Ninth Circuit

The Ninth Circuit vacated a felon-in-possession sentence after holding that Oregon’s aggravated unlawful use of a weapon statute does not qualify as a “crime of violence” under the Guidelines.

In a habeas appeal concerning First Step Act credits, the Ninth Circuit held that earned time credits may be applied to reduce the length of a supervised release term, reversed the district court’s dismissal, and remanded for recalculation and transmission of credits to probation.

Sitting en banc, the Ninth Circuit held that the district court erred in dismissing an indictment against a defendant who was charged with illegal reentry after removal. While the defendant’s initial immigration proceedings were initiated based on a defective Notice to Appear, the Court held that this did not deprive the immigration court of subject matter jurisdiction, despite the language of the law setting forth requirements for Notices to Appear, so the prior removal order was valid.

The Ninth Circuit affirmed a defendant’s conviction for employing, using, persuading, inducing, enticing, or coercing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct under 18 USC 2251(a) where the defendant had placed hidden cameras in a bedroom to capture footage of a minor masturbating. The Court held that the “use” element of 2251(a) is satisfied whenever a defendant causes a minor victim to be the subject of child pornography.

The Ninth Circuit affirmed petitioner’s new sentences that were imposed after petitioners won a 2255 motion based on the First Step Act’s changes to 18 USC 924(c), a statute which carries a mandatory minimum of five years, consecutive to any other sentence imposed, and previously carried a minimum of 25 years for any subsequent convictions. Congress amended 924(c) so that “subsequent convictions” would not include 924(c) counts in a single indictment, and the Ninth Circuit held that the petitioners could be re-sentenced under the new version of the law since their original sentences had previously been vacated and were thus considered void.

The Ninth Circuit reversed a district court’s denial of an inmate’s motion to vacate under 28 USC 2255. The Court held that the inmate had not pleaded guilty knowingly where he was not informed of the mens rea for unlawful firearm possession under Rehaif, despite evidence that he had previously been sentenced to prison for over a year and had been previously convicted of several felonies.

The Ninth Circuit rejected a plaintiff’s Fourth Amendment challenge to the LA Department of Transportation’s permit scheme, wherein LA requires e-scooter companies like Bird and Lyft to collect real-time location data for their scooters and provide it to LADOT. The Court concluded there was no reasonable expectation of privacy under the third-party doctrine.

The Ninth Circuit held that delta-8-THC, and likely other hemp-derived cannabinoids, are not controlled substances in light of the 2018 Farm Bill. The 2018 Farm Bill excludes hemp and hemp products from the definition of marijuana and THC under the Controlled Substances Act, and the definition of “hemp” includes all cannabinoids, extracts, and derivates from cannabis as long as there is less than 0.3% delta-9-THC.

The Ninth Circuit reversed a defendant’s conviction for possession of a firearm by a convicted felon. Due to the COVID-19 pandemic, the defendant’s trial and motions hearing had been closed to the public, which only had a live audio stream of the proceedings. The Court concluded this violated the defendant’s Sixth Amendment right to a public trial.

Sitting en banc, the Ninth Circuit held that federal second degree murder (18 USC 1111(a)) is a “crime of violence” under 18 USC 924(c) where, employing the categorical approach, a conviction requires acting “deliberately or recklessly with extreme disregard for human life.” The Ninth Circuit distinguished reckless disregard for human life from mere recklessness but otherwise emphasized that “anything less than intentional conduct does not qualify as a crime of violence.”