US v. Miqbel, No. 05-10033 (4-17-06). The 9th (Reinhardt) ventures into that long-negelcted area of sentencing for a supervised release (SR) revocation, and held that the court must give specific reasons tying sentence to the violation. The defendant had been convicted of a drug offense. On SR, he was found with small amounts of marijuana and meth, but had been doing well in counseling. The range was 3 to 9 mos, with a recommendation from probation and the gov't of 6 mos. The court gave 12 mos., and stated that after consideration of the guidelines, it was for "punishment." later, at a bail hearing, the court muse dit gave too short a shrift to the reasons, and tried to add on. On appeal, the 9th held that under Booker, the standard was whether the test was reasonable (joining the 2nd and 8th Circuits). Here, there were not sufficient reasons given for the sentence. Moreover, the reasons given -- "just punishment" -- is not an appropriate reasons. Section 3553(a) lists 10 factors to be considered din assessing a sentence. The revocation statute, 3583(e), incorporates 8 of the 10, but omits the need for "just punishment." Congress is assumed to know what it is doing (talk about legal fictions!), and an omission is interpreted as purposefully. Because just punishment is omitted, a court errs in using that as a factor. There might be a slight difference between "breach of trust" (an okayed factor) and "just punishment," but a distinction, albeit subtle, can be drawn. The sentence is vacated and remanded.

Congrats to AFPD Timothy Zindel, E.D. Ca., for the win.

US v. Thornton, No. 04-50226 (4-17-06). The 9th holds that a state statute that makes it a crime to drive with a BAC of .08 is similar to the state DUI (driving under impairment) and so the sentence counts for criminal history. The defendant tried to argue that it was a minor traffic offense, or public intoxication, and therefore shouldn't count. The 9th (Paez) held it was akin to driving while drunk, and must count. The upshot is not just another criminal history point, but safety valve preclusion.