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QUESTION:Whether a conviction of an alien for sexual battery in California constitutes an aggravated felony rendering that alien removable from the country under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(2)(A)(iii). Id. at 930- 31.

ANALYSIS:Lisbey pled guilty to sexual battery in California, which proscribes the use of physical force to perform an act for sexual gratification, arousal or abuse. Id. at 931 (citing CAL. PENAL CODE § 243.4(a)). Under the INA, an alien is deportable if convicted of an aggravated felony, which includes a “crime of violence” in its definition

Id. To be considered a crime of violence, the crime must include a “‘substantial risk that physical force against the person or property of another may be used in the course of committing the offense.’” Id. at 932. Decisions by the Supreme Court, as well as other circuits, held that sexual crimes were crimes of violence. Id. at 932-33 (citing Leocal v. Ashcroft, 543 U.S. 1 (2004); United States v. Wood, 52 F.3d 272, 276 (9th Cir. 1995); Zaidi v. Ashcroft, 374 F.3d 357, 361 (5th Cir. 2004);

Sutherland v. Reno, 228 F.3d 171, 176-77 (2d Cir. 2000); United States v. Reyes-Castro, 13 F.3d 377, 379 (10th Cir. 1993).

CONCLUSION: A conviction for sexual battery in California constitutes an aggravated felony, rendering an alien convicted of that crime removable pursuant to INA § 237(a)(2)(A)(iii).

Hawthorne Sav. F.S.B. v. Reliance Ins. Co. of Ill., 421 F.3d 835 (9th Cir. 2005)

QUESTION: Whether the McCarran-Ferguson Act, 15 U.S.C. §§ 1011 et seq. “bars the federal diversity statute, 28 U.S.C. § 1332, from preempting or otherwise interfering with Pennsylvania’s rehabilitation and liquidation statutes.” Id. at 842.

ANALYSIS:The McCarran-Ferguson Act “provides that ‘[n]o Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance.’” Id. The defendant argued that federal jurisdiction impaired “the operation of Pennsylvania’s

state-law liquidation regime.” Id. The court disagreed and, relying on

Gross v. Weingarten, 217 F.3d 208 (4th Cir. 2000), held that § 1332 did not dispossess Pennsylvania of jurisdiction over the liquidation and disposition of assets. Hawthorne, 421 F.3d at 842.

CONCLUSION: 28 U.S.C. § 1332 is not pre-empted by the McCarran-Ferguson Act. Id. at 844.

United States v. Cervantes-Flores, 421 F.3d 825 (9th Cir. 2005)

QUESTION: Whether the admission of a “certificate of nonexistence of record” (“CNR”) violates the defendant’s Sixth Amendment Confrontation Clause rights in light of Crawford v. Washington, 541 U.S. 36 (2004). Cervantes-Flores, 421 F.3d at 828.

ANALYSIS: Under Crawford, non-testimonial evidence is not subject to the Confrontation Clause, and common law exceptions to hearsay typically encompass non-testimonial evidence. Id. at 832. The district court had approved the use of the CNR under the business records exception to hearsay. Id. at 833. The court, finding that records are regularly kept by the Immigration and Naturalization Service, found that those records constitute business records. Thus, an affidavit concerning those records properly fell within the scope of the business records exemption, making the CNR non-testimonial evidence which is not barred by Crawford. Id. at 833-34.

CONCLUSION:The admission of a CNR, in which an Immigration and Naturalization Service (“INS”) stated there was no evidence in INS records that alien had received permission for admission into the United States, does not violate an alien’s Confrontation Clause rights. Id. at 828. United States v. Carter, 421 F.3d 909 (9th Cir. 2005)

QUESTION: What is the meaning of the phrase “altered or obliterated” as used in United States Sentencing Guidelines § 2K2.1(b)(4)? Id. at 910.

ANALYSIS:Noting that no court has ruled on the question, the 9th Cir. looked at the plain language of the statute. Id. at 911. The court rejected the requirement put forth by the defendant that the serial number of a gun must be untraceable by microscopy. Id. Because “altered or obliterated” is phrased in the disjunctive, and because the word “altered” can be defined as “to change or make different,” a change which makes the serial number unobservable to the naked eye suffices for U.S.S.G. § 2K2.1(b)(4). Id. at 912-13. The court found that neither the structural

context nor the legislative history dictated an alternative result. Id. at 913-14.

CONCLUSION: The court held that “for the purposes of Guideline § 2K2.1(b)(4), a firearm’s serial number is ‘altered or obliterated’ when it is materially changed in a way that makes accurate information less accessible.” Id. at 910. The court further held that, “under that standard, a serial number which is not discernable to the unaided eye, but which remains detectable via microscopy, is altered or obliterated.” Id.

United States v. Weiland, 420 F.3d 1062 (9th Cir. 2005)

QUESTION: “Whether, for [FED. R. CRIM. P.] 41 purposes, a deputation as a Special Deputy U.S. Marshal confers ‘federal law enforcement officer’ status on a state law enforcement official.” Id. at 1070.

ANALYSIS:“Statutes and regulations give the Marshals authority to deputize local law enforcement officials to ‘perform the functions of Deputy U.S. Marshals’” Id. U.S. Marshals have long had the authority to “seek and execute federal search warrants.” Id.

CONCLUSION: The court held that a “state law enforcement officer’s deputation as a Special Deputy U.S. Marshal made him a “federal law enforcement officer,” for purposes of [FED. R. CRIM. P. 41] governing who may request federal search warrants.” Id.