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

Peru sought to extradite former Peruvian president Alejandro Toledo Manrique (“Toledo”) to face criminal charges for allegedly accepting millions of dollars in bribes during his presidency. Peruvian prosecutors accused Toledo of money laundering and collusion in two Prosecutor’s Decisions, documents that summarize the ongoing investigation, and in an Acusación Fiscal, a document produced at the end of an investigation that lays out the crimes allegedly committed and supporting evidence. The Peruvian government presented initial and supplemental extradition requests to the United States, and following the usual procedures for extradition, a federal prosecutor filed a criminal complaint against Toledo. A United States magistrate judge certified the extradition to the State Department. Toledo petitioned for a writ of habeas corpus petition, which the district court denied, and Toledo appealed.   The Ninth Circuit denied Petitioner’s motion to stay his extradition proceeding. The panel weighed the four factors that guide consideration of whether to issue a stay. First, irreparable injury is obvious. Once extradited, Toledo’s appeal will be moot. Second, Toledo has not shown a likelihood of success on the merits on any of his three arguments. The panel wrote that the third and fourth factors— whether the issuance of a stay would substantially injure the other parties and the public interest—merge when the Government is the opposing party. The panel reaffirmed that the public interest will be served by the United States complying with a valid extradition application because proper compliance promotes relations between the two countries and enhances efforts to establish an international rule of law and order. View "ALEJANDRO MANRIQUE V. MARK KOLC" on Justia Law

Petitioner was convicted under Wash. Rev. Code Section 9A.56.190 and served a fifteen-month prison sentence. The BIA concluded that he was removable for having committed an aggravated felony under 8 U.S.C. Section 1101(a)(43)(G), which describes “a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment is at least one year.”   The Ninth Circuit denied Petitioner’s petition for review of the BIA’s decision that he was removable for having been convicted of an aggravated felony theft offense under 8 U.S.C. Section 1101(a)(43)(G). A plurality of the court concluded that it was necessary to consider Washington's accomplice liability in conducting the categorical analysis of Washington robbery. The plurality explained that, in Valdivia-Flores, the court relied on Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007), in which the Supreme Court concluded that generic theft encompasses aiding and abetting. Because Petitioner’s conviction did not establish that he acted as a principal, the plurality concluded that it must consider the possibility he acted as an accomplice. Having held that second-degree robbery under Wash. Rev. Code Section  9A.56.190 is a categorical match with generic theft, the en banc court concluded that Petitioner had been convicted of an aggravated felony and denied his petition for review. View "MCKENZY ALFRED V. MERRICK GARLAND" on Justia Law

Petitioner was born in the former Soviet Union in what is now Armenia. He entered the United States with his family in 1992 at age seven, becoming a lawful permanent resident in 1994. Petitioner and several others were charged in a 20-count indictment in district court and the Department of Homeland Security sought Petitioner’s removal. An Immigration Judge (IJ) found that Petitioner’s conspiracy conviction rendered him removable and that he was not entitled to relief from removal. The IJ thus ordered that Petitioner be removed to Armenia. The Board of Immigration Appeals (BIA) dismissed Petitioner’s appeal.   The Ninth Circuit dismissed in part and denied in part Petitioner’s petition for review. The panel held that: (1) in evaluating whether the government has satisfied the “exceed[ing] $10,000” requirement, the relevant loss amount for a conspiracy conviction is the loss associated with the conspiracy; and (2) the agreed-upon sentencing enhancement in Petitioner’s plea agreement was sufficient to prove that his offense of conviction involved more than $10,000 in losses. The panel held that under Section 1101(a)(43)(M)(i), the loss tied to a conspiracy conviction is the loss associated with the scheme that forms the basis for the conviction. The panel explained that when an alien has been convicted of a conspiracy to commit a qualifying crime of “fraud or deceit,” the government need not ascribe to the alien coconspirator some individual portion of the overall conspiracy-related loss to demonstrate that the loss threshold has been satisfied. The panel also concluded that the government had met its burden of proving that the conspiracy to which Petitioner pleaded guilty involved more than $10,000 in losses. View "ARMAN KHALULYAN V. MERRICK GARLAND" on Justia Law

Under private parties to provide technical assistance to law enforcement to aid in the execution of arrest warrants. Here, a journalist and associate editor at Forbes (“Petitioners”) filed petitions in the Northern District of California and the Western District of Washington seeking to unseal past All Writs Act (“AWA”) orders issued to an online travel-booking technology company related to ongoing criminal investigations in which the United States had obtained arrest warrants but had been thus far unable to make the arrests. The district courts in California and Washington denied Petitioners’ motions.   The Ninth Circuit affirmed the two district court orders denying petitions to unseal court records, the panel held that neither the First Amendment nor the common law provides a right of public access to third-party AWA technical assistance materials relating to ongoing criminal investigations involving unexecuted arrest warrants. In determining that the First Amendment’s right of access did not attach, the panel applied the “experience and logic” test set forth in PressEnter. Co. v. Superior Court, 478 U.S. 1, 7 (1986), and concluded that it was aware of no historical tradition of public access to proceedings and materials under the AWA to obtain technical assistance from third parties in executing arrest warrants.   Further, the court explained, given the similarities cross-cutting AWA third-party technical assistance proceedings, grand jury proceedings, and preindictment search warrant materials, as a matter of analogical reasoning, the materials Petitioners sought here were not within the common law right of access. View "FORBES MEDIA LLC, ET AL V. USA" on Justia Law

Defendant pled guilty to conspiring to distribute controlled substances within the Los Angeles County Jail (LACJ) system. At sentencing, the district court granted Defendant safety-valve relief from the mandatory minimum of five years imprisonment under 18 U.S.C. Section 3553(f). The government appealed, arguing Defendant was ineligible for safety-valve relief because he never proffered what he knew to prosecutors as required by Section 3553(f)(5).   The Ninth Circuit vacated the sentence and remanded for resentencing. The panel held that the district court erred by failing to make the requisite finding to support its application of the safety valve. Section 3553(f) requires the district court to make specific findings “at sentencing,” including that “the defendant has truthfully” proffered before it can apply the safety valve. The district court made no such finding here. The panel wrote that even if it could indulge Defendant’s request to assume that the district court implicitly found that his plea agreement constituted a sufficient proffer considering the government’s independent knowledge of the offense, Defendant’s plea agreement alone could not, on this record, have satisfied the proffer requirement. View "USA V. MARTIN SALAZAR" on Justia Law

Police stopped Defendant for a traffic violation, which led to the discovery of a firearm that Defendant, a convicted felon, could not lawfully possess.   The Ninth Circuit held that the officers did not unreasonably prolong the stop and that Defendant voluntarily consented to the search of his car. The court, therefore, affirmed the district court’s denial of Defendant’s motion to suppress. But, on one aspect of Defendant’s supervised release, the court remanded for the district court to conform its written judgment to the court’s oral pronouncement of Defendant’s sentence.   The court wrote that an officer’s asking Defendant two questions about weapons early in the counter—once before the officer learned that Defendant was on federal supervision for being a felon in possession and once after—was a negligibly burdensome precaution that the officer could reasonably take in the name of safety. Further, the officers’ subjective motivations are irrelevant because the Fourth Amendment’s concern with reasonableness allows certain actions to be taken in certain circumstances, whatever the subjective intent. A criminal history check and the officers’ other actions while Defendant was outside the car were within the lawful scope of the traffic stop.   As to whether the officers violated the Fourth Amendment when they searched Defendant’s car, the panel held that the district court did not err in finding that Defendant unequivocally and specifically consented to a search of the car for firearms. The panel remanded for the district court to conform the written judgment to its oral pronouncement of conditions concerning outpatient substance abuse treatment and vocational services programs. View "USA V. XZAVIONE TAYLOR" on Justia Law

A jury convicted Defendant of felonious assault on a peace officer under section 2903.13(A) of the Ohio Revised Code and misdemeanor resisting arrest. While Defendant was in prison, he was served with a “Notice of Intent to Issue a Final Administrative Removal Order.” The notice alleged that Defendant was a Mexican citizen in the country illegally who had been convicted of an aggravated felony and was thus removable. The notice alleged that his conviction qualified as an aggravated felony because it was a crime of violence under the INA. Defendant was once again arrested and charged with illegal reentry. Defendant moved to dismiss the indictment, arguing that his section 2903.13(A) assault conviction was not an aggravated felony. The district court denied Defendant’s motion.   The Ninth Circuit affirmed. The panel disagreed with Defendant’s contention that knowledge is not sufficient for “attempted use” because common law attempt requires specific intent. Defendant also argued that his prior offense is not a crime of violence because section 2903.13(A) does not require “violent” physical force but can be violated by offensive or de minimis contact. The panel explained that the text of section 2903.13(A) only criminalizes force capable of causing physical pain or injury and held that the type of conduct to which section 2903.13(A) has been applied by Ohio courts is force capable of causing physical pain or injury. The panel, therefore, concluded that section 2903.13(a) is a crime of violence under Section 16(a), it thus qualifies as an aggravated felony under Section 1101(a)(43)(F), and Defendant’s removal order was not fundamentally unfair. View "USA V. JACINTO ALVAREZ" on Justia Law

Defendant appealed his 188-month sentence imposed after he pleaded guilty to a one-count indictment for violation of 21 U.S.C. Sections 841 and 846 pursuant to a plea agreement. He contends that the U.S. Attorney implicitly breached the plea agreement by providing the court, both in its sentencing memorandum and its argument at sentencing, with inflammatory argument and information not relevant to the sentencing determination that could have had but one effect—to increase his sentence beyond the low-end of the U.S. Sentencing Guidelines range. Defendant argued that, by doing so, the government failed to meaningfully abide by its promise in the plea agreement not to recommend a sentence in excess of the low-end of the guidelines range.   The Ninth Circuit vacated Defendant’s sentence and remanded for resentencing before a different judge. The panel held that the government implicitly breached the plea agreement, a breach that amounted to plain error. The panel wrote that, at sentencing, the government never once stated affirmatively that it recommended a 151-month sentence or a sentence at the low-end of the calculated guidelines range. The panel rejected the government’s contention that references to damage and danger to society, the community and its families, Defendant’s prior criminal contacts, his high level of culpability, citation to a 30-year-old decision approving life without parole for a minor drug transaction, introduction of the dissension in the U.S. Attorney's Office over the low-end sentence, or its emphasis on the distribution of "massive, massive drug quantities over multiple, multiple years" were made to support the low-end guideline sentence for which the government promised to advocate. View "USA V. GERARDO FARIAS-CONTRERAS" on Justia Law

Defendant appealed his 2018 convictions for unlawful possession of a firearm under 18 U.S.C. Sections 922(g)(1) and 924(a)(2). Relying on the Supreme Court’s subsequent decision in Rehaif v. United States, 139 S. Ct. 2191 (2019), Defendant argued that his convictions should be overturned due to the district court’s failure to instruct the jury that the government “must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm,” which he argued was plain error.   The Ninth Circuit affirmed Defendant’s 2018 convictions. The panel wrote that it was undisputed that the district court’s failure to instruct on the Rehaif knowledge element was error and that the error was plain. The panel held, however, that Defendant cannot show that this error affected his substantial rights. In so holding, the panel did not need to reach whether being convicted as a juvenile or having been incarcerated for more than a year as a result of a juvenile conviction satisfies the Rehaif mens rea requirement. The panel held that Defendant’s two DUI convictions unambiguously demonstrate that there is no reasonable probability that a jury would find that Defendant did not know he had been convicted of a crime punishable by a year or more in prison at the time he possessed the firearm. The panel wrote that additional record evidence further demonstrates that Defendant clearly understood that he belonged to the category of persons barred from possessing a firearm. View "USA V. RYAN MICHELL" on Justia Law

In 1981, while serving two life sentences for multiple convictions for first-degree murder, Defendant beat a fellow inmate to death. After pleading guilty, he was sentenced to death in Idaho state court. Defendant obtained federal habeas relief with respect to his sentence and was resentenced to death in 1995. In a second petition, Defendant thereafter unsuccessfully sought federal habeas relief in the district court. The district court granted certificates of appealability (COAs) to two issues.   The Ninth Circuit filed (1) an order (a) amending and replacing an opinion filed July 20, 2022, (b) denying a petition for panel rehearing, and (c) denying on behalf of the court a petition for rehearing en banc; and (2) an amended opinion affirming the district court’s denial of Defendant’s second amended habeas corpus petition challenging his death sentence. The panel agreed with the district court that the Idaho Supreme Court reasonably found a lack of prejudice under the second prong of Strickland. The panel held further that under 28 U.S.C. Section 2254(e)(2), the district court was correct in declining to hold an evidentiary hearing on the new evidence that Defendant sought to introduce to bolster his IAC resentencing claim.   The panel wrote that even in the absence of Ramirez, it would have agreed with the district court because the new evidence introduced on federal habeas review in support of Defendant’s argument that he suffers from brain damage and an organic brain disorder was largely duplicative of evidence that had been introduced during his 1982 sentencing and his 1995 resentencing. View "THOMAS CREECH V. TIM RICHARDSON" on Justia Law