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

Petitioner, a lawful permanent resident of the United States, was ordered removed on the ground that he had been convicted of an aggravated felony. Petitioner contended that the evidence was insufficient to establish that the crime of which he was convicted was an aggravated felony. The court concluded that petitioner's conviction of first-degree burglary was a conviction of an aggravated felony, and was sufficiently established by the state court's abstract of judgment. The court also rejected petitioner's ineffective assistance of counsel claim and accordingly denied the petition for review.

Defendant was convicted of fraud on two banks and was sentenced to one day of prison on each count and five years of supervised release, as well as restitution. Defendant subsequently violated his terms of supervised release on multiple occasions and was eventually sentenced to 24 months in prison to be followed by another 24 months of supervised release. The judge had given defendant more time in prison in order to facilitate his rehabilitation. At issue on appeal was whether rehabilitation could be considered for purposes of imposing imprisonment upon revocation of supervised release. The court overruled United States v. Duran and held that Tapia v. United States was the controlling statutory construction where rehabilitative benefits could not be the reason for imposing a prison sentence. Accordingly, defendant's sentence was vacated and the case remanded.

In a petition for writ of mandamus, petitioners challenged the district court's order denying their motion to intervene and be heard at defendant-real party in interest's sentencing hearing as purported crime victims under the Crime Victims Rights Act (CVRA), 18 U.S.C. 3771. The district court held that the rights provided by the CVRA did not apply to petitioners, and also declined to exercise discretion to hear and consider petitioners' proffered evidence. The court reviewed the record and concluded that petitioners have not met their burden and the trial judge did not clearly err as a matter of law, nor did he abuse his discretion. Accordingly, the court denied the petition for writ of mandamus under either the CVRA or the court's traditional mandamus authority.

Plaintiff and his children (plaintiffs) brought a 42 U.S.C. 1983 suit against defendants for damages resulting from plaintiff's unlawful arrest. Plaintiff was arrested as he stood outside a fair selling promotional tickets for $5 that he had received for free from a radio station. At issue was whether the district court properly granted summary judgment in favor of defendants on the grounds of qualified immunity. The court agreed with the district court that there was no probable cause to arrest plaintiff and his right to be free from unlawful arrest was violated. The court held, however, that the district court's grant of summary judgment on the grounds of qualified immunity for an unlawful arrest was reversed where all reasonably competent officers would have agreed that plaintiff was not committing a crime because there was no scalping law in Nevada; it was simply not a crime to sell tickets to a fair; plaintiff's t-shirt, which had the logo of the radio station, did not suggest fraud; and the ticket buyers were not duped by the sale. The court also held that plaintiffs' substantive due process right to family integrity was not violated where the facts of the case did not come close to rising to the level of conduct that shocked the conscience. Because the court concluded that plaintiffs' right to family integrity was not violated, the court need not reach the question of whether the deputy sheriff was entitled to qualified immunity for the violation of the right to family integrity.

Defendant, a citizen of Mexico and an alien, pleaded guilty pursuant to a plea agreement to violating 8 U.S.C. 1326(a) and 1326(b)(2) because he was found in the United States after having been removed or deported from the United States and without permission to reapply for admission following removal or deportation. Defendant timely appealed his sentence of 21 months' imprisonment where the district court held that a citation for a traffic violation was the same as an arrest under U.S.S.G. 4A1.2(a)(2). The court concluded that nothing in the record suggested that defendant was ever formally arrested for driving with a suspended license. Defendant was not told he was "under arrest," he was not transported to the police station, and he was not booked into jail. Absent one of these hallmarks of a formal arrest, the district court erred in finding that defendant had been "arrested" for purposes of the Sentencing Guidelines. Therefore, defendant's sentence was vacated and the case remanded for resentencing.

Defendant appealed the district court's imposition of a residency restriction as a special condition of supervised release, following his conviction and sentencing for one count of violating 18 U.S.C. 2423(c), which prohibited U.S. citizens from traveling to a foreign country and engaging in illicit sexual conduct. The court had jurisdiction pursuant to 18 U.S.C. 3742. Because the district court did not provide any explanation for its imposition of the 2,000 foot residency restriction, and none was apparent from the record, the district court committed procedural error. Thus, the court vacated the special condition and remanded to the district court to explain or reconsider the residency restriction.

Defendant pled guilty to one count of witness intimidation and subsequently assisted the government in prosecuting several of his former criminal associates. At issue was whether the district court could consider factors other than a defendant's substantial assistance in determining the amount of a Federal Rule of Criminal Procedure 35(b) sentence reduction. The court held that once a district court determined that a defendant had provided substantial assistance to the government, the court could consider factors other than assistance, including those listed in 18 U.S.C. 3553(a), in order to ensure that the sentence ultimately imposed accorded with the purposes of sentencing that Congress had articulated. Because the district court applied the correct legal standard in this case, the court affirmed its consideration of non-assistance factors and dismissed defendant's challenge to the length of the sentence reduction.

Defendant appealed from an oral order denying his request for appointment of new counsel and permitting him to proceed pro se. Defendant was charged in a superseding indictment with one count of being a previously deported alien found in the United States and was currently incarcerated and waiting trial. The court held that it lacked jurisdiction because the collateral order doctrine barred the immediate appeal of an order denying a request to appoint replacement counsel. Because it was clear that the order denying appointment of replacement counsel could be reviewed effectively after trial, the court declined to treat the appeal as a petition for mandamus.

Plaintiff appealed from the judgment of the district court dismissing his action against the State of Arizona and individual officials employed by the Arizona Department of Corrections for alleged negligence and alleged violations of his civil rights where plaintiff spent just over three years in prison pursuant to an erroneous sentence. The district court held that plaintiff failed to state a claim for which relief could be granted and plaintiff appealed. The court held that the district court properly dismissed plaintiff's negligence claim where the court did not believe that the Arizona Supreme Court would hold that the Department - an agency within Arizona's executive department - had the authority, much less the duty, to ensure that judicial orders complied with the law. Because plaintiff did not allege a violation of his Eight or Fourteenth Amendment rights by defendants, they were immune from action. Accordingly, the judgment was affirmed.

Petitioner, a native and citizen of El Salvador, petitioned for review of a decision by the BIA affirming a decision of the IJ to deny petitioner's application for withholding of removal and withholding and deferral of removal under the Convention Against Torture (CAT). The court held that a conviction for residential burglary under California Penal Code 459 constituted a crime of violence and was a "particularly serious crime." Therefore, petitioner was ineligible for withholding of removal. The court also held that, although gang members beat up petitioner and his cousin in 2005, there was no evidence that those gang members knew petitioner or his cousin, nor that the gang members had any reason to hurt them. Further, there was no evidence that the gang members were looking for petitioner today. Therefore, petitioner failed to prove its was more likely than not that he would be tortured upon his return under the CAT. Accordingly, the petition was denied.