U.S. v. McEnry, No. 10-10433 (10-13-11) (Tashima with Rawlinson and Hatter, Sr. D.J.).

The 9th finds sentencing procedural error when it incorrectly calculated the defendant's guidelines. The defendant was charged with operating an aircraft as an airman without an airman's certificate in violation of 49 U.S.C. 46306(b)(7) (a pilot's license in effect...he did have a student's certificate in 1986). Oh yes, he came to the attention of the FAA, and the airport where he landed, when he appeared unsteady, disoriented, and spoke about flying through military airspace alongside military jets. At sentencing, there was no guideline on point, and so the court used a guideline that referenced interference with a flight, based on relevant conduct. The 9th found error because relevant conduct cannot be used to pick out a guideline; rather, the guideline has to be most applicable, and here it would be 2B1.1, which has enhancements for risk.

Congratulations to AFPD Eric Kersten of the FPD Office, Eastern District of California (Fresno).

U.S. v. Urena, No. 09-50285 (10-13-11) (Gould with Schroeder and McCuskey, D.J.).

This is a prison assault case that raises some troubling issues, all of which were rejected by the 9th in affirming the conviction for assault with a dangerous weapon and sentence. First, the defendant argued that he acted in self-defense because he was earlier called "a bitch" by a fellow inmate. He also argued that the victim carried a shank. The 9th said that the undisputed evidence was that the defendant was the aggressor and that harsh or insulting words do not give a person leave to attack, even in prison. It should be noted, though, that the defendant had presented some evidence that the victim had a shank, and so the attack could have been an escalation of a fight. Not much evidence is needed for an instruction. More troubling is the district court's barring of a doctor to testify on cross as to the causation of a wound. The doctor wrote a report that there was a wound on the victim's face, and it was caused by a fall or punch. The government called the doctor only to testify as to the nature and extent of the injury, not as to the cause. The district court barred defense counsel from crossing on the causation as being outside the scope, and barred counsel from using the doctor as an expert because he was not so designated. The 9th held that confrontation was not violated because counsel could cross on the extent of direct testimony. The court had discretion to prevent new evidence once the trial was underway. (Editorial note: the court did not address the fact the government was not surprised, and it gave important evidence as to the injury. The next time the government tries to bring in new evidence, this case can be cited against them as the need for enforcement of pretrial disclosure). Lastly, the defendant was assessed criminal history recency points, despite the fact that a guidelines amendment eliminated such points. The 9th held that the defendant is sentenced under the guidelines in effect at the time, and that it is substantively reasonable. The 9th acknowledges that the basis for the adjustment, recidivism, was shown to be faulty, but the 9th would not remand to give the district court a chance to re-evaluate its sentence in light of the amendment. If a guideline amendment is not retroactive, and this was not, then tough, one gets the guidelines in effect.

U.S. v. Reyes, No. 10-10323 (10-13-11) (M. Smith with Gould and Marbley, D.J.)

The 9th affirms convictions for securities fraud and false filings. The 9th finds no prosecutorial misconduct in evidence as to the profits of the defendant in backdating proxies; the evidence was to show motive. The 9th also finds the evidence sufficient to support the verdict.