US v. Marcial-Santiago, No. 05-30248 (5-8-06). The 9th holds that the disparity between fast-track and non-fast-track defendants does not make the higher sentence unreasonable. The defendants here were illegal reentries. The district (Montana) does not have a fast-track program. Their sentences were much higher than they would have been under fast-track (close to 75% of the immigration cases are sentenced under fast-track). The 9th said "so what." Congress approved such disparity under the Protect Act, and recognized that such differences would take place. Moreover, "unwarranted disparity" is but one factor to consider in sentencing. The 9th also reasoned that fast-track is part of prosecutorial discretion, involving resources, and so the equal protection and due process arguments fail. In footnote 3, the 9th notes that Booker did not alter Banuelos-Rodriguez, 215 F.3d 969 (9th Cir. 2000)(en banc) which held that disparity due to a lack of a fast-track was not a proper ground for a departure.A silver-lining tact that can be taken is this decision's emphasis that unwarranted disparity is but one factor. It does not have prominence among the other 3553 factors. Hence, we can argue that unwarranted disparity is not a "first among equals," but can be subjugated to other more compelling factors in a case, such as rehabilitation or the nature of the offense.

US v. Torres-Hernandez, No. 05-50136 (5-8-06). This is an equal protection challenge to the underrepresentation of Hispanics on g grand juries. The 9th decides that "a district court need not and may not take into account Hispanics who are ineligible for jury service to determine whether Hispanics are underrepresented on grand jury venires." Further, "to determine whether Hispanics are underrepresented to an unconstitutional degree in venires, a district court must rely on that evidence which most accurately reflects the judicial district's actual percentage of jury-eligible Hispanics. In the Southern District of California (San Diego and Imperial), Hispanics are roughly 29% of the population and jury eligible was roughly 16%. The focus is not on the total percentage of Hispanics, but those that meet the jury eligibility criteria.

The 2% difference between the jury eligible and the percentage actually on grand juries and juries was constitutionally insignificant (the level is roughly 4.9 that causes judicial eyebrows to rise). The 9th sidesteps a intra-circuit conflict on whether the defendant must present only jury-eligible evidence versus whether total percentage. Here, under either standard, no constitutional violation occurred.

Morris v. Ylist, No. 05-99002 (5-9-06). The 9th affirms convictions in this habeas petition (the 9th had already remanded the case for a new sentencing trial). This was a brutal murder, but one in which one codefendant got a three year sentence, another wasn't prosecutor, and the petitioner here got death (remanded). In terms of the convictions, the 9th considers various allegations of Brady violations and perjurious testimony by witnesses. The 9th was troubled by some of the sleigh of hand by the prosecutors, lack of candor, and of course lack of disclosure.

The 9th found though that the guilt was overwhelming, and so any violations were harmless, and some evidence, such as a scrawled note from a prosecutor that testimony was "perjury" was taken as work product opinion (?) and so not Brady. Strange. Other evidence may have impeached the witness, but did not necessarily exculpate the petitioner. Of note in this opinion is Ferguson's concurrence, in which he reiterates the freakish and arbitrary nature of death decisions by the prosecutor, and emphasizes that the jury, in the remand penalty, must be informed as a mitigator the prosecutorial concession that all three codefendants were equally culpable, but only one is singled out for death.