U.S. vs. Tran, No. 07-30270 (6-24-09). Conspiracy, the fair-haired and frankly spoiled child of the prosecutors' nursery, received welcomed discipline by the 9th. In an opinion by Pregerson joined by Canby, the 9th looked at the evidence of a marijuana conspiracy and possession with intent. It was the usual tractor trailer, storing pot, and cars loaded and driven to a close by mall. The defendant was only a passenger. At trial, the driver of the car testified that the defendant had come along for a ride. The government went ballistic, and impeached him with the proffer interview and then the plea agreement's factual basis where he said that he and defendant had picked up and driven marijuana. The 9th found no abuse in the admission of the plea agreement for impeachment as a co-conspirator statement (yikes!) and under oath. Yet, the factual basis line was ambiguous. the other evidence was impeachment. Thus, the 9th found insufficient evidence and reversed convictions. The government had shown that the defendant was a passenger, but that was all. An amazing conspiracy opinion with a rare sensitivity to evidence. Noonan dissented, finding that there was sufficient evidence.

U.S. v. Calderon-Espinosa, No. 08-50092 (6-24-09). The 9th (Pregerson joined by D. Nelson and Singleton) remanded a 1326 defendant for resentencing. The district court erred in awarding criminal history points for the state conviction for "loitering for drug activities." The Guidelines in 4A1.2(c)(2) state that loitering and offenses known by these title shall not be counted.

Congratulations to AFPD Jonathan Libby of the C.D. Ca. (Los Angeles).

U.S. v. Paulk, No. 08-50229 (6-24-09). Per curiam, the 9th holds that crack retroactivity does not apply to mandatory minimum sentences. The amendment under 3582 does not trump 21 USC 841, but vice versa.