Ninth Circuit

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.

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.

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.

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.

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.

The Ninth Circuit declined a rehearing en banc, leaving in place a panel opinion holding that a warrantless forensic search of the defendant’s phone was outside the scope of a permissible routine border search and violated the Fourth Amendment. The Court held that warrantless border searches are limited in scope to routine customs inspections for contraband, not evidence, that the only kind of contraband on a phone is child pornography, and that the officers did not have reasonable suspicion that the phone contained child pornography.

The Ninth Circuit vacated the defendant’s conviction and held that the attenuation doctrine should not have been applied to deny his motion to suppress. The officers’ second, discretionary search of the defendant’s home was a direct result of a prior unlawful sweep of the home during which officers discovered that the defendant had a condition of supervised release allowing searches. The temporal proximity between the searches and the investigatory motives of the officers outweighed the intervening nature of discovering the condition of supervised release, and evidence discovered during the second search should have been suppressed.

In a matter of first impression, the Ninth Circuit vacated a defendant’s pre-trial repatriation order under a de novo standard of review after finding the order violated the defendant’s right against self-incrimination under the Fifth Amendment. The Court further held that the district court’s application of the forgone conclusion exception was too broad while the government’s limited use immunity was too narrow to protect the defendant’s Fifth Amendment rights.

The Ninth Circuit vacated a defendant’s conviction for transporting marijuana and remanded for a new trial because the district court did not properly assess the reliability of the government’s expert witness, an ICE agent, who testified that the cartel does not employ unwilling couriers. The Court held that this was harmful error because it directly undercut the defendant’s credibility and duress defense.

The Ninth Circuit vacated a defendant’s sentence because the district court erred in failing to consider whether the defendant had accepted responsibility. Though the defendant had gone to trial, he had admitted factual guilt and relied on a defense that the government lacked jurisdiction under the Hobbs Act. The Court held that a defendant may still receive credit for accepting responsibility after making good faith challenges to a statute’s applicability in a criminal case.