BLOG BULLETS: Rule 801(d)(2) of the Federal Rules of Evidence on admissions of a party-opponent can be used to introduce statements by government prosecutors and agents. Other limiting rules of evidence, like rules limiting opinion evidence and the rule excluding hearsay, don’t apply, so statements made by prosecutors in closing argument and statements made by […]
Read/Write CommentsA man who said he was beaten by Los Angeles County sheriff’s deputies while visiting his brother at Men’s Central Jail will be paid almost $1.2 million to settle his civil rights lawsuit. Attorneys for Gabriel Carrillo, 26, announced the settlement Thursday. It was approved by the Los Angeles County Board of Supervisors and finalized […]
Read/Write CommentsBLOG BULLETS: Less than half of sentences are now within the guidelines, with the vast majority of other sentences being below the guidelines. The percentage of sentences within the guidelines in the Ninth Circuit is even lower. Career offenders are being sentenced within the guideline range even less frequently, with only 30.2% being sentenced within […]
Read/Write CommentsBLOG BULLETS: The California statutes governing sale of drugs are overbroad for purposes of the categorical approach because they include transportation for personal use in addition to sale. The transportation/sale element isn’t divisible underDescamps because a jury doesn’t have to unanimously agree on whether the defendant sold or transported. So the modified categorical approach can’t […]
Read/Write CommentsBLOG BULLETS: A mere listing of alternatives isn’t enough to make a statute divisible; the alternatives have to create different crimes. The listing of alternatives has to be exhaustive, not just illustrative. Divisibility isn’t enough if the item in the list that applies doesn’t satisfy the generic federal definition at issue. NOW THE BLOG: This […]
Read/Write CommentsBLOG BULLETS: A mere listing of alternatives isn’t enough to make a statute divisible; the alternatives have to create different crimes. The listing of alternatives has to be exhaustive, not just illustrative. Divisibility isn’t enough if the item in the list that applies doesn’t satisfy the generic federal definition at issue. NOW THE BLOG: This […]
Read/Write CommentsBLOG BULLETS: The California and Nevada burglary statutes have already been held non-divisible under Descamps and thus not subject to the modified categorical approach. Case law has interpreted the Arizona burglary statute to be like the Nevada and California statutes, so it should be found to be non-divisible for the same reasons. There are good […]
Read/Write CommentsBLOG BULLETS: Remember that just a listing of alternatives isn’t what makes a statute “divisible” under Descamps. The list has to be a list of alternative elements that creates different offenses, not a list of alternative means of committing a single offense. A recent Fourth Circuit case affirmed this reading ofDescamps. NOW THE BLOG: In […]
Read/Write CommentsBLOG BULLETS: For now, conspiracy to commit a “violent felony” is also itself a “violent felony” under the Armed Career Criminal Act. But a Ninth Circuit panel has described this holding as “illogical” and “questionable” in light of Supreme Court precedent. A petition for rehearing en banc is now pending, with a government response ordered, […]
Read/Write CommentsBLOG BULLETS: The crime of attempt, like conspiracy, is defined differently in different jurisdictions, so check your state’s definition against the generic definition. There’s also an argument that the generic definition recognizes the defense of “abandonment,” or “renunciation,” so check whether your state fails to recognize that defense. There’s two bad cases holding California attempt […]
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