The Ninth Circuit Court of Appeals today released an opinion in USA v. GIBERSON, No. 07-10100, a criminal appeal. The panel consisted of J. Clifford Wallace and Mary M. Schroeder, Circuit Judges, and Roger T. Benitez, District Judge.

WALLACE, Senior Circuit Judge:
Giberson appeals from the district court’s denial of his motion to suppress evidence of child pornography found on his personal computer, which led to his conviction for receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2) and possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). He also appeals from his sentence, arguing the district court erred in sentencing him for both possession and receipt of child pornography. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1). We affirm his conviction, vacate his sentence, and remand. I. On February 24, 2003, a North Las Vegas Police Department officer stopped Giberson because his license plates had . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. HINKSON, No. 05-30303, a criminal appeal. The panel consisted of Procter Hug, Jr., M. Margaret McKeown, and William A. Fletcher, Circuit Judges.

W. FLETCHER, Circuit Judge:
Following a two-week trial in federal district court in Boise, Idaho, a jury convicted David Roland Hinkson of soliciting the murder of three federal officials. The government’s star witness supporting the conviction was Elven Joe Swisher. Wearing a Purple Heart lapel pin on the witness stand, Swisher testified that he had told Hinkson that he was a Korean War combat veteran and that Hinkson, impressed by Swisher’s military exploits, solicited him to kill the officials. The government maintained in its opening statement to the jury that Swisher was a Korean War combat veteran, and it maintained throughout the trial that Hinkson’s understanding of Swisher’s military exploits showed that he was serious in his solicitations of Swisher. The government now concedes that Swisher neither served in combat nor earned any personal military commendations, and that Swisher presented a forged military document in court and repeatedly lied under oath at trial about his military record. On appeal, Hinkson makes three arguments. First, he argues that the district court wrongly precluded him from introducing evidence showing that Swisher presented a forged document and lied on the stand. Second, he argues that the . . .

McKEOWN, Circuit Judge, dissenting:
There is no honor in lying about one’s military record. Indeed, Elven Joe Swisher joins a long line of luminaries accused of puffing and distorting their military service. But a witness discredited on a collateral issue–his military service–is not grounds to reverse a murder-for-hire conviction that was corroborated by independent evidence, particularly when defense counsel had full opportunity to crossexamine the witness on that subject. The question in this case is whether David Hinkson solicited Swisher to murder a federal judge and other public officers, not whether Swisher lied about his military service. The district court determined that information about Swisher’s military service was not “new”. . .

The Ninth Circuit Court of Appeals today released an order in WILLIAMS v. ALAMEDIA, No. 05-55604, a Pacific Territories case. The panel consisted of Kim McLane Wardlaw, Carlos T. Bea, and N. Randy Smith, Circuit Judges.

Upon receiving certification that Keith Lee Williams did not submit himself to California state authorities within the 60-day conditional period set forth in Williams v. Alameida, 511 F.3d 973, 974 (9th Cir. 2007), we now dismiss Williams’s appeal pursuant to the fugitive disentitlement doctrine. The mandate shall issue forthwith. IT IS SO ORDERED. 6089 . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. MARLER, No. 07-30181, a criminal appeal. The panel consisted of Andrew J. Kleinfeld, A. Wallace Tashima, and Richard C. Tallman, Circuit Judges.

TASHIMA, Circuit Judge:
Coby James Marler appeals the sentence imposed following his guilty plea to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). We must decide whether the fact that a defendant is on escape status at the time he commits another offense means that the escape and the subsequent offense are “related” for purposes of calculating the defendant’s criminal history score under United States Sentencing Guidelines Manual (”USSG”) § 4A1.2(a)(2), even though the two offenses are not related in any other way. The district court rejected Marler’s argument that his escape offense was related to his subsequent robbery conspiracy offense and sentenced Marler to 57 months’ imprisonment. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We agree with the district court and therefore affirm the sentence. BACKGROUND In April 2002, Marler suffered a state felony conviction in Montana for robbery and received a twelve-year sentence. On January 5, 2005, he escaped from custody. He was arrested on January 11, 2005, by officers of the Great Falls, Montana, Police Department for conspiring with Melissa Wilson to rob the casino where Wilson worked. The scheme was uncovered when Wilson’s father discovered bullet holes, shell casings, and a hand-drawn map of the casino in Wilson’s residence. Wilson told officers that she wanted to “get back at the casino” because she had been unjustly accused of stealing money from the casino, and no one had apologized to her about the situation. In April 2005, Marler pled guilty in state court in Deer Lodge, Montana, to a charge of escape and received a twoyear sentence. In November 2005, he was convicted following . . .

The Ninth Circuit Court of Appeals today released an opinion in BECK v. CITY OF UPLAND, No. 05-56901, a civil rights appeal. The panel consisted of Marsha S. Berzon and Sandra S. Ikuta, Circuit Judges, and James K. Singleton, District Judge.

BERZON, Circuit Judge:
Kenneth Beck and the City of Upland, California, engaged for months in an escalating series of disputes arising from Beck’s protests against a city contract granted to one of his competitors. In the incident that gave rise to this case, Beck was arrested six days after he confronted two city police officers over what he felt to be unfair treatment by the city. Beck’s arrest was pursuant to a warrant for two felony violations of a California statute prohibiting threats of violence made to deter police officers from performing their duties. The warrant, we conclude — as did the state courts considering the criminal charges — was entirely without probable cause. All charges against Beck were dismissed. Beck maintains that his “First and Fourth Amendment rights . . . were violated when he was arrested and imprisoned [without probable cause] for his protected speech and then forced to incur the cost of defending himself against the crim. . .

IKUTA, Circuit Judge, concurring in part, dissenting in part: In my view, the district court’s grant of summary judgment must be reversed for two reasons. First, the district court granted the defendants’ motion for summary judgment and dismissed Beck’s § 1983 cause of action based in part on its determination that the police officers had probable cause to arrest Beck. This determination was erroneous: the police officers lacked probable cause to arrest Beck as a matter of law. See In re Manuel G., 16 Cal. 4th 805, 814-15 (1997). Second, the district court determined that the officers were immune from liability under Smiddy v. Varney, 665 F.2d 261 (9th Cir. 1981), due to the prosecutor’s intervening action of filing a criminal charge against Beck. The Supreme Court’s recent opinion in Hartman v. Moore, 547 U.S. 250 (2006), casts doubt on the district court’s conclusion, at least with respect to Beck’s allegation that the police officers arrested him in retaliation for his exercise of First Amendment rights. Beck had attempted to rebut the Smiddy presumption (i.e., the presumption that a prosecutor’s filing of criminal charges constitutes an exercise of independent judgment that immu. . .

The Ninth Circuit Court of Appeals today released an opinion in GERLINGER v. AMAZON.COM, No. 05-17328, a federal appeal. The panel consisted of Mary M. Schroeder, Jay S. Bybee, Circuit Judges, and George H. Wu, District Judge.

SCHROEDER, Circuit Judge:
The plaintiff, Gary Gerlinger, like so many of us, purchases books and related items online. He filed this antitrust action to challenge a marketing agreement between Amazon.com Inc., an online bookseller, and Borders Group, Inc., a brickand-mortar bookseller. He appeals the district court’s dismissal for lack of standing. We agree with the district court that the plaintiff lacks standing because he did not show that he ever purchased an item for a higher price than he would have paid had there been no marketing agreement and thus has suffered no injury-in-fact. . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. FERNANDEZ, No. 06-50595, a criminal appeal. The panel consisted of Alfred T. Goodwin, Diarmuid F. O’Scannlain, and William A. Fletcher, Circuit Judges.

O’SCANNLAIN, Circuit Judge:
We must decide whether evidence obtained from an authorized wiretap investigation must be suppressed where the government continued to intercept a named target’s conversations despite his adoption of a new alias. I A At the heart of this case are six wiretap orders obtained by Drug Enforcement Agency investigators between May and October 2003 as part of an investigation of a drug trafficking conspiracy. At the outset of the investigation, the officers believed that the conspiracy was headed by an individual named Enrique Mendoza, and thus the first four wiretap applications submitted to the district court by the government named Mendoza, among others, as a target. While intercepting a conversation on August 8, 2003, the investigators for the first time learned that “Enrique Mendoza” was merely an alias used by their target suspect; they concluded that he adopted a new alias “Jorge Acosta,” based on their recognition of his voice. In their subsequent status reports and wiretap applications to the district court, the investigators gave detailed reports of intercepted calls involving “Acosta,” but they did not inform the district court of their belief that “Mendoza” and “Acosta” were the same person. Rather, the government’s subsequent wiretap applications . . .

The Ninth Circuit Court of Appeals today released an opinion in OUR CHILDREN 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; and failing to publish timely plans for future reviews. See CWA § 301(b), 33 U.S.C. § 1311(b); CWA § 301(d), 33 U.S.C. § 1311(d); CWA § 304(b), 33 U.S.C. § 1314(b); CWA § 304(m), 33 U.S.C. § 1314(m). . . .

The petition for panel rehearing is granted. The petition for rehearing en banc is denied as moot. . . .

The Ninth Circuit Court of Appeals today released an opinion in NATURAL RESOURCES v. EPA, No. 06-73217, an administrative appeal. The panel consisted of Jane R. Roth, Sidney R. Thomas, and Consuelo M. Callahan, Circuit Judges Opinion by Judge Roth; Dissent by Judge Callahan The Honorable Jane R. Roth, Senior United States Circuit Judge for the Third Circuit, sitting by designation. 5947

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5950 NRDC v. USEPA COUNSEL Sharon Buccino, Aaron Colangelo and Margaret Renner, Nat- ural Resources Defense Council, Washington, D.C., for the petitioner. David A. Carson, United States Department of Justice, Envi- ronmental & Natural Resources Division, Denver, Colorado, for the respondent. Thomas C. Jackson, Baker Botts L.L.P., Washington, D.C., for amicus curiae American Petroleum Institute.

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NRDC v. USEPA 5951 Janet Lynn McQuaid, Fulbright & Jaworski L.L.P., Austin, Texas, for amicus curiae Independent Petroleum Association of America. OPINION ROTH, Circuit Judge: The Natural Resources Defense Council (NRDC), along with the Oil and Gas Accountability Project (OGAP), Amigos Bravos, and Powder River Basin Resource Council (Powder River), have challenged aspects of the Environmental Protec- tion Agency’s (EPA) recent Clean Water Act (CWA) storm water discharge rule. This rule is entitled “Amendments to the National Pollutant Discharge Elimination System (NPDES) Regulations for Storm Water Discharges Associated With Oil and Gas Exploration, Production, Processing, or Treatment Operations or Transmission Facilities,” 71 Fed. Reg. 33,628 (Jun. 12, 2006) (codified at 40 C.F.R. § 122.26).1 The rule exempts from the permitting requirements of the CWA dis- charges of sediment from oil and gas construction activities that contribute to violations of water quality standards. Peti- tioners contend that the rule’s NPDES permitting requirement exemption for storm water discharges of sediment from oil and gas construction activities is unlawful under section 402(l)(2) of the CWA, 33 U.S.C. § 1342(l)(2), as amended by section 323 of the Energy Policy Act of 2005, 33 U.S.C.

ROTH, Circuit Judge: The Natural Resources Defense Council (NRDC), along with the Oil and Gas Accountability Project (OGAP), Amigos Bravos, and Powder River Basin Resource Council (Powder River), have challenged aspects of the Environmental Protection Agency’s (EPA) recent Clean Water Act (CWA) storm water discharge rule. This rule is entitled “Amendments to the National Pollutant Discharge Elimination System (NPDES) Regulations for Storm Water Discharges Associated With Oil and Gas Exploration, Production, Processing, or Treatment Operations or Transmission Facilities,” 71 Fed. Reg. 33,628 (Jun. 12, 2006) (codified at 40 C.F.R. § 122.26). The rule exempts from the permitting requirements of the CWA discharges of sediment from oil and gas construction activities that contribute to violations of water quality standards. Petitioners contend that the rule’s NPDES permitting requirement exemption for storm water discharges of sediment from oil and gas construction activities is unlawful under section 402(l)(2) of the CWA, 33 U.S.C. § 1342(l)(2), as amended by section 323 of the Energy Policy Act of 2005, 33 U.S.C. § 1362(24), and under the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A). As such, petitioners ask this Court to vacate EPA’s rule. For the reasons stated below, we will grant the petition for review, vacate the rule, and remand this matter to EPA for further proceedings in accordance with this opinion. . . .

CALLAHAN, Circuit Judge, dissenting:
I agree with the majority that at step one of the analysis under Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the plain language of section 402(l)(2) of the Clean Water Act (”section 402(l)(2)”), 33 U.S.C. § 1342(l)(2), as amended by the Energy Policy Act of 2005, does not unambiguously indicate whether Congress intended the exemption from National Pollutant Discharge Elimination System (”NPDES”) permitting to cover storm water discharges contaminated solely with sediment. I further agree that the scant legislative histories for section 402(l)(2) and the relevant portions of the Energy Policy Act do not elucidate Congress’s clear intent. Therefore, as the majority correctly concludes, this dispute must be resolved at step two of the Chevron analysis, with the question of whether the Environ. . .

The Ninth Circuit Court of Appeals today released an opinion in ANDOVAL LUNA v. MUKASEY, No. 04-74825, an administrative appeal. The panel consisted of Alfred T. Goodwin, Betty B. Fletcher, and N. Randy Smith, Circuit Judges.

PER CURIAM:
Daniel Sandoval-Luna petitions for review of his removal proceedings. He contends that the Immigration Judge’s denial of a continuance constitutes an abuse of discretion and violation of due process, and that the qualifying relative requirement for cancellation of removal, 8 U.S.C. § 1229b(b)(1)(D), . . .