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U.S. v. Morales, No. 09-30047 (1-5-10). The 9th holds that the district court is without jurisdiction to reduce a supervised release revocation sentence because the guideline range for the original crack offense was reduced. Simply put, lowering the crack guideline does not help lowering the supervised release revocation sentence. The 9th (Kozinski joined by Fisher and Paez) find that a reduction of sentence can be considered when the two prongs of 3582(c)(2) are met: (1) the lowering of applicable guidelines; and (2) it is consistent with the Sentencing Commission's applicable policy statements. The defendant here met the first prong, with the crack guidelines having been lowered; but failed to meet the second prong because the applicable note of 1B1.10(a)(1) note 4 states that the reduction of a SR term is not called for. Under 3582, the policy statements control in the second prong of the reduction of sentences because of a lowering of guidelines.

U.S. v. Forrester, No. 09-50029 (1-5-10). In an appeal from a conviction and 30-year sentence for ecstasy drug offense, the 9th (M. Smith joined by Hall and T. Nelson) affirm the conviction but remand for a new sentencing. On the conviction, the defendant had previously gotten relief because the 9th had found that he had unintelligently waived counsel. Now, on this plea and sentence, defendant argues that he deserves to be afforded the original plea terms (max of 20 years). The 9th discusses this interesting point of whether the defendant has a right to voluntarily and intelligently to reject a plea, but sidesteps it because any error was harmless. The defendant was offered a deal that the co-defendant had to accept as well, and the co-defendant did not (he was already facing life). The 9th also found that in regards to the conviction, the defendant did not have the right to challenge the applicability of the drug as a Schedule I as opposed to a Schedule III. The defendant can challenge temporary designations of scheduling designation as to controlled substances but not permanent ones. The 9th also rejects various challenges to the wiretap evidence. Relief is granted in the form of a remand as to sentencing so that the district court can determine the end of the conspiracy for relevant conduct purposes. The government has to prove that the conspiracy extended until after the temporary scheduling amendment became effective that raised the equivalency penalty from 50:1 (marijuana to ecstasy) to 500:1. The court should also make specific findings as to various factual challenges as they relate to sentencing.

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