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

Petitioner, a native of El Salvador, petitioned for review of the BIA's denial of his application for protection under the Convention Against Torture (CAT). Petitioner sought review on May 3, 2013. After another panel of this Court denied petitioner's request for a stay, he was removed to El Salvador on November 19, 2013. The court concluded that, while granting petitioner's petition will not guarantee his return to the United States, it will at least increase his chances of being allowed to do so. Therefore, the court can provide effective relief and his removal to El Salvador does not render the petition moot. The court also concluded that substantial evidence supports the BIA’s finding that it is not more likely than not that petitioner will be tortured in El Salvador. Although gang membership is illegal under Salvadoran law, petitioner did not establish that the government tortures former gang members or those with gang-related tattoos. In addition, Salvadoran law prohibits extrajudicial killings and violence, and there is substantial evidence that the government enforces those laws. With respect to private violence, the court concluded that the BIA’s decision rests on a correct understanding of government “acquiescence” in torture. Accordingly, the court denied the petition for review. View "Del Cid Marroquin v. Lynch" on Justia Law

Defendant, CEO of the Clinic, a federally funded health care facility located on the Tribe's Rocky Boy Reservation, was convicted of converting federal funds allocated to the Clinic for personal use, using federal funds for personal benefit, and misapplying Clinic funds. The district court sentenced defendant to one year and one day of prison, followed by two years of supervised release, and ordered $15,000 in restitution to the Tribe. At issue on appeal is a question of first impression for the court: whether the district court committed clear error by including the salary loss in calculating the loss defendant inflicted on the Tribe under USSG 2B1.1. The court concluded that the public accountability principle underscores that time has value. It was thus not clear error for the district court to include the estimated value of the time that defendant should have reported as annual leave in calculating the total losses defendant inflicted on the Tribe. Defendant abused her status as an exempt employee by submitting fraudulent time sheets and falsely claiming to be working or traveling rather than taking annual leave when she visited her husband. Accordingly, the court affirmed the judgment. View "United States v. Tadios" on Justia Law

Defendant appealed the denial of a minor role reduction at sentencing pursuant to U.S.S.G. 3B1.2(b) after pleading guilty to importation of methamphetamine. About a year after defendant was sentenced, the Sentencing Commission issued Amendment 794, which amended the commentary to U.S.S.G. 3B1.2. The court held that the Amendment resolves a circuit split and the language of the Amendment indicates that the Commission intended it to be a clarifying amendment. Therefore, the court held that the Amendment applied retroactively in direct appeals. Because the record is unclear as to whether the district court considered all the factors identified in Amendment 794, the court reversed and remanded with directions for the district court to resentence defendant under the newly amended section 3B1.2. On remand, the district court should consider the factors identified in Amendment 794. View "United States v. Quintero-Levya" on Justia Law

Plaintiff and two other individuals, seeking to operate a gun shop in the County, challenged the County's ordinance which requires that the proposed location of the business is not within 500 feet of a residentially zoned district. The district court subsequently granted the County's motion to dismiss for failure to state claim. The court concluded that, because plaintiff's equal protection challenge is no more than a Second Amendment claim dressed in equal protection clothing, it is subsumed by, and coextensive with the former, and therefore is not cognizable under the Equal Protection Clause. Nor did plaintiff adequately plead a class-of-one Equal Protection claim where plaintiff acknowledges that gun stores are materially different from other retail businesses and therefore is not a similarly situated business. The court concluded that the right to purchase and to sell firearms is part and parcel of the historically recognized right to keep and to bear arms, and that the Ordinance's potential interference was a proper basis for plaintiff's Second Amendment challenge. Furthermore, the Ordinance burdens conduct protected by the Second Amendment and is subject to heightened scrutiny. Under this standard, the court concluded that the County failed to carry its burden of demonstrating that there was a reasonable fit between the challenged regulation and its asserted objective. In this case, the County failed to satisfy its burden because it never justified the assertion that gun stores act as magnets for crime. Accordingly, the court affirmed in part, reversed in part, and remanded for further proceedings. View "Teixeira v. County of Alameda" on Justia Law

Petitioner, a Mexican citizen who became a legal permanent resident, seeks review of the BIA's finding of removability under 8 U.S.C. 1182(a)(6)(E)(i). Petitioner was charged as removeable along with his son and wife for allegedly participating in an attempt to smuggle his wife's family members into the United States in a van. The court granted the petition, concluding that the BIA failed to address the IJ's seemingly inconsistent credibility findings. Nor did the IJ make a finding that petitioner engaged in “an affirmative act of help, assistance, or encouragement” of smuggling as the court's case law requires for a violation of section 1182(a)(6)(E)(i). The court remanded on an open record for the IJ to reconsider his ruling, provide further explanation, and engage in further factfinding if necessary. View "Perez-Arceo v. Lynch" on Justia Law

Defendant pleaded guilty to one count of conspiracy to commit securities fraud and was sentenced to 60 months in prison followed by a three-year term of supervised release. At issue is two of the supervised release conditions the district court imposed: one prohibiting him from using the Internet without prior approval from his probation officer, the other precluding him from residing in certain counties upon his release from prison. The court concluded that the facts of this case do not permit imposition of a total ban on Internet access where defendant’s use of the Internet played only a tangential role in his commission of the underlying fraud offense. When a total ban on Internet access cannot be justified, as is the case here, the court has held that a proviso for probation-officer approval does not cure the problem. Because the Internet-use restriction as currently drafted affected defendant's sentence and may not lawfully be imposed, it necessarily affects his substantial rights and the perceived fairness of the judicial proceedings. Therefore, the court vacated the restriction and remanded for the district court to craft a more narrowly tailored condition if it concludes that such a condition is warranted and valid. The court also concluded that simply declaring that a defendant is likely to resume a life of crime if he returns to a given area is not enough to impose a residency restriction, unless the reasons are obvious from the record. In this case, the record does not make clear why a residency restriction, if one is indeed warranted, should encompass the two out of four counties at issue. Further, the court could not uphold the residency restriction based on the community's need to heal. Therefore, the court vacated the residency restriction and remanded. View "United States v. LaCoste" on Justia Law

After the parties reached a settlement, the district court granted $585,000 in fees to Class Counsel, which reflected a reduction of requested fees of approximately 70 percent. It also reduced Class Counsel’s costs reimbursement to $20,588.17. The district court also found that Class Counsel inadequately supported its claim for expert fees, and denied Objectors' fee request in its entirety. Both Plaintiffs and Objectors appealed. The court held that, in a class action, an objector need not establish standing to object to an award of attorney’s fees by the district court; if an objector seeks to appeal an award of fees to class counsel, he must independently satisfy Article III standing; nevertheless, an objector has standing to appeal a denial of his own claim for fees; and, in this case, Objectors are not yet entitled to attorney's fees because the court vacated and remanded the district court's decision reducing Class Counsel's fees. The court concluded that the district court was well within its discretion to use the lodestar method to calculate fees. However, the district court abused its discretion by failing to specifically articulate its reasoning for such a large disparity between the requested fees and the reduction from Class Counsel's computed lodestar fee. Therefore, the court vacated the district court's order and remanded. On remand, the district court should (1) clearly provide reasons for the factors in its lodestar computation; (2) expressly consider both a risk multiplier and the Kerr v. Screen Extras Guild, Inc., factors; and (3) base its decision on facts supported by the record. View "Stetson v. Grissom" on Justia Law

Robert Carrion sustained a severe knee injury while working as a chassis mechanic, and continued to work at his physically demanding job for the next fifteen years before retiring early. After Carrion’s former employer ceased paying for treatment, he filed for disability under the Longshore and Harbor Workers’ Compensation Act (LHWCA or the Longshore Act), 33 U.S.C. 901 et seq. The court affirmed the BRB’s decision upholding the ALJ’s conclusion that Carrion timely filed his claim against SSA where the ALJ and the BRB, in determining whether the one-year statute of limitations on disability claims was met pursuant to 33 U.S.C. 913(a), correctly looked to the date when Carrion became aware that his work for SSA caused a second, cumulative traumatic injury resulting in an impairment of his earning power. The court held that the prospect of a hypothetical future surgery and its anticipated benefits can not transform an otherwise permanent disability into a temporary one for purposes of the Longshore Act. In this case, Carrion's knee injury is a permanent disability. The court explained that evaluating an individual’s condition based on the presumed effect of a theoretical future treatment makes scant sense. Accordingly, the appropriate question to ask is not whether a future surgery would ameliorate Carrion’s knee condition, but whether there was actual or expected improvement to his knee after a normal and natural healing period. Finally, the court concluded that the doctrines of exhaustion and waiver are inapplicable because Carrion presented his claim of permanent disability well before the conclusion of the administrative process and neither SSA nor the agency were blindsided by the argument. Accordingly, the court denied SSA's petition for review of the BRB's decision and granted Carrion's cross-petition for review. View "SSA Terminals & Homeport Ins. v. Carrion" on Justia Law

John Kirkland moved the bankruptcy court to compel arbitration of a bankruptcy trustee's adversary proceeding. The bankruptcy court denied John’s motion to compel arbitration and the district court affirmed. The court concluded that the bankruptcy court did not abuse its discretion in denying the motion to compel arbitration where the trustee's fraudulent conveyance, subordination, and disallowance causes of action were core proceedings, thereby giving the bankruptcy court discretion to weigh the competing bankruptcy and arbitration interests at stake. The bankruptcy court properly applied In re Thorpe Insulation Co., to determine that the arbitration provisions at issue conflicted with Bankruptcy Code purposes of having bankruptcy law issues decided by bankruptcy courts; of centralizing resolution of bankruptcy disputes; and of protecting parties from piecemeal litigation. The court rejected the trustee's claims regarding enforceability, and the Kirklands' claims regarding the plain language of some of the arbitration agreements. Accordingly, the court affirmed the judgment. View "Kirkland v. Rund" on Justia Law

Petitioner, convicted of murdering his infant daughter, appealed the district court's grant of the state's motion to dismiss his second federal habeas petition. In regard to petitioner's claims of ineffective assistance of counsel concerning errors related to the use of expert testimony, the court concluded that these claims have already been adjudicated and petitioner's new arguments failed to present a distinct claim for relief. In regard to petitioner's due process challenge based on false testimony, the court concluded that petitioner cannot obtain relief under 28 U.S.C. 2244(b)(2)(B)(ii) on the theory that the prosecution introduced false testimony at trial where he presents a battle between experts who have different opinions about how the baby died. Finally, in regard to claims based on changes in scientific knowledge, the court joined the Third Circuit in recognizing that habeas petitioners can allege a constitutional violation from the introduction of flawed expert testimony at trial if they show that the introduction of this evidence “undermined the fundamental fairness of the entire trial.” In this case, petitioner failed to show that permitting the prosecution’s experts to testify based on a triad-only theory of shaken baby syndrome (SBS) was so extremely unfair that it violated the fundamental conceptions of justice. Petitioner failed to prove by clear and convincing evidence that no reasonable factfinder would have found him guilty but for the introduction of purportedly flawed SBS testimony. Nor could petitioner obtain relief if the court were to decouple his claim of actual innocence from any due process violation and repackage it as a freestanding “actual innocence” claim. Accordingly, the court affirmed the judgment. View "Gimenez v. Ochoa" on Justia Law