SAFE HAVENS - BB GUN NOT FIREARM
United States v. Walker, 40 F.3d 1245, 1245 (4th Cir. 1994) (Government conceded that BB gun was not a firearm under statutory definition), United States v. Rosa, 507 F.3d 142, 145 n. 1 (2d Cir. Oct. 30, 2007) (Court stated that not all guns are firearms, specifically naming BB guns as an example).
Thanks to Richard Breitman & Roshani M. Gunewardene
NOTE: Some states (e.g. Florida, Nebraska) allow conviction for use of a deadly weapon by BB or other toy gun.
ILLEGAL REENTRY - SENTENCE
United States v. Mondragon-Santiago, ___ F.3d ___, 2009 WL 782894 (5th Cir. Mar. 26, 2009) (district court's error in sentencing defendant under wrong statutory subsection based on erroneous finding that defendant had a prior conviction for an aggravated felony did not affect defendant's substantial rights).
AGGRAVATED FELONY - ATTEMPT
United States v. Ellis, ___ F.3d ___, 2009 WL 783262 (5th Cir. Mar. 26, 2009) (North Carolina conviction of attempted common law robbery, "the felonious, non-consensual taking of money or personal property from the person or presence of another by means of violence or fear," see N.C. Gen. Stat.
AGGRAVATED FELONY - ATTEMPT
United States v. Ellis, ___ F.3d ___, 2009 WL 783262 (5th Cir. Mar. 26, 2009) (the Model Penal Code 5.01(1) "substantial step" definition of "attempt" is the majority view, having been adopted by 12 circuits plus 26 states, and arguably should be used to define the term for purposes of the Taylor v. United States analysis in the career offender sentence enhancement context of USSG 4B1.2).
JUDICIAL REVIEW - PETITION FOR REVIEW - MAGISTRATE JUDGE WHO HEARD EARLIER HABEAS PETITION DID NOT HAVE JURISDICTION TO HEAR LATER PETITION FOR REVIEW, WITHOUT PETITIONER'S CONSENT
Lopez v. Holder, ___ F.3d ___, 2009 WL 682991 (5th Cir. Mar. 17, 2009) (magistrate judge who heard earlier habeas petition did not have jurisdiction to hear later petition for review, without petitioner's consent, since it was a different case than the earlier proceeding).
CITIZENSHIP - BIRTH IN UNITED STATES
Lopez v. Holder, ___ F.3d ___, 2009 WL 682991 (5th Cir. Mar. 17, 2009) (without consent of petitioners, magistrate judge did not have jurisdiction to try citizenship case based on birth).
CATEGORICAL ANALYSIS - REALISTIC PROBABILITY OF PROSECUTION
United States v. Ortiz-Gomez, ___ F.3d ___, ___, 2009 WL 604133 (5th Cir. Mar. 10, 2009) (finding, on the basis of common sense, a realistic probability that a threat to commit arson against property, even if no person was present, would be prosecuted as making a terroristic threat, in violation of 18 Pennsylvania Consolidated Statutes 2706(a)(1) [communicating a threat to "commit any crime of violence with intent to terrorize another"]).
JUDICIAL REVIEW - EXHAUSTION
Omari v. Holder, ___ F.3d ___ (5th Cir. Mar. 4, 2009) (Court of Appeals lacked jurisdiction under 8 U.S.C. 1252(d), where petitioner did not present any of the issues raised on petition for review before the BIA).
NACDL ETHICS ADVISORY COMMITTEE
Proposed Formal Opinion 03-02 (Feb. 2003)
"It is the opinion of the NACDL Ethics Advisory Committee that, aside from
the general effect the courts might give such waivers, the rules of
professional ethics prohibit a criminal defense lawyer from signing a plea
agreement that limits the clients ability to claim ineffective
assistance of counsel because the lawyer has a conflict of interest in
agreeing to such a provision because it amounts to prospective limiting of
liability.
CITIZENSHIP - NATURALIZATION - MILITARY RAPID NATURALIZATION
"The Armys one-year pilot program will begin in New York City to recruit about 550 temporary immigrants who speak one or more of 35 languages, including Arabic, Chinese, Hindi, Igbo (a tongue spoken in Nigeria), Kurdish, Nepalese, Pashto, Russian and Tamil. Spanish speakers are not eligible. The Armys program will also include about 300 medical professionals to be recruited nationwide. Recruiting will start after Department of Homeland Security officials update an immigration rule in coming days.
