BLOG BULLETS: The limits on how court records can be used under the modified categorical approach that are recognized in the Marcia-Acosta and Sahagun-Gallegos cases discussed in last week’s post suggest prior Ninth Circuit cases permitting broader use aren’t good law after Descamps. The cases which may no longer be good law include cases like United […]

  BLOG BULLETS: Two recent Ninth Circuit cases place strict limits on how court records can be used under the modified categorical approach, making clear that records can be used only to identify necessary elements, not extraneous facts that aren’t elements. One of the cases establishes that it isn’t enough for there to be a […]

BLOG BULLETS: Judge Graber’s dissent from the denial of rehearing en banc in Rendon v. Holder recognizes that the panel opinion in Rendon raises doubt about an earlier decision in Coronado v. Holder, 759 F.3d 977 (9th Cir. 2014) that rejects a challenge to the divisibility of the California drug statutes based on their failure […]

BLOG BULLETS: A petition for rehearing en banc that’s been pending in Rendon v. Holder has been denied. Still, there’s a lengthy dissent by Judge Graber arguing that Rendon is wrong. Judge Graber’s dissent can be challenged as (1) reading too much into a footnote in Descamps; (2) simplifying the problem for trial convictions where […]

In the vein of last week’s post on ameliorating sentencing legislation – and maybe because I’m feeling a little lazy this week – I thought I’d share a presentation I gave – just before leaving the Federal Public Defender’s office – on what I called the “history” of changes in the criminal justice system over […]

    BLOG BULLETS: The Smarter Sentencing Act, which would cut drug mandatory minimum sentences in half, has been reintroduced in this year’s Congress. There’s also a bill named the “Justice Safety Valve Act,” which would allow a court to sentence below a mandatory minimum sentence whenever it’s “necessary to do so in order to […]

   BLOG BULLETS:  While the “rule of completeness” in Rule 106 doesn’t allow a defendant generally to introduce the remainder of his statement when the government introduces just part of the statement, case law supports an argument that the defendant does have a right to introduce those parts that are necessary to put the part […]

BLOG BULLETS: Recent cases make clear that the burden is on the government to show prior offenses were “committed on occasions different from one another” for purposes of the Armed Career Criminal Act enhancement. The cases also make clear that the only evidence the government can use to show this are those records which can […]

BLOG BULLETS: There’s a good argument that whether prior offenses were “committed on occasions different from one another” for purposes of the ACCA is a fact that’s subject to Apprendirequirements and so can’t be decided by a judge at sentencing. The courts of appeals have rejected this argument, but the controlling cases in some circuits, […]

BLOG BULLETS: Convictions of separate offenses can count as multiple prior convictions under the Armed Career Criminal Act even if they’re based on charges in the same charging document. The convictions don’t count separately if they’re not committed on different occasions, or arise out of a “single criminal episode,” but offenses committed within an hour […]