U.S. v. Rivera-Gomez, No. 08-10480 (12-6-10) (Ikuta with Berzon; concurrence by Goodwin). The 9th clarifies how to count relevant acts designed to further criminal conduct or evade detention in the context of 1326 cases (illegal re-entry). The defendant was here illegally and resisted being arrested (kicking through drywall and hanging from rafters). The state charged resisting arrest and sentenced him to three years. He then faced a 1326 charge. The district court counted the resisting arrest as criminal history. The defendant argued, and the 9th agreed, that it must be considered as relevant conduct, and any adjustments go into offense level. The acts were at the same time as the criminal conduct for which he is being charged. Goodwin concurs, but argues that the analysis of Carty of procedural error requiring a remand should be reconsidered for harmless error. He believes that the defendant here may well end up with a higher sentence.

This case provides a comprehensive and clear outline of how to calculate the guidelines in a 1326 case.

Congratulations to FPD Dan Broderick and AFPD Doug Breevers of the FPD office of the Eastern District of California.

U.S. v. Farmer, No. 09-50124 (12-6-10) (Bybee with Noonan and Clifton; concurrence by Bybee joined by Noonan). The 9th holds that defendant's prior conviction under California's statute against lewd and lascivious acts involving a child does count as a prior aggravated sex conviction under 2252 and required a 10-year mandatory minimum sentence. The 9th goes through an analysis of the categorical approach to this offense and how it should be given a common understanding meaning. The problem, and the reason for the concurrence, is that the 9th has two lines of cases concerning how to count prior convictions for sexual abuse of a minor offenses: those in the immigration context and those in the 2252 (computer) context. The concurrence argues that the 9th needs to clarify these cases, and argues that a common meaning approach should be used for prior sex offenses in the immigration context and reference to federal offenses and elements in the computer context.

Sarora v. Thomas, No. 10-35553 (12-6-10) (Tashima with Paez and Clifton). The 9th upholds the BOP's way of determining how and when inmates are sent to halfway houses to begin their reentry back to the community.