Wednesday, May 16, 2007

US v. Gomez-Mendez, No. 05-50729 (5-14-07). The 9th (O'Scannlain joined by Kozinski and Bybee) affirm a determination that California's "statutory rape" conviction was a crime of violence for 2L1.2 (illegal reentry) enhancements. Cal. Penal Code 261.5(d) makes it an offense if a person 21 or over has sex with a minor under 16. The 9th has no trouble finding it is a 'crime of violence" and finds it is not overbroad because it lacks the affirmative defense of "reasonable belief of age." No matter," declares the 9th because statutory rape is, in most states, a strict liability offense. The 9th also finds no merit in an argument that distinguishes between principal, aider or abetter, or accessory. The 9th does remand for the district court to determine if the government acted without any legitimate interest (irrationally) in refusing to move for a 3rd point. The defendant plead straight up to the indictment of 2L1.2.

US v. Hoang, No. 05-10669 (5-14-07). T he 9th (Wardlaw joined by Trott and W. Fletcher) hold no fourth amendment violation occurs when the Fed Ex package suffers a temporary diversion. The fourth amendment possessory interest is in timely delivery; here, the brief diversion or delay did not affect that interest. There was also no Fourth Amendment issue in the dog sniff of the package, which was random.

US v. Carson, No. 06-30387 (5-15-07). The 9th (per curiam) holds that Washington's second-degree assault statute is a "crime of violence" for the career offender enhancement provision under USSG 4B1.1. The second degree assault statute punishes the knowing infliction of bodily harm and under a categorical approach under Taylor, it qualifies as a crime of violence.


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