michael Mosman granted a motion to suppress where the government failed to establish a voluntary consent. The court first found that the police unlawfully detained Ms. Garcia-Rosales in the course of seizing her car, exceeding both the scope and the purpose of a Terry stop. Then the court found that the language barrier prevented the purported consent from being valid.
After Blakely and Shepard, we are more and more often confronted with questions regarding the facts that are admitted during a plea for the purposes of categorical analysis of prior convictions. My personal favorite analysis has been the Arizona Supreme Court's opinion in State v. Brown, requiring that the plea colloquy reflect a knowing and voluntary waiver of Sixth Amendment rights regarding the elements of the offense.