In United States v. Gutierrez-Sanchez, the defendant, who had a history of multiple illegal entries into the United States, challenged his 16-month sentence after pleading guilty to making a false statement to a federal official under 18 U.S.C. § 1001, contending that the district court improperly calculated the Guidelines range based on the more serious uncharged offense of illegal reentry by a deported alien under 8 U.S.C. § 1326. The Ninth Circuit affirmed the sentence, ruling that the written plea agreement contained a stipulation that specifically established the elements of the additional § 1326 offense, requiring the court under U.S.S.G. § 1B1.2(c) to treat the case as if the defendant had been convicted of that offense and apply the corresponding higher Guidelines range of 10-16 months. The court further held that the within-Guidelines sentence was substantively reasonable because the district court adequately considered the 18 U.S.C. § 3553(a) factors, including deterrence based on the defendant's prior convictions and repeated removals.
Plaintiff Thompson, former CFO of a public company, sued the law firm Lewis and Roca and related parties after the firm allegedly misrepresented during settlement negotiations that the company's CEO was not under criminal investigation; Thompson claimed this led her to accept stock in settlement that later plummeted in value following the CEO's indictment. She asserted a federal claim under Section 10(b) of the Securities Exchange Act and Rule 10b-5, plus state-law claims. The district court dismissed the federal claim with prejudice under Rule 12(b)(6). The Ninth Circuit reversed that dismissal, holding that federal law governs the Section 10(b) claim and that Thompson's allegations stated a claim for relief, but affirmed the district court's denial of her post-judgment request to certify a state-law question to the Arizona Supreme Court because the request came too late after an adverse ruling.
The case involved Young Sun Shin, a South Korean citizen who entered the U.S. on a tourist visa in 1993, overstayed, and paid $10,000 for a fraudulent green card obtained through a corrupt INS employee. The Board of Immigration Appeals ordered her removed under INA provisions for lacking valid documents and overstaying, and denied her motion to reopen for adjustment of status. Shin conceded removability but argued the government should be estopped due to its employee's misconduct; the court rejected this, finding she was not ignorant of the fraud given her ineligible marital status and lack of qualifying husband. The Ninth Circuit denied the petition for review, holding that the government cannot be estopped by the unauthorized actions of its employee and that Shin failed to submit required documentation for reopening or show eligibility for relief.
In Bertelsen v. Harris, former clients sued their attorney and his firm for breach of fiduciary duty, alleging violations of Washington rules of professional conduct including improper fee-sharing with a nonlawyer, failure to properly modify fee agreements, miscalculation of a contingency fee, and undisclosed conflicts of interest in joint representation; they sought disgorgement of $167,500 in fees paid. The district court, after a bench trial, denied disgorgement even assuming breaches occurred, finding the fees reasonable for the results achieved. The Ninth Circuit affirmed, holding that the district court did not abuse its discretion in declining to order disgorgement under Washington law, as the equitable remedy depends on case-specific circumstances including the reasonableness of the fee and outcome obtained.
The case involved a former Cingular employee who sued the company after it added a line-item "State B & O Surcharge" to his wireless bill to recover Washington's business and occupation tax, claiming violations of RCW 82.04.500, breach of contract, unjust enrichment, and the state Consumer Protection Act. The district court dismissed the suit, holding that the Federal Communications Act preempted the state claims by barring regulation of wireless carriers' rates. The Ninth Circuit vacated and remanded, ruling that the FCA does not preempt RCW 82.04.500 because the statute regulates disclosure and billing practices—expressly permitted "other terms and conditions" of service—rather than the rates themselves, consistent with the statute's text, legislative history, and the Washington Supreme Court's interpretation in Nelson v. Appleway Chevrolet.
In Green v. Lamarque, an African-American defendant convicted in California state court of assault with a deadly weapon challenged his conviction via a federal habeas petition under 28 U.S.C. § 2254, claiming the prosecutor violated Batson v. Kentucky by using peremptory strikes to remove all six African-American venire members. The Ninth Circuit held that the state courts failed to conduct a proper Batson step-three analysis comparing the prosecutor's race-neutral reasons (such as questionnaire issues or demeanor) against similarly situated white jurors, and that the record showed those reasons were pretexts. The court therefore reversed the district court's denial of relief and remanded with instructions to grant the writ unless the state provides a new trial within 180 days.
criminal lawcivil rightsprocedure
Affiliations
Court of Appeals for the Ninth Circuit — appointed by George W. Bush
