US v. Pike, No. 05-30528 (1-17-07). This is a deceptively simple sentencing remand. The defendant robbed a bank, was caught, and confessed. He pled without a plea agreement. The PSR gave him a 5-level enhancement because he may have had a gun in the backpack. He stated that the gun was kept in the car. The court refused the enhancement, using the "clear and convincing" evidentiary standard since the enhancement was more than four levels. On appeal, the 9th (Reinhardt joined by Tashima and Graber) remanded for resentencing. The 9th held that the wrong standard was used because the question of whether a heightened evidentiary burden of proof was to be sued required a "totality of circumstances" analysis, looking at the maximum sentence of the crime allege din the indictment; whether it negates the presumption of innocence for the alleged crime; whether the facts offered in support of the enhancement create a new offense; whether the extent of the conspiracy is involved (relevant conduct); whether the enhancement is more than four levels; and whether the sentence is doubled. Under this test, the sole factor present here was an increase of more than four levels, and that, by itself, has never been held to trigger an enhancement. The focus is on whether other offenses are being punished under a lower standard. The 9th carefully said that under this case, and these facts, the sole factor of five levels, without more, was not enough. The 9th did stress that the court still had to determine, on remand, whether the d efendnat had the gun in his backpack during the robbery or whether it was left in the car. The standard is preponderance of evidence. The 9th also held that the phrase "I have a gun" is not per se a threat of death. It is pretty good evidence of it, but it must be assessed under the totality of circumstances test, and the defendant's acts here might not be a threat of death. Thus, this case redefines the test for what standard of proof is to be used in a guideline sentence, and stresses that the express threat of death with the phrase "I have a gun" is not automatic for an enhancement.

US v. Berger, No. 04-50469 (1-18-07). The 9th (Pregerson joined by Leavy and Beistline) affirm convictions for securities fraud, finding that materiality was established. More interesting was the issue of the judge's informal "chat" with the jury over scheduling that lead to the judge lapsing into a quasi-Allen discussion. The 9th found that the defendant had waived the informal chat, but not the subsequent Allen discussion, nor the giving of a modified Allen instruction. The error, though, was harmless because of the nature of the instruction, and the fact that the jury might not have been deadlocked (it had been a two month trial). The case was remanded for resentencting on the government's cross-appeal because the court had, after Blakely, refused to use enhancements not given to the jury, and now, under Booker, the guidelines were advisory.

Ruiz-Vidal v. Gonzales, No. 04-73812 (1-18-07). The 9th reverses an order of removal based on possession of a controlled substance because there was no indication what the controlled substance was, and it might not have been one. The judicially reviewable documents are not clear, and the petitioner had plead nolo to a different charge than for what he was indicted with in state court.