Wednesday, November 12, 2014

US v. De La Torre-Jimenez, No. 13-50438 (11-07-14)(Graber with Ebel and Kleinfeld).

In an appeal of a 1326 sentence, the 9th holds that possession of cocaine for sale in violation of California's Health and Safety Code section 11351 is a drug trafficking offense under USSG 2L1.2(b)(1)(A) and an aggravated felony.   Under Coronado v. Holder, 759 F.3d 977 (9th Cir. 2014), the state statute is divisible under Deschamps and a modified categorical approach could be used.

US v. Huitron-Rocha, No. 13-50306 (11-7-14)(Graber with Ebel and Kleinfeld). 

Same as above in that in an appeal of a 1326 sentence, the 9th finds that California Health and Safety Code section 11352(a) (possession and transportation of cocaine for sale) is divisible.  The reasoning is the same as above.

US v. Brown, No. 12-10227 et al (11-7-14) (Hurwitz with Bea and Ikuta). 
In an appeal from a Ponzi scheme and bankruptcy fraud, the 9th affirms conviction; and affirms in part and vacates and remands in part sentences.  Essentially, the 9th holds that the district court could reject the government's 5K cooperation (!) motion, and sentence the defendant to the high end of the guidelines range.  The reasoning under 3553 was reasonable under Rita.  The 9th did find that adjustments for numbers of victims were error.  The government did prove the necessary numbers, and estimating doesn't cut it.


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