U.S. v. Ressam, No. 09-30000 (3-12-12) (en banc).

Sitting en banc, the 9th considers the 22-year sentence imposed upon the so-called "Millennium Bomber" and holds that it has "a definite and firm conviction" that the district court committed "clear error" in its sentence, and thus the sentence was "substantively unreasonable." The 9th engaged in a detailed analysis of the twists and turns of this case, with plea offers, counter-offers, offers to cooperate, cooperation, withdrawal from cooperation, self-representation, and various assessments of the value of cooperation he did provide. The 9th faulted the district court for its comparisons with other terrorism cases, and for its scant attention to the guidelines. It did value the familiarity of the court with this case, now some 12+ years old, and so remanded back to the court for a resentencing. Concurring, Reinhardt, with Wardlaw, caution that this is a unique case, and that it is difficult to develop general principles concerning "substantive unreasonableness." The highly contextual nature of substantive review of sentences, and the circumstances of this case, make it atypical. The concurrence believes the sentence must be vacated, but is cautious as to what markers are laid down for the future. Dissenting, Schroeder, joined by Paez, Berzon and Murguia, would defer to the district court and affirm the sentence as given. The dissent argues that the majority commits Gall error, and vacates the sentence because it disagrees with it.

Kudos to Tom Hillier, FPD of the W.Dist of Wa (Seattle) for his continued spirited representation. Back for resentencing.

U.S. v. King, No. 11-10182 (3-13-12) (Per curiam with Graber, Berzon and Tallman, and concurrences by Graber and Tallman).

The 9th affirms a search of a home based upon the defendant's probation condition specifically allowing warrantless searches with or without probable cause. Here, the defendant was supposedly linked to a shooting by various unreliable informants and/or witnesses. Reasonable suspicion was lacking. However, Baker, 658 F.3d 1050 (9th Cir. 2011) permitted the search of his room (via a questioning, overheard conversation with others, a fight among kids over a jacket, a Google search of an album cover, and a stop at one address that led to another) which yielded a shotgun possessed by this prohibited possessor. Graber, concurring, believes that Baker should be reconsidered in light of Supreme Court developments. Searches without even reasonable suspicion via a probation condition troubles her. Tallman, concurring, would affirm because to him reasonable suspicion was established by the various links between the shooting, witnesses, and connections to the defendant.