Friday, July 07, 2006

US v. Clark, No. 05-10480 (7-5-06). This is a felon-in-possession case, where the 9th remands because the district court failed to make any findings regarding an adjustment for an obliterated serial number on the weapon that affected his guideline range. The 9th (B. Fletcher)denied a host of other sentencing challenges going to the sixth amendment, and reasonableness.
Of note in this opinion is the gov't's argument that the district court had in fact considered the facts concerning the serial numbers. It seems that the gov't tried to squeeze a finding out of selected statements taken out of context. In a concurrence, Kozinski takes the gov't attorney to task, saying of the argument that "government counsel was trying to pull a fast one." Kozinski admonishes the counsel to making unreasonable arguments, and chides them for not understanding that they cannot just make assertions, and play with the record. Lawyers just can't "pluck a few words from the middle of a sentence and pretend they say something very different from what they mean in context." This standard is especially true for gov't counsel concerned with "truth and justice." The case came from the District of Nevada. Gov't counsel is identified as DOJ from Las Vegas.

Hoffman v. Arave, No. 02-99004 (7-5-06). The 9th (Pregerson) grants a petition on IAC, and orders the state to reinstate a plea bargain to life. the petitioner was an accomplice in a brutal murder of a state informant. He was offered a life sentence, but counsel advised against it because the state system (Idaho) was similar to Arizona's with judge sentencing, which the 9th had found violated the sixth amendment in Adamson in 1988, and then overturned by the Supremes in 1990, only to be abrogated by the Supremes subsequently in Ring (many executions later). The 9th found that the advice to turn down the plea was IAC because the Adamson decision was being challenged and by no means certain, the state system had turned down the challenges previously, and the defendant had no real benefit from the rejection given the evidence. (In the background is the sense that the 9th was finally vindicated in Ring). The 9th found that the petitioner suffered from mental problems and handicaps, and the investigation and presentation of the mental problems in trial and at sentencing was ineffective, but there was no prejudice. State law (Idaho) severely limited the mental issue that could be presented, and the evidence was such that it was not prejudicial not to have presented it.

US v. Beng-Salazar, No. 04-50518 (7-6-06). This is a 1326 appeal. The defendant raised challenges in district court to the use of his priors under Alemendarez-Torres and under the sixth amendment. The challenge to Alemdarez-Torrres has been foreclosed by 9th precedent, but the constitutional challenge under Apprendi and Blakely preserved the Booker challenge to the guidelines, and as such, the sentence is vacated and remanded for resentencing rather than be accorded an Ameline remand. In short, raising the sixth amendment to the mandatory guidelines gets a new sentence without the Ameline "plain error" limited remand.

Kenna v. US District Court for the Central District of California, No. 06-73352 (7-5-06). This is another mandamus in the same case where the victims of a fraud demanded, and got from the 9th, the right to be heard at sentencing. In this mandamus, a victim now wants disclosure of the defendant's PSR. the court said "no" but would release portions. The victim took it up, and the 9th also said "no." The 9th holds that Crime Victims Rights Act, 18 USC 3771 fails to confer a general right for victims to obtain the PSR. The reasons offered moreover do not outweigh the need for confidentiality. Kenna refused the disclosure of specific portions. The mandamus is denied.


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