NINTH CIRCUIT COURT NEWS-2003-27
Willamette Law Online - Willamette University College of Law
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>From 06/24/03 to 06/01/03, the Ninth Circuit Court of
Appeals decided the 20 cases summarized below.

In this issue:
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(1)      ADMINISTRATIVE LAW / NOTICE AND COMMENT REQUIREMENTS
(2)      ADMINISTRATIVE LAW / WOBBLER STATUTE
(3)      CIVIL PROCEDURE / IN PERSONAM JURISDICTION
(4)      CIVIL PROCEDURE / FEDERAL SUBJECT MATTER JURISDICTION
(5)      CIVIL RIGHTS / 42 U.S.C. SEC. 1983
(6)      CRIMINAL LAW / APPRENDI DOCTRINE
(7)      CRIMINAL LAW / HABEAS CORPUS RELIEF
(8)      CRIMINAL LAW / SEARCH WARRANTS
(9)      DUE PROCESS / DENIAL OF PAROLE
(10)      FAVORABLE TERMINATION RULE / 42 U.S.C. SEC. 1983
(11)      FOURTH AMENDMENT / QUALIFIED IMMUNITY
(12)      HABEAS CORPUS
(13)      HABEAS CORPUS / INCOMPETENCY
(14)      IMMIGRATION LAW / HABEAS CORPUS
(15)      LEGAL IMMIGRATION FAMILY EQUITY ACT (LIFE ACT)
(16)      MAGISTRATE JURISDICTION
(17)      PROPERTY LAW / 42 U.S.C. SEC. 1983
(18)      SENTENCING / ABERRANT BEHAVIOR
(19)      SUBJECT MATTER JURISDICTION / FEDERAL JUVENILE DELINQUENCY ACT
(20)      WAIVER OF APPELLATE RIGHTS
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(1) Hemp Industries Assoc. v. DEA
No. 01-71662 (06/30/03)
Before Circuit Judges Schroeder, B. Fletcher, and Kozinski
http://caselaw.lp.findlaw.com/data2/circs/9th/0171662p.pdf

ADMINISTRATIVE LAW / NOTICE AND COMMENT REQUIREMENTS

Opinion (B. Fletcher):  The Drug Enforcement Administration (DEA) created
a rule that banned all naturally occurring tetrahydrocannabinols (THC),
the active ingredient in marijuana.  The rule also included the THC found
in hemp seed and oil.  The Hemp Industries Association (Association) is a
group of companies that purchases and then sells consumable products
containing sterilized hemp seeds and oil.  The Association filed a
petition for review challenging the validity of the DEA rule, contending
that the rule is a legislative rule and as such is subject to the notice
and comment procedures required by the Administrative Procedures Act
(APA).   The DEA contends that the rule is an interpretive rule and does
not fall under the APA.  The Ninth Circuit held that the congressional
legislative history shows that the definition of marijuana specifically
excludes hemp oil and sterilized seeds.  Additionally, the DEA's previous
rule regarding the banning of THC only included synthetic THC and not the
naturally occurring amounts of THC in hemp oil and sterilized seeds and
that this rule was a
legislative rule.  The Ninth Circuit held that because the DEA's new
rule amends the old legislative rule, the new rule is also legislative
and therefore subject to the APA.  GRANTED.

[Summarized by Kevin Clark]
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(2) Garcia-Lopez v. Ashcroft
No. 02-70200 (06/26/03)
Before Circuit Judges Lay, Ferguson, and Gould
http://caselaw.lp.findlaw.com/data2/circs/9th/0270200p.pdf

ADMINISTRATIVE LAW / WOBBLER STATUTE

Opinion (Ferguson): Garcia-Lopez appeals an order of deportation entered
by the Board of Immigration Appeals (BIA), contending they erred in
determining he was ineligible for suspension of deportation under the
Immigration and Nationality Act's "petty offense" exception. The BIA
determined Garcia-Lopez met the requirement of deportation having
admitted to grand theft under a California "Wobbler Statute." A "Wobbler
Statute" is one in which the offense may be treated as either a
misdemeanor or a felony. The Ninth Circuit determined since California
had declared the offense to be a misdemeanor, that determination is
binding on the subsequent immigration proceedings of the BIA. REVERSED.

[Summarized by Bryan Maroney]
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(3) U.S. v. Moreno-Morillo
No. 01-50293 (06/25/03)
Before Circuit Judges Hug, Jr., Brunetti, and O'Scannlain
http://caselaw.findlaw.com/data2/circs/9th/0150293p.pdf

CIVIL PROCEDURE / IN PERSONAM JURISDICTION

Opinion (O'Scannlain): The District Court convicted Moreno et. al, for
violations of 46 U.S.C. sec. 1903, the Maritime Drug Law Enforcement Act
(MDLEA) (possession of cocaine with intent to distribute). On appeal,
Moreno raised two constitutional challenges arguing that Congress lacked
the authority to pass the MDLEA and that the statute violates the Fifth
and Sixth Amendments.  The Ninth Circuit rejected the first challenge,
holding Article I, Section 8, Clause 10 of the U.S. Constitution,
empowered Congress to enact the MDLEA. Because the Constitution granted
Congress power through clause 10, not the Commerce Clause, the Ninth
Circuit held, no finding of a "nexus between the activities proscribed
by the MDLEA and interstate or foreign commerce" is necessary.  Second,
since the defendant's all entered into plea agreements, the Ninth
Circuit held, "any claim that the MDLEA violates the Fifth and Sixth
Amendments has not been properly preserved under the terms of the plea
agreement.  Accordingly, after finding the ship upon which Moreno was
aboard subject to the jurisdiction of the United States under 46 U.S.C.
sec. 1903 (c)(2)(C) (where the "claimed nation of registry does not
affirmatively and unequivocally assert that the vessel is of its
nationality"), the Ninth Circuit held that the district court properly
exercised jurisdiction over the Defendants. AFFIRMED.

[Summarized by Justin Reiner]
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(4) Bianchi v. Rylaarsdam
No. 00-55585 (06/27/03)
Before Circuit Judges B. Fletcher, D. Nelson, and McKeown
http://caselaw.lp.findlaw.com/data2/circs/9th/0055585p.pdf

CIVIL PROCEDURE / FEDERAL SUBJECT MATTER JURISDICTION

Opinion (McKeown): Bianchi sued Bank of America in a California Superior
Court and lost.  During post trial proceedings over a series of motions
filed by Bianchi, Bank of America moved to disqualify the judge who
denied the motion, but later voluntarily recused himself.  The case was
transferred to another Superior Court over which Judge Rylaarsdam
presided at the time.  Before any substantive proceedings occurred,
Bianchi availed himself of an automatic statutory disqualification of
Judge Rylaarsdam.  Subsequently a third judge denied Bianchi's post-trial
motions.  Next, Bianchi appealed to California's Court of Appeal and was
assigned to a panel that included Rylaarsdam, who had been elevated to the
court during the intervening years.  After Bianchi lost on appeal, he
unsuccessfully petitioned the California Supreme Court for review
objecting to Rylaarsdam's presence on the appellate panel.  Bianchi then
filed the present suit in federal court claiming that a previously
disqualified trial judge sitting in judgment of the same matter as an
appellate judge violated his due process rights.  The district court
granted Rylaarsdam's motion to dismiss for lack of subject matter
jurisdiction and Bianchi appealed.  The Ninth Circuit concluded that
Bianchi's claim is barred by the Rooker-Feldman doctrine which holds that
a federal court lacks subject matter jurisdiction to review a claim that
is "inextricably intertwined" with a state court's decision such that the
federal court is requested to provide the same remedy the state court
denied.  AFFIRMED.

[Summarized by Christian Malone]
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(5) Grant v. City of Long Beach
No. 01-56046 (06/27/03)
Before Circuit Judges Bright, Goodwin, and Tashima
http://caselaw.lp.findlaw.com/data2/circs/9th/0156046p.pdf

CIVIL RIGHTS / 42 U.S.C. SEC. 1983

Amended Order:  The Ninth Circuit ordered the opinion filed December 16,
2002 amended, and ordered the deletion of the last sentence in the second
full paragraph of the original opinion.  The deleted sentenced read:
"Therefore, the district court properly submitted the issue of qualified
immunity to the jury and entered judgment upon its verdict."  The Ninth
Circuit denied petitions for rehearing and rehearing en banc.  REHEARING
DENIED.

Opinion (Goodwin): Grant filed suit against the City of Long Beach and
two police officers under 42 U.S.C. sec. 1983 for false arrest and
imprisonment.  The district court entered a jury verdict in favor of
Grant and denied the officers' motion for judgment as a matter of law.
The Ninth Circuit affirmed the district court's decision.  The Ninth
Circuit reasoned that there was enough evidence for the jury's findings
with regard to the lack of probable cause the officers had in arresting
Grant.  The Ninth Circuit further reasoned that the officers' arguments
failed under an objective test for qualified immunity.  The Ninth Circuit
stated that the officers' subjective belief they had probable cause to
arrest Grant was insufficient for qualified immunity. Therefore, the Ninth
Circuit held the district court did not abuse its discretion by denying
the officers' motion for judgment as a matter of law.  AFFIRMED.

[Summarized by Kathryn Kellogg]
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(6) U.S. v. Villalobos
No. 01-30066 (06/27/03)
Before Circuit Judges Browning, B. Fletcher and Gould
http://caselaw.lp.findlaw.com/data2/circs/9th/0130066p.pdf

CRIMINAL LAW / APPRENDI DOCTRINE

Opinion (Browning):  Villalobos pled guilty to one count of conspiracy
to distribute heroin and stipulated that between 100-400 grams of heroin
were involved.  Before sentencing, Villalobos moved to withdraw his
plea, arguing that Apprendi v. New Jersey, 530 U.S. 466 (2000) had
changed the government's burden of proof as to drug quantity and that
his pre-Apprendi plea was not knowing, intelligent, and voluntary.  The
district court denied the motion and sentenced Villalobos to 60 months.
The Ninth Circuit held that the district court violated Rule 11 by not
informing him of the nature of the charges against him.  Rule 11
requires that the court inform the defendant of the nature of the charge
against him.  Here, the Ninth Circuit held that the error was not
harmless because the government failed to meet the burden of establishing
that the record affirmatively demonstrates that the defendant was aware of
the rights at issue when he entered his guilty plea or that the district
court's Rule 11 error was simply minor or technical.  Villalobos' guilty
plea was not knowing, intelligent or voluntary because he was not informed
that drug quantity was an element of his offense to be proven beyond a
reasonable doubt, and the error affected Villalobos' substantial rights
and was not harmless. Therefore, the district court should have allowed
Villalobos to withdraw his plea. REVERSED and REMANDED.

[Summarized by Cassandra Dempsey]
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(7) Alcala v. Woodford
No. 01-99005 (06/27/03)
Before Circuit Judges W. Nelson, Wardlaw, and Fisher
http://caselaw.lp.findlaw.com/data2/circs/9th/0199005p.pdf

CRIMINAL LAW / HABEAS CORPUS RELIEF

Opinion (W. Nelson): Woodford, Warden of California's San Quentin State
Prison (California), appealed the district court's conditional grant of
habeas corpus relief to petitioner Alcala, who was convicted of first
degree murder and was sentenced to death in 1979.  In 1986, due to an
erroneous admission of Alcala's prior offenses in the first trial,
Alcala was granted a retrial by the California Supreme Court, but the
jury again convicted him of first-degree murder and sentenced him to
death.  In 2001, the district court conditionally granted federal habeas
corpus relief to Alcala, issuing a writ ordering California to release
him or grant him a new trial.  The Ninth Circuit determined that
Alcala's second trial suffered from cumulative errors that had "a
substantial and injurious effect" on the jury's verdict and deprived
Alcala of a fundamentally fair trial.  The prosecutor erroneously
admitted circumstantial evidence that permitted the jury to draw a
connection between Alcala and the murder weapon, but no physical
evidence could be linked to Alcala.  Alcala's defense counsel had been
constitutionally ineffective by deficiently presenting Alcala's alibi,
by not preparing an impeachable witness for cross-examination, and by
failing to conduct an investigation of the crime scene.  The trial court
prejudiced Alcala's defense by excluding certain defense witnesses who
would have advanced Alcala's theory of third-party culpability, and by
excluding expert testimony that would have discredited the testimony of
the prosecutor's star witness.  AFFIRMED.

[Summarized by Stacey Goodwin]
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(8) USA v. Wong
No. 02-10070 (06/26/03)
Before Circuit Judges Brunetti, Tashima, and Ezra, District Judge
http://caselaw.lp.findlaw.com/data2/circs/9th/0210070p.pdf

CRIMINAL LAW / SEARCH WARRANTS

Opinion (Brunetti): Raymond Wong, having plead nolo contendere to
possession of child pornography, appeals a denial of a motion to suppress
evidence obtained pursuant to three search warrants in connection with the
disappearance and murder of Wong's live-in girlfriend. The District court
rejected Wong's claim that the search warrants lacked probable cause and
specificity. The Ninth Circuit recognized probable cause existed because
there was detailed evidence connecting Wong to his girlfriend's
disappearance, and that information listed on the warrant could easily be
located on the computer where the child pornography was located. AFFIRMED.

[Summarized by Bryan Maroney]
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(9) Biggs v. Terhune
No. 02-15881  (06/30/03)
Before Circuit Judges Hug, Fisher, and Gibson, Senior Circuit Judge
http://caselaw.lp.findlaw.com/data2/circs/9th/0215881p.pdf

DUE PROCESS / DENIAL OF PAROLE

Opinion (Hug):  Biggs, convicted of first-degree murder, sought a writ
of habeas corpus for violation of his due process rights after the parole
board (board) denied him parole.  The district court denied the habeas
petition because there was some evidence that supported the board's denial
of parole even though many of its findings had no factual support.  The
Ninth Circuit examined the two elements of due process: 1) whether the
board deprived Biggs of a constitutionally protected liberty, and 2)
whether it was a denial of procedural protections.  The Ninth Circuit
reasoned that the state's parole system does demonstrate a cognizable
liberty interest because it created a presumption of parole when certain
findings are made.  Also, the Ninth Circuit reasoned that the board
satisfied the due process requirements because it did show some evidence
supporting its decision.  Therefore, the Ninth Circuit denied Biggs's
habeas petition.  AFFIRMED.

[Summarized by Sabrina L. Axt]
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(10) Ramirez v. Galaza
No. 00-15994 (06/27/03)
Before Circuit Judges Cowen, Hawkins, and W. Fletcher
http://caselaw.lp.findlaw.com/data2/circs/9th/0015994p.pdf

FAVORABLE TERMINATION RULE / 42 U.S.C. SEC. 1983

Opinion (Cowen):  Ramirez, an inmate in state prison, was charged with
battery of his cellmate.  He was found guilty of the battery during his
disciplinary hearing and sentenced to twenty-four months administrative
segregation.  Ramirez filed two unsuccessful administrative appeals
challenging the disciplinary process and sentence.  He then filed a 42
U.S.C. sec. 1983 complaint in district court, alleging that the prison
hearing and appeals violated due process and equal protection under the
Fourteenth Amendment.  The district court dismissed the complaint without
leave to amend on the grounds that it failed to state an actionable claim.
Ramirez appealed.  The "Favorable Termination" rule bars challenges under
sec. 1983 that would affect the overall length of the prisoner's
confinement.  Such claims should be challenged through a habeas petition.
The Ninth Circuit held that the favorable termination rule does not apply
to 1983 suits that do not affect the overall length of the prison term.
The Court reasoned that even if Ramirez's 1983 claim is successful, his
prison term would not automatically or necessarily be shortened, for his
parole could be denied on other grounds.  The Court concluded that the
district court abused its discretion when it dismissed with prejudice.
REVERSED AND REMANDED.

[Summarized by Derek Conom]
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(11) Doe v. Keala
No. 01-17566 (06/30/03)
Before Circuit Judges Schroeder, Alarcon, and Fisher
http://caselaw.lp.findlaw.com/data2/circs/9th/0117566p.pdf

FOURTH AMENDMENT / QUALIFIED IMMUNITY

Opinion (Schroeder):  Doe, a second-grade student, was misbehaving and
sent to the vice-principal of the school, Keala.  As punishment, Keala
taped Doe's head to a tree for five minutes.  Doe brought suit under 42
U.S.C. sec. 1983, alleging a violation of his Fourth Amendment rights as
well as his Due Process rights.  Keala moved for summary judgment on the
basis of qualified immunity.  The district court denied the motion, and
Keala appealed.  A public official is entitled to qualified immunity
only if his conduct does not violate clearly established constitutional
rights that a reasonable person would know.  Using this test, the Ninth
Circuit held that Keala's action was a constitutional violation, and
that the Fourth Amendment right to be free from unreasonable seizures,
even in the public school context, was clearly established.  In addition,
the Ninth Circuit held that claims of excessive force by school officials
could be decided under the Fourth Amendment as well as under the Due
Process Clause.  The Court remanded the case to allow Doe's Fourth
Amendment claims to proceed.  AFFIRMED AND REMANDED.

[Summarized by Derek Conom]
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(12) Nulph v. Cook
No. 01-35556 (06/26/03)
Before Circuit Judges Ferguson, Fletcher, and King, District Judge
http://caselaw.lp.findlaw.com/data2/circs/9th/0135556p.pdf

HABEAS CORPUS

Opinion (Ferguson):  Nulph, a prisoner of the state of Oregon, appealed
his denial of a habeas corpus petition.  In his appeal, Nulph argued
that that the Oregon State Board of Parole vindictively increased his
sentence after he prevailed in a habeas corpus action.  In Nulph's
criminal, trial the court imposed a minimum term of imprisonment allowing
the Board of Parole to either uphold the judicially imposed sentence or to
set a new term based on a matrix range.  Under the existing rules when
Nulph was sentenced, the Board of Parole was required to treat two
consecutive terms as a single term and either override them or uphold them
all.  After exhausting all state remedies, Nulph filed a federal writ of
habeas corpus arguing that the Board of Parole violated both Ex Post Facto
and Due Process Clauses because the Board applied two rules that were not
in effect at the time of his offense.  On appeal the Ninth Circuit granted
him relief because his sentence was in violation of the Ex Post Facto
Clause and ordered the board to re-sentence Nulph.  The Board re-sentenced
Nulph and changed his parole consideration from 2017 to 2062.  Nulph filed
a new writ of habeas corpus after his re-sentencing arguing the sentence
violated both federal and state constitutions.  In his habeas petition the
Anti-terrorism and Effective Death Penalty Act (AEDPA) did not apply
because the state court did not reach the merits of Nulph's due process
claim so the Ninth Circuit used Oregon law.  The Ninth Circuit ruled that
even if the all-or-nothing rule was properly applied, there was no reason
to change his parole consideration from 2017 to 2062 and that the change
in Nulph's parole was out of vindictiveness.  REVERSED AND REMANDED.

[Summarized by Andrew Van Ness]
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(13) Rohan v. Woodford
No. 01-99016  (06/25/03)
Before Circuit Judges Kozinski, Kleinfeld, and Karlton, District Judge
http://caselaw.lp.findlaw.com/data2/circs/9th/0199016p.pdf

HABEAS CORPUS / INCOMPETENCY

Opinion (Kozinski):  Gates, sentenced to death, began acting irrationally
after his conviction.  His counsel filed habeas petitions alleging various
constitutional rights violations and argued that because of Gates'
inability to communicate rationally, the courts should stay habeas
proceedings.  The federal district court assigned Rohan as "next friend"
following its conclusion that Gates had a mental impairment that prevented
him from cooperating with counsel.  The district court denied Rohan's
renewed petition to stay proceedings and the Ninth Circuit granted
interlocutory review.  The Ninth Circuit held that since competency is
linked to the ability to rationally communicate information and assist
counsel, convicts have an established right to counsel in federal capital
challenges, and successive petitions are strictly limited by statute, a
petitioner does have the right to competency during the first federal
habeas proceeding.  Next, the Ninth Circuit held that the district court
violated the petitioner's rights because Gates' ability to communicate
rationally could potentially benefit his claims although his counsel could
not identify specifically what Gates would relate to them, were he
competent.  REVERSED AND REMANDED.

[Summarized by Heather Vogelsong]
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(14) Toia v. Fasano
No. 02-55436 (06/30/03)
Before Circuit Judges Beezer, Kozinski, and McLane
http://caselaw.lp.findlaw.com/data2/circs/9th/0255436p.pdf

IMMIGRATION LAW / HABEAS CORPUS

Opinion (Beezer):  Toia is a resident alien who came to the U.S. as a
child.  In 1989, Toia plead guilty to conspiracy to possess a controlled
substance with intent to distribute.  At the time of the plea agreement,
Toia was eligible to apply for relief under the Immigration and
Nationality Act sec. 212(c), which allows the Attorney General to grant
waivers of relief from deportation for certain qualifying permanent
residents.  However, in 1990, Congress enacted the Immigration act of
1990 (IMMACT), which rendered any alien convicted of an aggravated felony
ineligible for sec. 212(c) relief.  In 1997, the Immigration and
Naturalization Service initiated removal proceedings against Toia.  Toia
subsequently applied for sec. 212(c) relief.  The Immigration Judge deemed
Toia ineligible and the district court denied his habeas corpus petition.
Toia appealed. The Ninth Circuit held that the language of IMMACT did not
clearly reflect a congressional intent to apply it retroactively;
therefore, the retroactive application of IMMACT would produce an
impermissible effect.  The Ninth Circuit held that because Toia plead
guilty prior to the enactment of IMMACT and he is otherwise eligible for
sec. 212(c) relief, he could still apply for sec. 212(c) relief. REVERSED.

[Summarized by Kevin Clark]
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(15) Padilla v. Ashcroft
No. 02-70430  (07/01/03)
Before Circuit Judges Kozinski, Graber, and Berzon
http://caselaw.lp.findlaw.com/data2/circs/9th/0270430p.pdf

LEGAL IMMIGRATION FAMILY EQUITY ACT (LIFE ACT)

Opinion (Graber):  Padilla, a Guatemalan national, misrepresented her
identity, illegally entered the U.S., and was removed by the Immigration
and Naturalization Service (INS) under an INS procedure that does not
require a hearing.  Padilla entered the U.S. again and eventually married
a U.S. citizen.  The INS ordered that Padilla be removed when she filed
for an adjustment of status under the LIFE Act, which allows undocumented
immigrants to change their status if they are married to a legal U.S.
resident or citizen.  Padilla filed a petition for habeas corpus, claiming
violation of due process because the INS did not grant her a hearing.  The
district court denied Padilla's petition.  The Ninth Circuit reasoned that
Padilla was not covered under the LIFE Act because she was not "otherwise
admissible" to the U.S. because she sought admission through
misrepresentation.  Therefore, the Ninth Circuit held that the INS did
not violate Padilla's due process rights since Padilla was unable to prove
that she was prejudiced as a result of the INS's denial of a hearing.
PETITION DENIED.

[Summarized by Sabrina L. Axt]
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(16) U.S. v. Sanchez-Sanchez
No. 02-10005 (06/26/03)
Before Circuit Judges Brunetti, Tashima, and Ezra, District Judge
http://caselaw.lp.findlaw.com/data2/circs/9th/0210005p.pdf

MAGISTRATE JURISDICTION

Opinion (Brunetti): Sanchez-Sanchez (Sanchez) pled guilty to Illegal
Reentry after Deportation.  His initial supervised release revocation
proceeding was held in front of a magistrate judge who recommended to
the district court to revoke the supervised release and impose sentence.
The district court agreed with the recommendation and revoked Sanchez's
supervised release.  Sanchez appealed the district court decision to
revoke his supervised release stating the magistrate did not have
jurisdiction over him.  The Ninth Circuit held the magistrate judge did
not have the authority to revoke Sanchez's supervised release.  A
defendant must give consent to a magistrate judge to preside over a
supervised release revocation proceeding.  Sanchez did not give explicit
consent to have a magistrate judge preside over his supervised release
revocation proceeding, therefore, the magistrate judge did not have
jurisdiction over his supervised release revocation proceeding.  Thus, the
Ninth Circuit reversed the district court's revocation of Sanchez's
supervised release.  REVERSED AND REMANDED.

[Summarized by Crystal English]
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(17) Carpinteria Valley Farms, Ltd. v. County of Santa Barbara
No. 01-57218 (06/25/03)
Before Circuit Judges Hall, Thompson, and Berzon
http://caselaw.lp.findlaw.com/data2/circs/9th/0157218p.pdf

PROPERTY LAW / 42 U.S.C. SEC. 1983

Opinion (Thompson): Nesbitt and associated entities Carpinteria Valley
Farms, Ltd., Yeager Holdings, Inc., and the Patrick M. Nesbitt Family
Trust (collectively, Nesbitt) owned land in Santa Barbara County,
California.  Nesbitt wanted to develop the land in a variety of ways,
including building a personal residence on it and using part of the
property as a private polo field.  The County imposed a number of
requirements on the planned development, which included requiring Nesbitt
to apply for a major conditional use permit to play polo on the property.
Nesbitt alleged that the County of Santa Barbara, its Planning and
Development Department, and employees of the department violated his First
Amendment rights of free association by impeding his use and development
of the property in retaliation for participation in protected activities.
The district court determined that all of the incidents Nesbitt complained
of were time-barred by the statute of limitations except for his
contention that the County wrongfully required him to apply for a major
conditional use permit to use part of the property as a private polo field
and his claim that the County attached discriminatory conditions to
issuance of his residential building permit.  As to the claims that were
not time-barred, the District Court characterized those claims as "as
applied" takings claims that were not ripe for judicial review.  The Ninth
Circuit agreed with the District Court on the events that it found to be
time-barred but disagreed with the events that were not time-barred and
held that the claims they supported were not takings claims but were
independent sec. 1983 claims which were ripe for review.  Under California
law, the statute of limitations for a sec. 1983 is one year.  The acts
that Nesbitt accused the county of occurred outside of the one year mark
and are time-barred.  However, the Ninth Circuit reasoned that Nesbitt
could use those time-barred acts as evidence to establish motive and to
put his timely-filed claims in context.  As to the ripeness issue, the
Ninth Circuit held that, because Nesbitt's constitutional claims arose in
the context of the County's permitting process, those claims were not
unripe, so long as Nesbitt otherwise met the ripeness requirement.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

[Summarized by Cassandra Dempsey]
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(18) U.S. v. Guerrero
No. 01-10717 (06/27/03)
Before Circuit Judges Brunetti, Tashima, and Ezra, District Judge
http://caselaw.lp.findlaw.com/data2/circs/9th/0110717p.pdf

SENTENCING / ABERRANT BEHAVIOR

Opinion (Tashima):  Guerrero pled guilty to conspiracy to possess
marijuana with the intent to distribute.  Pre-sentence investigation
recommended a 30-month sentence.  Guerrero requested a downward departure
based on aberrant behavior.  The district court sentenced her to eight
months in custody and two years of supervised release with the condition
that she participates in a substance abuse program.   The U.S. appealed
the downward departure.  The Ninth Circuit held the court must find the
defendant's conduct extraordinary and that the behavior was aberrant under
a three part test: that the criminal conduct was committed without
significant planning, was of limited duration, and represented a marked
deviation by the defendant from an otherwise law abiding life.  Since the
district court did not determine if Guerrero's conduct was extraordinary
or constituted aberrant behavior, the Ninth Circuit vacated the district
court sentence and remanded to the district court for resentencing.
VACATED AND REMANDED.

[Summarized by Crystal English]
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(19) U.S. v. Ceja-Prado
No. 01-30440 (06/25/03)
Before Circuit Judges Reinhardt, W. Fletcher, and Gould
http://caselaw.lp.findlaw.com/data2/circs/9th/0130443p.pdf

SUBJECT MATTER JURISDICTION / FEDERAL JUVENILE DELINQUENCY ACT

Opinion (Reinhardt):  An undercover officer arrested Ceja-Prado (Prado)
for a conspiracy to sell methamphetamine.  Prado pled guilty to the
offense and the district court sentenced him.  On appeal, Prado introduced
new evidence that he was a juvenile at the time of his arrest.  The Ninth
Circuit remanded the case to the district court for a finding of fact on
Prado's true age.  The Ninth Circuit reasoned that despite the fact that
Prado presented new evidence on appeal, the evidence raised a serious
question regarding federal jurisdiction.  The Ninth Circuit stated that
the Federal Juvenile Delinquency Act provides that federal courts have no
jurisdiction over certain prosecutions for acts of juvenile delinquency
unless the Attorney General has certified the cases for prosecution.  No
certification for Prado's case existed.  The Ninth Circuit further stated
that when it appears that new evidence may establish that the court has no
jurisdiction to hear a case, it will not permit a party's improper conduct
to interfere with its own obligation to acknowledge new facts.  In
addition, the Ninth Circuit determined that there is little reason for a
criminal defendant to subject himself to the federal criminal justice
system in order to thwart the system.  Therefore, the Ninth Circuit held
that the new evidence presented by Prado on appeal concerning his age
presented a question of fact for the district court to resolve in order to
determine jurisdiction.  REMANDED.

[Summarized by Kathryn Kellogg]
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(20) U.S. v. Shimoda
No. 02-10188 (06/26/03)
Before Circuit Judges Leavy, Rymer, and T. Nelson
http://caselaw.lp.findlaw.com/data2/circs/9th/0210188p.pdf

WAIVER OF APPELLATE RIGHTS

Opinion (Leavy): Shimoda pled guilty for conspiracy to possess and
distribute cocaine, and the district court imposed a 42-month sentence.
Shimoda stipulated the drug quantity was 3,987.7 grams and agreed that his
Base Level Offense Level was 30, exposing him to a potential sentence
between 5 and 40 years.  In Shimoda's plea agreement, he waived his right
to appeal "any sentence within the maximum provided in the statute(s) of
conviction." Shimoda appealed the district court sentence.  The Ninth
Circuit held Shimoda waived his right to appeal the district court
conviction because the sentence imposed was within the statutory maximum
sentencing guidelines and that Shimoda had waived his right to have a jury
determine the drug quantity because he had stipulated the drug quantity.
The Ninth Circuit held the sentence imposed by the district court was
consistent with Shimoda's negotiated plea agreement.  DISMISSED.

[Summarized by Crystal English]
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