Thursday, March 16, 2023

1. US v. Alvarez, No 21-50088 (2-16-2023)(R. Nelson w/M. Smith & Drain). The 9th affirms a 1326 conviction. The defendant’s prior Ohio assault conviction under Ohio Rev Stat 2903.13(a) is a COV. The 9th follows the 6th Circuit.

2. US v. Farias-Contreras, No. 21-30055 (2-15-23)(Wardlaw w/Gould; dissent by Bennett). The prosecutor agreed to recommend a low-end GL sentence. However, the prosecutor undermines the recommendation with an inflammatory sentencing memorandum decrying the harm and pain drug trafficking visited on the community by “pumping poison” to the streets. The majority, under plain error, concludes the inflammatory statements violated the plea agreement.  Bennett dissents. He argues the prosecutor complied by stating the recommendation, and as expressly permitted by the plea, could present other facts. Bennett concludes by calling for en banc or SCOTUS review.

3. US v. Michell, No. 19-10059 (2-15-23)(Wardlaw w/Garner; partial concurrence and dissent by Baker). This is a Rehaif issue. Under plain error, the 9th affirmed convictions for unlawful firearm possession. The error was plain – knowledge of a felony is an element – but here the 9th could take judicial notice outside the record of other convictions, where the knowledge of felonies was clear. No prejudice existed. Baker dissents. He argues the defendant had a fighting chance of arguing to the jury he really didn’t know.


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