Wednesday, January 03, 2007

US v. Nobriga, No. 04-10169 (12-29-06). The 9th reverses a denial of a motion to dismiss an indictment for possessing a firearm after having been convicted of a misdemeanor domestic violence offense. The defendant had been convicted of a misdemeanor for abuse of a household member under a state (Hawaii) statute. He pled "no contest." He argued before the district court that the conviction did not fall under the definition of 922(g)(9)'s misdemeanor crime of violence. The trial court had held that the offense was not a categorical crime of violence, but the charging documents and plea made it so. The 9th first held that the element of "domestic relationship" did not have to be listed in the state statute. The controlling decision is US v. Belless, 338 F.3d 1063 (9th Cir. 2003). However, the 9th also held that the statute could also take in "reckless" use of force and recklessness is not an intentional use of force so as to bring in under a "crime of violence." This aligns with other circuits' interpretations. As such, the motion to dismiss should have been granted.

US v. Silva, No. 05-50871 (1-3-07). The defendant gets an Ameline remand. Although the sentencing court shrugged off the request for a resentencing, the defendant's smart lawyer has now asked for a chance for allocution, a last cry to change what the guidelines had written in fast-drying unfair concrete. Surely the court would grant that, and allocution should be granted in a limited remand situation. What could be unfair about that? The defendant looks forward to the chance to stand before the court, and in a halting, humble voice, say why his heart aches, say how the drug rehabilitation allows him to see his future clearly and not obscured in a drug hazed furtive search for the next hit. It is a chance, he thinks, to express his pain, his acceptance, and to retrace the steps he has taken, and not just the steps he has walked back and forth in his cell. Maybe, just maybe, the court's heart can be touched, an Ameline resentencing granted, and the sentence lightened just a little. Then the letter comes from his lawyer, with a cite to this case (Silva), in an opinion by O'Scannlain, that such sentiments are beside s the point in an Ameline remand. What does allocution have to do with the previous sentence imposed pre-Booker? After all, the court, reading cold paper, can decide that an Ameline remand sentence would not be different. In such a way, "i"s can be dotted on the procedure without having to look at a defendant's eyes. An Ameline remand gives the court a chance to consider whether a sentence would be different; but there is no right by the defendant to beseech, beg, or berate. Ameline is narrow, and neither federal rules nor due process require such an opportunity. The defendnat reads the letter, and balls it up, throwing it against the wall that he will stare dumbly at for the rest of his sentence. The silent tears will flow that night and in the nights to come.

Garcia-Jimenez v. Gonzales, No. 03-74625 (1-3-07). Petitioner gets only one bite out of the relief apple. If the petitioner gets waiver relief under former 212(c for certain removable offenses, he cannot also get cancellation relief under 1229b, even if the waiver and cancellation would occur at the same proceeding. The 9th (Silverman) follows the plain language of the statute and the intent that any receipt of waiver relief forecloses cancellation relief. This is the same result as the 8th Circuit.

Morales v. Gonzales, No. 05-70672 (1-3-07). Petitioner seeks relief on the denial of an asylum claim because she is transgendered and may suffer torture if deported back to Mexico. The 9th (Thompson) grants relief and remands because the BIA erred in using the recitation of facts in a state court opinion when those facts were not the basis of a state conviction and other facts used in a sufficiency of the evidence analysis.


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