Articles Posted in US Court of Appeals for the Ninth Circuit

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The Ninth Circuit certified the following questions to the Oregon Supreme Court: 1. Is Oregon first-degree robbery, Or. Rev. Stat. 164.415, divisible? 2. Is Oregon second-degree robbery, id. 164.405, divisible? 3. Put another way, is jury unanimity (or concurrence) required as to a particular theory chosen from the listed subparagraphs of each statute? View "United States v. Lawrence" on Justia Law

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The Ninth Circuit affirmed the district court's denial of defendants' motion to suppress incriminating statements intercepted by government wiretaps. The panel held that the affidavits submitted by the FBI in support of the wiretap authorization were reasonably detailed, and did not contain a material misstatement or omission. Furthermore, the district court did not abuse its discretion in determining that the wiretaps were necessary. In this case, it was not illogical or implausible to conclude that the possibility of using a high-level confidential informant was unlikely to result in the successful prosecution of every member of the conspiracy. View "United States v. Estrada" on Justia Law

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Washington's accomplice liability statute renders its drug trafficking law broader than generic federal drug trafficking laws under the Armed Career Criminal Act, and thus Washington's drug trafficking law is not categorically a "serious drug offense" under the Act. The Ninth Circuit vacated defendant's sentence for being a felon in possession of a firearm and remanded for resentencing. The panel held that defendant's three convictions under Washington law could not constitute "serious drug offenses," and therefore he was not subject to the Act's fifteen year mandatory minimum sentence. View "United States v. Franklin" on Justia Law

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The Ninth Circuit affirmed defendant's conviction for conspiracy to manufacture, possess, and distribute marijuana, as well as other charges related to his ownership of a marijuana dispensary in California. The panel held that defendant suffered no wrongful impairment of his entrapment by estoppel defense, the anti-nullification warning was not coercive, and the district court's evidentiary rulings were correct in light of the purposes for which the evidence was tendered. The panel remanded for resentencing on the government's cross-appeal of the district court's refusal to apply a five-year mandatory minimum sentence, which unavoidably applied to defendant. The panel need not reach the question of whether an appropriations provision, which the panel interpreted as prohibiting the federal prosecution of persons for activities compliant with state medical marijuana laws, operates to annul a properly obtained conviction, however, because a genuine dispute exists as to whether defendant's activities were actually legal under California state law. The panel remanded for the district court to make findings regarding whether defendant complied with state law. View "United States v. Lynch" on Justia Law

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The Ninth Circuit affirmed the district court's denial of defendant's 28 U.S.C. 2255 motion to vacate, set aside, or correct his sentence. In this case, defendant's sentence was imposed in 2000 under the then-mandatory Sentencing Guidelines, based in part on the district court's conclusion that he had previously been convicted of crimes of violence. The panel held that the motion was untimely under 28 U.S.C. 2255(f)(3), which authorizes filing within one year of "the date on which the right asserted was initially recognized by the Supreme Court and made retroactively applicable to cases on collateral review." Although defendant argued that the Supreme Court recognized a new right in Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme Court has not yet recognized such a right. Because the Supreme has not held that the mandatory Sentencing Guidelines are subject to this vagueness challenge, defendant's motion was not timely under the statute. The panel also denied a similar challenge by defendant to a conviction and sentence for use of a firearm during a crime of violence because the Supreme Court has not recognized that right. View "United States v. Blackstone" on Justia Law

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The Ninth Circuit reversed the district court's denial of a habeas corpus petition challenging petitioner's California conviction for second degree murder. The panel held that the state court unreasonably applied Miranda v. Arizona, 384 U.S. 436 (1966), and related cases in holding that a detective ceased interrogation and that petitioner's waiver of the right of counsel was valid. In this case, the only reasonable interpretation of what occurred between petitioner and the interrogating detective was that the detective continued interrogating petitioner after petitioner had clearly – and repeatedly – invoked his right to counsel, and that the detective badgered petitioner into waiving that right. View "Martinez v. Cate" on Justia Law

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In light of Sessions v. Dimaya, 138 S. Ct. 1204 (2018), and recent case law from this Circuit, California robbery is no longer a "crime of violence" under 18 U.S.C. 16(a) or 16(b). The Ninth Circuit vacated the district court's order denying defendant's motion to withdraw his guilty plea for illegally reentering the United States after having been deported and after having been convicted of an aggravated felony. The panel held that, in light of this marked shift in the law governing crime-of-violence analysis, defendant had a plausible ground for dismissal of the indictment and thus demonstrated a fair and just reason for withdrawing his guilty plea. View "United States v. Garcia-Lopez" on Justia Law

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The Ninth Circuit reversed the denial of a 28 U.S.C. 2254 petition for habeas relief challenging petitioner's conviction for domestic violence, assault, and vandalism. The panel held that it was error for the state trial judge not to sua sponte order a competency hearing given the numerous signs of petitioner's mental incompetency, including his suicide attempt on the eve of trial. The panel remanded to the district court with instructions to grant the writ unless, within a reasonable time, the state grants a new trial. The panel need not address petitioner's other issues and dismissed his appeals as moot. View "Anderson v. Gipson" on Justia Law

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The Ninth Circuit reversed defendant's conviction for possession of unauthorized access devices and aggravated identity theft, holding that the district court erred by failing to excuse a juror for cause under an actual bias theory. The panel held that when a juror was unable to state that she would serve fairly and impartially despite being asked repeatedly for such assurances, the panel could have no confidence that the juror would lay aside her biases or her prejudicial personal experiences and render a fair and impartial verdict. In this case, there was concern about whether Juror No. 3 could put her social security theft five years ago out of her mind. View "United States v. Kechedzian" on Justia Law

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The Ninth Circuit affirmed the district court's denial of defendant's motion to suppress a handgun found in his backpack. The panel held that the district court properly concluded that the handgun inevitably would have been discovered in an inventory search at the time of booking. The panel reversed defendant's 48 month sentence, holding that defendant's prior first degree robbery conviction under Washington law was not a crime of violence under USSG 2K2.1(a)(2) and 4B1.2. The panel held that Washington's robbery statute was not a categorical match for the offenses of robbery and extortion enumerated in section 4B1.2(a)(2). However, the panel held that the district court did not abuse its discretion in applying a two-level enhancement for reckless endangerment during flight under USSG 3C1.2. View "United States v. Peterson" on Justia Law