Wednesday, March 11, 2009

U.S. v. Hilgers, No. 08-30078 (3-11-09). The 9th affirms an above-guidelines sentence as reasonable. The offense was mortgage fraud, and the defendant manipulated lendees and lenders as a mortgage broker. His guidelines were 33 to 41 months. The PSR painted an unflattering portrait of a manipulator, and questioned his sincerity. The court considered the 3553 factors, and found that the defendant's ability to manipulate and secure trust from family, friends, and lenders called for a higher sentence, as well as his past criminal history. The sentence was five years which, while it was three years longer than the guidelines, was still reasonable under the circumstances and the analysis of the 3553 factors.

U.S. v. Hammons, No. 08-50329 (3-11-09). The 9th Circuit finds that in sentencing on a SR violation, the court must state the reasons for the sentence and must calculate the guidelines accurately. Here, the defendant had a drug conviction, and was on supervised release, when he suffered a DUI conviction. Probation recommended treatment. At disposition, the defendant said he was trying to deal with his problem, and wanted treatment. The court asked the defendant how driving drunk furthered his attempts at recovery and later stated that he (the court) always thought about the sentence. Under a plain error review, the 9th (Pregerson joined by D. Nelson and Singleton) held that more was needed. The court had to explain why the sentence was imposed, and explain how it fit with the purposes of SR, which is different from sentencing. A SR sentence for violation is not punishment for other crimes, but for a breach of trust. There is also a question of how accurate the SR report was as to the criminal history. The court had to assure that the guidelines were accurate for a SR violation. A good case that applies rigor to SR dispositions.

U.S. v. Krstic, No. 08-30022 (3-10-09). How to read a badly drafted statute? The 9th considers 1546(a) which makes it a crime to have a fraudulent immigration document, and arguably one that was authentic but secured by a false statement. The "arguably" is there because the statute does not make it clear whether Congress meant that the document itself had to be false or whether it wanted to broaden the scope. O'Scannlain, joined by Graber and Bybee, weigh the statutory interpretations, and decide that of course Congress wanted to have as broad a statute as possible. The 9th looked at former statutes, and policy, and parsed the words carefully. Oh yes, the rule of lenity did not apply. The defendant here was a Serbian soldier who got a valid immigration document, but who supposedly made a false statement in applying, stating that he never served in the military. The trial court had dismissed the indictment. The 9th reverses and remands.

U.S. v. Colson, 08-10282 (3-10-09). The 9th affirms that there is a lack of jurisidiction to review the decision by the district court's regarding a discretionary reduction of sentence under 18 USC 3582(c). U.S. v. Lowe, 136 F.3d 1231 (9th Cir. 1991) is still binding and is not overruled by U.S. v. Carty, 520 F.3d 984 (9th Cir. 2008) (en banc).


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