U.S. v. Ruff, No. 07-30213 (8-1-08). The court sentenced Defendant to a year and a day with recommendations that he serve the sentence in a specific facility to allow work release. The facility, however, could only accept someone if he was on SR. Less than a week later, the court held another hearing and amended its judgment to be one day imprisonment and three years SR, with a condition that he stay at the facility for a year and a day. Defendant had committed fraud at the Sacred Heart Hospital to the tune of $644,000, but had mitigating circumstances including remorse, strong work history, family support, lack of future dangerousness or need to protect the public, restitution, relationship with his son, and mental issues, including compulsive gambling. The government appealed, arguing that the court overstepped its authority with its modification. The government argued that the court did not go through all the 3553 factors at the second hearing, and that the sentence itself was unreasonable. The 9th (Fisher joined by Ikuta) disagreed and affirmed the sentence. The 9th held that the court obviously considered the 3553 factors in its first hearing, and its second hearing was a continuation. As for reasonableness, the 9th upheld the sentence under the district court's discretion articulated in Gall and by the 9th in Whitehead. The 9th recognizes the punishment was the same, although the form was different, so as to advance the 3553 factors. Dissenting, Gould rails against the lack of punishment, and the fact that instead of "the big house" with work release, defendant is now on SR, and basically was given a slap on the wrist. Gould argues that Gall is not an abdication of reasonableness review.

Mendez v. Knowles, No. 06-15153 (8-1-08). The 9th (Gould joined by Clifton and R. Smith), affirmed the dismissal of a petition. The 9th does allow the appeal to proceed, affirming the court's finding of excusable neglect in the filling of the appeal. As for the merits of the petition, the petitioner was charged with child molestation. The state also proved two prior instances of child molestation convictions, and argued in closing that the proof of the past convictions allowed the jury to find the petitioner guilty here. The jury instructions were flawed, however, in using the standard of preponderance of proof to prove the prior. The 9th has found, under Gibson, that the past convictions must be beyond a reasonable doubt so as not to violate Winship. Although error occurred here, the proof was beyond a reasonable doubt and there was absolute certainty that the state met that standard. The 9th also refused to expand the COA to include a challenge to the petitioner's mental competency at the time of the offense and request for an evidentiary hearing. The evidence was that he may have been intellectually limited, but still was competent, as the state trial court found.