U.S. v. Munoz-Camarena, No. 09-50088 (1-28-11) (per curiam -- B. Fletcher, Pregerson, Graber). The defendant had three prior California convictions for simple possession. Under Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010), the second or subsequent prior convictions do not qualify as aggravated felonies when the state convictions are not based on the fact of a prior conviction. That was the situation here. The government, however, argued that a remand was unnecessary because any error was harmless. The sentencing court had stated that it intended to sentence the defendant to 65 months regardless of whether the felony was aggravated under the guidelines, or the enhancement was 4 or 8 levels. The 9th, however, said that the guidelines must be calculated correctly, and a different calculation may have influenced the sentence. The court, for example, would have to explain the extent of any variance, and a "one size fits all" explanation does not suffice. There is strong language about the need for a remand.

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

U.S. v. Lichtenberg, No. 09-10191 (1-27-11) (Hawkins with McKeown and Rawlinson). An elderly client in Louisiana hired the defendant to complete a real estate transaction in Hawaii. The client gave explicit instructions as to the funds from the sale, paying the defendant a sum for his assistance. The defendant completed the sale, but instead of wiring the money to the client, the funds instead were wired to Indonesia, and put in the defendant's banks. After a lengthy prosecution and investigation, about half the funds (approximately $170,000) were still missing. The court sentenced the defendant to 112 months, above the guidelines range, with a number of factors including the continued withdrawal of interest by the defendant's wife from the foreign bank. On appeal, the 9th counted as criminal history a prior state violation of protective order, finding that it was not similar to the excluded conviction, under the guidelines, of contempt of court. The breach of a Hawaiian protective order is not similar to contempt of court, and so it counts as criminal history. The focus of the protective order was to protect a victim (it arose from a domestic violence incidents with ex-wife); contempt of court is aimed at the process. The 9th looks at the actual punishment and the types of conduct. As for the sentence, it was deemed reasonable and the explanation sufficient.

In a losing cause, the 9th still singled out defendant's counsel (FPD Peter Wolff) for his efforts and his "thoughtful argument."

U.S. v. Leyva-Martinez, No. 10-50269 (per curiam: Goodwin, Rymer and Graber). The defendant, in a 1326 case, raised the Almendarez-Torres claim that his prior must be proved. He argued that Nijhawan v. Holder, 129 S. Ct. 767 (2009) over-ruled Almendarez-Torres. The 9th expressed some skepticism, since Almendarez-Torres was not even mentioned in Nijhawan, and so granted summary affirmance. However, while the circuit courts are rubber stamping dismissals on Almendarez-Torres, commentators are wondering whether the Court is ready to reconsider.

U.S. v. Potter, No. 09-30266 (1-26-11) (per curiam with Graber, M. Smith, and Benitez, D.J for the S.D. Ca). The 9th rejects a constitutional challenge to a conviction for possession of a firearm in furtherance of drug trafficking. The defendant argues that because the weapon was in his home, he had the right to possess it. The 9th agrees that in Heller, the Supremes held that the right to bear arms is a personal right, rather than a collective or State right. However, the 9th scoffs at the proposition that the Second Amendmentment guarantees a right to use a weapon for drug sales. Heller recognizes the right for "lawful" purposes. Drug trafficking is not a lawful purpose.

U.S. v. Jenkins, No. 09-10109 (1-25-11) (B. Fletcher with Tallman and Rawlinson). This was a "pump and dump" scheme, where the defendants sought to secretly acquire shares of a corporation, artificially inflate their value, and then quickly sell the shares, laundering the proceeds. The defendants' company supposedly developed technology to detect flaws in circuit boards in the late 1990s. These claims were false, but the defendants created shell corporations that supposedly bought shares, and puffed up claims. Shares were sold, but the scheme began to unravel in 2001. Subsequently, the defendants were convicted on numerous securities and wire fraud counts and money laundering counts. Evidence of the scheme supposedly lay in Canada. The interesting issue here is the running of the statute of limitations, and whether 18 U.S.C. 3292 suspended the running of the statute of limitations for all the counts. The section allows the suspension of the statute if the court finds that the government reasonably believes that evidence of a crime under investigation by a grand jury is in a foreign country and has asked for that evidence. The suspension lasts, within limits, until the foreign government has taken "final action" on the official request. The defendants argued that the government failed to provide evidence to support its claims, and that the request must be made to the court, or acted upon, before the statute can be suspended. The 9th did hold that the government had to produce some indicia of reliability to support its request; however, the indicia is quite broad and the government met it here. The 9th also held that the statute's suspension starts when the government makes the request to the foreign government and before an indictment is returned. This is stated in the statute. The 9th also found that the suspension continued until the government got a final response, and that the letters from Canada about the requests were not dispositive. Some evidence was sent, and other steps needed to be taken were outlined. Bottom line was that the statute of limitations was properly suspended. The 9th affirmed the convictions, finding sufficient evidence was presented on the fraud and laundering counts.

U.S. v. Burgam, No. 09-50449 (1-25-11) (Fisher with Gould; dissent by O'Scannlain). The defendant pled guilty to two counts of bank robbery. The bank robberies were conducted by the defendant pretending to be a FBI agent, talking to the bank manager, and then handcuffing the manager with a metal box that supposedly contained a bomb. The two bank robberies resulted in over $250,000 in losses. A few years after the robberies, after the defendant learned he had been indicted, he turned himself in. The plea deal was negotiated over a pre-plea draft PSR. The probation officer, though, made a clerical error, and had released the wrong draft to the parties. The defendant went from a range of 108-135 to 188-235. The court considered mitigating and aggravating factors, and finally decided on a sentence of 180 months. The 9th rejected the defense argument that the court started from the statutory maximum and worked down; rather, the court had started from the guidelines range, although he had mentioned the stat max. The sentence was also reasonable under the circumstances. The 9th vacated and remanded however because the court had treated the defendant's inability to pay restitution as an aggravating factor. The 9th found that this was ill-advised, and although it opined that the court probably did not give it great weight, the fact that the court considered it, and then did not say what part it played in formulating the sentence, required a remand. In dissent, O'Scannlain finds that the sentence was based on the violent terrifying acts of the defendant, and that the mention of inability to pay restitution was incidental and at most harmless.

Congratulations to Alexandria Yates and Sean Kennedy of the FPD Office, Los Angeles.

U.S. v. Gonzalez-Diaz, No. 10-30002 (1-24-11) (Fisher with W. Fletcher and Jones, D.J., W.D. Va.). In this 1326 case, the defendant, an undocumented alien illegally in the U.S. for several months, took a trip to Canada on June 19, 2009. Bad move. At the Canadian point of entry, he was stopped, examined, transported 55 miles, kept overnight in a jail, questioned, excluded, driven back to the POE, and handed over to U.S. immigration authorities. Officially restrained? He argues that he was not "found in" the U.S. because he was under official restraint when he re-entered the U.S. The 9th held that he was not. His brief physical presence in Canada did not result in his entering the U.S. from a foreign country. He was never allowed into Canada, and so his being handed over to the U.S. was not a re-entry. This is controlled by U.S. v. Ambriz-Ambriz, 586 F.3d 719 (9th Cir. 2009).

U.S. v. Carothers, No. 10-50191 (1-24-11) (Fisher with Bybee and Strom, Sr. D. J., D. Neb.). The trial was about whether the defendant was possessing drugs for himself (stocking up), or whether he was possessing with intent to distribute. The court gave the lesser of possession, and instructed on the lesser. The jury deadlocked on the greater offense, and was unanimous on the lesser. However, the jury form failed to allow the jury to so declare its verdict. The court thereupon declared a mistrial on both the greater and lesser offenses. The court subsequently recognized its mistake, and dismissed the indictment. The court believed it had to because of (1) double jeopardy; (2) U.S. v. Jackson, 726 F. 2d 1466 (9th Cir. 1984)(per curiam); and (3) practical problems. On the government's appeal, the 9th reverses and remands. The 9th first concludes that a declaration of mistrial is not an equivalent of acquittal on the possession charge. The greater charge remained. Moreover, there is no issue preclusion effect since no fact finding was reported. In Jackson, the 9th allowed a jury to consider a lesser offense if unable to reach a verdict on the greater. It did not have to acquit on the greater first. Jackson does not preclude retrial on the greater. Here, the defendant could be argued to have avoided the wrongful conviction on the greater by the Jackson alternative. Lastly, the defendant can waive his double jeopardy right to be retried on the simple possession in order to get the instruction in the retrial. It is his choice.