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U.S. v. Grajeda, No. 07-50387 (9-21-09). The 9th wrestled again with the categorical approach as it applied to a California statute -- assault with a deadly weapon or by means likely to produce great bodily harm (Calif. penal Code 245(a)(1) -- and whether it is a crime of violence under 2L1.2(b)(1)(A)(ii). The 9th (Paez joined by Fisher and Robart) held that it does. The focus was that the statute itself requires an element of force.

Chioino v. Kernan, No. 08-15265 (9-21-09). In Cunningham, 549 US 270 (2007), the Supremes told California that "Yes, Blakely really means that judges cannot decide facts that mandatorily enhance a sentence." The Sixth Amendment as applied to sentencing also applies to California. A shudder went through the state, and the state supreme court in People v. Sandoval, 41 Cal. 4th 825 (2007) held that the proper remedy was to have a new resentencing under a reformed sentencing scheme. The petitioner here had been sentenced to a higher aggravated term, and the district court found Cunningham error. Concerned with ex post facto issues, the district court ordered that the petitioner be sentenced to the mid-range, as was the statutory max determined by the Supremes under the determinate sentencing scheme. The state appealed, arguing that the court could not impose such a sentence, and that the matter should be remanded for resentencing to play out. The 9th (M. Smith joined by Silverman and Clifton) agreed. The reasoning was that the sentencing scheme was judicially reformed after Cunningham, and, see Booker, no ex post facto bar exists.

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