US v. Santiago, No. 05-30584 (10-23-06). Even in the age of Booker, guidelines are still critical, and effective representation still requires battling errors in the PSR. This case underscores this point. Defendant plead guilty, apparently with no agreements as to relevant conduct. The PSR comes in at relevant conduct between 17 and 104 kilos of meth. This is based on interviews with codefendants and others. Defense counsel never objected. At sentencing the court expressed concern with the amount attributable (hint-hint) but still no objection. The court sized up the amount, and sentenced defendant to 300 mos. On appeal, the factual findings of the PSR are challenged. "Sorry," says the 9th, "but review is for plain error because there was no objection." The error here was not plain, or even reviewable as an error because the PSR was accepted. If there is no objection, the court cannot be said to err on relying on the PSR's findings. The PSR's findings are accepted. The defendant here failed to object, and the PSR's guidelines are accepted without error by the court.

Smith v. Baldwin, No. 04-35253 (10-24-06). The petitioner faced a life sentence for a felony murder conviction. He faced procedural hurdles, but the 9th (Reinhardt & Hug) hold that the Schlup "actual innocence" gateway is available because the prosecutor engaged in misconduct in preventing the key witness who allegedly recanted from testifying at post-conviction proceedings by threatening him with charges, and other bad acts. The 9th frames the issues as to whether the misconduct would open the gateway, and found that it did, and then assumed the allegations were true for the purposes of assessing whether a reasonable jury could acquit, and found that it could indeed. The prosecutorial misconduct does not lead to a reversal on the merits, but only to a hearing on the petition's merits. Dissenting, Bybee vigorously disputes the majority's analysis, including prosecutorial misconduct, and believes that the remedy is extraordinary, and the most, the case should be sent back for the district court with a grant of immunity for the witness rather than assuming truthful allegations and getting a hearing on the merits. The dissent believes that the Schlup gateway is closed because the petitioner is guilty of felony murder with no affirmative defense.

Congrats to AFPD Tom Hester, D. Ore.

US v. Black, No. 05-10640 (10-26-06). The call to the police was for a "welfare check." The caller was a victim of domestic abuse, she was going back to the apartment to pick up clothes, and she would meet the police outside. She said that her boyfriend, defendant, beat her up and had a gun. The police got there, but couldn't find the caller. Around the back, they encountered defendant, got a key from him, and entered the apartment. They did so, they said, to see if the caller was hurt or there. In the sweep, they saw a gun. Defendant was convicted of being a felon in possession, and challenges the search. The 9th (B. Fletcher[writer] and district judge) upheld, reasoning that the police were concerned with the caller, and were afraid she may have gone back, and was hurt. The 9th recognizes this "welfare" exception, and that the police acted objectively reasonably. Dissenting, Berzon takes issue with the rationale, because the police arrived at the apartment so quickly that the harm that was feared could not have possibly occurred. rather, the police had time to secure a warrant.

Fernandez-Ruiz v. Gonzales, No. 03-74533 (10-26-06)(en banc). The 9th, en banc, held that an Arizona domestic violence conviction was not a "crime of domestic violence" under the federal statute that triggers removal of a legal resident. The 9th reasons (Bea joined by Schroeder, Reinhardt, Noonan Hawkins, and Clifton) that the federal statute as interpreted by the Supremes in Leocal, 543 US 1 (2004) covers only those crimes involving intentional conduct. Under a Taylor approach, Arizona's statute would permit a possible conviction with reckless but unintentional physical injury. Thus, the fed statute would not apply. The 9th joins five other circuits. Kozinski concurs and dissents, joining the majority, and rejecting the dissent's argument for a special domestic violence exception. Kozinski would send the case back to allow the gov't to present evidence before the IJ on the modified categorical approach. Wardlaw, dissenting (with O'Scannlain, Bybee, and Callahan), would find an exception and hold that domestic violence is a categorical crime of violence. The tone is set with the opening sentences: "Men do not beat their wives by accident. Blind to this truth, the majority ignores the realities of domestic violence and disregards congressional intent... ."