U.S. v. Zamorano-Ponce, No. 11-6-12 (Graber with Alarcon and Berzon)

The 9th holds that Washington State's "rape of a child in the third degree" is a categorical crime of violence for a sentencing enhancement under 2L1.2(b). The state offense is a variant of statutory rape between the ages of 14 and 16, with the defendant being four years older than the victim. There is violence in the offense, and the victim is a minor.

Carrera v. Ayers, No. 08-99007 (11-6-12) (en banc written by Fletcher; dissent by Pregerson).

Sitting en banc, the 9th finds no prejudice in a counsel's ineffectiveness in raising a Wheeler claim (the California state constitutional provision barring striking jurors for solely a racial reason). This case pre-dated Batson, but Wheeler was state law, and counsel was ineffective in not challenging the state's striking 75% of the prospective Hispanic jurors and only 25% of the white jurors.  However, some Hispanic jurors sat on the jury, and many of the strikes were justified by the record.  Using a pre-AEDPA standard, the 9th found the petitioner could not meet the "reasonable probability" standard that he was prejudiced. Pregerson dissented. He argued that the petitioner did not get a fair jury, and that the standard of inference should be used.