Reina-Rodriguez v. U.S., No. 08-16676 (9-13-11) (Thomas with B. Fletcher and Gertner, D.J.).

The 9th remands for re-sentencing through the lens of U.S. v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc). In Grisel, courts must use a modified categorical approach to determine whether a "dwelling" in a Utah burglary statute meets the Guidelines' definition of a dwelling. Here, Grisel applies retroactively, and the court must use the information and judgment to see whether the defendant's Utah burglary conviction qualifies as a burglary of a dwelling. The court cannot conduct its own sua sponte investigation into public documents.

U.S. v. Alvarez-Moreno, No. 10-10045 (9-13-11) (Berzon with Paez and Bea).

In this interesting, albeit rare, double jeopardy issue, the 9th considers whether a court after a bench trial can order a new trial absent a defendant's motion under Fed. R. Crim. P. 33 where the defendant had not properly waived his right to a jury trial in the first place. The defendant and the government set this case for a bench trial (alien smuggling) and the trial proceeded before it was recognized, after verdict, that the defendant had not formally waived his right to a jury trial. Defense counsel moved to vacate but did not ask for a new trial. The district court recognized the error and cut to the chase with a new trial order. Alas, cutting to the chase meant clearing procedural and constitutional hurdles which trips up the order. Double jeopardy attached with the verdict. It is up to the defendant to move for a new trial, or he can appeal (in which case the case will likely be remanded for a new trial). Alternatively, the defendant can decide to just accept the verdict. It is up to the defendant. The case is remanded.

Rossum v. Patrick, No. 09-55666 (9-13-11) (Per curiam opinion with D. Nelson and Reinhardt; dissent by Gertner, D.J.).

The 9th finds that the Supremes' decision in Pinholster, 131 S. Ct 1388 (2011) controls. Gertner dissents, arguing that Strickland's IAC test, and the evidence before the state court, supported the prior opinion's remand for an evidentiary hearing.