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

Petitioner, a Guatemalan citizen, petitioned for review of the BIA's affirmance of the IJ's finding of removability based on his two prior drug convictions. The court concluded that the IJ erred in concluding that petitioner’s two counts of drug possession would bar him from first-offender treatment under the Federal First Offender Act (FFOA), 18 U.S.C. 3607(a). The court held that the two counts amount to a single “offense” under the FFOA because they arose out of a single event, composed a single criminal case, and triggered a single, undivided sentence. While petitioner was charged with possession of two different drugs, that alone does not change petitioner’s status as a first-time drug offender under the FFOA. Accordingly, the court granted the petition for review and remanded for further proceedings. View "Villavicencio-Rojas v. Lynch" on Justia Law

Petitioner, a citizen of Mexico, seeks adjustment of his immigration status under the “grandfathering” exception for beneficiaries of labor certification applications filed before April 30, 2001. Applying the Chevron framework, the court concluded that the statute at issue in this case, 8 U.S.C. 1255(i), is ambiguous because Congress did not speak to the question of whether that section applies to substitute beneficiaries of labor certifications. The court concluded that it was permissible for the Attorney General, pursuant to 8 C.F.R. 1245.10(j), to interpret the statute to preclude beneficiaries substituted after the sunset date from obtaining grandfathered status. Therefore, the court concluded that 8 C.F.R. 1245.10(j) is entitled to deference. Because the BIA properly denied petitioner's application for adjustment, the court denied the petition for review. View "Valencia v. Lynch" on Justia Law

Jacksonville filed a putative class action against CVB alleging violations of Section 10(b) of the Securities and Exchange Act of 1934, 15 U.S.C. 78j(b), and Rule 10b-5 promulgated thereunder, 17 C.F.R. 240.10b-5. The district court granted CVB's motion to dismiss. The court concluded that vague optimistic statements by CVB officials are not actionable and the district court correctly dismissed the claims based on these boasts, characterizing them as puffery. Further, CVB's statements describing the Southern California real estate market and Generally Accepted Accounting Principles (GAAP) violations were not misleading. The court concluded, however, that the second amended complaint (SAC) sufficiently alleges falsity and scienter as to the “no serious doubts” statements in the 10-K on March 4, 2010, and the 10-Q on May 10, 2010. The court also concluded that the SAC adequately plead loss causation. The court held that the announcement of an investigation can “form the basis for a viable loss causation theory” if the complaint also alleges a subsequent corrective disclosure by the defendant. Therefore, the court dismissed the second amended complaint with respect to the "no serious doubts" representations made in the 10-K and the 10-Q and remanded for further proceedings. The court otherwise affirmed the judgment. View "Jacksonville Pension Fund v. CVB" on Justia Law

Petitioner was convicted of assaulting and attempted premeditated murder. Defendant served his sentence and is out of prison on parole. The Superior Court concluded in a decision spoken from the bench that trial counsel’s performance had been constitutionally defective by failing to secure medical evidence to support his primary expert’s sleepwalking opinion – a conclusion with which the prosecution agreed. The Superior Court found, however, that counsel’s failure had not been prejudicial. Petitioner then filed a petition for a writ of habeas corpus, alleging a violation of his Sixth Amendment right to effective assistance of counsel. The district court denied the petition. The court reversed, concluding that the Superior Court’s decision was (1) based on an unreasonable determination of the facts, and (2) objectively unreasonable in its application of clearly established Federal constitutional law. The court remanded for further proceedings. View "Yun Hseng Liao v. Junious" on Justia Law

Debtors filed a joint voluntary individual chapter 11 petition and debtors' operative plan of reorganization placed their largest unsecured creditor, California Bank, into its own class of unsecured creditors and proposed to pay it $5,000 on its claim of nearly $2,000,000. California Bank objected because its claim was thus “impaired under the plan.” The court overruled In re Friedman and joined its sister circuits in adopting the "narrow view", holding that the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), 11 U.S.C. 541(a)(, (a)(1), 1115(a), 1129(b)(2)(B)(ii), amendments merely have the effect of allowing individual Chapter 11 debtors to retain property and earnings acquired after the commencement of the case that would otherwise be excluded under section 541(a)(6) & (7). The court further concluded that, under this view, an individual debtor may not cram down a plan that would permit the debtor to retain prepetition property that is not excluded from the estate by section 541, but may cram down a plan that permits the debtor to retain only postpetition property. Accordingly, the court affirmed the bankruptcy court's order. View "Zachary v. California Bank & Trust" on Justia Law

Defendant plead guilty to possessing 100 kilograms or more of marijuana on a vessel and was sentenced to 80 months in prison, as well as a consecutive 12 month sentence for violation of the terms of supervised released imposed in a prior case. The court concluded that the district court did not abuse its discretion in imposing a two-level enhancement to defendant's offense level for the marijuana conviction pursuant to U.S.S.G. 2D1.1(b)(3)(C) (the “pilot/captain” enhancement). By defendant's own account, he was a lifelong fisherman hired to transport marijuana bales, and in so doing he operated a boat laden with substantial cargo in open water by controlling both its speed and direction. The court also concluded that defendant's below-Guidelines sentence is not substantively unreasonable where the district court exercised its discretion in departing downward from the Guidelines range, just not by as many months as defendant requested. Accordingly, the court affirmed the judgment. View "United States v. Cruz-Mendez" on Justia Law

This appeal stems from a dispute between the future development of the historical heart of the Presidio of San Francisco, the Main Post. The Main Post is managed by the Trust, created by the Presidio Trust Act, 16 U.S.C. 460bb app. The Trust is governed by both the Presidio Trust Act and the National Historic Preservation Act (NHPA), 54 U.S.C.A. 300101 et seq. This appeal is limited to the Trust's amendment of the Presidio Trust Management Plan, which proposed a new lodge adjacent to the Presidio's Main Parade Ground. The court concluded that the Trust’s Update with respect to the proposed lodge and the offsetting demolition in the Main Post area is consistent with Section 104(c)(3) because it constitutes “replacement of existing structures of similar size in existing areas of development” under the Presidio Trust Act. The court also concluded that the Trust’s procedural undertakings meet the heightened standard of care imposed by Section 110(f) of the NHPA to undertake “to the maximum extent possible . . . such planning and actions as may be necessary to minimize harm to the landmark.” Accordingly, the court affirmed the judgment. View "Presidio Historical Ass'n v. Presidio Trust" on Justia Law

Plaintiff, front woman of the former band Missing Persons, filed suit as a third-party beneficiary claiming that recording companies improperly treated certain sales of Missing Persons's recordings as record sales rather than revenue from licensing. Plaintiff claimed that this resulted in paying the artists a lower royalty rate than the one provided for in their recording contracts. The district court dismissed the complaint. The court concluded that the district court erred by granting plaintiff’s motion to dismiss on the ground that Missing Persons, Inc. lacked capacity to sue. The court could not affirm the district court's judgment on the ground that plaintiff waived the benefits of the Missing Persons, Inc. contract. The court agreed with plaintiff that whether she forfeited the ability to sue as a third-party beneficiary is a fact-bound inquiry ill-suited to resolution at the motion to dismiss stage. On remand, a record can be developed that will allow consideration of plaintiff’s claim that she was an intended third-party beneficiary of the agreement. Further, because amendment may not have been futile, it was error to dismiss plaintiff's complaint with prejudice. Accordingly, the court reversed and remanded. View "Bozzio v. EMI Grp. Ltd." on Justia Law

This case arose from a complaint filed in 2011, by the late Al Davis and his wife, against the United States, seeking a refund of income taxes. Davis, a Pro Football Hall of Famer and the principal owner of the Oakland Raiders, argued that the IRS assessed the taxes outside the statue of limitations and in breach of a Closing Agreement between the IRS and the partnership that formally owned the Raiders. The district court entered judgment for Davis. In this case, the court held that, although the IRS admits that it breached Paragraph Q of the Closing Agreement by making the September 2007 assessments without giving Davis a second opportunity to review its calculations, the IRS's breach did not invalidate the assessments. Even though the breach denied Davis an opportunity to comment on the amounts of the assessments before they were made, it did not prevent him from challenging the assessed amounts by seeking an administrative refund claim or a refund action. Under the plain language of I.R.C. 6231(b)(1)(C), the court concluded that the IRS does not “enter into a settlement agreement with the partner” when it enters into a settlement agreement with the tax matters partner (TMP) and the individual partner is bound merely by operation of the tax court’s decision to which the partner is a party. Because the Closing Agreement and stipulations were not a “settlement agreement with” Davis within the scope of I.R.C. 6231(b), the assessments made on September 4, 2007 were timely, as they occurred within one year after the Tax Court decision became final. Accordingly, the court reversed and remanded for further proceedings. View "Davis v. United States" on Justia Law

Petitioner, a native and citizen of El Salvador, petitioned for review of the BIA's decision that his California conviction for felony child abuse, under California Penal Code section 273a(a), constitutes a crime of violence and qualifies as an aggravated felony. The court concluded that section 273a(a) is not a divisible statute because the alternative mens rea requirements are not “elements." Rather, they are alternative means for accomplishing a single indivisible crime. Under the categorical approach, section 273a(a) is broader than 18 U.S.C. 16, and therefore not a “crime of violence,” nor does it qualify on that basis as an aggravated felony. Therefore, the BIA erred when it determined that petitioner had been convicted of an aggravated felony. Accordingly, the court granted the petition and remanded. View "Ramirez v. Lynch" on Justia Law