US v. Blanton, No. 05-50302 (2-12-07). The 9th (O'Scannlain joined by Kozinski and Bybee) held that double jeopardy bars the government from appealing a district court's allegedly erroneous denial of an ACCA enhancement. The defendant tried the ACCA issue to the court, arguing that two prior juvenile convictions could not be considered as triggering enhancements. The court found it could, but under Blakely, held that the government had not proved it to a jury. The Rule 29 motion was granted. The 9th ruled that the government's appeal was prohibited. The 9th recognized that the distinction between elements and sentencing factors have blurred, and the inquiry here is whether the gov't presented facts to prove the enhancement sufficiently. They had not. The district court's ruling related to guilt and innocence.

Congrats to AFPDs Carl Gunn and Dean Gits of the C.D. Ca (Los Angeles) for the win.

US v. Hernandez, No. 05-50920 (2-14-07). The 9th stresses that a defendant gets a lesser jury instruction on possession if a rational jury could so find. The defendant was stopped at the border and found with 111+ grams of pure meth. The government argued that the defendant presented no evidence of personal use, and the court agreed, stating, in effect, that the defendnat would have to testify or present some evidence. The 9th unequivocally said "NO!" The burden is on the government, and it was up to them to present evidence that 111+ grams were not for personal use (hey, it pays to buy in bulk, See Costco). The defendant could so argue. This case did not present evidence that made personal use irrelevant, like having a meth lab in the house, or kilos and kilos of cocaine. The 9th also found that the court's admission of a defendant's silence to an officer's questions as to whether the package was meth was error. The defendant was in custody, and silence could not be used against him. The error was harmless. The 9th (Gould joined by Pregerson and Clifton) rejected the sentencing claims.

Congrats to Jim Fife of the San Diego Federal Defenders for the win.

Thorson v. Palmer, No. 02-17359 (2-15-07). This is another "too late so sad" decision (Canby joined by Noonan and Paez). The 9th found that the petitioner's federal habeas was not tolled. Petitioner's state habeas was ultimately deemed untimely by the California Supreme Court, and so he not entitled to tolling for the time his untimely petition kicked around state court before the final decision. This was a successor petition.

US v. Flores-Sanchez, No. 06-10026 (2-15-07). The 9th (Goodwin joined by Tashima and W. Fletcher) hold that under the recent Supremes decision in US v. Resendez-Ponce, 127 S.Ct. 782 (2007), the indictment alleging "attempt" carries with it an implied allegation of an overt act in furtherance of the charged attempt. It meets the requirements of Fed R Crim P 7. There was also no Speedy Trial violation because defendant went to trial one day after the superseding indictment, as the clock starts ticking when the defendant appears with counsel under Rojas-Contreras, 474 US 231 (1985). The sentencing claims were rejected.