Thursday, November 16, 2006

US v. Reina-Rodriguez, No. 05-10475 (11-15-06). In a 1326 case, the 9th holds that a Utah burglary is an aggravated felony. This may seem simple but it took some fancy footwork and, one could argue, specious reasoning, to reach that result. The defendant had plead to burglary in the second degree. The information had lined through "aggravated" burglary and "first" as in degree. This was important because, under state law, attempted agg burglary is categorically not a crime of violence. The judgment was for burglary in the second degree. The 9th ignored the fact that statute and facts, both unaltered in the information, made it unclear whether the plea was to "attempted aggravated burglary" or "burglary of a dwelling," but the 9th used what it thought was "common sense" and reasoned that it was burglary of a dwelling because "aggravated" was lined out despite the factual basis being unclear and the statute open for interpretation. In sentencing, the 9th also affirmed a sentence as reasonable in spite of the court saying, in effect, that it could not go lower because the government had to have uniformity in its fast-track pleas. The trial court did note that the defendant, by pleading straight up, kept his appeal, but it is a catch-22 because, since he kept his appeal on the aggravated felony issue, he must be punished for not accepting a deal.

US v. Zakharov, No. 03-50214 (11-15-06). Ahoy mates, this is a Maritime Drug Law Enforcement Act (MDLEA) case, which allows the Coast Guard to exert criminal jurisdiction on the high seas. This Belizian ship was stopped with 9200 kgs of cocaine. (The opinion drops a footnote, for no real purpose, noting that this was one of the largest seizures in US maritime history, citing a White House press release. Was that necessary?). The case revolves around whether the constitutional nexus had to be proved to a jury under Apprendi. The constitutional nexus is a decision by the court whether the court could exert jurisdiction because the drugs were headed to the US. The 9th upholds a "minimum contacts" approach, and finds that it is the court's call, although facts had to be proved that supported the exercise. This is a closer question than one would think, especially given the interplay between sovereigns and admiralty. The 9th then held that the facts supported the finding. Apprendi is apparently not seaworthy.

Fernandez-Ruiz v. Gonzales, No. 03-74533 (11-15-06). On remand from an en banc court, the 9th holds that Arizona's Revised Statutes 13-203 and 13-3601, involving misdemeanor assaults, are not crimes involving moral turpitude. These statutes do not have the wilful intent nor type of injury that is necessary for domestic assault to be categorically an offense involving moral turpitude.


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