Wednesday, August 28, 2019

US v. Hanson, No. 18-30037 (8-28-19)(Tallman w/Ikuta & N. Smith). The defendant was convicted of receipt of child porn while on SR for a previous child porn conviction. The court committed plain error in sentencing him for the SR violation using the 2017 guidelines instead of the 2007 guidelines. This violated ex post facto (2 yrs instead of 5 years). The sentence is vacated and remanded because the court, in fashioning an appropriate sentencing package, seemingly had taken the two sentences into consideration.

The decision is here:

2. US v. Lillard, No. 16-30194 (8-28-19)(Fletcher w/Hawkins; Bennett dissenting). This is a MVRA issue regarding the definition of “period of incarceration.” The 9th holds that pretrial detention is not a “period of incarceration” for purposes of applying an inmate’s receipt of “substantial resources” to be applied to restitution.  This holding is a result examining the language and statutory context of the provision 18 USC 3664(n) and the application of the rule of lenity. The amount here is $6,671.81. The matter is not moot because the defendant pled and received a 196 month sentence.

Dissenting Bennett argues that pretrial detention counts as a “period of incarceration,” that there is no ambiguity, and that the rule of lenity does not apply.

Congrats to AFPD Greg Murphy, Washington West FPD (Seattle) for the win.

The decision is here:

3. US v. McAdory, No. 18-30112 (8-28-19)(Hawkins w/Fletcher & Bennett). “When is a felony not a felony for the purposes of 18 USC 922?” It isn’t a felony when, under a mandatory sentencing scheme, the defendant is exposed to a sentence that does not exceed one year.  This was the holding in US v. Valencia-Mendoza, 912 F.3d 1215 (9th Cir. 2019), and it applies here.  Valencia-Mendoza defines “punishable by” as the sentence to which the defendant is actually exposed under Washington’s mandatory sentencing scheme, overruling US v. Murillo, 422 F.3d 1152 (9th Cir. 2005), which looked to the statutory max, and not the guidelines. Valencia-Mendoza was compelled by two intervening Supreme Court cases, Carachuri-Rosendo v. Holder, 569 US 563 (2010) and Moncrieffe v. Holder, 569 US 184 (2013). In this case, the defendant’s priors were all under a year, and those sentences were mandated. The conviction is vacated, and the court is ordered to dismiss the indictment.

Congrats to Ann Wagner and Greg Geit, AFPDs in FPD Wash. W (Seattle) for the win: a dismissal!

The decision is here:



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