Sunday, May 22, 2022

US v. Randall, No. 20-10339 (5-20-22)(Bumatay w/Bress; dissent by Wardlaw). In sentencing issues of first impression concerning receiving and distributing child porn, the 9th holds (1) 2G2.2(b)(3)(B) does not require the defendant to actually receive “valuable consideration” for a sentencing enhancement; and (2) 3014(a)requires a $5000 fine per offense rather than the nature of offense.

Dissenting, Wardlaw argues that 3014(a) differs markedly from 3013, which requires an assessment per conviction, and must be interpreted differently.

There are Circuit splits on both issues: (1) 6th (has to receive) vs 5th (no receipt); (2) 3rd (fine for each conviction) vs 2d (offender and nature of offense)

1. Martinez v. Shinn, No. 21-99006 (5-16-22)(per curiam w/McKeown, Fletcher, & M. Smith)(an AZ FPD CHU case). The 9th denies the request for a COA to challenge the denial of a Rule 60(b) motion. The 9th agrees that Mitchell provides the court with authority to allow discovery to develop a claim under Rule 60. However, the development has to be for an extraordinary change and the changes alleged here – a Napue claim and Pena-Rodriguez – were not prejudicial or not extraordinary.


2.US v. Allen, No. 21-10060 5-16-22)(Ikuta w/Lucero & VanDyke). COVID does not justify the closure of visual public access to a suppression hearing and trial. The constitutional right to a public trial was violated when the court only allowed audio. Visual is critical. The court could have struck a balance, but its total ban on visual presence was too broad. While the right to access is not absolute, for example in national security cases, there were other measures the court could have used to balance.


Congrats to Lisa Ma, AFPD FPD Cal N (Oakland).


US v. Davis, No. 10066 (5-13-22)(Lucero & concurrences by VanDyke and Ikuta). The 9th rejects a Rehaif challenge to being a felon in possession. The review is for plain error, and the 9th finds the defendant could not show prejudice and there was knowledge of his felony status. 

The sentence was vacated and remanded. The 9th accepts the gov’t’s concession that Bautista applies. Bautista held a state drug statute was categorically over broad as a prior. The statute was for AZ but it applies for Nevada.

The concurrence  join the majority because of the concession, but questions such a reliance. The concurrence bemoans the complexity of the categorical approach and cautions against over reliance on Bautista.

Monday, May 02, 2022

1)    US v. Rosenow, No. 20-50052 (4-27-22)(Forrest w/Callahan; dissent by Graber).                Interesting opinion affirming conviction and sentence on attempted exploitation of a         child and possession of child porn. The issue is whether Yahoo and Facebook acted as         government agents in tracking down images and messages. The government knew of         the concerns of the providers, and implicitly encouraged them to investigate and turn         over evidence. The majority however found they were acting as private entities.                 Dissenting, Graber concludes they were acting as agents. Graber also questions whether      the test of implicitly acting is outdated and needs to be reconsidered.

The decision is here:

2)    US v. Phillips, No. 20-10304 (4-29-22)(Korman w/Paez & Friedland). This is a similar case to above – a private person (here an ex-fiancé) turning over child porn. Law enforcement told the fiancé to show only the officer the files she had opened. In this way, she was not acting as a quasi-agent but as a private citizen and there was no state action.

The decision is here:

Jessup v. Shinn, No. 18-16820 (4-21-22)(Graber w/Murguia & Fitzwater)(AZ FPD case). The 9th reverses a grant of resentencing under Miller. Under AEDPA deference, the 9th found the state supreme court reasonable in its holding the state trial judge weighed and balance a natural life sentence with one where there was a possibility of release.

Keith Hilzendeger, AFPD FPD AZ (Phoenix), valiantly represented the petitioner.

The decision is here:

US v. McCarron, No. 20-10072 (4-18-22)(O’Scannlain w/Miller & Lee). Affirming an enticement case under 18 USC 2422, the opinion goes through each element, in the light most favorable to the gov’t, to show there is sufficient evidence to support conviction. The interesting issue is that proposed “hypothetical” lurid meetings will achieve “the mental state of assent” with a minor rather than an actual attempt to engage in sexual conduct with a minor.

US v. House, No 20-30169 (4-15-22)(per curiam)(concurrences by Graber, Christen, and Wu). In a drug sentencing case, the 9th reversed and remands a prior MT marijuana conviction as categorically overbroad. It affirms the cocaine prior as not categorically overbroad under plain error.

Although a per curiam opinion, there were three concurrences. All bemoan the complications of a categorical approach. Graber discusses the “explicit/evident” distinction; Christen discusses the “implied/implicit” distinction. Wu suggests and discusses the “reasonable probability” approach for cocaine over breadth analysis.

Congrats to Evangelo Arvanetes, Fed Defenders of MT (Billings).

US v. Irons, No. 20-30056 (4-11-22)(Collins w/Fletcher; Watford dissents). The issue concerned a 924(c) charge of using a firearm “in furtherance” of drug trafficking. The defendant conceded PWID drugs but contested a conspiracy charge and the firearm charge. As to the firearm, he argued the firearm was under the mattress for safekeeping as he would sell it back to the person whom he bought it from when he returned from out of state. It was not therefore used to further drug trafficking. Two issues of note: First, regarding a supplemental jury instruction in response to a jury note, Fed R Crim P 30(d) requires an objection be made. A prior objection, or submitted instruction, is not sufficient. Thus, review is for “plain error.” Two, the error here is plain. The supplemental instruction implied that a “connection” was sufficient. This is error. Using a firearm is not just connected but must be “in furtherance.” It must facilitate, advance, or promote an action. No witness saw the defendant use, brandish, or show the firearm.  In looking at the error in hindsight, see US v. Henderson, 568 US 266 (2013), the error is plain. An unpublished opinion that supported the district court is not persuasive.

Watford dissents, arguing any error was harmless.

Congrats to AFPD Dennis Carroll, FPD Ofc Wa W (Seattle).