Monday, June 28, 2010

U.S. v. Buzo-Zepeda, No. 09-50190 (6-25-10) (N. Smith with Schroeder and Fisher). This is a Sentencing Guidelines criminal history counting case. California has what is known as a Johnson waiver when it comes to state sentences. A Johnson waiver is when a state defendant waives incarceration credit for pretrial custody in order for the state court to sentence him longer to jail. Why? The state law allows jail only for sentences of a year or less. This avoids going to the California prison system. Does a Johnson waiver, which pushes the ultimate sentence over 13 months (see where this is going) count as a sentence imposed of over 13 months. Yes, holds the 9th. The sentence is the time spent in custody in a sentence.

U.S. v. King, No. 50665 (6-25-10) (Gwin, D.J., with Nelson and Gould). This is an appeal from a SR revocation. There are a number of interesting issues, including one of first impression. The issue is whether a violation which occurs before a case is transfered from one district to another (ED Mich to C.D. Ca) can be used as a basis for revocation in the new district. Sure, says the 9th. If not, there are gaps in supervision, and the risk of violations without consequences. It also would conflict with two other circuits. The 9th also upholds conditions not to associate with felons. The 9th finds that such a condition is narrowed by the mens rea of knowing the persons are felons. Here, the PO told the defendant to avoid knowing felons. The 9th also upholds the condition of not communicating with those in prison.


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