U.S. v. Hunt, No. 09-30334 (9-1-11) (Paez and Beezer; dissent by O'Scannlain).

The defendant plead guilty to attempt to possess a controlled substance with intent. At the plea colloquy, the amount or type was not made clear; neither was the specific knowledge required for attempt. This resulted in Apprendi error. It was not harmless because the defendant had always disputed the amount supposedly involved. His sentence is reduced from 15 years to 1 year. Dissenting, O'Scannlain scoffs at the result, complaining that the majority has effectively gutted any harmlessness in an Apprendi analysis. He argues that evdience overwhelmingly shows that the defendant intended to possess cocaine and distribute it.

U.S. v. Lafley, No. 10-30132 (9-1-11) (Thomas with D. Nelson and Graber).

The 9th upholds a SR restriction barring use of marijuana against a challenge under the Religious Freedom Restoration Act. The government had a compelling interest.

Jackson v. Ryan, No. 10-15067 (9-1-11) (Gertner, D.J., with B. Fletcher and Thomas).

The 9th finds error in a felony murder instruction. The matter is remanded for the court to consider AEDPA and IAC issues in light of the finding.