U.S. v. Bendtzen, No. 07-50249 (9-5-08). The 9th (Wardlaw joined by Ikuta and Fogel) hold that a fake bomb used in a bank robbery can trigger the Guidelines adjustment for brandishing (+3) or use (+4). The Guidelines commentary includes fake weapons, and the focus is on appearing to cause death or serious bodily injury.

U.S. v. Medina-Beltran, No. 06-10181 (9-5-08). The defendant plead to the indictment charging him with 1326 but fought the sentencing enhancement. The government refused to move for the third point for acceptance. The 9th (per curiam) upheld the refusal by the court to grant the third point because the government has broad discretion to move for it or not. Here, the discretion was upheld because of the work (!) the government had to do in supporting the enhancement and because there was a refusal to accept an appeal waiver in the plea agreement. The 9th also found no separation of powers issue in the PROTECT Act in giving the power to move for the third point to the government.

U.S. v. Nader, No. 07-30311 (9-5-08). The defendants ran a prostitution ring from massage facilities. Telephones were used to set up appointments with customers. The defendants were found guilty under the Travel Act, 18 U.S.C. 1952, but appealed, arguing that all the phone calls were intrastate rather than interstate. The statute, they argued, prohibits the use of any facility "in interstate or foreign commerce" rather than the broader "of interstate or foreign commerce." The 9th thinks this is interesting, but holds that the plain language has the phrase focuses on the fact that facility itself must be in interstate commerce, not its use. This interpretation is supported by the other circuits. The 9th also finds support in the interpretation of other statutes with similar language (murder for hire). Thus, the 9th holds that the intrastate phone calls involves the use of a facility in interstate commerce. This reading comports with legislative intent.