Wednesday, December 13, 2006

US v. Peters, No. 06-50508 (12-12-06). Can a district court order that Peters' weekend sentence be borrowed to pay BOP's pall? The 9th said "no." The defendant here was on two years probation for assaulting a passenger on a plane when he was intoxicated (such a long flight). Part of the sentence required weekends in jail for the first six months and no drinking. Defendant violated that by blowing a .263 and then absconding from a halfway house. At sentencing for the probation violation, the court gave him 4 months custody and ordered credit for time served pretrial, but refused credit for time spent in custody during the probationary period (the weekends). The 9th held that the Supreme Court in Wilson clearly stated that awarding of credit was a BOP administrative function and that courts cannot order it. As such, the district court could not order credit for the weekends, nor award credit for time in custody pretrial.

US v. Luong, No. 05-50090 (12-12-06). The Luong and short of it: Leon's good faith exception does not prevent suppression for lack of probable cause. This case does contain a great excuse for lack of probable cause: the warrant was short because a police officer's broken thumb and sprained wrist prevented typing. Okay, maybe that wasn't the whole reason, but there was not much else. The police got a tip that the suspect, who was a chemist, was flying in from Hong Kong to LAX to set up a drug lab. The police followed another suspect who met with defendant, went to a house, looked around, and went to Home Depot to buy a hose. (A green lawn would raise the appraisal value?) The police had a lot of suspicion: the other suspect was being investigated for drugs; hoses are used for meth production; meth labs are in residences; the backyard led to the garage; etc. However, the warrant was pretty bare bones (the suspect chemist came, looked at a house, bought a hose, and a hose is used for vacuum pumps in meth labs). The search occurred and lots of meth was found. The only problem was lack of probable cause. The state courts suppressed, and so the Feds ran to district court, arguing the Leon "good faith exception." The district court found that the cops should have realized there was too little presented even for a good faith exception, and the 9th (Ferguson joined by B. Fletcher) agreed. The 9th stressed that all the post-warrant explanations -- backyards, hoses, reliability of informant, etc. -- could and should have been put in the warrant and affidavit (hence the excuse of the broken thumb and the limited typing...although there were various phone calls and others could have typed). In dissent, Callahan argues that good faith was met, and that the police were merely executing what had been blessed by a magistrate.

Carrington v. US, No. 05-36143 (12-13-06) & Tillitz v. US, No. 05-36144 (12-13-06). In an extraordinary opinion, the 9th (Pregerson joined by Noonan) recall mandates in two drug cases that became final 15 and 6 years ago. In these cases, the judge gave lengthy (approx 30 year) sentences because of the mandatory nature of the guidelines, but decried the shackling of discretion. After Booker, the defendants filed post-conviction motions (writs of audita querela because of unconstitutional sentences). The judge denied but asked sua sponte for the 9th to recall its mandate. In these opinions, the 9th agrees that post-conviction relief is not available and is foreclosed by precedent. However, it does accept the district court's invitation to recall the mandates. The 9th emphasized that these were extraordinary circumstances in which the court had foreshadowed the Booker decision and had railed against the guidelines, and that it was clear that the judge would grant a different sentence in his impassioned plea to the 9th to set matters right. The 9th finds that this falls under the Crawford test for recalling of mandates and so issues.

Vigorously dissenting, Callahan argues that these cases do not present the extraordinary circumstances that allow for recalling of a mandate. Post-conviction relief is foreclosed by precedent (Cruz) and Booker by itself does not justify a recalling of a mandate (King). These cases are long settled (15 and 6 years), and present no extraordinary circumstances vis-a-vis other defendants being sentences under the guideline regime at the time. Callahan cautions that the Supremes had reversed a previous grant of mandate in Calderon. She concludes that the decision granting relief conflicts with precedent, conflicts with other circuits, and is abuse of the court's inherent authority.

This is a case that could have widespread impact if district court judges had attacked the guidelines in previous sentencings and now start asking for recalls of mandates. It also demonstrates that the conscience of Booker nonetheless made cowards of the courts when it came to retroactive relief.

Congrats to AFPD Russ Leonard of W.D. Washington (Tacoma).

US v. Zepeda-Martinez, No. 05-50562 (12-13-06). In U.S. v. Cardova-Sandoval, 462 F.3d 1090 (9th Cir. 2006), the 9th applied Apprendi in 1326 cases to the use of a removal subsequent to a prior conviction unless admitted by the defendant or found beyond a reasonable doubt. Here, the 9th considers whether harmless error review applies when the issue was raised below. Using the framework of Neder v. U.S., and Washington v. Receuenco, 126 S.Ct 2546 (2006), the 9th concludes it does. The test is whether, beyond a reasonable doubt, the result would have been the same absent the error. The 9th finds that the record contains uncontroverted and overwhelming evidence of defendant's removal.


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