US v. Littlesun, No. 04-30300 (4-21-06). The 9th holds that Crawford's right to confront testimonial evidence does NOT apply at sentencing. The defendant here pled guilty to selling 3.7 grams of meth, but the court found him accountable for 32.5 grams. The basis was the testimony of an agent that had interviewed his wife, and she recounted his selling activities. Defendant argued that he had a right to confront, because of Crawford, and that the wife had bias because she had fallen in love with someone else and he, by the way, had also seen someone else. The 9th acknowledged the power of the argument, and that Crawford would apply if this was trial, but it wasn't, and under Williams v. New York, 337 US 241 (1949), a court can consider wide-ranging information and evidence so long as it has an indicia of reliability. The 9th acknowledges that increase in sentence this causes, especially in a guideline context, but the Supreme Court's precedent still controls. The 9th joins the 1st, 2nd, 6th, 7th, 8th, and 11th Circuits on this issue. Although the 9th ruled against Crawford's application, the opinion highlights the fact that Williams came from another era (it is over half a century old), and penological philosophies have changed. The issue should be preserved and raised to the Supremes that if sentences are going to be exponentially increased based on weight and quantity, the evidence assumes a trial-like importance, and Crawford should apply.

US v. Salazar-Gonzalez, No. 04-50411 (4-21-06). The 9th holds "that for a defendant to be convicted of a 1326 'found in' offense, the government must prove beyond a reasonable doubt that he entered voluntarily and had knowledge that he was committing the underlying act that made his conduct illegal -- entering or remaining in the United States." This came up on an appeal from a denial of a defense proposed jury instruction. The defendant was found in the United States about 100 yards from the border, with 10 other Mexican illegals, hiding in the brush. The 9th was surprised it had confronted the issue before, but noted that the offense is a general intent one, which means that the gov't must prove beyond a reasonable doubt that the defendant knew and committed the facts that go into the offense, although he does not have to know that the actions themselves are illegal. So, the gov't has to show that the defendant knew he was in the US and came here voluntarily. The 9th found error in the denial of the instruction, but considered it harmless. Rymer, concurring, would not have clarified what instructions need to be given because here no facts supported the giving of such an instruction.

US v. Plouffe, No. 05-30045 (filed 1-18-06 and amended 4-21-06). In this Order amending the opinion, the 9th joins the other circuits in concluding that it has jurisdiction to review for reasonableness a within guidelines sentence. The 9th emphasizes that a review of ALL sentences is required to determine whether it is reasonable in light of the 3553 factors. A finding that a guideline sentence by itself is reasonable would violate Booker. This decision, when read in connection with Zavala, No. 05-30120 (4-11-06), makes clear that a court cannot hide behind the reasonableness of the guidelines, but must address the 3553 factors in each and every case, and apply them to each sentence. Zavala held that all the 3553 factors are to be applied, and that the guidelines cannot be considered to have incorporated them and so is a presumptive sentence, or has a place as a factor that is more important than the others.

As pointed out by several commentators, the gov't is chastised for not presenting other circuit law on this issue. The 9th stresses that when it has not decided an issue, it expects the parties to provide cites to other circuits' law or resolution.