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

Articles Posted in Criminal Law
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Defendant appeals the district court's partial denial of his motion to suppress evidence resulting from a search of his vehicle. At issue was whether the insertion of a car key into a lock on the vehicle's door for the sole purpose of aiding the police in ascertaining its ownership or control is a "search" within the meaning of the Fourth Amendment. The Ninth Circuit has previously held that it was not, applying the "reasonable expectation of privacy" test from Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring). See United States v. $109,179 in U.S. Currency, 228 F.3d 1080, 1087–88 (9th Cir. 2000).However, in light of recent Supreme Court authority tying the Fourth Amendment's reach to the law of trespass, the panel must conclude that because "[t]he Government physically occupied private property for the purpose of obtaining information," United States v. Jones, 565 U.S. 400, 404 (2012), it conducted a search within the meaning of the Fourth Amendment. Therefore, a Fourth Amendment search occurs when an officer physically inserts a key into the lock of a vehicle for the purpose of obtaining information, as occurred in this case when an officer inserted the key specifically to learn whether defendant exercised control over the vehicle. On the record before the panel, it is unclear whether the officer had probable cause to believe that the particular vehicle into which he inserted the key was owned or controlled by defendant. The panel remanded for the district court to conduct an evidentiary hearing and to rule on the suppression motion in light of the Jones and Jardines principles.Finally, the panel held that the district court erred in finding that defendant was categorically ineligible for an acceptance-of-responsibility reduction on the ground that defendant did not accept responsibility for the greater offense of possession with intent to distribute. The panel explained that USSG 3E1.1(a) does not require that defendant admit to all the charged offenses. Consequently, in the event the district court upholds the search on remand and reinstates defendant's conviction, the district court shall conduct a resentencing so that it may make a factual finding regarding acceptance of responsibility in the first instance. View "United States v. Dixon" on Justia Law

Posted in: Criminal Law
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The Ninth Circuit denied a petition for review of the BIA's decision dismissing petitioner's appeal of the IJ's finding of removability based on his past drug convictions. Under the Special Agricultural Worker program (SAW), agricultural workers meeting certain qualifications could obtain lawful temporary resident status, after which they were automatically adjusted to lawful permanent residency on a set schedule. Petitioner had obtained lawful permanent resident status through SAW, but it turns out that before he applied for SAW temporary resident status, he had been convicted of two drug offenses that would have rendered him ineligible for admission into the United States.The panel held that, under SAW, an alien who was inadmissible at the time of his adjustment to temporary resident status because of disqualifying convictions may be removed after his automatic adjustment to permanent resident status, despite the Attorney General never having initiated termination proceedings while the alien was a temporary resident. The panel rejected petitioner's argument that SAW's limitations on administrative and judicial review prevent the government from seeking his removal. Finally, the panel concluded that Barton v. Barr, 140 S. Ct. 1442 (2020), provided no support for petitioner's assertion that under provisions unique to SAW, he could only be removed for his drug convictions during the period of his temporary residency. View "Hernandez Flores v. Rosen" on Justia Law

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The Ninth Circuit affirmed defendant's conviction for two counts of aggravated identity theft under 18 U.S.C. 1028A. Defendant was the owner and operator of a business that provided therapeutic services, and her convictions stemmed from her fraudulently billing government health care program for speech therapy services provided to children of military families. In this case, defendant's use of the speech pathologist's name and National Provider Identifier number on the claim forms was "during and in relation" to the commission of wire fraud and thus constituted "use" of another's identification under section 1028A. Defendant's other challenges are addressed in a concurrently filed memorandum disposition. View "United States v. Harris" on Justia Law

Posted in: Criminal Law
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The Ninth Circuit affirmed the district court's denial of Jermain Hardiman's motions under 28 U.S.C. 2255 and 18 U.S.C. 3582(c)(2). A jury found that Hardiman was responsible for distributing at least 28 grams but less than 280 grams of cocaine base. At sentencing, the district court disagreed and found that Hardiman should be held responsible for more than 280 grams of cocaine base. After Hardiman’s direct appeal became final, the panel held in United States v. Pimentel-Lopez, 859 F.3d 1134 (9th Cir. 2016), that a district court is not entitled to make a drug quantity finding in excess of that found by the jury in its special verdict.The panel held that Pimentel-Lopez announced a "new" rule of criminal procedure which is not retroactive under Teague v. Lane, 489 U.S. 288, 310 (1989). Accordingly, Pimentel-Lopez is inapplicable to Hardiman's section 2255 motion, and the district court did not err by denying the motion. The panel also held that the district court did not err at the section 3582(c)(2) proceeding by failing to revisit its drug quantity finding under Pimentel-Lopez and the Sixth Amendment. The panel explained that Hardiman's arguments about Pimentel-Lopez were not affected by Amendment 782 and therefore are outside the scope of the proceeding authorized by section 3582(c)(2). In this case, Hardiman does not otherwise argue that the district court abused its discretion by denying his section 3582(c)(2) motion based on its assessment of the section 3553(a) factors or the circumstances of his case. View "United States v. Hardiman" on Justia Law

Posted in: Criminal Law
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The Ninth Circuit denied applicant's application for federal habeas corpus relief from his 1997 conviction in Hawaii state court for second-degree murder where applicant seeks retroactive relief based on McCoy v. Louisiana, 138 S. Ct. 1500 (2018). The district court construed the motion as an application to file a second or successive (SOS) habeas petition and referred it to the Ninth Circuit.The panel accepted the referral and confirmed that the Rule 60(d) filing is properly construed as an application for authorization to file an SOS habeas petition. The panel held that the application does not make the required prima facie showing pursuant to 28 U.S.C. 2244(b)(2). The panel assumed without deciding that McCoy did indeed create a new rule of constitutional law and that it was previously unavailable to applicant, but found that the application was otherwise deficient. In this case, applicant failed to show that McCoy was made retroactive on collateral review by the Supreme Court and that his proposed petition would rely on McCoy's rule. View "Christian v. Thomas" on Justia Law

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The Ninth Circuit denied applicant's request for authorization to file a second or successive motion under 28 U.S.C. 2255 to vacate his 2015 conviction and sentence for being a felon in possession of a firearm, in violation of 18 U.S.C. 922(g)(1) and 924(a)(2), based on Rehaif v. United States, 139 S. Ct. 2191 (2019). Rehaif held that a conviction under section 922(g), which prohibits firearm possession for certain categories of individuals, and section 924(a)(2), which imposes penalties on those who "knowingly violate" section 922(g), requires proof that the defendant "knew he belonged to the relevant category of persons barred from possessing a firearm."The panel held that applicant failed to make a prima facie showing that Rehaif announced a new constitutional rule as required by section 2244(b)(2)(A), (b)(3)(C). The panel explained that in announcing the scope of "knowingly" in section 924(a)(2), Rehaif announced a statutory, rather than a constitutional, rule. View "Tate v. United States" on Justia Law

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Plaintiffs, 134 men and women registered as sex offenders in Idaho, filed suit claiming that the retroactive application of Idaho's Sexual Offender Registration Notification and Community Right-to-Know Act (SORA) is unconstitutional. The district court granted defendants' motions to dismiss.The Ninth Circuit reversed in part, holding that the district court erred in dismissing the ex post facto claim on the basis that SORA was civil in intent and not punitive in effect. The panel explained that the district court erred by applying plaintiffs' ex post facto claim as an as-applied challenge; erred by applying the "clearest proof" standard at the motion to dismiss stage; and erred in finding the outcome of the Smith factors analysis controlled by precedent. Because the district court predicated its dismissal of the Eighth Amendment and double jeopardy claims on its dismissal of the ex post facto claim, the panel held that those judgments were also in error. The panel also held that the district court erred in dismissing plaintiffs' free exercise claim because the district court erred in finding that plaintiffs failed to allege sufficient facts to plead a plausible claim under Idaho's Free Exercise of Religion Protected Act (FERPA). In this case, plaintiffs have alleged facts showing that the challenged policy substantially burdens the exercise of their religious beliefs. The panel found no error in the district court's analysis of plaintiffs' vagueness, Free Association, Equal Protection, Contracts Clause, Takings, Separation of Powers, and state Police Power challenges. Therefore, the panel affirmed the dismissal of those claims. The panel remanded for further proceedings. View "Does v. Wasden" on Justia Law

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The Ninth Circuit vacated defendants' sentences imposed after they pleaded guilty to multiple offenses, including conspiracy to possess unauthorized access devices, access device fraud, and aggravated identity theft. Defendants' convictions arose from their installation of cameras and skimmers at ATM machines to film fingers as PINS were entered and to record the information of inserted cards.The panel held that the record does not support the conclusion that defendants obtained 852 and 754 account numbers respectively. The panel explained that, while there is evidence that defendant hoped to obtain account information for each ATM customer, there is insufficient evidence that they succeeded in doing so. Therefore, the district court clearly erred by applying a twelve-level increase to defendants' base level under USSG 2B1.1(b)(1) based on its conclusion that defendants obtained account information for each person who visited the ATMs while the cameras and skimmers were installed. In this case, while the government showed how many people used the ATMs while the skimmers were installed, it did not provide any evidence of the skimmer success rate, either for these transactions or even for hypothetical transactions. View "United States v. Ruiz Gainza" on Justia Law

Posted in: Criminal Law
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On remand from the Supreme Court, the Ninth Circuit affirmed defendant's convictions on two counts of encouraging and inducing an alien to remain in the United States for the purposes of financial gain in violation of 8 U.S.C. 1324(a)(1)(A)(iv) and 1324(a)(1)(B)(i)). Defendant, who operated an immigration consulting business, continued to sign retainer agreements and inform clients that they could obtain green cards via a labor certification program under Section 245i of the Immigration and Nationality Act, which defendant knew had expired.The panel rejected defendant's contention that the conduct charged is beyond the scope of Subsection (A)(iv) and held that the fact that engaging in the underlying section 245i process may have yielded some legitimate benefit to defendant's clients does not detract from her culpability under Subsection (A)(iv). The panel also held that defendant did not lack fair notice that her conduct violated the law and her prosecution did not violate due process; the Subsection (A)(iv) charges against defendant were not impermissibly vague, and the district court did not err by refusing to dismiss them; and, because defendant's conduct was not protected by the First Amendment, the district court did not err by denying her motion to dismiss the charges on First Amendment grounds. Finally, the panel held that the evidence was sufficient to establish that defendant encouraged or induced her clients to remain in the United States. View "United States v. Sineneng-Smith" on Justia Law

Posted in: Criminal Law
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The en banc court affirmed defendant's conviction for misdemeanor assault within the special aircraft jurisdiction of the United States. Defendant was traveling on a commercial flight from Minneapolis to Los Angeles when she argued with another passenger and slapped him in the face.The en banc court held that venue for in-flight federal offenses is proper in the district where a plane lands. The en banc court explained that, for crimes committed on planes in flight, the Constitution does not limit venue to the district directly below the airspace where the crime was committed, and thus venue "shall be at such Place or Places as the Congress may by Law have directed." The en banc court joined the Tenth and Eleventh Circuits and concluded that the second paragraph of 18 U.S.C. 3237(a) applies to federal crimes committed on commercial aircraft within the special aircraft jurisdiction of the United States. Such in-flight crimes are covered by section 3237(a) and may be prosecuted in the flight's landing district. View "United States v. Lozoya" on Justia Law

Posted in: Criminal Law