Thursday, June 21, 2012

U.S. v. Marquez-Lobos, No. 10-10470 (6-19-12) (M. Smith with Noonan and McKeown).
Does the 9th kidnap the categorical approach in a generic sense? Yes, when it comes to the Arizona kidnapping statute.  In a 1326 case, the defendant received a +16 adjustment for a prior Arizona conviction of kidnapping.  The court found it was a crime of violence.  The defendant appealed and argued that the state statute was overbroad.  The 9th holds that ARS 13-1304 can lack the element of the use of force in that certain kidnappings can occur without the use of force or threat of force (i.e. the victim is under 18 or incompetent and the custodian or parent does not agree with the restraint).  However, although the state statute can have a missing force element, the statute nonetheless meets the generic definition of kidnapping, which includes a nefarious purpose or a restraint or restriction on movement.  The 9th does not narrow the generic definition of kidnapping set forth in prior precedent, and holds that it qualifies as a "crime of violence."

U.S. v. Becker, No. 11-30250 (6-19-12) (Gould with Bybee and Bea).
Does the 9th find that a court knows a SORNA requirement when it sees it?  Yes, in that the defendant, pleading to receipt of obscene matters, acknowledged that some of the matters he received were child pornography.  The court later, in a SR revocation, reimposed a SORNA registration condition.  On appeal, the defendant argued that the court's failure to specifically make findings that the offense was SORNA eligible was plain error.  Not so, concludes the 9th.  The defendant admitted to the charge, admitted that the materials were child porn, and that under the statute, the court was mandated to impose a SORNA requirement.  Moreover, the court had the discretionary power to impose it.

Peck v. Thomas, No. 11-35283 96-19-12) (Bybee with W. Fletcher and Fisher).
Petitioners fail in their APA challenge to the BOP's regulations barring inmates with certain current or past convictions from early release eligibility.  The BOP, finds the 9th, acted rationally and within its authority in limiting eligibility to the programs that result in early release.

Marrero v. Ives, No. 09-16053 (6-19-12) (Graber with Schroeder and Thomas).
The "actual innocence" exception to 2255 procedural bars did not apply here to a petitioner arguing that he was actually innocent of a non-capital offense (interference by threats with interstate commerce and firearms) and that he was not a "career offender" under the Guidelines.  The 9th finds he failed on both.  He did not allege sufficient facts to establish an actual innocence claim, and the actual innocence gateway does not apply to non-capital sentencing enhancements.


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