U.S. v. Oseguera-Madrigal, No. 11-30360 (12-19-12) (Tashima with M. Smith and Christen).
It is like a bad dream act. The defendant was brought here when he was two. When he was 24, he pled guilty to use of drug paraphernalia in violation of Wash. Rev. Code 69.50.412. He was deported and came back, and charged with 1326. On a conditional plea, he argued that he was not removable, should have been informed of waiver relief, and that his sentence, which resulted from a six month variance downward from the Guidelines, was an abuse of discretion and substantively unreasonable. The 9th rejected all claims. It held that "use of drug paraphernalia" was in fact a conviction "relating to a controlled substance" under 8 USC 1182. this followed similar holdings for nearly identical statutes in Arizona and Hawaii. The defendant was not eligible for relief, and so informing him of relief through waiver was not necessary. As for sentencing, the sentence was not outside the "mine run" of similar cases.
U.S. v. Catalan, No. 11-50318 (11-19-12) (per curiam with Kozinski, Trott, and Thomas).
The 9th vacated and remanded a 1326 sentence. The district court had imposed a +16 enhancement as a result of a probation revocation that resulted in a sentence of greater than 13 months. This was error, because the US Sentencing Commission clarified the enhancement in amendment 764 on November 1, 2012, which stated that the revocation would be added to the original sentence only if the revocation sentence was imposed prior to deportation. This interpretation is clarifying and therefore to be applied retroactively.