US v. Mercado, No. 05-50624 (1-22-07). The 9th (Fernandez joined by Graber) hold that acquitted conduct can still be used in sentencing. The defendants here were charged with RICO and conspiracy to distribute narcotics, but were acquitted on murder charges. The sentencing court still considered the murders, and sentenced them to the stat max (20 years) as a result. On appeal, defendant argued that Apprendi and Booker effectively overruled Watts. The 9th said "no," and that Watts, although shaky, still was controlling, as all the other circuits held. The reasoning was the lesser burden of proof, and the discretion of the judge under the advisory guidelines. In a spirited dissent, B. Fletcher castigates the reasoning, and argues that Watts has been overruled on both policy and constitutional grounds as the jury verdict should end the matter under the Sixth Amendment. The dissent is the opening brief for the cert petition.

Benitez v. Garcia, No. 04-56231 (1-22-07). The 9th grants a petition per curiam in an opinion that replaces the one filed May 23, 2006. The petitioner was extradited from Venezuela on murder charges, but the conditions were that he not face death, nor a sentence of longer than 30 years. In state court, he was sentenced to 15 years to life. The district courts held that the claim was either not ripe, nor not in violation of the treaty. The focus should be not on time "served" but on the sentence imposed, because that was the understanding when Venezuela allowed extradition under the express terms of the treaty. The 9th held, therefore, that the sentence of 15 to life was in violation of the terms of extradition. The California state courts acted unreasonably. The petition granted for a resentencing and the term cannot exceed 30 years.