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

Defendant appealed from the district court's denial in part of his motion to reduce his sentence pursuant to 18 U.S.C. 3582(c)(2). Defendant contended that the district court's modification of his sentence to the 120-month mandatory minimum term pursuant to 21 U.S.C. 841(b)(1)(A) constituted the application of a new sentence in violation of Dillon v. United States and that the sentence the court ordered violated Apprendi v. New Jersey. The court affirmed and held that the district court's application of the mandatory minimum term pursuant to section 841(b)(1)(A) did not constitute an imposition of a new sentence.

Defendant pleaded guilty for violating 18 U.S.C. 704(a), which prohibited the unauthorized wearing of military medals, where defendant fraudulently obtained a Purple Heart and wore it in public. On appeal, defendant challenged the constitutionality of the statute. The court held that defendant's overbreadth challenge failed because a person violated the unauthorized wearing portion of section 704(a) only if he or she had an intent to deceive. The court rejected defendant's argument that United States v. Alvarez dictated that section 704(a) was unconstitutional. The court held that, under United States v. O'Brien, the government had a compelling interest in preventing the intentionally deceptive wearing of medals; those interests were unrelated to the suppression of free expression because section 704(a) did not prevent the expression of any particular message or viewpoint; and section 704(a) promoted the goals of maintaining the integrity of the military's medals and preventing the fraudulent wearing of military medals. Therefore, the court rejected defendant's facial First Amendment challenge.

Petitioner, a native and citizen of China, petitioned for review of the BIA's decision denying his applications for adjustment of status, asylum, withholding of removal, and protection under the Convention Against Torture. Petitioner also appealed both the IJ's denial of his motion for a continuance and the BIA's denial of his motion to remand to the IJ for reconsideration of his application for adjustment of status. The court held that substantial evidence did not support the IJ's finding, and the BIA's conclusion, that petitioner was married and thus ineligible for adjustment of status as the unmarried son of a United States citizen. The court also held that the IJ abused her discretion by denying petitioner's motion for a continuance, and the BIA erred in upholding the denial. Therefore, the court granted the petition as to petitioner's adjustment of status application and remanded to the BIA for further proceedings.

In consolidated petitions for review, petitioner challenged two decisions by the BIA: first, challenging the finding that she was statutorily ineligible for asylum, withholding of removal and protection under the Convention Against Torture (CAT) in the form of withholding of removal based on the terrorism bars in 8 U.S.C. 1158(b)(2)(A)(v); and second, challenging the finding that she was not entitled to deferral of removal under the CAT. The court held that because the BIA's conclusions that the Eritrean Liberation Front (ELF) was a terrorist organization and that petitioner engaged in terrorist activities were supported by substantial evidence and that the court lacked jurisdiction to address other arguments raised by petitioner, the court denied in part and dismissed in part those aspects of the petitions for review. The court held, however, that because the record compelled the conclusion that petitioner had demonstrated that it was more likely than not that upon a return to Eritrea she would be tortured by or with the acquiescence of the Eritrean government, the court granted relief of removal under the CAT.

The Office of Foreign Assets Control (OFAC), a part of the United States Department of Treasury, froze the assets of Al Haramain Islamic Foundation, Oregon (AHIF-Oregon), a non-profit organization, and designated AHIF-Oregon as a "specially designated global terrorist" pursuant to Executive Order No. 13,224. AHIF-Oregon eventually filed an action asserting that the OFAC violated a variety of its statutory and constitutional rights. The Multicultural Association of Southern Oregon, which the government had not accused of supporting terrorism, challenged certain laws that barred it from providing services to designated entities such as the AHIF-Oregon. With the exception of one claim not at issue on appeal, the district court granted summary judgment to OFAC. The court affirmed the district court's ruling that substantial evidence supported OFAC's redesignation of AHIF-Oregon as a specially designated global terrorist, and the court affirmed the district court's rejection of AHIF-Oregon's due process claims. The court reversed the district court's rejection of AHIF-Oregon's Fourth Amendment claim and remanded for the district to determine what judicial relief, if any, was available. Finally, the court reversed the district court's dismissal of plaintiffs' First Amendment claim.

The Tribes of the Yakima Nation claimed that the principle of Indian tax immunity had been violated by the State of Washington's current cigarette excise tax, which the Tribes argued left their retailers liable for payment of the tax when retailers sold cigarettes to non-Indians. The court held that, although some elements of Washington's cigarette tax law had been modified over the past thirty years, the court concluded that none of those changes had materially altered the legal incidence of the cigarette tax approved of in Confederated Tribes of Colville Indian Reservation v. Washington. Accordingly, the court affirmed the district court's grant of summary judgment to the state.

Appellant appealed the district court's decision, on summary judgment, that letters sent by appellant to nearly 40,000 California residents constituted "false, deceptive, or misleading representation[s]... in connection with the collection of any debt" in violation of the federal Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. 1692e. Appellant also appealed the jury's award of statutory damages under both the FDCPA and California's Rosenthal Fair Debt Collection Practices Act (Rosenthal Act), California Civil Code 1788, et seq. The court held that the letters, which misleadingly implied that appellant had the ability to report obsolete debts to credit bureaus, and impliedly threatened to make such reports, violated section 1692e(5) and e(10) of the FDCPA. The court recognized that the FDCPA did not pre-empt consistent state action, including cumulative recovery of statutory damages under state law. The court also held that the Rosenthal Act's remedies were cumulative, and available even when the FDCPA afforded relief. Accordingly, the court affirmed the district court.

Defendant was convicted by a jury of nine counts of bank fraud, two counts of fraudulent use of an access device, two counts of attempted fraudulent use of an access device, two counts of laundering monetary instruments, and one count of money laundering. The district judge found by clear and convincing evidence that defendant had murdered his wife and that her death was the means he used to commit his crimes. Relying on that finding, the judge imposed a sentence of 262 months. Defendant appealed his sentence, arguing that the district court committed procedural error and that, in any event, its sentence was substantively unreasonable. The court held that it was eminently reasonable for the district court to infer that the victim was dead, that defendant knew she was dead, and that he had brought about her death in order to pillage her assets. The court also held that the district court's references to the seriousness of defendant's conduct and resulting harm to the victim was more than adequate to explain both its decision to depart drastically and its ultimate sentence. The court further held that its review of the record satisfied the court that the district court took great pains to fashion its sentence in light of the 18 U.S.C. 3553(a) factors. The court finally held that given that defendant's involvement in the victim's death was factually established, the district court was not unreasonable in giving it great weight; having determined that defendant intended to murder the victim, it was reasonable for the district court to substantially increase defendant's sentence; and the pre-indictment delay was not a relevant sentencing factor. Accordingly, the court affirmed the district court's judgment.

Defendant pleaded guilty for unlawfully attempting to reenter the United States after having previously been removed. At issue was whether the district court erroneously held that defendant's petty theft convictions each categorically qualified as an aggravated felony. The court held that because the judicially-noticeable documents submitted by the United States Attorney established clearly and unequivocally that defendant's May 30, 2006 petty theft conviction was based upon his plea of guilty to conduct that constituted a generic theft offense, and because this was a theft offense conviction for which the term of imprisonment was at least one year, defendant's offense level was correctly increased by eight levels under U.S.S.G. 2L1.2(b)(1)(C).

This case was brought pursuant to the Anticybersquatting Consumer Protection Act (ACPA), 15 U.S.C. 1125(d)(1) over the registered domain name "gopets.com." The main issue on appeal was whether the term "registration" applied only to the initial registration of the domain name, or whether it also applied to a re-registration of a currently registered domain name by a new registrant. The court concluded that such re-registration was not a "registration" within the meaning of section 1125(d)(1). Therefore, the court held that, because Edward Hise registered gopets.com in 1999, long before GoPets Ltd. registered its service mark, Digital Overture's re-registration and continued ownership of gopets.com did not violate section 1125(d)(1). The court held, however, that the Hises violated the ACPA in registering the additional domains because the Hises acted in bad faith and the court affirmed the district court's award for each of those registrations. The court also affirmed the district court's conclusion that the Hises' use of gopets.com violated the Lanham Act, 15 U.S.C. 1051 et seq., and remanded for determination of any relief that the district court might find appropriate for that violation. The court finally vacated the district court's award of attorney's fees and remanded for reconsideration by the district court.