Justia U.S. 9th Circuit Court of Appeals Opinion Summaries

This action stemmed from the Federal Communications Commission's ("FCC") "ISP Remand Order", which imposed a new compensation regime for ISP-bound traffic, i.e., internet service provider-bound traffic. Plaintiff, which was a competitive local exchange carrier ("CLEC"), maintained that the ISP Remand Order applied when the carrier originating the call and the carrier terminating the call were both CLECs. Defendant and the California Public Utilities Commission ("CPUC") contended that the ISP Remand Order's compensation regime applied only to traffic between a CLEC and an incumbent local exchange carrier ("ILEC"). CPUC agreed with defendant's limited reading of the reach of the compensation regime, finding it inapplicable to the ISP-bound traffic originating with plaintiff and terminated by defendant, and so it assessed against plaintiff charges consistent with defendant's state-filed tariff. Plaintiff then sued defendant and the CPUC in federal district court, alleging that the ISP Remand Order preempted their attempts to assess plaintiff charges for ISP-bound traffic based on state-filed tariffs. The district court granted summary judgment to defendant and CPUC, agreeing with their argument that the ISP Remand Order did not apply to CLEC-CLEC traffic. The court agreed with plaintiff and with the analysis contained in an amicus brief filed upon its request by the FCC, that the ISP Remand Order's compensation regime applied to ISP-bound traffic exchanged between two CLECs. Accordingly, the court reversed the judgment.

Petitioner, a native and citizen of Mexico, petitioned for review of a decision of the BIA determining that petitioner was ineligible for adjustment of status under section 245(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. 1255(i), because she was inadmissible under INA section 212(a)(9)(C)(i), 8 U.S.C. 1182(a)(9)(C)(i), and was not eligible for the exception to inadmissibility in INA section 212(a)(9)(C)(ii), 8 U.S.C. 1182(a)(9)(C)(ii). The court held that the BIA correctly concluded that petitioner returned to the United States after having been "unlawfully present in the United States for an aggregate period of more than 1 year," which rendered her inadmissible under 8 U.S.C. 1182(a)(9)(C)(i)(I). The court rejected petitioner's argument that the section 1182(a)(9)(C)(i)(I) one-year period of unlawful presence must occur after the April 1, 1997 effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), 8 U.S.C. 1101. The court further held that the BIA correctly concluded that petitioner did not satisfy the requirements of 8 U.S.C. 1182(a)(9)(C)(ii)'s exception to inadmissibility and held that in order to be eligible under this section, an alien must remain outside the United States for more than ten years before returning to the United States. Accordingly, the court denied the petition for review.

Defendant was arrested on September 13, 2009, by Customs and Border Protection agents and was charged in a one-count indictment with attempting to transport an illegal alien. Defendant pleaded not guilty and his trial subsequently resulted in a hung jury. On March 24, 2010, defendant was arraigned on a four-count superseding indictment for charges related to transporting illegal aliens. On appeal, defendant sought interlocutory appellate review of the district court's denial of his motion to dismiss the superseding indictment on double jeopardy grounds. The court held that it lacked jurisdiction to review the district court's denial of the motion for acquittal and that the issuance of a superseding indictment following a mistrial did not create a colorable double jeopardy claim because the issuance of the superseding indictment did not nullify the original indictment and because it did not terminate the original jeopardy. Accordingly, the court dismissed the appeal for want of jurisdiction.

Petitioner, an Indian citizen and former resident of the nation's Punjab state, petitioned for review of the BIA's decision that his asylum application was time-barred because he failed to provide corroboration of his date of entry under 8 U.S.C. 1158(a)(2)(B). At issue was whether the BIA erred in imposing the corroboration provision pursuant to section 1158(b)(1)(B)(ii) on petitioner's showing of timely filing under section 1158(a)(2)(B). The court held that, under basic principles of statutory construction, the BIA improperly imported the corroboration requirement of 8 U.S.C. 1158(a)(2)(B)(ii), which governed demonstration of refugee status, into section 1158(a)(2)(B), which required applications to be timely filed. The court also held that section 1158(b)(1)(B)(ii) applied to the merits of an asylum claim, not the one-year filing deadline for asylum applications and that the one-year provision was governed by section 1158(a)(2)(B), which was silent on the issue of corroboration. The court further held that the one-year bar determination was not reviewable absent a legal or constitutional question. Accordingly, the court granted the petition for review and remanded the matter to the BIA.

Defendant pleaded guilty in federal court to one count of receipt of child pornography in violation of 18 U.S.C. 2252A(a)(1),(2), and the district court applied an enhanced sentence of 40 years imprisonment in light of defendant's prior attempted sexual assault in violation of Mont. Code Ann. 45-5-103. At issue was whether a prior conviction for attempted sexual assault under Montana law was a predicate offense triggering the application of the enhanced sentencing range. The court held that the statute and the case law made clear that an attempt under Montana law "relates to" the completed offense. Therefore, the court held that a conviction for attempted sexual assault under Montana law "relates to" sexual abuse within the meaning of section 2252A(b)(1). Accordingly, the court held that the district court did not err in applying the sentencing enhancement.

Defendant pleaded guilty to being a felon in possession of a firearm, which was prohibited by 18 U.S.C. 922(g)(1). The government subsequently appealed from defendant's 37 month sentence, arguing that the district court erred when it refused to impose a "crime of violence" sentencing enhancement based on his prior conviction of first-degree burglary in California. The court held that a violation of California's first-degree burglary statute was a "crime of violence" under U.S.S.G. 4B1.2(a)'s residual clause and therefore, the court vacated the sentence and remanded for resentencing so that the district court could accurately calculate the correct Sentencing Guidelines range.

Defendant was convicted on six counts of setting public lands afire under 18 U.S.C. 1855, when he burned about a thousand acres owned by the Bureau of Land Management ("BLM") that were covered by sagebrush and other vegetation. Defendant argued that he did not destroy or attempt to destroy a place of public use, but waived the issue by conceding that he had. Therefore, the court declined to address the issue. Thus, the principal issue on appeal was whether the burning of grass and sagebrush destroyed the land where there was no evidence "that a member of the public was denied usage [sic] of the land for some higher cultural or recreational purpose" or "that the land itself was . . . rendered unusable into the indeterminate future" pursuant to the Sentencing Guidelines. The court held that the district court correctly interpreted U.S.S.G. 2K1.4(a)(1) to require that the land suffered more than short-term damage, but less than complete obliteration. The court held, however, that the district judge failed to state the basis for his finding and the court could see no evidence in the record to support it. The court also held that it could not conclude that defendant only "endangered" the land, which would have resulted in a lower base offense level than if he had destroyed it pursuant to U.S.S.G. 2K1.4(a)(2). Therefore, the court held that, if on remand, the district court found that the damage to the land did not amount to destruction, then it would probably determine that defendant endangered the land. Accordingly, the court vacated defendant's sentence and remanded for further proceedings.

Resolute Industries, Inc. ("Resolute"), appealed an adverse summary judgment on its products liability claims against Webasto Products NA, Inc. ("Webasto"), the manufacturer of a heater that caught fire on Curtis Oswalt's boat during repairs performed by Resolute's employee. Resolute also challenged a judgment in Oswalt's favor on his claim against Resolute for breach of the implied warranty of workmanlife performance. At issue was whether the district court correctly rejected Resolute's products liability claims, correctly found Resolute liable to Oswalt, and properly awarded Oswalt and his insurer damages for surveyor's fees and for the loss of use of the boat during repairs. The court held that the district court properly granted summary judgment to Webasto on Resolute's inadequate warnings claim, but erroneously granted summary judgment on the design defect claim. The court further held that the court properly held Resolute liable on Oswalt's implied warranty claim and properly awarded damages for loss of use and surveyor's fees. Accordingly, the court affirmed in part and vacated in part the judgment of the district court and remanded for further proceedings on Resolute's design defect claim.

Appellant, a medicare provider, appealed its notice of program reimbursement for the fiscal year ending in 2001 to the Provider Reimbursement Review Board ("Board"), which dismissed the appeal because appellant missed its deadline to file a preliminary position paper. After the Board denied appellant's motion for reinstatement of its appeal, appellant filed the current action and subsequently appealed from the district court's order granting summary judgment for appellee. The court affirmed summary judgment and held that the Board's Instructions requiring dismissal of claims due to failure to timely submit preliminary position papers did not violate the Medicare Act, 42 U.S.C. 1395, and the Board's dismissal of appellant's claim was neither arbitrary or capricious.

Defendant pled guilty to violating the Controlled Substances Act, 21 U.S.C. 846, 841(a)(1), and (b)(1)(B)(ii), and received the mandatory minimum sentence of five years imprisonment. At issue was whether the district court improperly calculated his criminal history score by counting his prior conviction under California Vehicle Code section 23140(a), which made it unlawful for a person younger than twenty-one years of age to drive with a blood-alcohol content of .05% or greater. The court applied a "commonsense" interpretation of the guidelines and the statute at issue, holding that a violation of section 23140(a) was not similar to a juvenile status offense and was properly counted in the calculation of defendant's criminal history score. Accordingly, the court affirmed the conviction and sentence.