The Ninth Circuit Court of Appeals today released an opinion in USA v. HUNGERFORD, No. 05-30500, a criminal appeal. The panel consisted of Stephen Reinhardt and Susan P. Graber, Circuit Judges, and Ronald S.W. Lew, District Judge.

GRABER, Circuit Judge:
After a jury trial, Defendant Marion Hungerford was convicted of conspiracy, seven counts of robbery, and seven counts of using a firearm in relation to a crime of violence, in violation of the Hobbs Act, 18 U.S.C. §§ 1951 and 1952, and 18 U.S.C. § 924(c)(1) and (c)(2). She appeals her conviction of four of the counts of robbery and the four related counts of using a firearm. She also appeals her sentence; she received 57 months of imprisonment for the conspiracy and robbery counts, to run concurrently, plus 60 months for the first firearm charge and 300 months for each of the other firearm charges, to run consecutively. We affirm. FACTUAL AND PROCEDURAL HISTORY Defendant met Dana Canfield in September 2001. In 2002, Canfield moved into her home. Neither was employed at the time. In order to get money to pay rent, Canfield and Defen. . .

REINHARDT, Circuit Judge, concurring in the judgment:
Although precedent forecloses Marion Hungerford’s Eighth Amendment challenge to 18 U.S.C. § 924(c) (2006), under which she received almost all of her 159-year term of imprisonment, it cannot be left unsaid how irrational, inhumane, and absurd the sentence in this case is, and moreover, how this particular sentence is a predictable by-product of the cruel and unjust mandatory minimum sentencing scheme adopted by Congress. This court, along with many individuals, has previously urged Congress to “reconsider its harsh scheme of mandatory minimum sentences without the possibility of parole;”2 now, Hungerford’s case serves as yet another forceful reminder that the scheme is severely broken and badly in need of repair. Although we lack the authority either to reform these statutes or to reconsider the Eighth Amendment principles adopted by the Supreme Court, those who have both the power and the responsibility to do so should return our federal sentencing scheme to a day in which the controlling principles. . .

The Ninth Circuit Court of Appeals today released an opinion in TILLAMOOK COUNTY SMOKER INC v. CREAMERY ASSOC, No. 04-35843, a federal appeal. The panel consisted of Michael Daly Hawkins, Barry G. Silverman, and Ronald M. Gould, Circuit Judges.

SILVERMAN, Circuit Judge:
The Tillamook County Creamery Association, the maker of the Tillamook brand of cheese for nearly a hundred years, has a beef with a company called Tillamook Country Smoker, a purveyor of smoked meats and jerky. In 1976, Tillamook Country Smoker began selling its meat products under its name. The cheese people had actual knowledge of Tillamook Country Smoker’s activities, but never said a word. Not only . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. MOSLEY, No. 05-30488, a criminal appeal. The panel consisted of Alex Kozinski, Marsha S. Berzon, and Richard C. Tallman, Circuit Judges.

TALLMAN, Circuit Judge:
Charles J. Mosley, Jr. was found guilty by a jury of possession of crack cocaine with intent to distribute under 21 U.S.C. §§ 841(a)(1), (b)(1)(B) (Count One), and possession of a firearm in furtherance of a drug trafficking offense under 18 U.S.C. § 924(c)(1)(A) (Count Two). He appeals his conviction.1 We have jurisdiction pursuant to 28 U.S.C. § 3231, and we affirm. I On May 16, 2004, officers from the Anchorage, Alaska, police department responded to a single-car accident involving Mosley. When the officers arrived at the scene they found Mosley wandering outside his vehicle; he appeared to be nervous, sweating, and under the influence of a controlled substance. Police discovered an outstanding warrant for his arrest and took him into custody. An officer searched Mosley’s person and discovered $2,300 in cash. Before towing Mosley’s car, Officer Francis T. Stanfield. . .

The Ninth Circuit Court of Appeals today released an opinion in STATE OF IDAHO v. SHOSHONE-BANNOCK TRIBES, No. 04-35636, a federal appeal. The panel consisted of William C. Canby, Jr., Ronald M. Gould, and Carlos T. Bea, Circuit Judges.

CANBY, Circuit Judge:
Idaho appeals the district court’s grant of summary judgment to the Shoshone-Bannock Tribes (”Tribes”) in their declaratory judgment action regarding the types of games they may offer pursuant to their tribal-state gaming Compact (”Compact”) with Idaho. The court ruled that the Tribes could operate tribal video gaming machines without renegotiating their Compact to limit the numbers of games and to require payments by the Tribes to local educational programs and schools. We affirm the district court’s grant of summary judgment to the Tribes. BACKGROUND A. The IGRA and the Tribes’ Gaming Compact With Idaho The Indian Gaming Regulatory Act (”IGRA”) provides a comprehensive framework for regulating gaming on Indian land. See 25 U.S.C. §§ 2701-2721. The IGRA divides tribal gaming into three classes: I, II and III. The parties agree that operation of the tribal video gaming machines at issue in this case constitutes class III gaming. Class III gaming may be conducted on Indian lands if it is: (1) authorized by the tribe seeking to conduct the gaming; (2) located in a State which does not bar such gaming; and (3) “conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State . . . .” 25 U.S.C. § 2710(d)(1). . . .

The Ninth Circuit Court of Appeals today released an opinion in PLUMLEE v. DEL PAPA, No. 04-15101, a habeas corpus appeal. The panel consisted of Betty B. Fletcher, Sidney R. Thomas, and Carlos T. Bea, Circuit Judges.

B. FLETCHER, Circuit Judge:
Defendant-appellant Lary James Plumlee (”Plumlee”), convicted of murder and armed robbery in Nevada state court in 1992, appeals the denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Plumlee claims that his Sixth Amendment right to counsel was violated by the trial judge’s denial of Plumlee’s pre-trial motion to substitute counsel on the basis of an irreconcilable conflict that precluded Plumlee’s counsel from acting in the role of an advocate. At the time he moved the trial court to appoint alternate counsel, Plumlee reasonably and in good faith believed that members of the Washoe County Public Defender’s Office were leaking information about his case to another suspect in the case and to the District Attorney. The resulting distrust that arose between Plumlee and his appointed attorney was such that the attorney himself likened his representation of Plumlee to no representation at all. The judge declined to appoint new counsel. Given the circumstances of this unusual case, we conclude that the judge abused his discretion and that the Nevada Supreme Court’s contrary conclusion involved an unreasonable application of clearly established federal law. We therefore reverse. I. BACKGROUND In 1991, Plumlee was charged in Nevada state court with the armed robbery and murder of Wilbur Richard Beard. Over . . .

The majority opinion and the dissenting opinion filed October 18, 2005, slip op. 14223, appearing at 426 F.3d 1095 (9th Cir. 2005), are hereby amended. The amended opinion and amended dissent are filed concurrently herewith. The opinion and dissent are amended as follows: 1. Addition of footnote to 426 F.3d at 1107, end of paragraph 2:
Recently, in United States v. Gonzalez-Lopez, 126 S. Ct. 2557 (2006), the Supreme Court reaffirmed that the Sixth . . .

BEA, Circuit Judge, dissenting:
Bypassing the clear restraints enacted by Congress in AEDPA, and fashioning a new rule raising a defendant’s suspicions and personal pique to constitutional dimensions, the majority orders the release of Plumlee thirteen years after he was imprisoned–for two terms of life without the possibility of parole–for robbing and murdering Wilbur Richard Beard. Were that not enough, the majority’s “irreconcilable conflict” rule augurs innumerable problems for public defenders and trial courts; if allowed to stand, it will generate volumes of litigation for both direct and collateral appeals for years to come. I fundamentally disagree with the majority’s presentation of the facts, their reading of the law, and their conclusion that the Nevada Supreme Court’s decision rejecting petitioner Plumlee’s “irreconcilable conflict” claim was “an unreasonable application of clearly established Federal law” under the Antiterrorism and Effective Death Penalty Act of 1996 (”AEDPA”), 28 U.S.C. § 2254(d)(1). First, the facts. The majority skews their rendition of the facts by largely relying on only one version of the story — the story presented by Plumlee. The majority fails to consider the wealth of evidence–presented by numerous witnesses other than Plumlee–that contradict Plumlee’s claims of conflicts with, and improprieties by, the Washoe County Public Defender’s Office (”Public Defender”). Had the majority considered the full record, they could not have engaged in their exercise of second-guessing the state court’s factual findings. Put simply: the evidence contrary to Plumlee’s claims supplies the “reason” that makes the state court’s findings not an “unreasonable determination of the facts.” Second, the law. The majority sets forth a rudderless, subjective rule for finding an “irreconcilable conflict” between a criminal defendant and his counsel, focusing solely on . . .

The Ninth Circuit Court of Appeals today released an opinion in SACKS v. OFFICE OF FOREIGN, No. 04-36136, an appeal in a civil action against the United States. The panel consisted of J. Clifford Wallace, Kim McLane Wardlaw, and Raymond C. Fisher, Circuit Judges.

WARDLAW, Circuit Judge:
These consolidated cross-appeals arise from a challenge to the pre-2003 United States sanctions prohibiting both travel to and the unlicensed donation of humanitarian medical supplies to Iraq. We affirm the district court’s decision that Bertram Sacks has standing to challenge the ban on travel and that the travel ban regulation was validly promulgated. Sacks fails, however, to demonstrate a concrete and imminent likelihood that he will be penalized for violations of the restriction on medical donations. Therefore, his challenge to the restriction on medical donations does not fulfill the constitutional requirements of standing and ripeness. We also affirm the district court’s holding that the Office of Foreign Assets Control (OFAC) regulation in effect at the time prohibited the government from referring Sacks’s unpaid penalty to a private collection agency. I. BACKGROUND Bertram Sacks traveled to Iraq nine times between 1990 and 2003 in violation of sanctions the United States imposed against Iraq following the 1990 invasion of Kuwait. According to Sacks’s Amended Complaint, the twelve years of United States and United Nations sanctions were a dire time for Iraqi civilians, marked by malnutrition, high rates of infant . . .

The Ninth Circuit Court of Appeals today released an opinion in BATES v. UPS, No. 04-17295, a federal appeal. The panel consisted of Betty B. Fletcher, John R. Gibson, and Marsha S. Berzon, Circuit Judges.

BERZON, Circuit Judge:
This case concerns whether United Parcel Service (UPS) may categorically exclude individuals from employment positions as “package-car drivers” because they cannot pass a United States Department of Transportation (DOT) hearing standard that does not apply to the vehicles in question. A class of UPS employees and applicants unable to pass the DOT hearing standard — a class we refer to throughout this opinion as “Bates” (the last name of the original class’s lead plaintiff) — contends that this policy violates the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213, and two California laws: (1) the Fair Employment and Housing Act (FEHA), CAL. GOV’T CODE §§ 12900-12996; and (2) the Unruh Civil Rights Act (Unruh Act), CAL. CIV. CODE § 51. After the first phase of a bifurcated trial, the district court held in a detailed opinion that UPS violated the ADA, the FEHA, and the Unruh Act, and ordered injunctive relief. At. . .

The Ninth Circuit Court of Appeals today released an opinion in O’DONNELLV VENCOR INC, No. 05-15687, a federal appeal. The panel consisted of William C. Canby, Jr., David R. Thompson, and Michael Daly Hawkins, Circuit Judges.

PER CURIAM:
Pro se plaintiff-appellant Alice Faye O’Donnell (”O’Donnell”) appeals the district court’s dismissal of her employment discrimination claims as time-barred. O’Donnell asserts that the district court should have applied the doctrines of equitable tolling, equitable estoppel, or laches to excuse her filing her second action after the statute of limitations had expired. We review de novo whether a claim is barred by a statute of limitations. See Santa Maria v. Pac. Bell, 202 F.3d 1170, 1175 (9th Cir. 2000). Because the facts here are undisputed, we review de novo whether to apply equitable tolling. See id. We review for an abuse of discretion the district court’s decision whether to apply equitable estoppel. See id. at 1176. We review de novo whether laches is available as a matter of law and for an abuse of discretion the district court’s decision whether to apply laches to the facts. See In re Beaty, 306 F.3d 914, 920-21 (9th Cir. 2002). . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. PAOPAO, No. 05-10653, a criminal appeal. The panel consisted of Betty B. Fletcher and Marsha S. Berzon, Circuit Judges, and David G. Trager, District Judge.

TRAGER, District Judge:
Eteuati Paopao (”Paopao”) pled guilty to a violation of 18 U.S.C. § 922(g), possession of a firearm by a felon. Under a reservation of rights, he now appeals two of the District Court’s rulings. Specifically, Paopao alleges that the District Court erred in not suppressing the Honolulu Police Department’s seizure of his handgun during a protective sweep of an illegal gambling room. Paopao also claims that the District Court should have granted his motion to dismiss the charges because they were unconstitutional as applied to him. This court has jurisdiction pursuant to 18 U.S.C. § 3231 and 28 U.S.C. § 1291 and affirms. Background In late summer 2004, two perpetrators committed a series of robberies of illegal gambling rooms. The robbers posed as police officers and were armed. Based on descriptions provided by victims and information provided by unidentified sources, Honolulu Police Officer Joseph Lum (”Officer . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. NICHOLS, No. 03-30503, a criminal appeal. The panel consisted of J. Clifford Wallace, Kim McLane Wardlaw and Raymond C. Fisher, Circuit Judges.

FISHER, Circuit Judge:
Kevin Nichols appeals his 57-month sentence following his guilty plea conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). We have jurisdiction under 28 U.S.C. § 1291. Nichols challenges the district court’s enhancement of his base offense level under U.S.S.G. § 2K2.1(b)(5), which provides for a four-level increase “[i]f the defendant used or possessed any firearm . . . in connection with another felony offense.” He argues that this provision applies only to firearms listed in the count of conviction or underlying indictment. Because his two-count federal indictment did not list . . .

WALLACE, Circuit Judge, concurring:
Although I concur with the result reached by the majority, I write separately because I would follow the Eighth Circuit in holding that the firearm used for enhancement under U.S.S.G. § 2K2.1(b)(5) need not be mentioned in the indictment. The issue raised by the parties is whether the plain meaning of “any firearm” controls, and not whether possession of the Glock constituted relevant conduct. Thus, I would affirm following the Eighth Circuit’s statutory interpretation, without reaching the question of whether U.S.S.G. § 1B1.3(a)(2) serves as an alternative to the application of section 2K2.1(b)(5). . . .