U.S. v. Reveles-Espinoza, No. 05-50905 (4-15-08). Defendant cultivated marijuana. The government used this as an aggravated felony to deport him. He came back, was caught, and now argues that cultivation is not an aggravated felony because the state statute (California) lists such things as cultivating, planting, harvesting, drying and processing. Drying? How can drying be a drug offense as defined. The fed statutes do not list "drying" as part of the process. The 9th, however, said that argument was all wet as drying is part of the process, and cites a string of cases that so hold. Defendant had plead to that charge, and it was for the process. He is also liable under an aiding and abetting theory. The 9th also found that defendant had received notice that his conviction could deprive him of eligibility for cancellation of removal.

U.S. v. Grissom, No. 06-10688 (4-15-08). The government used a CI to complete multiple sales of crack. The defendant faced three counts, but plead to only one. The PSR used as relevant conduct all the sales, and found that the defendant was a career offender. This bothered the court, who expressed concern about relevant conduct, and thought that the career offender determination was pumped up. The government objected, and the court groused that "...You know what you can do with that. Take it to the appellate court...." Well, the government did. The 9th agreed that the court, under the guidelines, had to consider the relevant conduct, and that Gall requires an accurate guideline calculation. The 9th (nudge, nudge) indicated (wink, wink) that the district court under Gall/Kimbrough could use all the factors and could be cognizant of the crack/powder disparity.

U.S. v. Garcia, No. 05-30356 (4-17-08) (amended). The 9th came to its jurisdictional senses in this amended sentencing appeal decision. The first opinion affirmed the sentences, finding that the court lacked jurisdiction to even hear an appeal because of the 11(c)(1)(C) plea. In an amended opinion, the 9th agreed that it had jurisdiction to hear an appeal even from an 11(c)(1)(C) plea agreement that set a range. The 9th did not buy, this time, the argument that it had no jurisdiction to examine the reasonableness of the sentence, because the defendants had not "expressly" waived their appeal. Moreover, the 9th recognized that "a valid guilty plea does not deprive the court of jurisdiction." The panel quoted the 9th's en banc court's decision in U.S. v. Castillo, 496 F.3d 947, 949 (9th Cir. 2007), which had been issued four months before the panel's original opinion. Yes, the defendants' sentences were still affirmed, but the jurisdiction to examine pleas and waivers was vindicated.

AFPD Steve Sady of the Oregon FPD filed an excellent amicus brief on behalf of the Ninth Circuit federal public and community defenders on this important point.