Monday, May 03, 2010

U.S. v. Coronado, No. 09-50154 (5-3-10) (Schroeder with Fisher and N. Smith). The precedential ripples from Begay v. U.S., 553 US 137 (2008) continues. In Begay, the Supremes held that under ACCA, gross negligence is not the same as "serious potential risk of physical injury to another." It held in the context of a DUI, that it did not. The language of serious potential risk is mirrored in the Guidelines 4B1.2. Here, the defendant received a +6 for being a prohibited possessor with a prior crime of violence. His prior was discharging a firearm with gross negligence. The 9th holds that the state statute had a provision for gross recklessness, and did not require an intent to harm. The gross recklessness is not the same as acting with purpose, violence, or aggression. The 9th joins other circuits that have considered this. The case is vacated and remanded for resentencing.

U.S. v. Rich, No. 08-30153 (5-3-10) (O'Scannlain with N. Smith and Woole, Sr. D.J.). The defendant died while his case for fraud -- a lot of fraud -- was on appeal. Since the appellate process had not been completed, his conviction and special assessment is vacated. What about restitution? There were millions ordered. That too is vacated. However, a receivership stipulation, entered into by the defendant prior to the conviction, remains in force.

U.S. v. Moreland, No. 05-30541 (Hug with McKeown and W. Fletcher). This is back on remand from the Supremes in light of U.S. v. Santos, 128 S.Ct. 2020 (2008) (money laundering). The 9th affirms the fraud convictions but reverses the defendant's money laundering convictions on counts 26 and 27 because the jury instructions did not require that the proceeds be profits. As a result, the sentence is vacated and remanded as well. All the other counts are affirmed.


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