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U.S. v. Gutierrez-Sanchez, No. 08-50254 (3-23-09). Beware what you plead to. The defendant here was apprehended illegally in this country. Under a fast-track plea, he plead to making a false statement (1001), with a government recommendation to 9 months. At the plea colloquy, he admitted the elements of an illegal re-entry after deportation, 1326. The court at sentencing felt that the real offense was illegal re-entry (there were 12 priors) and not a false statement, and so sentenced under that guideline, which resulted in a 16 month sentence. The defendant appealed. The 9th (Friedman joined by Bea and Ikuta) affirmed, finding that the plea allowed such a reference, that the Guidelines allowed such a reference, and that the 3553 factors were considered. The plea agreement was not binding on a specific sentence, and the government recommendation was only that.

U.S. v. Christensen, No. 06-30402 (3-23-09). The defendant, a prohibited possessor, was sentenced under ACCA. On appeal, he argues that one of his priors, for a statutory rape under a Washington code, was not a violent felony. The 9th agreed, following the categorical approach outlined in Begay v. U.S., 128 S.Ct. 1581 (2008) and Taylor. The stat rape may not be a violent felony because the act may not involve aggressive or violent behavior as the sexual intercourse here may have been consensual with a minor over 14. The 9th vacates and remands for consideration of a modified categorical approach.

U.S. v. Smith, No. 05-50375 (3-24-09) (en banc). In an en banc decision, the 9th found error in the trial court's giving of a jury instruction for assault with a dangerous weapon in violation of 18 USC 113(a)(3). The instruction's error was that it stated that defendant used a prison knife rather than having the jury find that the defendant used a dangerous weapon. (Model Instruction 8.5 has since been changed). The weapon here in a prison stabbing was a shank made from melting styrofoam trays into a shank. The case was defended on the issue that the weapon was not dangerous because the injuries were not serious given the force used. The en banc court (Hawkins) found error but determined that it was harmless because of the evidence. In dissent, Berzon, joined by Schroeder, Reinhardt, Wardlaw, and Paez, argued that the evidence was disputed, and that the court could not say it was harmless.

U.S. v. Meija, No. 06-50220 (3-24-09). In a conviction and sentence for meth possession with intent, the 9th vacates and remands for resentencing because of an error in criminal history calculation. The court had given a point for a misdemeanor conviction for resisting arrest because the defendant had been given a two year probation sentence, with 16 days jail time, and then had the probation suspended. The 9th (Trott joined by Bright and Hawkins) held that the suspension of the probation sentence, and the case's dismissal three days later meant that there was not a two-year probationary term, and so under 4A1.2(c)(1), it is not counted. The 9th affirmed the conviction, finding that his statements were voluntary, and that the shackling of defendant did not violate due process because the jury did not see the restraints.

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