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

The Ninth Circuit amended an opinion and dissent filed on July 28, 2014 in which a panel of the Ninth Circuit affirmed a conviction for attempting to enter the United States without consent after having been previously removed. Here the panel amended the opinion and dissent, denied a petition for panel rehearing, and denied a petition for rehearing en banc. Defendant collaterally attacked the underlying removal order, arguing that the immigration judge (IJ) erred in concluding that he had been convicted of an aggravated felony and therefore violated his right to due process by failing to advise him of his apparent eligibility for voluntary departure relief. The panel affirmed the conviction, holding (1) even if the IJ should have informed Defendant of his apparent eligibility for voluntary departure, Defendant was not prejudiced by the error, and therefore, the removal order was not fundamentally unfair under 8 U.S.C. 1326(d)(3); and (2) the conviction based on Defendant’s videotaped confession did not run afoul of the corpus delicti doctrine. View "United States v. Valdez-Novoa" on Justia Law

Petitioner, a native and citizen of Mexico, appealed the BIA's decision finding that his conviction for weapons possession, enhanced for sentencing purposes for gang activity, constituted a crime of moral turpitude. The court held that petitioner's sentence enhancement under California Penal Code 186.22(b)(1) does not categorically elevate a crime to a crime involving moral turpitude because the offense of weapons possession with a gang enhancement has none of the characteristics of moral turpitude the court has identified, and because California cases demonstrate that there is a realistic probability, not just a theoretical possibility, that California does in fact apply the gang enhancement that does not involve moral turpitude. Therefore, a conviction under California's gang enhancement statute does not change the crime of moral turpitude status of the predicate offense. The court held that application of the gang enhancement under section 186.22(b)(1) does not render petitioner's conviction for weapons possession under California Penal Code 12020 a crime of moral turpitude. Accordingly, the court granted the petition for review and remanded for further proceedings. View "Hernandez-Gonzalez v. Holder" on Justia Law

Defendant, a citizen of Mexico, appealed his sentence after pleading guilty to illegal reentry in violation of 8 U.S.C. 1326. The court concluded that the district court did not err in applying a 12-level increase to defendant's offense level based on a his prior 1992 Washington state drug conviction for delivery of heroin because it was a "drug trafficking offense;" the district court did not base its sentence on any clearly erroneous fact; and defendant's above-Sentencing Guidelines sentence of 46-months imprisonment was substantively reasonable in light of defendant's prior 70-month and 46-month sentences for illegal reentry. Accordingly, the court affirmed the judgment. View "United States v. Burgos-Ortega" on Justia Law

Defendant appealed his 18 year sentence after being convicted for conspiracy, distribution, and possession with intent to distribute cocaine base, seeking a retroactive reduction of his sentence based upon the 2010 Sentencing Commission's reduction of the Sentencing Guidelines retroactively for crack cocaine. In United States v. Austin, the court held that Justice Sotomayor's concurrence in the judgment in Freeman v. United States controls under Marks v. United States. In this case, the district court's determination that it lacked jurisdiction to reduce defendant's crack sentence is consistent with Austin. In light of Austin, defendant's sentence was "based on" his plea agreement pursuant to Fed. R. Crim. P. 11(c)(1)(C) unless one of the two Freeman exception applies, and they do not. Accordingly, the court affirmed the judgment of the district court. View "United States v. Davis" on Justia Law

Defendant appealed his conviction for possessing and distributing child pornography. The court concluded that convictions for possessing child pornography and distributing the same child pornography do not amount to double jeopardy; sharing the child pornography through a peer-to-peer network amounts to distribution, even though the distributor does not take some concrete affirmative action for the particular download that is charged as the distribution. The court also concluded that the evidence was sufficient to convict defendant of distribution under United States v. Budziak. In regards to defendant's argument under Federal Rule of Evidence 403 regarding the district court's admission of interview statements made in connection with a prior child pornography conviction, the Curtin-Waters error compels reversal. The district court cannot properly exercise its discretion to decide whether the probative value of evidence objected to under Rule 403 outweighs the risk of unfair prejudice without examining the evidence. Accordingly, the court vacated and remanded for further proceedings. View "United States v. McElmurry" on Justia Law

Plaintiff filed suit on behalf of her son, Philip Cortez, under 42 U.S.C. 1983, against a corrections officer and the State of Arizona after Cortez was attacked by two other inmates and sustained severe, permanent mental impairment. The court concluded that there are triable issues of material fact related to the officer's awareness of an objectively substantial risk of serious harm where the officer escorted Cortez and the other two inmates by himself through an isolated prison passage. All three inmates were mutually hostile, half-restrained, and high-security inmates. Further, there is sufficient evidence that the officer was subjectively aware of the risk involved in the escort and acted with deliberate indifference to Cortez's safety. The court also concluded that there are triable issues of material fact in regards to the gross negligence claim against the State where the State's gross negligence standard is lower than the federal deliberate indifference standard. Accordingly, the court remanded the district court's grant of summary judgment on plaintiff's claims and remanded for further proceedings. View "Cortez v. Skol" on Justia Law

Defendant appealed his conviction for making excessive campaign contributions, and making contributions in the name of another. The court concluded that the district court did not err in refusing defendant's proffered jury instructions that an unconditional gift of funds cannot violate 2 U.S.C. 441f if the funds have become the property of the donors under Nevada law because defendant's theory is not supported by law; to the extent defendant's theory is that the unconditional nature of the gifts prevented him from forming the necessary intent, the instructions given by the district court adequately encompassed his theory; defendant's claim that the individual contribution limits of section 441a and the prohibition on conduit contributions in section 441f violate defendant's free speech and association rights under the First Amendment is foreclosed by Buckley v. Valeo; the court rejected defendant's claims of evidentiary errors; and the evidence was sufficient to support defendant's conviction. Accordingly, the court affirmed the judgment of the district court. View "United States v. Whittemore" on Justia Law

Petitioner, convicted of being a felon in possession of a firearm, seeks certification of his filing of a second or successive 28 U.S.C. 2255 petition based on Descamps v. United States. As a preliminary matter, the court joined the majority of its sister circuits and held that when a section 2255(h) motion presents a complex issue, the court may exceed section 2244(b)(3)(D)'s thirty-day time limit. The court held that the Supreme Court did not announce a new rule of constitutional law in Descamps, but rather, clarified the application of the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e), in light of existing precedent. Accordingly, the court rejected petitioner's argument that Descamps announced a new rule of constitutional law, made retroactive on collateral review by the Supreme Court, that was previously unavailable. The court denied the motion for certification to file another habeas corpus petition. View "Ezell v. United States" on Justia Law

Defendant, convicted of drug-related charges, argued that the district court erred in admitting the opinion testimony of his United States probation officer identifying defendant's voice speaking primarily Spanish on wiretapped calls because the officer does not speak Spanish and had only heard defendant speak English. The court concluded that in this case, the officer's familiarity with defendant's voice was substantially more than the minimal familiarity Federal Rule of Evidence 901(b)(5) requires for admission of lay voice identification testimony. Defendant's challenges go to the weight rather than the admissibility of defendant's testimony. Accordingly, the court concluded that the district court did not abuse its discretion in ruling on the authentication of his voice on the recordings. View "United States v. Ortiz" on Justia Law

Plaintiff, while incarcerated, received a $107,416.48 settlement from a medical liability claim against a drug manufacturer whose products caused him to develop diabetes. Counsel in the product liability suit deposited the settlement proceeds into plaintiff's inmate trust account. After the ODOC issued an order requiring plaintiff to pay $65,353.94 for the estimated cost of his incarceration and then subsequently froze and withdrew the funds at issue, plaintiff filed suit alleging various constitutional violations. The court concluded that plaintiff received insufficient due process as the result of Oregon's actions considering plaintiff's substantial interest, the risk of erroneous deprivation, and the ability to provide a hearing without compromising a significant government interest. Nor should providing a pre-deprivation hearing be administratively burdensome. However, the court affirmed the district court's grant of summary judgment to defendants considering no precedent established a state's obligation to provide a pre-deprivation hearing in these circumstances and thus, was not clearly established at the time of the conduct. Further, the court affirmed the district court's grant of summary judgment to defendants on plaintiff's Eighth Amendment claim where the withdrawal was a reimbursement rather than a punishment. View "Shinault v. Hawks" on Justia Law