Today’s post is just a short update on some past posts about the indivisibility of drug statutes.  You may recall two past posts about two Ninth Circuit opinions, albeit unpublished, holding the Arizona drug statutes are overbroad and indivisible — and therefore can’t qualify as prior drug offenses under the categorical and modified categorical […]

BLOG BULLETS: A proposed guideline amendment will make avoiding prison easier, first by adding a 1- or 2-level decrease for true first offenders with no criminal record at all, and, second, by combining Zone B and Zone C in the sentencing table, so anyone with a guideline range of 12-18 months or less can serve […]

BLOG BULLETS: A recent DOJ memo on eyewitness identification contains recommended procedures to help prevent erroneous identifications, including either blacking out unique identifying characteristics or adding them to the “filler” photos; administration by an officer who doesn’t know who the suspect is or doesn’t know the order in which photos are presented; and videotaping or […]

BLOG BULLETS: Lawyers have a broad duty of confidentiality toward their clients that goes beyond the attorney-client privilege and includes all information relating to the representation, no matter what the source is. There is a “self-defense” exception which allows disclosure when necessary to defend against allegations by the client about the lawyer’s representation, but disclosure […]

BLOG BULLETS: Older cases placing the burden of proof for sentencing entrapment on the defendant are based on the general guidelines rule that the burden is on the party seeking an adjustment of the guideline range. The Ninth Circuit’s recent recognition of sentencing entrapment as a jury question in some circumstances means guidelines rules shouldn’t […]

BLOG BULLETS: Remember the partial defense of sentencing entrapment; even if a defendant was predisposed or wasn’t induced to sell some amount of drugs, he may be induced and not predisposed to sell a larger quantity. A Ninth Circuit case – United States v. Cortes, 757 F.3d 850 (9th Cir. 2014) – establishes that the question of […]

BLOG BULLETS: Two recent Supreme Court cases provide strong support for an argument that it’s the state guideline maximum, not a maximum set by the general statute, that controls whether a crime was “punishable by imprisonment for a term exceeding one year” under the Armed Career Criminal Act and the career offender guideline. Three other […]

Today we have a guest post from former Central District of California DFPD Myra Sun:   Now that we know our president-elect’s choice for Attorney General, where we’ve been and where we’re going with federal criminal prosecutions — drugs and beyond — is worth thinking about a little. In 1987, Congress enacted mandatory minimum sentencing […]

BLOG BULLETS: While courts must still proceed to the third Batson step when a prosecutor does not or cannot offer race-neutral reasons for a challenge, Ninth Circuit case law holds that a failure to offer race-neutral reasons is itself evidence and that it is evidence which will establish purposeful discrimination in most cases. Where a race-neutral reason […]

Forgive me if I digress from the law a little bit today.  Donald Trump has been telling us he’ll “make America great again.”  That requires us to construe “great” – if you’ll let me be a little lawyerly about it. When was the “great” Donald Trump has in mind?  Is it the first part of […]