U.S. v. Johnson, No. 08-30094 (9-10-09). Appealing, to the 9th, means never having to say you're sorry, at least for the 3rd point under 3E1.1(b). The defendant here strolled into a bank and garnered the attention of the teller, and an off duty officer. Maybe it was the hood flipped up; maybe it was the whispering with another suspect; maybe it was the looking around. In any event, the defendant left when the officer approached. The officer followed them when they drove away, and stopped them. The officer and his partner asked the suspects to get out, and conducted a frisk, where weapons were found. The defendant filed a suppression motion, which lost in district court. He then entered a conditional plea. The government did not move for the 3rd point of super-acceptance under 3E1.1(b) because of the conditional plea and possible appeal. The district court declined to award the third point. On appeal, the 9th (Tallman joined by Beezer) affirmed the denial of the suppression motion, and the denial of the third point. The 9th reasoned that the PROTECT ACT gave the prosecutor the "power" but not the "duty" to so move, and that the prosecutor's decision was rational and not arbitrary because of the defendant's decision to contest his suppression issue with a conditional plea. The 9th stresses that the prosecutors make the call. M. Smith concurs in the judgment, but dissents from the analysis because he would still find that the court has the power to assess the third point if the conditions were met of agreeing to plea guilty before trial. Although this is a disappointing decision, the point can be made, and had, as a result of plea negotiations. If the prosecutor wants a plea and not a trial, the third point can be negotiated to still allow a conditional plea. After all, we are in a post-Booker sentencing world and a sentence outside the guidelines may be more of a worry to the prosecutor than the third point.

U.S. v. Juvenile, No. 07-30290 (9-10-09). The 9th (Reinhardt joined by Tashima and McKeown) holds that retroactive application of SORNA to juveniles violates the Ex Post Facto clause and therefore is unconstitutional. The 9th examined the historical underpinnings of juvenile determinations, purposes of juvenile deliquency findings, the lack of findings or comments in the AG's regulations making SORNA applicability to juveniles, the silence of Congress, and the pain and hardship that would be inflicted on former juvenile delinquents who had gone on with their lives.