1. US v. Crum, No. 17-30261 (8-16-19)(Per curiam w/Fletcher & Bybee; dissent by Watford). The 9^th vacated and remanded for resentencing in an Oregon case where the district court had found that delivery of meth was not a controlled substance offense under 2K2.1(a)(4)(A). The issue is whether “solicitation” makes the state statute overbroad. Majority finds itself bound by prior precedent, Shumate, 329 F.3d 1026 (9^th Cir. 2003), which had construed   “delivery” as including solicitation. The reliance by the district court on Sandoval v. Sessions, 866 F.3d 986 (9^th Cir. 2017), was misplaced. Sandoval concerned drug trafficking under the Controlled Substances Act and not the Guidelines.  There are problems with the analysis in Shumate and also Vea-Gonzales, 999 F.2d 1326 (9^th Cir. 1993). The panel seems to suggest en banc review.

Watford, dissenting, would find the Oregon statute still overbroad. It criminalizes a mere offer to sell as a delivery.  A mere offer to sell is also not solicitation.

Tough loss for AFPDs Ted Blank and Robert Schwarz of the Federal Defender Services of Idaho (Boise).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/16/17-30261.pdf

2. US v. Cano, No. 17-50151 (8-16-19)(Bybee w/Graber & Harpool).  This is a significant cell phone/border search case.  The defendant was arrested for carrying cocaine through San Ysidro’s POE. Following the arrest, a Customs Agent seized the cell phone and searched it: first manually and then using software that accesses all texts, logs, media, and application data.  The defendant’s motion to suppress was denied.

The 9^th reversed the denial of the motion and vacated the conviction. The 9^th held that searches may be conducted by border officials without reasonable suspicion but that forensic cell phone searches require reasonable suspicion. The 9^th clarifies US v. Cotterman, 709 F.3d 952 (9^th Cir. 2013)(en banc)  by holding that “reasonable suspicion” it means that officials must reasonably suspect that the cell phone contains digital contraband. The 9^th stresses that cell phone searches at the border, whether manual or forensic, must be limited in scope to a search for digital contraband.

Congrats to Harini Raghupathi of the Federal Defenders of San Diego, for this important win.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/16/17-50151.pdf