The Ninth Circuit Court of Appeals today released an opinion in USA v. PRECIADO, No. 06-50649, a criminal appeal. The panel consisted of Alex Kozinski and Johnnie B. Rawlinson, Circuit Judges, and Miriam Goldman Cedarbaum, Senior District Judge.

PER CURIAM:
Preciado met with a man named “El Huate,” who asked her to smuggle drugs into the United States. Preciado agreed and two weeks later El Huate came to her home in Mexico. Preciado left her two-year-old son with her sister Magdalena, who was staying at Preciado’s home. El Huate drove Preciado and her other four children, whose ages ranged from seven months to six years, to a nearby McDonald’s, where a van with 150 pounds of marijuana was waiting. Preciado drove the van to the United States with the four children, and she . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. HERNANDEZ-VASQUEZ, No. 06-50198, a criminal appeal. The panel consisted of Raymond C. Fisher and Richard R. Clifton, Circuit Judges, and Jeremy Fogel, District Judge.

FOGEL, District Judge:
Defendant-Appellant Jose Hernandez-Vasquez appeals the order of the district court permitting Appellee, the United States (”the Government”), to medicate him involuntarily to render him competent for trial. We vacate and remand. BACKGROUND Defendant was indicted on January 28, 2004 as a previously-deported alien found in the United States in violation of 8 U.S.C. § 1326. Defendant is subject to a maximum prison term of twenty years, and the Government calculates his likely sentencing range under the advisory sentencing guidelines as 92-115 months. On May 6, 2004, Defendant moved for a competency examination. On September 17, 2004, the district court found Defendant incompetent to stand trial and committed him to the custody of the Attorney GenDefendant previously was convicted of the following crimes: aggravated assault on a corrections officer in Arizona (twice); lewd and lascivious acts with a child under the age of fourteen, in violation of Cal. Penal Code § 288(a), for which he received a three-year custodial sentence; and misdemeanor annoying children and trespassing. Defendant was ordered removed from the United States by an Immigration Judge on August 1, 2003, and was removed on November 8, 2003. . . .

The Ninth Circuit Court of Appeals today released an order in SUNTHARALINKAM v. KEISLER, No. 04-70258, an administrative appeal. The panel consisted of Mary M. Schroeder, Chief Judge, Stephen Reinhardt, Alex Kozinski, Pamela Ann Rymer, Andrew J. Kleinfeld, Michael Daly Hawkins, Sidney R. Thomas, Barry G. Silverman, M. Margaret McKeown, Richard A. Paez, Marsha S. Berzon, Richard R. Clifton, Jay S. Bybee, Consuelo M. Callahan, and Sandra S. Ikuta, Circuit Judges.

The order for publication filed October 18, 2007, is hereby withdrawn and replaced with the attached order for publication. The dissent remains as originally filed. *Peter D. Keisler is substituted for his predecessor, Alberto R. Gonzales, as Acting Attorney General of the United States, pursuant to Fed. R. App. P. 43(c)(2). 14287 . . .

KOZINSKI, Circuit Judge, with whom Judges KLEINFELD, CLIFTON and CALLAHAN join, dissenting:
My colleagues dismiss the petition for review by relying on a nine-line motion, filed almost a month after this case was argued and submitted, which says nothing more than that petitioner has suddenly lost interest in the case. Granting the motion in such circumstances casts aside the time and effort of the 15-judge en banc panel, as well as the time and effort of the full court in considering whether to take the case en banc in the first place. It also threatens the integrity of our processes by inviting manipulation by parties unhappy with the questions at oral argument and fearful of the result they believe the court is going to reach. Worse still, by allowing counsel to dismiss the petition without requiring confirmation from the client that he wishes to abandon the petition for review, we put petitioner’s rights in jeopardy and leave the door open to future litigation as to whether counsel’s representations can bind the client. 1. The motion the court grants today was filed on July 12, 2007, 24 days after oral argument, which was held on June 18, 2007. It reads as follows, in its entirety:
. . .

The Ninth Circuit Court of Appeals today released an opinion in JORDISON v. KEISLER, No. 04-71062, an administrative appeal. The panel consisted of Melvin Brunetti, Alex Kozinski and Pamela Ann Rymer, Circuit Judges.

KOZINSKI, Circuit Judge:
We consider whether petitioner’s conviction under California Penal Code § 452(c) for “recklessly set[ting] fire to . . . a structure or forest land” is a “crime of violence” under 18 U.S.C. § 16(b). Michael Gabriel Jordison is a Canadian citizen who came to this country on a temporary visa and remained here after that visa expired. Jordison pled guilty to setting a fire in violation of California Penal Code § 452(c), and the government sought to deport him on the theory that this is an “aggravated felony.” See 8 U.S.C. § 1227(a)(2)(A)(iii) (aliens “convicted of an aggravated felony” are “deportable”). The immigration judge agreed with the government and ordered Jordison removed to Canada. The Board of Immigration Appeals affirmed, holding that every violation of section 452(c) is a “crime of violence” under 18 U.S.C. § 16(b) and thus, by definition, an “aggravated felony.” See 8 U.S.C. § 1101(a)(43)(F) (defining “aggravated felony”). Because the interpretation of “crime of violence” is a “question of law,” we have jurisdiction to hear Jordison’s petition for review of the Board’s decision under 8 U.S.C. § 1252(a)(2)(D). . . .

The opinion filed on September 4, 2007 is ordered amended. The following paragraph, which appears on page 11409 of the slip opinion, is deleted: Ordinarily we would remand so the government could submit petitioner’s complete record of conviction and the agency could apply the modified categorical approach in the first instance. See Gonzales v. Thomas, 126 S. Ct. 1613, 1615 (2006) (per curiam) (describing the ordinary remand rule). But because the government has conceded that it has already submitted everything it could obtain bearing on Jordison’s conviction, a remand would be pointless. Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1135 (9th Cir. 2006) (en banc). In its place, the following paragraph is inserted:
The government asks us to remand so that the agency may apply the modified categorical approach, but such a remand would be pointless, as the government concedes it has already submitted Jordison’s complete record of conviction. In these . . .

The Ninth Circuit Court of Appeals today released an opinion in DESERT OUTDOOR v. CITY OF OAKLAND, No. 05-15501, a civil rights appeal. The panel consisted of Betty B. Fletcher and Richard R. Clifton, Circuit Judges, and Edward F. Shea, District Judge.

CLIFTON, Circuit Judge:
Desert Outdoor Advertising, Inc., wants to display three billboards, each of which would be primarily viewed from a freeway, in Oakland, California. The City of Oakland has refused to permit the signs, citing specific City ordinances. Desert filed this action to challenge those ordinances on First Amendment grounds, seeking injunctive relief and money damages. In particular, Desert argues that Oakland Municipal Code § 1501, which generally prohibits advertising signs designed to be seen from a freeway, favors commercial over noncommercial speech and imposes content-based restrictions on noncommercial speech. Desert also contends that Oakland Planning Code § 17.148.050(A), which limits advertising signs more generally, provides City officials with unbridled discretion to permit or deny the display of signs. Finally, Desert challenges the specific application of these ordinances to the signs it erected or attempted to erect. The district court concluded that one provision of § 1501 was a content-based regulation of noncommercial speech in . . .

The Ninth Circuit Court of Appeals today released an opinion in ELLETT v. GOLDBERG, No. 05-16677, a bankruptcy appeal. The panel consisted of Arthur L. Alarcón, David R. Thompson, and Richard C. Tallman, Circuit Judges.

ALARCÓN, Circuit Judge:
James Ellett appeals from the District Court’s order affirming the Bankruptcy Court’s decision denying his requests for (1) a declaratory judgment that his pre-petition taxes owed to the California Franchise Tax Board (”FTB”) were discharged; (2) an injunction enjoining Gerald Goldberg (as Executive Director of the FTB) from making further efforts to collect the taxes; and (3) attorney’s fees and costs. We must decide whether the failure of a debtor to provide an accurate social security number (”SSN”) to a creditor in the notice mailed to the creditor informing it of the first meeting convened under 11 U.S.C. § 341(a) placed the creditor on sufficient notice to protect its rights in a Chapter 13 Bankruptcy proceeding in . . .

The Ninth Circuit Court of Appeals today released an opinion in OUR CHILDREN’S v. EPA, No. 05-16214, an appeal in a civil action against the United States. The panel consisted of J. Clifford Wallace, Dorothy W. Nelson, and M. Margaret McKeown, Circuit Judges.

McKEOWN, Circuit Judge:
In 1972 Congress passed the Clean Water Act (”CWA” or “the Act”) “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” See Federal Water Pollution Control Act Amendments of 1972 (Clean Water Act of 1972), Pub. L. No. 92-500, 86 Stat. 816 (1972), codified at 33 U.S.C. § 1251(a). Central to that legislation and later amendments is the notion that pollution discharges would be controlled through technology-based effluent limitations. Environmental advocates, Our Children’s Earth Foundation and Ecological Rights Foundation (collectively “OCE”), filed this citizen suit under the Clean Water Act, 33 U.S.C. § 1251 et seq., alleging that the Environmental Protection Agency (”EPA” or “the Agency”) has failed to fulfill its mandate to review effluent guidelines and limitations in a timely manner and in accord with technology-based standards. Specifically, OCE claims that EPA violated its statutorily-mandated duties by abandoning technology-based review in favor of hazardbased review; neglecting to identify new polluting sources; . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. BANKS, No. 05-10053, a criminal appeal. The panel consisted of J. Clifford Wallace, Andrew J. Kleinfeld, and Jay S. Bybee, Circuit Judges.

BYBEE, Circuit Judge:
Leland Devine Banks was convicted of violence in aid of a racketeering enterprise (”VICAR”), use of a firearm in a crime of violence, and possession of a firearm by a convicted felon. He was sentenced to a total of 450 months in prison. Banks appeals his conviction and sentence, raising five alleged errors by the district court. First, he argues that the district court gave erroneous instructions for the VICAR counts. Second, he argues that the evidence was insufficient to convict him on the VICAR and use of firearm counts. Third, he argues that the district court erred in giving a “de facto Allen charge.” Fourth, he argues that the district court erred in admitting into evidence the underlying facts of a prior felony conviction. Finally, he argues that cumulative error produced a miscarriage of justice. We have jurisdiction under 28 U.S.C. § 1291, and we REVERSE his VICAR convictions and sentences on the basis that the district court’s instructions to the jury were erroneous. We AFFIRM the district court in all other respects. I A. Factual Background Leland Banks had issues with Kenny Gilmore. For starters, they belonged to rival Crips gangs in Las Vegas: Banks was a member of the Rolling 60s, and Gilmore belonged to the Valley View Crips. But Banks also had, or thought he had, a personal score to settle with Gilmore. Banks had once over. . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. SALAZAR-LOPEZ, No. 06-50438, a criminal appeal. The panel consisted of Raymond C. Fisher and Richard R. Clifton, Circuit Judges, and Jeremy D. Fogel, District Judge.

CLIFTON, Circuit Judge:
We decide two questions. First, for a defendant convicted of being a previously removed alien found in the United States, in violation of 8 U.S.C. § 1326, we must resolve whether the dates of a previous felony conviction and of a previous removal from the United States, subsequent to that conviction, must be alleged in the indictment and proved to a jury for the defendant to be subject to an increased sentence under 8 U.S.C. § 1326(b). We answer that question in the affirmative. Second, we consider whether such an error, in a context that affects only sentencing, is subject to harmless error analysis. We answer that question in the affirmative, as well. Since we hold that the error here was harmless, we affirm the sentence imposed by the district court on this defendant. . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. PEREZ-PEREZ, No. 06-30341, a criminal appeal. The panel consisted of Betty Binns Fletcher, Andrew J. Kleinfeld, and Ronald M. Gould, Circuit Judges.

GOULD, Circuit Judge:
Aroldo Perez-Perez was arrested in Seattle, Washington on February 7, 2006, and charged with illegal re-entry after being deported in violation of 8 U.S.C. § 1326(a). Perez-Perez waived indictment and pleaded guilty on March 8, 2006. In his plea agreement, he acknowledged that a previous conviction for possession with intent to distribute cocaine was an aggravated felony subjecting him to a twenty-year enhancement of the maximum potential sentence under 8 U.S.C. § 1326(a)(2). Perez-Perez also admitted that he had been deported from the United States on two previous occasions, most recently on or about January 4, 2005, after serving his sentence for eluding examination and inspection by immigration officers in violation of 8 U.S.C. § 1325(a)(2). The record also shows that Appellant has previous convictions for the possession or sale of cocaine in California and Washington State. The district court conducted a sentencing hearing on June 5, 2006. The U.S. Probation Office recommended a sentence of 63-78 months based on the base offense level, PerezPerez’s criminal history and acceptance of responsibility, and a downward departure for Perez-Perez’s participation in the district’s immigration “fast track” program. The probation office’s final recommendation was for 62 months and two weeks, reflecting a bottom-of-the-guideline sentence of 63 months minus two weeks for time served. Perez-Perez concurred in the calculation as a part of his plea agreement. In his Sentencing Memorandum, Perez-Perez requested that the district court reduce the sentence to within a range of 4657 months in light of several factors that he claimed were relevant under 18 U.S.C. § 3553(a). Specifically, Perez-Perez argued that his prior felony drug offense was de minimis in nature, that his current arrest was improper under the Fourth . . .