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

Defendant was convicted for illegal reentry after removal in a case in which a Marine Corps surveillance unit spotted him immediately after he unlawfully entered the United States, and notified Customs and Border Patrol agents who soon detained him. Defendant argued that the Marine Corps surveillance violated the Posse Comitatus Act, which codified the longstanding prohibition against military enforcement of civilian law.   The Ninth Circuit affirmed Defendant’s conviction for illegal reentry after removal. The court reasoned that the military may still assist civilian law enforcement agencies if Congress expressly authorized it, and here, the 2016 National Defense Authorization Act directed the U.S. Secretary of Defense to offer military assistance to Border Patrol in hopes of securing the southern land border. The court concluded that the district court therefore properly denied Defendant's suppression motion based on the alleged violation of the Posse Comitatus Act. Further, the court also denied Defendant’s Batson challenge to the prosecution’s striking two Asian jurors from the venire, concluding that Defendant failed to rebut the prosecution’s race-neutral reasons for doing so. View "USA V. CLEMENTE HERNANDEZ-GARCIA" on Justia Law

Defendant’s ex-fiance discovered child pornography on his computer, which she then brought to the Sheriff’s Office. While the ex-fiance was there, the Detective asked her to show him only images that she had already viewed when she had accessed the laptop by herself. The ex-fiance complied with that request. Defendant moved to suppress on the ground that, because the Detective directed Defendant’s ex-fiance to access the computer without Defendant’s permission to show the Detective what she had already seen, the search of the computer at the sheriff’s office was an unlawful law-enforcement search.   The Ninth Circuit affirmed Defendant’s conviction. The court held Defendant’s objections to the use of evidence obtained from his computer all failed. The court reasoned that because U.S. Attorney does not dispute Defendant’s assertion that his ex-fiance acted as a state agent when she accessed the computer at the sheriff’s office, the court assumed that this was a government search. However, the court applied United States v. Jacobsen, 466 U.S. 109 (1984), and United States v. Bowman, 215 F.3d 951 (9th Cir. 2000), and held that the search was permissible because, when the ex-fiance accessed the child pornography on Defendant's computer at the sheriff’s office, she merely mimicked her earlier private search. View "USA V. DAREN PHILLIPS" on Justia Law

Defendant was arrested returning from the Philippines, where he engaged in sex tourism involving minors. He was convicted and sentenced on one count of attempted sexual of a child and one count of possession of sexually explicit images of children. Defendant arranged these activities through online messaging services provided by electronic service providers ("ESPs") Yahoo and Facebook. On appeal, Defendant argued that the evidence seized from his electronic devices should have been suppressed because, among other reasons, Yahoo and Facebook were government actors and violated his Fourth Amendment rights when they investigated his accounts without a warrant and reported the evidence. He further argued that the district court improperly instructed the jury on the required mental state for his sexual exploitation charge and miscalculated the sentence on his possession charge.   The Ninth Circuit affirmed Defendant’s conviction and sentence. The court rejected Defendant’s arguments and held that the government’s requests that Yahoo preserve records related to Defendant’s private communications did not amount to an unreasonable seizure. Further, Defendant did not have a legitimate expectation of privacy in the limited digital data sought in the government’s subpoenas. The court also held that the affidavit established a fair probability that child pornography would be found on the defendant’s electronic devices. Finally, the court held that there was no impermissible double counting in this case, as the enhancements were premised on separate exploitative acts. View "USA V. CARSTEN ROSENOW" on Justia Law

Petitioner challenged the life sentence that an Arizona court imposed on Petitioner for a crime he committed when he was 17-years-old. The state post-conviction court rejected Petitioner’s Miller claim, finding that unlike the individuals sentenced in Miller, Petitioner received an individualized sentencing hearing. The district judge held that the state court’s denial of post-conviction relief was an unreasonable application of Miller v. Alabama, 567 U.S. 460 (2012).The Ninth Circuit reversed the district court’s judgment granting habeas corpus relief to Petitioner. The court held that the state court’s application of Miller was reasonable. Here, the sentencing judge considered Petitioner’s youth and characteristics and concluded that Petitioner warranted a life sentence without the possibility of release. Petitioner argued that there was no practical difference between a sentence of life with the possibility of release and a sentence of natural life. Nonetheless, the court reasoned that despite the practical result, Miller does not mandate resentencing. View "MICHAEL JESSUP V. DAVID SHINN" on Justia Law

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

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

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

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

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

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