U.S. v. Garcia-Hernandez, No. 08-50190 (6-25-09). The 9th (Ikuta joined by Kleinfeld and Bea) affirm a conviction for 1326 against a challenge for insufficiency of the indictment and admission of the statement. The indictment failed to allege the prior felony conviction. The 9th held that Almendarez-Torres controlled in that the prior conviction was not an element of the offense, and the judge can assess the prior at the time of sentencing. As for the statement, it was admissible, even with a McNabb-Mallory violation. The defendant had been apprehended on a busy day at the California (Calexico) border, and by the time his criminal record was run, it was past six hours. The delay was not unreasonable given the crush of apprehensions (five times as many) and that the delay was a result of administrative and then criminal processing rather than interrogation.

U.S. v. Cruz-Gramajo, No. 07-50381 (6-26-09) et al. In 1326 convictions, the Guidelines have no end of ways to hammer the defendant with criminal history adjustments. Points are added if they have been convicted of crimes after their return but before being found, and with committing the 1326 offense while under a state sentence even if they are found while serving that sentence. Defendants that got such adjustments attack them here on appeal, arguing that the adjustments are actually "relevant conduct" to the offense because it was during the continuing nature. In addition, defendants argue that it is error to get the adjustment for being under a sentence if they are serving the sentence while found. The 9th (Hall joined by N. Smith) reject the arguments. The focus was on the application notes, structure of the Guidelines, and the fact that the harm of 1326s are not continuing. The harm of 1326 is not related to a continuing or compounding harm. This accords with the approach of the 5th circuit. Dissenting, Pregerson argues that the Guidelines definition of relevant conduct should apply, and that the Supremes have rejected this definition in another similar statute that came from the 9th. Pregerson also looks to common sense and the fact that the defendant who gets a conviction while here illegally and serves a sentence has not, and cannot, leave to return and be found.

Although the appeals lost, the AFPDs from C.D. Ca (Los Angeles) made impressive arguments rooted in the Guidelines own statutory language.

U.S. v. Showalter, No. 08-50109 (6-26-09). The 9th rejects another attempt to get out of a plea for a fair and just reason. The 9th (Thompson joined by Pregerson and Fogel) hold that "new evidence" does not include here witnesses who were readily available at the time of the charge and plea decision. Also, a recalibration of the strength of the government's case is also not a fair and just reason. The 9th does remand for resentencing because the adjustment in this fraud sentencing for 50+ victims was not supported by evidence but was speculation.