Thursday, April 14, 2016

1. US v. Parnell, No. 14-30208 (4-12-16)(Fisher with Berzon, Watford concurring). The 9th vacated an ACCA sentence and remanded because the previous Massachusetts conviction for armed robbery is not a "crime of violence" under a categorical analysis. Under the state statute, minimal nonviolent force, or even a threat of force, like in purse snatching, can be armed robbery if the victim is cognizant of the force. Because the degree of force required to commit armed robbery is immaterial so long as the victim is aware of it, the state statute does not have the element of use, or threat of use, of physical force against another.

Watford, concurring, notes that armed robbery would seem to qualify as a "crime of violence," but for the oddities of Massachusetts law: it abandoned the common law definition of robbery. In the state, a defendant can be convicted of robbery without force or intimidation. In addition, a defendant can be guilty of robbery so long as he has an weapon, whether there is a nexus or not.

The decision is here:

Congrats to Robert Schwartz and Melissa Winberg of the Federal Defender Services of Idaho (Boise).

2. US v. Rosales-Aguilar, No. 14-50315 (4-12-16)(Kozinski with O'Scannlain and Bybee). The 9th affirms two counts of conviction for attempted illegal reentry. The 9th also stayed further proceedings pending a Supreme Court sentencing decision.

The defendant tried to enter twice, three days apart. The first was at the San Ysidro POE; the second was when he was found hiding under a bush. The defendant argued that he lacked the specific intent to reentry because he was high on meth and heroin at the time. The defense expert, a psychiatrist, testified that the defendants told him he had no memory. The expert was impeached with the non-Mirandized statements of the defendant.

On appeal, the 9th found no error. The use of the statements impeached the defendant's statements, and did not attack the veracity of the expert. The statements of the defendant, although not Mirandized, were found to be voluntary and reliable.

The 9th quickly disposed of other issues, such as destruction of evidence, vindictive prosecution, and sufficiency of the evidence.

At sentencing, the defendant was given a drug trafficking enhancement. The 9th held that the state statute was not categorically a drug trafficking offense, since it permits transportation for personal use. The Supreme Court however recently granted cert on whether the modified categorical approach can be used with a divisible statute. The defendant here had a prior that was possibly divisible (a California trafficking statute). Since the Court's decision will resolve circuit splits, and the 9th's approach, the panel differed resolution of the issue pending the Court's decision.

The decision is here:

3. US v. Argueta-Rosales, No. 14-50384 (4-12-16)(Fisher and Foote, D.J., with a partial concurrence and dissent by Bybee). The 9th vacated a conviction and revocation and remanded. The defendant argued that he was in a delusional state, and believed he was being chased by Mexican gangs. He only wanted to be imprisoned. The trial court had used only a "knowingly" mens rea instead of specific intent. Under Lombera-Valdovinos, 429 F.3d 927 (9th Cir. 2005), a defendant who attempted reentry to be imprisoned and was under official restraint can not be convicted. The error was not harmless, as the evidence was contested. Bybee concurred in the judgment and dissented, arguing that Lombera-Valdovinos was wrongly decided.

The decision is here:

Congrats to Doug Keller of the Federal Defenders of San Diego.


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