Appealing in Nevada : Nevada Appellate Lawyer & Attorney : Tami D. Cowden : Nevada Supreme Court, Ninth Circuit Court of Appeals

In Brooks v. State, the Nevada Supreme Court today reversed convictions for robbery with the use of a deadly weapon and conspiracy to commit robbery. The Court found that Brooks was entitled to have the jury instructed that, to find that an unarmed offender “used” a weapon for purposes of the sentence enhancement for use of a weapon, the unarmed offender had to have knowledge of the use of the deadly weapon by another principal.  

Additionally, Brooks was entitled to have the jury instructed that, absent an agreement to cooperate in achieving a criminal purpose, mere knowledge of, acquiescence in, or approval of that purpose does not establish conspiracy.

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 In U.S. v. Garner, the Ninth Circuit upheld a sentence enhanced due to conduct committed approximately 35 years before. 

Garner was convicted of two counts of attempted receipt of child pornography and six counts of possession of child pornography, and received a sentence of 262 months. Based on Garner’s admission that he had sexually abused his children or step children some 35 years before, his sentence included an enhancement for a “pattern of activity involving the sexual abuse of exploitation of a minor” as permitted by U.S.S.G. § 2G2.2. The Court noted that commentary to the sentencing guidelines made clear that the “pattern of activity” need not be conduct concurrent with the charged offense.

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In U.S. v. Narvaez-Gomez, the Ninth Circuit vacated the sentence imposed for illegal reentry of an alien after removal.  The defendant’s sentence had been enhanced because he’d been convicted of discharge of a firearm at a residence under California penal Statute 246, which could be a reckless offense.  However, the enhancer was for a crime of violence, which requires intentional use of force.

The Court affirmed the underlying conviction, even though a confession was obtained without proper Miranda warnings, and then, after warnings were given, another confession was obtained.  The latter confession was admitted at trial. The Court determined this was not a deliberate “two-step interrogation process barred by Missouri v. Seibert because the personnel taking the confessions changed, and several hours passed between confessions.

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In Gautt v. Lewis, the Ninth Circuit granted the petition for habeas where the defendant had been charged with a sentence enhancement under one statute, but sentenced under another statute. As a result, the defendant was sentenced under a 25 year to life enhancement, instead of a 10 year enhancement.

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In U.S. v. Carson, the Ninth Circuit held that the offense of second degree assault, as defined by the state of Washington, was a crime of violence. Defendant’s previous conviction for that offense had been used as a sentence enhanced for his federal conviction. An element of the prior offense is that the defendant “knowingly inflict bodily harm which by design causes such pain or agony as to be the equivalent of that produced by torture.” The Court held the prior conviction was properly considered to determine the defendant was eligible for career offender enhancement.  

In my days as a staff attorney, we’d would have called this case a slam dunk.

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