U.S. v. Calderon-Segura, No. 05-50820 (1-9-08). This an appeal from a 1326 conviction and failure to allege prior conviction and removal. The 9th noted that, under Salazar-Lopez, the indictment should have alleged, in addition to facts of the prior removal and subsequent reentry, the date of the prior removal or that it occurred after a qualifying conviction. The indictment should have alleged it, but it was harmless because there was no prejudice, and no objection to the dates in the PSR or at sentencing.
U.S. v. Tulaner, No. 06-10304 (1-9-08). This concerns the issue of loss in a sophisticated fraud. The defendant was seeking to gain highly technical platinum discs used in the manufacture of semiconductors. He ordered twelve, but the manufacturer said that he could only get four at a time (because of the costs, we're talking high end, millions of dollars). The scheme went bust, and at sentencing, the issue was whether the loss should be for all 12 (they were the intended target) or the 4 he received. The 9th (Tallman) affirmed the sentence, reasoning that all 12 were the object of the fraud, and the cost should be their worth. In dissent, Thomas argued that the attempt became limited to four (hundreds of thousands of dollars) because the 12 were out of reach. Interesting issue with cases and guidelines cited.
U.S. v. Thornton, No. 06-50597 (1-10-08). This is the an appeal (Berzon joined by Reinhardt and Singleton) that considers the scope of an Ameline remand (remember that case after Booker?). The 9th holds that, "Where sentencing issues are raised but not decided in an appeal prior to an Ameline remand, those issues are properly before the Court on any subsequent appeal from the Ameline remands, along with any challenges to the results of the Ameline remand itself." The defendant won the issue but lost the result, with an affirmance as the error was harmless.