Criminal Appeal

Cal. 288(a) Viol. Is Crime of Violence

US v. Teeples, no. 03-30307 (9th Cir., Jan. 5, 2006): In this per curiam decision following a Booker remand from the US Supreme Court, the Ninth Circuit held that the defendant's prior convictions for lewd and lascivious acts on a minor (Cal. Pen. Code sec. 288(a)) constituted crimes of violence under U.S.S.G. § 4B1.2. The Court, however, remanded the case under Ameline for the limited purpose of reconsidering the sentence under the  discretionary guidelines (the court ordered the parties to notify the court if either wants to pursue an Ameline remand).

Warning: Summary of Opinion from June (I'm still catching up on a few 9th Circuit Opinions I missed due to vacation.)
U.S. v. Hernandez-Hernandez, no. 02-30429 (9th Cir., June 30, 2004).

(1) prior aggravated felony convictions need not be alleged in indictment or proved to jury; (2) prior California false imprisonment conviction was crime of violence and, applying modified categorical approach, court could consider facts found in state court motion to dismiss the information(Cal.Pen.Code sec. 995) which were stipulated to in state court proceedings as providing factual basis for plea; (3) "prior conviction for threats to do harm may be counted under U.S.S.G. § 4A1.2(c)(1) because it is not similar to the listed offense of disorderly conduct."

Judge Kleinfeld partially dissented, contending that it was improper to consider the contents of the 995 motion to establish whether the prior offense was a crime of violence. For one thing, "[e]ven though Hernandez was bound by his attorney’s stipulation that the victim’s testimony at the preliminary hearing, as summarized in the 995 motion, furnished a factual basis for his change of plea, that is not the same thing as Hernandez or his lawyer admitting that all the facts in the testimony were true."

Panel: Kleinfeld (partial dissent & partial concurrence), Gould, and Tallman (author)

"A prior conviction for abusive sexual contact under 18 U.S.C. § 2244(a)(3) constitutes a conviction of a 'crime of violence' for purposes of the Career Offender Guideline, U.S.S.G. § 4B1.1." U.S. v. Granbois, no. 03-30383 (9th Cir. July 22, 2004).

This holding was based on the court's conclusion that sexual abuse of a minor is categorically a crime of violence, in that it is listed in subpart (II) of the application notes to § 2L1.2, which defines crimes of violence.

Panel: Pregerson, Thompson (author), Callahan

Possession of a Destructive Device (in Violation of Oregon Statute) Is Not A Crime of Violence Under U.S.S.G. §§ 2K2.1(a)(4)(A) and 4B1.2(a). U.S. v. Fish, no. 03-30362 (9th Cir. May 28, 2004).

Panel: Reinhardt, Silverman, and Clifton.

Illegal Entry Conviction Affirmed, but Government Obtains Remand for Sentencing Error
U.S. v. Rodriguez-Rodriquez, no. 03-50146 (9th Cir. Apr. 20, 2004)

Holdings: Defendant's Appeal. (1) charge of illegal entry (8 USC 1326) was not defective for failing to allege "voluntary entry" into the U.S: (2) district court did not clearly error in finding Miranda waiver voluntary; (3) no error in curtailing cross-examination regarding INS recordkeeping "because it is uncontested that Rodriguez never made any application to the INS or any other federal agency." Government's Appeal. (1) prior California burglary of an inhabited dwelling house is a "crime of violence"; remand required to imposed 16-level enhancement for prior crime of violence, rather than 8-level enhancement for aggravated felony.

Panel: Cynthia Holcomb Hall, Stephen S. Trott (author), and Consuelo M. Callahan,

Listen to the Mar. 30, 2004, oral argument in this case. (The audiofile will only be available for three months from the argument date.)

Attempted Discharge of a Firearm is a Crime of Violence Under Fed. Sent. Guidelines. Today, in U.S. v. Sarbia, no. 03-10276, the Ninth Circuit affirmed the defendant-appellant's 63-month sentence for possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). The court specifically affirmed an adjustment upward under USSG sec. 2K2.1(a)(4)(A) for committing the current offense subsequent to a prior conviction for a crime of violence. The court of appeals held that attempted discharge of a firearm fits within the definition of “crime of violence” in section 4B1.2, which defines “crime of violence” for purposes of section 2K2.1.