Articles Posted in US Court of Appeals for the Ninth Circuit

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The Ninth Circuit reversed the district court's conviction of attempted reentry of a removed alien. Defendant argued that his 2009 removal was invalid because his 1997 drug trafficking conviction under Wash. Rev. Code 69.50.401 was incorrectly determined to be an aggravated felony. The panel held that defendant's waiver of the right to seek judicial review was not considered and intelligent, and thus he was deprived of due process. Furthermore, defendant's prior drug trafficiking conviction did not qualify as an aggravated felony under the categorical approach and could not be the basis for defendant's 2009 removal. Therefore, defendant satisfied all three elements of 8 U.S.C. 1326(d), and his collateral attack on the underlying deportation order should have been successful. The panel remanded for further proceedings. View "United States v. Valdivia-Flores" on Justia Law

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If the terms used by an expert witness do not have a specialized meaning in law and do not represent an attempt to instruct the jury on the law, or how to apply the law to the facts of the case, the testimony is not an impermissible legal conclusion. The Ninth Circuit affirmed defendant's conviction for distributing controlled prescription drugs in violation of 21 U.S.C. 841(a)(1). In this case, the panel held that an expert's testimony passed muster under Federal Rule of Evidence 702 and 704 where he did not substitute his judgment for the jury's. Rather, he provided a professional opinion about whether a course of conduct comported with the standard of care prevalent in the medical community. View "United States v. Diaz" on Justia Law

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The Ninth Circuit affirmed the district court's denial of a 28 U.S.C. 2254 habeas corpus petition challenging petitioner's conviction for first degree murder and rape and his capital sentence. The panel held that the Antiterrorism and Effective Death Penalty Act (AEDPA) applied to petitioner's federal habeas petition and rejected his claim that AEDPA was inapplicable because he had filed a request for appointment of counsel and a stay of execution before AEDPA's effective date; although trial counsel was deficient for retaining a psychiatrist for the penalty phase only a few days before its start and by failing to prepare him adequately, the California Supreme Court could reasonably conclude that he was not prejudiced; the California Supreme Court reasonably decided that petitioner's counsel's performance was not deficient because his counsel could have made a strategic decision to omit a witness' testimony at the penalty phase and he had not shown prejudice; the prosecutor's statements at penalty phase closing argument did not violate petitioner's constitutional rights; the panel rejected petitioner's conflict claim; and the court declined to expand the certificate of appealability to include an unexhausted claim that systemic delay in the administration of California’s death penalty rendered executions arbitrary in violation of the Eighth Amendment. View "Rowland v. Chappell" on Justia Law

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Section 11351 of the California Health and Safety Code (possession or purchase for sale of designated controlled substance) is divisible –as discussed in Mathis v. United States, 136 S. Ct. 2243 (2016) –as to its controlled substance requirement, such that a conviction under that statute may, applying the modified categorical approach, be held to be a drug trafficking offense under the Sentencing Guidelines. In this case, the Ninth Circuit applied the modified categorical approach and held that the government established that defendant was previously convicted of possessing cocaine for sale, which qualifies as a drug trafficking offense under the Sentencing Guidelines. Accordingly, the court affirmed the judgment. View "United States v. Murillo-Alvarado" on Justia Law

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The Ninth Circuit affirmed the district court's imposition of a sentencing enhancement based on defendant's prior Arizona conviction for attempted armed robbery, which the court treated as a "crime of violence" under the U.S. Sentencing Guidelines Manual. The panel reexamined its previous decision in United States v. Taylor, 529 F.3d 1232 (9th Cir. 2008), that Arizona attempted armed robbery should be considered a crime of violence under the relevant Guidelines provision, in light of the Supreme Court's decision in Johnson v. United States, 559 U.S. 133 (2010), which construed a similarly worded crime-of-violence provision in the Armed Career Criminal Act (ACCA). The panel held that, although Johnson did not require the panel to depart from some of its analysis in Taylor, Arizona attempted armed robbery nonetheless qualifies as a crime of violence for reasons other than those relied upon in Taylor. The panel held that Arizona robbery (and thus armed robbery) was a categorical match to generic robbery, and that Arizona attempt was equivalent to generic attempt, so defendant's conviction did constitute a crime of violence for purposes of USSG 4B1.2. View "United States v. Sanchez Molinar" on Justia Law

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The Ninth Panel affirmed defendant's conviction for knowingly discharging dredged or fill material from a point source into a water of the United States without a permit in violation of the Clean Water Act (CWA), 33 U.S.C. 1251–1388; willfully injuring and committing depredation of property of the United States causing more than $1,000 worth of damage to the property; and knowingly discharging dredged or fill material from a point source into a water of the United States on private property without a permit. Defendant's convictions stemmed from the excavation and construction of a series of ponds on National Forest System Lands. The panel held that Northern California River Watch v. City of Healdsburg, 496 F.3d 993 (2007), remains valid and binding precedent. In Healdsburg, jurisdiction was determined to exist under the "significant nexus" test set forth in Justice Kennedy's concurrence in Rapanos v. United States, 547 U.S. 715 (2006). The panel also held that the statutory term "waters of the United States" was not unconstitutionally vague and defendant had fair warning of the term; defendant's argument that the district court should have granted his motion to acquit after the jury deadlocked at his first trial was foreclosed; and the panel rejected defendant's remaining arguments. View "United States v. Robertson" on Justia Law

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The Ninth Circuit affirmed defendant's conviction for being a felon in possession of a firearm, rejecting defendant's challenges to the denial of two motions to suppress evidence, admission of a witness' testimony, and the denial of defendant's Daubert motion. However, the panel vacated the sentence based on the government's cross-appeal and remanded for resentencing with instructions that a conviction under CPC 211(a) qualifies as a crime of violence, warranting a base offense level of 24 under USSG 2K2.1(a)(2). In United States v. Barragan, 871 F.3d 689 (9th Cir. 2017), the panel held unequivocally that a prior California robbery conviction is categorically a "crime of violence" for purposes of the career offender sentencing provision. View "United States v. Johnson" on Justia Law

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An inmate serving a federal sentence remains under "the custody of the Attorney General" as per 18 U.S.C. 751(a) when he is held at a state-run institution pursuant to the writ. The Ninth Circuit affirmed the district court's denial of a pre-plea motion to dismiss an indictment where defendant pleaded guilty to attempted escape. The panel held that defendant's guilty plea did not preclude them from considering the merits of his appeal; the district court did not err in denying defendant's motion to dismiss on the ground that he was in federal custody as a matter of law pursuant to section 751(a); and the district court did not err in denying defendant's motion to dismiss on prosecutorial vindictiveness grounds. View "United States v. Brown" on Justia Law

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28 U.S.C. 636(c)(1) requires the consent of all plaintiffs and defendants named in the complaint—irrespective of service of process—before jurisdiction may vest in a magistrate judge to hear and decide a civil case that a district court would otherwise hear. The Ninth Circuit vacated and remanded the magistrate judge's dismissal of a 42 U.S.C. 1983 suit brought by a civil detainee, because consent was not obtained from defendants in this case. Therefore, the magistrate judge lacked jurisdiction to dismiss the complaint. View "Williams v. King" on Justia Law

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The Ninth Circuit affirmed defendant's conviction for reentry by a previously-deported alien without the express consent of the Attorney General to reapply for admission and a revocation of supervised release from a prior illegal reentry conviction. The panel held that there was substantial evidence to support defendant's conviction where the evidence was sufficient for the jury to find that defendant was in the United States without the consent of the Attorney General or the Secretary of the Department of Homeland Security. The panel also held that the district court properly denied defendant's Batson challenge where the totality of the circumstances did not raise an inference that the government's challenges were racially motivated, defendant failed to make a prima facie case of discrimination, and the district court did not commit structural error. View "United States v. Hernandez-Quintania" on Justia Law