Monday, June 20, 2011

U.S. v. Park, No. 09-50609 (6-17-11) (Wallace with Graber and Mills, D.J.).

In a felon in possession case and sentencing, the 9th considered a prior conviction and holds that California's first degree burglary statute is a crime of violence pursuant to the residual clause of USSG 4B1.2(a). See Cal. Penal Code 460. The 9th so holds because the statute requires entry into an inhabited dwelling with an intent to commit a theft or felony. In a two-step analysis of the categorical approach, the first step presents a serious potential risk of physical injury; and the second step is roughly similar to enumerated offenses in the Guideline's residual clause's first section. Since the district court held that the offense was not a crime of crime, the sentence is vacated and remanded for correct Guideline calculation.

U.S. v. Wiles, No. 10-30224 (6-17-11) (Tashima with Kleinfeld and Silverman).

The 9th holds that a prior conviction for attempted sexual assault under Montana law is a predicate offense that triggers an enhanced sentence. This case extends U.S. v. Sinerius, 504 F.3d 737 (9th Cir. 2007), which held that a prior conviction for sexual assault enhanced a federal conviction for transporting or receiving child pornography.


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