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

The Ninth Circuit vacated defendant's sentence imposed upon revocation of supervised release after he committed another crime. Under the advisory Sentencing Guidelines, the appropriate penalty upon the revocation of supervised release is greater if the new crime is "punishable by a term of imprisonment exceeding one year." U.S.S.G. 7B1.1(a)(2).The panel concluded that the Washington offense of theft from a vulnerable adult in the second degree is not "punishable by a term of imprisonment exceeding one year" when the statutory maximum sentence exceeds one year but the maximum sentence allowed under the State's mandatory sentencing guidelines does not. Therefore, the district court erred in determining that defendant committed a Grade B supervised release violation. The panel also concluded that the district court plainly erred in ordering defendant's sentence to be served consecutively to any other term of imprisonment. The panel explained that a district court may order a sentence to run consecutively to an anticipated state sentence, but not consecutively to another federal sentence that has yet to be imposed. View "United States v. Williams" on Justia Law

The Ninth Circuit filed (1) an order withdrawing its prior opinion and dissent and denying as moot a petition for rehearing en banc; and (2) a new opinion and concurrence reversing the district court's dismissal of an indictment charging illegal reentry after removal, in violation of 8 U.S.C. 1326, and remanding.The panel explained that Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019), and Aguilar Fermin v. Barr, 958 F.3d 887 (9th Cir. 2020), have created some confusion as to when jurisdiction actually vests, as neither squarely held that jurisdiction vests immediately upon the filing of a notice to appear (NTA), despite the language of the regulations. To clarify, the panel held that the regulation means what it says, and controls. The only logical way to interpret and apply Karingithi and Aguilar Fermin is that the jurisdiction of the immigration court vests upon the filing of an NTA, even one that does not at that time inform the alien of the time, date, and location of the hearing.The panel also concluded that, while a defective NTA does not affect jurisdiction, it can create due-process violations. In order to mount a collateral attack on the validity of an underlying removal order under 8 U.S.C. 1326(d), the defendant must demonstrate that (1) he exhausted any available administrative remedies; (2) the deportation proceedings at which the order was issued improperly deprived him of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair. Under United States v. Palomar-Santiago, 141 S. Ct. 1615 (2021), each of these three statutory requirements is mandatory, and the first two requirements are not excused for a noncitizen who was removed for an offense that did not render him removable. On remand, defendant may be able to collaterally attack the underlying removal order. View "United States v. Bastide-Hernandez" on Justia Law

Defendant pleaded guilty to conspiracy to commit health care fraud, in violation of 18 U.S.C. 1349, and entered into a plea agreement with the United States government. Pursuant to the plea agreement, defendant waived the right to appeal his conviction except on the ground that his plea was involuntary, and waived the right to appeal most aspects of his sentence if the district court determined that the offense level was no greater than 25.The Ninth Circuit affirmed defendant's conviction and sentence for conspiracy to commit health care fraud, holding that defendant's appeal waiver is enforceable. In so holding, the panel rejected defendant's contentions that the waiver was not knowing and voluntary, either by reason of the district court's sentencing procedure or its misstatement of the intent element during the plea colloquy. Rather, the panel concluded that defendant had a full and fair opportunity to be heard and that the district court gave defendant a fair opportunity to contest the government's loss calculation even if it was not the full evidentiary hearing defendant wanted. Furthermore, the improperly stated elements in the plea agreement did not render defendant's plea involuntary. The panel also rejected defendant's contention that the government implicitly breached the plea agreement. In this case, defendant's appeal waiver is enforceable and the language of the waiver encompasses his right to appeal on the grounds raised. View "United States v. Minasyan" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision concluding that petitioner's forgery conviction under California law constitutes an aggravated felony. The panel held that petitioner's forgery conviction under section 470a of the California Penal Code categorically constitutes an aggravated felony offense relating to forgery under 8 U.S.C. 1101(a)(43)(R), thus rendering him ineligible for voluntary departure. In this case, the panel applied the categorical approach and compared the elements of section 470a with the generic, common law definition of forgery. The panel disagreed that photocopying a driver's license with the intent "to facilitate the commission of any forgery" falls outside the generic definition of forgery. The panel looked to Vizcarra-Ayala v. Mukasey, 514 F.3d 870 (9th Cir. 2008), as a helpful comparison. The panel explained that a person who takes the affirmative step to photocopy a genuine document with the intent to deceive has made a false instrument—an action that falls squarely within the generic definition of forgery. Therefore, section 470a is categorically an offense relating to forgery under section 101(a)(43)(R). View "Escobar Santos v. Garland" on Justia Law

Lopez, a member of the U.S. Army, Guam, worked at Andersen Air Force Base but lived off-base in territory subject to both federal law and the laws of Guam. Lopez was convicted of attempting to entice a minor to engage in prohibited sexual activity, 18 U.S.C. 2422(b)) and attempting to transfer obscenity to a minor under 16 years of age, 18 U.S.C. 1470.The Ninth Circuit affirmed. The district court erred in admitting into evidence edited video clips of Lopez’s post-arrest interrogation while categorically excluding the entire remaining interrogation footage as inadmissible hearsay despite the risk that the government’s selective editing would mislead the jury; the error was harmless in light of the strength of the government’s case. Section 2422(b) did not require the government to charge a predicate offense and to prove Guam would have had jurisdiction to prosecute Lopez for said predicate offense; the government presented sufficient evidence that Lopez attempted to entice a minor to engage in sexual conduct that is criminal in Guam. Although the district court should have instructed the jury on the applicable “laws of Guam,” Lopez cannot establish that the error affected his substantial rights. View "United States v. Lopez" on Justia Law

Joining five circuits, the Ninth Circuit took this opportunity to clarify that a district court must enforce the administrative exhaustion requirement for a motion for compassionate release articulated in 18 U.S.C. 3582(c)(1)(A) when the government properly invokes the requirement.The panel affirmed the district court's denial of defendant's motions for compassionate release under section 3582(c)(1)(A)(i), without prejudice to filing a new motion in the district court after exhausting his administrative remedies with the Bureau of Prisons (BOP). In this case, after defendant exhausted his statutorily prescribed administrative remedies with the BOP, the district court denied his first motion for compassionate release without prejudice on the merits. Defendant did not exhaust his administrative remedies with the BOP before filing a second motion for compassionate release. The district court did not address the government's exhaustion challenge and denied the motion on its merits.Because the government properly objected to defendant's failure to exhaust his administrative remedies, the panel concluded that the district court erred by overlooking the government's objection and addressing his motion on its merits. Nonetheless, the panel concluded that this error was harmless because the district court denied his motion on other grounds. Furthermore, defendant's arguments that he did in fact satisfy the administrative exhaustion requirement are unavailing. In regard to the first, properly exhausted motion, the panel concluded that the district court did not abuse its discretion in finding that the 18 U.S.C. 3553(a) sentencing factors weighed against defendant's release. The panel noted that, although a district court must perform this sequential inquiry before it grants compassionate release, a district court that properly denies compassionate release need not evaluate each step. View "United States v. Keller" on Justia Law

The Ninth Circuit affirmed defendants' convictions for entering the United States at a time or place other than as designated by immigration officers in violation of 8 U.S.C. 1325(a)(1). The panel held that section 1325(a)(1) does not violate the non-delegation doctrine, and is not unconstitutionally vague—facially or as applied. The panel rejected defendants' contention that section 1325(a) unconstitutionally delegates legislative power and that section 1325(a)(1) provides unfair notice or produces arbitrary enforcement. View "United States v. Melgar-Diaz" on Justia Law

The Ninth Circuit reversed the district court's denial of petitioner's habeas corpus petition challenging his Arizona death sentence. The panel applied the appropriate standards pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and concluded that petitioner was denied the effective assistance of counsel at sentencing.In regard to Claim 1, the panel agreed with petitioner that his right to counsel was violated when his attorney failed to request a mental health expert in advance of the sentencing hearing. Alternatively, the panel agreed with petitioner that the PCR court used a defective fact-finding process with respect to his first claim when it denied PCR counsel's funding request for a defense neuropsychological expert, effectively preventing the factual development of this claim, and that the state court's failure to hold a hearing on his first claim resulted in an unreasonable determination of the facts. On de novo review, the panel concluded that counsel's errors prejudiced petitioner.In regard to Claim 2, the panel agreed with petitioner that trial counsel was constitutionally ineffective by failing to seek neurological or neuropsychological testing prior to sentencing, and that the failure to do so fell below prevailing professional norms at the time. The panel also agreed with petitioner's alternative argument that the PCR court's decision was based on an unreasonable determination of the facts under 28 U.S.C. 2254(d)(2). On de novo review, the panel concluded that counsel's errors prejudiced petitioner. Accordingly, the panel remanded for further proceedings. View "Jones v. Ryan" on Justia Law

The Ninth Circuit vacated defendant's conviction for importing controlled substances into the United States, and remanded for a new trial. At trial, defendant took the stand and testified he did not know the car he was driving contained drugs—what is sometimes referred to as the "blind mule" defense.During closing argument, the government compared the reasonable doubt standard to the confidence one needs to "hav[e] a meal" or "travel to . . .court"—without worrying about the "possib[ility]" that one will get sick or end up in an accident. The panel agreed with defendant that this improper argument, and the district court's failure to cure it, caused him prejudice. The panel explained that the ultimate issue at trial boiled down to whether the government proved that defendant knew about the drugs in his car beyond a reasonable doubt. However, the prosecutor's comments created an unacceptable risk that an honest, fair-minded juror would succumb to the prosecutor's personal—rather than constitutional—view of the government's burden of proof to obtain a conviction and therefore overlook his or her reasonable doubts. In this case, the evidence demonstrating defendant's knowledge was not overwhelming and the district court failed to neutralize the prejudice. Therefore, the panel concluded that it is more probable than not that the misconduct materially affected the verdict. View "United States v. Velazquez" 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 of removal and denial of his application for cancellation of removal.The panel held that, in determining whether a conviction satisfies the thirty-gram limit of the personal-use exception to the ground of removability based on drug convictions, the circumstance-specific approach applies to determining the amount of marijuana involved in the conviction. Applying that approach to petitioner's case, the panel concluded that the circumstances specific here clearly establish that petitioner knowingly possessed more than thirty grams of marijuana. In this case, the police report is detailed, is internally consistent, and records observations of fact rather than the officers' conclusions. The report states that the "green leafy material" found in the three bags "tested positive for marijuana," and provides the precise weight of each. Given that petitioner did not specifically contest the measurements of quantity in the report, holding such a report to be insufficient would be essentially the same as holding that no police report is sufficient, standing alone, to demonstrate that a petitioner possessed more than thirty grams of marijuana. The panel declined to adopt such a categorical rule. Therefore, viewing the circumstances together, the evidence clearly establishes that petitioner possessed more than thirty grams of marijuana. View "Bogle v. Garland" on Justia Law