US v. Soltero, No. )6-50257 (10-19-07). This appeal raises several interesting sentencing issues. First, the 9th finds that the court must ensure that the defendant had read the PSR. The assurances by counsel that "we filed objections..." does not cut it. Although error occurred here, it was deemed harmless. Second, the 9th held that the condition on SR of not associating with a "disruptive group" was too broad. Although the 9th upheld conditions against associating with a specific gang, and with "known gang members," the broad prohibition sweeps to widely as it could cover labor unions and political organizations (or even FPDs?). Third, the 9th holds that it was an abuse of discretion to require the defendant to go by a surname he never really used ("What's in a name...."). Fourth, and finally, the 9th holds that the court can delegate to a probation officer the determination whether a defendant can pay for treatment. This follows U.S. v. Dupas, 419 F.3d 916 (9th Cir. 2005). The delegation is not for fines or restitution, but a part of the probation officer's determination. Dissenting from this, Hawkins argues that Dupas was a "plain error" case. Hawkins would draw a distinction, articulated in the 5th Cir., between a probation officer determining the ability to pay and the ordering to pay by the court. Here, the order left to the probation officer both functions.
Congratulations to AFPD Jonathan Libby of the L.A. Office (C.D. Ca) for the win.
US v. Salcido, No. 06-10546 (10-19-07). The 9th considered a sufficiency of evidence challenge to whether the images of minors in a child porn case were really minors. The 9th followed the other circuits in construing this as a sufficiency argument rather than an elements argument (i.e. failure to prove) and held that under the evidence presented, which included the images themselves and testimony by the detectives, met the standard.