Thursday, July 14, 2016

United States v. Torres, No. 14-10210 (7-14-16)(Murguia with Wardlaw and Fletcher). Affirming the denial of a suppression motion, the 9th holds that an inventory search of a vehicle, which included the air filter compartment, did not violate the fourth amendment.  The Las Vegas Police Dept. has a detailed list of what needed to be checked during an inventory search, including "all containers." The purpose was to ensure a complete listing and limit rummaging; the list set a protocol.  The air filter compartment was at the edge, but did not go over the boundary of unreasonable.

The case here involved the police arresting the defendant for a DUI.  The car was in a private parking lot, and was impounded.  During the inventory search, in the air filter compartment, a gun was found. The defendant was a prohibited possessor. 

But, wait, there's more......

The 9th remands for resentencing because the government concedes that it believes Johnson applies to the Sentencing Guidelines. The defendant had pled guilty in a conditional plea, allowing him to appeal the suppression issue.  On appeal, addressing a raised sentencing issue, as to whether Johnson applies to the guidelines (same language in the residual clause), the government conceded the issue.  The 9th assumed, without holding, that Johnson's holding nullifies ยง 4Bl.2(a)(2)'s identically worded residual clause. The 9th therefore accepted the government's concession that the district court sentenced the defendant pursuant to a provision in the guidelines that is unconstitutionally vague. This renders the sentence "illegal," and therefore the waiver in his plea agreement does not bar this appeal. See Bibler, 495 F.3d at 624.

Congratulations to AFPDs Amy Cleary, Rachel Korenblatt, Alina Maria Shell, and FPD Rene Valladares, of the Nevada FPD office (Las Vegas).

The decision is here:



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