U.S. v. Colson, No. 08-10287 (7-23-09). In an order, the 9th lowers the boom on Lowe, 136 F.3d 1231 (9th Cir. 1998). In Lowe, the 9th held that a district court's discretionary denial of a 18 U.S.C. 3582(c)(2) sentence reduction motion was unreviewable on appeal. Now, in light of Booker and Carty, 520 F.3d 984 (9th Cir. 2008) (en banc), Lowe is no longer good law because any element of a sentencing decision, discretionary or not, may be "unreasonable." Thus, sentence reduction decisions are now reviewable for abuse of discretion. The order was issued by a panel of Kozinski, Hawkins, and Gould.

Congratulations to AFPD Jason Carr of D. Nevada (Las Vegas) for the win allowing review.

U.S. v. Guzman-Padilla, No. 08-50114 (7-23-09). That deflating sound you hear in reading this opinion is Fourth Amendment protections. The case concerns a vehicle driving in a recreational area a couple miles from the Mexican border. The area is a valley, surrounded by sand dunes, which require special vehicle modification to enter, except if one comes in from Mexico, and hence illegally through that path. The border patrol saw this SUV's rate of speed (25 mph instead of 5 mph), without a recreational "flag" or pass, and going in too straight a direction. The Border Patrol decide to stop the vehicle and employed a "controlled tire deflation device" (CTDD), also known as spikes, to bring the vehicle to a halt. The resultant search turns up drugs. The district court allowed the stop and seizure and the 9th affirms. The 9th (Fogel joined by Pregerson (!) and Thompson) first classifies this as an extended border search. The 9th goes through an extended, and useful, discussion of the distinctions between a border search, an extended border search, and other searches, and the levels of certainty or suspicion that are needed for each. The opinion is a useful roadmap in this regard. The 9th decides this is an extended border search, and that the agents had reasonable certainty (more than probable cause but less than reasonable doubt) that the vehicle had entered illegally from the border. The 9th then decides that a stop was permitted, and allows it. As to the question of whether this was a seizure amounting to an arrest, the 9th concludes that it was not an arrest because an innocent motorist (!) would have felt, even with his tires -- all four -- spiked and deflated, that he was not under arrest. Indeed, the opinion states (p. 9453), that a motorist would simply have assumed that a mistake was made, and that this would be corrected and cleared up with communication with the police. Of course, the 9th continues, if the interactions later would lead one to assume that one was not cleared, then one could assume an arrest was in progress. The 9th though states that this was not the case here. The spikes, or CTDD, simply stopped the vehicle in a controlled manner. The opinion goes through the steps used, and that it was supposedly safe. Indeed, that using a CDTT can be safer than turning on the sirens and pursuing. The CTDD did not cause unacceptable or unreasonable damage to the vehicle (?) because the tires could be easily repaired or replaced. The 9th of course skips over the locale, and the fact that the vehicle was inoperable. The 9th further holds that the force was not excessive. Lastly, the 9th finds no Brady violation in the court denying the disclosure of the procedures for use of CTDD.