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U.S. v. Mitchell, No. 08-50429 (10-20-10) (Goodwin with Canby; concurrence by O'Scannlain). The 9th clarifies that "even in cases where a defendant is being sentenced under the Guidelines as a career offender, the sentencing court may depart downward to account for the disparity between treatment of crack cocaine and powder cocaine in the Guidelines." (17306). The district court departed 43 months for the distinction; the defendant wanted more. It was not unreasonable that he did not get it; and the amount was within the court's discretion. The 9th did find that the prior convictions qualified him as a career offender. Even as a career offender, the court could depart based on the crack differential. Concurring, O'Scannlain stresses that this decision does not establish the standard of review applicable to the claim that the district court has varied too greatly from the Guidelines. O'Scannlain indicates that the greater the variation (here it was 43 months for the crack.cocaine differential), the closer the review.

In re Gonzales: Gonzales v. US District Court, No. 08-72188 (10-20-10) (Reinhardt with Berzon and M. Smith). The 9th grants a mandamus and orders a competency (Rohan) hearing to determine if the petitioner can assist counsel in his capital habeas proceeding. The district court had held that the proceedings were record based, and resolvable as a matter of law. The 9th reversed, holding that under Nash v. Ryan, 581 F.3d 1048 (9th Cir. 2009), even a habeas appeal that is record-based and resolvable as a matter of law can benefit from communication between counsel and client.

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