U.S. v. Castenada, No. 05-10372 (1-15-08). In one of the first post-Kimbrough decisions, the 9th remands a crack conspiracy conviction for resentencing. At sentencing, the district court acknowledged that the crack penalties may be "out of whack": but it was not for the district court to change them; that was up to Congress. "Wrong," said the 9th (Nelson joined by Goodwin and Callahan). The Booker remedy of advisory Guidelines extends, under Kimbrough, to crack/cocaine disparity, and the district court could, and should, consider it as a sentencing factor.

U.S. v. Ross, No. 06-50569 (1-14-08). So what if a court skips a section of the Benchmark that deals with, oh, "proof beyond a reasonable doubt." Is it so prejudicial under a plain error standard that the plea should be vacated? Nope. All agree that there was a clear Rule 11 (colloquy) violation, but it is not if the defendant did not have wind that the government had to meet that burden. The review is not restricted to the testimony of the plea. Here, the defendant had signed a plea agreement that laid out the burden, and in an affidavit to withdraw his plea, he stated that he thought the government had to prove drug amounts beyond a reasonable doubt. The defendant cannot show that he was prejudiced. The 9th holds therefore that the district court's failure to advise about the burden of proof is not per se plain error. The 9th does remand though under Ameline in light of Booker's advisory Guidelines holding.

U.S. v. Calvert, No. 06-30643 (1-14-08). This is an "obstruction" adjustment Guideline question. Can one get an obstruction bump if there is no pending criminal case? The 9th (Larson joined by Gould) said "sure" in an expansive opinion about the sanctity of the criminal justice process. The facts here involve a tax protester who went to prison because of a witness's testimony. The protester -- here the defendant -- is released, and vows vengeance. He recruits someone he served time with, puts him in his debt, and then sends him on a mission to possibly kill the witness. There is a home invasion, and the invader is shot, and dies. The investigation traces the impetus back to defendant. He is convicted on various counts of conspiracy, prohibited possessor and so forth. He also gets an 8 level adjustment under 2J1.2(b)(1) for obstruction. The 9th holds that this was proper given the circumstances, and the fact that the obstruction occurred after the conviction, and in the absence of any proceeding, was not a bar. The 9th goes on to wax lyrical about the need to protect witnesses, and how expansive the need to protect or the dangers of obstruction are. Concurring, with concern, is B. Fletcher, who goes along with the holding, but says, in effect, "wait a minute, we're deciding just this case, and not putting together a list of how every proceeding could be obstructed, or a test as to when and where an obstruction might occur." B. Fletcher would decide the case on these facts and leave it at that.