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

Defendant appealed the district court's denial of his 28 U.S.C. 2255 motion to correct a federal sentencing enhancement imposed on account of his Utah conviction for burglarizing a "dwelling." At issue was whether the court's decision in United States v. Grisel had retroactive effect. The court concluded that Grisel did have retroactive effect where Grisel was a non-constitutional decision of substantive law. Under Grisel, defendant's burglary conviction did not qualify categorically as a predicate offense and the documents in the record were not sufficient to sustain the sentence under a modified categorical analysis. Accordingly, the court reversed the district court and remanded for resentencing on an open record.

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.

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.

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.

This case arose from the controversial late-night arrests and subsequent release of two Phoenix newspaper executives. The newspaper executives and the Phoenix New Times, LLC (collectively, "plaintiffs") subsequently sued various officials connected with the Maricopa County Attorney's Office and the Sheriff's Office, including the county attorney, the sheriff, and a special prosecutor, alleging that the special prosecutor and possibly others ordered the arrest of the newspaper executives at their homes in the middle of the night after The Phoenix New Times newspaper published various articles critical of the officials. At issue was whether the district court erred in dismissing plaintiffs' federal claims and in remanding their remaining claims to state court. The court held that, while many of the actions alleged were protected by either absolute or qualified immunity, the actions of the special prosecutor in arranging the newspaper executives' arrest raised colorable claims of First and Fourth Amendment violations. Accordingly, the court affirmed in part and reversed in part.

This action stemmed from the City of San Diego's Municipal Election Campaign Control Ordinance, San Diego, Cal., Municipal Code ch. 2, art. 7, div. 29, which imposed limitations on campaign finance. Plaintiffs raised a First Amendment challenge to the campaign finance laws. The district court considered the provisions and generally upheld the city's pure contribution limits but enjoined a provision that restricted both the fundraising and spending of independent political committees. Both parties cross-appealed the district court's grant in part of preliminary injunctions for certain provisions at issue. The court affirmed the district court's judgment because the district court properly applied the applicable preliminary injunction standard in the context of the presently discernible rules governing campaign finance restrictions.

Appellant filed a petition for writ of habeas corpus relief where he was found guilty of first-degree murder. At issue was whether appellant's constitutional right to confront witnesses was denied in his jury trial by the admission of testimony by law enforcement officers regarding statements made by a potential witness who did not testify. The court held that the admission of the testimony was erronous and prejudicial under the Brecht v. Abrahamson standard where the testimony bolstered the the state's weak case against appellant and flatly contradicted appellant's alibi defense. Accordingly, the court reversed the denial of appellant's petition for writ of habeas corpus and remanded with instructions to grant the writ unless the State elected to retry appellant within a reasonable amount of time.

Appellant appealed the grant of summary judgment in his civil rights action arising from the suspension of his medical staff privileges at the University Medical Center of Southern Nevada ("UMC"), a county hospital organized under the laws of Nevada, as well as the denial of his motion for leave to file a third amended complaint asserting claims under 42 U.S.C. 1983. The principal issue on appeal was whom, if anyone, could appellant sue under 42 U.S.C. 1983 for his constitutional injury. The court held that the district court erred in determining that only the MEC, not named a party to the suit, could be liable for appellant's alleged section 1983 claims. The court also held that, because appellant alleged sufficient facts that the individually named voting members of the MEC acted under color of state law in effecting the unconstitutional deprivation of his protected property interest, amending his complaint to include reference to section 1983 would not be futile or prejudice defendants.