First, in United States v. Shayota, --- F.3d ---, No. 17-10270 (9th Cir. 2019), the Court affirmed the defendants' convictions for selling counterfeit 5-hour energy drink. This is a Confrontation Clause case.
The issue was "whether prior civil deposition
testimony of a witness, who has subsequently invoked his
Fifth Amendment right against self-incrimination, may be
introduced against defendants in a criminal trial without
violating their Confrontation Clause right to confront the
witnesses against them."
The Court sidestepped the issue by finding any error harmless.
But Judge O’Scannlain concurred to his own opinion to note that the Circuit's caselaw on unavailability should be reconsidered in light of Crawford v. Washington, 541 U.S. 36, 54
(2004). He suggested that, at common law, invoking the right against self-incrimination was not sufficient to make someone unavailable under the Confrontation Clause.
Second, in United States v. Cuevas-Lopez, --- F.3d ---, No. 17-10438 (9th Cir. 2019), a split panel affirmed the defendant's sentence for illegal reentry.
The main issue was how to calculate prior sentences under 2L1.2 (the provision that governs illegal reentry sentencing). Under that provision, there are sentencing enhancements based on the length of the sentence imposed for prior convictions.
In this case, the district court aggregated the defendant’s two consecutive 3.5-year
sentences for prior robbery convictions in applying a ten-level enhancement pursuant to
U.S.S.G. § 2L1.2(b)(3)(A).
The majority approved, finding that the “single sentence rule” in U.S.S.G. § 4A1.2(a)(2)
applies to the enhancements in U.S.S.G. § 2L1.2(b)(2) and
(b)(3). Thus, the aggregation was proper.
In dissent, Judge Ikuta pulled no punches. Her dissent clearly explains why this is wrong. Under a plain reading of the Guidelines, the single sentence rule should not apply in this context.
Third, in United States v. Begay, --- F.3d ---, No. 14-10080 (9th Cir. 2019), the Court held that second degree murder is not a crime of violence under section 924(c)(1)(A). Thus, the Court vacated the defendant's conviction on that count (but not the underlying murder conviction) and remanded.
"Second-degree murder is not categorically a crime of
violence under the elements clause, 18 U.S.C.
§ 924(c)(3)(A). And, pursuant to Davis, second-degree
murder cannot constitute a crime of violence under the
residual clause, section 924(c)(3)(B), as the residual clause
is unconstitutionally vague. Begay’s § 924(c) conviction for
discharging a firearm during and in relation to a crime of
violence therefore cannot stand under either the elements
clause or residual clause of § 924(c)(3)."
Of note, the Court applied de novo review to the pure question of law, despite a lack of preservation.
