United States v Godinez-Perez

Godinez-Perez appealed his sentence. The panel vacated and remained. Using plain error review, the panel held the district court’s failure to make individualized factual findings about Godinez-Perez’s relevant conduct was error under circuit precedent, the failure had consequences as the evidence about the connection between Godinez-Perez and a storage unit where meth was discovered was no so one side as to require attributing all the meth discovered to Godinez-Perez and the resulting guidelines range was higher than if the meth was excluded from his drug weight calculation, and the government failed to rebut the presumption that incorrect guideline range seriously affected the fairness, integrity or public reputation of judicial proceedings. For reasons of judicial economy, the panel rejected a challenge to the overall drug weight  as the calculation was done correctly and independently adopted by the district court and whether or not the meth guidelines have empirical foundation, the distract court properly took into account the large quantities of meth involved here and the harm caused by those drugs and the panel adopted the reasoning of the 5th and 7th Circuits in holding lack of empirical foundation for meth guidelines is not a valid basis for downward variance as otherwise sentencings would become bogged down in a quest to find empirical sounding for each guideline when there is no duty for sentencing courts to do so.

American Wild Horse Preservation Campaign v Jewell

Campaign appealed the district court’s order upholding the decision to remove wild horses form public land in an area of Wyoming where public and private land are intermingled in a checkerboard fashion. The panel reversed. It held there was jurisdiction to hear the case even though it was remanded for additional procedural acts because it involved agency interpretation of a statute, the Wild Free-Roaming Horses and Burros Act, the agency here was not acting in an adjudicative capacity as it appeared as a defendant defending its own actions in this case instead defending a ruling made in an administrative action between other parties and the removal occurred before the district court order and the limited remand had no effect on the agency’s ability to rely on its interpretation of the Act in the future. The panel held that the case was not moot as review takes too long and the applicable agency has already announced removals for 2016 and thus the case fell into the capable of repetition yet evading review exception to mootness. The panel held that under Sections 3 and 4 of the Act, the agency here was required to make decisions about horses on public land, there is no ambiguity about what it must do, Chevron deference is thus not applicable and the decision to treat public land in the checkerboard ownership area violate the law as did the removal of horses. It finally held the removals also constituted de facto changes in the regulatory herd size without going through notice comment and thus were arbitrary and capricious. One judge added a concurrence noting Section 4’s requirement that wild horses be removed on demand of private landowners was driving the repeated return of issues in the checkerboard area tot eh court and called upon the agency to make heard size determinations only using public lands for the herd size calculations.