U.S. v. Buckles, No. 08-36031 (6-2-11) (W. Fletcher with Fisher and Bury, D.J.). In this habeas appeal, the 9th holds that recalling a mandate does not restart the ticking clock of 90 days to seek cert. The mandate was recalled to allow appellant to seek appointed counsel, but it did not alter the judgment. Petitioner is out of time, and out of luck, on this argument. Petitioner also argues that he is entitled to equitable tolling because his retained counsel did not act on his request to seek cert. The 9th denies this claim because, assuming arguendo that the counsel did in fact do nothing, this still does not excuse the lateness of the 2255 motion. However, all is not lost, because petitioner contends that a clerk of the court informed his sister, inaccurately, that the clock would restart. If so, then he might be entitled to equitable tolling. Certain facts help petitioner, including the language of the order denying cert. To develop the record, the matter is remanded to the district court.

Congratulations to AFPD David Ness of the Federal Defenders of Montana (Great Falls). It was also a very good win for the Montana Defenders, getting another 9th Circuit win and getting an acquittal in a jury trial. Congrats to the office.

U.S. v. Baptist, No. 09-50315 (6-2-11) (Per curiam with B. Fletcher, Reinhardt, and Wardlaw). In sentencing the defendant to a 5-year mandatory minimum sentence for a crack sale, the district court railed against the law, bemoaned the injustice of the sentence, and decried the impact on African Americans of the crack 100:1 ratio. The district court was clearly disturbed by the sentence. While this appeal was pending, President Obama signed into law the Fair Sentencing Act, that made the injustice of crack sentencing a little less unfair. On appeal, defendant argues that the FSA should apply to him. The 9th was sympathetic, but powerless. In heartfelt language, the per curiam opinion notes the unfairness of the sentence, but concludes that the panel is powerless to make retroactive this statute when there is no indication Congress wanted it to be retroactive. The 9th regretfully affirms.

U.S. v. Rodriguez-Castro, No. 10-50273 (6-2-11) (Clifton with Tallman; concurrence by Silverman).

The defendant was caught coming across the border with 33.46 kilos of cocaine. The defendant explained that a co-worker convinced him to register a car in his own name, take it on several trips across the border, and then transport drugs for between $3,500 and $4,000. The defendant entered into a plea, where the government recommended a minor role adjustment. At sentencing, the court refused to give the minor role adjustment. The court explained that the defendant was not entitled to a minor role because the had taken significant steps, and was in possession of a large amount of drugs, that belied his minor role status. The court also chastised the government for its practice of offering to recommend a minor role early in the plea process, before it had all the facts. The government's practice did not bind the court. On appeal, the 9th affirmed the sentence. The court did not categorically refuse to give such reductions in such cases. It grounded its refusal on the steps the defendant took, and the amount of drugs; these findings were not clearly erroneous. The court also did not err in finding the defendant had not carried its burden. Lastly, the court held that the sentence was not unreasonable. Concurring, Silverman added that the district court could not rubber stamp the recommendations of the parties but had the obligation to calculate the Guidelines correctly, which it did. The parties should not expect a court to just accept the recommendations.