U.S. v. Amezcua-Vasquez, No. 07-50239 (6-1-09). In an important sentencing decision, the 9th (Canby joined by Kleinfeld and Bybee) holds that the defendant's sentence for an illegal re-entry after deportation and enhanced by an aggravated felony was substantively unreasonable. The defendant had been in this country for almost 60 years. He had become a permanent resident in 1957. In 1981, when he was 26, he was convicted of aggravated assault in a gang-related bar fight. His 4-year sentence was suspended, but his probation was eventually revoked and he served a couple of years. He was removed to Mexico in 2006 at the age of 51. He was caught two weeks after his removal. At sentencing for illegal re-entry after removal, he was determined to be an aggravated felon, and got 52 months. The district court looked at his other criminal contacts that were too stale to count under criminal history (DUIs, battery, reckless driving) and determined that under 3553, the need for punishment and deterrence required the sentence. The 9th vacated. The 9th stressed that under these specific circumstances, the court's sentence failed to give due weight to the 3553 factors. The seriousness afforded the +16 adjustment was unreasonable given the staleness of the convictions (they were not aggravated felonies back in 1981), and other mitigation. The sentencing court could consider the nature of the prior and the criminal history, but had to mitigate or consider the staleness of it. This decision is not inconsistent with 9th precedent in U.S. v. Whitehead, 532 F.3d 991 (9th Cir. 2008) (per curiam) and U.S. v. Ruff, 535 F.3d 999 (9th Cir. 2008). The 9th reasoned that those cases looked at defendant-specific characteristics under 3553, while here, significantly, the focus should be on the offense-specific sentencing factor. That is, the bare adjustment nature of the guidelines. The 9th implies that the severity of the adjustment was Procrustean under these circumstances. The 9th states that the decision here is limited, and confined to the specific facts. However, the reasoning, and the analysis of defendant-specific versus offense-specific (and hence, guideline specific) is significant.

Congratulations to Janet Tung, Deputy Federal Defender, S.D. Ca (San Diego).

U.S. v. Begay, No. 07-10487 (6-1-09). The 9th (Reinhardt, Hug, and concurrence by Bright) vacated first-degree murder convictions for insufficient evidence and issued an order to show cause against the prosecutor for mis-citing the record. The case involved two murders on the Indian reservation. The defendant exchanged words with the driver and passenger of a stopped car, walked back to his car, got a shotgun, and proceeded to fire through the driver's side, killing the driver and the passenger. This was a terrible crime, but where was the evidence of premeditation? Put another way, why was it first degree and not second degree or manslaughter? On appeal, defendant argued that no evidence was produced to show premeditation. The evidence presented by the government was that the defendant was "pretty drunk," but nothing else about state of mind, demeanor, reflection, or planning. Other offenses (i.e. second degree) were equally plausible. The 9th agreed, and vacated the convictions. The gun counts remain. The 9th criticized the government heavily for arguing premeditation by describing the defendant as acting "calmly" and "methodically" with absolutely no evidence.

Congratulations to Dan Kaplan, an AFPD in the D, Arizona (Phoenix).