US v. Galena-Mendoz, No. 04-73100 (10-6-06). The 9th holds that a state domestic battery misdemeanor conviction (Calif. Penal Code 243(e)) does not qualify as a crime of moral turpitude. The 9th uses a categorical approach and finds that the California statute would sweep in conduct was that violent but also such conduct as spilling a soft drink on a spouse or tapping a pencil against a partner. Concurring, Callahan cautions that a modified categorical approach could, in other cases, find conduct that qualifies as moral turpitude.

Stokes v. Schriro, No. 04-16454 (10-6-06). Apprendi finds its way to state habeas. Petitioner received an "aggravated" recidivist sentence that raised his sentence from 20 to 25 years based on a judicial finding of "aggravation" and other factors. The 9th held this violated Apprendi, and that it was not harmless.

Congrats to AFPDs Jennifer Garcia and Mike Burke of Arizona for the win.

US v. Nichols, No. 05-30503 (10-6-06). A sentencing court applied a four level adjustment in a felon-in-possession case because a firearm was used in another felony. The firearm used in the felony however was NOT listed or charged in the indictment. No matter, said the court, the guidelines said "any firearm" under 2K2.1(b)(5). The 9th agrees. The 9th however doesn't look at the plain language of the guideline but employs instead a relevant conduct analysis under 1B1.3. Wallace, concurring, wouldn't go this far, but would use the plain language as the 8th Circuit did in Mann.

Cart/Zavala en banc was argued on 10-6-06 before a 9th Circuit en banc. The argument was spirited, and defense counsel acquitted themselves well. We'll see.