Reina-Rodriguez v. U.S., No. 08-16676 (6-22-11) (Thomas with B. Fletcher and Gertner).

In a habeas petition, the 9th retroactively applies Grisel, and vacates a sentence in a 1326 underlying conviction. The district court had found a Utah 2nd degree burglary conviction to be a "crime of violence" under a categorical approach and due to a sua sponte investigation of public records. The conviction was affirmed on appeal. The 9th subsequently in U.S. v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc) overruled precedents suggesting state statutes satisfied Taylor's categorical inquiry when burglary was defined to include non-buildings adopted for overnight accommodation. A modified categorical approach was needed. In habeas, the 9th analyzes Teague and Grisel, finding that Grisel was a substantive non-constitutional decision that deserved retroactive application. In looking at the sentence, and conviction, the 9th found that a modified categorical analysis was not properly conducted. The case was remanded for resentencing.

Congratulations to AFPDs Chris Kilburn and Brian Rademacher of the Arizona FPD (Tucson) office.

U.S. v. Martinez, No. 08-50141 (6-22-11) (Noonan with Wardlaw and Korman, Sr. D.J.).

The 9th affirmed convictions and sentences in a RICO conviction with life sentences involving the Mexican Mafia. The 9th went through the requirements of RICO, and found that evidence was presented that satisfied the convictions, that the use of a FBI agent as a fact witness and an expert on the Mexican Mafia was not an error, and that the life sentences were reasonable.