For the week of August 21, 2015
In this edition:
News to Use | New Rules | Top of the Ninth | Short Circuits | For the Bookworms
News to use
- 2014 Drug Guidelines Amendment Retroactivity Data Report (U.S. Sentencing Commission)
- The Bail Trap (New York Times) (H/T)
- Computer searches and the problem of withdrawn consent (Orin Kerr) (H/T)
- Jared Fogle in home detention following plea deal (NBC) (H/T)
- U.S. challenges Idaho ordinance that criminalizes sleeping in public by homeless (Jurist) (H/T)
- AT&T Helped U.S. Spy on Internet on a Vast Scale (New York Times)
New rules
The C.D. Cal. has preliminarily approved amendments to the local rules, to become effective December 1, and available here.
Top of the Ninth
The government has conceded that Johnson (holding ACCA residual clause unconstitutionally vague) applies to the career offender guideline. See Supp. Br. of Appellee at 2, U.S. v. Lee, No. 13-10517 (9th Cir. Aug. 17, 2015), ECF No. 41.
On to the weeks cases...
- U.S. v. Rivera-Constantino (conspiracy under 21 U.S.C. §§841(a)(1) & 846 is drug trafficking conspiracy within §2L1.2(b)(1); since Commission intended §2L1.2 to encompass prior federal drug conspiracies, generic definition doesn’t control—a point drawing dissent from J. Paez).
- U.S. v. Chadwell (district court didn’t abuse its discretion or violate Fed. R. Crim. P. 43(a) by sending properly admitted video to jury room so they could view it during deliberations, without counsel present) (no error in applying §2K2.1(b)(6)(B) enhancement for guns found in car that evidence suggested defendant had sold drugs out of, with one of the guns on console inches from drugs). UPDATE (8.24.15): More at Ninth Circuit Blog.
- Williams v. Swarthout (habeas) (panel withdraws published opinion that granted habeas relief on due process and Sixth Amendment claims, and supersedes with memorandum disposition).
- U.S. v. Pedrin (stash house sting wasn’t outrageous government conduct, where defendant had readily agreed to participate in stash-house robbery and supplied plans and materials) (J. Noonan in dissent would hold sua sponte that defendant was entrapped).
- Lopez-Valencia v. Lynch (immigration) (California theft under Penal Code §484 is overbroad and indivisible, so categorically not theft offense/aggravated felony under §1101(a)(43)(G); holding applies to any offense for which substantive, underlying offense is §484 offense, e.g., §§487 (grand theft), 488 (petty theft), or 666 (petty theft with qualifying prior)).
- Mardrigal-Barcenas v. Lynch (from last week) (on remand in light of Mellouli, Nevada misdemeanor possession of drug paraphernalia, Rev. Stat. §453.566, isn’t categorical controlled substance offense) (panel remands to district court to decide in first instance whether modified categorical approach applies).
- Chavez v. Lynch (immigration) (unpub’d) (modified categorical approach doesn’t apply to California petty theft with priors, PC §§484(a) & 666, because jury doesn’t have to unanimously determine which disjunctively worded form of theft it used to convict defendant). (H/T Jim Locklin)
- Smith v. Lopez (habeas) (on remand from Supreme Court per curiam reversal, panel reverses habeas grant and remands to district court for further proceedings).
Short circuits
- U.S. v. Bowen (5th Cir.) (order of new trial after convictions of New Orleans police officers for post-Katrina shootings and ensuing cover-up was not an abuse of discretion, where “[n]o less than three high-ranking federal prosecutors are known to have been posting online, anonymous comments to newspaper articles about the case throughout its duration”). (H/T)
- U.S. v. Powell (6th Cir.) (summons is not “intervening arrest” for purposes of career offender guideline) (query how provision in plea agreement here that reserved defendant’s right to challenge determination of criminal history category encompassed challenge that only affected offense level). (H/T)
- U.S. v. Meza-Rodriguez (7th Cir.) (district court denial of motion to dismiss §922(g)(5) count on Second Amendment grounds “swept too far” by proclaiming that right to bear arms does not protect unauthorized aliens, though defendant still loses).
- U.S. v. Hernandez Flores (7th Cir.) (though standard license plate frame covered plate’s periphery, no reasonable officer could have believed it violated state’s plate-display law, so heroin discovered in car and confession given after stop had to be suppressed).
- U.S. v. Black (7th Cir.) (in case where defendant repeatedly passed bad checks to pay off $5 million tax debt, calculation of loss under § 2T1.1 required total tax revenue government was owed but did not receive, rather than total of bad checks defendant passed to cover the debt, and penalties and interest should not have been included).
- Ortiz v. Lynch (8th Cir.) (defendant’s conviction for Minnesota obstruction of legal process, Stat. §609.50(2), was not aggravated felony/crime of violence, even assuming statute was divisible).
- U.S. v. Barela (10th Cir.) (use of P2P software not in itself enough to support 5-level enhancement under §2G2.2(b)(3)(B)). (H/T)
For the bookworms
- “Who Wins in the Supreme Court? An Examination of Attorney and Law Firm Influence,” Adam Feldman, working paper (SSRN). (H/T)
- “The Ambivalence in the American Law Governing the Admissibility of Uncharged Misconduct Evidence,” Edward J. Imwinkelried, conference paper (forthcoming) (SSRN). (H/T)
- “Fourth Amendment Doctrine Mash-Up: The Curious Case of Cell Phone Location Data,” Monu Singh Bedi, working paper (SSRN). (H/T)
- “Race-Based Law Enforcement: The Racially Disparate Impacts of Crimmigration Law,” Kevin R. Johnson, ___ Case W. L. Rev. ___ (forthcoming) (SSRN). (H/T)
- “Advocate Yes; Witness No,” Stephen A. Saltzburg, 29-4 Crim. Just. ___ (2015) (pdf). (H/T)
- “Cumulative Constitutional Rights,” Kerry Abrams & Brandon L. Garrett, working paper (SSRN). (H/T)
- “Why Not Treat Drug Crimes as White-Collar Crimes?,” Thea Johnson & Mark William Osler, 61 Wayne L. Rev. 1 (2015) (SSRN). (H/T)
- “Prosecutorial Constitutionalism,” Eric S. Fish, working paper (SSRN). (H/T)
- “Do Schools Cause Crime in Neighborhoods? Quasi-Experimental Evidence from the Growth of Charter Schools in Philadelphia,” John MacDonald & Nancy Nicosia, working paper (SSRN). (H/T)
- “Of Monsters and Men: Perpetrator Trauma and Mass Atrocity,” Saira Mohamed, 115-5 Colom. L. Rev. ___ (2015) (SSRN). (H/T)
- “Police Racial Violence: Lessons from Social Psychology,” L. Song Richardson, ___ Fordham L. Rev. ___ (2015) (SSRN). (H/T)
