U.S. v. Garcia-Cardenas, No. 08-50117 (2-17-09). In a per curiam decision, the 9th again rebuffs arguments in 1326 cases that the use of a prior as an aggravated felony adjustment and as criminal history is double counting. The argument here was that such counting made for an unreasonable sentence. Defendant also argued that prior precedent permitting double counting, see U.S. v. Luna-Herrera, 149 F.3d 1054 (9th Cir. 1998), is no longer good law because of Booker. The 9th acknowledges that Booker changed the sentencing landscape, but concluded that it did not undermine the prior precedent, or alter its reasoning (which is guideline-based). The case was remanded to clean up the judgment, which had a conviction for both 1326(a) and 1326(b).

U.S. v. Norwood, No. 08-30050 (2-18-09). Crawford gets trumped by a business record. The appeal here raised the Crawford confrontation issue. The trial was over drugs and cash found in an apartment. Defendant argued that the drugs were for personal use, and not trafficking, and that the money came from legitimate sources. The prosecutor provided the court with an affidavit from the state employment office indicating no records of employment for the applicable time frame. Defendant raised a Sixth Amendment confrontation objection. The trial court admitted it. On appeal, the 9th (M. Smith joined by Reavley and Tallman) affirmed. The 9th recognized that the contours of the confrontation clause after Crawford is still being charted, but the admission of a certificate of nonexistence of record, is non-testimonial. The 9th finds that Cervantes-Flores, which allowed an INS certificate of nonexistence to come in controls. The 9th also held that a response in closing by the prosecutor that the police did not do something because the defendant had not told them about it (smoking cocaine with marijuana paraphernalia is not a comment on silence, but a defense of police conduct that was attacked by defense counsel, and it was an isolated comment). The 9th also denied an Eighth Amendment and due process challenge to the crack/powder cocaine mandatory minimum disparity.