Tuesday, August 20, 2019

1. US v. Crum, No. 17-30261 (8-16-19)(Per curiam w/Fletcher & Bybee; dissent by Watford). The 9th vacated and remanded for resentencing in an Oregon case where the district court had found that delivery of meth was not a controlled substance offense under 2K2.1(a)(4)(A). The issue is whether “solicitation” makes the state statute overbroad. Majority finds itself bound by prior precedent, Shumate, 329 F.3d 1026 (9th Cir. 2003), which had construed   “delivery” as including solicitation. The reliance by the district court on Sandoval v. Sessions, 866 F.3d 986 (9th Cir. 2017), was misplaced. Sandoval concerned drug trafficking under the Controlled Substances Act and not the Guidelines.  There are problems with the analysis in Shumate and also Vea-Gonzales, 999 F.2d 1326 (9th Cir. 1993). The panel seems to suggest en banc review.

Watford, dissenting, would find the Oregon statute still overbroad. It criminalizes a mere offer to sell as a delivery.  A mere offer to sell is also not solicitation.

Tough loss for AFPDs Ted Blank and Robert Schwarz of the Federal Defender Services of Idaho (Boise).

The decision is here:

2. US v. Cano, No. 17-50151 (8-16-19)(Bybee w/Graber & Harpool).  This is a significant cell phone/border search case.  The defendant was arrested for carrying cocaine through San Ysidro’s POE. Following the arrest, a Customs Agent seized the cell phone and searched it: first manually and then using software that accesses all texts, logs, media, and application data.  The defendant’s motion to suppress was denied.

The 9th reversed the denial of the motion and vacated the conviction. The 9th held that searches may be conducted by border officials without reasonable suspicion but that forensic cell phone searches require reasonable suspicion. The 9th clarifies US v. Cotterman, 709 F.3d 952 (9th Cir. 2013)(en banc)  by holding that “reasonable suspicion” it means that officials must reasonably suspect that the cell phone contains digital contraband. The 9th stresses that cell phone searches at the border, whether manual or forensic, must be limited in scope to a search for digital contraband.

Congrats to Harini Raghupathi of the Federal Defenders of San Diego, for this important win.

The decision is here:


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