Monday, July 30, 2007

US v. Sperow, No. 05-30483 (7-26-07). Crossing "t"s and dotting "i"s, especially when it comes to notices of enhancements. Here, the defendant faced an enhancement and a mandatory minimum of 10 years because he had a prior drug conviction and the weight of marijuana was over 100 kilograms. A notice was filed stating both grounds. Before trial, the marijuana was reweighed and it came in at 98.5 kilograms. The government then filed a notice striking "the second paragraph of the indictment" which contained the enhancements because of the weight. At trial, the court questioned whether this affect sentencing, and the government stated that the maximum the defendant faced was 20 years (the non-enhanced stat max). The government also agreed on this interpretation when the PO contacted them, but then changed its mind, and argued that the striking only went to the weight, and not the prior. The court went along and sentenced the defendant to the mandatory 10 years. On appeal, after disposing of a post-indictment delay issue, the 9th reversed and remanded. The 9th (Fisher joined by Ferguson) concluded that the government's actions could be read both ways, but the government had so acted, and had taken the position that it both bases. Its strike had to be given force. The government's reliance on Severino was misplaced, because notice there went to identifying which conviction was to be relied upon rather than an ambiguous filing here, and the actions of the government that indicated the striking of the enhancement. In dissent, O'Scannlain argues that the defendant had fair notice, and the district court's determination of such should be affirmed.


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