US v. Beltran-Mungia, No. 06-30118 (6-7-07). The 9th (Berzon with grudging concurrences from the other members:Rymer-the short version and Tallman -the long version) holds that another state sexual abuse statute is not a "crime of violence" under the 2L1.2 guideline. The statute in question is Oregon Revised Stat. 163.425 which is sexual abuse in the second degree. The statute criminializes sexual acts without consent, but without the element of "forcible sex" or "force." This is so because the sex may be consensual but the person be under the age of consent, or unconscious, or suffer from a mental disability or incapacity. The 9th carefully delineates the contours of "force" under illegal reentry -- 2L1.2 -- and the controlling precedent that interprets the definition of a "crime of violence" for that specific offense characteristic. The 9th stresses that the definition differs from 4B1.2, and that the latter has an added lengthy clause that is far more inclusive (serious potential risk). Rymer, concurring, states that she is bound by precedent. Tallman says as much, but goes on at length that: "In our zeal to be good legal technicians, we are abandoning the role of common sense in fashioning appropriate punishment for repeat offenders like [the defendant]." His concurrence is a call to en banc (or beyond) to follow the 3rd Circuit's lead in making all sex offenses crimes of violence.

This is a good case reviewing the analysis of "crimes of violence" under 2L1.2, especially sexual offenses, and its distinction from 4B1.2. It shows a sensitivity to definitions, intent, and statutory construction. Virtues that some would call good legal technicalities.

Congratulations to Kaily Moran of the Fed Defenders of E. Wash. & Idaho.

US v. Alverez-Tejeda, No. 06-30289 (6-8-07). At a traffic light, a truck taps a car's bumper. The car's driver and passenger get out to inspect the fender. The police come and as everyone is milling around, a thief jumps into the driver's unattended car and makes off with it. The police chase him, but the thief makes a getaway. The police then drop the couple off at a motel. Guess what, this was all staged by....(drumroll)...the DEA and police. The DEA wanted to seize drugs from a conspiracy without tipping off the conspirators. The police got the car, and then got a search warrant, where drugs were indeed found. The district court was appalled at the police conduct, and suppressed. The 9th tsk-tsked, but was more sanguine about it. After all, the 9th (Kozinski, joined by Fisher and Tallman) reasoned, the police had probable cause to seize the car because they had purchased drugs in the past from it. The force used was minimal (just a tap on the bumper, no harm to passenger or driver or car) and the "lie" was only to transform the defendant from suspect to a "victim" in this elaborate ruse. There was no danger in hurting anyone. The conduct was not outrageous. Concurring, Fisher acknowledges the concern with the unorthodox manner of the seizure, and express concern that the staged accident, theft, and chase could have spun out of control. Fisher wants it noted that this is not to endorse future "creative" methods of seizure (criminal cinema verite?).