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U.S. v. Christensen, No. 08-30120 (3-24-10) (Paez joined by Rawlison and Jenkins, D.J.). As a result of an undercover operation, the defendant was convicted for enticement of a minor to engage in sexual activity. He received an enhancement of +2 for unduly influencing a minor under the Guidelines, even though the "minor" was a FBI agent posing as an underage female. He objected to this enhancement. After the case was submitted, the Sentencing Commission amended the application note to 2G1.3(b)(2)(B) to reflect that an adjustment should not be given when the "minor" is actually an undercover agent. The 9th finds that the application note applies, and that it should apply retroactively. The 9th holds that the amendment resolved a circuit split, and that in such a case, the clearing up of conflicting interpretations should be considered a clarification, and held retroactive. The case is remanded for resentencing.

U.S. v. Denton, No. 09-50253 (3-24-10) (Bea joined by Gould and Molloy, D.J.). The defendant violated his supervised release. He physically abused his girlfriend. The state (California) did not charge the defendant but the district court found that the connduct could have been charged under California Code Sec. 273.5. A violation of this section could either be a felony or a misdemeanor. This alternative felony/misdemeanor is known as a "wobbler." If a felony, the SR violation would be a Grade A violation; if a misdemeanor, then a Grade C violation. Under California law, if charged, the wobbler is presumed to be a felony unless reduced or sentenced as a misdeamor. Here, the conduct was uncharged. The 9th holds that uncharged conduct is not presumed to be a felony. Again, this is only for "uncharged" conduct. Charged conduct is considered a felony. To "grade" the character of the uncharged conduct, the district court has to determine whether (1) a prosecutor would have charged a felony or a misdemeanor; and then (2) whether the state court would have imposed a misdemeanor rather than a felony. The factors to consider are set out in People v. Superior Court (Alvarez), 14 Cal. 4th 968, 978 (1997). Evidence can consist of affidavits from prosecutors and defense lawyers as to the nature and circumstances of the offense, results from other similar cases, and so forth. This determination focuses on the actual conduct and how it should be characterized.

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