Butler v. Curry, No. 07-56204 (6-9-08). Under Teague, the state argued what is old is really new, especially when it comes to Cunningham. In Cunningham, the Supremes applied Blakely to California's guideline sentencing scheme. The petitioner here received an aggravated sentence based on judicial fact-finding. The facts included vulnerability of the victim and prior conviction. The district court granted the petition because of a Cunningham violation, but the state appealed, arguing that Cunningham was a new constitutional principle. The 9th (Berzon joined by Hall and Graber) held that Cunningham was not new under Teague. It analyzed whether one of the aggravators survived the error, but in an important analysis, concluded that a defendant's probationary status did not fall within the Almendarez-Torres exception for prior convictions. Probation can be modified or terminated early, and so it cannot be construed solely from the conviction documents. The 9th looked to its 1326 precedents for analogies. A prior conviction is to be construed narrowly. The 9th remanded for fact-finding as to harmlessness of the error.

Congratulations to AFPD Davina Chen of the FPD of the Central District California (Los Angeles).

U.S. v. Becerril-Lopez, No. 05-50979 (6-12-08). Defendant attacks his 1326 conviction and sentence on various grounds. The 9th (Hall joined by Pregerson and Hawkins) affirm. Defendant argued that his deportation was both procedurally invalid and that he was prejudiced. The 9th questioned whether the procedure was faulty, although noting some broad waivers in the immigration proceeding. The 9th though found no prejudice both as to procedure, and the possibility of waiver by the Attorney General for "extreme hardship" because the hardship was general and not specifically alleged. The 9th also found no error at trial with evidence that the defendant was not under "official restraint." The evidence was such that the defendant crossed the border, and was out of sight by the time the agents located him. Finally, and most importantly, the 9th held that robbery, under Calif. Penal Code 211, is a crime of violence for 2L1.2 purposes. U.S. v. Dougherty, 920 F.2d 569 (9th Cir. 1990) held that it was not for career offender purposes, but the precedent does not control 2L1.2 because of a different definition focused on physical force. The 9th holds that it is not categorically barred because while the generic definition of robbery is narrower than the state definition, the conduct that falls outside of the categorical limitation would still involve physical force, because it would be unlawful extortion. The 9th also goes through other exceptions, such as escape, immediacy, and claim of right, but finds them all lacking.

U.S. v. Juvenile male, No. 07-50107 (6-12-08). In a per curiam decision (Berzon, Ikuta, and Singleton), the 9th remands a disposition for violations of 5033. Here, the juvenile was arrested in an alien smuggling operation, and supposedly said he was an adult. This lead to various hearings, burden shifting, and delays as the defendant struggled to prove he was a juvenile. He finally succeeded with the help of the Mexican Consulate and certified documents. Because of the delay, the timing and procedural safeguards of the juvenile act were violated in every conceivable way. The 9th remands so the district court can determine whether the violations led to the confession and whether it was harmless. Berzon concurs, and dissents. She would find that there was no need for a remand as the violation was clearly harmful, and the government did not argue for harmlessness.

U.S. v. Marks, No. 05-30218 (6-13-08). The 9th affirms convictions in a fraud case where the defendant went pro per. The 9th held that the decision was voluntary, and not coerced. The 9th also held that the seating arrangements (with the pro per defendants in a row behind the represented defendants at the counsel table) was not prejudicial, as there was no objection at the time. The stopping of defendant's opening statements and cross-examination was not a violation of his right to defend, as the court was ensuring that rules of evidence were being followed. The restitution order was also affirmed.

Belmontes v. Ayers, No. 01-99018 (6-13-08). The 9th (Reinhardt joined by Paez) hold that the petitioner suffered IAC at the sentencing stage. Counsel failed to investigate, develop or strategically present mitigation evidence, and instead relied on the argument that LWOP was in fact a harsher punishment than death. O'Scannlain dissented, arguing that for the third time the panel seeks to find relief when the Supremes twice before had reversed. He would find no IAC.