Federal Judiciary

U.S. v. Lopez-Velasquez (9th Cir. - June 23, 2009)

By Shaun Martin

The Ninth Circuit's publications today are in the double digits. Spread 'em out, my friends. Too much work for our hero.

I can, however, summarize -- abeit at a superficial level -- pretty much all of the opinions issued today. The majority of them are criminal cases. Here's how they all get resolved: "A convicted criminal has brought an appeal/challenge to his sentence/habeas petition. We hereby reject all his claims. Affirmed."

With one exception. There's one case today in which the Ninth Circuit indeed grants relief to the criminal defendant. What could possibly explain this anomaly?

Let's check out the last words of the opinion, which are contained in a (very lengthy) footnote. There, the panel has to distinguish a prior case -- albiet an unpublished one -- that's very close to the present case and in which the Ninth Circuit didn't grant relief. The panel here comes up with a variety of purportedly distinguishing characteristics, and tellingly ends by saying that it's not bound by the prior opinion anyway since it was unpublished.

To add to the differences between that prior case and the current one, I might add one more -- a difference that likely swamps all of the others in terms of significance. The unpublished case had a panel that included Judges Beezer and Callahan. Today's case had a panel that included Judges Pregerson and Reinhardt.

Which, not coincidentally, helps explain the divergent results between not only those two cases, but also the pro-government decision reached in the other the criminal cases decided by the Ninth Circuit today and this one.

Full post as published by California Appellate Report on June 23, 2009 (boomark / email).