The Ninth Circuit Court of Appeals today released an opinion in USA v. RODRIGUEZ-GUZMAN, No. 06-10585, a criminal appeal. The panel consisted of Betty B. Fletcher, Eugene E. Siler, and Michael D. Hawkins, Circuit Judges.

B. FLETCHER, Circuit Judge:
Defendant-Appellant Javier Rodriguez-Guzman challenges his sentence on the ground that the district court improperly . . .

SILER, Circuit Judge, concurring in part and dissenting in part:
I concur with the majority in finding that § 261.5(c) of the California Penal Code qualifies as a per se crime of violence under USSG § 2L1.2(b)(1)(A)(ii). However, I dissent from the majority on whether the district court erred by finding that a 16-level enhancement was appropriate for RodriguezGuzman based upon his prior conviction of statutory rape in California. I agree with the majority that under Taylor v. United States, 495 U.S. 575, 600 (1990), we must follow a categorical approach to determine whether Rodriguez-Guzman was convicted of a crime of violence. Likewise, under Taylor, we can look at the Model Penal Code as an aid in determining the “generic” meaning of the offense. Id. at 598 n.8. However, I would modify the Model Penal Code in defining statutory rape as sexual intercourse with another who is not his or her spouse, or any person who engages in deviate sexual intercourse or causes another to engage in deviate sexual intercourse if the actor is at least four years older than the victim and the victim is under the age of consent. I realize that this is not the exact definition from the Model Penal Code. If one accepts the Model Penal Code as now written, then a female who has been convicted under state law of statutory rape could never receive an enhancement on a subsequent conviction under the Guidelines. Instead, I would follow the language from United States v. Gomez-Mendez, 486 F.3d 599, 603 (9th Cir. 2007), where we stated: “The term `statutory rape’ is ordinarily, contemporarily, and commonly understood to mean the unlawful sexual . . .

The Ninth Circuit Court of Appeals today released an order in BARAJAS v. WISE, No. 06-15494, a habeas corpus appeal. The panel consisted of Myron H. Bright, Dorothy W. Nelson, and Marsha S. Berzon, Circuit Judges.

The petition for panel rehearing is GRANTED. The opinion filed March 23, 2007, slip op. 3449, and published at 481 F.3d 734 (9th Cir. 2007) is hereby vacated. The case has been resolved in an unpublished memorandum disposition. The petition for rehearing en banc is DENIED as moot. *The Honorable Myron H. Bright, Senior United States Circuit Judge for the Eighth Circuit, sitting by designation. 14137 . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. SOLTERO, No. 06-50257, a criminal appeal. The panel consisted of THOMAS G. NELSON, Eugene E. Siler, Jr., and Michael Daly Hawkins, Circuit Judges.

PER CURIAM:
Dean Harlon Soltero (”Soltero”) appeals the sentence imposed following his guilty plea to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He argues that the district court erred by failing to verify that he had read his presentence report (”PSR”) and had discussed it with his attorney, as well as by imposing three particular conditions of supervised release. We affirm in part, and vacate and remand in part. . . .

HAWKINS, Circuit Judge, concurring in part and dissenting in part:
I concur in all of the majority Opinion save that concerning the treatment condition (Section II.B), which, in my view, constitutes an impermissible delegation to the probation office. As I read 18 U.S.C. § 3672, only courts are permitted to decide whether, and to what extent, a defendant is required to pay for drug treatment costs. are also “gangs.” However, even if Soltero would only be prosecuted for a supervised release violation if he associated with disruptive gangs (and not if he associated with other arguably “disruptive groups“)–which, if true, would make the condition redundant and, thus, unnecessary for the government’s stated purposes–there is no way for Soltero to know this from the condition’s plain language. A probationer must be put on clear notice of what conduct will (and will not) constitute a supervised release violation, a rule that is of particular importance when the condition seems to reach constitutionally protected conduct. See United States v. Chapel, 428 F.2d 472, 473-74 (9th Cir. 1970). An overly broad condition like this one cannot be “saved” merely because the government promises to enforce it in a narrow manner. See United States v. Loy, 237 F.3d 251, 266 (3d Cir. 2001) (A vague supervised release condition “cannot be cured by allowing the probation officer an unfettered power of interpretation, as this would create one of the very problems against which the vagueness doctrine is meant to protect, i.e., the delegation of `basic policy matters to policemen . . . for resolution on an ad hoc and subjective basis.’ “); cf. Grayned v. City of Rockford, 408 U.S. 104, 109 (1972) (”[W]here a vague statute abuts upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of those freedoms. Uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone . . . than if the boundaries of the forbidden areas were clearly marked.” (internal quotation marks, alterations, citations, and footnotes omitted)). . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. SALCIO, No. 06-10546, a criminal appeal. The panel consisted of Eugene E. Siler, Jr., M. Margaret McKeown, and Carlos T. Bea, Circuit Judges.

PER CURIAM:
Richard Salcido appeals his conviction and sentence for receipt or distribution of material involving the sexual exploitation of minors, in violation of 18 U.S.C. § 2252(a)(2), and possession of material involving the sexual exploitation of minors, in violation of 18 U.S.C. § 2252(a)(4)(B). He argues: (1) the district court erred in admitting movie and image files into evidence because the government did not establish that the movie and image files actually depicted a minor; (2) without this evidence, there is insufficient evidence that he possessed authentic material depicting the sexual exploitation of an actual minor; (3) admission of sexually explicit chat logs was irrelevant and unduly prejudicial since he conceded the issue of knowledge; (4) the district court lacked a sufficient factual basis to enhance his sentence pursuant to USSG § 2G2.2(b)(7)(D); and (5) the district court erred by failing to hold an evidentiary hearing to determine the number of images he possessed. We affirm. I. BACKGROUND In February 2005, Detective Ken Hedrick of the Stanislaus County Sheriff’s Department conducted an investigation into peer-to-peer file sharing of child pornography on the Internet. He utilized a program to locate files containing child pornography by searching for the term “babyj” and compared his search results with a list of known child pornography files. He then obtained a list of IP addresses that had those files available for downloading. Upon finding a computer in California that had child pornography files available for sharing, Hedrick referred the information to the Bureau of Immigration and Customs Enforcement for additional investigation. The Bureau sent a summons to the Internet service provider to obtain subscriber information for the California computer. . . .

The Ninth Circuit Court of Appeals today released an order in SUNTHARALINKAM v. KEISLER, No. 04-70258, an administrative appeal. The panel consisted of Alex Kozinski and Richard C. Tallman, Circuit Judges, and Brian E. Sandoval, District Judge.

KOZINSKI, Circuit Judge:
Bouncers physically removed Acosta from Murphy’s Club, a bar in San Diego’s Qualcomm Stadium. Stadium security was notified, and two security guards approached Acosta. She refused to show the guards identification or accompany them to the security office. San Diego police officers then intervened. Officer Hill told Acosta that she had been ejected from the stadium. After he told Acosta at least three times that she would be arrested if she didn’t leave the stadium, Acosta kicked a security guard and Officer Hill. Officer Hill then placed her in a carotid restraint hold. Acosta became compliant without losing consciousness, and she was handcuffed. Soon, however, the rumbustious Acosta began kicking again, so Officer Hill slammed her to the ground and tied her legs together. She was then taken to the holding area by Officers Krouss and Stafford. Acosta filed a 42 U.S.C. § 1983 claim against the security guards, police officers and the City of San Diego, alleging various constitutional violations including unconstitutional use of deadly force under the Fourth Amendment. The jury was given an excessive force instruction based on a reasonableness standard–but not a separate deadly force instruction. The jury found for defendants. Acosta appeals, arguing . . .

The Ninth Circuit Court of Appeals today released an en banc opinion in BELTRAN v. SANTA CLARA COUNTY, No. 05-16976, a civil rights appeal. The panel consisted of SCHROEDER, Chief Judge.

The Ninth Circuit Court of Appeals today released an en banc opinion in NAVAJO NATION v. UNITED STATES FOREST SERVICE, No. 06-15371, an appeal in a civil action against the United States.

The Ninth Circuit Court of Appeals today released an opinion in ACOSTA v. HILL, No. 05-56575, a civil rights appeal. The panel consisted of Alex Kozinski and Richard C. Tallman, Circuit Judges, and Brian E. Sandoval, District Judge.

KOZINSKI, Circuit Judge:
Bouncers physically removed Acosta from Murphy’s Club, a bar in San Diego’s Qualcomm Stadium. Stadium security was notified, and two security guards approached Acosta. She refused to show the guards identification or accompany them to the security office. San Diego police officers then intervened. Officer Hill told Acosta that she had been ejected from the stadium. After he told Acosta at least three times that she would be arrested if she didn’t leave the stadium, Acosta kicked a security guard and Officer Hill. Officer Hill then placed her in a carotid restraint hold. Acosta became compliant without losing consciousness, and she was handcuffed. Soon, however, the rumbustious Acosta began kicking again, so Officer Hill slammed her to the ground and tied her legs together. She was then taken to the holding area by Officers Krouss and Stafford. Acosta filed a 42 U.S.C. § 1983 claim against the security guards, police officers and the City of San Diego, alleging various constitutional violations including unconstitutional use of deadly force under the Fourth Amendment. The jury was given an excessive force instruction based on a reasonableness standard–but not a separate deadly force instruction. The jury found for defendants. Acosta appeals, arguing . . .

The Ninth Circuit Court of Appeals today released an opinion in AHMED v. KEISLER, No. 04-76246, an administrative appeal. The panel consisted of Harry Pregerson and Johnnie B. Rawlinson, Circuit Judges, and Brian E. Sandoval, District Judge.

PREGERSON, Circuit Judge:
Petitioner Shaikh Ali Ahmed, a native of Bangladesh, appeals the Board of Immigration Appeals’ (”BIA”) decision affirming the Immigration Judge’s (”IJ”) denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture (”CAT”). We have jurisdiction under 8 U.S.C. § 1252, and we grant the petition for review. . . .

RAWLINSON, Circuit Judge, dissenting:
I respectfully dissent, as I cannot agree that the evidence in this case compels a finding of persecution. See Lolong v. Gonzales, 484 F.3d 1173, 1178 (9th Cir. 2007) (en banc) (requiring affirmance of the BIA unless “the evidence not only supports, but compels” reversal) (citation omitted). As we have repeatedly held, persecution is an “extreme concept,” characterized by “the infliction of suffering or harm upon those who differ . . . in a way regarded as offensive.” Kohli v. Gonzales, 473 F.3d 1061, 1070 (9th Cir. 2007) (citation omitted). The facts of this case simply do not compel us to fit Ahmed’s claims within that characterization. The majority opinion cites three bases supporting its holding that a conclusion of persecution is compelled. The first is the killing of Ahmed’s uncle and the beating of Ahmed and his brother. The second is the punishment inflicted on Ahmed as a result of his participation in unauthorized demonstrations. The third is the disappearance of Ahmed’s brother following an argument between the brother and members of an opposition group. I will explain why the majority’s reliance on these bases is misplaced. . . .

The Ninth Circuit Court of Appeals today released an opinion in FANTASYLAND VIDEO v. COUNTY OF SAN DIEGO, No. 05-56026, a civil rights appeal. The panel consisted of Barry G. Silverman, William A. Fletcher, and Richard R. Clifton, Circuit Judges.

SILVERMAN, Circuit Judge:
In June 2002, the San Diego County Board of Supervisors adopted a comprehensive zoning ordinance to govern the operation of adult entertainment businesses within its jurisdiction, which covers the unincorporated portions of the county. The ordinance restricts the hours in which such businesses can operate, requires the removal of doors on peep show booths, and limits adult entertainment establishment to areas of the county zoned for industrial use. San Diego County’s stated rationale for the ordinance was to combat negative secondary effects — crime, disorderly conduct, blight, noise, traffic, property value depreciation, and unsanitary behavior — that concentrate in and around adult businesses. The two adult entertainment establishments presently operating in the unincorporated portions of San Diego County filed suit. (The City of San Diego and the other incorporated municipalities in the County are not governed by this ordinance.) In this appeal, the operator of one of the establishments, Fantasyland Video, Inc., appeals the district court’s decision to uphold the ordinance’s hours restriction and openbooth requirement. In its briefing to us, Fantasyland also contended that the hours of operation restriction violated both the First Amendment and the California Constitution. After oral argument, we certified to the California Supreme Court the question of what the proper standard of review is under the California Constitution. Fantasyland Video, Inc. v. County of San Diego, No. 05-56026, 2007 WL 2244146, at *1 (9th Cir. 2007). The California Supreme Court responded that hoursof-operation ordinances for adult businesses are subject to intermediate scrutiny. Fantasyland Video, Inc. v. County of San Diego, No. 05-56026, S155408 (Cal. Sept. 25, 2007) (order denying request to decide a question of California law). In the meantime, Fantasyland advised us of its decision to withdraw its claim that the hours of operation restriction vio. . .