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

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

The Ninth Circuit affirmed the district court's denial of a habeas corpus petition challenging petitioner's Arizona state court conviction for attempted second-degree murder. In this case, the trial court misstated Arizona law in its instructions to the jury by implying that a defendant could be guilty of attempted second-degree murder if he merely intended to cause serious physical injury, not death. Furthermore, trial counsel failed to object to the erroneous instruction. Petitioner petitioned for state post-conviction relief, with the assistance of different counsel, but his counsel did not raise any claims related to the instructional error, and the state trial and appellate courts denied relief. The district court ultimately denied his federal habeas corpus petition, declining to excuse petitioner's procedural default of these claims.The panel declined to excuse petitioner's procedural default under under Martinez v. Ryan, 566 U.S. 1 (2012), so that he could seek habeas relief on the basis of constitutionally ineffective assistance of trial counsel (IATC). The panel concluded that petitioner cannot satisfy Strickland's prejudice requirement for an IATC claim for failure to object to a jury instruction based on the consequent loss of a more favorable standard of appellate review. The panel also concluded that petitioner failed to demonstrate a substantial IATC claim, and accordingly, his procedural default of that claim is not excused under Martinez. View "Dickinson v. Shinn" on Justia Law

After selling two guns to a confidential informant and an undercover agent during a controlled buy, Parlor was indicted for unlawful possession of a firearm by a convicted felon. Agents searched Parlor’s residence and found 21.63 grams of marijuana, $5,000 in cash, dozens of small plastic baggies, digital scales, and another gun. Parlor’s storage unit contained a semiautomatic rifle, a handgun, and ammunition. The handgun had been reported stolen. Parlor entered a guilty plea.The PSR noted two prior felony convictions of either a crime of violence or a controlled substance offense, recommended a three-level decrease for acceptance of responsibility, and recommended a two-level enhancement (U.S.S.G. 2K2.1(b)(1)(A)) because the “offense involved” three-to-seven firearms, a two-level enhancement (2K2.1(b)(4)(A)) because one firearm had been reported stolen, and a four-level enhancement (2K2.1(b)(6)(B)) for possessing firearms in connection with another felony, drug trafficking. The Guidelines range of 121-151 months was reduced to the statutory maximum of 120 months. Absent the three enhancements, Parlor’s range would have been 57-71 months. Defense counsel did not object to the multiple-firearms enhancement. The court noted evidence that a gun was found in Parlor’s home, close to drugs and drug paraphernalia and that Parlor had “exchanged guns for drugs” in the past with the informant.The Ninth Circuit upheld Parlor’s 120-month sentence. The district court connected the various firearms to each other and connected Parlor’s possession of an uncharged firearm with another felony offense, drug trafficking. View "United States v. Parlor" on Justia Law

The Ninth Circuit affirmed defendant's conviction on one count of making false statements to a government official, vacated her convictions on two counts of assault within the territorial jurisdiction of the United States, and remanded for a new trial on the assault counts and for resentencing on the false-statements count. Defendant's convictions stemmed from a physical altercation with her boyfriend. Defendant claimed self-defense at trial, testifying that she feared for her life when she swung the rebar and knocked her boyfriend unconscious. In its rebuttal case, the Government presented evidence that, roughly two years before the charged assault, defendant assaulted her stepmother and sister on separate occasions.The panel concluded that sufficient evidence supported defendant's conviction for making false statements to a government official (Count 3) where a rational juror could infer from the circumstantial evidence presented that defendant knew it was unlawful to lie to the FBI at the time she lied. The panel also concluded that evidence of defendant's prior incidents was inadmissible under Federal Rule of Evidence 404, thus entitling her to a new trial on Counts 1 and 2. The panel explained that, although defendant's testimony may have opened the door to general reputation or opinion testimony about her propensity for violence under Rule 405(a), she did not open the door to detailed descriptions of specific instances of conduct that were completely unrelated to her boyfriend to show that she has a propensity for violence under Rule 405(b). The panel also explained that evidence of a prior incident is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with character. Furthermore, the prior incidents do not establish either defendant's motive or intent to commit the charged assault. Finally, the admission of this erroneous "other acts" evidence was not harmless. View "United States v. Charley" on Justia Law