U.S. v. Gonzalez-Zotello, No. 08-50010 (1-8-09). This is a disappointing decision regarding 3553(a)(6) factors, "fast-track," and variances to correct unwarranted fast-track disparities. The defendant was not given a fast-track plea because of a prior sex offense. The court, at sentencing, did vary, and imposed the same sentence (30 mos.) that he had imposed on a fast-track defendant who had two prior armed robberies. The court reasoned that there was no basis for such unwarranted disparity. The 9th (Silverman joined by Bea and Conlon) disagreed, and vacated and remanded for resentencing, even under a plain error review. The 9th shrugged at Kimbrough, acknowledging that it sanctioned policy disagreements with the Commission, but that it did not overturn circuit precedent that resteddon congressional mandate. Congress, in the infamous PROTECT Act, had blessed fast-track disparity, and so it still controls. Kimbrough, one could argue, did deal with Congressional intent with crack sentences, but the 9th chose not to go that way. Moreover, one could further argue, fast-track was pre-Booker, entangled with the guidelines, counter to 3553 purposes, and directed to churning pleas rather than sentencing. The 9th even found this to be such an error that it excused the government's failure to object. In short, the 9th held that this was one variance basis that was off-limits. Still, the focus of the decision was on the variance based solely on the disparity between fast-track and non-fast-track. This holding is narrow, and leaves open, as it must, the argument that the guidelines for non-fast-track are too high, unreasoned, and unprincipled, and that, arguably, a fast-track sentence is a more appropriate measure of punishment than the present 1326 guidelines.

U.S. v. Heller, No. 07-30452 (1-8-09). This is an appeal from a conviction for receipt and possession of child pornography. The defendant argued sufficiency of the evidence, stating that the evidence showed he did not receive nor possess the contraband because the developmentally disabled man he was caring for was responsible. The 9th (McKeown joined by Hawkins and Bybee) held there was sufficient evidence, and that the defendant had controlled and directed the disabled man to act for him. The 9th also held that the confession of the defendant was not involuntary, given the repeated assurances that he was not under arrest, and the friendly and courteous manner in which the interview was conducted. Lastly, the failure to rule on an in limine motion was moot because this was a bench trial.