U.S. v. Pleasant, No. 12-10213 (1-2-13) (Tashima with Hawkins and Murguia)

In 2009, when the defendant was sentenced on crack, he was also found to be a career offender. He got a break there, with a stipulated variance down to 77 months. The Fair Sentencing Act, and subsequent crack retroactive sentencing amendments from the Sentencing Commission, would seem to give him a chance for a possible further reduction. However, because his variance was from the career offender guidelines, and not from crack, he was ineligible for subsequent retroactive application. This is in accordance with Freeman v. U.S., 131 S.Ct 2685 (2011).

U.S. v. Yi, No. 11-50234 (1-2-13) (Goodwin with O'Scannlain and Zouhary, DJ ND Ohio)

The defendant owned and operated a real estate development company. He led to the company violating the Clean Air Act by having renovating a condominium development (204 units) without properly disposing of asbestos in the ceilings. In the prosecution, the court gave a "deliberate ignorance" instruction based upon the defendant knowing that the ceilings had asbestos but turning a blind eye. The 9th found no error, holding that the defendant's experience and knowledge and actions supported such an instruction. It was not a case of recklessness or negligence. The 9th also upheld an adjustments for a substantial risk of death or bodily injury (asbestos was blowing everywhere in the renovation) and for being an organizer and leader.

 

U.S. v. Lee, No. 10-10403 (12-28-12) (Fisher with Thomas and Ikuta)

The 9th vacates a career offender sentencing and remands for reconsideration. The defendant was convicted of a drug offense (841). One of the predicates was a California "sell or transport" drug offense. He had pled to the statute. The government agrees that the state statute is not a categorical predicate offense, but would qualify, as the court found, under a modified categorical approach because the defendant pled to the statute as a whole, and therefore, to each possible act. The 9th rejected this argument, as it had in Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc). When there is an "or", it means that it could be one or the other, and therefore the government needs more proof, which was lacking here.

U.S. v. Phillips, No. 11-30195 (12-26-12) (Rakoff, Sr. DJ SDNY, with Schroeder and Gould)

What profits are there in fraud? This was the Santo, 553 US 507 (2008) question, which involved a ponzi scheme, and the charge of money laundering. A plurality of the Court (Scalia) held that proceeds should be defined as profits, rather than gross receipts, and as, under lenity, the defendant got a break. Stevens added a fifth vote that limited the analysis to the businesses, like gambling, where proceeds were necessary to run the enterprise. Here, the money laundering proceeds, under a plain error analysis, were not intrinsic to the fraud and not a central component. The gross receipts were not plowed back into the business to encourage other investors; it was used for personal profit. The 9th did reverse on a mail fraud conviction because the fraudulent act, buying an expensive watch ($30,000) was not part of the fraud, but part of the "reward" by the defendant. As for the prosecutor arguing closing that the defendant lied to police and lied on the stand, the 9th concluded it was not misconduct but proper. All the issues were reviewed for plain error because the defendant failed to renew his Rule 209 motion at the end of evidence. The 9th granted the government's cross appeal for forfeiture, holding that a jury verdict was not required for the money seizure.