The Ninth Circuit Court of Appeals today released an opinion in DAVIS v. CITY OF LAS VEGAS, No. 04-17284, a civil rights appeal. The panel consisted of Stephen Reinhardt, John T. Noonan, and Sidney R. Thomas, Circuit Judges.

REINHARDT, Circuit Judge:
Once again we confront the question whether a police officer’s use of force during the arrest of an unarmed citizen was sufficiently excessive to violate the citizen’s clearlyestablished constitutional rights. Officer David Miller of the Las Vegas Metropolitan Police Department responded to a call from the Las Vegas Club Hotel & Casino informing him . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. ALVAREZ-HERNANDEZ, No. 06-10284, a criminal appeal. The panel consisted of Andrew J. Kleinfeld and Jay S. Bybee, Circuit Judges, and Robert H. Whaley, District Judge.

BYBEE, Circuit Judge:
Defendant-Appellant Vicente Alvarez-Hernandez (”Appellant”) appeals his sentence for being an illegal alien found in the United States following deportation. Appellant argues that the district court’s determination that he had previously been “convicted for a felony drug trafficking offense for which the sentence imposed was 13 months or less,” U.S.S.G. § 2L1.2(b)(1)(B), was erroneous due to a 2003 amendment to the Sentencing Guidelines’ authoritative commentary. That amendment’s effect is a question of first impression in this circuit. For the reasons set forth below, we hold that the district court erred in applying § 2L1.2(b)(1)(B) to Appellant. I. FACTS AND PROCEEDINGS BELOW Appellant is a Mexican national. In 1991, Appellant received a five-year suspended sentence, three years probation, and a fine, for the unlawful sale of a controlled substance in violation of Nevada Revised Statute § 453.321. Following that conviction, Appellant was deported. Appellant later returned to the United States and was deported again on May 20, 1999. Appellant again reentered the United States, and on November 16, 2005, he was indicted pursuant to 8 U.S.C. § 1326 for being an illegal alien found in the United States following deportation. Appellant pled guilty to that charge on February 9, 2006. On April 21, 2006, the district court conducted a sentencing hearing at which Appellant and the United States agreed that, under the Sentencing Guidelines, Appellant’s base offense . . .

The Ninth Circuit Court of Appeals today released an amended order in MORALES v. GONZALES, No. 05-70672, an administrative appeal. The panel consisted of D.W. NELSON, THOMPSON, and PAEZ, Circuit Judges.

The Ninth Circuit Court of Appeals today released an opinion in USA v. VARTANIAN, No. 05-10581, a criminal appeal. The panel consisted of J. Clifford Wallace, Andrew J. Kleinfeld, and Jay S. Bybee, Circuit Judges.

BYBEE, Circuit Judge:
Hagop Vartanian (”Vartanian”) appeals his jury convictions for aiding and abetting the filing of a false tax return, in violation of 18 U.S.C. § 2 and 26 U.S.C. § 7206(1), and two counts of aiding and abetting the making of false statements on a loan application, in violation of 18 U.S.C. § 2 and 18 U.S.C. § 1014. On appeal, Vartanian asserts that the district court abused its discretion when it dismissed a juror from service.1 We have jurisdiction under 28 U.S.C. § 1291, and we affirm Vartanian’s conviction. I In November 2001, a grand jury returned an indictment charging Vartanian with understating the income from his auto sales business, Pacific Sales & Leasing, on his 1994 and 1995 tax returns; with deliberately omitting income from his business, Muscles-N-Motion; and with deliberately omitting income from his illegal bookmaking business. The indictment also charged Vartanian with knowingly making false statements on his 1993 and 1994 tax return for the purpose of obtaining a car loan. Vartanian’s trial began in February 2003, and the jury began deliberations in March 2003. On the second day of deliberations, the trial judge received a note from the jury foreperson stating: “There is one juror that has been seen on different occasions speaking to the defendant’s family. Juror’s name is Kathy. Three or four people have seen her and two saw her this morning chatting with them outside the courtroom.” After discussing the note with counsel for both sides, the judge decided to interview the juror (”Juror 7″) to deterWe have addressed Vartanian’s claims regarding jury instructions and exclusion of witness testimony in an unpublished disposition. . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. LOPEZ, No. 06-10062, a criminal appeal. The panel consisted of Thomas G. Nelson, Ronald M. Gould, and Consuelo M. Callahan, Circuit Judges.

T.G. NELSON, Circuit Judge:
Carlos Lopez (”Lopez”) appeals his convictions for possession of cocaine with intent to distribute (21 U.S.C. § 841(a)) and possession of a firearm in furtherance of a drug trafficking offense (18 U.S.C. § 924(c)). Lopez contends that insufficient evidence supported his convictions under these counts because no rational jury could have found each of the essential elements of the crimes beyond a reasonable doubt. He further contends that the district court plainly erred by failing to provide the meaning of the term “in furtherance” to the jury, and that the district court abused its discretion when it denied his motion to sever his drug-related counts from the other charges. Harris v. United States and United States v. Dare foreclose Lopez’s final claim, that the mandatory minimum sentence imposed under 18 U.S.C. § 924(c) violated his Sixth Amendment rights. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm. I. BACKGROUND The Government charged Lopez on five counts. Counts One and Two charged Lopez with being a felon and an illegal alien in possession of a firearm. Count Three charged him with possessing that same firearm in furtherance of a drug trafficking offense. Count Four charged Lopez with possession of cocaine with intent to distribute. Count Five charged him with illegal reentry. Before trial, Lopez moved to sever the firearm and illegal reentry charges from the drug-related counts. The district court denied his motion. . . .

The Ninth Circuit Court of Appeals today released an opinion in REYNOSO v. FRANKFORT DIGITAL, No. 04-17190, a bankruptcy appeal. The panel consisted of Betty B. Fletcher and Marsha S. Berzon, Circuit Judges, and David G. Trager, District Judge.

B. FLETCHER, Circuit Judge:
This appeal arises from an adversary proceeding initiated by the United States Trustee (”Trustee”), during the bank. . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. CASTILLO-BASA, No. 05-50768, a criminal appeal. The panel consisted of Stephen Reinhardt, Stephen S. Trott, and Kim McLane Wardlaw, Circuit Judges.

REINHARDT, Circuit Judge:
I This case presents an important question that cuts to the heart of the Double Jeopardy Clause. It involves the right of a defendant to be free from repeated prosecutions in which the government retries him until it obtains a guilty verdict. The government was unable to convict Castillo-Basa the first time it tried him, for illegal reentry, in large part because its counsel failed to locate and present a crucial tape recording that was within its possession. To its surprise, the jury acquitted him. Now, having “found” the tape, the government seeks to prosecute Castillo-Basa again, this time for perjury committed in connection with the illegal reentry trial. The central issue . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. MEJIA-PIMENTAL, No. 05-30604, a criminal appeal. The panel consisted of Dorothy W. Nelson, David R. Thompson, and Richard A. Paez, Circuit Judges.

PAEZ, Circuit Judge:
This case provides the occasion to explore the parameters of the statutory safety valve, which grants relief from certain mandatory minimum sentences when five criteria are met. See 18 U.S.C. § 3553(f). We have previously decided that the fifth factor, which requires a defendant to “truthfully provide[ ]” all his knowledge about the crime to the Government before sentencing, see § 3553(f)(5), is aimed at defendants “who `have made a good-faith effort to cooperate with the government.’ ” United States v. Shrethsa, 86 F.3d 935, 940 (9th Cir. 1996) (quoting United States v. Arrington, 73 F.3d 144, 147 (7th Cir. 1996)). We have never, however, defined precisely what “good faith” means in this context. We now hold that to demonstrate “good faith,” a defendant need only show what the statutory language directs: that by the time of sentencing, he has “truthfully provided to the Government all information and evidence [he] has concerning the offense or offenses.” § 3553(f)(5). In this case, the district court construed good faith too broadly in determining that Mejia-Pimental was ineligible for relief. Because the court thus erred in its application of the safety valve and then sentenced Mejia-Pimental with reference to a mandatory minimum term, we vacate his sentence and remand for resentencing. . . .

The Ninth Circuit Court of Appeals today released an opinion in VAN v. BARNHARDT, No. 04-56424, an appeal in a civil action against the United States. The panel consisted of Dorothy W. Nelson, Stephen Reinhardt, and Jay S. Bybee, Circuit Judges.

REINHARDT, Circuit Judge:
I Hoa Hong Van, a successful claimant for Supplemental Security Income (”SSI”) benefits, appeals the district court’s denial of her application for attorneys’ fees as time-barred by the filing provision in the Equal Access to Justice Act (”EAJA” or “the Act”), which requires a party to submit a fee application “within thirty days of final judgment in the action,” 28 U.S.C. § 2412(d)(1)(B), and defines “final judgment” as “a judgment that is final and not appealable . . . .” Id. § 2412(d)(2)(G). The district court held that because, following a remand under sentence six of 42 U.S.C. § 405(g), the Commissioner of Social Security (”Commissioner”) consented to a judgment enforcing the agency’s determination in favor of Van, the judgment became “final and not appealable” immediately, requiring Van to file her fee application within 30 days after entry of judgment, rather than 30 days after expiration of the 60-day appeal period provided for in Rule 4(a)(1)(B) of the Federal Rules of Appellate Procedure. Because Van filed her fee application 62 days after entry of judgment, the district court denied her application as untimely. Id. In this case, we consider whether in order to be deemed timely under 28 U.S.C. § 2412(d)(1)(B), a Social Security disability claimant who, following a remand under sentence six of 42 U.S.C. § 405(g), obtains a favorable determination from the agency and enforces it in the district court by a judgment to which the government consents must file an application for attorneys’ fees under EAJA within 30 days after the entry of judgment, or, whether he may file within 30 days following expiration of the 60-day appeal period provided for by Rule 4(a)(1)(B). We hold that such a claimant, like other successful sentence-six remand claimants, may file within 30 days after . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. CRUZ-ESCOTO, No. 05-50892, a criminal appeal. The panel consisted of Eugene E. Siler, Jr., A. Wallace Tashima, and Carlos T. Bea, Circuit Judges.

SILER, Circuit Judge:
Rafael Cruz-Escoto appeals his jury conviction and sentence for being a deported alien found in the United States . . .

TASHIMA, Circuit Judge, dissenting:
I respectfully dissent from Part III.B of the majority opinion and from the judgment. Part III.B rejects Cruz-Escoto’s contention that the jury instructions inadequately covered his theory of the defense. The majority misconstrues our cases and, consequently, interprets the doctrine of “official restraint” far too narrowly. Although the majority acknowledges in Part III.A that “the geography of the Channel might prevent someone crossing the border from exercising his own free will inside the United States until he passes the permanent post,” Maj. Op. at 2056, inexplicably, it ignores this possibility in its discussion of Cruz-Escoto’s requested jury instructions. The jury instructions requested by Cruz-Escoto would have allowed the jury to consider his theory that the “geography of the Channel,” including the permanent Border Patrol post, placed him under official restraint, even if he was not seen crossing the border. But the jury instructions actually given foreclosed consideration of Cruz-Escoto’s theory of the case. “It is settled law that a defendant is entitled to have the judge instruct the jury on his theory of the case, provided that it is supported by law and has some foundation in the evidence. A failure to instruct a jury upon a legally and factually cognizable defense is not subject to harmless error analysis.” United States v. Sarno, 73 F.3d 1470, 1485 (9th Cir. 1995) (citations, internal quotation marks, and brackets omitted). Cruz-Escoto requested a jury instruction stating that, “[W]hen an alien attempts to enter the United States, the mere fact that he may have eluded the gaze of law enforcement, or eluded arrest, for a brief period of time after having come upon United States territory is insufficient, in and of itself, to establish `freedom from official restraint.’ ” The district court rejected this proposed instruction and gave the following instruction in its place: “If an alien is under constant surveillance by immigration officers when he entered the United . . .