Wednesday, August 02, 2006

US v. Almazan-Becerra, No. 05-10056 (8-1-06). The 9th vacated a 1326 sentence and remanded. First, the gov't conceded that a previous 1998 conviction did not trigger a 12 level enhancement and so the extent of a downward departure from an erroneous guideline level was error and an abuse of discretion. As for a 1995 conviction, the 9th (Wallace) held that a plea and sentence to transporting OR selling OR offering to sell marijuana did not unequivocally establish that the conviction was for drug trafficking. The charge, plea and sentence all were in the disjunctive, and the 9th stressed that this lead to a modified Taylor/Shepard analysis. The defendant had stipulated to the police report in the prior and on remand the district court would have to determine if this satisfied Shepard.

Lara v. Ryan, No. 05-16055 (8-1-06). The 9th (B. Fletcher) affirms a denial of habeas where the jury was instructed properly on one theory of expressed malice and improperly one another theory of implied malice in an attempted murder case. Under state law (Calif.), attempted murder requires specific intent and express malice. The jury was incorrectly given conflicting mental standards The 9th acknowledged that it must grant relief unless there was absolute certainty that the jury convicted under the proper theory, and here the 9th had such certainty exists. The jury made explicit findings as to the premeditation of the acts. The 9th rejects the state's argument for a harmless error analysis, but still denies relief because of the certainty of the jury's verdict.

Stark v. Hickman, No. 03-17241 (8-1-06). The petitioner was charged with first degree murder. he raised an insanity defense, and so the trial was bifurcated under state practice into a guilt phase and a sanity phase. In the guilt phase, the jury was instructed that it had to presume that the petitioner was sane. The 9th held this violated due process and that the error was not harmless. The burden was shifted on an essential element (intent) and the jury was given no limiting instructions.


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