U.S. v. Bride, No. 08-30266 (9-8-09). The defendant was sentenced in 2006 for crack offenses to a stipulated sentence under 11(c)(1)(C) of 19 years. His guideline range was at level 42 (360 to life), and the sentence was 11 years under the range because of 3553 factors. The defendant asked the district court to resentence under 3582(c)(2) because the guidelines for crack had been lowered. The district court declined because it lacked authority, and the 9th (B. Fletcher joined by Tashima and Thomas) affirms. The sentence was not connected to the guidelines, but arrived at through a 3553 analysis, and was binding. The sentence had been reached between the parties, seemingly apart from any anchoring or dependency on the guidelines, and so the subsequent lowering of the guidelines would not give the court authority to resentence. The 9th stresses that it is not enough that the guidelines were considered in a plea, but rather the plea terms must key on the guidelines and indicate that the sentence was based upon them. The plea here never linked the sentence explicitly to the guidelines, although a base offense level for quantity was mentioned. The sentence was a result of 3553 factors.

Smith v. Lockyer, No. 07-16875 (9-8-09). The 9th affirms the granting of a habeas petition. The petitioner faced charges of burglary, robbery, and a sex offense. The jury was deadlocked on the sex offense. The holdout believed the DNA may have been compromised. Apparently, the state judge was shocked with this, and leaned on the holdout juror. The court gave an Allen instruction, and then a modified Allen instruction, found out the numerical split, and culled certain testimony and directed the jury (hint hint) to look at it. The state courts found no coercive error but the district court, and the 9th (Schroeder joined by Berzon) did. Although the law on Allen instructions and the extent of judicial involvement is surprisingly limited, the state court has greater leeway. Still, in the 9th's analysis, the trial court went from judicial impartiality to advocacy in its pressure and use of evidence. As such, the state courts acted unreasonably. N. Smith dissents, urging a deference under AEDPA to state courts. Smith complains that it is not enough that error be found, but that the state courts could be said to have acted not unreasonably in finding no coercive effect in the commenting on evidence after knowing the division.