U.S. v. Leal-Vega, No. 11-50065 (5-30-12) (M. Smith with Kleinfeld and Algenon, D.J.).

The 9th considers whether a California drug conviction under Calif. Health and Safety Code 11351 is categorically a drug trafficking offense under the Controlled Substances Act (CSA) for purposes of sentencing for an illegal reentry after deportation under 2L1.2.  The defendant here pled to illegally re-entering after deportation.  At sentencing, the government argued that his state conviction was a +16; defense argued that it was not a drug offense under the CSA.  The 9th agreed it was not because the state code contained substances over and beyond the CSA.  The 9th explained that the categorical approach was to have a national standard, and the government's argument that the drug trafficking enhancement should look at the state statute runs counter to that policy aim.  This holding is important as a general matter.  Alas, for the defendant, the 9th then proceeded to use the modified categorical approach, which looks at court documents to narrow the conviction.  Here, the complaint, read together with the minute order and abstract judgment, satisfies the modified categorical standard that the substance he pled to selling (black tar heroin) was a substance under the CSA.  The 9th also held that the district court, which had only imposed a +4 enhancement, had not committed harmless error in imposing the sentence.  The 9th reversed and remanded.  

Defense counsel was Carl Gunn, long time AFPD in FPD Calif Central (Los Angeles) who retired and is now in private practice.  Congratulations for beating back the categorical approach.

Flourney v. Small, No. 11-55015 (5-30-12)(Clifton with Farris and Ikuta).

Using AEDPA deference, the 9th considers whether a petitioner's confrontation rights were violated when an forensic analyst testified about a DNA match for which she was not the primary technician.  The 9th held that at the time, this issue was still unsettled -- being post-Crawford, but before Bullcoming.  Moreover, the 9th spent time discussing how Sotomayor's concurrence in Bullcoming left open the issue of expert testimony.