BLOG BULLETS: A recent Ninth Circuit opinion narrowly reads Aguila-Montes de Oca Only facts necessary to the factual basis for the plea on which a prior conviction is based can be considered under the modified categorical approach It’s not what the defendant did but what he was convicted of that matters. NOW THE BLOG: Before […]

BLOG BULLETS: Charges of alternative ways of committing a crime require proof of just one of the alternatives even when the charge is in the conjunctive, so a plea admits only one of the alternatives alleged, not every one. This means the prior conviction doesn’t qualify under the categorical approach for evaluating prior convictions for […]

BLOG BULLETS: Present Ninth Circuit law allows courts to apply the “modified categorical approach” not just to divisible statutes that define multiple crimes or ways of committing a crime, but to any statute. But there’s a split in the circuits and the Supreme Court just granted cert on the issue. So preserve the issue with […]

This week we have a guest post from Dan Broderick, the head of the Federal Public Defender office in Sacramento. Though Dan was briefly an AUSA in Los Angeles (back when I started at the Federal Public Defender’s office, actually), he saw the light after a few years and has been a defender for going […]

BLOG BULLETS: Defendants can get credit for acceptance of responsibility even when they go to trial. Such credit is especially justifiable when the defense is an affirmative defense that admits the conduct, like entrapment or duress. And remember Booker; does it “promote respect for the law” or “provide just punishment” to sentence a defendant to […]

BLOG BULLETS: Don’t let prosecutors use their right to object to a conditional plea as a way of maintaining prejudicial joinder of a factually uncontested charge. Ninth Circuit severance case law on felon in possession counts is actually somewhat helpful. Seek a severance if the prosecutor won’t agree to a conditional plea just to maintain […]

BLOG BULLETS: Government consent is required for a conditional guilty plea. But the purpose of that requirement is to let the government preserve harmless error arguments. The defendant is giving the government a benefit by entering a conditional plea, not the other way around, so don’t let the government make you sign a plea agreement […]

BLOG BULLETS: Plea agreements may not provide enough benefits to offset the costs. Think about pleading open — when you’re client’s ready — and saving the right to appeal the sentence. Appellate issues you didn’t anticipate may arise during the sentencing process. NOW THE BLOG: My post last week about breach of plea agreements brought […]

BLOG BULLETS: The government can’t mouth its recommendation but then undercut it with other arguments. The remedy for government breach of a plea agreement, if the defendant wants it, is specific performance. The defendant is also entitled to transfer to a different judge who isn’t tainted by the breach. NOW THE BLOG: A few weeks […]

BLOG BULLETS: Low drug testing error rates don’t necessarily mean most positive tests are accurate. There’s a Ninth Circuit opinion, not just statisticians, explaining this. So think more about challenging positive drug test results. NOW THE BLOG: A couple of months ago, the FPD office here circulated an e-mail with some experiences a couple of […]