Articles Posted in US Court of Appeals for the Ninth Circuit

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A Notice to Appear that is defective under Pereira v. Sessions, 138 S. Ct. 2105 (2018), cannot be cured by a subsequent Notice of Hearing and therefore does not terminate the residence period required for cancellation of removal. The Ninth Circuit granted a petition for review of the BIA's decision affirming the IJ's conclusion that petitioner was ineligible for cancellation of removal. The IJ concluded that petitioner was admitted in February 2002 when he became a legal permanent resident (LPR) and that the March 2008 Notice to Appear terminated his residence period. Therefore, he was in the United States for only six years and one month, and was thus ineligible for cancellation of removal. The panel held, however, that petitioner's Notice of Appear did not terminate his residence because it lacked time-and-place information, and the notice could not be cured by the subsequent Notice of Hearing that was sent to him. The panel explained that the law does not permit multiple documents to collectively satisfy the requirements of a Notice to Appear, and thus petitioner never received a valid Notice to Appear and his residency continued beyond 2008. Therefore, petitioner fulfilled the seven year requirement and was eligible for cancellation of removal. View "Lorenzo Lopez v. Barr" on Justia Law

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Defendant Azano and Singh were convicted of various crimes stemming from illegal campaign contributions to local politicians to influence the 2012 San Diego election cycle. The Ninth Circuit reversed defendants' convictions on count 37 for falsification of campaign records and held that there was insufficient evidence to support the conviction. The panel held that Congress acted within its constitutional authority in enacting 52 U.S.C. 30121(a). The panel was bound by Bluman v. FEC, 800 F. Supp. 2d 281 (D.D.C. 2011), aff'd, 565 U.S. 1104 (2012), and rejected defendants' contention that section 30121(a) violated foreign nationals' First Amendment rights. The panel also held that the jury instructions sufficiently covered the required mental state as required by section 30109 and Singh's defense theory, and an omission satisfied the actus reus element for 18 U.S.C. 1519, falsifying campaign records. The panel rejected defendants' remaining claims and affirmed the remaining convictions, vacated the sentences, and remanded for resentencing. View "United States v. Singh" on Justia Law

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The Ninth Circuit denied petitioner's application for authorization to file a second or successive 28 U.S.C. 2255 petition collaterally attacking his 2008 sentence for conspiracy to distribute and possess with intent to distribute methamphetamine and possession of a firearm during a drug trafficking offense. The panel held that the Supreme Court's decision in Dean v. United States, 137 S. Ct. 1170 (2017), did not announce a new rule of constitutional law that the Court has made retroactively applicable to cases on collateral review. Dean held that when a defendant is facing two consecutive sentences—one for a predicate offense, which does not carry a mandatory minimum sentence, and one for an offense committed under 18 U.S.C. 924(c), which does carry a mandatory minimum—the sentencing judge has the discretion to consider the defendant’s mandatory sentence when deciding the proper time to be served for the predicate offense. Therefore, petitioner failed to satisfy the requirements in section 2255(h)(2) because Dean's rule was statutory, not constitutional, and, even if it were constitutional, it was not retroactive to cases on collateral review. View "Ponce Garcia v. United States" on Justia Law

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Defendant was convicted of 90 counts of wire fraud and one count of conspiracy to commit wire fraud. Defendant obtained millions of dollars from victims by telling them that he needed to pay CIA and FBI agents to protect him and his family from the Mafia, and that he would pay the victims back. The Ninth Circuit vacated in part, agreeing with the parties that insufficient evidence supported defendant's convictions for Counts 81-90. The panel rejected defendant's claim that his waiver of counsel was invalid; that he was not competent to represent himself; that he was denied his Sixth Amendment right to confront the witnesses against him; that the government committed misconduct during trial; that the district court erred by not granting him a continuance; that his trial suffered cumulative error; and that the district court erred in denying his post-trial motions. Accordingly, the panel affirmed defendant's convictions as to Counts 1-80 and Count 91. The panel remanded for resentencing. View "United States v. Audette" on Justia Law

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Petitioner appealed the district court's denial of his motion for a writ of habeas corpus relief under 28 U.S.C. 2254(d). The Ninth Circuit, assuming without deciding that there was no procedural default and failure to exhaust, held that, although the Arizona Supreme Court erred in rejecting petitioner's proffered mental impairment mitigation evidence, the error was harmless because the state court made a reasonable determination of the facts in concluding that petitioner suffered from no mental impairment and thus did not violate Eddings v. Oklahoma, 455 U.S. 104 (1982). However, the panel reversed in part and held that the Arizona Superior Court erred in holding that petitioner's Sixth Amendment right to counsel was not violated by his counsel's deficient performance at the penalty phase under Strickland v. Washington. Accordingly, the panel remanded with directions to grant the writ with respect to petitioner's sentence. View "Kayer v. Ryan" on Justia Law

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The Ninth Circuit affirmed defendant's conviction for illegally reentering the United States after having been removed. The panel held that, although the district court abused its discretion by admitting an expert's testimony regarding a fingerprint taken during the 2015 removal proceedings without first finding it relevant and reliable, the error was harmless because the record was sufficient to determine that the expert testimony was relevant and reliable under Federal Rule of Evidence 702. View "United States v. Ruvalcaba-Garcia" on Justia Law

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The Ninth Circuit affirmed the district court's grant of defendant's 28 U.S.C. 2255 motion for habeas relief in connection with a 2012 conviction for which he received an enhanced sentence under the Armed Career Criminal Act (ACCA). The panel held that Voisine v. United States,136 S. Ct. 2272 (2016), which held that a misdemeanor conviction for recklessly assaulting a domestic relation disqualifies an individual from possessing a firearm under 18 U.S.C. 922(g)(9), did not expressly overrule Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006)(en banc), which held that Arizona Revised Statute 13-1203(A)(1) does not have as an element "the use, attempted use or threatened use of physical force against the person . . . of another" because it encompasses reckless conduct. The panel held that Voisine expressly left open the question that Fernandez-Ruiz answered. View "United States v. Orona" on Justia Law

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The Ninth Circuit denied a petition for review of the BIA's decision denying petitioner's appeal of the IJ's determinations that petitioner was removable and ineligible for asylum. The IJ determined that petitioner's prior California felony conviction for possession of marijuana was an "aggravated felony" and an offense "relating to a controlled substance" that rendered her removable. However, petitioner argued that the conviction was no longer a predicate to removal because it was recalled and reclassified as a misdemeanor under California's Proposition 64. The panel held that valid state convictions retain their immigration consequences even when modified or expunged for reasons of state public policy. Therefore, the panel agreed with the BIA that petitioner's initial conviction retained its immigration consequences and rendered her removable. View "Prado v. Barr" 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 arguing that his sentence was improperly enhanced under 18 U.S.C. 924(c)(1). The panel held that defendant's underlying offense of Robbery on a Government Reservation in violation of 18 U.S.C. 2111, even if done by intimidation alone, is categorically a crime of violence under the elements clause of section 924(c)(3)(A). View "United States v. Fultz" on Justia Law

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The Ninth Circuit affirmed the district court's rulings concerning Defendant Carpenter and Velazquez's joint trial where they were convicted of conspiracy to kidnap and kidnapping. The panel held that the common law right of access attaches to pre-trial offers of proof for a duress defense. In this case, because Carpenter failed to provide a compelling reason to overcome this presumptive right of access, the district court did not abuse its discretion in denying her motion to seal her proffer. The panel held that the district court did not abuse its discretion in admitting "other act" evidence under Federal Rule of Civil Procedure 404(b). However, although the district court erred in admitting evidence of Velazquez's methamphetamine use, the panel held that the error was harmless. View "United States v. Carpenter" on Justia Law