Tuesday, November 24, 2015

United States v. Bare, No. 14-10475 (11-24-15)(Tallman with Rosenthal, D.J.; Kozinski dissenting). 
As an editorial note, this is an AZ FPD case. The 9th affirms a sentence and conditions of SR in a felon in possession case.   Some interesting aspects are presented and a dissent by Kozinski regarding overbroad SR conditions.  This case arises from the non-Indian defendant shooting a gun on the Navajo reservation during an altercation with a disgruntled pawn store customer.  The pawn store was run by the defendant from his house and it was not exactly "authorized."  The defendant's sentence was increased because his acts constituted felony disorderly conduct under the state statute.  He argued that because it occurred on the Reservation, it could only be a misdemeanor.  The 9th held the enhancement of +4 was warranted because felon in possession was a general crime, and it included the Reservation; the assimilative crimes act (ACA) also imported state offenses to non-Indians, which the defendant was.
As for SR conditions, the court imposed a "search of computers." The 9th affirmed, holding that the condition only required "some nexus" to the goals set forth in 3553.  The nexus was that the defendant had run a pawn shop, using paper ledgers, but in the future, could use a computer.

Kozinski dissented from this affirmance of the SR conditions.  He basically said "come on!"  He argues that the condition allows the probation officer to search computers for some reason or no reason, despite the fact that the offense did not require a computer, the defendant did not own a computer, and the so-called nexus is really no nexus, as anyone, at any time, could use a computer to do some offense.  Kozinski also states that the majority misuses memorandum decisions for precedent, and that the decision itself runs counter to other precedent.
The decision is here:



Post a Comment

<< Home