U.S. v. Mak, No. 08-50148 (6-21-12) (M. Smith with Kleinfeld and B. Fletcher).

This is an appeal from a conviction for violating the Arms Export Control Act (AECA). The 9th affirms. Jury issues revolved around the definition of technical data, which was covered by AECA, and specific intent. The 9th found the jury instructions were not in error. In addition, AECA was not unconstitutionally vague. Employing an intermediate level of scrutiny, the 9th concluded that AECA was neither a prior restraint nor unconstitutionally vague.

U.S. v. Ramos-Medina, No. 09-50408 (6-21-12) (Clifton with Farris and Ikuta).

This is an appeal from a 1326 conviction. The defendant was convicted after a full blown jury trial. He argues on appeal that the prior burglary conviction was not an agg felony and that he should have received acceptance of responsibility as he admitted the elements when apprehended, and he raised a legal issue. The 9th reaffirmed precedent that a conviction for first degree burglary under California Penal Code 459 was a crime of violence under 18 USC 16(b) and therefore under 8 USC 1101(a)(43)(F). Park, 649 F.3d at 1179-80. Turning to the Guidelines calculation for an agg felony, which may differ, the 9th has held that a conviction for burglary under 459 did not categorically fall within the burglary generic definition. This is so because the statute prohibits an "unlawful or unprivileged entry." Aguila-Montes, 655 F.3d at 944. However, applying a modified categorical approach, which means looking at the plea colloquy or plea transcript, the defendant affirmed the admissions in the probation report that he entered a dwelling without permission or privilege and stole jewelry. Thus, the +16 was affirmed. Lastly, the 9th affirmed the sentencing court's decision not to give acceptance of responsibility. The court did not look solely at whether the defendant went to trial, but examined all his conduct.

U.S. v. Wing, No. 11-30017 (6-21-12) (Moskowitz, D.J., with McKeown; dissent by Tallman).

In considering whether a court can revoke a second term of SR on the basis of newly discovered violations of the first term, the 9th concludes the court lacks jurisdiction under 18 USC 3583(e)(3). The 9th concludes that a future term of SR cannot be violated for past terms. In reaching this conclusion, the 9th undertakes an extensive review of SR's statutory scheme. This is also an issue of first impression. Dissenting, Tallman parodies the opening of the long ago Twilight Zone television program, arguing that there now exists a fifth dimension that leaves unpunished corruption, wickedness, and immorality. And that is just the opening paragraph! The parody continues, with Tallman arguing that gaps are created where bad acts can go unpunished so long as another SR term starts. Rather, SR should be taken as a whole, and can be revoked for various acts when discovered.

Congratulations to AFPD John Rhodes of the Montana FPD (Missoula).