Friday, April 20, 2012

U.S. v. Austin, No. 10-10001 (4-18-12)(Bea with Wallace and Nelson).
The defendant agreed to a stipulated 11(c)(1)(C) sentence, on which he was sentenced. He subsequently moved for a reduction of his crack sentence because of the retroactivity of the Guidelines amendment. It was granted. However, what the district court granted, the 9th takes away. The 9th, applying Freeman v. US, 131 S. Ct 2685 (2011), and specifically Sotomayer's concurrence (which is the controlling opinion in a fragmented Court), determines that the specified agreed upon plea controls because it was not tied to a Guideline range, nor is it evident from the plea itself that the sentence was based upon the Guidelines range eligible for reduction.  Here, there was a firearm charge too, and the deal was for a number of years for all the charges.  As such. the 9th concludes that the courts lack jurisdiction to reduce the sentence because it was based on the agreement of the parties and not on a particular Guidelines range that had been subsequently reduced.

Cross v. Sisto, No. 08-17324 (4-18-12) (Bea with O'Scannlain and Graber).
The petitioner filed a number of post-conviction challenges to his state (California) second degree murder conviction. One of the petitions was denied by the California Supreme Court citing only ex parte Swain and DuvallSwain has been interpreted as holding a petition was untimely. The district court thus found. The 9th reversed, holding that Swain was not only concerned with untimeliness, but could also be considered, with Duvall, a pleading issue. Thus, the petitioner was not barred. Under AEDPA, his petitions had tolled the one year limitations period and was timely.


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