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U.S. v. Cherer, No. 06-10642 (1-25-08). "Be careful what you wish for." The defendant was caught in a sting operation traveling to visit what he thought was a 14-year old girl. That "girl" was a middle-aged FBI agent. At trial (yes, trial), the defendant argued that he did not know the girl was 14, and there was some role-playing. The jury instructions failed to state the element that the defendant had to believe that the target was a "minor." Sounds important. Ah, says the 9th, what's a state of mind when the state of the evidence, to its mind, was overwhelming. The 9th pointed to three exchanges when the target indicated she was 14, and other exchanges. This would seem to go to weight (with a spin of role playing). The 9th (Trager joined by McKeown and Noonan on this issue) did not see it that way. The 9th also was not troubled by the admission of a prior conviction for lewdness, or acts with AOL about bad behavior. (This allowance of other act evidence would seem to tilt the playing field all the more when the elements are missing from the instruction that arguably goes to why the evidence was let in). At sentencing, the defendant got a 293 month sentence (almost 25 years). This was at the top of the guidelines range. The 9th found it "reasonable," looking at the guidelines factor, the within range term, and the recent Gall / Kimbrough focus on the position of the judge to know best (even citing the FPD amicus brief). Dissenting, Noonan wonders how a "clumsy" attempt at sex with a minor (all agree that it was terrible and reprehensible) results in a sentence that could be three times the length of an actual sexual assault (cases cited). Noonan stresses that an appellate court could always rely on the superior position of the sentencing judge to feel the facts in affirming a sentence, but that is an abrogation of the appellate duty. Noonan cites Scalia in Booker warning that there is a danger of rubber-stamping. Noonan argues that took place here, given the length of the sentence (which even the majority notes may be "unduly harsh").

U.S. v. Carr, No. 07-30133 (1-25-08). The (9th (Canby joined by Graber and Gould) affirm a conviction for being a felon in possession, finding that the State of Washington's "gross misdemeanor" for violation of a protective order is transformed into a felony with two prior convictions of a protective order. That occurred here. The 9th held that the state statutory scheme mandates such treatment, especially when the defendant at the state change of plea and sentencing plead to all the elements that made it a felony (it just wasn't up to the judge). The 9th's line of cases that looks at "core" convictions for recidivist purposes are distinguishable because the statutes at issue there go to federal definitions and classifications (drug and immigration). Here, the statute specifically looks to state classifications.

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