Friday, May 06, 2016

1.  United States v. Lee, No. 13-10517 (5-6-16)(Hurwitz with Bea; Ikuta dissenting). The 9th sidesteps whether Johnson applies to the Guidelines.  In this career offender sentencing case, the convictions pre-dated Johnson, and under pre-Johnson precedent, were not crimes of violence under the residual clause.  The sentence is vacated and remanded.  Ikuta in a spirited dissent argues that the majority should have applied Johnson to this case.  Whether Johnson applies to the Guidelines must wait until the Supremes weigh in or another 9th case presents the issue.

The decision is here:

2.  Rishor v. Ferguson, No. 14-36071 (5-6-16)(Tallman with Hawkins and Lefkow, Sr D.J.). Using Fed R Crim P 59(e) allows for motions for reconsideration but it is not a vehicle for new claims.  The petitioner here did not exactly ask for new claims, and therefore the district court did have jurisdiction.  However, the district court, in granting relief, failed to give AEDPA deference to the state courts' determination that the petitioner validly waived counsel and that double jeopardy was not violated.  The 9th reversed the habeas relief.

The decision is here:

3. United States v. Vega-Ortiz, No. 14-50100 (5-6-16)(Rawlinson with Kleinfeld and Nguyen).  This is a 1326 case.  The defendant argued that his motion to dismiss the information should have been granted as his underlying deportation was invalid.  He argued that the underlying conviction for possession for sale of a controlled substance under Cal. Health & Safety Code 11378 was not an aggravated felony.  The 9th held it was.  The statute (11378) is divisible.  As such, a modified categorical approach could be used.  The defendant fails to show that the exclusion of a federal product containing meth did not make this statute overbroad.

The decision is here: 



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