U.S. v. Fitch, 97-10607 (9-23-11) (Block, Sr. D.J., with N. Smith; dissent by Goodwin).

Can a court sentence for a murder proved by clear and convincing evidence when the convicted offenses were fraud and money laundering? Yes, holds the 9th. The defendant here fell in love with a Colombian woman, and followed her to England. There, they continued seeing one another. By the way, he marries another woman, who agrees to follow him to Nevada. Money is transferred, and a trailer park home purchased (we all have our dreams). She and defendant go on a trip, and she is never seen again. Her money starts disappearing, family and friends do not hear from her, and even the bank starts calling. The defendant then steals an identity and marries his Colombian girlfriend. Prosecuted and convicted for numerous fraud offenses, he faces guidelines of 41 to 51 months. The court sentences him to 262 months. The 9th is troubled by the increase of sentence for an offense for which the defendant was not charged, much less convicted. The court found facts beyond clear and convincing and tied it to the fraud by stating that the murder provided the means for the fraud. The sentence was not at the top of the statutory max if all the counts ran consecutively nor was the sentence as long as murder. The 9th recognized that a court could consider all sorts of information, and so affirmed. There were no procedural errors, nor was the sentence substantively unreasonable. The 9th did seem uneasy, but deferred to the court. Goodwin, dissenting, argued that facts were found by the judge that increased the sentence and so ran afoul of the Sixth Amendment. This sentence went beyond because the murder was not charged, nor proved, and the sentence was for a crime for which he was not charged.

U.S. v. Rivera, No. 10-50313 (9-23-11) (Korman, Sr. D.J., with Noonan and Wardlaw).

The 9th held that petty thefts can be aggravated felonies for 1326 purposes because they act as recidivist enhancements that raise the sentence of theft to more than a year. Petty theft in the California code is not a generic theft, but a modified categorical approach. Looking at the charging document, plea, and judgment, supports such a finding.

Orel wits v. Sisto, No. 09-16142 (9-22-11) (Graber with Bea; O'Scannlain concurring).

The district court ordered the state to conduct a new parole hearing. The warden appealed. Maybe the court erred in ordering the hearing; after all, the Supremes in Swarthout subsequently held that the analysis was whether some due process was followed, not the decision itself. However, the ordering of a new hearing is not a release of the petitioner. Hence, it is not a final order. There were other claims unresolved. The appeal, therefore, was dismissed for lack of jurisdiction. O'Scannlain argues that the lack of jurisdiction should be characterized as mootness in light of the fact that the hearing was held, and the petitioner received relief. O'Scannlain worries that a state could not appeal an erroneous order that stops short of ordering release.

U.S. v. Baker, No. 10-10223 (9-20-11) (Graber with Silverman and Lynn, D.J.).

The 9th affirms the sentence on a misdemeanor possession conviction (a lesser included), and the condition of suspicionless searches, but reverses the condition for DNA collection. The district court exceeded its statutory authority in ordering it. In a concurrence, Graber notes the distinction in treatment of defendants on parole and probation. Defendants on probation have slightly greater expectations of privacy than parolees. The Supremes recognize this but the 9th continues to treat the two sentences the same. A probationer may not be subject to a suspicionless search as would a parolee under Knights. Grabber calls for an en banc to recognize the distinction.

U.S. v. Dugan, No. 08-10579 (9-20-11) (Graber with O'Scannlain and Bea).

The 9th rejects a Second Amendment challenge under Heller to the offense prohibiting an unlawful user or addict of controlled substances from possessing a firearm under 922(g)(3).