The FPD’s TGIF Roundup

For the week of September 18, 2015

In this edition:

News to Use | Top of the Ninth | Short Circuits | For the Bookworms

News to use

• New Johnson materials page (Sentencing Resource Counsel)
• Lots of new data from BJS on prisoners and from USSC on federal sentencing (SL&P)
• “Who Pays? The True Cost of Incarceration on Family” (SL&P)
• The statistics of relists (SCOTUSblog)
• Detention Based on ICE Detainers Is Melting in the Ninth Circuit Too (Carl Gunn)

Top of the Ninth

• U.S v. Rosales-Gonzales (district court’s decision to grant parties’ joint request for fast-track departure under §5K3.1 is discretionary, and no abuse of discretion here in court’s rejecting it, where defendant had been deported 35 times) (no other procedural or substantive errors in imposing high-end sentence).
• U.S v. Myers (judicial participation in plea negotiations is categorically barred under FRCP 11(c)(1) even when requested by defendant and sanctioned by local rules; but magistrate judge’s participation here, after which defendant received below-guideline sentence, was not plain error). UPDATE (9.21.15): More at Ninth Circuit Blog.
• U.S. v. Embry (unpub’d) (defendant’s admission during knock-and-talk that he had personal-use amount of marijuana did not confirm vague, uncorroborated anonymous tip about ten pounds of marijuana) (subsequent reliance on overbroad warrant based on this information was unreasonable, and suppression was proper remedy). (H/T)

Short circuits

• Salmon v. Blesser (2d Cir.) (§1983) (grabbing person’s collar and forcing him to move is Fourth Amendment seizure). (H/T)
• U.S. v. Lewis (3d Cir.) (sentencing for aggravated crime where indictment only charged lesser crime was prejudicial Alleyne error) (concurring judge would treat Alleyne error as structural). (H/T)
• Carlson v. Fewins (6th Cir.) (§1983) (where sheriff’s department opted to call for coffee, hot chocolate, and granola bars but not for warrant during standoff with suicidal man that culminated in sniper’s killing him, reasonableness of warrantless conduct was question for jury). (H/T)
• McCarley v. Kelly (6th Cir.) (contents of letters between lieutenant and child psychologist were testimonial, and their admission was unreasonable application of CEFL under Crawford). (H/T)
• U.S. v. Randolph (6th Cir.) (district court did not adequately explain how defendant was responsible for laundering more than $200,000; it wasn’t enough to state that laundering of that amount was “established” by testimony of particular witness). (H/T)
• U.S. v. Newman (7th Cir.) (district court lacked authority to increase defendant’s sentence more than 14 days after §3582(c)(2) resentencing). (H/T)
• U.S. v. Bertucci (8th Cir.) (affidavit from wildlife association president did not provide reliable valuations of bald eagle and rough-legged hawk for application of four-level enhancement under §2Q2.1(b)(3)(A)(ii)) (anger-management treatment couldn’t be imposed as condition of supervised release merely because defendant had attended behavior-related classes five years before) (“financial obligation” ordered “in lieu of a fine” was unauthorized de facto restitution order). (H/T)
• U.S. v. Zander (10th Cir.) (district court erred in ordering restitution for unemployment benefits defendant had obtained, where there was no evidence defendant’s fraudulent conduct was cause of his termination). (H/T)
• Moore v. Pederson (11th Cir.) (§1983) (Terry stops can’t be conducted in someone’s home). (NB: This is already the rule in the Ninth under Struckman and Perea-Rey.) (H/T)

For the bookworms

• “The Meaning of 'Meaningful Appellate Review' in Capital Cases: Lessons from California,” Steven F. Shatz, ___ Santa Clara L. Rev. ___ (forthcoming) (SSRN). (H/T)
• “Punitive Compensation,” Cortney Lollar, 51 Tulsa L. Rev. ___ (2015) (SSRN). (H/T)
• “Cognitive Cleansing: Experimental Psychology and the Exclusionary Rule,” Avani Mehta Sood, 103 Geo. L.J. 1543 (2015) (SSRN).
• “Unequal Assistance of Counsel,” Peter A. Joy, 24-3 Kan. J. L. & Pub. Pol’y ___ (2015) (SSRN). (H/T)
• “Miranda 2.0,” Tonja Jacobi, working paper (SSRN). (H/T)
• “State Labs of Federalism and Law Enforcement 'Drone' Use,” Chris Jenks, 72 Washs. & Lee L. Rev. ___ (2015) (SSRN). (H/T)
• “Plea Bargaining and Disclosure in Germany and the United States: Comparative Lessons,” Jenia Iontcheva Turner, ___ Wm. & Mary L. Rev. ___ (2016) (SSRN). (H/T)
• “The Racial Roots of Human Trafficking,” Cheryl Nelson-Butler, 62 UCLA L. Rev. 1464 (2015) (SSRN). (H/T)
• “Free Will as a Matter of Law,” Adam J. Kolber, from Philosophical Foundations of Law and Neuroscience, Michael Pardo & Dennis Patterson eds., Oxford U. Press (2016) (SSRN). (H/T)
• “Vigilantes and Good Samaritans,” Kiel Robert Brennan-Marquez, ___ U. Penn. J. Const. L. ___ (forthcoming) (SSRN). (H/T)

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Suggestions or corrections? Email Michael Drake.