1.     US v. Jauregui, No. 16-50429 (3-22-19)(Berzon w/N. Smith; concurrence by Berzon; dissent by Castel). In a fact-specific opinion, the 9^th orders a resentencing in a conspiracy to import appeal. The resentencing was the result of the court sentencing the defendant for conspiracy to import meth, when the facts admitted at the sentencing was only for conspiracy to import marijuana. That conviction had a maximum of five years.  The issue was at the colloquy, the defendant only admitted he entered into a conspiracy for importing marijuana; he withdrew; and then he took the car over the border, when there was a reasonable foreseeability that it might contain meth. He admitted no facts of a meth importation conspiracy. Ninth Circuit precedent, US v. Banuelos, 322 F.3d 700 (9^th Cir. 2003), requires admission of the object by the conspirators. A court under Apprendi cannot import facts of conspirators. The error was plain, and required a resentencing. The guilty plea remains. 

Concurring, Berzon argues that Banuelos muddied the conspiracy waters by using Guidelines and sentencing principles of “reasonably foreseeable” for the mental state required for conviction of conspiracy. This mental state of agreeing to the offense of conspiracy is distinct too from the substantive crimes under conspiracy (Pinkerton).

Castel argues there was no plain error.  If there is error, then the conviction must be vacated as the conspiracy to import marijuana was never charged.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/03/22/16-50429.pdf

2.     Troiano v. US, No. 18-15183 (3-22-19)(Tallman w/Bybee and N. Smith). The 9^th considers the standard of review in a 2255 remedy proceeding.  The 9^th explicitly holds that the standard of review applicable to a district court’s determination of an appropriate remedy in a 28 U.S.C. § 2255 proceeding is abuse of discretion. This case involved a post-Johnson 2255 proceeding. The district court resentenced on only one count of four. The 9^th finds no abuse of discretion in not holding a complete resentencing as only one count, separate, was impacted by Johnson.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/03/22/18-15183.pdf