Tuesday, November 22, 2011

U.S. v. Tado, No. 10-10144 (11-21-11) (W. Fletcher with Tashima and Berzon).

A defendant cooperates after sentencing, and the government moves for a Rule 35 reduction. In fashioning a sentence, does the court only look at the substantial assistance or at all the 3553(a) sentencing factors? Here, the defendant argued, after cooperating and testifying at various trials against former confederates, that the court should only look at his cooperation, and not at his lengthy criminal history or own involvement. The 9th sensibly held that first (1) a Rule 35 sentence requires the court to find that substantial assistance did in fact occur; but then (2) the court considers non-assistance 3553 factors. This can result in a sentence lesser, greater, or the same as if only the cooperation was considered. Although the defendant here lost his appeal, the principle established will help more than it hurts other defendants. Rule 35 is "Peppered" (after the Supreme Court case upholding consideration of post-sentence rehabilitation in a resentencing).

U.S. v. Beltran Valdez, No. 11-50117 (11-21-11) (Sessions, D.J., with Leavy and Wardlaw).

As trial approached, the court denied defendant's request for appointment of replacement counsel or to represent himself. He immediately sought appellate review. Interestingly, the 9th had never considered whether this could be an interlocutory appeal. The 2nd, 3rd, 4th and 8th had, and all held that the appellate court lacked jurisdiction. The issue could be reviewed after trial or conviction. The 9th fell in line, and found no jurisdiction. The defendant could not appeal a denial of his request for change of counsel.


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