1. United States
v. Lee, No. 13-10517 (5-6-16)(Hurwitz with Bea; Ikuta dissenting). The 9th
sidesteps whether Johnson applies to
the Guidelines. In this career offender
sentencing case, the convictions pre-dated Johnson,
and under pre-Johnson precedent, were
not crimes of violence under the residual clause. The sentence is vacated and remanded. Ikuta in a spirited dissent argues that the
majority should have applied Johnson
to this case. Whether Johnson applies to the Guidelines must
wait until the Supremes weigh in or another 9th case presents the issue.
The decision is here:
2. Rishor
v. Ferguson, No. 14-36071 (5-6-16)(Tallman with Hawkins and Lefkow, Sr
D.J.). Using Fed R Crim P 59(e) allows for motions for reconsideration but it
is not a vehicle for new claims. The
petitioner here did not exactly ask for new claims, and therefore the district
court did have jurisdiction. However,
the district court, in granting relief, failed to give AEDPA deference to the
state courts' determination that the petitioner validly waived counsel and that
double jeopardy was not violated. The
9th reversed the habeas relief.
The decision is here:
3. United
States v. Vega-Ortiz, No. 14-50100 (5-6-16)(Rawlinson with Kleinfeld and
Nguyen). This is a 1326 case. The defendant argued that his motion to
dismiss the information should have been granted as his underlying deportation
was invalid. He argued that the
underlying conviction for possession for sale of a controlled substance under
Cal. Health & Safety Code 11378 was not an aggravated felony. The 9th held it was. The statute (11378) is divisible. As such, a modified categorical approach could
be used. The defendant fails to show that
the exclusion of a federal product containing meth did not make this statute
overbroad.
The decision is here:
posted by Jon Sands at 5/06/2016 04:10:00 PM
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