Holley v. Yarborough, No. 08-15104 (6-16-09). The 9th issues habeas relief to a petitioner, vacating convictions for lewd acts with children. The 9th (Smith joined by Kleinfeld and T. Nelson) hold that petitioner's Sixth Amendment rights to confrontation were violated when the court prevented cross examination about a child's (11 years old) prior statements regarding sex and about how others had made sexual advances toward her. The 9th also questioned the admission of evidence that the petitioner had guns in the house, and the admission of several sexually explicit magazines. The facts of this case raised real questions of guilt, and the prosecutor's closing focused on the credibility of the child witness.

U.S. v. Leniear, No. 08-30199 (6-18-09). The 9th (Tallman joined by W. Fletcher and Gould) held that the district court lacked jurisdiction to amend or modify a crack sentence under amend. 706 because the guideline would not have changed. The guideline offense level would have stayed the same because of the multiple counts adjustment and grouping. The 9th did find that the appeal waiver of the plea did not bar appeal because the issue was whether the court had jurisdiction to modify the sentence, and it was not an attack on the imposition of the sentence.

U.S. v. Overton, No. 08-30075 (6-18-09). The 9th affirmed convictions for sexual exploitation of a minor and possession of child porn. The 9th (Tallman joined by M. Smith and Reavley) held there was sufficient evidence of exploitation (it was not abuse of discretion to let certain photos in). The 9th also found that there could be separate convictions for 2252(a) and 2255(b) (receipt and possession of child porn). The Blockburger test indicates two separate offenses. The sentence of 235 months was not unreasonable.