Ninth Circuit

The Federal Docket

United States v. Alfred Velazquez (9th Cir. July 2021)

The Ninth Circuit vacated a defendant’s conviction for importing drugs based on the prosecutor’s statements in closing regarding the standard of proving guilt beyond a reasonable doubt. The Court held that the prosecutor’s comparison of the standard to the confidence a person might need to have in eating a meal without fear of sickness or traveling to court without worrying about a car accident mischaracterized and “trivialized” the standard and caused substantial prejudice.

Ninth and Eleventh Circuits Split Over Amended Safety Valve Relief

The Eleventh Circuit and Ninth Circuit created a circuit split concerning the proper interpretation of the safety valve under 18 USC 3553(f), particularly as it was amended by the First Step Act. The courts disagreed over the proper interpretation of the word “and” in the list of requirements a defendant must meet for their criminal history to allow them to qualify for the safety valve. The Ninth Circuit’s interpretation would allow far more defendants qualify.

United States v. Robert Paul Rundo, et al. (9th Cir. March 2021)

The Ninth Circuit reversed the district court’s dismissal of an indictment charging the defendants with violating the Anti-Riot Act. The Court held that the provisions of the Anti-Riot prohibiting an “overt act” in furtherance of inciting a riot were not overbroad since it satisfied the imminence requirement under Brandenburg. While the Court held that the provisions of the Act prohibiting the “urging,” “organizing,” “promoting,” encouraging,” and “advocating” a riot were overbroad, the language prohibiting the “instigating” of a riot was not, and regardless, the Act was severable.

Fifth, Ninth, and Tenth Circuits Join Majority of Circuits Holding that Courts Have Broad Discretion in Granting Sentence Reductions

The Fifth, Ninth, and Tenth Circuits have issued opinions over the past few weeks holding that district courts have broad, independent discretion in determining whether an inmate has established “extraordinary and compelling reasons” warranting a sentence reduction under 18 USC 3582(c)(1)(A). The courts join the Second, Fourth, Sixth, and Seventh Circuits in recognizing the broad discretion of district courts, creating a substantial majority of the circuits. The other circuits have not yet addressed this issue.

United States v. James Philip Lucero (9th Cir. March 2021)

The Ninth Circuit reversed a defendant’s conviction under the Clean Water Act based on the trial court’s failure to instruct the jury that the defendant had to have knowledge that he was discharging pollutants “into water.” The error was not harmless because it was unclear whether the defendant knew that the area in question was inundated with water when he discharged the pollutants. The Court also held that waters being “of the United States” is a jurisdictional element, that “waters of the United States” is not unconstitutionally vague, and that revised regulatory definitions of the phrase are not retroactive unless explicitly made so.

United States v. Simha Furaha (9th Cir. March 2021)

The Ninth Circuit affirmed a defendant’s sentence after the defendant challenged the district court’s application of an enhancement based on the defendant’s prior conviction under 924(c), which the sentencing court considered a “controlled substance offense” warranting an enhancement. The Court held that a sentencing court may apply the modified categorical approach to determine whether a defendant’s underlying “drug trafficking crime” under 924(c) was a “controlled substance offense” under 4B1.2.

United States v. Gregory Olson (9th Cir. February 2021)

While denying a defendant’s appeal from a 2255 motion, the Ninth Circuit suggested the Sixth Amendment right to counsel can apply in certain cases before there has been an indictment filed. Here, the Court rejected claims by a defendant who alleged his lawyer had not communicated a pre-indictment offer to him after he received a target letter.

United States v. Melvyn Gear (9th Cir. January 2021)

The Ninth Circuit affirmed a defendant’s conviction for unlawful possession of a firearm by a nonimmigrant visa holder, but held that the Government must prove more than merely the fact that a defendant’s visa is labeled as a nonimmigrant visa. The Government must show that the defendant knew his visa’s classification or knew the offending characteristics of the visa that makes his firearm possession unlawful.

United States v. Julian Mora-Alcaraz (9th Cir. January 2021)

The Ninth Circuit affirmed a district court’s order suppressing a defendant’s statements under Miranda. The officers had interrogated the defendant without advising him of his Miranda rights after they approached him in marked cars and separated him from his seven-year-old son. However, the Court remanded for the district court to determine if the defendant’s subsequent consent to search his vehicle was voluntary.

United States v. Tamaran Bontemps (9th Cir. October 2020)

The Ninth Circuit affirmed the defendant’s conviction for being a felon in possession of a firearm. The Court held that there was reasonable suspicion to detain and search the defendant based solely on the officer believing he had a concealed firearm (illegal in California) after noticing a “very large and obvious bulge” under the defendant’s sweatshirt. The Court also discussed other kinds of “suggestive bulges” that can give rise to reasonable suspicion, such as when a defendant is hiding drugs.

Scroll to Top