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U.S. v. Chaudry, No. 09-10381 (1-3-11) (Thomas with Wallace and Mills, Sr. D.J., C.D. Ill).

The 9th holds that it lacks jurisdiction to review a district court's decision NOT to impose a provisional sentence until the defendant was competent to be sentenced. The case concerns a defendant convicted of various tax fraud charges, but whom, after conviction, was found incompetent. The court committed the defendant to the custody of the AG under 18 U.S.C. 4241 to determine whether he was restorable. The government had agreed, but then several months later, moved to have the court sentence the defendant provisionally under 4244. The latter would require him to be committed to mental health treatment in lieu of sentencing and considers the defendant competent, but mentally ill. The 9th had before it only the order for 4241 (there were subsequent determinations that were not appealed). In considering 4241, the 9th held that this was not a final order, nor order from release, that could be appealed. Defendant was being held civilly at the time. The jurisdiction remained with the district court to sentence him when and if he was restored, or if he was found non-restorable, to determine whether he was dangerous or not.

U.S. v. Contreras-Hernandez, No. 09-50009 (1-3-11) (Kelinfeld with Wardlaw and Callahan).

The 9th held that a California conviction for solicitation to commit murder is a crime of violence under a Guidelines 2L1.2 enhancement (illegal reentry). The argument was that solicitation is a less serious and less culpable criminal mental state than the actual offense, or aiding and abetting. The defendant further argued that "solicitation" is not included in the Guidelines with examples of offenses that should be counted towards crime of violence such aiding and abetting, conspiracy, and attempts along with the designated offense. The 9th however countered that the Guidelines list was not exclusive, but were just examples, and could include other similar offenses. The 9th also looked to immigration, where solicitation was found to be violent. The Sixth Circuit found otherwise, holding solicitation was a lesser mental state, but the 9th joins the other circuits in rejecting that position.

U.S. v. Anaya-Acosta, No. 09-50610 (1-3-11) (Schroeder, Tallman and Jarvey, D.J. S.D. Iowa) (per curiam).

Defendant was here illegally, but was allowed to depart voluntarily and then was given a break by getting a departure control order (allowing him to remain here) pending a state trial for which he was a material witness for the state. What could go wrong? Well, defendant was subsequently discovered to possess a firearm and ammunition in violation of 18 U.S.C. 922(g)(5)(A) (illegal alien in possession of firearm and ammo). He argued, though, that he was not an illegal alien because of the "deportation control order." He was allowed to be here. That does not change his status. He was here illegally, and was ordered to leave. This put him in the prohibited status. Moreover, the statute also includes the disjunctive phrase "under an order to deport voluntarily, whether or not he or she has left the United States." He was also not under "official restraint" because he was not in custody.

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