US v. Willis, Jr., No. 13-30377 (July 29, 2015)(Ikuta with Fisher and Paez). In a SR violation, what is the approach to determining whether uncharged criminal conduct is a "Crime of Violence" for grading purposes? It is an issue of first impression for the 9th. The 9th adopts the straightforward categorical approach crafted by Taylor, Deschamps, and Johnson. (1) The prosecution must prove by a preponderance of evidence that the defendant committed a federal, state, or local offense. (2) The categorical approach in Taylor is used to match the offense with a federal generic COV. (3) If the offense criminalizes conduct that is greater than the generic offense, is the offense divisible under Deschamps? (4) If the offense is divisible, is it a COV?
In this case, the district court failed to determine whether the offense of attempt or possession of a firearm was a COV. This is important under the recent Johnson case.
The 9th's approach conflicts to the more lax approach of the 2nd and 3rd Circuits. A potential circuit split is set up.
US v. Sullivan, No. 12-10196 (July 29, 2015)(Ikuta with Tallman and O'Connell). The 9th affirmed convictions for producing and possessing a sexually explicit video of an underage minor. The 9th found venue proper, and the statute constitutional, even for videos made intrastate. The 9th also held as reasonable, under the circumstances, the 21 day delay between the seizure of the defendant's laptop and the issuance of a warrant. The delay did not impact the defendant because he was in custody on parole violations. The 9th remanded for resentencing on the government's cross appeal. The gov't argued that the defendant should have gotten an obstruction adjustment because, as the trial court stated, his testimony at trial was "incredible". The trial court had sustained the defendant's objection to such an adjustment. This was error.