Monday, August 29, 2005

US v . Ortuno-Higareda

No. 04-10257 (8-26-05). "You gotta tell them" is the moral of this somewhat surprising decision. The 9th (Wallace) considers a defendant facing a SR violation for committing another offense: in this instance, an illegal return to the US. The problem with the violation and revocation, however, is that he got a time-served sentence on the offense (illegal reentry) which meant that he was whisked from the courtroom and handed over to the then-INS for deportation. He never got a copy of the standard or special SR conditions. The gov't argues that it was "understood." Well, the 9th wasn't going that far. The 9th considers through whether he was orally told about the conditions. A review of the transcript reveals that the defendant was advised of one special condition ("don't return illegally") but not the standard condition of not violating offenses. The petition to revoke only had the standard condition violation. In dissent, Rawlison argues that the warning about not returning illegally logically means that he was also apprised of not violating offenses, and so he should be considered to have been informed. The 9th shakes a finger at the gov't in not making sure that the defendant as told, and urges courts to make sure that the defendant is given copies. On a jurisdictional issue, the 9th considers whether a petition can be revoked without a warrant before the time expires. The 9th holds that a warrant is required to be filed before the time expires when the revocation is held after the term ends. That isn't the case here, where the revocation came when the term was still running.


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