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

Articles Posted in Criminal Law
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The court addressed the threshold question of whether Defendant’s conduct advanced “the criminal purpose charged.” The court emphasized that Defendant was not charged with attempting to engage in sexual activity with a minor; rather, the “criminal purpose charged” under Sec. 2422(b) was the “attempt to achieve the mental act of assent.” The court reasoned that Defendant’s multiple proposed lurid rendezvous, even if hypothetical, constituted a substantial step in his attempt to cause a minor to assent to unlawful sexual activity. The court rejected Defendant’s claim that physical proximity or his attempt to travel was necessary to constitute a substantial step under Sec 2422(b).Addressing the second element, the court held that a rational juror could readily conclude that the facts show that Defendant attempted to persuade, induce, entice, or coerce a minor’s assent to unlawful sexual activity. Third, the court found that an actual minor victim is not required for an attempt conviction under Sec 2422(b). Finally, to the fourth element, the court wrote that Defendant properly conceded that United States v. Lopez, 4 F.4th 706 (9th Cir. 2021), rejected his argument that the Guam statute mentioned in the indictment does not apply to conduct on a military base because it was “not . . . assimilated into federal law under the Assimilative Crimes Act.” The court addressed other arguments concerning the conviction and sentence in a concurrently filed memorandum disposition. View "USA V. MICHAEL MCCARRON" on Justia Law

Posted in: Criminal Law
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The district court ruled that two of Defendant’s prior felony convictions, a 2007 conviction for criminal possession of dangerous drugs with intent to distribute (“2007 marijuana conviction”) and a 2013 conviction for criminal distribution of dangerous drugs (“2013 cocaine conviction”)—qualified as “controlled substance offenses” under USSG Sec 4B1.2(b). The district court, in turn, applied the enhancement in USSG Sec. 2K2.1(a)(2).The court accepted the government’s concession that United States v. Bautista, 989 F.3d 698 (9th Cir. 2021), is controlling as to the sentencing enhancement based on the 2007 marijuana conviction, and that the court should remand for resentencing without treating the marijuana conviction as a qualifying offense. The court held that although Defendant’s accountability statutes include offers to engage in prohibited conduct, they are not rendered categorically overbroad with respect to Secs. 4B1.2(b) and 2K2.1(a).The court held (1) that when the district court reached its decision that a cocaine conviction under Montana Code Annotated Secs. 45-9-101 and 50-32- 224(1)(d) could constitute a controlled substance offense under Sec. 4B1.2(b), there was no (and there still is no) binding precedent to the contrary; and (2) that certain of the grounds for the district court’s rulings were not rejected in binding precedent until after its sentencing decision.The court reversed the district court’s sentencing enhancement insofar as it rested on Defendant’s 2007 marijuana conviction and remanded for resentencing. Finally, the district court’s determination regarding Defendant’s 2013 cocaine conviction was not plainly erroneous. View "USA V. ROBERT HOUSE" on Justia Law

Posted in: Criminal Law
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After Defendant sold fentanyl to an undercover officer, federal agents executed a search warrant at his home, leading to the discovery of fentanyl, oxycodone and a loaded firearm. Defendant was indicted on conspiracy to distribute a substance containing fentanyl, possession with intent to deliver fentanyl, and possession of a firearm in furtherance of drug trafficking.At trial, Defendant contested only the conspiracy and firearms charges. As to the firearm offense, Defendant presented a witness who testified that he sold the gun to Defendant. The witness claimed that he was moving out of the state and did not have any place to store the gun. The witness also testified that the gun had nothing to do with any drug transaction. Defendant was convicted on all charges and sentenced to 120 months incarceration on the drug offenses and 60 months on the firearm offense.Defendant appealed, challenging the district court's supplemental instruction to the jury that allowed the jury to convict him by finding that the drug had a connection to the drug trafficking charges. The Ninth Circuit agreed, reversing Defendant's firearm conviction. Applying a plain error standard, the panel determined that the district court erred in instructing the jury "in furtherance of" meant that “there must be a connection between the firearm and the drug trafficking offense. The district court's definition failed to explain to the jury that it needed to find the firearm somehow facilitated the drug trafficking offenses to convict Defendant. View "USA V. RHETT IRONS" on Justia Law

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Defendant was charged with robbing the same bank two times. The first robbery occurred in October 2016. In December 2016, officers found the defendant passed out behind the wheel of a vehicle that was stopped in traffic. Officers found a firearm during a search of the vehicle. It was subsequently determined that the firearm in the defendant’s vehicle was the firearm used in the October 2016 robbery. The defendant was charged with robbery and the gun was confiscated. In January 2017, the bank was robbed a second time, by seemingly the same person. This time, the robber used a silver firearm. The defendant was ultimately charged with the second robbery of the bank.The Eighth Circuit affirmed the denial of the defendant’s motion to suppress, finding that officers did not unreasonably delay the traffic stop. Even if there was an unreasonable delay, the district court’s application of the inevitable-discovery rule was not erroneous.The court also rejected the defendant’s claim that robbery was not a crime of violence and, therefore, he could not be charged with using a firearm during a crime of violence. Under binding circuit court precedent, robbery is a crime of violence.Finally, the court affirmed the denial of the defendant’s motion for judgment of acquittal, finding the evidence was sufficient to find that the defendant committed both robberies. View "USA V. ANTHONY HYLTON, JR." on Justia Law

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Defendant was sentenced to 24 months imprisonment following a conviction for wire fraud. With the government’s consent, Defendant was allowed to self-surrender to the Bureau of Prisons (“BOP”). Before he was required to turn himself in, Defendant sought compassionate release through the BOP. After the BOP did not respond to his requests, Defendant filed a motion for compassionate release in the district court.The district court denied Defendant’s motion for compassionate release, finding him ineligible because he was not yet in custody at the time he filed the motion. The Ninth Circuit affirmed. In discussing a district court’s ability to modify a sentence, 18 U.S.C. sec. 3582(c)(1)(A) provides, the court “may reduce the term of imprisonment . . . that does not exceed the unserved portion of the original term of imprisonment.” This implies that a defendant’s term of incarceration has begun. Thus, the Ninth Circuit held that the district court properly denied Defendant's motion for compassionate release because he was not in custody when it was filed. View "USA V. GEORGE FOWER" on Justia Law

Posted in: Criminal Law
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Defendant was convicted of 28 felony offenses in connection with a fraud conspiracy involving 120,000 American Express Cards. In sentencing Defendant to 27 years’ imprisonment, the district court relied in part on Application Note 3(F)(i) to U.S.S.G. Sec. 2B1.1 (“the Application Note”), which provides that the “loss” amount for the use of counterfeit credit cards must at least $500 per credit card used. Using this multiplier, the district court applied a 22-level enhancement.The Ninth Circuit vacated Defendant’s sentence. Under Stinson v. United States, 508 U.S. 36 (1993), an Application Note is authoritative unless it is “inconsistent with, or a plainly erroneous reading of, that guideline.” Thus, if an Application Note conflicts with the Guidelines, the Guidelines must be given effect over the Application Note.Defendant’s fraud scheme involved charging $15 to $30 per card, resulting in actual losses of $1.4 million. However, the use of the Application Note calculated the loss amount to be $60 million. Here, the Ninth Circuit found that the Application Note’s multiplier rule does not comport with the plain meaning of “loss,” and thus, Defendant’s 22-level enhancement based on the calculated $60 million loss cannot stand.The Ninth Circuit also found that the district court erred in sentencing Defendant to 264 months for each wire and mail fraud count when the maximum statutory penalty was 240 months. View "USA V. RUSLAN KIRILYUK" on Justia Law

Posted in: Criminal Law
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Defendant was convicted of attempted illegal entry under 8 U.S.C. Sec. 1325(a). On appeal to the Ninth Circuit, Defendant claimed the district court erred in denying his request for a jury instruction on the lesser-included offense of misdemeanor attempted illegal entry.The Ninth Circuit reversed Defendant’s conviction. Under United States v. Arnt, 474 F.3d 1159 (9th Cir. 2007) A defendant is entitled to an instruction on a lesser-included offense if 1) the elements of the lesser offense are a subset of the elements of the charged offense and; 2) a jury could rationally find the defendant guilty of the lesser offense and acquit him of the more serious offense.Here, the government conceded that misdemeanor attempted illegal entry is a less-included offense of felony attempted illegal entry. The Ninth Circuit held that a rational juror could have acquitted Defendant of the more serious offense in favor of convicting him of misdemeanor illegal entry. The only distinct element required for felony attempted illegal entry is a prior conviction for the same crime. Thus, the jury could have rationally chosen the lesser offense by finding that the government failed to prove Defendant was previously convicted under 8 U.S.C. Sec. 1325(a). View "USA V. LUCIO MEDINA-SUAREZ" on Justia Law

Posted in: Criminal Law
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The Ninth Circuit affirmed defendant's conviction for 18 fraud-related counts in a case where defendant stole $10 million in digital gift cards from his employer, Microsoft, using login credentials he stole from his coworkers. The panel concluded that there was probable cause to support the search warrant where, considering the totality of the circumstances, the search warrant affidavit shows a fair probability that evidence of defendant's crimes would be found on a computer at his residence. Therefore, there was an adequate nexus between the unlawful activities and the place to be search. The panel also concluded that the evidence supporting the application was not stale.The court rejected defendant's contention that his convictions for aggravated identity theft are infirm because the test accounts do not constitute a "means of identification" under 18 U.S.C. 1028A(a)(1), in that the accounts do not "identify a specific individual." Rather, the panel concluded that the test accounts' purpose, prerequisites, and functionality do not bear on whether they identify a specific individual. The panel stated that the test accounts at issue here clearly could be used to identify specific Microsoft employees because the company’s investigators actually did identify four individuals. The panel further concluded that the district court's exclusion of evidence regarding defendant's asylum status did not deny him a defense. Nor did the district court abuse its discretion in excluding the evidence. Finally, the district court properly denied the motion to remove Juror No. 12. View "United States v. Kvashuk" on Justia Law

Posted in: Criminal Law
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The Ninth Circuit affirmed the district court's denial of habeas relief to petitioner, who was sentenced to death after being convicted of murder, five counts of robbery, and two counts of rape in concert. The panel concluded that the California Supreme Court on direct appeal reasonably rejected petitioner's claim regarding an erroneous aiding and abetting instruction. Rather, the state court reasonably concluded that the instructions were adequate for the jury to make the requisite culpability finding, especially in light of the exception to the rule of Enmund found in Tison v. Arizona, 481 U.S. 137 (1987) and Tapia v. Roe, 189 F.3d 1052 (9th Cir. 1999).Although counsel's failure to investigate and present mitigation evidence at the penalty phase was deficient, given the entirety of the evidence before the jury, petitioner's disruptive conduct in front of the jury and the sure-to-be-admitted rebuttal and impeachment evidence that would follow introduction of the mitigation evidence, the panel concluded that the California Supreme Court reasonably concluded that petitioner did not show a reasonable probability that the result would have been different but for counsel's unprofessional errors. View "Ross v. Davis" on Justia Law

Posted in: Criminal Law
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The Ninth Circuit affirmed the district court's denial of a motion to dismiss a Second Superseding Indictment (SSI) charging defendant with racketeering conspiracy. After determining that it had jurisdiction under the collateral order doctrine to hear this interlocutory appeal, the panel held that the Juvenile Delinquency Act (JDA) does not preclude the government from prosecuting a person as an adult for a continuing conspiracy that includes both pre- and post-majority conduct after the court dismisses a JDA information charging that person with conspiracy based solely on pre-majority conduct.In this case, because defendant's participation in the conspiracy allegedly continued beyond his eighteenth birthday, it was no longer an act of juvenile delinquency under the JDA. Rather, the panel concluded that the conduct became a continuing adult RICO conspiracy offense which began when he was a juvenile but continued when he allegedly engaged in additional acts in furtherance of the ongoing conspiracy after reaching the age of majority. View "United States v. Mendez" on Justia Law