United States v. Rivera-Constantino, No. 14-10314 (Clifton with Duffy (DJ, SDNY); dissent by Paez) --- A majority of this Ninth Circuit panel held that a conviction under 21 U.S.C. § 846 for conspiracy to possess a controlled substance with intent to distribute was a "drug trafficking offense" that qualified for the 16-level upward adjustment in illegal reentry cases under U.S.S.G. § 2L1.2(b)(1)(A).

The illegal-reentry Guidelines provision includes "conspiring" to commit a "drug trafficking offense" as qualifying for the 16-level adjustment.  Relying on a prior decision in which the Ninth Circuit had held that the generic definition of conspiracy required an overt act, the defendant argued that his § 846 conviction didn't qualify because an overt act is not an element of § 846.  Notwithstanding the usual categorical analysis that applies, the panel majority concluded that the Sentencing Commission meant for § 846 crimes to qualify for the 16-level adjustment.  Accepting the defendant's argument would be "downright absurd," the majority said, because the Sentencing Commission would not have intended to exempt a federal drug trafficking crime from the 16-level adjustment.  Thus there was no need to rely on a generic definition of conspiracy, as would usually be the case under Taylor v. United States, 495 U.S. 575 (1990).

Judge Paez dissented from the decision not to apply the usual Taylor analysis.  For him, because an § 846 conspiracy does not require an overt act, while a generic conspiracy does, an § 846 conviction cannot qualify for a 16-level upward adjustment.  He left open the possibility that an § 846 conviction might qualify for the 8-level upward adjustment that applies to any other aggravated felony.

Kudos to Tucson CJA panelist Saul Huerta for his "creative" argument. 

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/08/19/14-10314.pdf

 

United States v. Chadwell, No. 14-30028 (Hayes (DJ, S.D. Cal.) with NR Smith and Owens) --- The Ninth Circuit affirmed a conviction and sentence for possession of a firearm by a person subject to an order of protection, holding that the trial judge properly allowed the jury to view a video exhibit during deliberations, and that the 4-level upward adjustment for possession of a firearm in connection with another felony applied because the defendant possessed cocaine and a firearm when he was arrested.

The trial lasted a single day.  During trial, a 19-minute video of the defendant's arrest, taken from a police car, was admitted as an exhibit and played for the jury.  The jury asked to see the video again during deliberations, so the judge arranged to have video equipment set up in the jury room.  This was proper, because the jury has traditionally been allowed to examine trial exhibits during deliberations.  Moreover, Fed. R. Crim. P. 43(a) did not require the defendant's presence, because the jury was viewing the evidence by itself, so no outsiders could potentially have influenced their deliberations. 

After the defendant was arrested, police searched his car and found cocaine and two handguns.  There was testimony at the trial that a confidential informant had bought drugs from the defendant a week and a half before he was arrested.  This evidence supported the 4-level upward adjustment under U.S.S.G. § 2K2.1(b)(6)(B) for possession of a firearm in connection with another felony.  Ninth Circuit precedent established an "emboldening" requirement, under which a gun always is connected to drug trafficking because possession of the gun emboldens the defendant to distribute the drugs.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/08/19/14-30028.pdf