US v. Faagai, No. 15-10621 (9-7-17)(Bea w/Hawkins; Kozinski dissenting).  A friend of a friend was a drug dealer.  Does meeting with him four times, with cryptic messages and at out of the way places, create probable cause under a totality of circumstances to stop and search a truck?  A majority of the panel says "yes." The opinion focuses on the various drug dealings of the friend.  There is no doubt he was involved in trafficking.  The connection with him, the "code" used for drugs, and the out of way, albeit legitimate places (Costco was 24 miles away and another one was closer) also supports a totality of circumstances finding probable cause.

Dissenting, Kozinski scoffs at the connections.  Agents wiretapped the dealer, but heard no explicit reference to drugs.  The agents trailed and surveilled the meetings but never saw drugs nor money exchanged.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/07/15-10621.pdf

US v. D.M., No. 16-50243 (9-7-17)(Callahan w/Wardlaw & Kendall).  This is a sentencing reduction case as a result of a USSG amendment.  The 9th vacates a denial of a motion to reduce a sentence and remands.

The 9th holds that nothing in the Guidelines or comments precludes a court from considering various departures in a prior sentence when resentencing a defendant under USSG 1B1.10(b)(2)(B), which is an exception to 1B1.10 (sentence reduction due to amendment).  Here, the defendant received departures for cooperation and for "fast track." if the court only considered cooperation in a resentencing, the guideline range is not lower after the amendment (reducing the drug level by 2).  If the fast track is considered, then it would be lower.

The 9th examines the Guidelines and comments and favors the interpretation to consider all departures applicable to the previous sentence, once substantial assistance is triggered.  This approach is consistent with the purposes of treating cooperators favorably, promotes conformity, and avoids complexity and litigation.  The government and defendant both favor this interpretation.  The defendant is not "gaming" the system as the court will have the final say.  It is also supported by the rule of lenity.

The 9th sides with the 7th Circuit in this interpretation.  This does set up a circuit conflict with the 6th.

Lastly, although considered initially, this appeal is not moot.  The defendant had already been released from custody but was still under SR.

Congrats to Jim Fife of the Federal Defenders of San Diego.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/07/16-50243.pdf