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.
The case involved Social Security claimant Gail Clark appealing a district court order that partially denied her attorney's request for fees under 42 U.S.C. § 406(b) for representation in federal court. The district court had reduced the requested fees by subtracting amounts already awarded under § 406(a) for administrative representation, based on the view that the 25% cap on past-due benefits applied to the combined total of fees under both subsections. The Ninth Circuit reversed and remanded, holding that the plain language of § 406(b) limits only the fees awarded under that provision itself and does not restrict or combine with fees awarded separately under § 406(a).
The case concerned a union's claim that railroads violated the Railway Labor Act by implementing a trackage rights agreement—approved by the Surface Transportation Board under the Interstate Commerce Act—without bargaining over changes to work assignments and job terms. The district court dismissed the suit for lack of subject matter jurisdiction, and the appeals court affirmed. The court reasoned that the ICA grants the STB exclusive authority over such transactions and exempts them from other laws, including the RLA, as necessary to execute the approved agreement, with any related labor disputes to be addressed through STB processes rather than federal court.
labor & employmentbusiness & regulatoryfederal power
Chuyon Hong, a South Korean native who obtained permanent resident status through her father's involvement in a bribery scheme for fraudulent green cards, petitioned for review of her removal order after being charged with lacking valid immigration documents. She sought to suppress evidence derived from a list compiled by the corrupt immigration officer, arguing violations of federal regulations and due process. The court denied suppression, holding that the exclusionary rule generally does not apply to immigration proceedings and that Hong had no protected privacy interest in concealing her unlawful status obtained through fraud. It also dismissed the challenge to the denial of cancellation of removal for lack of jurisdiction over that discretionary determination.
The case involved Young Sun Shin, a South Korean citizen who overstayed her tourist visa and obtained a fraudulent green card by paying $10,000 to a corrupt INS employee involved in a scheme to sell fake residency documents. She petitioned for review of a BIA removal order, arguing the government should be estopped from removing her due to its employee's misconduct, and she also sought to reopen proceedings to adjust her status. The court denied the petition, holding that the government cannot be estopped based on the unauthorized criminal acts of its employee and that Shin had conceded removability while failing to submit required documentation for reopening. It further denied her request for remand to file a second motion to reopen, noting that only one such motion is permitted and she had not shown eligibility for relief.
In Estrada-Rodriguez v. Mukasey, the petitioner challenged the Board of Immigration Appeals' ruling that his Arizona conviction for resisting arrest under A.R.S. § 13-2508 qualified as an aggravated felony, specifically a crime of violence under 8 U.S.C. § 1101(a)(43)(F) and 18 U.S.C. § 16, which rendered him removable. The Ninth Circuit denied the petition for review, holding that the offense categorically constitutes a crime of violence. The court applied the categorical approach from Taylor v. United States and Leocal v. Ashcroft, concluding that the statute's requirement of intentional conduct creating a substantial risk that physical force may be used against another satisfies the definition in § 16(b). Because the conviction was deemed an aggravated felony, judicial review of the removal order itself was barred under 8 U.S.C. § 1252(a)(2)(C).
