U.S. v. Old Chief, No. 08-30317 (7-6-09). In a drunken fight, defendants stabbed a victim. One defendant held the victim, while the other defendant stabbed him three times. Each got 120 months. The interesting issue on appeal was whether an adjustment should have been added for restraint of victim. The argument was that stabbing supposes some restraint, and there should have been merger. The 9th (Goodwin joined by O'Scannlain and Fisher) disagreed. The 9th reasoned that the argument, based on a 4th Circuit homicide case, U.S. v. Mikalajunas, 936 F.2d 153 (4th Cir. 1991), differed from a stabbing in that homicide involves an ultimate restraint. Moreover, the circumstances here added to the basic crime: there may be some minimal restraint in every stabbing, but here there was pinning of arms behind back, and a grabbing while another stabbed three times.

U.S. v. Ringgold, No. 06-10492 (7-7-09). The 9th (Thomas joined by Wallace and Leavy) hold that a district court can avert its eyes from what the defendant would have gotten in the state. The defendant here was a felon in possession. At sentencing, the defendant pointed to the state and said "see what might sentence would have been there." It would have been much less. The district court said that it would not consider the disparity between state and federal sentences. On appeal, the 9th held that it was not an abuse of discretion. The district court was not compelled by 3553 to factor in the disparity between state and federal sentences. The 9th reasoned that compelling the requirement could undermine uniformity. The focus is on federal factors. Significantly, however, the 9th said that it would not consider the government's argument that the court should never ever consider such a disparity. Again, it falls within "discretion."

Ali v. Hickman, No. 07-16731 (7-7-09). In a state habeas raising a Batson claim, the 9th (Berzon joined by Tashima and Timlin) hold that the prosecutor had indeed violated Batson by striking the two African American prospective jurors. The prosecutor's reasons were highly implausible and were clearly pre-texual. Moreover, the state appellate courts were unreasonable in excusing such reasoning. The state courts, at that time, did not engage in comparative juror analysis, but in doing so now, it is clear that the prosecutor had race on his mind.