Justia Criminal Law Opinion Summaries

Defendant appealed the sentence imposed following his guilty plea to being a deported alien found in the United States in violation of 8 U.S.C. 1326. In particular, Defendant challenged the district court's application of U.S. Sentencing Guidelines 2L1.2(b)(1)(A)(ii), which imposes a 16-level enhancement where a defendant has previously committed a crime of violence. Defendant argued that the district court committed plain error by relying solely on the presentencing investigation report's (PSR) characterization of his prior conviction. The Ninth Circuit Court of Appeals vacated Defendant's sentence and remanded for resentencing, holding (1) the district court plainly erred in basing its sentencing on the PSR's characterization of Defendant's prior offense as a crime of violence; and (2) the imposition of a substantially greater sentence based on the enhancement for committing a prior crime of violence clearly affected Defendant's substantial rights and the fairness of the judicial proceedings.

Defendant was convicted of racketeering and violence in aid of a racketeering enterprise. Although Defendant was entitled to exercise ten peremptory challenges, he was unable to do so because of a "use it or lose it" voir dire practice followed by the district court. The Ninth Circuit Court of Appeals affirmed the convictions, holding (1) the district court's "use it or lose it" practice impermissibly deprived Defendant of two of the peremptory challenges to which he was entitled; but (2) under plain error review, reversal of Defendant's convictions was not warranted, as Defendant failed to demonstrate that the judicial proceedings were seriously affected by the district court's error.

After a jury trial, Defendant, a California state prisoner, was found guilty of two counts of robbery. The district court subsequently dismissed as untimely three claims in Defendant's petition for a writ of habeas corpus. Defendant appealed, arguing that his claims were timely because the prosecutor withheld evidence that a witness for the prosecution at his trial received lenient treatment in her own criminal cases in return for testifying against Defendant. The Supreme Court affirmed, holding (1) Defendant was not entitled to delayed commencement of the one-year statute of limitations under the Antiterrorism and Effective Death Penalty Act because the factual predicate of his claims could have been discovered had he exercised due diligence at his trial; and (2) Defendant was not entitled to equitable tolling because he did not exercise reasonable diligence, and no extraordinary circumstance prevented the timely filing of his claims.

In this criminal pre-trial matter, a magistrate judge recommended denying a motion to suppress, but the district judge reversed that determination because he was inclined to disbelieve the testimony of government officials but did so without holding a de novo evidentiary hearing to hear any live testimony. At issue on appeal was whether the government's right to a de novo hearing before a district judge when the district judge departs from credibility findings of a magistrate judge is identical to that of defendants, even though the government cannot directly invoke the protections of the Due Process Clause. The Ninth Circuit Court of Appeals vacated the district court, holding that a district court abuses its discretion when it reverses a magistrate judge's credibility determinations, made after receiving testimony that is live and favorable to the government, without viewing key demeanor evidence, except where the district judge finds the magistrate judge's credibility determinations had no legally sufficient evidentiary basis, so that, were they jury determinations, judgment as a matter of law would issue for the defendant.

Petitioner petitioned for review from the Board of Immigration Appeals' (BIA) denial of cancellation of removal under 8 U.S.C. 1229b(a). The BIA held that Petitioner did not demonstrate that he met the seven-year continuous residence requirement. The Ninth Circuit Court of Appeals granted the petition, holding that the years of residence of Petitioner's mother were imputed to him based on Cuevas-Gaspar v. Gonzales and Mercado-Zazueta v. Holder. The Supreme Court granted certiorari and reversed. On remand, the Ninth Circuit reversed, holding (1) because Cuevas-Gaspar and Mercado-Zuzueta were no longer valid precedent, Petitioner's imputation argument concerning his mother's residence was without merit; and (2) the BIA correctly determined that Petitioner's 2002 conviction terminated his continuous residence.

Petitioner, a native and citizen of Mexico, was convicted of armed robbery with a firearm in California in 1981. After serving most of his sentence, Rivera was deported in 1984. Since then, Petitioner twice reentered the country without inspection. The government began a removal proceeding against Rivera in 2004. Rivera admitted removability and sought adjustment of status to lawful permanent resident, Because his 1981 conviction rendered him inadmissible under 8 U.S.C. 1182(a)(2)(A)(i)(I), Rivera applied for a waiver of inadmissibility under section 1182(h)(1)(A) and (B). The immigration judge denied Rivera's application for wavier of inadmissibility. The Board of Immigration Appeals (BIA) affirmed, concluding that Rivera failed to satisfy the hardship standard of 8 C.F.R. 1212.7(d). The Ninth Circuit Court of Appeals affirmed and denied the application, holding that the BIA properly applied section 1212.7(d) to Rivera.

At issue in this case was the appropriate venue for continuing crimes, like conspiracy, where the conspirators' activities have a ripple-like effect that may involve numerous districts. Here the district court determined that venue for a drug-sale conspiracy was proper in the North District of California based on two telephone calls initiated by a government informant, who was in the district, to Defendant, who was located outside of the district. The Ninth Circuit Court of Appeals affirmed, holding (1) by using those calls to negotiate the terms of a drug deal to be completed in the Eastern District of California, Defendant propelled the conspiracy into the Northern District of California; and (2) therefore, venue on the conspiracy charge was proper in the Northern District of California.

Rene Lopez-Rodriguez, a Mexican citizen, was paroled into the United States to face immigration and criminal charges following his initial detention at a port of entry when marijuana was discovered in a truck he was driving. No criminal charges were filed against Lopez-Rodriguez, but he was later charged with being ineligible for admission because there was "reason to believe" he was or had been an illicit trafficker of a controlled substance. After a hearing before an immigration judge (IJ), the IJ found (1) there was "no reason to believe" that Lopez-Rodriguez was an elicit trafficker in a controlled substance, and (2) Lopez-Rodriguez was admissible. The Board of Immigration Appeals reversed, concluding that the IJ's decision to admit Lopez-Rodriguez was clearly erroneous. Lopez-Rodriguez petitioned for review. The Ninth Circuit Court of Appeals granted the petition, holding that the Board committed legal error by making its own factual determination and engaging in de novo review of the IJ's factual findings. Remanded for further proceedings.

Appellants, three individuals who participated in businesses that helped customers evade federal and state income taxes, were convicted for conspiracy to defraud the United States, mail fraud, false representation of a Social Security number, passport fraud, and failure to file income tax returns. The Ninth Circuit Court of Appeals affirmed the convictions and sentences for all Appellants with the exception of one Appellant (Giordano)'s restitution order, which was vacated and remanded for recalculation, holding (1) Appellants' convictions did not violate the First Amendment, as Appellants did far more than advocate tax evasion and instead developed a vast enterprise that helped clients hide their income from federal and state tax authorities; (2) the indictment did not erroneously include misdemeanor crimes among the eighty-one objects of the felony conspiracy count; (3) the district court did not err in instructing the jury on the crime of failure to file income taxes; but (4) the district court failed to consider evidence that Giordano presented at sentencing.

Petitioner Andrew Mackey was convicted several crimes in California. Retained attorney Le Rue Grim represented Mackey in post-trial and post-conviction proceedings. Grim subsequently filed a timely petition in the United States district court asserting ineffective assistance of counsel. Respondent filed a response to the district court's order to show cause, but Grim did not file a traverse by the due date. Grim then withdrew from the case but failed to notify the court of his intention to withdraw. Consequently, Mackey was unaware that the district court denied his petition and did not have the opportunity to proceed pro se. Mackey then filed a motion to have the district court vacate its judgment and reopen the case. The court denied the motion, determining that it lacked discretion to vacate the judgment pursuant to Fed. R. Civ. P. 60(b). The Ninth Circuit reversed, holding that the district court would possess the discretion to vacate and reenter the judgment in order to allow Mackey the opportunity to appeal if it were to find that Grim effectively abandoned Mackey, causing Mackey to fail to file a timely notice of appeal. Remanded for findings as to whether Grim's action or inaction constituted abandonment.