2/17/21: No jurisdiction to hear appeal from denial of a motion to expedite resolution of a pending supervised release revocation petition

In United States v. Repp, --- F.3d ---, No. 20-50248 (9th Cir. 2021), the Court framed the issue as whether "an inmate currently serving time on one federal sentence [can] expedite the resolution of a newly lodged detainer to answer for a supervised release violation in another federal district that was triggered by his commission of the crime for which he is currently incarcerated?"

But the Court did not really answer that question.  Rather, it held it did not have jurisdiction over an appeal by the inmate (Mr. Repp) from the denial of a motion to accomplish the expedited resolution.  

"Chris Repp appeals from the district court’s order denying his motion for issuance of a writ of habeas corpus ad prosequendum directed to his current custodian, the Warden of FCI Phoenix, to transport him to Los Angeles for his initial appearance there on an arrest warrant for violating conditions of supervised release, proceedings for which a detainer has now been lodged against him with the prison. Repp is currently serving a custodial sentence for federal crimes he committed in the Eastern District of Arkansas while on supervised release from an earlier federal conviction in the Central District of California." 

The Court held: "It is unclear whether Repp’s motion is more appropriately characterized as a petition for writ of habeas corpus ad prosequendum, as it was captioned when proceeding pro se below, or as a motion to expedite the supervised release hearing date, as he now characterizes the motion on appeal. Regardless of how Repp characterizes his motion though, the district court’s order is not a final order or a collateral order that would support appellate review at this time."

2/11/21: Case on Hobbs Act robbery instructions and short-barreled shotguns

In United States v. Woodberry, --- F.3d ---, No. 19-30225 (9th Cir. 2021), the Court affirmed the defendants' convictions for Hobbs Act robbery and possessing a short-barreled shotgun in furtherance of a crime of violence.  

The opinion's conclusion tells you what you need to know:

"We hold that the district court did not err in instructing the jury that the 'market for marijuana, including its intrastate aspects, is commerce over which the United States has jurisdiction,' or the 'commerce' element of Hobbs Act robbery could be established if the robbery 'could' affect commerce over which the United States has jurisdiction. Finally, we hold that the short-barreled element in § 924(c)(1)(B)(i) does not contain a separate mens rea requirement."

Also, "we hold that the short-barrel provision in § 924(c)(1)(B)(i) is an essential element that must be proven to a jury beyond a reasonable doubt," not a mere sentencing enhancement.  

2/2/21: Jurisdiction to enter an order of removal in the 1326 context

In United States v. Bastide-Hernandez, --- F.3d ---, No. 19-30006 (9th Cir. 2021), a divided panel reversed the district court’s dismissal of an indictment charging illegal reentry after removal in violation of 8 U.S.C. § 1326, and remanded for further proceedings.

At issue in this case was whether a defective notice to appear (NTA) in immmigration court, lacking time and date information, was sufficient to provide the immigration court with jurisdiction to enter an order of removal.

The district court held it was not, and thus, because the removal order was invalid, there was no basis for the 1326 prosecution. 

The panel majority disagreed. It concluded that the jurisdiction of the immigration court vests upon the filing of an NTA, even one that does not at that time inform the alien of the time, date, and location of the hearing.  

But, a defective NTA may violate due process, thereby allowing the defendant to collaterally attack the removal order under 8 U.S.C. sec. 1326(d).  

The majority determined that, on remand, which was required because the basis for the district court’s dismissal was invalid, the defendant could try to make the requisite showing under sec. 1326(d). 

Judge M. Smith dissented.  He convincingly argued that, under binding precedent, "dismissal of the indictment in this case was proper because the Immigration Court never cured the omission of the date and time of the hearing from Bastide-Hernandez’s Notice to Appear (NTA), thereby depriving the Immigration Court of jurisdiction to issue a removal order. Without a valid removal order, the Government was unable to establish one of the elements of the charged offense of illegal reentry."