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

Defendant conditionally plead guilty to illegal reentry after having been removed and subsequently appealed his conviction, contending that his expedited removal proceedings did not comport with due process where, among other things, the immigration officer who entered the removal order failed to provide defendant with notice of the charge against him and an opportunity to respond. The court concluded that defendant exhausted all available administrative remedies and was deprived of the opportunity for judicial review; the Supreme Court has categorically declared that once an individual has entered the United States, he is entitled to the protection of the Due Process Clause; in this case, there is no dispute that defendant had entered the United States before he was apprehended and he was entitled to expedited removal proceedings that conformed to the dictates of due process; any failure to inform defendant of the charge against him and to provide him the opportunity to review the sworn statements constituted a violation of his due process rights; defendant's due process rights to notice and an opportunity to respond were violated during his expedited removal proceedings; the court rejected the Government's argument that it should have been obvious to defendant that he was scrutinized for his presence in the United States without valid documentation; and, because defendant could plausibly been granted relief in the form of withdrawal of his application for admission, his removal order is invalid and cannot serve as the predicate for his conviction. Accordingly, the court reversed defendant's motion to dismiss the information and his conviction. View "United States v. Raya-Vaca" on Justia Law

Petitioner, a native and citizen of Mexico, petitioned for review of the BIA's decision affirming a final order of removal, holding that petitioner was ineligible for cancellation of removal because he was convicted of a crime involving moral turpitude (CIMT). Petitioner was convicted under California Vehicle Code 10851(a), which criminalizes the act of driving or taking a vehicle not one's own. The California statute proscribes both conduct that does not amount to a CIMT (temporary taking) and conduct that would constitute a CIMT (permanent taking). Therefore, petitioner's conviction is not categorically a CIMT. The court also concluded that the modified categorical approach is not applicable because the California statute is not divisible, and the BIA erred in its application of the modified categorical approach. In light of Moncrieffe v. Holder, the court concluded that the record is inconclusive as to whether petitioner was convicted for intending to permanently or temporarily take a vehicle, the court must presume that he was convicted of joyriding, which is not a crime of moral turpitude. The circuit's precedent in Young v. Holder is clearly irreconcilable with Moncrieffe. Accordingly, the court granted the petition and remanded to the BIA for further proceedings. View "Almanza-Arenas v. Holder" on Justia Law

Plaintiff filed a putative class action suit against Sirius XM after he received three unauthorized phone calls from Sirius XM on his cellphone during his trial subscription. Plaintiff had purchased a vehicle from Toyota that included a 90-day trial subscription to Sirius XM satellite radio. The district court dismissed the action and granted Sirius XM's motion to compel arbitration under the Federal Arbitration Act (FAA), 9 U.S.C. 2. The court, applying well-settled principles of contract law, concluded that no valid agreement to arbitrate exists between plaintiff and Sirius XM because plaintiff never assented to the Customer Agreement. A reasonable person in plaintiff's position could not be expected to understand that purchasing a vehicle from Toyota would simultaneously bind him or her to any contract to Sirius XM, let alone one that contained an arbitration provision without any notice of such terms. Nothing in the record indicated that Sirius XM's offer was clearly and effectively communicated to plaintiff by mailing him the Customer Agreement and his continued use of the service after his receipt of the Customer Agreement did not manifest his assent to the provisions of the Customer Agreement. Further, the Customer Agreement is not a valid "shrinkwrap" agreement. Because the arbitration clause in the Customer Agreement is unenforceable for lack of mutual assent, the court need not decide whether the arbitration provision in the Customer Agreement is unconscionable. Accordingly, the court reversed and remanded. View "Knutson v. Sirius XM Radio" on Justia Law

IntelliGender sold and advertised the IntelliGender Prediction Test as an accurate predictor of a fetus's gender using the mother's urine sample. The district court approved a Class Action Fairness Act (CAFA), 28 U.S.C. 1332(d), settlement between a nationwide certified class of purchasers of the Test and IntelliGender. The State subsequently filed an enforcement action against IntelliGender under the State's Unfair Competition and False Advertising Laws, largely based on the same claims as the class action. The court concluded that the district court correctly denied IntelliGender's motion to enjoin the State's enforcement action in its entirety where IntelliGender had not met its burden of showing that the CAFA class action settlement could bind the State in its sovereign capacity, where it asserted both public and private interests. The court agreed that a CAFA class action settlement, though approved by the district court, does not act as res judicata against the State in its sovereign capacity, even though many of the same claims are included in both actions. Because the State action is brought on behalf of the people, it implicates the public's interests as well as private interests, and therefore the remedial provisions sweep much more broadly. The court concluded, however, that the State is precluded from seeking the same relief sought in the CAFA class action where IntelliGender provided notice to the appropriate parties of the class action and the State chose not to participate. Therefore, the district court erred in denying IntelliGender's motion to enjoin the State's claims for restitution. Accordingly, the court affirmed in part and reversed in part. View "State of California v. IntelliGender" on Justia Law

Defendant plead guilty to being a deported alien found in the United States and subsequently appealed his sentence. The district court applied the modified categorical approach and concluded that defendant's prior conviction for possession of cocaine for sale, in violation of California Health and Safety Code section 11351, was for a "drug trafficking offense" under U.S.S.G. 2L1.2(b)(1)(A). In Coronado v. Holder, the court held that, because a similar California statute contains a "listing of alternative controlled substances," that statute was divisible within the meaning of Descamps v. United States. The California drug law at issue here also covers a list of controlled substances, and no meaningful distinction exists between the two statutes. Because there is no irreconcilable conflict between Coronado and any other case, the court must follow Coronado. Accordingly, the court concluded that section 11351 is divisible with respect to the type of controlled substance. Because the criminal complaint specified that Count 1 involved cocaine and the abstract of judgment specified that defendant pleaded to Count 1, the district court correctly concluded that defendant had been convicted under the modified categorical approach of a "drug trafficking offense" under U.S.S.G. 2L1.2(b)(1)(A). The court affirmed the judgment. View "United States v. De La Torre-Jimenez" on Justia Law

Defendant pleaded guilty to reentering the United States after removal and without permission and subsequently appealed his sentence. The district court applied the modified categorical approach and concluded that defendant's prior conviction for possession and transportation of cocaine for sale, in violation of California Health and Safety Code section 11352(a), was for a "drug trafficiking offense" under U.S.S.G. 2L1.2(b)(1)(A). The court affirmed in light of Coronado v. Holder and United States v. De La Torre-Jimenez, concluding that the district court did not err where section 11352(a) is "divisible," and the modified categorical approach was applicable in this case. View "United States v. Huitron-Rocha" on Justia Law

Plaintiff filed suit against his employer (URS) and the DOE, alleging violations of the Energy Reorganization Act (ERA), 42 U.S.C. 5851(b)(4), whistleblower protection provision, and requested a jury trial. The district court partially dismissed the complaint, denied a jury trial, and granted summary judgment against plaintiff. The court held that before an employee may opt out of the agency process and bring a retaliation suit against a respondent in federal court, that respondent must have had notice of, and an opportunity to participate in, the agency action for one year. In this case, plaintiff's claim against DOE failed for lack of administrative exhaustion. The court concluded that the administrative exhaustion was sufficient as to URS E&C. The court affirmed the district court's dismissal of URS Corp. for lack of administrative exhaustion. The court also concluded that, since plaintiff has shown that his protected activity was a "contributing factor" in the adverse employment action he suffered, he has met his burden for establishing a prima facie case of retaliation under the ERA. Further, the evidence created a genuine issue of fact as to whether plaintiff's compensation, terms, conditions, or privileges of employment were affected by his transfer. The court reversed the grant of summary judgment to URS E&C for ERA whistleblower retaliation. Finally, the court held that plaintiff has a constitutional right to a jury trial for his claims seeking money damages against URS E&C and the court reversed the district court's ruling. View "Tomosaitis v. URS Inc." on Justia Law

Defendant Robert Brown pleaded guilty to one count of wire fraud and Brown's partner, Duane Eddings, was convicted of six counts of mail fraud, one count of wire fraud, three counts of money laundering, and three counts of tax evasion. Defendants' convictions stemmed from their operation of a Ponzi scheme. The court concluded that the denial of the government's motion to reduce Brown's sentence under U.S.S.G. 5K1.1 was proper; Brown's 188-month sentence is not substantively unreasonable under 18 U.S.C. 3553(a); Eddings's mail fraud convictions related to the bankruptcy fraud were based on a legally valid theory; the evidence was sufficient to sustain Eddings's convictions on the Ponzi scheme mail fraud charges; Eddings's bankruptcy fraud convictions were properly grouped for sentencing with his Ponzi scheme convictions; applying a leadership role adjustment to Eddings's sentence under U.S.S.G. 3B1.1(c) was erroneous; increasing both defendants' sentences under U.S.S.G. 2B1.1(b)(15)(B)(iii) for endangering the solvency or financial security of 100 or more victims was erroneous; increasing Eddings's sentence under U.S.S.G. 2B1.1(b)(2)(C) for having 250 or more victims was erroneous; remand will be to the same district court judge; and, therefore, the court affirmed in part, vacated in part, and remanded. View "United States v. Brown, Jr." on Justia Law

Petitioner, a native and citizen of Mexico, sought review of the BIA's dismissal of his appeal of a final order of removal. Petitioner pled guilty to felony endangerment and misdemeanor driving under the influence of intoxicating liquor under Arizona law. Applying Chevron deference, the court held that the BIA reasonably determined that felony endangerment in Arizona is a crime involving moral turpitude (CIMT). Although the crime requires only reckless conduct, the level of harm resulting from the conduct is grave. The court agreed with the BIA that the creation of a substantial, actual risk of imminent death is sufficiently reprehensible, or in terms of the court's case law "base, vile, and depraved," to establish a CIMT, even though no actual harm need occur. The court held that excessive voluntary intoxication combined with the conduct at issue - creation of a substantial, actual risk of imminent death of another person - constitutes morally turpitudinous conduct. Accordingly, the court denied the petition for review. View "Leal v. Holder" on Justia Law

Appellant, an attorney, appealed the district court's order finding that he committed ethical violations, and disqualifying him from representing plaintiff in a pending action against Gateway. Appellant's violations stemmed from his use of knowledge gained from questionably-obtained emails to prepare a public records request. The court dismissed the appeal for lack of jurisdiction because the ethical violations are intertwined with the disqualification order and the United States Supreme Court has held that disqualification is not subject to interlocutory appeal. View "Thurbon v. Gateway Unified Sch. Dist." on Justia Law