Articles Posted in US Court of Appeals for the Ninth Circuit

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The Ninth Circuit affirmed the district court's denial of defendant's motion for a sentence reduction under 18 U.S.C. 3582(c) and motion to vacate his sentence under 28 U.S.C. 2255. Defendant filed his motions after President Obama's commutation of his sentence from life in prison without release to 360 months in prison. The panel held that defendant was ineligible for a sentence modification where he was originally sentenced based on a statutory mandatory minimum, not based on a sentencing range; a presidential commutation did not overturn the sentence imposed by the sentencing court; President Obama's commutation was not based on a recalculation of a sentencing range and it did not create a new judgment; and thus the sentence remained subject to the restrictions on second-or-successive motions under section 2255. View "United States v. Buenrostro" on Justia Law

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The Ninth Circuit affirmed defendant's conviction for conspiring to suppress and restrain competition by rigging bids, in violation of 15 U.S.C. 1. The panel held that bid rigging is per se illegal under Section 1 of the Sherman Act, and thus the district court did not err by refusing to permit defendant to introduce evidence of the alleged ameliorative effects of his conduct. View "United States v. Joyce" on Justia Law

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The Ninth Circuit reversed the district court's denial of a petition for habeas relief based on the ineffective assistance of counsel at resentencing. The panel held that counsel performed deficiently by failing to challenge evidence that petitioner committed murder for pecuniary gain, and by failing to conduct an adequate investigation of mitigating factors; the state post-conviction court's contrary conclusion was an unreasonable application of Strickland v. Washington and Wiggins v. United States; and there was a reasonable likelihood that petitioner would have received a different sentence if counsel's performance were not deficient. Accordingly, the panel remanded with instructions to grant a conditional writ. View "White v. Ryan" on Justia Law

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The Ninth Circuit vacated defendant's conviction and sentence under the 2005 version of 18 U.S.C. 2423(c), which applies to a U.S. citizen who travels in foreign commerce, and engages in any illicit sexual conduct with another person. In this case, defendant, a U.S. citizen, drugged and raped several children in Cambodia, where he claims to have resided for several years. The panel held that Congress subsequently amended the statute to add a new basis for criminal liability. The panel held that, from the statutory amendment, as well as the accompanying legislative history, it was evident that section 2423(c) was previously inapplicable to U.S. citizens living abroad unless they were traveling—meaning something more than being in transit—when they had illicit sex. Because the jury was not properly instructed on the travel element in this case, the panel vacated and remanded should the government elect to retry him. View "United States v. Pepe" on Justia Law

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The Ninth Circuit affirmed the district court's determination that the distribution-of-pornography enhancement in USSG 2G2.1(b)(3) applies when the perpetrator creates an illicit image of a minor victim and shares it only with the victim. The panel issued a limited remand for resentencing because the record suggesteds that the district court penalized defendant by increasing his sentence based on his decision to exercise his Sixth Amendment right to go to trial. View "United States v. Silva Hernandez" on Justia Law

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An "agricultural practice exception" set forth in 50 C.F.R. 20.21(i)(1) applies to unlawful taking, but not unlawful baiting. The Ninth Circuit affirmed defendant's conviction for illegally baiting ducks in violation of the Migratory Bird Treaty Act and conspiring to do the same. The panel held that section 20.21(i)(1) had no role to play in defendant's case because the indictment charged him with baiting, rather than taking, migratory birds. The panel explained that, by attempting to prove that the agricultural practice exception did not apply, the government assumed a heavier burden than the law required. Therefore, the erroneous application of section 20.21(i)(1) to defendant's case was harmless. View "United States v. Obendorf" on Justia Law

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The Ninth Circuit reversed the denial of a petition for habeas relief and remanded with instructions to grant the writ. Petitioner argued that his sentence under the Three Strikes law was obtained in violation of his Sixth Amendment right under Faretta v. California, 422 U.S. 806 (1975). The panel held that petitioner's request to represent himself was timely and his appellate counsel rendered constitutionally deficient performance by failing to raise the compelling Faretta claim. Furthermore, petitioner was prejudiced by counsel's deficient performance where counsel's failure to raise that claim undermined confidence in the outcome of petitioner's appeal. View "Tamplin v. Muniz" on Justia Law

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The Ninth Circuit affirmed the district court's imposition of supervised release conditions requiring defendant to participate in a sex offense-specific assessment and, if recommended by a probation officer, that he submit to polygraph testing in conjunction with the assessment. The panel held that the district court did not abuse its discretion by imposing the conditions where they were not particularly burdensome and where they relate to defendant's crime of conviction. View "United States v. Hohag" on Justia Law

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The plain language and legislative history of the Endangered Species Act make clear that permits or other exemptions are affirmative defenses, not elements of the crime itself. The Ninth Circuit affirmed in part and reversed in part the district court's judgment vacating defendant's conviction for taking a grizzly bear in violation of the ESA. The panel held that the lower court erred in its formulation of the elements of the crime, improperly placing the burden of proving the nonexistence of a permit on the Government. Therefore, the panel rejected defendant's argument because he presented no evidence at trial that he possessed a permit. The panel affirmed the lower court rulings that defendant was not entitled to a jury trial. However, because the lower court erred in applying an objective standard to defendant's self-defense claim, the error was not harmless. View "United States v. Charette" on Justia Law

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In 2008, the Veras and 13 co-conspirators, were charged with conspiracy to distribute narcotics. The co-conspirators pled guilty. A jury found the Veras guilty and returned a special verdict holding them responsible for at least: 100 grams of heroin, 500 grams of cocaine, and 280 grams of cocaine base. The court sentenced Salvador to 360 months’ and Armando to 210 months’ imprisonment. The Ninth Circuit vacated their sentences. The government’s “key witness,” FBI Special Agent Lavis, had opined about the government’s “primary evidence” against the Veras: over 70 wiretapped phone calls that were played or read before the jury. Aside from one proven sale of heroin, Lavis’ opinions interpreting the wiretapped calls were the only evidence of specific quantities. The court concluded the testimony “did not rest on reliable methods” but on speculation. On remand, the government relied heavily upon the co-conspirators’ plea agreements to establish the quantities of drugs attributable to the brothers. The court found the evidence reliable. The plea agreements, which the government drafted, pointed fingers at the Veras. Citing Federal Rule of Evidence 804(b)(3), (statement-against-interest exception to the hearsay rule), the court concluded that the co-conspirators’ admissions amounted to declarations against interest and sentenced Salvador to 324 months’ and Armando to 168 months’ imprisonment. The Ninth Circuit vacated and remanded. The factual bases in the plea agreements were neither inherently reliable as statements against interest nor corroborated by other information that made their reliability apparent. View "United States v. Vera" on Justia Law