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

Defendants Thompson and Fincher appealed their convictions and forfeiture provisions of their sentences for charges related to their involvement in an "advance pay" scheme with a third coconspirator. The Ninth Circuit concluded that there was no constructive amendment of the indictment where the indictment alleged all of the elements of conspiracy to commit wire fraud in violation of 18 U.S.C. 1343 and 1349. In this case, defendants were tried and convicted of the crime charged, and there was no reason to include in the jury instructions the surplusage relating to the 18 U.S.C. 371 crime that was not charged.The panel also concluded that because the forfeiture judgment against defendants amounted to joint and several liability contrary to Honeycutt v. United States, 137 S. Ct. 1626 (2017), the panel must vacate and remand it. In Honeycutt, the Supreme Court held that, in a conspiracy, a defendant may not, for purposes of forfeiture, be held jointly and severally liable for property that his co-conspirator derived from the crime but that the defendant himself did not acquire. On remand, the district court should make findings denoting approximately how much of the proceeds of the crime came to rest with each of the three conspirators. The panel explained that though no forfeiture judgment was issued against the third coconspirator, neither Thompson nor Fincher can be subjected to forfeiture of amounts that came to rest with the third coconspirator, since those amounts were not proceeds that came to rest with them. The panel concluded that the forfeiture judgments must be separate, for the approximate separate amounts that came to rest with each of them after the proceeds were divided among them. View "United States v. Thompson" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision holding that petitioner's 1999 conviction for simple possession of cocaine in violation of California Health and Safety Code 11350 qualifies as a "controlled substance offense," thereby rendering him removable under section 237(a)(2)(B)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. 1227(a)(2)(B)(i).Although California Health and Safety Code 11350, by its terms, applies to a broader range of "controlled substance[s]" than the narrower federal definition that governs under section 237(a)(2)(B)(i), the panel agreed with the BIA that petitioner's conviction nonetheless qualifies under the so-called "modified categorical" approach to analyzing prior convictions. Applying this approach, the panel concluded that section 11350 is a "divisible" statute that defines multiple alternative offenses, depending upon which controlled substance was possessed. In this case, because petitioner's conviction under section 11350 was for possession of cocaine, and because cocaine qualifies as a "controlled substance" under the applicable federal definition, it follows that petitioner was convicted of an offense "relating to a controlled substance" within the meaning of section 237(a)(2)(B)(i). Therefore, the panel concluded that petitioner was properly ordered to be removed from the United States. View "Lazo v. Wilkinson" on Justia Law

The Ninth Circuit affirmed the district court's denial of defendant's 28 U.S.C. 2255 motion to vacate his sentence based on the ineffective assistance of counsel during plea negotiations that took place before defendant was formally accused of any crime. Traditionally, the panel explained that the Sixth Amendment has been interpreted to mean that the right to counsel attaches when a criminal defendant is formally charged. Defendant asked the panel to reexamine the traditional approach to attachment of the Sixth Amendment right to counsel in order to recognize that the right to counsel may attach before there has been a formal charge.The panel concluded that it is not in a position to do so, however, because it cannot overrule binding circuit precedent. The panel also concluded that this is not an appropriate case to ask for an en banc court to consider overruling United States v. Hayes, 231 F.3d 663, 669–70 (9th Cir. 2000) (en banc), since this defendant was appointed counsel, and the record indicates that defendant's counsel was not ineffective. View "United States v. Olson" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision affirming the IJ's denial of immigration relief to petitioner. The panel held that a conviction for importing, manufacturing, or dealing in firearms without a license, 18 U.S.C. 922(a)(1)(A), is categorically an "illicit trafficking in firearms" aggravated felony under 8 U.S.C. 1101(a)(43)(C). Therefore, petitioner is ineligible for asylum based on his conviction under section 922(a)(1)(A). In this case, the panel deferred to the BIA's interpretation of "illicit trafficking" in Matter of Davis, 20 I. & N. Dec. 536 (BIA 1992), that illicit trafficking in a controlled substance – another aggravated felony – includes any felony conviction involving the "unlawful trading or dealing of any controlled substance." The panel explained that section 922(a)(1)(A) is a categorical match to "illicit trafficking in firearms" under section 1101(a)(43)(C). View "Chacon v. Wilkinson" on Justia Law

Defendant appealed the district court's order denying his motion for issuance of a writ of habeas corpus ad prosequendum directed to his current custodian, the Warden of FCI Phoenix, to transport him to Los Angeles for his initial appearance there on an arrest warrant for violating conditions of supervised release, proceedings for which a detainer has now been lodged against him with the prison. Defendant is currently serving a custodial sentence for federal crimes he committed in the Eastern District of Arkansas while on supervised release from an earlier federal conviction in the Central District of California.The Ninth Circuit dismissed defendant's appeal based on lack of jurisdiction, concluding that the denial of defendant's motion is not a final or appealable collateral order. The panel explained that the order defendant seeks is a precursor to contesting the alleged supervised release violation which led to the arrest warrant and the pending detainer, and it does not fall within the rubric of collateral orders which are "effectively unreviewable on appeal from a final judgment." The panel denied the pending motion to expedite as moot. View "United States v. Repp" on Justia Law

The Ninth Circuit reversed the district court's dismissal of an indictment charging defendant of illegal reentry after removal in violation of 8 U.S.C. 1326. The panel applied the majority's holding in its recently published opinion in United States v. Bastide-Hernandez, —F.3d —, 2021 WL 345581 (9th Cir. 2021), which held that the jurisdiction of the immigration court vests upon the filing of the Notice to Appear (NTA), even one that does not at the time inform the alien of the time, date, and location of the hearing, and held that the district court erred in dismissing the indictment. The panel also held that defendant failed to show that he can satisfy the section 1326(d) requirements for collaterally attacking the underlying removal order based simply on the NTA's lack of date and time information, standing alone. Therefore, he is foreclosed from making that argument on remand. The panel explained that defendant may collaterally attack the underlying order on remand on other grounds, but only if he can meet all the requirements of section1326(d). Accordingly, the panel remanded for further proceedings. View "United States v. Gonzalez-Valencia" on Justia Law

The Ninth Circuit affirmed the district court's judgment finding Defendants Woodberry and Johnson guilty of Hobbs Act robbery under 18 U.S.C. 1951(a) and (b)(1); separately finding Johnson guilty of possession of a firearm in furtherance of a crime of violence and a drug trafficking crime under 18 U.S.C. 924(c)(1)(A)(ii); convicting Woodberry of aiding and abetting Johnson's firearm possession offense; and finding that Johnson used a short-barreled rifle during the robbery in violation of 18 U.S.C. 924(c)(1)(B)(i), which resulted in both defendants having their mandatory minimum sentences increased.The panel held that the district court did not err in instructing the jury that the "market for marijuana, including its intrastate aspects, is commerce over which the United States has jurisdiction," or that the "commerce" element of Hobbs Act robbery could be established if the robbery "could" affect commerce over which the United States has jurisdiction. The panel also held that the short-barreled element in section 924(c)(1)(B)(i) does not contain a separate mens rea requirement. View "United States v. Woodberry" on Justia Law

The Ninth Circuit reversed the district court's dismissal of an indictment charging defendant with illegal reentry after removal in violation of 8 U.S.C. 1326. In this case, the district court held that a defective notice to appear (NTA) lacking time and date information did not provide the immigration court with jurisdiction to enter an order of removal.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), created some confusion as to when jurisdiction actually vests. To clarify, the panel held that 8 C.F.R. 1003.14(a) means what it says and controls: 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 further explained that while a defective NTA does not affect jurisdiction, it can create due-process violations. In defendant's brief, he chose not to address the requirements under section 1326(d) for a collateral attack on the validity of the underlying removal, and thus he failed to satisfy the section 1326(d) requirements based on the NTA's lack of date and time information. On remand, defendant may be able to collaterally attack the underlying removal order, if he can meet the requirements of section 1326(d). View "United States v. Bastide-Hernandez" on Justia Law

The Ninth Circuit affirmed defendant's sentence for possession of child pornography where the district court applied a ten-year mandatory minimum sentence under 18 U.S.C. 2252(b)(2). Section 2252(b)(2) applies if a defendant has a prior conviction "under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward." The district court applied section 2252(b)(2) based on defendant's prior conviction under California Penal Code 288(a), which criminalizes lewd and lascivious conduct with a minor under the age of fourteen. The panel held that the statutory provision "relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward" is not unconstitutionally vague, because the language neither fails to give ordinary people notice of its scope nor poses a risk of arbitrary enforcement. View "United States v. Hudson" on Justia Law

The United States sought an interlocutory appeal of the district court's order suppressing evidence in a criminal prosecution. Defendant was indicted for being an alien in possession of a firearm, and the evidence suppressed resulted from a confrontation between police officers and defendant while he was with his seven-year-old son at a shopping mall.As a preliminary matter, the Ninth Circuit held that United States v. Healy, 376 U.S. 75 (1964), foreclosed defendant's contention that the appeal is untimely. The panel affirmed the district court's suppression of the statements because they were the product of a custodial interrogation conducted without the required Miranda warnings and thus inadmissible. However, the panel explained that a Miranda violation does not alone warrant suppression of the physical fruits of defendant's inculpatory statements. Furthermore, both parties agree that the appropriate inquiry is whether, looking at the totality of the circumstances, defendant's consent to the search of the trunk was voluntary. Therefore, the panel remanded for the district court to resolve the voluntariness issue in the first instance. View "United States v. Mora-Alcaraz" on Justia Law