Recaps: 9th Circuit Court Opinions from late 2019
US v. Harrington, No. 18-30141 (12-24-19)(Fletcher w/Callahan & Christen). This is a double counting challenge that the 9th rejected. In an Indian country case, the 9th affirms a three level enhancement for strangling a spouse. The defendant plead to assault by strangling a spouse in Indian Country in violation of 18 USC 113(a)(8). Sentencing is under the guideline for agg assault. It has a three level enhancement for strangling of a domestic partner. The 9th held this was not double counting because the agg assault guideline, 2A2.2, covers a wide range of agg assaults. It is not double counting because the offense level of agg assault does not exclusively cover this conduct. Valiant effort by Jeremy Sporn of the Fed Def of Washington (Yakima).
Carter v. Davis, No. 13-99003 (12-26-19)(Per Curiam w/Rawlinson, Clifton, & Bybee). The 9th affirmed denials of post-conviction petitions challenging the capital convictions and sentence. The principal issue was the irreconcilable breakdown between counsel and client. The matter was brought to the state trial court as trial approached, in trial, and post-trial. Counsel and client differed on approaches, and arguably whether counsel was barring client from testifying. The state courts reviewing the issues found no breakdown sufficient for relief. The 9th upheld. Under AEDPA, the 9th disavowed the 9th’s precedent holding that an irreconcilable conflict was per se reversible. Rather, because there was no Supreme Court precedent on the matter of per se reversal, the state decision was not unreasonable. The 9th also rejected IAC on trial strategy and approach. Hard fought appeal by Mike Weinstein and mark Yim, Deputy Federal Defenders, Cal Central (Los Angeles).
US v. Rodriguez-Gamboa, No. 19-50014 (12-27-19)(Hurwitz w/Wardlaw & Bataillon). This opinion asks a fundamental question: do geometric isomers of methamphetamine exist? It is more than an existential question. If they do, or can be easily constructed, or are not wholly illusory, then the California meth statute is broader than the federal meth statute; there is no categorical fit; and the defendant’s state conviction is not an agg felony. If it is only a “theoretical” possibility, then the statutes may be one and the same, which carries bad news for the defendant. This case has an odd posture. The defendant pled guilty; then withdrew her plea when Lorenzo I, 902 F.3d 930 (9th Cir 2018) came out, which found the state definition broader. That case was then replaced by Lorenzo II, a memo disposition. The memo disposition stated that the govt is not foreclosed in arguing that any difference between the two statutes is illusory. The argument is that both statutes make isomers of meth illegal, which actually exist, while geometric isomers do not. So here we are now. The panel declined such organic chemistry findings. It remanded to the district court to determine whether geometric isomers are theoretical (Stay tuned to see if Schrödinger’s cat will make a theoretical appearance as a drug detecting feline). In other opinion housekeeping, the 9th held that the district did not abuse its discretion in allowing the defendant to withdraw her plea. The 9th also vacated the district court’s dismissal of the indictment (for failure to state an offense) in light of the remand. Kudos to David Menninger, Deputy Federal Public Defender, for his vigorous defense. He has the right chemistry.