Monday, November 05, 2007

U.S. v. Gooch, No. 06-30645 (11-1-07). The 9th holds that "police possessing a valid bench warrant for the arrest of a person who has failed to appear may enter the person's residence to the extent necessary to execute the warrant." The police stopped a car and while investigating, a passenger, known to the police from a prior fled. The police learned there was a warrant for him for failure to appear, and so went to his address. The police entered the apartment listed on the warrant, and in the search found evidence of drugs in the bedroom and in the room rented by the defendant here. This lead to a warrant being issued to search the apartment, which was done later, and guns were found in the defendant's bed. The 9th took the approach of the 2nd Circuit that a neutral magistrate issued a warrant for probable cause for an arrest, and that satisfies the requirement of Payton 445 U.S. at 603.

U.S. v. Gonzales, No. 04-30007 (11-5-07) (en banc). The 9th, sitting en banc, clarifies that a suspended sentence is not a term or sentence of imprisonment. It makes clear that the language "term of imprisonment" in USSG 4A1.2(c)(1) refers only to certain non-felony sentences for which the defendant actually served a period of imprisonment. This is supported by the commentary and language of the Guidelines as a whole. In dissent, Ikuta, joined by Bybee and Bea, argue that the terms "sentence of imprisonment" and "term of imprisonment" must mean separate things and can be distinguished, especially as the latter refers to non-felony sentences. The dissent believes that the Commission knew what it was doing.

Congratulations to AFPDs Tracey Staab and Rebecca Pennell of the Fed Defenders of E. Wa. and Idaho.

U.S. v. Cope, No. 06-50441 (11-5-07). The defendant appealed the imposition of lifetime SR. He argued that it was unreasonable, and in addition that the conditions were not justified nor supported. The defendant had a prior child sexual assault when he plead to possession of child pornography. The court sentenced him to 120 months and imposed lifetime SR, with special conditions of various sexual testing and requirements to take medication. The 9th (Thomas joined by Fisher and Gould) held that lifetime SR was reasonable (the defendant was 58). The 9th reasoned though that the court failed to justify penile plethysmograph and Abel testing given the Weber decision, and the high rate s of error and other conditions that could be imposed. Likewise, the requirement to take all medication without specifying what medication, or for what purpose, was also overboard. The court needs to justify and explain the bases for its special conditions. The 9th also stressed that no notice was given and that was error as well because the conditions were not standard. The 9th, lastly, interpreted the plea as allowing the appeal because the lifetime SR was beyond the contemplation, arguably, of the plea and Guidelines at the time.


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