U.S. v. Munoz-Camarena, No. 09-50088 (9-3-10) (Per curiam with B. Fletcher, Pregerson, and Graber). The Supremes in Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010) held that a second or subsequent conviction for simple possession does not qualify as an aggravated felony when the state conviction is not based on the prior conviction. Prior to Carachuri-Rosendo, the district court in this 1326 appeal had treated the defendant's prior state possessions as being equivalent to the federal recidivist statute, and therefore adjusted for an aggravated felony. This resulted in an erroneous Guideline calculation and the sentence must be vacated and remanded. The 9th rejected the government's argument of harmlessness, based on the district court stating that it would sentence the defendant to the same term regardless of the characterization, by emphasizing the need for the district court to start with the right calculation, and then assess the sentencing factors.

Congratulations to San Diego Federal Defenders Erica Zunkel, Steve Hubachek, and Kristi Hughes.

McCormick v. Adams, No. 09-15546 (9-3-10) (Wallace with Kozinski and Clifton). Be careful what you wish for under Faretta. The petitioner was facing child molestation charges, and elected to represent himself. He signed a waiver form, and went through a colloquy with the court. The petitioner was adamant he did not trust attorneys, and never wavered pretrial in his desire for self-representation. At the end of the state's case, the petitioner asked for a continuance because he seemed "over his head," had memory lapses from a prior surgery, and wanted to find a lawyer. the court, despite having told him he could change his mind about counsel prior to trial, denied the request. The state and district courts all upheld the conviction and the Faretta representation, basically saying "too bad and too late." The 9th essentially did likewise. Although the trial court had said that the petitioner could withdraw his waiver at any time, and this might be error, this statement did not induce petitioner to waive counsel. His Faretta waiver itself was valid, and was knowing and voluntary. As to the petitioner asking for a continuance to look for counsel, the 9th considered this, and concluded that he never really asked for counsel, just the chance to look for one. He never explicitly revoked his Faretta waiver. A continuance, moreover, would have caused a delay. At this late time, in trial, the court was within its discretion in denying a continuance.