U.S. v. Rivera, No. 10-50426 (6-22-12) (Berzon with Reinhardt and Kennelly, D.J.).

The Sixth Amendment right to a public trial was violated when the district court excluded the defendant's family members from the court. The court did so because he did not want children to be used as "props" and he expressed a preference for a cleared empty courtroom. Sentencing is part of a trial, and the public has a right to be present, especially family and friends of the defendant. The sentence is vacated and remanded before a new judge.

Johnson v. Uribe, No. 11-55187 (6-22-12) (Marbley, D.J., with Kleinfeld and M. Smith).

Petitioner got relief from the district court on the basis of IAC. The court 's remedy was to order sentencing within the statutory maximum. On appeal, petitioner argues that his conviction should be vacated as well, and the case returned to the pre-plea stage of proceedings. The 9th agrees. The performance of appointed counsel was totally inadequate, from the initial stage, and the IAC permeates every stage.

U.S. v. Suarez, No. 10-10393 (6-22-12) (Tashima with Silverman and Adelman, D.J.)

This case involves what constitutes a "final prior conviction." It has tremendous implications because a prior conviction can be used to enhance sentences. Here, the prior was for possession of drugs BUT the defendant had taken advantage of a California drug diversion program under 1000.3. If a defendant completes the program, which the defendant did here, the charge is dismissed. he has no right to appeal while in the program, nor is he sentenced. The court found this as a prior, and under 21 USC 851, the sentence was a mandatory minimum 20 years. the 9th vacated and remanded for resentencing. The 9th concludes that to qualify as a prior final conviction under 841(b)(1)(A), a guilty plea must either "(1) ripen into a final judgment; or (2) result in a legally cognizable sentence." Under the state program, the plea to possession did not meet this standard. The 9th distinguishes Dickerson, and concludes that other circuits never really considered the "finality" aspect of a program. As for the defendant's conviction for conspiracy, the 9th affirmed, holding that an acquittal on the possession with intent charges was not fatally inconsistent. The analysis is to look at whether evidence supported the verdict, in the light most favorable to the government, and it did so here.

U.S. v. Collins, No. 10-50344 (6-22-12) (Marbley, D.J., with Kleinfeld and M. Smith).

The 9th vacated and remanded a SR residency requirement for a defendant who plead to a count of possessing child pornography. The court had simply imposed the requirement, which had strict and extreme conditions of where he could live, without an analysis of whether it was reasonable. The conditions imposed requirements of not living near certain sites, and had the effect of driving the defendant out of any urban environment. The 9th held that there was procedural error, and that the court had to explain why it was imposing such a requirement, whether it was necessary, and assess its reasonableness. The 9th also held that the standard of review for a lifetime term of SR was preponderance and not "clear and convincing."