BLOG BULLETS: The recent Supreme Court opinion holding the Armed Career Criminal Act residual clause unconstitutional – United States v. Johnson – can be used to help even clients who have completed serving their prison sentences. Both guidelines commentary and Ninth Circuit case law suggest a showing the defendant wrongfully served excess time in custody […]
Read/Write CommentsBLOG BULLETS: A recent Ninth Circuit case – Chavez-Solis v. Lynch – clarifies and reaffirms two important principles about the categorical approach to evaluating prior convictions used for enhancements. First, a defendant does not always have to point to an actual case to show the required “reasonable probability” of an overbroad application of the statute; […]
Read/Write CommentsBLOG BULLETS: A more limited bill including just a few of the ameliorative provisions of the SAFE Act I blogged about a couple of months ago has been introduced in Congress. The bill would (1) narrow the category of drug priors that can support enhanced mandatory minimums but add violent crime priors; (2) relax the criminal […]
Read/Write CommentsBLOG BULLETS: Ninth Circuit model instructions, in the Ninth Circuit’s own words, “do not come down from any mountain or rise from the sea.” Consistent with this, Ninth Circuit panels have invalidated a number of Ninth Circuit model instructions. So don’t just accept an instruction because it’s the Ninth Circuit model instruction; look at it […]
Read/Write CommentsBLOG BULLETS: Justification for a Terry stop doesn’t automatically justify a frisk for weapons during the stop. A frisk for weapons requires its own different justification, namely, a reasonable suspicion that the person stopped is armed. The Ninth Circuit has found the additional intrusion of a frisk unjustified in multiple cases. NOW THE BLOG: […]
Read/Write CommentsBLOG BULLETS: Most federal agencies have what are sometimes called “Touhy regulations” which require parties seeking testimony of an agency employee to provide a summary of the testimony sought. The government sometimes points to regulations like this to force criminal defendants to provide summaries of the testimony they want to elicit from federal agents they […]
Read/Write CommentsBLOG BULLETS: There’s a recent Ninth Circuit case – United States v. Santos-Flores, 794 F.3d 1088 (9th Cir. 2015) – that confirms holdings in prior district court cases that the possibility – or actuality – of an ICE detainer can’t be used as a ground for denying bail. The Ninth Circuit case also cites one […]
Read/Write CommentsBLOG BULLETS: Remember the new DOJ policy adopted in August 2013 that 21 U.S.C. § 851 enhancements should be sought only if “the defendant is involved in conduct that makes the case appropriate for severe sanctions.” A second memorandum, issued a year later, makes clear that this policy applies regardless of whether the defendant pleads […]
Read/Write CommentsBLOG BULLETS: A recent Ninth Circuit opinion – United States v. Sanchez-Gomez – invalidates a Southern District of California United States Marshal policy of shackling all defendants at most court appearances in five-point restraints. The opinion distinguishes and limits the prior Ninth Circuit opinion in United States v. Howard that allowed some shackling at some […]
Read/Write CommentsBLOG BULLETS: See below. I stopped with the SAFE Act’s sentencing provisions in my last post because just those alone justified a full post – actually, more than a full post. There’s also some encouraging trial provisions in the Act, though. The Act is linked again here, and you should peruse it yourself, but here’s […]
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