Thursday, September 03, 2009

U.S. v. Knight, No. 08-30372 (9-2-09). The Knight may be darkest before the dawn, but under this holding, the dawn, free of SR, will be a long time coming. Here, the 9th considers the 2003 amendment to the SR statute, 3583, and whether a court, upon SR revocation, must reduce the maximum term of imprisonment by prior terms of imprisonment. The 9th (Pregerson joined by Rymer and Tashima) hold that the court does not. Thus, a court can revoke, sentence to, say, 24 months, and then sentence again to 24 months, and then again, all without credit subtracted from the maximum term of SR. (Think of this as Zeno's paradox in SR form). The good (?) news is that the 9th also held that the maximum term of SR to be imposed after revocation must be reduced by the terms of imprisonment, and the 9th said "yes." In its holdings, the 9th follows every other circuit in the first instance and the 5th Circuit in the second. As for the defendant here, he will end up serving possibly 42 months on a sentence he originally got 18 months on and 36 months SR (stolen firearms). The 9th remands for resentencing so the court can mix and match punishment and SR.

U.S. v. Hickey, No. 05-10004 (9-2-09). This was a real estate investment scheme that became fraudulent. The defendant sought very interlocutory appeals, which were rejected. From them, however, comes some interesting issues. First, the 9th chastises the district court for daring to proceed with the case while the 9th's mandate had not yet issued. The 9th (McKeown joined by Noonan and Reinhardt) let things go, because the matters were all calendar based, but it wags its finger at the district court and says, "don't do it again." Another interesting issue is whether a superseding indictment, missing one count, replaces the original indictment, so that the missing count's activities are not tolled and may be barred by the statute of limitations. The 9th says "no." Indictments toll the activities. In a concurrence, Reinhardt raises an eyebrow, wondering what the word "supersede" really means if not to replace. He recognizes that he is bound by precedent, but chafes at the precedential restraints when it comes to this interpretation. The 9th takes little time with the other issues, affirming conviction and sentence. It finds no abuse in the district court precluding a defense expert's opinion that the scheme, if allowed to keep going, would have become profitable. There is no requirement that there be a loss for fraud. There were also no sentencing errors.


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