BLOG BULLETS: Remember an out-of-court statement is hearsay only if it’s offered for the truth of the matter asserted; if you offer it simply to show what your client believed, it’s not being offered for the truth of the matter asserted and so isn’t hearsay. Remember also there can be hearsay within hearsay; if that’s […]
Read/Write CommentsBLOG BULLETS: A recent Ninth Circuit case applies and gives force to changes in the mitigating role guideline that encourage its application in more cases. The changes include commentary that says courts in the past have applied the guideline more sparingly than the Sentencing Commission intended, that a defendant who does not have a proprietary […]
Read/Write CommentsBLOG BULLETS: Though it’s the least beneficial of the various bills which have been proposed, one of the sentencing reform bills proposed in this session of Congress has been passed out of committee and has some chance of passing. The bill would significantly narrow the category of prior drug convictions which enhance drug sentences, allows […]
Read/Write CommentsBLOG BULLETS: Ninth Circuit opinions over the past several years have found multiple state controlled substance schedules to be broader than the federal controlled substance schedules, which means the state drug convictions don’t qualify as federal drug priors under the categorical approach. Several of the Ninth Circuit opinions have saved the state convictions by finding […]
Read/Write CommentsBLOG BULLETS: A defendant has a constitutional and statutory right to a jury drawn from “a fair cross-section of the community” and can challenge a grand jury or trial jury if there is “systemic exclusion” of a “distinctive group” in the community from the pool the jury is drawn from. The Ninth Circuit recently overruled […]
Read/Write CommentsBLOG BULLETS: Remember the California drug statutes are broader than generic drug trafficking, both because they include controlled substances the federal statutes don’t include and because some of them, until recently, included non-trafficking conduct. There are also viable arguments the California drug statutes don’t require jury unanimity on the type of controlled substance and don’t […]
Read/Write CommentsBLOG BULLETS: The Ninth Circuit recently invalidated a probation search of a cell phone, in part because of the far greater intrusion on privacy when a cell phone is searched that was recognized in Riley v. California. The Ninth Circuit also put weight on the fact that the probation search condition didn’t unambigously identify cell […]
Read/Write CommentsBLOG BULLETS: The Ninth Circuit has recently held – in Ramirez v. Lynch, 810 F.3d 1127 (9th Cir. 2016) – that the California child abuse statute doesn’t qualify as a crime of violence under the categorical approach and can’t be subjected to the modified categorical approach because it’s nondivisible. Ramirez also reminds us of several […]
Read/Write CommentsBLOG BULLETS: Remember the § 5G1.3 guideline rules on running sentences concurrently with already existing sentences for relevant conduct and also reducing the guideline range by the time already served on the existing sentence. Case law has extended this principle to statutory mandatory minimum sentences, so mandatory minimums are also reduced by time already served […]
Read/Write CommentsBLOG BULLETS: A recent concurring opinion by Judge Fisher, along with a district court Judge Pregerson opinion he cites with approval, provides support for a broader application of the rule of completeness. First, the rule of completeness applies to oral statements just as much as it applies to written statements, albeit through a different rule […]
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