U.S. v. Ressam, No. 09-30000 (2-2-10). In a decision that smacks of disagreement with the sentence, the 9th vacates a 22-year sentence of a convicted terrorist because the district court, in sentencing, supposedly committed procedural error in failing to specifically address the government's Guideline and 3553 arguments. The 9th (Alarcon joined by Clifton) remanded to a different judge for resentencing. Dissenting, Fernandez argues that the majority simply disagreed with the sentence, arrived at by a district court with long familiarity with the case, and the cooperation rendered, and decided that there was error when there was not.

This case involved the defendant plotting to detonate explosives at LAX on the eve of the millennium. He was caught, and after trial, began cooperation. He later stopped cooperating, recanted, and was sentenced to 22 years. The case then went up to the 9th, and to the Supremes on an issue of conviction, and back down to the 9th, which vacated the sentence because of failure to calculate the Guidelines. Back on appeal now, after the district court had sentenced with explanations, the majority still finds procedural error. Specifically, the majority points to the district court's failure to "remain cognizant" of the Guidelines throughout the process of arriving at a sentence (which means that the further a court departs -- here from 65 years to 135 years down to 22 years -- the explanations have to be more extensive and compelling); that the district court failure to explain why it rejected the government's argument as to the value of the cooperation and the impact of defendant's recantation; the district court's crediting of defense expert's assessment of defendant's life history contrary to the PSR's findings; and the district court's failure to address the government's argument about why a longer sentence was required to protect public safety. The district court needed to specifically address each argument. Although U.S. v. Carty, 520 F.3d 984 (9th Cir. 2007) (en banc) does not require a court to give a lengthy explanation or even any explicit explanation for an in guidelines sentence in a typical or straightforward case, in a departure case, there has to be sufficient reasons stated. The failure to provide such reasons, and to remain cognizant of the guidelines, will be procedural error. In other words, the departure has to adequately address the guidelines not to be procedurally flawed. Likewise with the other arguments raised by the government. The majority, to maintain public trust, remands to a different judge for resentencing.

In dissent, Fernandez argues that this district court followed procedure, knew the case, knew the defendant, and gave adequate reasons. Fernandez concludes that: "Simply put, it seems to me that the majority just does not like the fact that this terrorist is to sit in prison for a mere twenty-two years."

Would I give Ressam that "light" a sentence? I somehow doubt it, but that is not
the point. The point is that there are many sites within the borders of reasonable sentencing territory, and our job is to patrol those borders to assure that the district court has not slipped over them into the land of abuse of discretion. That will rarely happen; it did not happen here. Unfortunately, this case is just not about what befalls Ressam; it reflects another entry by appellate courts into territory that always lures them, but is always forbidden to them. Society, we, and the district courts will someday regret the results of our case-by-case trespassing onto lands we should stay out of; the day this decision becomes law will, indeed, be a dies infaustus.

In short, the sentence was neither procedurally erroneous nor substantively unreasonable. See Carty, 520 F.3d at 993. Even if we have to grit our teeth to do so, we should let it be.

U.S. v. Napulo, No. 08-10190 (2-1-10). The 9th vacates one special condition on SR, and vacates and remands a second to determine if it promotes deterrence, rehabilitation, or public safety. The first condition forbade the defendant from associating with anyone who has a misdemeanor conviction. The second concerns having any contact whatsoever with her life partner. The 9th (Reinhardt joined by Thomas and Paez) puzzle at the first condition, as many people can be law abiding and yet still have misdemeanor convictions for a variety of small offenses. There did not seem a tie to the ends of SR. The second condition concerning the life partner needed more fact-finding. Although the partner may have been a bad influence in the past, there were also good attributes put forward. Given the time that had elapsed from the original conviction, and various SR violations and this revocation, more of a factual record is required.

U.S. v. Terrell, No. 08-10560 (2-2-10). In an ACCA case, the 9th affirms the sentence enhancement for three prior felonies. The 9th finds that the prior convictions of sexual assault (Arizona), second-degree burglary (Arizona), and second degree burglary (Missouri) qualify under ACCA's residual clause in that they involve conduct that presents a serious potential risk of physical injury to another. The 9th (Bybee joined by Tashima and Graber) examine ACCA and these priors in light of the Supremes decision in Begay v. U.S., 128 S.Ct. 1581 (2008), which holds that ACCA's enumerated offenses (burglary, arson, extortion, and explosive crimes) apply not to all offenses that have a risk of violence, but only to offenses that are "roughly similar" to the enumerated by involving purposeful, violent, and aggressive conduct. The offenses here all qualify. The burglaries meet the definition because of the risk of face to face confrontation, even if the burglary includes that of a movable object.

U.S. v. Loew, No. 09-30032 (2-2-10). The 9th (Tallman joined by Beezer and Gould) affirm an upward adjustment for restraint of victim. The defendant was convicted for interstate harassment, obscene telephone calls, stalking, telephone threats, and violations of protective orders. The defendant's co-conspirator had threatened and kidnapped the victim. He also sexually assaulted her. The defendant argued that the co-conspirator's actions were not foreseeable because he just wanted the co-conspirator to intimidate the victim. The district court made factual findings that the defendant had induced the co-conspirator to threaten and kidnap the victim, which led to her being bound and assaulted. The 9th had no trouble in finding that the district court's factual findings settled the matter, and were not clearly erroneous. There was no intervening cause because of the defendant's own inducement.

U.S. v. Contreras, No. 08-50126 (2-2-10) (en banc). In a per curiam en banc opinion, the 9th adopted the three-judge panel's opinion in U.S. v. Contreras, 581 F.3d 1163 (9th Cir. 2009) involving abuse of position under 3B1.3. This was a clarification that limited the scope of the adjustment, excluding, for example, ordinary bank tellers who took bank funds. The original panel had found that the prior precedent had been, in effect, overturned by the Guideline amendment. The en banc panel disagreed with its analysis of overturning the prior precedent, and so took that portion out of the opinion while adopting the rest. Concurring, Tashima takes note that he believes the panel's mode of analysis was correct, and with that caveat, joins the opinion.