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

The Ninth Circuit granted the petition for review of the BIA's decision agreeing with the IJ that petitioner's convictions were crimes involving moral turpitude (CIMTs) and that she was not entitled to cancellation of removal. The panel concluded that petitioner's convictions are not CIMTs and therefore she was not removable under 8 U.S.C. 1227(a)(2)(A)(ii).In 2010, petitioner was convicted of solicitation to possess for sale less than two pounds of marijuana, in violation of Ariz. Rev. Stat. 13-1002 (solicitation), 13-3405(A)(2) (possession for sale), and (B)(4) (less than two pounds). Shortly thereafter, petitioner was convicted of offering to transport less than two pounds of marijuana for sale, in violation of Ariz. Rev. Stat. 13-3405(A)(4) (offer to transport) and (B)(10) (less than two pounds). The panel concluded that Arizona Revised Statutes 13-3405(A)(4), which prohibits certain conduct relating to marijuana, is overbroad and divisible; petitioner's section 13-3505(A) convictions, which involved categories in the statute involving the smallest quantity of marijuana, were not CIMTs; and petitioner was therefore not removable. View "Walcott v. Garland" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision dismissing petitioner's appeal of the IJ's order pretermitting his application for cancellation. The BIA held that petitioner failed to establish that he had not been convicted of offenses with an aggregate sentence of at least 5 years.The panel concluded that the phrase "an offense" in 8 U.S.C. 1229b(b)(1)(C) includes the multiple criminal convictions described in 8 U.S.C. 1182(a)(2)(B) that render an alien inadmissible. The panel rejected petitioner's contention that because the statutory disqualification is phrased in the singular, his multiple offenses do not trigger ineligibility. The panel also rejected petitioner's contention that the BIA erred in finding that his multiple convictions resulted in aggregated sentences of at least five years because the agency relied on the 2013 judgment, a record not clearly related to petitioner. Rather, substantial evidence supports the agency's determination that petitioner did not satisfy his burden to show that he had not been convicted of the qualifying offenses. View "Ramirez-Medina v. Garland" on Justia Law

The Ninth Circuit withdrew its previous opinion; filed a replacement opinion affirming the prejudice portion of the district court's order denying a 28 U.S.C. 2255 motion in which defendant challenged his felon-in-possession guilty plea on the ground that he was not informed of 18 U.S.C. 922(g)(1)'s knowledge-of-status element; and otherwise denied a petition for rehearing and, on behalf of the court, a petition for rehearing en banc. In this case, defendant fails to show actual prejudice from any error as nothing in the record objectively demonstrates that he would have not pled guilty had he known of section 922(g)(1)'s knowledge-of-status element. View "United States v. Pollard" on Justia Law

The Ninth Circuit affirmed the district court's denial of a habeas corpus petition challenging petitioner's Arizona conviction and death sentence for first-degree murder. Petitioner contends that his counsel did not investigate and present mitigating evidence at the penalty phase, including evidence of diffuse brain damage, childhood abuse, and substance abuse.The panel applied Strickland v. Washington, 466 U.S. 668 (1984), and concluded that petitioner has not shown either that his trial counsel's performance was constitutionally deficient or that the deficiencies were prejudicial. In this case, there is no showing that the education records nor the incarceration records contain meaningful mitigation evidence; petitioner has not met his burden of showing that counsel erred by not investigating and presenting evidence of his childhood abuse; petitioner's allegation that counsel erred by not investigating and presenting evidence of his substance abuse fails because counsel was not timely informed of his substance abuse; and petitioner has not shown that counsel erred by not seeking a psychological evaluation. View "Washington v. Shinn" on Justia Law

Orange County jail inmates brought 42 U.S.C. 1983 and other federal claims based on alleged failure to combat COVID-19. The district court granted provisional class certification and issued a preliminary injunction under the Prison Litigation Reform Act (PLRA), which automatically expired 90 days after being issued.The Ninth Circuit dismissed an appeal as moot because the injunction and provisional class certification are no longer in effect. While the Supreme Court’s emergency stay of the preliminary injunction may have prevented the injunction from having any further effect, it did not toll the 90-day limit unambiguously detailed in the PLRA. The court rejected the County’s assertion that the appeal fell within an exception to mootness because the issue was capable of repetition but evading review, noting that circumstances had changed since the original injunction issued, Given the Supreme Court’s stay of the injunction, the chance that plaintiffs would successfully acquire another preliminary injunction, at least without significantly worse conditions than previously existed, is remote. The provisional class certification expired along with the preliminary injunction. View "Ahlman v. Barnes" on Justia Law

Briones was a leader of a violent gang that “terrorized the Salt River Reservation community.” Briones participated in multiple violent crimes, including a 1994 murder that was committed when Briones was 17 years, 11 months, and eight days old.The Ninth Circuit affirmed his life sentence in 1998. Following the Supreme Court’s decisions in "Miller," (2012), that the Eighth Amendment forbids a sentencing scheme that mandates life without the possibility of parole (LWOP) sentences for juvenile offenders, and Montgomery, (2016), that Miller’s rule applied retroactively on collateral review, Briones was resentenced to LWOP in 2016. A Ninth Circuit panel affirmed in 2018. The en banc court subsequently vacated the sentence. The Supreme Court remanded in light of Jones v. Mississippi, (2021), holding that in cases involving LWOP defendants, a discretionary system—where a sentencer can consider the defendant’s youth and has discretion to impose a lesser sentence—is constitutionally sufficient--and that permanent incorrigibility is not an eligibility criterion for the imposition of juvenile LWOP sentences; a sentencer need not provide an on-the-record explanation with an implicit finding of permanent incorrigibility.The Ninth Circuit again affirmed the LWOP sentence. The district court did consider Briones’s post-incarceration rehabilitation and there is no independent requirement that a court imposing juvenile LWOP “meaningfully engage” in a permanent-incorrigibility analysis. Briones waived his as-applied challenge to the substantive proportionality of his sentence. The court rejected “Briones’s wholly speculative arguments advocating for categorical bans on juvenile LWOP.” View "United States v. Briones" on Justia Law

Cobian first entered the U.S. in 1999. In 2004, he was returned to Mexico after being convicted of DUI. In 2016, Cobian, with his wife and children, presented himself to seek asylum. Cobian was separated from his family and given Notice of Expedited Removal. He sought asylum. Officers provided him with English and Spanish explanations of the credible fear interview process, detention protocols, his rights, and the consequences of removal. Cobian explained that he had been kidnapped for ransom in Mexico and was again being targeted; his captors, allegedly gang members, cut off his finger and sent it to his wife. The asylum officer ruled against Cobian and explained the right to appeal. Cobian declined because he did not want to remain in detention, unable to contact his family. Cobian was deported to Mexico but, in 2018, attempted reentry, and was deported.In 2019, Cobian was again found in the U.S. and was charged with illegal reentry, 8 U.S.C. 1326. Cobian argued that the predicate expedited removal order was entered in violation of his due process rights and even if he waived his right to appeal the asylum claim, his waiver was not considered and intelligent. The Ninth Circuit affirmed the denial of his motion to dismiss. Administrative remedies must be exhausted before an order of removal can be collaterally challenged in a subsequent criminal prosecution for re-entry. Cobian made a considered and intelligent decision to waive his right to appeal the negative credible fear finding. View "United States v. De la Mora-Cobian" on Justia Law

Defendant appealed her sentence imposed after she pleaded guilty to unlawful importation of methamphetamine and heroin, principally contending that the district court erred by failing to give her advance notice before imposing a special condition of supervised release that requires her to submit to suspicionless searches by any law enforcement officer.The Ninth Circuit concluded that United States v. Wise, 391 F.3d 1027 (9th Cir. 2004), which held that, where a condition of supervised release is not on the list of mandatory or discretionary conditions in the sentencing guidelines, notice is required before it is imposed, remains good law after Irizarry v. United States, 553 U.S. 708 (2008), which held that, before imposing a custodial sentence, a district court is not required to give advance notice that it is considering varying upwards from the applicable sentencing range under the Sentencing Guidelines. Therefore, Wise is controlling here and the district court erred by failing to give notice that it was contemplating imposing its broad search condition prior to imposing that condition in its oral pronouncement of sentence. The panel vacated at least that portion of defendant's sentence. The court affirmed the custodial portion of defendant's sentence, finding no plain error. View "United States v. Reyes" on Justia Law

Defendant Franklin pleaded guilty to aiding and abetting the possession of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. 924(c)(1)(A)(i)–(ii) and 2, and robbery affecting interstate commerce (Hobbs Act robbery) in violation of 18 U.S.C. 1951(a).The Ninth Circuit concluded that binding precedent forecloses Franklin's contention that Hobbs Act robbery is not categorically a crime of violence under 18 U.S.C. 924(c)(3)(A). The panel concluded that there are two distinct questions that this court answers in examining a hearsay statement at sentencing: (1) whether the statement is "procedurally reliable" and (2) whether the statement is "substantively reliable." If the court answers either question in the affirmative, then the statement may be considered at sentencing. The panel explained that this is a disjunctive test: If the court answered either question in the affirmative, then the statement may be considered at sentencing. In this case, the government provided enough specifics so that Franklin was not put to the burden of proving that the enhancement did not apply, and that there were adequate procedural opportunities for Franklin to challenge the extrinsic, nonhearsay evidence corroborating Coconspirator Hiler's hearsay statements. The panel concluded that there was no error in the district court's conclusion that the evidence sufficiently corroborated Hiler's statements and that the admission of those statements at sentencing did not deprive Franklin of due process. Furthermore, the district court did not clearly err in implicitly finding the two coconspirators' statements to corroborate each other enough to be substantively reliable, and that their admission at sentencing thus did not violate due process. View "United States v. Franklin" on Justia Law

In 2004-2005, the government filed forfeiture actions against a Credit Suisse account, owned by a corporation organized by Kim’s sister . The government alleged the $15 million account included proceeds of fraudulent activities involving Kim’s control of Optional. The district court ordered the seizure of the Account. The putative owners (Kim Claimants) contested the forfeiture. Optional, no longer under Kim's control, and DAS, an alleged victim of Kim's fraud, filed competing claims.In 2011, after years of parallel litigation, the Swiss Attorney General’s Office unfroze the Account and ordered the bank to wire $12.6 million to DAS, which filed a “Notice of Withdrawal of Claims” in the forfeiture proceeding. The court ordered that no party disturb money remaining in the Credit Suisse accounts and requested that the government investigate how the transfer to DAS was accomplished. The court declined to hold DAS in contempt, concluded that it “cannot compel DAS to surrender the funds,” then granted DAS’s opposed motion to be dismissed from the forfeiture proceedings.Optional, the sole remaining claimant, submitted a 2013 proposed final judgment, which the district court adopted. Five years later, Optional sought to hold DAS in contempt for allegedly violating that judgment because DAS failed to surrender the money transferred in 2011; the 2013 judgment had awarded Optional all funds in the Account as of August 2005. The Ninth Circuit affirmed the denial of the contempt motion. The 2013 judgment did not require DAS to turn over $12.6 million to Optional. At the 2013 trial, the court did not have before it, and did not undertake to decide, the competing claims to the transferred money. In awarding Optional “all funds” the district court unmistakably was referring only to the remaining funds. View "Optional Capital, Inc. v. DAS Corp." on Justia Law