U.S. v. Ellis, No. 09-50652 (5-26-11) (Ikuta with Rymer and Callahan).
The 9th has decided to review departures for reasonableness in the first instance, and then, if reasonable, to treat an erroneous Guideline departure as harmless under post-Booker discretion. U.S. v. Mohamed, 459 F.3d 979 (9th Cir. 2006). The same approach is taken here for departures for under-representation of criminal history pursuant to 4A1.3(a)(1). In this case, the defendant, having pled guilty to seven bank robberies, received a departure because some prior criminal history was stale. The 9th stated that it did not have to examine correct application of a departure because it was looking at reasonableness, and the departure was reasonable under 3553. The court explained its basis and it made sense. The 9th also held that no violation of the plea agreement took place. In terms of sentencing jurisprudence, this case shows that, on appeal, departures are reviewed under a reasonableness variance standard.
Haney v. Adams, No. 09-16148 (5-26-11) (N. Smith with Goodwin and Collins).
A petitioner is precluded from raising a Batson claim if he failed to object to the state's use of peremptory challenges at trial.