Wednesday, December 21, 2005

US v. Menyweather, No. 03-50496 (12-16-05). The 9th comes out with an important analytical framework in determining what is a "reasonable" sentence. The defendant was an admin employee at the US Atty's office in LA, where over the years she embezzled between $350,000 and $500,000. (No wonder they have such trouble finding Brady material!) Defendant was psychologically evaluated and found to be suffering from diminished capacity and that she had extraordinary family responsibilities (single mother in extenuating circumstances). This was a Judge Real case. He departed eight levels and placed the defendant on probation. It was remanded twice in unpublished opinions, and this is the third appellate review. The 9th upholds the departure. Graber, writing the opinion, uses a highly deferential "abuse of discretion" standard for the lower court's judgment. Setting out the Booker analysis, with the 3553 factors, the 9th turns to pre-Booker precedent to approve the bases of departure under the guidelines (diminished capacity and family responsibilities). The 9th state s that it may have viewed things differently, but that abuse of discretion weighs in not second guessing the court, especially given the fact-finding and prior precedent. The 9th also states that any error is rendered harmless under Booker and the advisory guidelines. In dissent, Kleinfeld argues that the 9th has abdicated its review responsibilities, and that the sentence is unreasonable.
Steve Kalar's "Case of the Week" analysis is instructive. This case provides a framework on how to argue for departures, using the guideline system and the other 3553 factors. It is important to be sensitive to the fact though that this is a "straddle" case (decided pre-Booker), and the 9th was using pre-Booker precedent to justify the sentence. This leads to the tension of almost assuming that a guideline sentence is in itself "reasonable" which is a position defense counsel have been fighting. The preference is that the guidelines are but one factor in a constellation, and that the reasonableness is not ordained by the sentence being a guideline one. There is also a concern that the deferential standard of review could undercut review of a bad sentence (beware of what one wishes). In that case, a rereading of the dissent would help.

US v. Speelman, No. 04-30067 (12-16-05). A plea agreement drafted by the US Atty Office in Montana stated that the defendant waived his right to challenge the conviction or sentence in a post-conviction proceeding. The defendant plead to several child porno and sex abuse charges and then appealed. The waiver language was found to only apply to post-conviction, and not to direct appeal. The gov't failed to put in the obvious, and so was out of luck, at least for the jurisidiction argument. The 9th goes through an analysis of what is meant by "post-convic tion" and that it is essentially habeas and the extraordinary writs. The gov't should have used tighter language. However, on the merits, the 9th finds that the court didn't improperly use the various cross-references, and could in fact use cross references for porno that the court in fact had no jurisdiction over as relevant conduct. There didn't seem to be a challenge for the standard of proof, which, it can be argued, could rise to clear and convincing if various factors are met under 9th precedent ( de Meza and Hooper).

US v. Willis, No. 04-10079 (12-19-05). This is another "Whren-ching" decision involving a traffic stop. The defendant made a sharp turn on a Las Vegas street, accelerated,a nd stopped before an apartment. This caught the attention of a police officer, who noted that there was a "flag" on the license plate for a missing person. Defendant got back in the car, supposedly made an illegal U-turn, accelerated a couple blocks and stopped again. The defendant got out, the police asked if he had "anything" they should be concerned about, and the weapon was found on his person. He was a prohibited possessor. The magistrate judge and district court found there was no legitimate traffic stop, and sidestepped the credibility issue of the officer's testimony as to the driving. They found the basis for the Terry stop proper under the "community caretaker function" or the "emergency aid" doctrine, because of the missing person report (she was a girlfriend who was in the apartment and not at all missing). The 9th tortures these facts in an opinion by Bybee, finding that there was indeed a traffic stop, and so Whren applies. Because Whren allows a traffic stop when it is probable that an officer believes a traffic violation occurs, the questioning about a gun was allowed. The 9th focuses on the erratic turns, the acceleration, and the supposedly illegal U-turn. In dissent, W. Fletcher take s the majority to task, arguing that they find a traffic stop when the two triers of fact, the mag judge and the district court, did not, and that the officer had to have probable cause that a violation occurred, and that standard wasn't met. First, the officer never specified what traffic violations took place (the Nev. statute allows safe U-turns), and the supposed erratic driving didn't seem to have occurred in the space and time where this occurred (a 4 block area). Moreover, there were real questions of credibility between the defendant and the officer. It appears that the defendant may be the n more credible. Fletcher concludes that there reasoning expands what is a permissible traffic stop to something with no standards.

US v. Hernandez-Hernandez, No. 02-30429 (12-16-05). The 9th considers a case remanded from the Supremes in light of Booker. This is a 1326 illegal reentry. The 9th (Tallman) makes short shrift of the elements challenge. It gets interesting though when the 9th finds that Shepard's modified categorical approach allows a court to consider a pleading filed by the lawyer on behalf of the client challenging the facts in the charge. In California this challenge is known as a 995 Motion, which takes the facts as true for challenging a charge. In the subsequent change of plea, the parties stipulated to the facts set forth in the 995 motion, and the court asked counsel if that was the basis of the plea. Counsel said "yes." The defendant did not affirm. Yet, this is enough to be used for a false imprisonment conviction as an agg felony (it is one of those overinclusive statutes). In dissent, Kleinfeld (yes, Kleinfeld) argues that the majority misinterpreted Shepard, and that it had to be read narrowly for any modification. Such modification of a categorical approach needed to be a plea agreement, a transcript, or facts that the defendant admitted. Here, the pleading was lawyer drafted, and lawyer stipulated. The majority counters by citing cases where a lawyer's stance is taken to be the defendant's but the dissent replies that in this instance, it must be just the few instances identified in Shepard. The decision also finds that "threat to harm" is not the same as "disorderly conduct" given the different elements and the different penalties (the former is a misdemeanor and the latter a petty) for guideline counting purposes.


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