U.S. v. Goddard, No. 07-50402 (8-11-08). Defendants on SR after a child porn case need to be monitored; but what extent do you monitor the computer monitors? The 9th takes this up, where the conditions absolutely forbade any software change, or upgrade without express approval. The 9th (Rymer joined by Hall and Kleinfeld) acknowledge that the pervasiveness of computer upgrades and packages that stream in at work would make this condition untenable and effectively bar employment. The 9th therefore allowed personal computer use if approved by the probation officer, and would not require prior approval for automatic or routine upgrades, deletions, updates, installations , repairs or modifications.

Congratulations to AFPD Elizabeth Newman, Central District of California (Los Angeles) for the modifying win.

U.S. v. Ramirez, No. 07-10263 (8-11-08). This is appeal from an assault on an Indian reservation. Defendant argued that the instructions and trial were unfair because the court did not require special verdicts as to self defense or to require a unanimous rejection of self defense before guilt was found. The 9th (N. Smith joined by Kleinfeld and Mills) held that the court did not abuse its discretion in following the model circuit rules. Moreover, that the government did prove that the victims were Indians (via testimony) for jurisdiction under 1152. Lastly, there were evidentiary issues under a plain error review, which did not make the trial unfair (i.e. the prosecutor's case made the defendant have to call other witnesses liars).

U.S. v. Almazan-Becerra, No. 07-10420 (8-12-08). In state court, the defendant stipulated to the police reports as providing a factual basis for a plea to selling or transporting marijuana. A few years later, and after a subsequent deportation, defendant faced a 1326 charge. He was sentenced as an aggravated felon with a drug trafficking offense the first time, but the 9th reversed because the California statute was not a categorical drug trafficking statute. Back before the district court again, the court gave him an aggravated sentence for trafficking because, under a modified approach, the police reports had recorded sells. Defendant appealed again, but this time the 9th (N. Smith joined by Schroeder and Fairbank) affirmed. The defendant in state court had stipulated to using the police reports to provide a factual basis, and this came back to bite him in an affirmed 51 month sentence. The "law of the case" did not prevent the district court from examining the state conviction under a modified categorical approach.

U.S. v. Tankersley, No. 07-30334 (8-12-08). Defendant and other codefendants of the Earth Liberation Front and the Animal Liberation Front engaged in arson against government and private property to prove a political point. They were caught and eventually plead under pleas, most to conspiracy or aiding and abetting. The defendant here only plead to arson involving private property; she was not given the +12 level adjustment increase for terrorism because the property was private. The district court felt this was a disparate result, turning on private/public, and so he departed upward 12 levels to avoid disparity. The defendant appealed, arguing that the sentence (41 mos) was unreasonable. Her focus was on the distinction drawn by Congress supposedly between terrorist activities and routine crimes, as seen in the PROTECT ACT. The 9th (Tallman joined by Clifton and N. Smith) held that the basis for the departure to achieve sentencing parity with those engaged in similar conduct was not per se unreasonable. The court under the advisory guidelines could consider this basis, and that the PROTECT ACT did not bar such a consideration from the Commission. (This decision falls into the "sauce for the goose etc." category, because it can be used to argue for the same possibly lower sentence as a codefendant).