US v. Jimison, No. 06-30417 (7-16-07). This is a significant opinion in interpretation of the guidelines. The 9th (Kozinski joined by Fisher and Guilford) hold that for a prohibited possessor to get a two-level bump up for having a weapon and committing a felony under 2K2.1(b)(5), the defendant need not actually commit a crime, but must have a "firm intent to use the gun for felonious purposes." The evidence in this was that the defendant made an offhand comment that he got the gun "to go Rambo." The statement was made to an acquaintance. The evidence did not support this further. The 9th vacated the sentence and remanded.
Congratulations to AFPD David Merchant of the Montana (Billings) office.
US v. Jenkins, No. 06-50049 (7-17-07). In an unusual vindictive prosecution case, the 9th affirms the district court's dismissal of the charge. The defendant had been stopped crossing the border twice previously with illegal aliens. Each time, she basically confessed, stating that she was paid to drive the car over. Each time, the government did not prosecute. This time, she was stopped as a passenger in a car with marijuana. Her defense? She thought she was smuggling illegal aliens. She testified to that at trial. As the jury was deliberating, the government filed alien smuggling charges on her two previous arrests. The district court felt this was done to punish her for testifying, as was her constitutional right. The 9th agreed with the district court's dismissal, using a de novo review for mixed constitutional rights and factual findings. The 9th (Canby and Thomas) held that the government had all the evidence it really needed prior to the defendant's testimony, and that the timing of the charges -- after she testified and while the jury was deliberating -- was properly construed as being vindictive. The three strikes and still out of court. In dissent, Conlon argues against the vindictiveness finding, stressing that the defendant's in-court admissions made the government's case a slam dunk and so the government could now file.
US v. Diaz-Luevano, No. 05-50129 (7-18-07). The 9th, per curiam, clarifies that its decision that reinstatement of removal is separate from removal (Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007) (en banc)) does not overrule the decision that for guidelines enhancement purposes (US v. Luna-Madellega, 315 F.3d 1224 (9th Cir. 2005), it is prior physical removal that is the trigger for enhancement. The case here involved a defendant who had been removed, came back and committed a violent offense, and then had his removal reinstated. When he returned, and was caught yet again, the prior violent offense counts for the +16 under 2L1.2.
US v. Diaz-Castenada, No. 06-30047 (7-18-07). Is the running of a license plate a search? The 9th had never dealt with this issue, but joins all the other circuits in holding that it is not. Here, the defendant was driving and a police officer ran his license plate, and found that he had a suspended license. The defendant was pulled over, and eventually was arrested for various charges. The 9th(Fisher) unsurprinsingly reasons that a license plate is in public view, has information attached to it, and the defendant should not have an expectation of privacy in the public records.