US v. Snellenberger, No. 06-50169 (4-3-07). Should an equivocal minute order result in years of imprisonment as a career offender? The 9th answers "no" in this case involving an unarmed bank robber. One of his priors for career offender analysis was a California 459 burglary. Such a conviction could be for a dwelling, but also for other acts, such as shop, warehouse, barn, aircraft, train and the always popular underground portion of a mine. The government sought to prove that the offense was a dwelling through an information alleging facts of a residential burglary. The 9th (Ferguson and Siler with a concurrence by Hawkins) says this does not meet the Taylor/Shepard categorical test. The gov't argues that the minute entry can come in as evidence of a conviction, but that doesn't meet the higher standard of clearly establishing facts that lead to an enhancement. The 9th recognizes there might be some tension with the use of abstarcts proving prior convictions for enhancement purposes (n. 5). However, the panel here notes that the 9th in Diaz-Argueta, 447 F.3d at 1169, had noted that a state court minute order is not the type of record to be relied upon, and the panel here so explicitly holds. Concurring, Hawkins tries to clarify this tension, noting that the minute entry here does not specify the narrower offense. He points out that the abstract in the past has been used to prove a categorical prior, and that is bolstered by a charging document to show that a conviction did occur. Hawkins would not use abstracts to independently establish a qualifying conviction, but could be used in a modified categorical analysis. There may be a difference in that abstracts and minute orders might be treated differently.
Congrats to AFPD Gail Ivens of the FPD L.A. Office.
US v. Heckenkamp, No. 05-10322 (4-5-07). The 9th (Thomas joined by Canby and Hawkins) upholds the denial of suppression of a remote search of the computer files by an university administrator under the "special needs" exception to the fourth amendment. The defendant had a reasonable expectation of privacy under the university computer system. However, the special needs exception was beyond the normal requirements for a warrant. The university administrator was not working at the behest of law enforcement. Although he knew the FBI was looking into the hacking, the administrator acted to disable the computer against the wishes of the FBI. The administrator also limited his intrusion, and acted in a narrow manner to ensure that the computer was being used. The 9th also upheld the search of the dorm room under an independent basis.