US v. Diaz-Argueta, No. 05-10224 (5-16-06). The 9th reaffirms that sentencing must include 3553 factors. This is a 1326 case, where the defendant argued that his state conviction of "assault with a deadly weapon" was a "wobbler" (parlance for either a felony or misdemeanor). The 9th agreed that this offense could be a "wobbler," but the presumption is that it is a felony, and that the state court must do something to indicate that it is a misdemeanor The court must designate, or indicate so when ordering probation or upon motion of the defendant. The defendant didn't overcome the presumption, despite the relative mildness of the state sentence (109 days and 2 years probation). The case was remanded for resentencing though because the court just referred to the guidelines and PSR and did not apply and consider the 3553 factors. The 9th (Noonan) stresses that: "Sentencing is a difficult art. It is easy to make it mechanical. It is impossible to make it scientific in the sense of an hypothesis validated or invalidated by experiment. It is, however, an act of reason as the judge looking at this particular person and the circumstances of the crime that this particular person has committed makes a judgment following the prescriptions of the statute. This act remains to be done." (P. 5329). The court must indicate that it considered such factors.

US v. Thomas, No. 04-30541 (5-18-06). Next time you rent a car, think about who you put on the authorization to drive. The defendant was transporting drugs in a scheme where the cars were rented by one person but another drove. The car was stopped and defendant raised the issue of whether a tracking device on the car violated his right to privacy. He did not contend that he was given permission to drive the car. This is a surprising issue of first impression: "whether a driver of a rental car who is not listed on the rental agreement has standing to challenge the police search of the vehicle." The 9th qualifies the "yes," holding that "[a]n unauthorized driver may have standing to challenge a search if he or she has received permission to use the car." This is a middle ground between the approach of the 4th, 5th and 10th Circuits that have adopted a bright line test that the name has to be on the rental agreement for permission and the 6th Circuit that has a totality of circumstances approach. The 9th's holding, adoptive of the 8th Circuit, modifies the bright line test and generally disallows standing unless the unauthorized driver can she he or she has permission of the authorized driver. Here, though, the defendant didn't present evidence of any such permission. The defendant won the holding, but lost his standing. The case was remanded for Ameline sentencing considerations.

US v. Lopez-Solis, No. 03-10059 (5-19-06). The 9th looks at the Tennessee statute against statutory rape, and under a categorical analysis, holds that it is not a "crime of violence" for enhancement under illegal reentry, 2L1.2. The state statute is overbroad in the sense that it includes consensual sex between mature minors (almost 18) and someone who is 22. The physical and psychological abuse is not per se in such cases, and follows a similar 9th Cir. holding in another state statute, Valencia v. Gonzales, 439 F.3d 1046 (9th Cir. 2006). The 9th also holds that a Sentencing Guideline amendment defining "sexual abuse of a minor" as a crime of violence was substantive, and not merely clarifying, and so cannot be applied ex post facto. This latter point prompts Graber to dissent, arguing that the definition merely clarifies what is a crime of violence and so, since crime of violence had already been in the guideline, it can be applied ex post facto.

US v. Lo, No. 03-50608 (5-19-06). The "Lo" down on possessing ephedrine in ma huang extract is that it can be a precursor. Here, defendant as convicted of possessing ma huang extract and that it could be considered a precursor. The court had directed an acquittal after the jury convicted on those counts. The 9th found that the gov't could appeal under 3731 (implied jurisdiction although not specifically stated) and that the courts had jurisdiction. the 9th then found that the ma huang extract could be considered a precursor because sufficient evidence existed that ephedrine had a separate existence within the extract and would not have to be a chemically transformation or reaction. The defendant had failed to contest this point at trial. The 9th also uphold the conspiracy conviction despite the codefendant's acquittal. The defendant's defense was that he was simply trying to defraud the purchaser of the ma huang extract into thinking that it could be used for meth (thieves cheating thieves). The 9th held sufficient evidence for such a conviction. It found the defendant's multiple other challenges wanting but did remand for resentencing under Ameline.