Tuesday, November 14, 2006

US v. Morales-Perez, No. 05-10115 (11-13-06). In a 1326 appeal, the 9th (Tallman joined by O'Scannlain and Goodwin) applies a Taylor categorical analysis to hold that under California statute, "purchase with intent to distribute" is a drug trafficking offense and so gets the agg felony Guideline enhancement. The 9th concludes that the federal definition of drug trafficking render it insignificant whether the defendant possessed the drugs with intent to distribute, or purchased them with than intent.

US v. Martinez-Martinez, No. 06-10015 (11-14-06). A person's home may be a residential structure, but is a residential structure always a home? This question, with implications for the 16 level agg adjustment for a "crime of violence," in a 1326 case, was at issue here. The 9th construed an Arizona statute that criminalizes discharging a firearm at a residential structure. The harm at firing a home is clear; but what if the residential structure is not inhabited, is vacate, or is still being built? The 9th (Larson joined by Rymer and Thomas) hold that it is not a "crime of violence" under Taylor's categorical approach, and a modified approach still provides no further basis of facts to show that it was an inhabited house. This opinion, very thorough and comprehensive, describes Taylor, the 9th's precedent in Cortez-Arias, 403 F.3d at 1114, which construes a California statute about firing at an inhabited house, and then the difference with the Arizona statute, which also covers clearly uninhabited residential structures.


Post a Comment

<< Home