Saturday, June 03, 2006

US v. Camacho-Lopez, No. 05-10455 (5-30-06). The defendant's 1326 conviction is reversed because he was erroneously told by the IJ that his convictions for vehicular manslaughter were crimes of violence and thus barred him from discretionary relief. The 9th holds that the Supremes in Leocal found a state DUI not to be a crime of violence, and the 9th applied this in Lara-Cazares v. Gonzales, 408 F.3d 1217 (9th Cir. 2005) to vehicular manslaughter. Because the defendant could have received discretionary relief, and because the IJ said that the "only" reason he was barred from relief were the categorized crimes of violence, prejudice has been shown.

Congrats to AFPD Cynthia Lie from the N.D. Ca and R&W atty Mara Goldman.

US v. Evans-Martinez, 05-10280 (6-1-06). In an important post-Booker sentencing decision, the 9th holds that if the court intends to depart from the advisory guidelines, notice still must be given. The 9th reasons that the guidelines are one factor to consider, and that their calculation must be correct. As such, if the court would intend to depart from them, it must comport with Burns and give notice. "Gotcha!" is not good enough and Booker advisory guidelines should not cloak this intent.

US v. Rios, No. 05-50000 (6-2-06). THIS IS AN IMPORTANT 924(c) DECISION. The 9th held that possession of a firearm is not the same as "possession in furtherance" of an offense. the two are distinct. The facts are important. The defendant was part of a drug conspiracy that was busted. He and his codefendants (family members) had drugs and cash and documents at locations. At the defendant's residence (a motel), there were documents related to the conspiracy, and hidden, a sawed off shotgun. There was no ammunition. Significantly, there were also no drugs. The evidence from the cleaning crews was that they never saw drugs. The manager did say that he was visited at night, sometimes late, but he never saw drugs. The 9th (Berzon) held that it insufficient evidence to convict the defendant of a 924(c). The weapon was not in furtherance, and the fact that the defendant possessed a weapon at a different location from the drugs and cash was an insufficient tie. the 9th also found insufficient the "expert" evidence of drug traffickers and their proclivity for weapons. There must be a connection and moreover, that the weapon was in furtherance; this means to advance or facilitate. The conviction was vacated and the case remanded for resentencing.

The importance is that the gov't must show a tie and a furtherance and not simply that the gun was somewhere, or sometime, in possession. The 924(c) charge is still a heavy hammer, but its striking has been limited somewhat to the nail of furtherance of drugs dealing. See Steve Kalar's "Case of the Week" for further analysis.


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