US v. Hicks, No. 06-30193 (1-11-07). This is an interesting Booker effect case: if the guidelines go down for a guidelines imposed sentence, and resentencing is allowed under 18 USC 3582(c), should the guidelines be treated as mandatory or advisory? In a case of first impression anywhere (maybe because the guidelines go down so infrequently), the 9th (B. Fletcher joined by McKeown and Schwarzer) emphatically stated that the sentencing must treat the guidelines as advisory. The facts here involved a drug conspiracy in 1993. It was a family affair, except the father was acquitted, who was the "kingpin," and the son was left holding the bag, and unfortunately a gun, too. He received a 40-year sentence. The guidelines changed so that a 924(c) charge meant that one did not count the gun in the guideline sentence, and resentencing was allowed under the guideline provision 3582(c). The government contended that the court, in resentencing, could not look at Booker, but had to treat the guidelines, unconstitutional and all, as mandatory. The 9th found this was error, bad policy, unconstitutional, and that it did not make sense. The court, in this resentencing, is not limited to just taking off two levels, but can resentence.

US v. Hernandez-Castro, No. 06-10074 (1-12-07). Booker left intact the "safety valve"'s requirement, 18 USC 3553(f), that a defendant, to be eligible can not have "more than 1 criminal history point, as determined under the sentencing guidelines." Although Booker made the guidelines advisory, it did not, and could not, trump the mandatory minimums established by Congress, nor the legislative enactment of the safety valve. Furthermore, a departure to a criminal history category also does not make the defendant eligible. US v. Valencia-Andrade, 72 F.3d at 774. Booker is not a magical incantation which spells the disappearance of congressional enacted mandatories (yet).

US v. Reynard, No. 02-50476 (1-12-07). The 9th rejects a number of challenges to the collection of DNA for probationers. The defendant was ordered to submit a DNA sample for the data base, refused, and was found in violation of his SR conditions. On appeal, the 9th finds there were no retroactivity, ex post facto, right against self-incrimination, and (by two judges), the commerce clause. Dissenting, Pregerson would find that the DNA collection is outside of Congress's authority under the commerce clause. The DNA is not injected in the stream of commerce; Congress is therefore overreaching.