Thursday, March 15, 2007

US v. Lopez, No. 05-30347 (3-12-07). The defendant here was arrested as he fit the description of a suspect who tried to shoot at police. He was driving a car that was supposedly connected with the car driven by the suspect. Upon arrest, it was found he was not the suspect. Yet, the 9th held that the police had probable cause to arrest defendant as an accessory to another crime (hindering or obstruction), and so, while in custody, defendant's consent to the search of his car was good. The search yielded drugs and a gun. The denial of the suppression motion was affirmed.

Robbins v. Carey, No. 05-17131 (3-12-07). In the absence of a request from an unrepresented petitioner, the district court is not required to consider, sua sponte, the option of staying and abeying a habeas petition that is "mixed" with both exhausted and unexhausted claims. The decision is controlled by Plier v. Ford, 542 US 225 (2004) and Rhines v. Weber, 544 U.S. 269 (2005).

US v. Zolp, No. 05-50882 (3-13-07). The 9th (Smith joined by Kleinfeld and Fisher) vacate and remand a sentencing because the court calculated the value of loss erroneously. The defendant was involved in securities fraud (the old "pump and dump" scheme, where stocks are artificially extolled, and then sold before the truth comes out). The company here was New Energy. In calculating loss, the court, at the urging of the government, valued the stocks as "worthless" after the fall. The loss was the difference between what the stocks were sold for and their worth, which the court valued at zero. The 9th concluded that the value was not zero, because the company had some value. The finding of worthlessness was clearly erroneous. The 9th remanded, but also held that the substantial assistance motion was properly taken as a 3553 factor for a reasonable sentence and did not have to be in the framework of the guidelines.

Congrats to AFPD Elizabeth Newman (C.D. Calif -- Los Angeles) for the sentencing win.

Summers v. Schriro, No. 05-16650 (3-13-07). The 9th (Fletcher joined by Rawlison and Selna) held that under AEDPA, Ariz. R. Crim. P. 32 review of guilty pleas was an "of right proceeding" and a form of direct review. This means that AEDPA's one year statute of limitations did not begin to run until the conclusion of the Rule 32 proceedings and the review.

US v. Parry, No. 05-30522 (3-14-07). The 9th (Graber joined by Reinhardt and Lew) held a prior predicate conviction, for ACCA purposes under 922(g), is determined by the statutory maximum of the statute and not by the guidelines. This was an Oregon case, although the 9th looks to precedent in US v. Murillo, 422 F.3d 1152 (9th Cir. 2005) where, under a Washington statute, the 9th concluded that a stat max is the one set by statute and not by guidelines in a 922(g) case, even under Blakely.


Post a Comment

<< Home