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

The Ninth Circuit affirmed defendant's conviction and sentence for drug and firearms offenses. In this case, defendant was stopped while driving and subjected to a warrantless search of his person and car. A year later, a separate investigation linked defendant with a controlled substances distribution and the police conducted a warrant search of his home.The panel held that the search of defendant's person was constitutional based on the search incident to a lawful arrest exception to the warrant requirement. The panel reasoned that the justifications for the search incident to lawful arrest exception do not lose any of their force in the context of a search performed by an officer who has probable cause to arrest and shortly thereafter does arrest. So long as the search was incident to and preceding a lawful arrest—which is to say that probable cause to arrest existed and the search and arrest are roughly contemporaneous—the arresting officer's subjective crime of arrest need not have been the crime for which probable cause existed. The panel held that Knowles v. Iowa, 525 U.S. 113 (1998), does not prevent a search incident to a lawful arrest from occurring before the arrest itself, even if the crime of arrest is different from the crime for which probable cause existed.The panel also held that the search of the defendant's vehicle was justified under the automobile exception and the warrant to search the house was valid. Finally, the district court did not abuse its discretion in applying a sentencing enhancement for the use of body armor during the commission of the offense. View "United States v. Johnson" on Justia Law

Although California Penal Code 211 robbery does not qualify as a crime of violence under 8 U.S.C. 1101(a)(43)(F), section 211 robbery nevertheless qualifies as a generic theft offense under section 1101(a)(43)(G), and thus is an aggravated felony under 18 U.S.C. 1227(a)(2)(A)(iii). The Ninth Circuit affirmed defendants' convictions for illegal reentry where defendants were each convicted under section 211 and deported to Mexico after their prison terms were completed. View "United States v. Martinez-Hernandez" on Justia Law

The Ninth Circuit filed 1) an order granting a petition for panel rehearing, amending the opinion filed on September 14, 2017, which was previously withdrawn, and denying a petition for rehearing en banc; and 2) an amended opinion denying a petition for review of the BIA's decision.In the amended opinion, the panel held that petitioner's conviction for class one misdemeanor domestic violence assault under Arizona Revised Statutes 13-1203 and 13-3601 was a crime of domestic violence under 8 U.S.C. 1227(a)(2)(E) that rendered him removable. The panel held that the statute was divisible and, under the modified categorical approach, there was a sufficient factual basis to support that petitioner intentionally or knowingly caused any physical injury to another person. Furthermore, the domestic relationships enumerated under Arizona's domestic violence provision, Arizona Revised Statutes 3-3601(A), were coextensive with the domestic relationships described in section 1227(a)(2)(E)(i). Therefore, petitioner's misdemeanor domestic violence conviction was a crime of domestic violence under section 1227(a)(2)(E), and he was removeable. View "Cornejo-Villagrana v. Whitaker" on Justia Law

The Ninth Circuit affirmed the district court's forfeiture order against defendant after she had pleaded guilty to attempted smuggling of ammunition from the United States into Mexico. Although the ammunition was subject to forfeiture, defendant had caused it to be transferred to a third party. The panel held that the district court properly ordered forfeiture of substitute property under 28 U.S.C. 2461(c) and 21 U.S.C. 853(p). In this case, defendant's acts and omissions caused the ammunition to be transferred to a third party and the forfeiture of $1,235 in the form of a money judgment was proper. View "United States v. Valdez" on Justia Law

The Ninth Circuit affirmed the district court's denial of three petitions for habeas relief under 28 U.S.C. 2241 challenging the revocation of good time credits. Petitioner was disciplined under Bureau of Prisons Prohibited Acts Code 203, which prohibits threatening another with bodily harm or any other offense. The panel held that when read reasonably in the context of the prison setting, and limiting the phrase "any other offense" to criminal offenses or violations of BOP rules, Code 203 is sufficiently narrow and clear to protect inmates' First Amendment rights. View "Lane v. Swain" on Justia Law

The Ninth Circuit affirmed the denial of a petition under 21 U.S.C. 853(n) to set aside an order forfeiting $73,000 in cash and denial of petitioner's motion for relief from judgment. The cash was connected to the guilty plea of petitioner's son. Petitioner argued that he was the bailor whose title to the cash was superior to the government's.The panel held that the district court did not clearly err when it found as a factual matter that the cash was drug proceeds. In this case, the money was found in the son's bedroom along with drugs, guns, and pay-owe sheets showing that the son had bought and sold methamphetamine in large amounts. Furthermore, the son signed a forfeiture agreement stating that the money constituted proceeds of narcotics trafficking and also signed a plea agreement incorporating the forfeiture agreement. The panel also held that there was no due process violation in the AUSA's communications with the son. View "United States v. Hernandez-Escobar" on Justia Law

The Ninth Circuit affirmed the district court's denial of three petitions for habeas relief under 28 U.S.C. 2241 arising from proceedings where petitioner was disciplined for sending threatening letters from prison. The panel held that Bureau of Prisons Prohibited Acts Code 203, which prohibits inmates from threatening another with bodily harm or any other offense, addressed legitimate penological concerns in a manner that was sufficiently narrow to satisfy constitutional concerns. The panel also held that the BOP's actions were supported by sufficient evidence. View "Lane v. Salazar" on Justia Law

Retroactivity analysis under Montgomery Ward & Co., Inc. v. FTC, 691 F.2d 1322 (9th Cir. 1982), is only applicable when an agency consciously overrules or otherwise alters its own rule or regulation, or expressly considers and openly departs from a circuit court decision. The Ninth Circuit denied a petition for review of the BIA's decision finding petitioner removable because he committed two crimes involving moral turpitude (CIMT) when he was convicted of felony endangerment under Arizona Revised Statutes 13-1201 and facilitation to commit unlawful possession of marijuana for sale.Applying Montgomery Ward to this case, the panel held that there was no change in law raising retroactivity concerns. Therefore, the BIA did not err by applying Leal I, In re Leal, 26 I. & N. Dec. 20 (B.I.A. 2012), to conclude that Arizona endangerment is a CIMT. Finally, the panel rejected petitioner's claim regarding Leal II, claims under In re Silva-Trevino, 24 I. & N. 687 (A.G. 2008), preclusion claims, and an 8 U.S.C. 1227(a)(2)(A)(ii) claim. View "Olivas-Motta v. Whitaker" on Justia Law

Defendant was convicted as a felon in possession of a destructive device, 18 U.S.C. 922(g)(1) and for possessing an unregistered destructive device, 26 U.S.C. 5861(d). The Ninth Circuit affirmed, rejecting the defendant’s argument that the definition of “destructive device” in 18 U.S.C. 921(a)(4)(C) requires possession of every component necessary to construct a functional weapon, and that he would be entitled to a judgment of acquittal because the government did not introduce any evidence to establish that he possessed the eight C-cell batteries needed for the device in question to operate. Section 921(a)(4)(C) requires only that the defendant possess a combination of parts from which a functional device “may be readily assembled.” The requirement does not categorically exclude situations in which the assembly process entails the acquisition and addition of a new part and the “readily assembled” element can still be met so long as the defendant could acquire the missing part quickly and easily, and so long as the defendant could incorporate the missing part quickly and easily. View "United States v. Kirkland" on Justia Law

In 2013, the Tydingco family traveled from their home in the Commonwealth of the Northern Mariana Islands (CNMI) to China, Lili’s native country. Lili is a legal U.S. permanent resident through her marriage to Frank. In China, X.N.’s father asked them to take 10-year-old X.N., a Chinese national, to attend school. A friend told Lili that it was possible to bring X.N. to the U.S. The CNMI's “parole” program, designed to support its tourism industry, allows Chinese and Russian nationals to enter the CNMI without a visa and stay for up to 45 days. At Saipan immigration control, Lili presented a notarized letter from X.N.’s parents stating that the Tydingcos would be X.N.’s guardians during her studies. The officer told Lili to get the letter stamped at the local police station, but otherwise said nothing about X.N.’s attending school on Saipan. They showed proof that X.N. had a return flight to China on October 28, 2013. The officer stamped X.N.’s passport that X.N. had to leave the CNMI by November 4. The Tydingcos enrolled X.N. in public school. Lili did not apply for a student visa for X.N. because the school never requested one. X.N. left the Tydingcos in February 2015. Lili voluntarily spoke to a DHS agent and signed a written statement, acknowledging that she “had [X.N.]’s passport and saw the I-94 showing she was paroled in until November 2013.” The Ninth Circuit reversed their convictions for harboring an illegal alien, 8 U.S.C. 1324(a)(1)(A)(iii). The instruction defining “harbor” erroneously did not require the jury to find that they intended to violate the law. The instruction defining “reckless disregard” erroneously did not require the jury to find that Lili subjectively drew an inference that the alien was in the U.S. unlawfully and may have affected the outcome. View "United States v. Tydingco" on Justia Law