U.S. v. Xinidakis, No. 09-50307 (3-25-10) (Rymer joined by Wardlaw and Kennelly, D.J.). The 9th reaffirms that a district court can impose consecutive terms of imprisonment if a defendant violates concurrent terms of supervised release.
U.S. v. Maciel-Alcala, No. 09-50038 ( 3-25-10) (Wardlaw joined by Canby and Callahan). Affirming a conviction for aggravated identity theft under 18 U.S.C. 1028A, the 9th holds that the scienter for the offense requires that a defendant know that the identity he stole was of a real person, living or dead. The government does not have to prove that the defendant knew the person or knew that the person was actually living when the person's identity was stolen. In this case, the defendant used the identity of a real person, to get loans, buy a truck, secure an apartment, get phone accounts, obtain other identifications, including a birth certificate, and a Social Security card. The 9th went through what "person" meant, the statute, intent, and held that the defendant must know that it is a real person, but not that he knew him, or even if he was still living.
U.S. v. Castro, No. 09-50164 (3-26-10) (Goodwin joined by Canby and Fisher). In a reentry sentencing, the defendant had a prior under Calif. Penal Code 288(c)(1) for lewd or lascivious acts on a child 14 or 15 by a person at least ten years older than the child. The 9th considered whether this was a "crime of violence," and held was not, because it constitutes neither "sexual abuse of a minor" nor "statutory rape." The 9th compares 288(c)(1) with sexual abuse of a minor, and finds that 288(c)(1) does not contain the element of "sexual abuse." Further, lewd acts may be broader than abuse, and the age requirement does not make any sexual conduct per se abusive. As for statutory rape, the 9th finds that 288(c)(1) does not contain the requirement of a "sexual act." At a minimum, the generic definition of statutory rape requires an intentional touching not through clothing of a minor's genitalia. The sentence is vacated and remanded.
U.S. v. Dewey, No. 08-30450 (3-26-10) (Settle, D.J., joined by Kleinfeld and Tallman). The defendant was sentenced as a career offender for his part in a meth conspiracy. On appeal, he argues that his counsel was ineffective, that he was not a career offender, and that the sentence was unreasonable. Moreover, he asserts he should have been allowed to withdraw from his plea. The 9th sidesteps the IAC claim, finding that such claims need more of a record developed in post-conviction. The 9th did affirm the finding that the defendant was a career offender, because his prior drug deal sentence had imprisonment within the 15 year span. His sentence had been suspended, but he had run into trouble, and the court had reinstated the sentence and he was reincarcenated with the time frame. The defendant's sentence was also not unreasonable because the court sentenced within the guideline range, and stated that 3553 factors were considered. The defendant did not show factually why this was shocking. He argued that he was not a major drug dealer, but it was just a bare statement. He also made reference to the sentence of the codefendant, but no mention of the co-defendant's criminal history, or circumstances. Finally, the letter the defendant wrote to the court regarding the plea was not construed by the court as a motion to withdraw from the plea. At the ex parte hearing with counsel, the court so stated, and urged the defendant and counsel to talk and be prepared for sentencing. No further motion to withdraw was filed.