First, in United States v. Peralta-Sanchez, No. 14-50393 (9th Cir. 2017), the Court granted panel rehearing, and vacated its prior published decision.
This is good news because the prior majority opinion held that aliens subject to expedited removal proceedings under 8 U.S.C. § 1225 have no Fifth Amendment due process right to hire counsel. This was true, even if the person is not caught at the border, but inside the country where due process protections are greater.
In place of the old published opinion, the Court filed a memorandum. Although the defendant's conviction remains affirmed, the memorandum "assume[d] for purposes of this case only that Peralta-Sanchez had a due process right to retain counsel at his own expense and to be advised by the government of the right to seek withdrawal of admission under 8 U.S.C. § 1225(a)(4) during the proceedings, and thus that his due process rights were violated[.]"
Second, in United States v. Brito, --- F.3d ---, No. 15-30229 (9th Cir. 2017), the Court considered whether a sentencing reduction under 18 U.S.C. § 3582(c)(2) based on retroactive Sentencing
Guidelines Amendment can include credit for time spent in state custody.
The Court said, yes (thus reversing the district court). It held, “term of imprisonment,” as used in
§ 3582(c)(2) and § 1B1.10(b)(2)(A), can include time spent
in state custody, and if the district court at the original
sentencing gave credit for time spent in state custody , the “term of
imprisonment” on the motion for sentence reduction can
include the time spent in both federal and state custody.
