Criminal Law
Tenth Circuit Blog 
Commentary and summaries of cases before the Denver-based 10th U.S. Circuit Court of Appeals.
Post Frequency: 1.5/day Last Entry: November 17, 2009 at 13:20:00 Recent Entries: 483
By Shari Allison
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Search Warrant Not Stale, Supported by Probable Cause
Posted on November 17, 2009US v. Potts, -- F.3d --, 2009 WL 3806681 (10th Cir. 11/16/09) - search warrant affidavit established probable cause to believe child porn would be found at Mr. Pott's residence. Witness who made report seemed credible and affidavit information was not stale by standards Tenth has endorsed in child porn cases...
Remand Regarding Voluntariness of Appeal Waiver Ordered
Posted on November 17, 2009US v. Livingston, -- F.3d --, 2009 WL 3806675 (10th Cir. 11/16/09) - remand for evidentiary hearing to determine whether Mr. Livingston voluntarily waived his right to appeal the denial of his motion to suppress evidence seized from a search of his motel room by entering into a stipulation of the underlying facts for purposes of his bench trial...
Venue, Suppression, Sentencing Claims Rejected
Posted on November 11, 2009U.S. v. Hamilton, 2009 WL 3647929 (11/5/09) (Published) - The 10th finds the evidence sufficient to establish venue in Kansas, which, in turn, depended on establishing the interdependence between the defendant's acts and those of a co-conspirator. The defendant was responsible for overt acts committed before he joined the conspiracy...
Civil Rights Wheelchair Bound Plaintiff Has Claims Reinstated
Posted on November 11, 2009Rhoads v. Miller, 2009 WL 3646078 (11/5/09) (unpub'd) - The 66-year-old plaintiff stated a claim for relief where he alleged an officer pulled him out of his wheelchair, tipped him over, kicked him in the ribs and stomped on his hands, resulting in dislocation of his elbow.
Unpublished Decisions
Posted on November 11, 2009U.S. v. Villareal, 2009 WL 3526561 (11/2/09) (unpub'd) - Pro se appellant's filing of IFP motion constituted a timely filing of a notice of appeal, although the motion did not state what judgment the appellant was appealing or to what court he was appealing...
I want to thank all the other research
Posted on October 30, 2009I want to thank all the other research attorneys for the FPD-NM office. This blog is a group effort; no one person could keep it up alone!
Unpublished Decisions
Posted on October 30, 2009U.S. v. Richard, 2009 WL 3367632 (10/21/09) (unpub'd) - An officer's opinion, based on his extensive experience, that individuals involved in drug activity typically keep evidence of that activity in their homes, is enough to establish probable cause to search a suspect's home...
Supervised Release Violation Based on Failure to Complete Program Upheld
Posted on October 30, 2009U.S. v. Metzener, 2009 WL 3366308 (10/21/09) (Published) - The district court reasonably interpreted the supervised release condition that the defendant "participate in a sex offender treatment program" to mean that the defendant had to substantially participate for the entire length of the program...
Tenth Addresses Issues of Waiver, Affirms Denial of Suppression Motion
Posted on October 30, 2009U.S. v. White, 2009 WL 3381528 (10/22/09) (Published) - One defendant signed an appeal waiver that waived any suppression arguments except those raised below. Troublingly, the other defendant waived arguments not raised below because Rule 12(b)(3)(C) says a party who fails to raise an issue regarding a motion to suppress waives that issue...
United States v. Griffith, ___
Posted on October 28, 2009United States v. Griffith, ___ F.3d ___ , 2009 WL 3429767 (10th Cir 2009) Defendant pleaded guilty to theft of government money arising out of her embezzlement of VA benefits as representative payee/fiduciary of the veteran. The Tenth held that the district court correctly calculated loss under the guidelines...
State Law Violation Not A Fourth Amendment Violation
Posted on October 27, 2009Bowling v. Rector, -- F.3d --, 2009 WL 3416342 (10th Cir. 10/26/09) - state law violation related to execution of a search warrant - in this case, exceeding authority of a special ranger under Oklahoma law - did not violate the Fourth Amendment and thus was not actionable under § 1983...
Claim of Ineffective Assistance Waives Attorney-Client Privilege
Posted on October 27, 2009US v. Pinson, -- F.3d --, 2009 WL 3417706 (10th Cir. 10/26/09) - denial of certificate of appealability on § 2255 claims, including claim that Mr. Pinson's Sixth Amendment rights were violated by district court order that his attorney produce an affidavit regarding claims of ineffective assistance of counsel...
Court Can Resentence Defendant Who Had 11(c)(1)(C) Agreement Based on Amended Guidelines
Posted on October 27, 2009US v. Cobb, -- F.3d --, 2009 WL 3418214 (10th Cir. 10/26/09) - reversal of district court ruling that it lacked authority under the amended crack guidelines to reduce Mr. Cobb's bottom of the guidelines sentence, which was imposed under 11(e)(1)(C). The sentence was "tied to the guidelines at every step...
US v. Evanson, -- F.3d --, 2009
Posted on October 20, 2009US v. Evanson, -- F.3d --, 2009 WL 3336094 (10th Cir. 10/19/09) - district court acted well within its broad latitude in disqualifying Mr. Evanson's chosen counsel because of a serious potential conflict of interest and unsworn witness problems. Counsel had been involved in creating two letters that Mr...
Search and Seizure Outline
Posted on October 14, 2009The excellent folks at the Federal Defender Office in Portland, Oregon, have updated their Search and Seizure Outline, which is available here.
Crack Amendment Does Not Apply to Supervised Release Violations
Posted on October 14, 2009United States v. Fontenot, ___ F.3d ___ , No. 08-1363 (10th Cir 2009) In another case of the (non-applicable) retroactive amendment reducing the crack guidelines by two levels, the 10th decides that the amendment does not apply to sentences upon revocation of supervised release...
Officer's Sniff Inside Car Was An Unconstitutional Search
Posted on October 05, 2009US v. Montes-Ramos, 2009 WL 3138866 (10th Cir. 2009) (unpublished): The Tenth Circuit reversed the district court's denial of the defendant's suppression motion. It was reasonable for the deputy to stop Mr. Ramos in the bootheel area when his temporary license plate was flapping and not legible as required by state law...
Witness Retaliation Conviction Affirmed
Posted on September 23, 2009United States v. Wardell, ___ F.3d ___ 2009 WL 2998939 (10th Cir 2009) Defendant convicted, along with co-defendants, of retaliation and conspiracy to retaliate against a witness (witness was beaten in a holding cell) who had earlier testified against defendant in tax fraud case...
Warrant Lacked PC, But Officers Searched in Good Faith; Improper Gang Testimony Harmless
Posted on September 22, 2009US v. Roach, -- F.3d --, 2009 WL 2989182 (10th Cir. 9/21/09) - search warrant affidavit failed to supply probable cause for search because it relied on outdated information regarding Mr. Roach's gang connection and failed to provide a nexus between him and the address searched...
Career Offender Guideline Amendment Not Retroactive
Posted on September 18, 2009US v. Bronson, No. 09-3152, 2009 WL 2965199 (10th Cir. 9/17/09) (unpublished): Amendment 709 to the United States Sentencing Guidelines, which amended the career offender guidelines, does not apply retroactively and therefore cannot be a basis for relief under 18 U...
Entrapment Defense Fails
Posted on September 18, 2009US v. Fulton, No. 08-3261, 2009 WL 2952145 (10th Cir. 9/16/09) (unpublished): Mr. Fulton was enticed by a former prison-mate turned CI into participating in drug deals. Mr. Fulton raised an entrapment defense. The court allowed rebuttal evidence that the CI had seen Mr...
No Double-Counting in Assessing Enhancements in Stolen Firearms Case
Posted on September 18, 2009US v. Blackbourn, No. 08-5165,2009 WL 2952146 (10th Cir. 9/16/09) (unpublished): when determining the sentence for possession of a stolen firearm, the trial court did not err in enhancing the defendant?s base offense level for the fact the firearm was stolen and for possessing the firearm in connection with another felony...
Capital Petitioner's Claim that Attorney Failed to Investigate and Proffer Mitigating Evidence Rejected
Posted on September 18, 2009Wackerly v. Workman, ___ F.3d ___, 2009 WL 2940045 (10th Cir. 2009).Upholding the death sentence for a typical, impersonal, rural Oklahoma murder, the 10th holds that in spite of counsel?s failure to investigate and present certain mitigating evidence during death penalty phase of state trial, there was no ?reasonable probability? that the evidence would have effected the outcome by changing the position of at least one juror (Okla...
Regulaton Barring Reopening of Immigration Proceedings for Previously Romoved Persons is Valid
Posted on September 18, 2009Rosillo-Puga v. Holder, ___ F.3d ___, 2009 WL 2929828 (10th Cir. 2009).Regulation, 8 CFR 1003.23(b)(1), barring reopening of deportation on person previously removed, is valid, and deprives immigration judge (IJ)of jurisdiction to rule on motion to reopen...
Capital Appellate Attorney Positions
Posted on September 18, 2009The Federal Public Defender for the District of Colorado has posted an announcement for experienced appellate attorneys to handle appeals in the Tenth Circuit. Two positions are available.According to the announcement, the bulk of the caseload would be capital habeas proceedings (primarily section 2254) from the district courts in the Circuit...
Shady Pharmacist's Conviction Affirmed; Flunky's Conviction Reversed
Posted on September 11, 2009US v. Lovern, 2009 WL 2871538 (10th Cir. Sept. 9, 2009) (published):Two employees of a shady internet pharmacy, Red Mesa, went to trial and were convicted of charges relating to a conspiracy to dispense drugs in violation of the Controlled Substances Act after the principal owner-operator of the pharmacy pled guilty...
Suppression Properly Denied
Posted on September 11, 2009US v. Harris, 2009 WL 2873178 (10th Cir. Sept. 9/2009) (unpublished): Warrant to search for drugs was sufficient to support probable cause; out-of-date information was sufficiently updated with details of recent complaints of drug activity at the house and controlled buys, including one within previous 48 hours...
Capital Habeas Representation Meetings
Posted on September 11, 2009According to an announcement from SueAnn Fitch, CJA Supervising Attorney for the Tenth Circuit, in late October mid-day meetings will be held in Oklahoma City (11:30a-, Petroleum Club, 100 N Broadway , 35th Floor, Tuesday, 10/27/09)and Tulsa (11:30a-, Page Belcher Courthouse, Jury Assembly Lounge, 333 W...
New Tenth Circuit Rules Proposed; Public Comments Solicited
Posted on September 09, 2009The Tenth Circuit has posted proposed local rules changes for 2010. The comment period for review of those rules runs from August 24, 2009 until October 20, 2009. A memo summarizing the proposed changes is available here. A redlined draft of the proposed changed rules for the both the Federal Rules of Appellate Procedure and local rules is available here.
Minimal Prison Library Does Not Justify Equitable Tolling
Posted on September 04, 2009Garcia v. Hatch, 2009 WL 2668905 (8/28/09) (unpub'd) - The New Mexico Correction Department's "Legal Access Program" that closed all prison law libraries, offers a few books and form packets and provides staff to help fill out the forms, was not inadequate enough to justify applying equitable tolling to excuse filing the 2254 petition outside of the statute of limitations.
Tenth Applies De Novo Review--Not AEDPA Standard--and Remands Two Capital Habeas Cases
Posted on September 04, 2009Wilson v. Workman, 2009 WL 2623336 (8/27/09) (en banc) - An important and good en banc decision in the habeas world, although perhaps a trivial decision in your world. By a 7-5 vote [McConnell writing for the majority, Tacha, Briscoe, O'Brien, Tymkovich and Gorsuch dissenting], the 10th holds that de novo review, not the stringent AEDPA standard, applies to state court decisions that do not consider evidence the federal courts consider in light of the correct constitutional standard...
Upward Variance for Embezzling Tribal Official Affirmed
Posted on September 04, 2009US v. Bullcoming, No. 09-6010, 9/3/09 - Defendant, a tribal official entrusted with handling his district?s share of gaming revenue, pled guilty to one count of embezzlement in exchange for dismissal of other counts and agreed to substantial restitution...
PWID Crack Conviction Does Not Lead to Permanent Bar on Receipt of Fed Benefits
Posted on September 04, 2009US v. Jacobs, No. 09-5021, 9/2/09 - Agreeing with the parties, the 10th holds that possession with intent to distribute cocaine base in not an ?offense consisting of the distribution of controlled substances? within the meaning of 21 USC § 862(a), which permanently bars a person from receiving federal benefits upon a third conviction for such offense.
Fraud Defendant Improperly Denied Good Faith Defense Instruction
Posted on September 04, 2009US v. Bowling, No. 08-6184, 9/3/09 - Defendant ?cow farmer? was indicted for bank fraud for selling encumbered cattle under other people?s names and for not using proceeds from cattle sales to pay back his loan. At trial, he submitted a good faith defense instruction, based on evidence that his conduct was really just business as usual between him and the bank going back ten years...
Presence of Drugs Justifies Handcuffing Passenger
Posted on September 02, 2009United States v. Albert, ___ F.3d ___, 2009 WL 2757038 (10th Cir. 2009).Handcuffing of defendant passenger in vehicle stopped for illegal lane change did not amount to an arrest. The COA holds that in appropriate circumstances handcuffing is allowed for officer safety during a Terry investigation, if a reasonable person under the facts would determine the action appropriate...
Remand for Capital Habeas Petitioner
Posted on September 01, 2009Fairchild v. Workman, -- F.3d --, 2009 WL 2710320 (10th Cir. 8/31/09) - remand of Okla death penalty case for district court to determine whether to grant stay to permit Mr. Fairchild to return to state court to exhaust his unexhausted ineffective assistance of counsel claim...
Free materials from a premiere expert on the interplay of immigration and criminal law
Posted on August 26, 2009Norton Tooby, a leading authority on criminal and immigration law, has a number of free materials on his website, which should be checked out. These include his Deportation Grounds Checklist, and Tooby's Guide to Criminal Immigration Law, a 200 or so page summary of his 2000-page guide Criminal Defense of Immigrants, which I use frequently...
Unpublished Decisions; One Results in Remand on Fourth Amendment Civil Rights Claim
Posted on August 25, 2009Edge v. Payne, August 20, 2009, No. 08-7122: Plaintiff filed suit against a dead judge, another judge, the county clerk, court reporter, court secretary, DA, a bunch of ADAs, the sheriff, undersheriff, various deputy sheriffs, several ATF agents, an unnamed Highway Patrol officer, and 25 "DOES" for good measure, in short, everyone remotely involved in his contentious divorce and subsequent criminal proceedings when he was convicted of possessing a firearm while under a protective order...
Evidence of Prior Assaults Improperly Admitted In Assault Case Where Self-Defense Claimed
Posted on August 25, 2009US v. Commanche, -- F.3d --, 2009 WL 2581737 (10th Cir. 8/24/09) - defense victory! In assault resulting in serious bodily injury case, the district court improperly admitted under Fed.R.Evid. 404(b) bad acts evidence against the defendant. Self defense was the defense...
State Petitioner Gets Hearing on Whether He Asked His Lawyer to Appeal
Posted on August 19, 2009Clayton v. Ward, 2009 WL 2462362 (8/13/09) (unpub'd) - Remand for an evidentiary hearing on whether the petitioner asked his lawyer to appeal. The d. ct. was wrong to reject the claim on the ground that the petitioner did not have any meritorious appeal issues...
OK for Court to Reject Plea Agreement
Posted on August 19, 2009U.S. v. Lechner, 2009 WL 2480772 (8/14/09) (unpub'd) - The d. ct. did not abuse its discretion when it rejected a plea agreement due to the defendant's failure to admit her intent to assault the victim. The court properly understood the defendant to be refusing to admit all the essential elements...
Useful Case for Excluding Opposing Expert
Posted on August 19, 2009Milne v. USA Cycling, Inc., 2009 WL 2430642 (8/10/09) (Published) - If you want to keep an expert out, this case has some somewhat useful language requiring the expert's reasoning and methodology to be reliable.
Life Sentence for Drug Defendant Affirmed; Speedy Trial Act, Other Arguments Rejected
Posted on August 19, 2009U.S. v. Williams, 2009 WL 2462351 (8/13/09) (Published) - The d. ct. did not abuse its discretion when, upon remand from the 10th due to a Speedy Trial Act violation, it dismissed the indictment without prejudice, rather than with prejudice. The seriousness of the offense---possession of cocaine with the intent to distribute that carried a life sentence in light of the defendant's priors---and the lack of: prejudice to the defendant [the 5 years to challenge his priors had already passed before the delay]; evidence of government intentional delay or pattern of neglect; and the defendant's assertions of his speedy trial rights until after the time limit had passed, justified a without-prejudice dismissal...
Hearing Ordered for Capital Habeas Petitioner Troy Davis on Innocence Claim
Posted on August 19, 2009In Re Davis, 2009 WL 2486475 (8/17/09) - An order that was unusual for two reasons: (1) it was issued in the summer; and (2) it dealt with an original habeas filing, which for almost 50 years the tens of thousands of such petitions have always resulted in summary denials...
United States v. Burgess, ___ F.3d
Posted on August 12, 2009United States v. Burgess, ___ F.3d ___, 2009 WL 2436674 (10th Cir. 2009).Known Hell?s Angels? motor home stopped for expired plate on trailer. A drug dog alerts, cops smell pot, defendant (D) says can?t search--get a warrant. Cop enters anyway and finds pot and cocaine, sees a laptop, D says pot is his...
Civil Rights Case Dismissed Against Officer Who Killed Motorist While Chasing Gas Thief
Posted on August 11, 2009Green v. Post, 2009 WL 2422762 (8/7/09) (Published) - The 10th explores the parameters of substantive due process, which requires shocking of the conscience to allow relief, and accidents caused by pursuing officers. In this case, the officer, while trying to catch up to someone who had stolen $ 30 worth of gas, sped 20 mph above the speed limit through an intersection, without having engaged his emergency equipment, when the light was yellow, and ran into someone turning left at that intersection, killing the driver...
"Hunch" That Civil Rights Plaintiff Had More Info Did Not Provide Probable Cause to Arrest
Posted on August 11, 2009Manzanares v. Higdon, -- F.3d --, #07-2156 (10th Cir. 8/10/09) - Albuquerque police officers went to Manzanares' home to get info re: an acquaintance of his that they suspected had committed a reported rape. Manzanares invited them in, gave them some info, then asked them to go...
Treaty Hunting Rights Not A Defense to Felon-in-Possession Charge
Posted on August 04, 2009US v. Fox, No. 08-2190, 7/29/09 - Defendant, a Navajo with prior felony convictions, was found in possession of a shotgun and rifle on the reservation. He claimed that the treaty establishing the reservation conferred on him the right to hunt there with firearms, and that 18 USC § 922(g)(1), which generally prohibits firearm possession by convicted felons, did not apply to him because there was no clear evidence that Congress had actually considered the effect the statute would have on his treaty right...
6-Month-Old Info in Warrant "Refreshed" by Trash Contents
Posted on August 04, 2009US v. Timley, No. 08-3160, 7/30/09 - Denial of motion to suppress evidence seized during execution of a search warrant affirmed. Defendant sold small amounts of pot to a snitch. Six months later, cop does a trash pull from the can in the alley behind defendant's house and finds pot residue and paraphernalia...
Certain Aliens Who Enter Without Inspection Are Ineligible for Status Adjustment
Posted on August 04, 2009Herrera-Castillo v. Holder, 2009 WL 2217519 (7/27/09) (Published) - An alien who has entered without inspection and remained in the U.S. for more than a year is ineligible for adjustment of status, absent a waiver, such as a hardship waiver. The 10th interprets the relevant statutes which appear to make such an alien both eligible and ineligible to mean that those who are specifically referenced as inadmissible are ineligible but others might still be eligible...
Malicious Prosecution Suit Reinstated
Posted on August 04, 2009Miller v. Spiers, 2009 WL 2219256 (7/27/09) (unpub'd) - In a § 1983 case, the 10th holds the allegations were sufficient so far to support a malicious prosecution claim. The plaintiff can proceed on such a claim on a charge-by-charge basis, even though he pleaded guilty to attempted evidence tampering charges in the relevant indictment...
Skipping Formal Revocation Hearing OK'd
Posted on August 04, 2009U.S. v. Shidler, 2009 WL 2231669 (7/28/09) (unpub'd) - It was okay to skip a formal revocation hearing, even though the defendant himself never admitted the revocation petition's allegations, because the totality of the circumstances indicated the defendant admitted guilt...
Parole Agreement Authorized Search of Parolee's Car Even After Arrest of Parolee for Violation; Statement Voluntary Despite Shackles
Posted on August 04, 2009U.S. v. Cordova, 2009 WL 2351618 (7/31/09) (unpub'd) - The defendant's parole agreement remained in effect after he was arrested for a parole violation, thus justifying a parole search of his car based upon reasonable suspicion. Reasonable suspicion was established by double hearsay that he was using drugs plus a positive test for cocaine use...
District Court Did Not Abuse Discretion in Limiting Cross Examination of Officer
Posted on August 04, 2009U.S. v. Beltran-Garcia, 2009 WL 2231667 (7/28/09) (unpub'd) - Cross-examination of an officer, whose credibility was important, concerning an unrelated prior misrepresentation of the extent of consent given to search a house and the omission in his report on the incident of material facts was admissible under F...
Former Qwest CEO Receives New Sentencing for Insider Trading Conviction
Posted on August 04, 2009U.S. v. Nacchio, 2009 WL 2343716 (7/31/09) (Published) - Once again the 10th spends more time and energy on the former Qwest CEO than on all of our clients combined. 59 pages this time. He prevails on guideline and forfeiture questions and in the process creates law that could be relevant to our lowly clients...
PC to Arrest Not Supported by "Inherently Innocuous Behavior"
Posted on August 04, 2009Sherhouse v. Ratchner, 2009 WL 2343711 (7/31/09) (Published) - In a civil rights case, the 10th holds one of the plaintiffs was entitled to judgment as a matter of law. The Albuquerque officers did not have probable cause to arrest a Hispanic teenage girl who was seen near the neighborhood of a robbery where the culprit was supposed to be a black female...
Conviction of Both Drug Conspiracy and CCE Counts Violate Double Jeopardy; Other Arguments Rejected
Posted on July 31, 2009US v. Hutchinson et al, -- F.3d --, 2009 WL 2217521 (10th Cir. 7/27/09) - appeal of crack convictions on retrial, after first jury hung and a mistrial was declared, of several defendants who ran a curbside crack operation out of a Denver motel. Until a drug-related murder messed things up, defendants exhibited a powerful, if "peculiar," community spirit; they ran a Mother's Day "crack scramble" involving crack tossed from a balcony onto a parking lot for moms to grab, as well as an Easter egg hunt with crack rocks substituted for eggs...
Pre-Gant Search Upheld Under Good Faith Exception
Posted on July 31, 2009United States v. McCane, ___ F.3d ___, 2009 WL 2231658 (10th Cir. 2009).Following Gant, the Court determined that the search was not valid as incident to the defendant?s lawful arrest (Defendant arrested for a traffic violation and cuffed and placed in patrol car, the car was then searched and a gun found) but upheld the search under the good faith exception to the exclusionary rule per Herring...
No Qualified Immunity for Defendants Who Subjected Plaintiff to Strip Search
Posted on July 22, 2009Myers v. James, 2009 WL 2050726 (7/16/09) (unpub'd) - The 10th affirms refusal to dismiss a § 1983 action on qualified immunity grounds. It was clearly established that requiring a person arrested for public intoxication to take off her clothes, take a shower and be visually inspected [not cavity searched] by officer violated the 4th Amendment...
Alien Not Denied Due Process Despite Gaps in Appellate Record
Posted on July 22, 2009Witjaksono v. Holder, 2009 WL 2096220 (7/17/09) (Published) - The alien was not denied his right to a reasonably complete appellate record, even though in the 57 pages of transcript of the removal hearing there were 189 notations of indiscernible. The indiscernibles were almost all during the alien's testimony...
No Abuse of Discretion in Admitting Evidence of Defendant's Abuse of Children in Parental Kidnapping Case
Posted on July 22, 2009U.S. v. Rizvanovic, 2009 WL 2105231 (7/17/09) (Published) - Where the defendant was charged with international parental kidnaping, it was not an abuse of discretion to allow the government to cross and present evidence regarding the defendant's alleged physical abuse of the children...
Church Was an Arson "Victim" under 18 U.S.C. § 1153(a
Posted on July 22, 2009US v. Jane Doe, a female juvenile, and John Doe, a male juvenile, Nos. 08-1137 and 08-1184 (10th Cir. 7/20/09) - arson convictions affirmed. The arson victim, the Ute Mountain Presbyterian Church, constituted a "person" under 18 U.S.C. § 1153(a). The statutory context does not require a "person" to be a living individual...
Fingerprint Analysis Testimony Admissible
Posted on July 22, 2009US v. Baines, -- F.3d --, 2009 WL 2139117 (10th Cir. 7/20/09) - The district court did not abuse its discretion in admitting expert fingerprint analysis testimony. Defense argued gov't did not establish reliability of method for matching latent print to defendant's known print...
Innocence Project Report Focuses on Eyewitness Identification
Posted on July 22, 2009A new report from the Innocence Project of the Benjamin Cardozo School of Law, Yeshiva University, focuses on eyewitness identifications and lineups. Called "Reevaluating Lineups: Why Witnesses Make Mistakes and How to Reduce the Chance of a Misidentification," describes common problems with lineups and suggests changes to prevent erroneous identifications that result in the convictions of innocent persons...
Not Plain Error to Determine CA Kidnapping, Robbery Convictions were Crimes of Violence
Posted on July 22, 2009US v. Juarez-Galvan, -- F.3d --, 2009 WL 2137396 (10th Cir. 7/20/09) - In a reentry case, it was not plain error to impose the 16-level crime of violence enhancement for California convictions for kidnapping and robbery. Gov't conceded neither offense had an element of use of physical force...
Unpublished Decisions
Posted on July 17, 2009U.S. v. Jimenez, 2009 WL 1927370 (7/7/09) (unpub'd) - The contention that officers were not lawfully in a particular place from which they saw incriminating stuff in plain view could not be raised by the defendant who did not have a legitimate expectation of privacy in the place the officers invaded...
Circuit Snippets
Posted on July 17, 2009Defendants have a right to cross-examine analysts who conduct and write reports on forensic laboratory tests, the Supreme Court held. The sworn reports are "clearly testimonial." Melendez-Diaz v. Mass., No. 07-591 (U.S. 6/25/09)A school administrator violated a 13-year-old girl's fourth amendment rights when he ordered that she be strip searched on suspicion that she possessed ibuprofen, but the asst...
No Denial of Defendant's Right to Represent Himself in Tax Case
Posted on July 14, 2009US v. Miles, -- F.3d --, 2009 WL 2005250 (10th Cir. 7/13/09) - Mr. Miles was not denied his right to self-representation between the time the jury convicted him on nine counts of willfully filing false income-tax returns and his sentencing. He had represented himself at trial, then asked for his standby counsel to speak for him re: release after he was convicted...
COA Approves Sentencing Under Manslaughter GL for Felon in Possession
Posted on July 14, 2009US v. Cherry, -- F.3d --, 2009 WL 2005235 (10th Cir. 7/13/09) - in sentencing Mr. Cherry for felon in possession of a firearm, the district court properly analogized his conduct in connection with his possession of a firearm to voluntary manslaughter under USSG § 2K2...
Court Rejects Juror, Misconduct and IAC Claims to Affirm Death Penalty
Posted on July 10, 2009Matthews v. Workman, ___F.3d ___, 2009 WL 1927051 (10th Cir. 2009).Death penalty upheld in habeas corpus petition. (1) COA applies Brecht ?substantial and injurious effect? test to juror?s improper communication with excused alternate after guilt phase, previous to penalty phase, where alternate said newspaper account of crime supported the guilty verdict, and juror told other jurors during penalty phase that she had spoken with alternate, though they did not recall any mention of newspaper account...
Mid-trial Disclosure of Brady Material May Violate Due Process
Posted on July 10, 2009United States v. Burke, ___ F.3d ___, 2009 WL 1926850 (10th Cir. 2009)Clarifying older case law that might have implied differently, the Court holds that belated, mid-trial disclosure of impeachment or exculpatory information per Brady violates due process, if it is shown that an earlier disclosure would have created a reasonable doubt of guilt...
Petitioner Not Responsible for Counsel's Delays; Petition Should Not Have Been Dismissed
Posted on July 10, 2009Davis v. Miller, ___F.3d ___, 2009 WL 1926915 (10th Cir. 2009)District court abused its discretion in dismissing with prejudice the Sec. 2254 habeas corpus petition under Rule 41 for failure to comply with court orders: Petitioner?s attorney asked for numerous extensions of time to amend the petition and missed them all...
Petitioner Receives Relief Because Trial Counsel Recommended Rejecting Plea Offer
Posted on July 10, 2009Williams v. Jones, No. 06-7103, 7/8/09 - Defendant was charged in Oklahoma state court with first degree murder and was offered plea to second degree and a ten year sentence. Believing defendant to be innocent, his lawyer told him to reject the offer or get a new lawyer...
"Reasonableness" Standard Adopted for FOIA Requests
Posted on July 06, 2009Trentadue v. FBI, 2009 WL 1886696 (10th Cir. July 2, 2009) (published)In this case, in which Mr. Trentadue sought records from the FBI under the Freedom of Information Act, the Tenth Circuit adopts the standard of other circuits that FOIA requires only that an agency make a "reasonable" search of its records to comply with a FOIA demand.
Tenth Affirms Denial of Hearing on Issue of Juror Bias
Posted on July 02, 2009United States v. Brooks, ___F.3d ___, 2009 WL 1862529 (10th Cir. 2009)Tenth Circuit upholds denial of evidentiary hearing on issue of juror bias, and finds no plain error at Defendant?s initial appearance for alleged failure to advise him of all his rights...
Defendant Wins on Brady Issues; Gov't Failed to Disclose Information About Confidential Informant
Posted on July 02, 2009United States v. Torres, ___F.3d ___, 2009 WL 1862528 (10th Cir. 2009)Addressing Brady and evidentiary issues, the COA hands a victory to the Defendant. The opinion bears careful reading. (Sorry for the length?this is a rare fact-bound defense victory)...
Officer's Confusion About What Law Was Violated Did Not Render Stop Unconstitutional
Posted on June 30, 2009US v. Eckhart, -- F.3d --, 2009 WL 1841695 (10th Cir. 6/29/09) - affirmance of denial of motion to suppress. Stop of California vehicle in Utah was justified because it was in violation of Utah law requiring license plate to be clearly visible. Not a problem that the officer was confused about what law was violated since there was an actual violation...
U.S. v. Robertson, No. 08-3126
Posted on June 29, 2009U.S. v. Robertson, No. 08-3126 (6/19/09) (Published) - Affirmance of an upward departure with a couple of preservation lessons. Departures are alive and well in the 10th Circuit. The 10th applies the same standard of review to departures it applied pre-Booker...
Gang Affiliation Evidence Supported Denial of Minor Role Reduction
Posted on June 11, 2009US v. Vo, No. 08-8062 (10th Cir. June 10, 2009) (unpublished): district court did not err in denying a reduction for minor role participant where there was evidence Mr. Vo was an active member of a gang known to traffic in narcotics and where all but one of the co-defendants was also associated with the gang.
Attempted Escape Not a COV
Posted on June 11, 2009US v. Harris, No, 08-1090 (10th Cir. June 10, 2009) (unpublished): Defendant gets a remand for resentencing in light of Chambers v. US, 129 S.Ct. 687 (2009) because the district court improperly concluded that his prior convictions for attempted escape under Colorado law were crimes of violence for USSG 4B1...
Convictions for Embezzling Emergency Tribal Funds Affirmed
Posted on June 11, 2009US v. Oldbear, 2009 WL 1608334, No. 08-6095 (10th Cir. June 10, 2009) (published):Court affirms the defendant's conviction on five counts of embezzling tribal funds, contrary to 18 U.S.C. 1163, and one count of making a false statement, in violation of 18 USC 1001(a)(2)...
Co-Conspirator's Guns Supported 2-level Enhancement
Posted on June 09, 2009US v. Moreira, 2009 WL 1579799 (10th Cir. 6/8/09) (unpub) - 2-level upward adjustment upheld for possession of a firearm in a meth case with a 151-month sentence. The guns in this case were possessed by a co-conspirator. It was held to be reasonably foreseeable to Mr...
Defendant Lacked Standing to Contest Search of Camera with Incriminating Photo
Posted on June 09, 2009U.S. v. Moya-Breton, 2009 WL 1524900 (6/2/09) (unpub'd) - The defendant did not have standing to contest the seizure of a photo of him with a handgun and a large roll of cash, even though he told his co-conspirator to destroy it. He did not have a reasonable expectation of privacy in the searched camera that took the photo.
Denial of Rule 33 Motion Began Running of 2255 Statute of Limitations
Posted on June 09, 2009U.S. v. Carvajal-Moreno, 2009 WL 1566799 (6/5/09) (unpub'd) - A reversal on a 2255 statute of limitations determination. The statute of limitations clock did not start until 90 days after the 10th affirmed the d. ct.'s denial of the movant's Rule 33 motion following a prior 10th remand...
Good Faith Saves Search
Posted on June 09, 2009U.S. v. Quezada-Enriquez, 2009 WL 1565196 (6/5/09) (Published) - Another published case skipping the question whether the affidavit for search warrant established probable cause and moving on to finding the good faith exception applies. The 10th notes that, when a confidential informant ("CI") is involved, whether there is probable cause depends on the CI's veracity, reliability and basis of knowledge...
U.S. v. Meacham, 2009 WL 1492548
Posted on June 02, 2009U.S. v. Meacham, 2009 WL 1492548 (5/29/09) (Published) - The 10th could decide whether the d. ct. abused its discretion in refusing to hold an evidentiary hearing regarding a motion for new trial based on a claim of ineffective assistance of counsel, even though ordinarily the 10th prefers to leave ineffective assistance claims to collateral proceedings...
Circuit Snippets
Posted on May 29, 2009Applying the gross disproportionality test of Solem v. Helm and Harmelin v. Michigan, the California Court of Appeal, Fourth District, held that a sentence of LWOP for a 14-year-old convicted of "no-injury" kidnapping violated both the 8th Amendment and the comparable provision of the California constitution...
924(c) Conviction Based on Gun Under Pillow in Room With Pot Affirmed
Posted on May 29, 2009US v. Garza, No. 08-5040, 5/28/09 (published)- Conviction for possession of a firearm in furtherance of a drug-trafficking crime affirmed. No abuse of discretion in admitting cop?s expert testimony about how gun, found under a pillow in defendant?s bedroom along with pot and loaded with hollow-point bullets, related to defendant?s drug trafficking; no plain error in admission of this testimony, to the extent that it might have constituted an opinion as to defendant?s intent, because such error, if any, did not seriously affect the fairness, integrity, or public reputation of judicial proceedings; and evidence was sufficient to support conviction.
Sheriff Who Acted Based on Overbroad Warrant Denied Qualified Immunity in Civil Rights Case
Posted on May 29, 2009Cassidy v. Goering, No. 07-1092, 5/28/09 (published) - Denial of qualified immunity to defendant sheriff who supervised search pursuant to invalid warrant affirmed by divided court. The opinions are great primers on the severability concept.Plaintiff farmer who allowed another farmer to store grain at plaintiff?s farm got into an altercation with the other farmer over failure to pay for the storage...
Late Restitution Order Still Valid; $250/month Not Unreasonable
Posted on May 29, 2009US v. Dolan, No. 08-2104, 5/27/09 (published)- Restitution order entered more than 90 days after sentencing, which ordered defendant to pay $250/month against total restitution of over $100,000, affirmed. Defendant severely beat a hitchhiker on the Mescalero Reservation in New Mexico and was convicted of assault resulting in serious bodily injury...
Fraud Victims Did Not Include Persons Who Were Fully Reimbursed
Posted on May 29, 2009US v. Orr, No. 08-7070, 5/27/09 (unpublished)- Sentence in credit card fraud case vacated and remanded because the number of victims, upon which a two-level enhancement was based, should not have included individuals who were fully reimbursed by their banks, and also because government failed to prove that loss amount was properly calculated.
Claim Reentry Defendant Was Incompetent for Trial Rejected
Posted on May 29, 2009US v. Lopez-Hodgson, No. 08-2106, 5/28/09 (unpublished)- The 10th rejects a challenge to defendant?s competency to stand trial and upholds his conviction for reentry after conviction for an aggravated felony. The district court properly admitted the testimony of a forensic psychologist from the US Medical Center for Federal Prisoners, and did not clearly err in agreeing with his opinion that defendant was competent to stand trial, despite contrary opinion from two defense experts.
No Relief for Crack Defendant Who Received Mandatory Minimum
Posted on May 22, 2009US v. Dennis, No. 08-6197, 5/21/09 Unpublished - Another crack sentencing reduction denial affirmed. The problem with this one was that defendant got a mandatory minimum 20 years, and was therefore not sentenced pursuant to a guidelines range that was subsequently lowered.
Odd Story, Different Name on Rental Agreement, Nervousness Equal Reasonable Suspicion
Posted on May 22, 2009US v. Duenas, No. 08-3108, 5/21/09 Unpublished - Denial of motion to suppress evidence obtained after a routine traffic stop affirmed. After cop gave defendant warning ticket for speeding, he asked for consent to search. Defendant refused, but so what? Cop already had reasonable suspicion based on typical stuff - rental agreement in different name, odd story, extreme nervousness, etc.
Judge May Not Appreciated Full Scope of Sentencing Discretion
Posted on May 22, 2009US v. Leyva-Ortiz, No. 07-2229, 5/21/09 Unpublished - Defendant gets a remand for resentencing in this reentry case because the district judge might not have appreciated that he had the discretion to vary downward based on disagreement with the policies underlying the reentry guidelines, given that the sentencing occurred prior to Gall and Kimbrough, the judge presumed the guidelines range was reasonable (although this was not plain error), and there was nothing in the record to indicate that he was aware of his ability to vary downward.
Circuit Snippets
Posted on May 20, 2009An indicted employee had a right to discover the results of an internal company investigation that the company had turned over to federal investigators (in the hope it would avoid indictment itself), even though the company had reserved its privilege in the materials when giving them to the government...
Random Monitoring of Computer Use Too Broad a Supervised Release Condition
Posted on May 20, 2009United States v. Matteson, No. 08-2176 (10th Cir. 2009)(unpublished)Congratulations to defense counsel for a sentencing remand resulting from great teasing out of good stuff on appeal which prompted a government concession. As a condition of supervised release for Defendant?s bank fraud and stolen mail convictions (the offenses involved Defendant making counterfeit checks on his computer), the district court imposed heavy-duty random monitoring of D?s computer use...
U.S. v. Tang, 2009 WL 1353755 (5/15/09)
Posted on May 19, 2009U.S. v. Tang, 2009 WL 1353755 (5/15/09) (unpub'd) - Regardless of whether the defendant violated Utah's law to keep in the lane as much as practicably possible, the defendant's driving for 7 to 8 seconds for 200 to 300 yards over the line on a curving mountain road gave rise to reasonable suspicion the driver was sleepy or impaired justifying the stop...
Federal Public Defender for the District of Kansas Named
Posted on May 15, 2009According to a press release from the Tenth Circuit Court of Appeals, Cyd Gilman has been appointed to be the Federal Public Defender for the District of Kansas.Ms. Gilman, a Kansas native, earned her undergraduate degree at the University of Kansas and her law degree at Washburn University...
ECF to be Mandatory as of June 1
Posted on May 13, 2009The Court will begin requiring filing of most documents using the appellate ECF system beginning June 1. Information, including a User's Manual and on-line video tutorials, is available here on the Court's website.
Circuit Snippets
Posted on May 07, 2009In a case reeking of questionable motives (white woman driver, African-American male passenger, predominantly African-American neighborhood known for drug trafficking), the Sixth Circuit concluded that Brendlin's rule that a stop of a car seizes the passengers as well as the driver did not apply where the passenger got out of the car and tried to leave...
Contention That Court Should Have Argued Second Compentency Eval Rejected
Posted on May 06, 2009United States v. Cornejo-Sandoval, ___ F.3d ___, 2009 WL 1195527 (10th Cir. 2009)Court rejects D?s procedural and substantive competency claims regarding court?s failure to order a second competency evaluation during trial. 18 USC Sec. 4241(a) sets out the procedure when a question of competency arises...
Family Relationship to Suspect Insufficient to Support Stop of Sister, Search of Parents' Home
Posted on May 06, 2009Poolaw v. Mercantel, ___ F.3d ___, 2009 WL 1176466 (10th Cir. 2009)Fourth Amendment violated when police stopped the car of the sister-in-law and searched the home of the parents-in-law of the primary suspect in a police killing (Astorga case). Familial relationship is not particularized enough suspicion to overcome an individual?s reasonable expectation of privacy...
Prisoner Certification Proved Timely Mailing
Posted on May 06, 2009Brown v. Leavenworth County, Kansas, 2009 WL 1132358 (4/28/09) (unpub'd) - The prisoner satisfied proof of timely mailing by certifying he used the prison's internal legal mail system. A declaration under penalty of perjury or a notarized statement regarding mailing is not required when the prisoner certifies he used the prison's legal mail system.
Upward Variance in Child Porn Case Affirmed
Posted on May 06, 2009U.S. v. Ray, 2009 WL 1133133 (4/28/09) (unpub'd) - The 10th affirms upward variance for transporting child porn from 180-210 months to 270 months because the defendant was a danger to the public, as evidenced by a very bad psychosexual evaluation. The d...
Decision Remanded in light of Nelson
Posted on May 06, 2009U.S. v. Covington, 2009 WL 1151330 (4/28/09) (unpub'd) - After a remand from the S. Ct. to reconsider in light of Nelson v. U..S., 129 S. Ct. 890 (2009) (reversal for d. ct. presuming the guideline range to be reasonable), the 10th remands to the d. ct...
Interstate Travel at Any Time Sufficient Nexus for Federal Gun Conviction
Posted on May 06, 2009U.S. v. Urbano, 2009 WL 1143605 (4/29/09) (Published) - In a felon-in-possession case, evidence that the gun traveled in interstate commerce at some unspecified earlier time is enough to satisfy the Commerce Clause. No other proof of nexus or effect on interstate commerce is necessary...
18-year Sentence Reversed By Divided Panel
Posted on May 06, 2009U.S. v. Lente, 2009 WL 1143167 (4/29/09) (unpub'd) - Reversal of 18-year sentence for 3 involuntary manslaughter convictions and one conviction for assault, for DWI, cross-the-center-line, crash. A majority did not agree on a rationale for the decision...
Pepper In the Eye is a 4th Amendment Seizure
Posted on April 28, 2009Lemery v. Beckner, 2009 WL 990523 (4/14/09) (unpub'd) - An officer's hitting a person with a pepper ball shot in the eye and momentarily stopping the person constituted a seizure under the Fourth Amendment.
Denial of Summary Judgment in 1983 Action Affirmed
Posted on April 28, 2009Hostetler v. Green, 2009 WL 997426 (4/15/09) (unpub'd) - In a § 1983 case, the question whether the district court properly relied on a particular fact to determine the officer's subjective knowledge was a question of law. The district court correctly considered whether the guard violated prison policy when he left a male trustee inmate alone in a cell with a female prisoner...
A Black Eye Can Constitute Excessive Force
Posted on April 28, 2009Grass v. Johnson, 2009 WL 997346 (4/15/09) (unpub'd) - Force used by police can be excessive even if it does not result in that much damage. In this case, the plaintiff ended up with a black eye. The unwarranted nature of the force, not the potential for physical harm, rendered it unconstitutional...
Investigatory Stop OK'd
Posted on April 28, 2009U.S. v. Crespin, 2009 WL 1069167 (4/22/09) (unpub'd) - One of the factors establishing reasonable suspicion to conduct an investigatory stop: all the occupants of the minivan reacted to the officer's presence with an "oh crap look," as though they had something to hide...
Harmless Error for Court to Consider State Prosecutor's Letter
Posted on April 28, 2009U.S. v. Bacon, 2009 WL 997400 (4/15/09) (unpub'd) - Any error in the district court considering a letter from a state prosecutor calling the defendant a "menace to society," without telling the defendant was harmless because the court's upward departure from 37 months to 60 months was overwhelmingly justified by the defendant's horrible record.
No 3582(c)(2) Relief for Career Offender
Posted on April 28, 2009U.S. v. Robinson, 2009 WL 1067591 (4/22/09) (unpub'd) - A little twist on the typical career offender denial of 18 USC § 3582(c)(2) relief. At the original sentencing the court applied the offense level determined by the crack quantity. But no relief, the 10th says, based on the crack amendment because the defendant's career offender offense level, which was the same as the quantity-driven level, was not reduced and trumped the amendment's reduction, even though the court did not originally rely on the career offender level.
OK to Pat Down Suspected Burglar
Posted on April 28, 2009U.S. v. Luginbyhl, 2009 WL 1014853 (4/16/09) (unpub'd) - The officer had a reasonable suspicion the defendant was armed and needed to be patted down because: (1) the defendant was a suspected burglar and burglars often are armed and (2) the officer reasonably misunderstood the dispatcher to indicate the defendant was going to get a gun [it was actually the caller who said she might get a gun]...
Prior Conviction Counts Eventhough Defendant was a Juvenile
Posted on April 28, 2009U.S. v. Rayas, 2009 WL 1067943 (4/22/09) (unpub'd) - It was okay to count a conviction, even though the defendant was a juvenile at the time of the conviction, because the juvenile claimed to be an adult at that time and received an adult conviction he didn't deserve.
Defendant Properly Denied Acceptance Points
Posted on April 28, 2009U.S. v. Tharps, 2009 WL 975532 (4/13/09) (unpub'd) - The 10th affirms denial of acceptance of responsibility reduction where the defendant was convicted of only the offenses he admitted to on the stand: possession of cocaine for personal use and felon-in-possession, and was acquitted of possession with intent to distribute and possessing a gun in furtherance thereof...
"Community of Reference" Test for Indian Country Applied
Posted on April 28, 2009Hydro Resources, Inc. v. U.S. EPA, 2009 WL 1027184 (4/17/09) (Published) - The 10th holds the EPA did not err in finding a checkerboard area in N.W. New Mexico is "Indian country." As a result, the uranium mining company has to deal with the EPA, not state authorities, for permission to help spread radioactivity throughout the land...
Always, Always Object
Posted on April 28, 2009U.S. v. Uscanga-Mora, 2009 WL 1100458 (4/24/09) (Published) - Following the Supreme Court's recent Puckett case, the court extols the virtue of plain error review. E.g., a contemporaneous objection will enable the court to correct any procedural error right then...
Nunc Pro Tunc State Order Shortening Probation Did Not Negate Sentencing Increase
Posted on April 28, 2009U.S. v. Pech-Aboytes, 2009 WL 1026484 (4/17/09) (Published) - A post-federal-plea nunc pro tunc state court order that shortened the defendant's probation so that it ended before he committed the federal offense did not preclude the application of the two level increase under § 4A1...
Court Reverses Some Enhancement Imposed on Defendants Convicted of Civil Rights Offenses
Posted on April 16, 2009United States v. Egbert, ___ F.3d ___, 2009 WL 983054 (10th Cir. 2009)Three white supremacists convicted of conspiracy to violate civil rights and, in the case of one of the three Ds, a substantive civil rights offense, launched unsuccessful and successful challenges to guideline calculations...
Possessing Unregistered Gun Not a Crime of Violence Under 924(c)(1)
Posted on April 16, 2009United States v. Serafin, ___ F.3d ___, 2009 WL 983055 (10th Cir. 2009)Possession of an unregistered firearm?a short-barreled .22 assault rifle?was not a crime of violence, so that D?s possession of a different firearm at the same time he possessed the unregistered rifle could not constitute the offense of possession of a firearm during a crime of violence in violation of 18 USC Sec...
Gun Thief Convicted of Felon-in-Possession, Properly Enhanced for Possessing Gun with Burglary
Posted on April 16, 2009United States v. Morris, ___ F.3d ___, 2009 WL 989011 (10th Cir. 2009)D was convicted of being a felon in possession of a firearm for the gun he took during a burglary. The district court properly applied the § 2K2.1(b)(6) enhancement for possession of the gun in connection with another felony (the burglary), and there was no plain error in the court?s use of Application Note 14 (B)...
District Court May Not Delegate Setting Restitution Schedule to BOP
Posted on April 14, 2009Bradshaw v. Lappin, 2009 WL 921161 (4/7/09) (unpub'd) - A federal prisoner victory. The 10th reverses a dismissal of a civil rights complaint. The Bureau of Prisons does not have the authority to set up a restitution schedule and tell the inmates they would not be allowed out of supermax unless they complied with that schedule...
Separation of Powers Argument Rejected in 3582(c)(2) Context
Posted on April 14, 2009U.S.. v. Franklin, No. 08-3315 (4/10/09) (unpub'd) - The 10th rejects a separation of powers argument against the refusal to apply Booker to § 3582(c)(2) proceedings. Congress can incorporate a guideline provision as a means of limiting a district court's authority to reduce a sentence.
Crack Resentencing Properly Denied Based on Court's Calculation of New Drug Amount
Posted on April 14, 2009U.S. v. Valdez, 2009 WL 929921 (4/8/09) (unpub'd) - An unusual 18 USC § 3582(c)(2) case that calls into question the 10th's claim that those cases don't involve a real resentencing. When the defendant was initially sentenced, the district court found 1...
Preponderance of the Evidence Standard Still Applies to Judicial Fact-Finding at Sentencing
Posted on April 14, 2009U.S. v. Jones, 2009 WL 921116 (4/7/09) (unpub'd) - Booker did not require overturning prior precedent that only a preponderance of the evidence standard applies to judicial fact-finding that enhances the guideline range. In this case, the fact-finding increased the range from 21-27 months to 151 to 188 months...
Sentence Reversed Based on Plain Error
Posted on April 14, 2009U.S. v. Mendez, 2009 WL 921125 (4/7/09) (unpub'd) - Defendant's sentence reversed because the district court mistakenly applied a 60% purity ratio to calculate the marijuana equivalent for the methamphetamine. The lab report said the purity ratio was 41%...
Petition Raising Applicability of Booker to section 3583(c)(2) Resentencing Proceedings Set for Conference
Posted on April 13, 2009The first petition raising the issue of whether Booker's flat statement that the guidelines are advisory in all contexts includes resentencing proceedings pursuant to Section 3582(c)(2), US v. Rhodes, Docket No. 08-2111,has been set for conference next week, on April 24...
Ohio Breaking and Entering, 3rd-Degree Burglary Conviction Qualify as ACCA Violent Felonies
Posted on April 10, 2009US v. Scoville, 2009 WL 929521 (10th Cir. April 8, 2009) publishedDefendant was properly sentenced as an armed career criminal. His Ohio breaking and entering conviction does not categorically qualify as generic burglary, but under modified approach, it qualified as generic burglary because he pled guilty to unlawfully entering a building (a laundromat) with intent to commit a crime...
Ambiguity in Appeal Waiver Created by District Court's Description
Posted on April 10, 2009US v. Benitez-Diaz, 2009 WL 931708 (10th Cir. April 8, 2009) (unpublished)Despite an appeal waiver in the plea agreement, defendant get a partial remand for resentencing. The district court mischaracterized the waiver provision as applying to the conviction, and it was not clear whether the defendant had already signed the agreement at the time...
Rare Reversal for Procedural Unreasonableness in Imposing Sentence
Posted on April 10, 2009US v. Swopes, 2009 WL 929927 (10th Cir. April 8, 2009)(unpublished)"In an exhibition of admirable candor", the Government conceded and Tenth Circuit agreed that the district court's sentence was procedurally unreasonable, and the error not harmless, because the court admitted presuming that the advisory Guidelines range was reasonable and failing to consider the 3553(a) factors!
Over-zealous Alumni Devotion Leads to Traffic Stop
Posted on April 07, 2009U.S. v. Orduna-Martinez, 2009 WL 884619 (4/3/09) (Published) - Kansas law did require all of the registration label on a license plate to be "clearly legible" and the defendant's Ohio State University plate frame was not cut out sufficiently enough to render the label "clearly legible," authorizing the officer's stop of the vehicle...
Plaintiff's Counsel's Misconduct Gets New Trial for Company
Posted on April 07, 2009Whittenburg v. Werner Enterprises, 2009 WL 884616 (4/3/09) (Published) - A civil case , but should be useful in prosecutorial misconduct arguments on appeal. Once again a big company facing money damages seemingly gets more protection than a defendant facing the loss of liberty...
Remand for Application of Chambers in ACCA Case
Posted on April 07, 2009U.S. v. Young, 2009 WL 886236 (4/3/09) (unpub'd) - Chambers applies to the interpretation of USSG § 4B1.2(a). The 10th remands to see if the defendant's escape was a failure to return escape and thus was not a "crime of violence" for purposes of determining the base offense level for a felon-in-possession of a firearm case under § 2K2...
Doubling of Sentence in Reentry Case Affirmed
Posted on April 07, 2009U.S. v. Marquez-Pineda, 2009 WL 799018 (3/27/09) (unpub'd) - Without much discussion, 10th Cir. affirms upward variance in reentry case from the top end of 30 months to 60 months, due to 8 prior illegal reentries, 30 aliases, 16 different dates of birth, 5 different social security numbers and 8 DUI convictions.
Failure to Consult Re: Appeal Rights Results in 2255 Relief
Posted on April 07, 2009U.S. v. Kelley, 2009 WL 806746 (3/30/09) (unpub'd) - A reversal of a 2255 denial. First, trial counsel had a duty to consult with the defendant about appealing, even though there was no reason to believe a rational defendant would want to appeal the within-Guidelines sentence...
What Not To Say at Oral Argument
Posted on April 07, 2009U.S. v. Marquez-Diaz, 2009 WL 826840 (3/13/09) (unpub'd) - Just a cautionary tale about what counsel says at oral argument. The 10th had issued an earlier decision saying counsel had waived a particular issue at oral argument. The 10th granted the petition for rehearing and begrudgingly addressed the issue, insisting all along counsel really did waive the issue...
Donating Criminal Case Records Not Tax Deduction
Posted on April 07, 2009Jones v. Commissioner of Internal Revenue, 2009 WL 794481 (3/27/09) )(Published) - The attorney for Timothy McVeigh could not claim as a tax deduction his donation of records the government gave to him as part of the discovery in Mr. McVeigh's case. The papers were "letters, memos, or similar property held by the taxpayer for whom such property was prepared or produced," and therefore could only be deducted if the taxpayer had paid something for them, which he had not.
Obstructing Federal Grand Jury Convictions Affirmed
Posted on April 07, 2009US v. Erickson, -- F.3d --, 2009 WL 903387 (10th Cir. 4/6/09) - there was sufficient evidence to convict 2 co-Defendants of obstructing and impeding a federal grand jury under 18 USC § 1503. The requirement of proof of acting corruptly with the specific intent to obstruct or impede the proceeding in its due administration of justice was met by evidence that the defendants created false docs to deliver to the grand jury in response to its subpoena...
Voluntary ECF Filing Begins; Mandatory Electronic Filing in Two Months
Posted on April 02, 2009The Tenth Circuit began voluntary use of the Electronic Case Filing (ECF) system this week. Use of the ECF system will become mandatory on June 1. Practitioners have to sign up for the appellate ECF system even if they have signed up for the district court system...
Insufficient Evidence of Money Laundering, But Wire Fraud Convictions Affirmed
Posted on March 31, 2009US v. Gayle Caldwell, -- F.3d --, 2009 WL 806579 (10th Cir. 3/30/09) - appeal of wire fraud and money laundering convictions after trial with husband and five other co-Ds. While there was ample evidence of intent to defraud to support wire fraud conviction, the money laundering conviction is reversed due to insufficient evidence that the transaction in question was designed to conceal...
Another GL Sentence Affirmed
Posted on March 27, 2009US v. Gallegos-Castillo, No, 08-2090, 3/26/09 - Bottom of the guideline range sentence in reentry case affirmed. No plain procedural error in using prior violent felony conviction in both offense level and criminal history calculations, and court was without jurisdiction to review decision not to depart downward based on overrrepresented criminal history...
Multitudinous Brady/Giglio/Napue Violations Basis for Habeas Relief for Two Capital Defendants
Posted on March 27, 2009Douglas v. Workman, No. 01-6094 and Powell v. Workman, No. 06-6093, 3/26/09 - Great (conditional) habeas win in these companion Oklahoma death penalty cases. Smith and a young lady were walking along late one night after a party, at which Smith had drunk a lot and smoked pot...
Tenth Emphasizes Counsel's Duties to the Court
Posted on March 27, 2009US v. Mendez-Zavala, No. 08-2178, 3/26/09 (unpublished) - Defendant pled guilty to conspiracy to possess heroin with intent to distribute. He got a 2-level increase at sentencing for possessing a gun during a purchase of heroin from an undercover cop, based on the testimony at sentencing of the cop...
Tenth Reverses New Trial Grant Despite Jurors' Racist Comments
Posted on March 25, 2009US v. Benally, -- F.3d --, 2009 WL 73893 (10th Cir. 3/23/09) - Rehearing en banc denied of panel decision reversing Utah district court grant of Mr. Benally's new trial motion. There were 4 votes for rehearing - Briscoe, Lucero, Henry, and Murphy. Briscoe writes a dissent joined by Lucero and there is a separate dissent by Murphy and Lucero...
Okla. Battery on Peace Officer Categorically an ACCA Predicate
Posted on March 20, 2009US v. Williams, 2009 WL 692323, 3/18/09 - Prior conviction for battery on a peace officer, a felony under Oklahoma law, counted as a crime of violence under ACCA. Defendant tried to argue that this was really a misdemeanor that was aggravated to felony status only because of the victim?s status...
Fishing Expedition
Posted on March 20, 2009US v. Marquez-Diaz, 2009 WL 693337, 3/18/09 - Denial of suppression motion affirmed. Cop followed pickup truck late one evening just south of Carrizozo NM and pulls it over because the license plate light is misaligned, creating a glare that prevented cop from reading the plate...
ACCA Sentence Reversed Based on Chambers
Posted on March 20, 2009US v. Turner, 2009 WL 693343, 3/18/09 - ACCA sentence vacated and remanded for resentencing in light of Chambers, where one of defendant?s convictions was for escape- failure to report.
Embezzlement Convictions Upheld
Posted on March 20, 2009US v. Island, No. 08-6111, 3/19/09 (unpublished)- Sufficient evidence supported convictions for misdemeanor embezzlements and felony conspiracy to embezzle. Defendant ran day-today operations of tribal gaming account, and wrote checks from the account at the direction of her boss, who was chairman of the 8-member business committee...
Feeding at the Public Trough
Posted on March 20, 2009US v. Baldridge, 2009 WL 692107, No. 07-5121 (10th Cir. 3/18/09) (published): The Tenth affirms the convictions of a local (former) politician for conspiracy, fraud and misapplication of funds by a local government official, mail fraud, money laundering and corrupt persuasion of a person to obstruct a federal investigation...
Electronic Case Filing
Posted on March 10, 2009According to an announcement at the Tenth Circuit's website, the Court will begin electronic case filing (ECF) on a voluntary basis on March 31, 2009. The Court will have ECF open for testing prior to that date, but pleadings will not be accepted via ECF until that date...
Circuit Snippets
Posted on March 06, 2009The Supreme Court broadly interpreted the definition of "misdemeanor offense of domestic violence," as used in 18 USC 922(g)(9) (prohibiting firearms possession by persons with such convictions) as requiring the government to prove beyond a reasonable doubt that the victim of the prior offense was in a domestic relationship with the offender, but the prior statute of conviction did not need to include the domestic relationship as an element...
"Honest Services" Aspect of Federal Mail Fraud Statute Needs Clarity, But Won't Get It
Posted on March 04, 2009Crack, Gun Convictions Affirmed; Evidentiary, Alleged Prosecutorial Misconduct Claims Rejected
Posted on March 04, 2009Listserve for Tenth Circuit Appellate Attorneys Representing Indigent Defendants
Posted on March 02, 2009How Many Ways to Vary from the Guidelines? At Least 171!
Posted on February 25, 2009Periodically, I like to include a reminder of a wonderful sentencing resource that I keep on my desk for sentencing memos: Michael Levine's "171 Easy Mitigating Factors". It brings together numerous cases to provide bases for mitigation arguments. The resource (now more than 140 pages long) is updated regularly during the year...
OSHA Does Not Preempt OK Law Allowing Employees to Keep Guns in Cars at Work
Posted on February 24, 2009Ramsey Winch, Inc. v. Henry, 2009 WL 388050 (2/18/09) (Published) - The 10th holds the federal Occupational Health and Safety Act, which imposes a general duty to maintain a workplace free of recognized hazards, did not preempt Oklahoma's law that makes it a criminal offense to prohibit employees from keeping firearms in their locked vehicles on company property...
Circuit Snippets
Posted on February 24, 2009These are interesting (to me, anyway) cases from around the country:The Eleventh Circuit added to the circuit split over suppression of identity evidence that is obtained as the result of an illegal search, coming down on the side of the 9th Circuit, which had held such evidence is never suppressible, US v...
Detention Order Affirmed in Child Abuse Case
Posted on February 20, 2009US v. Begay, No. 09-211 (Feb. 18, 2009) (unpublished): The Tenth Circuit affirms the district court's decision to detain the defendant pending trial. Defendant was charged with assault with intent to do bodily harm to his nine-month-old daughter (the indictment alleges fracturing her skull, injuring her eye, and breaking her arm, legs and ribs)...
Defendant Sentenced Pursuant to FRCrP 11(e)(1)(C) Agreement Not Entitled to Resentencing
Posted on February 20, 2009US v. Gage, No. 08-7075 (Feb. 18, 2009) (unpublished): A defendant who was sentenced pursuant to an 11(e)(1)(C) plea agreement to an agreed-upon sentence was not sentenced "based on a sentencing range that has been subsequently lowered by the Sentencing Commission," 18 USC 3582(c)(2), and therefore the district court should have dismissed the defendant's motion without considering it on the merits.
70-month Sentence for PWID of 2 Tons of Marijuana Reasonable
Posted on February 20, 2009US v. Bugarin, No. 07-2272 (2/18/09) (unpublished): Defendant was convicted of PWID more than two tons of marijuana, which was found in the trailer of a truck he was apparently co-driving. He pled guilty. He was eligible for safety-valve and therefore did not face the mandatory 10-year minimum sentence...
Unpublished Decisions
Posted on February 20, 2009US v. Flanders, No. 08-6056, 2/19/09 - 10th affirms as substantively reasonable, with no discussion, an upward variance for a defendant convicted of bank fraud and related charges. Here is the whole "analysis" - "Mr. Flanders? sole issue on appeal is that his sentence was substantively unreasonable...
No Clear S.Ct. Precedent Requires States to Prove Every Element in Jury Instructions
Posted on February 17, 2009Bates v. Workman, 2009 WL 294367 (2/9/09) (unpub'd) - No federal habeas relief under AEDPA was available for the state's failure to present sufficient evidence to prove an element that was in the jury instructions, but was not an element under state law...
No Factual Basis Required for Nolo Contendre Plea Where Innocence Not Asserted; IAC Claims Rejected
Posted on February 17, 2009Green v. Koerner, 2009 WL 347457 (2/12/09) (unpub'd) - The state courts were not required to establish a factual basis for the petitioner's nolo contendere plea because she did not assert her innocence. The petitioner's assertion that she had evidence to challenge her guilt did not constitute an assertion of innocence...
Procedural Reasonableness Claim Preserved; Judge's Sparse Explanation Sufficient
Posted on February 17, 2009U.S. v. Hernandez-Valois, 2009 WL 301829 (2/9/09) (unpub'd) - A trial attorney shows how one can preserve a procedural reasonableness claim. Hurray. The trial attorney asked the district court for the court's findings with respect to the downward variance request...
State Revocation Counts for CH Points in Fed. Case that Led to Revocation
Posted on February 17, 2009U.S. v. Dozier, 2009 WL 323269 (2/11/09) (Published) - A state sentence imposed upon revocation of probation counts in calculating criminal history points, even if the revocation was the result of the federal crime the federal court is punishing. The revocation sentence is imposed for the original offense, not the new federal offense.
Defendant's Plea Was Knowing, Voluntary
Posted on February 17, 2009U.S. v. Vidal, 2009 WL 350653 (2/13/09) (Published) - The 10th holds the defendant's plea was knowing and voluntary. Even though no one thought it was an Alford plea at the time, the 10th characterizes the plea as such because a number of times the defendant insisted she didn't know the drugs were in the car but on occasion expressed a willingness to plead guilty to possessing the drugs with the intent to distribute them...
Capital Habeas Petitioner Gets Remand Based on Incorrect Instruction on Second-Degree Murder
Posted on February 09, 2009Taylor v. Workman, 2009 WL 213112 (1/30/09) (Published) - A habeas reversal of an Oklahoma death penalty conviction (!!!!) due to a failure to give a correct lesser-included offense instruction for second degree murder. First, the state court applied law that was contrary to S...
Newly Discovered Evidence Results in Remand
Posted on February 09, 2009U.S. v. Jones, 2009 WL 166489 (1/26/09) (unpub'd) - A very interesting case in which the 10th reverses and remands for the district court to consider newly discovered evidence. The district court elected to believe the officer's version of his interrogation of the defendant that the defendant admitted previously purchasing 63 grams of crack, resulting in an increase in the base offense level based on relevant conduct...
Possible Jury Confusion over Meaning of "Actual" Meth Unlikely, Court Says
Posted on February 09, 2009US v. Villegas, -- F.3d --, 2009 WL 225840 (10th Cir. 2/2/09) - affirmance of defendant's convictions for possession with intent to distribute narcotics Suppression motion was properly denied. Mr. Villegas maintained that after traffic stop and return of his driver's license, he did not voluntarily consent to further questioning because a hand gesture made by the officer indicated he was not free to leave...
Some Unpublished Decisions
Posted on February 09, 2009U.S. v. Frierson, 2009 WL 190082 (1/28/09) (unpub'd) - An unsuccessful, but clever, attempt to get around an appeal waiver. The defendant asserts the miscarriage of justice exception to an appeal waiver applied because the sentence was based on the impermissible factor of race...
CSI Yellowstone, or Whatever Happened to Bambi?
Posted on January 30, 2009One bizarre unpublished criminal case. US v. Belderrain, No. 08-8016: Government officials learned about an elk's head in a taxidermist's shop in Montana. In the investigation, Mr. Belderrain, the taxidermist, and others told the government that Mr...
Circuit Snippets
Posted on January 27, 2009In the prosecution of Jeffrey Skilling, former CEO of Enron, the government sufficiently complied with its Brady and Giglio obligations by providing the exculpatory material, along with hundreds of millions of pages of other documents, and left it to the defense to figure out what it wanted, the 5th Circuit held...
Unpublished Decisions
Posted on January 27, 2009Silvan W. v. Briggs, 07-4272 (1/23/09) (unpub'd) - It was okay to detain someone who was reasonably suspected of obstructing justice with respect to the state taking children from their parents, especially because the plaintiff was a police officer and might have been armed...
Conviction for Felon-in-possession-of-ammo Upheld
Posted on January 27, 2009US v. Turner, -- F.3d --, 2008 WL 161737 (10th Cir. 1/26/09) - affirmance of conviction for possession of ammunition by a previously convicted felon. District court properly denied motion to suppress results of search that followed arrest of Mr. Turner for driving with a suspended license...
Prisoner Plaintiff Stated Cause of Action Based on Prison's Depriving Him of Hygiene Items
Posted on January 22, 2009Whittington v. Ortiz, 2009 WL 74471 (1/13/09) (unpub'd) - The prisoner plaintiff had set forth a ground for relief by alleging that the prison authorities deprived him of hygiene items: soap, toothpaste, toothbrushes and razors and, thus, caused him physical problems...
Possessing Deadly Weapon in Prison is ACCA Violent Felony
Posted on January 22, 2009U.S. v. Zuniga, 2009 WL 104304 (1/16/09) (Published) - The 10th expands the meaning of "purposeful, violent and aggressive" under the recent Supreme Court decision in Begay and, as a result, expand the kinds of offenses that are violent felonies under the Armed Career Criminal Act (ACCA), [and by extension "crimes of violence" under the Guidelines]...
Evidentiary Hearing Ordered on Petitioner's Claim He Wasn't Allowed to Testify
Posted on January 15, 2009US v. Duran-Salazar, 2009 WL 74476 (10th Cir. 1/13/2009) unpublished: A divided panel remands the habeas petitioner's case for an evidentiary hearing in the district court on his 2255 claim that he was denied effective assistance of counsel at his trial...
Dog Alert Sufficiently Reliable Despite Dog's Health Issues
Posted on January 15, 2009US v. Bertram, 2009 WL 74477 (10th Cir. 1/13/2009) unpublished: Defendant's convictions for felon in possession of a firearm are affirmed. The guns were found after a dog alerted to the car during a traffic stop. Read this case if you have a dog alert issue...
Reentry After Deportation is a Continuing Offense
Posted on January 13, 2009US v. Villarreal-Ortiz, -- F.3d --, 2009 WL 57491 (10th Cir. 1/12/09) - after having been deported, Mr. Villarreal-Ortiz re-entered and was arrested on drug charges. He admitted being in the US w/o inspection. After he got probation on the drug charge, an immigration agent determined his true name and status as a prior deportee...
Team Effort
Posted on January 05, 2009Happy New Year! This seems like a good time to point out that, although I manage this blog, the submissions are actually written by the whole team of wonderful and dedicated research and writing specialists in the District of New Mexico.
Despite Sparse Mitigation Efforts by Trial Counsel, Capital Habeas Petitioner's Claims Rejected
Posted on January 05, 2009Smith v. Workman, ___ F.3d ___, No. 05-6206 (10th Cir. 2008)Death affirmed in habeas case. The offense was the killing of a confederate who refused to give Petitioner drugs and money. The aggravating circumstances supporting death, after a mitigation trial that took up only 6 pages of transcript, was Petitioner?s two previous violent felony convictions and the probability of his continuing threat to society...
Double-Counting in Reentry Cases Still OK
Posted on January 05, 2009United States v. Algarate-Valencia, ___ F.3d ___, 2008 WL 5401415 (10th Cir. 2008)After submitting a lengthy sentencing memo, defense counsel asked to speak at sentencing. The judge said ?you have 30 seconds.? Counsel spoke, quickly. After the judge pronounced sentence and did not address the grounds Defendant raised for a variance, the government asked the judge to make findings on Defendant?s variance grounds...
Wife's Suicide Supports Felon-in-Possession Enhancement
Posted on January 05, 2009United States v. Montgomery, ___ F.3d ___, 2008 WL 5401410 (10th Cir. 2008)Upward departure for death under USSG Sec. 5K2.1 is not limited to homicide deaths and can apply as a matter of law to a resulting suicide?in this case, D?s wife committed suicide with a gun he illegally possessed as a felon...
Fla. Agg Battery Conviction Not Categorically a Crime of Violence
Posted on January 05, 2009United States v. Barraza-Ramos, ___ F.3d ___, 2008 WL 5401417 (10th Cir. 2008)The Court happily determines, in at least the context of this case, ?or? does not mean ?and.? Defendant?s Florida conviction for felony aggravated battery was not categorically a crime of violence and could not support the 16 level upward adjustment under USSG 2L1...
Unpublished Decisions
Posted on January 05, 2009U.S. v. Helton, 2008 WL 5206276 (12/15/08) (unpub'd) - Video of a minor constituted a lascivious exhibition of the minor's pubic area, even though the minor's pubic area was covered. A surreptitious video set up in a bathroom focusing on an 11-year-old girl's pubic area covered by opaque underpants was child pornography...
General Request for Low Sentence Fails to Preserve Specific Issue
Posted on January 05, 2009U.S. v. Herrera-Gonzalez, 20008 WL 5328448 (12/22/08) (unpub'd) - An issue-preservation word to the wise. Counsel had not preserved the issue that the d.ct. should have imposed a greater variance than it did to a level below what the defendant would have received had the defendant entered a Fast-Track plea, because counsel had not explicitly requested a sentence that low...
Guidelines Mandatory in Sec. 3582(c)(2) Context
Posted on January 05, 2009U.S. v. Pedraza, 2008 WL 5274446 (12/22/08) (Published) - The 10th refused to permit the guidelines to be considered advisory in the defendant's § 3582(c)(2) proceedings. The 10th applied its recent decision in Rhodes that Booker did not apply to those proceedings...
Tenth Limits Meaning of "Forcible Sex Offense" in Guidelines
Posted on January 05, 2009U.S. v. Dennis, 2008 WL 5274098 (12/22/08) (Published) - An excellent guideline "crime of violence" decision. The taking of indecent liberties with a minor in Wyoming is not a "forcible sex offense" and does not present a serious potential risk of physical injury to another under § 4B1...
Circuit Snippets
Posted on December 24, 2008A district court can rely on particular attributes of the local community to justify a variance in the sentence, the 2d Circuit held. It affirmed a district court's decision to enhance a defendant convicted of illegally trafficking in firearms based on the need for greater deterrence in NYC...
District Court Can Consider Prior Guideline Reductions at 3582(c)(2) Resentencing
Posted on December 24, 2008United States v. D.C., ___ F.3d ___, 2008 WL 5340429 (10th Cir. 2008)Great argument in retroactive crack reduction case where Defendant had previously received 5K1.1 and Sec. 3553(e) reductions, rejected by the COA. Defendant claimed that the district court, in the reduction re-sentencing, erroneously took the extent of those cooperation reductions into account when denying the retroactive crack reduction...
Stop Based on "Tandem Driving" OK'd
Posted on December 24, 2008United States v. Rodriguez-Rodriguez, ___ F.3d ___, 2008 WL 5340311 (10th Cir. 2008)Sufficient evidence of tandem driving to give probable cause to stop and detain tandem driver. By two car lengths, Defendant was preceding the truck where drugs were discovered; both driving along a lightly traveled New Mexico road at 4:30 in the morning; both had California plates; and, both were traveling 5 mph below the limit...
Restitution Can Include Lost Work Hours
Posted on December 24, 2008United States v. Wilfong, ___ F.3d ___, 2008 WL 5340423 (10th Cir. 2008)Restitution for phoning in bomb threat to an Air Force base can include compensation for lost employee work hours due to the evacuation. Defendant owes half a million in restitution.
Real Estate Fraud Conviction, Sentence Confirmed
Posted on December 24, 2008United States v. Baum, ___ F.3d ___, 2008 WL 5274316 (10th Cir. 2008)Defendant, a real estate agent, was found guilty of wire fraud and money laundering for his scheme: he was an agent for buyers who did not qualify for home loans because of poor credit; Defendant lent money to buyers for down payment; home prices were inflated on the contract; buyers agreed to pay an additional amount for remodels per a contract addendum (not disclosed to mortgage lender) that were never meant to happen and that money went into a fund to pay back Defendant, plus...
Be Sure to Argue Sentencing Issues in a Sentencing Memo; Unargued Claims are Forfeited
Posted on December 24, 2008United States v. Zubia-Torres, ___ F.3d ___, 2008 WL 5274166 (10th Cir. 2008)1. Defendant?s failure to challenge his prior conviction under Nevada law as not categorically a drug trafficking felony was a forfeiture, not a waiver of the argument. The COA tries to give better direction regarding the difference, and says because Defendant never made the argument he could not have ?affirmatively abandoned? it?waiver is abandonment...
District Court Should State Reasons for Mid-Range Sentence on Resentencing
Posted on December 19, 2008US v. Nelson, No. 08-6076, 12/18/08 - Crack reduction case in which defendant was originally sentence at the bottom of the guideline range, but was resentenced in the middle of the amended guideline range, remanded for district court to state on the record its reasons for not imposing new bottom end sentence.
Illegal Alien's Drug, Gun Convictions Upheld
Posted on December 19, 2008US v. Bustos, no. 07-5157, 12/18/08 - Convictions for possessing with intent to distribute meth, possession of guns and ammo in furtherance of the drug offense, and possession of guns and ammo by illegal alien, all arising from a traffic stop, affirmed...
TX Unauthorized Use of Motor Vehicle Conviction Not an Agg Felony
Posted on December 19, 2008US v. Perez-Gutierrez, No. 07-2129, 12/18/08 - 8 USC 1326 case in which parties did not dispute below that defendant?s Texas conviction for unauthorized use of a vehicle was an aggravated felony that justified an eight level increase. Defendant had pled, and his agreement contained an appeal waiver...
Stop of Suspected Parole Violator OK, Led to Discovery of Gun
Posted on December 19, 2008US v. James, No. 07-3296, 12/17/08 - Denial of motion to suppress and ACCA sentence affirmed. Cops had reasonable suspicion that vehicle defendant was driving was used and possibly being driven by parole violator who was a suspect in case in which hot checks had been written to a nursery to pay for shrubbery, so pulling it over was lawful, as was discovery of gun in plain view between driver?s seat and center console...
ATM Thief's Sentence Affirmed
Posted on December 19, 2008US v. Hahn, No. 2008 WL 5247929, 12/18/08 -Sentence for ATM technician who pled to stealing from ?straps? of cash meant for the ATMs affirmed. There was no clear error in loss calculation or restitution order, ordering sentence to run consecutively to state court sentence for lewd and indecent proposal to children was not an abuse of discretion, nor was imposing sex offender conditions as part of supervised release convictions because the conduct underlying the sex offender convictions occurred after defendant was fired for stealing the cash and is part of his history and characteristics.
Capital Habeas Petitioner's Claims of Improper Victim Impact Evidence, IAC Rejected
Posted on December 18, 2008Young v. Sirmons, ___ F.3d ___, 2008 WL 5220520 (10th Cir. 2008)br /Death penalty affirmance out of Oklahoma. Plaintiff challenged (1) admission of victim impact evidence: the COA held that the Oklahoma Court of Criminal Appeal?s determination that this evidence was not unduly prejudicial (including testimony that the victims? aunt died of a heart attack after learning of the murders) was not contrary to nor an unreasonable application of Sup...
Conviction, Sentence for Making False Threat Affirmed
Posted on December 18, 2008United States v. Parker, ___ F.3d ___, 2008 WL 5220512 (10th Cir. 2008)br /Defendant convicted after a jury trial of two counts of making or conveying false claims regarding a threat to blow up a building. (1) No plain error in admission of voice identification testimony by cop who listened to 911 tapes and who had interviewed Defendant, that Defendant had made the 911 threatening calls...
Failure to Stop Is An ACCA Predicate Offense
Posted on December 12, 2008US v West, 2008 WL 5158599 (Dec. 10, 2008) (published): The Court holds that defendant's prior Utah conviction for failing to stop a vehicle at a police-officer's command is a predicate offense for sentencing pursuant to the Armed Career Criminal Act...
Brady Contentions in Entrapment Case Rejected
Posted on December 12, 2008US v. Ford, 2008 WL 5173125 (10th Cir. Dec. 11, 2008) (published): Defendant was convicted of illegally selling or possessing a machine gun. At trial, his primary defense was entrapment. The defendant, a firefighter with no criminal history, contended that he sold the firearms to the informant after beiing pressured by the CI...
SORNA Challenges Rejected
Posted on December 09, 2008US v. Lawrance, -- F.3d --, 2008 WL 5123846 (10th Cir. 12/8/08) - no dice on SORNA challenges. The 10th reaffirms prior holdings that prosecution under SORNA does not violate the Ex Post Facto Clause because it is civil in intent and nonpunitive in purpose...
Tenth Creates Circuit Split with Ninth over Applicability of Booker at 3582(c)(2) Resentencings
Posted on December 09, 2008U.S. v. Rhodes, 2008 WL 5102247 (12/5/08) (Published) - The 10th holds Booker does not apply to § 3582(c)(2) proceedings. As a result, the guidelines in § 3582(c)(2) proceedings are mandatory and a defendant seeking a lower sentence by virtue of a retroactive guideline amendment may not receive a sentence below the amended guideline range unless the defendant had received a below-guideline-range sentence at the original sentencing...
State Habeas Petitioner's Claims Rejected
Posted on November 25, 2008Sandoval v. Ulibarri, -- F. 3d --, 2008 WL 4966218 (10th Cir. 11/24/08) - a rejection of various § 2254 claims re: NM convictions of aggravated battery and shooting at a vehicle. Mr. Sandoval did not establish that he was prejudiced by counsel's failure to follow rules re: pretrial disclosure of dr...
Amended Rules of Criminal Procedure Effective Dec. 1
Posted on November 25, 2008New Rules of Criminal Procedure go into effect Monday, December 1, 2008. Almost all the changes are attempts to implement the Crime Victims Rights Act, 18 U.S.C. § 3771. One important amendment is to Rule 17(c). The new rule provides that any subpoena requiring the production of personal or confidential information about a victim may be served on a third party only by court order and before entering the order the court must require that the victim get notice to enable the victim to move to quash...
Circuit Snippets
Posted on November 20, 2008The U.S. District Court in Middle District Pennsylvania concluded that the private-search doctrine did not authorize law enforcement officers to copy a computer's hard drive and scan all of its contents after a private person found evidence of possible crimes in a few files...
Habeas Relief Granted Where Plea Colloquy Showed Def. Did Not Understand "Depraved Mind" Element of Charge
Posted on November 18, 2008Hicks v. Franklin, -- F.3d --, 2008 WL 4900135 (10th Cir. 11/17/08) - reversal of denial of habeas relief!!! State court's holding that Mr. Hicks voluntarily pled to second degree murder was an unreasonable application of clearly established law. Mr...
Sentencing Enhancement Based on Co-Defendant's Possession of Guns Upheld
Posted on November 14, 2008U.S. v. Moreira, 2008 WL 4787157 (11/4/08) (unpub'd) - The two-level enhancement for firearm possession in connection with a drug trafficking offense applied where guns were hidden in co-conspirators' homes with drugs, even though there was no evidence the defendant knew about the guns...
SORNA Does Not Apply to Someone Who Only Traveled Interstate Before Effective Date of Statute
Posted on November 14, 2008U.S. v. Husted, 2008 WL 4792339 (11/5/08) (Published) - A SORNA win for the defense. Under a plain language analysis, SORNA ("Sex Offender Registration and Notification Act") does not apply to someone who only traveled interstate before SORNA's effective date...
Counsel Not Ineffective for Failing to Obtain Victim's Mental Health Records
Posted on November 14, 2008Wickham v. Friel, No. 08-4023, 11/14/08 - Trial counsel was not ineffective in failing to obtain mental health records of teenage victim of aggravated sexual assault, where obtaining such records under Utah law was quite difficult and required a detailed showing that such records contained information material to the defense, and counsel had no reason at the time of trial to believe that victim?s records included evidence that she had previously lied about being sexually assaulted.
Co-Defendant's Statements Admissible in Conspiracy Case
Posted on November 14, 2008US v. Merrick, No. 0805007, 11/13/08 - Admission of codefendant?s statements made in course and in furtherance of the conspiracy upheld in this PWID/conspiracy case. The district court impliedly found that sufficient evidence of the conspiracy, and defendant?s participation in it, had been presented by overruling defendant?s objection to the admission of the statements, and then explicitly put those findings on the record the next day...
Habeas Relief Reversed in KS "Partial Verdict" Case
Posted on November 14, 2008Tomlin v. McKune, No. 07-3286., 11/13/08 - District?s court?s grant of habeas relief to state petitioner reversed. Defendant was charged in Kansas state court with one count of rape and one count of aggravated indecent liberties with a minor. As to the rape count, the jury was instructed on aggravated indecent liberties as a lesser included offense...
Dismissal of Prisoner's 8th Amendment Claim Affirmed
Posted on November 05, 2008Duffield v. Jackson, ___ F.3d ___, 2008 WL 4780922 (10th Cir. 2008)No interest of justice exception to pro se inmate?s failure to object to (or failure to ask for an extension of time to object to) magistrate?s recommendation dismissing his § 1983 8th Amendment claim of deliberate indifference regarding inadequate medical care...
Filing of Prior Frivolous Asylum Petition Prevents Later Adjustment of Status
Posted on November 05, 2008Ribas v. Mukasey, ___ F.3d ___, 2008 WL 4781711 (10th Cir. 2008)Immigration judge determination that first asylum petition was frivolous, which was upheld by the board of immigration appeals and not appealed, was a final judgment which barred Plaintiff from adjustment of status when he married a US citizen...
Sentencing Commission News
Posted on November 04, 2008The Sentencing Commission has posted a number of new items at its website. Some interesting items include:The full text of the Guidelines effective November 1, 2008, are available for downloading here.The Commission's Preliminary Crack Cocaine Retroactivity Data Report is also available...
"Gibberish" Leads to Dismissal of Appeal
Posted on November 04, 2008Punchard v. Jeffries, 2008 WL 4748530 (10/30/08) (unpub'd) - The 10th dismisses the appeal on the ground that Public Minister Billy Punchard's brief is "gibberish."
PC to Arrest Civil Rights Plaintiff with .02 BAC Existed
Posted on November 04, 2008Titus v. Ahlm, 2008 WL 4726233 (10/28/08) (unpub'd) - In a civil rights case, the officer had probable cause to arrest the plaintiff, even though he only blew a .02 on the breath alcohol test because in New Mexico DWI can be impairment "to the slightest degree...
Tenth Hints That Sentencing Challenges Must Address Both Procedural, Substantive Prongs
Posted on November 04, 2008U.S. v. Romero-Resendez, 07-2176& 07-2177 (10/31/08) (unpub'd) - The 10th implies it will not find a defendant's substantial rights have been affected under the plain error reversal standard if the defendant has only challenged the sentence's procedural reasonableness and not its substantive reasonableness.
Denial of Crack Amendment Relief Reversed
Posted on November 04, 2008U.S. v. Price, 08-5048 (10/31/08) (unpub'd) - The 10th overturns the denial of crack amendment relief because the district court applied the wrong drug quantity level to rule the guideline range had not been lowered by the amendment. The court thought the original sentencing court had found a much higher amount than it actually had.
Absent Witness was Unavailable So State Could Use Prelim Testimony Despite Crawford
Posted on November 04, 2008Malone v. Six, 07-3268 (10/31/08) (unpub'd) - In a habeas case applying de novo review [because the state court did not rule on the issue but instead found any error harmless], the 10th held Crawford's unavailability requirement was met so as to allow the admission of an absent witness's preliminary hearing testimony...
Successive Nature of 2255 Petition Appealable
Posted on November 04, 2008U.S. v. Harper, 2008 WL 4756393 (10/31/08) (Published) - The district court's denial of a 28 USC § 2255 motion on the grounds that it was successive and had not been previously authorized by the 10th is a final order appealable to the 10th. It is also subject to the § 2253 certificate of appealability requirement...
Applying Plain Error, Conviction for Assault with Serious Bodily Injury Affirmed Despite Possible Jury Confusion
Posted on November 04, 2008U.S. v. Poole, 2008 WL 4756164 (10/31/08) (Published) - The jury found the defendant guilty of both the charged offense of assault resulting in serious bodily injury and the lesser-included offense of simple assault, even though the jury was instructed not to consider the defendant's guilt of the lesser offense if it could unanimously find the defendant guilty of the greater offense...
New Sentencing Guideline Amendments effective Nov. 1, 2008:
Posted on October 28, 2008The only good news in the amendments is a suggestion in USSG § 2L1.2 that a downward departure may be appropriate when a defendant receives a 16-level enhancement but the conviction is not an aggravated felony. Otherwise, under § 2L1.2: an upward departure is suggested when the drug trafficking guideline does not apply but the controlled substance quantity is inconsistent with personal use; drug trafficking now includes "an offer to sell"; "forcible sex offense" includes assented-to conduct when consent is invalid...
10th Circuit decisions
Posted on October 28, 2008U.S. v. Williams, 2008 WL 4636724 (10/21/08) (unpub'd) & U.S. v. Leroy, 2008 WL 4636725 (10/21/08) (unpub'd) - Two cases with identical language from two different panels with a total of six different judges calling into question the chances of applying Booker to § 3582(c)(2) cases...
Interstate Use of Cell Phone to Arrange Murder-For-Hire is Use of an Interstate Communications Facility
Posted on October 27, 2008US v. Means, No. 07-7112, 10/24/08 - Defendant and his girlfriend conspired to murder her husband and sought out a hit man. The person defendant solicited for the job ratted him out and the FBI got involved. It recorded meetings and cellphone conversations...
Within-Guidelines Sentence Affirmed in Reentry Case
Posted on October 22, 2008United States v. Martinez-Barragan, ___ F.3d ___, 2008 WL 4632806 (10th Cir. 2008)Sentence for reentry after aggravated felony is procedurally (PR) and substantively reasonable (SR). PR: COA ducks whether to review under plain error standard because it found there was no error, but signals that the ?unforeseeable error? doctrine that avoids PE review might no longer be viable...
Reversal of SJ in Civil Rights Case
Posted on October 22, 2008Weigle v. Cox, ___ F.3d ___, 2008 WL 4631920 (10th Cir. 2008)COA reverses summary judgment in favor of cops because there are questions of fact on issue of qualified immunity in § 1983 excessive force claim. Cops' restraint of decedent?one sat on dead guy?s back as he was face down, restrained and prone on the ground, causing a heart attack?was arguably unreasonable and excessive in light of cops? training that such placement of weight on a restrained person can cause a heart attack, and because it lasted longer than necessary.
2254 Petition Dismissed for Failure to Pay Fee
Posted on October 21, 2008Abram v. Milyard, 2008 WL 4417206 (10/1/08) (unpub'd) - It was okay to dismiss a § 2254 petition for failure to pay the $ 5 filing fee where the petitioner had $ 6.15 in his account at one time. The 10th didn't care that the petitioner might have needed to spend the $6...
Estranged Wife Lacked Authority to Consent to Search of Husband's Motel Room
Posted on October 21, 2008U.S. v. Arrington, 2008 WL 4561465 (10/14/08) (unpub'd) - A suppression victory with the government's concession. The 10th reverses suppression denial on actual authority to consent grounds. Estranged couple rented hotel room to discuss differences...
Max Fine for Tax Evader Affirmed
Posted on October 20, 2008US v. Green, No. 08-5031, 10/16/08 - Defendant was convicted of one count of income tax evasion (to the tune of more than $2 million) and one count of making a false tax declaration. Imposition of statutory maximum fine of $250,000 per count, for a total of $500,000, which was well above the recommended guideline range fine, affirmed...
No Crack Reduction for Career Offenders
Posted on October 20, 2008US v. Olden, No. 08-5060, 10/15/08 - Another crack sentence reduction motion denied, and affirmed, because the defendant was sentenced as a career offender.
Evidentiary Hearing on IAC Claim Denied
Posted on October 20, 2008PublishedBoyle v. McCune, No. 06-3025, 10/16/08 - State habeas petitioner was not entitled to an evidentiary hearing on his claims of ineffective assistance by both trial and appellate counsel because his claims of deficient performance, even if true, did not establish a reasonable probability that, but for the alleged deficiencies, he would have prevailed at trial.
Circuit Snippets
Posted on October 09, 2008A Virginia statute that criminalizes falsifying routing data in spam e-mail violates the First Amendment right to engage in anonymous speech, the Virginia Supreme Court held. Jaynes v. Commonwealth, No. 062388 (Va. S.Ct. 9/12/08) on rehearing 657 SE2d 478...
No Crack Amendment Relief for Career Offender
Posted on October 08, 2008United States v. Sharkey, ___ F.3d ___, 2008 WL 4482893 (10th Cir. 2008)Retroactive amendments to crack guidelines do not apply to career offender sentence in this case because according to the COA the amendment did not have the effect of lowering the guideline range for career offender guidelines and therefore a reduction was not authorized under 18 USC § 3582(c)(2) and the sentencing commission policy statements...
False Statement Convictions for Lawyer, Wife Affirmed; Convictions for Forging Entry Documents Reversed
Posted on October 03, 2008US v. Phillips, --- F.3d ----, 2008 WL 4416526 (10th Cir. Oct. 1, 2008): partial affirmance and reversal of the defendants' convictions of 8 counts of making a false statement to a federal agency and 8 counts of immigration fraud. The defendants, a lawyer, and his wife (who was also his secretary) appealed the denial of their motions for acquittal or for new trial, raising evidentiary and sufficiency issues...
Extensive Discussion of Plain Error Review of Downward Variance
Posted on October 03, 2008US v. Mendoza, 2008 WL 4416524 (10th Cir. Oct. 1 2008) (published): The government appealed the sentence given to Mr. Mendoza after the district court granted a variance from the 324-month advisory guideline range for his drug conviction and imposed a 240-month sentence...
Court Addresses Meaning of Fear for Purposes of USSG 2A3.1
Posted on October 03, 2008US v. Fish, 08-6007, 2008 WL ---- (10th Cir. Oct. 2, 2008) (unpublished): Strangely unpublished, since it seems to address an issue of first impression in this circuit -- the meaning of "fear" under 18 USC 2242. The Tenth affirms 111-month sentence (including 24-month upward variance) for defendant who pled guilty to knowingly transporting a minor in interstate commerce with the intent to engage in unlawful sexual activity, contrary to 18 U...
Five-month Variance Affirmed
Posted on October 03, 2008US v. Duarte-Hurtado, No. 08-2021, 2008 WL 4417197 (10th Cir. 10/1/08)(unpublished): Clearly this was a hard-fought case at every level, but, rejecting the defendant's arguments that a lower sentence was warranted, the Tenth affirms the five-month variance to 36 months (from 41) for a reentry defendant...
Materials on Sentencing Issues in Reentry Cases Available
Posted on October 02, 2008Some training materials, a paper called "Less = Success" and an accompanying case list, with information on the reentry guideline, sentencing strategies and helpful cases for defending reentry clients are available at the Association of Federal Defenders website.
Report Documents Increased Federal Prosecution; Arrests High in Border Districts
Posted on September 30, 2008A press release from the Dept. of Justice, Bureau of Justice Statistics announced the release of a new report on arrests and prosecutions in the criminal justice system. It begins as follows: FEDERAL IMMIGRATION ARRESTS SURPASS DRUG ARRESTSPost-arrest, drug and weapons offenders most likely to be prosecuted and convicted WASHINGTON -- Immigration and drug arrests comprised more than half of the 140,200 federal suspects arrested and booked by the U...
Possession of Child Porn Conviction Affirmed
Posted on September 30, 2008U.S. v Schene, -- F.3d --, 2008 WL 4379509 (10th Cir. 9/29/08) - There was sufficient evidence that materials transported in interstate commerce were used to download porn images to the hard drive of Schene's computer to support his conviction of knowingly possessing child porn...
Unpublished Decisions
Posted on September 30, 2008U.S. v. Griffin, 2008 WL 4330388 (9/23/08) (unpub'd) - In this case, the 10th holds that the defendant waived, [not forfeited, which would allow for plain error review] his right to challenge on appeal absent-witness statements at a revocation hearing because when the court asked whether the defense objected to their admission the defense said "no...
Comments Requested on Proposed Changes to Tenth Circuit Rules
Posted on September 23, 2008Effective January 1, 2009, the Tenth Circuit will amend its local rules. Here is a link to a memo regarding the proposed rules changes, as well as redlined and non-redlined versions of the proposed amendments. The Clerk invites interested parties to submit comments on the proposed changes to the Clerk of Court...
Upcoming Tenth Circuit Oral Arguments
Posted on September 23, 2008The Tenth Circuit will be holding oral arguments this week in Denver, CO; at the University of Kansas on Oct. 3; and in Las Cruces, NM on October 17. Calendars are available here on the Tenth Circuit's website.
240-Month Sentence, More than Twice the Advisory Range, Affirmed for Mentally Ill Defendant
Posted on September 23, 2008US v. Pinson, 2008 WL 4238999, No. 07-6013 et al. (Sept. 17, 2008)Mr. Pinson, a 21-year-old "mentally-ill inmate with a propensity for making grandiose threats," was convicted of one count of threatening to harm the US President. Before sentencing, he told the district court that another inmate intended to kill the judge...
A few 10th Circuit cases:
Posted on September 23, 2008U.S. v. Pruitt, 2008 WL 4218798 (9/16/08) (unpub'd) - On remand from the S. Ct. to reconsider in light of Gall, the unanimous panel rules its original decision that applied a deferential abuse-of-discretion standard to uphold a within-Guidelines sentence was consistent with Gall...
Las Cruces' Use of Crosses Not an Establishment Violation
Posted on September 16, 2008Weinbaum v. City of Las Cruces, Docket No. 06-2355 (10th Cir. September 12, 2008): Plaintiffs sued the City of Las Cruces, New Mexico, and the Las Cruces Public Schools based on the representation of three crosses in the City's seal, on district maintenance vehicles, in a sculpture, and in a school mural, alleging that the use constituted an improper endorsement of a specific religion, Christianity...
Statute of Limitations Precludes Suit Against Howard Hughes' Heirs
Posted on September 16, 2008Dummar v. Lummis, 2008 WL 4183338 (9/12/08) (Published) - The statute of limitations precluded Melvin Dummar, the subject of the movie "Melvin and Howard," from suing the Howard Hughes heirs because they conspired to lie that Mr. Hughes never left his hotel for a long period of time that included the time, December, 1967, Mr...
3d-party Guarantor of a Bail Bond Can Discharge Debt in Bankruptcy
Posted on September 16, 2008In re Sandoval, 2008 WL 4173090 (9/11/08) (Published) - A debt incurred by a debtor who has guaranteed a bail bonds person to make the bail bonds person whole if the criminal defendant jumps bail is dischargeable in bankruptcy. The debt is not a "fine, penalty or forfeiture payable to and for the benefit of a governmental unit," since the debtor owed the bail bonds person, not a government agency.
Defendant Who Seeks a Change in Sentence Loses Expectation of Finality
Posted on September 16, 2008Torres v. Heredia, 2008 WL 4139385 (9/9/08) (unpub'd) - It was not a violation of the petitioner's expectation of finality protected by the Double Jeopardy Clause when, in response to the petitioner's motion to reconsider sentence, the state district court found an arithmetical error and increased the sentence by a year...
Perjury Conviction Based on Statements in 2255 Motion Upheld
Posted on September 16, 2008U.S. v. Rodriguez-Chavez, 2008 WL 4139386 (9/9/08) (unpub'd) - The defendant was convicted of perjury for two false statements in his 2255 motion: (1) that his counsel never spoke to him about his offense; and (2) that his counsel forced him to sign a plea agreement...
Argument with Judge Supported Obstruction Enhancement
Posted on September 16, 2008U.S. v. Judd, 2008 WL 4183920 (9/112/08) (unpub'd) - It was okay to impose an obstruction of justice enhancement where the defendant went to the home of the state judge who issued the warrant in his case, asked the judge to give him a handwriting sample to prove the judge's warrant signature was forged, the judge refused [while offering to look at the warrant and say whether he signed it or not] and a heated argument ensued...
Double-Counting Argument Rejected
Posted on September 16, 2008U.S. v. Riccardi, 2008 WL 4183921 (9/12/08) (unpub'd) - It was not impermissible double-counting to impose an enhancement under USSG § 2G2.1(d)(1) for exploiting more than one minor and imposing another enhancement under § 4B1.5(b)(1) for exploiting those same minors on more than one occasion...
Civilian Volunteer Working with Cops Supports 2G2.1 Enhancement
Posted on September 16, 2008U.S. v. Mai, 2008 WL 4139383 (9/9/08) (unpub'd) - It was okay to cross-reference from USSG § 2G1.3 (re: traveling to engage in illicit sexual conduct) to § 2G2.1 (sexual exploitation of a minor) [an 8-level higher base offense level]. The cross-reference is only appropriate when a "minor" is involved and "minor" is defined as a person under 18 or a "law enforcement officer" pretending to be under 18...
Duress Defense Denied to Reentry Defendant
Posted on September 16, 2008U.S. v. Portillo-Madrid, 2008 WL 4183915 (9/12/08) (unpub'd) - The district court correctly refused to give a duress instruction in a reentry case where the defendant asserted he fled El Salvador and entered the U.S. because he was threatened with death due to his participation in a court proceeding...
Upward Variance from 37 Months to 8 Years Ok'd
Posted on September 12, 2008US v. Johnson, 2008 WL 4150019, No. 07-3112 (10th Cir. 9/10/08) (unpublished): The Tenth affirms the upward variance from the advisory guidelines range of 30-37 months to an 8-year sentence in a felon-in-possession case. On plain error review, the Court finds that the sentence was procedurally reasonable, rejecting arguments: (1) That the district court improperly relied on a memorandum prepared by the probation officer at the court's request; this memo used an "extrapolation method" to calculate a range of 51-63 months...
Court Considers Wiretap, Sufficiency, and Sentencing Issues
Posted on September 11, 2008United States v. Zapata, ___ F.3d ___, 2008 WL 4138520 (10th Cir. 2008) COA upholds convictions and sentences for 5 co-defendants in an extensive drug conspiracy prosecution involving many family members and friends. After a key bust that turned a transporter into a cooperator, the government obtained wire taps which in turn led to a 35 count indictment, including drug trafficking conspiracy, against 18 co-defendants...
No Abuse of Discretion to Exclude Defendant's Expert Testimony on False Confessions
Posted on September 11, 2008United States v. Benally, ___ F.3d ___, 2008 WL 4138468 (10th Cir. 2008).The COA finds district court did not abuse its discretion under Fed. Crim. Evid. R. 702 in not admitting testimony of defense expert on why individuals might falsely confess. Although the expert would not have testified to whether D falsely confessed, the testimony would nevertheless have encroached upon the jury function of determining credibility of the witnesses...
Miscellaneous from All Around the Circuits
Posted on September 11, 2008It was A-OK for cops to search a house pursuant to the wife's consent, even though the husband had denied consent. You'd think that the Supreme Court's decision in Georgia v. Randolph, 547 US 103 (2006), would mean that the search was a definite no-no...
Co-Defendants' Drug Conspiracy Convictions Affirmed
Posted on September 09, 2008U.S. v. Doddles, 2008 WL 4061054 (9/3/08) (Published) - There was sufficient evidence the defendant possessed ecstasy pills and a firearm found in another person's bedroom, [despite no evidence he had a gun or drugs on the date the firearm and drugs were found] in light of the defendant's access to that bedroom, his involvement in other drug transactions and shooting episodes, his membership in the gang that was connected to the pills and firearm, and his presence in the residence with the bedroom...
Prisoners Seeking Medical Care Not Certified as a Class
Posted on September 09, 2008Shook v. Board of County Commissioners, 2008 WL 3982987 (8/29/08) (Published) - A troubling roadblock to prisoners obtaining better medical care. The 10th finds no abuse of discretion [although it might have decided differently, it claims] when the district court refused to certify prisoners of a Colorado jail as a class because the named plaintiffs had different complaints that required different individualized remedies.
Unpublished Decisions
Posted on September 09, 2008U.S. v. Welch, 2008 WL 4061166 (9/3/08) (unpub'd) - The good news: officers did not have probable cause for the issuance of a warrant to search the defendant's home when the information they had indicated the defendant had used his home to make meth several months before but that he had stopped doing so...
Guideline Enhancement Based on Co-Defendant's Use of Gun During Robbery Upheld
Posted on August 28, 2008United States v. Miera, ___ F.3d ___, 2008 WL 3905885 (10th Cir. 2008)The COA upholds application of the two level GL enhancement, §2B3.1(b)(4)(B), restraint of a person, when D?s accomplice waved a gun at the bank door during a robbery and ordered no one to move...
Wyo. Law Fails to Restore Federal Gun Rights to DV Misdemeanants
Posted on August 28, 2008Wyoming ex rel. Crank v. U.S., 2008 WL 3906587 (Aug. 26, 2008): The State of Wyoming sought declaratory and injunctive relief against the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), which had ruled that a Wyoming statute purportedly establishing a procedure to expunge convictions of domestic violence misdemeanors, so as to restore lost firearms rights, would not restore federal firearm rights...
Safe Haven?
Posted on August 26, 2008U.S. v. Cabanillas, 2008 WL 3843463 (8/19/08) (unpub'd) - In rejecting a claim of the substantive unreasonableness of a sentence, the 10th expresses its belief, contrary to the defendant's claim, that the BOP will take all necessary steps to ensure the safety of a prisoner who has snitched off gang members.
Bacause Defendant Was Already Incarcerated, No Relief for Speedy Trial Violation
Posted on August 26, 2008U.S. v. Hill, 2008 WL 3861201 (8/20/08) (unpub'd) - In a divided decision, the 10th rejects Speedy Trial Act and speedy trial right claims. There is no provision in the Act for dismissal of an indictment when, as occurred here, the government violates its obligations under 18 U...
Nature of Prior Not Dependant on Defendant's Actual Sentence But On Potential Sentence
Posted on August 26, 2008U.S. v. Hill, 2008 WL 3876846 (8/22/08) (Published) - Upon the government's rehearing petition, the 10th reverses its prior decision in light of the Supreme Court's decision in U.S. v. Rodriquez, 128 S. Ct. 1783 (2008). The 10th previously ruled the defendant could not be a felon in possession of a firearm since his prior conviction was for a crime punishable by only 11 months under Kansas' guidelines, given the defendant's particular criminal history...
Tenth Denies Claim that Right to Present Defense was Abrogated by Co-Defendant's Refusal to Testify
Posted on August 26, 2008U.S. v. Rivas-Macias, -- F.3d --, 2008 WL 3892728 (10th Cir. 8/25/08) - COA rejects claim that right to present a defense at drug conspiracy and possession with intent to distribute trial was violated by co-conspirator's invocation of his 5th privilege...
Alien-In-Possession of Firearm, Ammo Convictions Affirmed
Posted on August 26, 2008U.S. v. Gambino-Zavala, -- F.3d --, 2008 WL 3892073 (10th Cir. 8/25/08) - police sweep of apartment where multiple gunshots were reported by multiple 911 calls early in the morning was justified by exigent circumstances and motion to suppress was rightfully denied...
New Federal Convictions Reversed Available
Posted on August 25, 2008Tne Federal Defenders for the District of Northern New York have an updated edition of Federal Convictions Reversed available here at their website. This is a very useful list of successful criminal defense wins that can shortcut the painful process of finding favorable case law.
Conviction Rev'd Because Indictment Constructively Amended
Posted on August 20, 2008United States v. Farr, ___ F.3d ___, 2008 WL 3843336 (10th Cir. 2008)The COA finds that during trial the government constructively amended the indictment against Defendant in a employment tax fraud case, charging her in the indictment as an employer/individual, but having the charge amended to a charge against her as an employer/business, when D defended in closing that the case had not been proved against her as an individual...
Divided Panel Upholds Drug Conviction Enhancement in Reentry Case
Posted on August 20, 2008United States v. Torres-Romero, ___ F.3d ___, 2008 WL 3843344 (10th Cir. 2008)Defendant was convicted of illegal entry after deportation. The COA held that his prior Colorado drug conviction was properly treated as a qualifying ?drug trafficking offense? for the 16 point guideline enhancement...
Probation Officer Could Identify Defendant In Robbery Video; Life Sentence Affirmed
Posted on August 19, 2008U.S. v. Contreras, -- F.3d --, 2008 WL 3823059 (10th Cir. 8/18/08) - it was OK to permit Mr. Contreras' probation officer to testify she recognized him in bank robbery video. While the jury could review the surveillance footage, the po could base her identification on many factors that would not be apparent to the jury viewing Mr...
USSG 2K2.1 Enhancement Proper; Low-End GL Sentence Affirmed
Posted on August 15, 2008US v. Hodge, 2008 WL 3507464 (unpublished) - In this felon in possession case, district court did not clearly err in finding that defendant possessed firearm "in connection with another felony offense" and applying four-level sentence enhancement pursuant to USSG section 2K2...
Capital Habeas Petitioner Gets Evidentiary Hearing on IAC Claim; Other Contentions Rejected
Posted on August 12, 2008Wilson v. Sirmons, 2008 WL 3166975 (8/8/08) (Published) - Judge McConnell wrote an excellent opinion regarding ineffective assistance ("IA") of counsel in a capital case. But it was not joined in by any other judge. Judge Hartz concurred in the result remanding for an evidentiary hearing on the IA issue and Judge Tymkovich dissented...
Prisoner Civil Rights Complaint Reinstated
Posted on August 12, 2008Fuller v. Wilcox, 2008 WL 2961388 (8/4/08) (unpub'd) - The 10th reverses dismissal of civil rights action filed by prisoner who had filed so many frivolous actions he was banned from filing anything in federal court absent imminent danger of physical injury...
Sufficient Evidence Supported Conviction
Posted on August 12, 2008Mars v. Dinwiddie, 2008 WL 2954292 (8/4/08) (unpub'd) - The 10th finds sufficient evidence to support the conviction for assault and battery with intent to kill, rejecting the petitioner's claim that he could not have used the requisite force or had the requisite intent because, "despite all the problems, he loved" the victim.
10th Refuses to Reconsider IAC Argument
Posted on August 12, 2008U.S. v. Lewis, 2008 WL 2961812 (8/4/08) (unupb'd) - Evidencing the downside of raising ineffective assistance ("IA") of counsel on direct appeal, the 10th refuses to consider the § 2255 movant's IA claim because the 10th already rejected the claim on the merits in the direct appeal.
Piecemeal Dismissal of Claims Improper
Posted on August 12, 2008Snyder v. Ortiz, 2008 WL 2961343 (8/4/08) (unpub'd) - In habeas case, the district court was wrong to dismiss the unexhausted claims and deny the other exhausted ones. A mixed petition must either be dismissed in its entirety without prejudice or the district court must deny all the claims on the merits.
Possible Old Chief Error Was Harmless
Posted on August 12, 2008U.S. v. Riley, 2008 WL 3019438 (8/5/08) (unpub'd) - The 10th strongly hints it was wrong to allow the admission of evidence of the nature of the offense that the defendant was convicted of in a felon-in-possession case. But any error was harmless.
FRE 403 Violated by Admitting Gang Evidence, But Harmless
Posted on August 12, 2008U.S. v. Brown, 2008 WL 2967708 (8/5/08) (unpub'd) - It was error in violation of Evidence Rule 403 to admit evidence of the defendant's membership in a drug-dealing gang to show his intent to distribute drugs. The 10th found it significant that the defendant was not charged with conspiracy...
Officers Not Entitled to Qualified Immunity Re: Excessive Force Claim that Cuffs Were Too Tight
Posted on August 08, 2008Vondrak v. City of Las Cruces, ___ F.3d ___, 2008 WL 2967656 (10th Cir. 2008)In Sec. 1983 action against two cops and the city arising out of cops' arrest of Plaintiff for DWI. COA first determines it has no pendent jurisdiction over Plaintiff?s cross appeal and City?s appeal...
Cop Should Not Have Arrested Plaintiff for Allegedly Concealing Identity
Posted on August 08, 2008Keylon v. City of Albuquerque, ___ F.3d ___, 2008 WL 2967658 (10th Cir. 2008)In Sec. 1983 action arising out of cop?s arrest of Plaintiff, without probable cause, for concealing ID, the district court erred in denying Plaintiff judgment as a matter of law and erred in submitting the issue of qualified immunity to the jury...
Venue Challenge Preserved by General Motion for Judgment of Acquittal; However, Evidence was Sufficient to Prove Venue in Utah
Posted on August 08, 2008United States v. Kelly, ___ F.3d ___, 2008 WL 2972731(10th Cir. 2008)Defendant did not waive his challenge to venue being proper in Utah?nothing on the face of the indictment alerted him to a venue issue, and it only became apparent when the government rested its case...
A Gamble that Didn't Pay Off: Detention Following Traffic Stop Justified by Reasonable Suspicion
Posted on August 08, 2008US v. Thao, No. 07-8066, no WL citation yet (August 7, 2008) (unpublished):State trooper stopped out of state SUV for allegedly going 79 mph in a 75 mph zone. Trooper had reasonable suspicion for continued detention based on: (1) defendants claimed they had gone from Minneapolis to Reno for a quick gambling trip, but there were 500-700 unaccounted for miles; (2) the driver, Lor, was not authorized to drive the vehicle; (3) the SUV was rented by a third party who was not present on the trip; (4) the defendants said this third party lived in Minnesota, but documents indicated he was from Wisconsin; (5) unusual and increasing nervousness; (6) inconsistent stories about visiting family and friends in Reno, vis-a-vis gambling; and (7) a lack of luggage (there was a laundry basket full of clothes)...
No Constitutional Right to Have State Conduct DNA Test
Posted on August 08, 2008Armijo v. Tapia, 2008 WL 3059465, No. 08-2095 (10th Cir. Aug. 6, 2008) (unpublished):Certificate of appealabitlity denied for state habeas petitioner. He failed to make a substantial showing of the denial of a constitutional right as required by 28 USC 2253(c)(2)...
Defendant Waived Challenge to Sentence Enhancement
Posted on August 05, 2008U.S. v. Carrillo-Jaime, 2008 WL 2894033 (7/29/08) (unpub'd) - Another "caveat defense attorney" case. The defendant had waived, not just forfeited, his right to challenge the classification of a burglary as a "crime of violence" under U.S.S.G. § 2L1...
Wearing Similar Clothing to Person Sought Justified Stop
Posted on August 05, 2008U.S. v. Goodlett, 2008 WL 2893912 (7/29/08) (unpub'd) - Rather slim evidence establishes reasonable suspicion to stop the defendant. Late at night the complainant thought she saw her ex-husband, who had threatened her life, near her home in violation of a protective order...
Search of House Upheld
Posted on August 05, 2008U.S. v. Esterline, 2008 WL 2893819 (7/29/08) (unpub'd) - The 10th acknowledges finding drugs in a person's car does not necessarily establish nexus with the person's residence to justify a residence search. But in this case there was also evidence the defendant sold drugs from his residence.
Evidentiary Challenges Rejected
Posted on August 05, 2008U.S. v. Tsosie, 2008 WL 2940800 (8/1/08) (unpub'd) - It was okay to present evidence defense witnesses belonged to the same gang as the defendant to show their bias. It was also okay to admit a threatening statement by one of the attackers, even if the defendant himself did not make the statement because the attackers were acting in concert...
Stored Guns Properly Counted for Enhancement
Posted on August 05, 2008U.S. v. Bertollini, 2008 WL 2940675 (8/1/08) (unpub'd) - The 10th holds that guns stored for years in the defendant's ex-wife's home were "relevant" to his possession of two guns in his car to support a number-of-guns enhancement under § 2K2.1(b)(1).
Removal Did Not Moot Challenge to Sentence
Posted on August 05, 2008U.S. v. Jurado-Lara, 2008 WL 2893974 (7/29/08) (unpub'd) - The defendant's challenge to a 16-month sentence was not moot, even though the defendant had finished his sentence and had been removed to Mexico. There were still sufficient collateral consequences attached to his sentence because, if his sentencing argument was correct, the upper end of his guideline range would be less than twelve months and his conviction for using false information and documents in violation of 18 U...
Prisoner Sufficiently Alleged Claim to Medical Care
Posted on August 05, 2008Edmisten v. Werholtz, 2008 WL 2940794 (8/1/08) (unpub'd) - The 10th reverses a denial of a request for a preliminary injunction for medical care. The plaintiff had made sufficient allegations to warrant an injunction where: a doctor determined he needed immediate surgery to replace the prosthesis in his jaw ravaged by bone cancer, and prescribed pain medication, antibiotics and a special diet, while awaiting surgery by the only doctor capable of performing the surgery; the Kansas prison denied his medication, antibiotics and special diet and stalled off the surgery, including not transporting him to his surgeon, despite doctor's orders to do so, because the surgery would cost $100,000; the plaintiff suffered lots of pain, etc...
Offense Improperly Grouped
Posted on August 05, 2008U.S. v. Hasson, 2008 WL 2894087 (7/29/08) (unpub'd) - It was reversible error to add the enhancement for one of the offenses (money laundering) after grouping all the offenses. Adding the enhancement to an offense that had a lower base offense level before grouping, as should have been done, would result in a 57-month reduction in the bottom of the guideline range.
Railroaded: Evidence in Backpack Linking Defendant to Drugs on Train Not Subject to Suppression
Posted on August 01, 2008US v. Davis, No. 07-2101, 7/31/08 - Denial of motion to suppress, conviction by jury and sentence for conspiracy to distribute PCP affirmed. Defendant flew into LA from Vegas and was questioned by cops, who also searched his backpack. Inside were $12,000 cash and travel itineraries, including one for another guy, Stewart...
Witness Tampering Conviction Affirmed
Posted on August 01, 2008US v. Stroup, 2008 WL 2914964, 7/30/08 - Friend's testimony, along with a letter written by the defendant to the friend soliciting him to "truthfully" testify that money the defendant wired to the friend was to allow friend to get his car fixed (instead of buying drugs with it), that mentioned witness tampering, and asked the friend to destroy the letter and not to tell anyone about it, was sufficient to support conviction for witness tampering under 18 USC 1512(b).
CA 2nd-degree Robbery Not Categorically a Crime of Violence
Posted on August 01, 2008US v. Servin-Acosta, 2008 WL 2908932 7/30/08 - 16-level enhancement based on California conviction for 2d degree robbery in this reentry case reversed and case remanded for resentencing. Although a minute order, along with Border Patrol records, were sufficient to establish the fact of conviction, mere fact that "robbery" is an enumerated crime of violence under USSG 2L1...
Gov't Cannot Unilaterally Conclude Plea Agreement Breached to Justify Arguing for Higher Sentence
Posted on July 30, 2008United States v. Cudjoe, ___ F.3d ___, 2008 WL 2893130 (10th Cir. 2008)Government breached ?the spirit and the letter? of the plea agreement in which it promised that it would stand mute, though would not support, any request by Defendant for a 30 year sentence...
"Vertical" Collective Knowledge Justified Stop
Posted on July 30, 2008United States v. Chavez, ___ F.3d ___, 2008 WL 2893057 (10th Cir. 2008)Based on collective knowledge doctrine, state policeman, who had no probable cause, could legitimately stop and search Defendant?s vehicle at the direction of DEA agents who did have probable cause to stop and arrest Defendant...
Former Border Patrol Agents' Convictions Largely Affirmed
Posted on July 29, 2008This is a Fifth Circuit decision, but it happened in El Paso, TX, right next door to me, so I'm including it here. The decision is available here.The Fifth Circuit yesterday mostly affirmed the convictions and sentences of former Border Patrol agents Ignacio Ramos and Jose Compean, convicted of various crimes after they shot an unarmed drug smuggler as he ran back to Mexico (he succeeded in escaping, too)...
U.S. v. Rodriguez, 2008 WL 2736747
Posted on July 28, 2008U.S. v. Rodriguez, 2008 WL 2736747 (7/15/08) (unpub'd) - In an unauthorized use of a credit card case, the 10th affirms variance from 33 months to the stat max of 48 months on the grounds expressed by the district court that any term of incarceration would "simply be an interruption in the defendant's criminal career...
Leadership, Firearms Enhancements Upheld
Posted on July 28, 2008U.S. v. Sallis, 2008 WL 2780594 (7/18/08) (Published) - The evidence supported a leadership upward adjustment. Supplying or fronting drugs is not enough to justify such an enhancement, but here, the defendant and his twin brother exercised joint decision-making authority re: the amount of drugs to purchase etc...
Numerous IAC Claims Rejected; Death Sentence Affirmed
Posted on July 28, 2008DeLozier v. Sirmons, 2008 WL 2780595 (7/18/08) (Published) - The Court of Appeals affirmed another death sentence. The 10th reviewed, almost always under the stringent AEDPA standard, a number of ineffective assistance of counsel claims, holding in each case that counsel was not deficient...
Prisoner Entitled to Hearing on Application of Revised Good Time Policy
Posted on July 28, 2008Henderson v. Sirmons, 2008 WL 2791911 (10th Cir. 7/21/08) (unpub'd) - because the record is unclear re: how corrections officials applied good time policy revisions to pro se inmate here, district court erred in denying his ex post facto claim without an evidentiary hearing...
Judgment of Acquittal for Mortgage Fraud Defendants Reversed
Posted on July 28, 2008United States v. Carnagie, ___ F.3d ___, 2008 WL 2807466 (10th Cir. 2008) The Court of Appeals reverses the trial court?s grant of a judgment notwithstanding the guilty verdict on charges of conspiracy to defraud the United States and conspiracy to money launder...
Claim of IAC at Competency Hearing Rebuffed
Posted on July 28, 2008Crawley v. Dinwiddie, ___F.3d ___, 2008 WL 2805410 (10th Cir. 2008)Because there is no clearly established federal Supreme Court law regarding a counsel?s duty to refrain from pressing his client?s claim of competency in the face of evidence of incompetency, plaintiff could not meet the AEDPA standard in his challenge to his attorney?s effective assistance in arguing for his competency at a state competency hearing.
Drug Conspiracy Convictions Affirmed
Posted on July 28, 2008US v. Smith, 2008 WL 2814809, 7/23/08 - Drug convictions and lengthy sentence affirmed. Defendant ran a drug ring and was indicted for conspiracy and multiple distribution and related counts. One of her confederates had been convicted of murdering two women (a third woman somehow survived despite getting shot 7 times)...
Tenth Reinstates Gay Prisoner's Civil Rights Claims Against Prison Officials
Posted on July 28, 2008Howard v. Wade, et al, 2008 WL 2814821 - The 10th reverses summary judgment in favor of most prison official defendants in this Eighth Amendment failure to protect civil rights case. The plaintiff, who is openly gay and of slight build, was repeatedly sexually abused and generally terrorized by members of a prison gang...
Almost Mandatory is Advisory?
Posted on July 16, 2008United States v. Covington, 2008 WL 2736753 (10th Cir. 2008)This case?s lesson: if the district court says it understands that the guidelines are no longer mandatory, but also says but they are practically mandatory and it really has no choice but to impose the GL sentence, and does, the court has exercised its discretion...
Qualified Immunity Should Be Granted Cop who Administered Sobriety Test
Posted on July 16, 2008Amundsen v. Jones, ___F.3d ___, 2008 WL 2737273 (10th Cir. 2008)Reversal of denial of qualified immunity for cop in § 1983 case. Administration of roadside sobriety and toxicology test did not violate Plaintiff?s constitutional rights (cop stopped Plaintiff for weaving)...
Conviction for Attempting to Vacate ACCA Sentence Based on False Expungement of Prior Affirmed
Posted on July 15, 2008U.S. v. Smith, 2008 WL 2699388 (7/11/08) (Published) - The defendant was convicted of 18 U.S.C. § 1623(a) for attaching a false document to a federal court motion. He attached a bogus state court order expunging a conviction to a 2255 motion and asserted that his sentence pursuant to the Armed Career Criminal Act should be vacated due to the alleged expungement...
Defendant Failed to Show "Substantial Impairment" Rendered his Statements Involuntary
Posted on July 15, 2008U.S. v. Burson, 2008 WL 2698214 (7/11/08) (Published) - Once an officer credibly testifies that the defendant making a statement was sufficiently in touch with reality so that he knew his rights and the consequences of abandoning them, the defendant has the burden to show his condition rose to the level of "substantial impairment" by drugs, alcohol, and/or exhaustion, etc...
California Battery Conviction Not 2L1.2 Crime of Violence
Posted on July 15, 2008U.S. v. Herrera, 2008 WL 2698644 (7/11/08) (unpub'd) - Although unpublished, this case deserves top billing because it's quite an achievement---a plain error reversal of a "crime of violence" § 2L1.2 16-level enhancement on rather esoteric grounds. The defendant was represented by CJA counsel Angela Arrellanes and Scott Davidson...
Unpublished Decisions
Posted on July 15, 2008U.S. v. Jacquez, 2008 WL 2694060 (7/9/08) (unpub'd) - The 10th finds the officer reasonably stopped the defendant because the license plate of the car he was driving was registered to a Tommy Largo and there was an outstanding arrest warrant for a "Tommy Largo...
Guatamalan's Pleas for Immigration Mercy Rebuffed
Posted on July 15, 2008Vicente-Elias v. Mukasey, 2008 WL 2699399 (7/11/08) (Published) - The 10th defers to the immigration judge's determination that the economic hardships suffered by the indigenous people of Guatemala due to the refusal of Spanish-speaking Guatemalans to hire people who speak only indigenous languages did not amount to a threat to the alien's life or freedom...
Gov't Didn't Improperly Comment on Defendants' Failure to Testify
Posted on July 15, 2008U.S. v. Ivory, -- F.3d --, 2008 WL 2718813 (10th Cir. 7/14/08) - Court rejects defendants' claim of improper comment on their failure to testify in drug and conspiracy to murder a witness case. In arguing in closing that defendants used the work "money" as code for murder, prosecutor told jury that the only persons who used that code were witnesses the government could not call...
Interpreter Breaks Silence on Court Proceedings
Posted on July 14, 2008A New York Times article discusses how a court interpreter, Erik Camayd-Freixas, has written an essay about how the illegal immigrant defendants -- many of them Guatamalen -- did not understand what was going on when they were prosecuted for document fraud following the raids at the Agriprocessors packing plants in Iowa...
List of Federal Crimes Continues to Expand
Posted on July 14, 2008The Heritage Foundation has issued a new report discussing the explosive increase in the number of federal crimes.It says in part:"The growth of federal crimes continues unabated. The increase of 452 over the eight-year period between 2000 and 2007 averages 56...
Suppressed Drugs Can Be Included in Guideline Calculations
Posted on July 10, 2008U.S. v. Maytubby, -- F.3d --, 2008 WL 2635568 (10th Cir. 7/7/08) - the Tenth reaffirms precedent indicating that quantity of drugs suppressed because they were discovered during an unconstitutional search may be included in GL calculations.
No Search Warrant Required Where Wife's Probation Agreement Allowed Search on Reasonable Suspicion; Evidentiary Objections Rejected
Posted on July 10, 2008US v. Blake, No. 07-8050, 7/3/08 - Denial of motion to suppress affirmed. Defendant's wife was on probation in a state case. Her probation agreement included a consent to search provision based on reasonable suspicion. She tested dirty for meth, so the probation officer called the cops, who tell her they have information that probationer's husband, the defendant, has been selling meth...
No Suppression Despite Recklessly Made Factual Mistakes in Affidavit
Posted on July 10, 2008US v. Garcia-Zambrano, No. 07-1261, 7/3/08 - Suppression of evidence for Delaware v. Franks violations reversed. While district court did not clearly err in finding factual inaccuracies in search warrant affidavit and determining that they were recklessly made, the 10th's de novo review of the legal sufficiency of what remained after the false statements were excised led it to conclude that the affidavit established probable cause.
Argument that Evidence was Improperly Admitted Rejected; Life Sentence Remanded for Resentencing
Posted on June 25, 2008United States v. Cerno, ___F.3d___, 2008 WL 2502526 (10th Cir. 2008)Efforts to reverse the trial court?s admission of inflammatory and irrelevant information in a child sex abuse prosecution were rejected by the majority. McConnell dissented. However, the COA did grant resentencing for the defendant...
Sentence Affirmed in Mann Act Case
Posted on June 25, 2008United States v. Scott, ___F.3d___, 2008 WL 2502524 (10th Cir. 2008)The district court?s calling and examining a witness in support of the higher sentence did not violate Due Process and show judicial partiality, and did not entail the judge acting as an advocate...
DWI Not a Predicate for Career Offender Definition
Posted on June 25, 2008United States v. Tiger, ___F.3d___, 2008 WL 2498052 (10th Cir. 2008)In a Begay remand, the COA extends Begay from the determination that a DWI does not satisfy the statutory ACCA ?crime of violence? definition to a determination that a DWI does not satisfying the USSG Sec...
Tenth Affirms that Cooperation is the Only Basis for Sentences Below Mandatory Minimum
Posted on June 25, 2008United States v. A.B., ___F.3d___, 2008 WL 2498026 (10th Cir. 2008)Government moved for a sentence below the mandatory minimums for drugs and a gun in light of Defendant?s cooperation. COA ruled that, in keeping with its precedent in Campbell, which remains unaffected by Booker, a sentencing court can sentence below the mandatory minimum only for cooperation, and cannot consider other mitigating facts that might support either a downward departure or presumably a variance, to further decrease a sentence below that statutory minimum sentence...
Defendant's Sentence Improperly Enhanced Based on Prior Military Conviction
Posted on June 24, 2008U.S. v. Brown, -- F.3d --, 2008 WL 2485933 (10th Cir. 6/23/08) - sentence for possession of child porn was erroneously enhanced under 18 U.S.C. § 2252A(b)(2) based on Mr. Brown's previous conviction under Article 134 of the Uniform Code of Military Justice...
Wonderful Resource for Pro-Defendant Case Law
Posted on June 24, 2008Are your eyes blurring from looking at the endless cases where the defendant lost? Wouldn't you like to read something where the defendant won? Here to the rescue is Federal Convictions Reversed, a 37-page resource edited by Alex Bunin, Federal Defender for the Northern District of New York...
Third Time A Small Charm for Defendant
Posted on June 24, 2008United States v. Wittig, ___F.3d___, 2008 WL_____, No. 07-3051 (10th Cir. June 17, 2008)Defendant?s third sentencing appeal (won the previous 2, and sentence went from 51 to 60 to the current 24 months imprisonment). The 24-month sentence was a variance from 0 to 6 months in a fraud case, but Court says it was procedurally and substantively reasonable under 18 USC 3553...
Unconstitutional Search of Trailer Does Not Taint Search of Truck's Cab; Dog Provided PC
Posted on June 24, 2008United States v. Forbes, ___F.3d___, 2008 WL_____, No. 07-2191 (10th Cir. June 17, 2008)Court of Appeals holds that the independent source doctrine applies to a search of the tractor portion of a tractor/trailer rig, when the trailer portion was unfruitfully searched first, presumably in violation of the Fourth Amendment...
Notice Requirement of FRCP 32(h) Doesn't Extend to Variances
Posted on June 12, 2008Irizzary v. US, No. 06-7517 (S.Ct. 6/12/08): Federal Rule of Criminal Procedure 32(h), requiring the sentencing court to give notice of a potential upward departure on a ground not specified in a PSR or pre-hearing submissions, does not apply to variances from a recommended guideline range...
Wire Fraud Convictions Reversed, But Related Fraud, Laundering Convictions Upheld
Posted on June 11, 2008U.S. v. Redcorn, -- F.3d --, 2008 WL 2332005 (10th Cir. 6/9/08) - reversal of wire fraud convictions of defendants who were also found guilty of embezzlement from a health care benefit program and money laundering. There was insufficient evidence to show that the defendants' transfers of funds to out-of-state investments accounts were part of the plot to defraud...
District Court Could Properly Refuse Attempted Guilty Plea to Two of Four Charges
Posted on June 11, 2008U.S. v. Martin, -- F.3d --, 2008 WL 2332049 (10th Cir. 6/9/08) - Mr. Martin was convicted of two assault counts and two rape counts. The district court's refusal of Mr. Martin's attempted plea to the two counts of assault is upheld. While the Court expresses doubt that the district court properly relied on the need to avoid confusing the jury and complicating the evidentiary issues, it affirms based on failure to establish a factual basis for the plea...
Using a Gun as a Club is "Brandishing" Under 18 USC 924(c)
Posted on June 10, 2008U.S. v. Bowen, 2008 WL 2232261 (6/2/08) (Published) - Using a firearm as a club constitutes "brandishing" a firearm under 18 U.S.C. § 924(c)(1)(A). First, the 10th made clear the question whether "brandishing" occurred is a sentencing determination to be made by the district court, not a matter for the jury [this is okay under Apprendi, etc...
Suppression Motion Properly Denied for Defendant Who Asked Cops to Search Home for Exculpatory Evidence
Posted on June 06, 2008US v Pikyavit, No. 07-4113, 2008 WL 2265154 (Tenth Cir. June 4, 2008) (published): This defendant, in attempting to get out of one jam, got himself into a worse one. Mr. Pikyavit was arrested and jailed, along with four other men, after there was a fight outside his home...
Refusal to Allow Evidence of Defendant's Good Character Results in Reversal
Posted on June 04, 2008United States v.Yarbrough, ___ F.3d ___, 2008 WL 2246969 (10th Cir. 2008)In a fairly surprising defense win, the Court reverses Defendant?s conviction after trial on obstruction of justice-related charges, because the trial court refused to admit Defendant?s evidence of his good character...
Texas Assault of Public Servant Not a Crime of Violence
Posted on June 04, 2008United States v. Zuniga-Soto, ___F.3d ___, No. 06-2364 (10th Cir. 2008)A very nice defense win in an illegal reentry case. Using the Taylor categorical approach, the Court determines that Defendant?s prior conviction for assault of a public servant under Texas law was not a crime of violence...
Gov't Concedes Plain Error in Applying 4B1.2 COV Definition in Reentry Context
Posted on June 03, 2008Arreguin-Aguilar v US, 2008 WL 460975 (5/27/08) - A government concession of reversible plain error in the § 2L1.2 context. The S.Ct. vacates and remands based on the government's concession that the imposition of a 16-level enhancement for possession of a concealed weapon as a crime of violence under § 2L1...
A few instructive, unpublished 10th Circuit cases
Posted on June 03, 2008U.S. v. Matias-Medina, 2008 WL 2097418 (5/20/08) (unpub'd) - The 10th remands for reconsideration of whether a Colorado 3rd degree assault was a crime of violence under § 2L1.2. The 10th could not tell if documents acceptable under Shepard were consulted as to whether the defendant was found guilty of the requisite elements, where the PSR only quoted from a "PSR" (?) from a prior deportation proceeding...
Enhancements Based on Relevant Conduct in Gun Case Affirmed
Posted on May 23, 2008US v. Hernandez, No. 07-2267 (10th Cir. May 22, 2008) (unpublished): Defendant convicted of being a felon in possession of a firearm and ammunition. Court found that sufficient evidence supported the application of USSG 2K2.1(b)(1)(A), which requires a two-level enhancement if the offense involved three or more firearms...
Wyo. "Simple Assault, Battery" Conviction Not a Predicate Misdemeanor Domestic Violence Offense
Posted on May 21, 2008United States v. Hays, ___ F.3d ___, No. 07-8039 (10th Cir. May 20, 2008)Conviction under Wyoming ?simple assault, battery? misdemeanor statute is not a misdemeanor crime of domestic violence within the meaning of 18 USC Secs. 922(g)(9) and 924(a)(2), possession of a firearm by a person convicted of misdemeanor domestic violence...
Cause Remanded to Determine If Somalian-born Defendant Should Have Had Interpreter at Grand Jury Proceeding
Posted on May 21, 2008United States v. Hasan, ___ F.3d ___, No. 06-5234 (10th Cir. May 20, 2008)Remand to the district court to enter findings on whether, under the Court Interpreter?s Act (CIA) (which applies equally to trials and to grand jury proceedings), the Somalian-born defendant was entitled to an interpreter at the grand jury proceedings...
The Legend Lives!
Posted on May 20, 2008The National Association of Federal Defenders has published the May 2008 edition of The Liberty Legend, chock full of inspiring tales of victories and those selected to be this year's outstanding assistant federal defenders, investigators, research and writing specialists, and paralegals...
Sec. 1001 Prosecution Can Be Based on False Statements to a Probation Officer
Posted on May 19, 2008US v. Manning, No. 07-5035, 5/16/08 - The Tenth Circuit reverses the dismissal of a prosecution for making a false statement pursuant to 18 USC § 1001. The dismissal had been based on the ?judicial function? exception in § 1001(b).The defendant forgot to mention the $40K he had in a 401(k) when he submitted his financial affidavit to probation after he pled guilty to misappropriating funds as a fiduciary...
New Trial Motion Denied; Evidence Not "Newly Discovered"
Posted on May 16, 2008US v. Shipp, 2008 WL 2043295 (10th Cir. 5/14/08) unpublished: Mr. Shipp (acting pro se) filed a second motion for new trial on his felon in possession conviction. This motion fares no better than his first. The allegedly newly found police documents were not newly found but had been mentioned at the trial...
Sufficient Evidence Supported Manager Enhancement in Meth Case
Posted on May 16, 2008US v. Garcia, 2008 WL 2039535 (10th Cir. 5/14/08), unpublished: Tenth Circuit affirms 210-month sentence for one count of possession with intent to distribute lots of meth. The original presentence report gave Mr. Garcia a total offense level of 33, including a two-level safety valve reduction...
Arrest by Immigration Authorities Did Not Trigger Speedy Trial Act
Posted on May 14, 2008United States v. Paillas-Castanon, ___ F.3d ___, 2008 WL 2025106 (10th Cir. May 13, 2008)The arrest and detention of the defendant on a civil deportation matter did not violate the Speedy Trial Act, 18 USC Sec. 3161, when he was indicted 2 months later for possession of a counterfeit green card...
Guideline Range Can Be Given "Great Weight" by District Court
Posted on May 14, 2008United States v. Zamora-Solorzano, ___ F.3d ___, 2008 WL 2035476 (10th Cir. May 13, 2008)Defendant plead guilty to possession with intent to distribute methamphetamine and possession of a firearm in connection with the drug offense, and was sentenced to the low end of the guideline range (270 months)...
Driving a Little Slow Insufficient Grounds for Stop
Posted on May 13, 2008U.S. v. Valadez-Valadez, -- F.3d --, 2008 WL 2009867 (10th Cir. 5/12/08) - An actual reversal of the district court's denial of motion to suppress because there was no rs for the stop of Mr. Valadez-Valadez's pickup outside Tierra Amarilla, NM. The pickup was stopped for traveling ten miles per hour under the speed limit...
Bank Robbery Conviction Upheld; Defendant Properly Found to Be a Career Offender
Posted on May 13, 2008U.S. v. Ellis, -- F.3d --, 2008 WL 2004276 (10th Cir. 5/12/08) - the indictment was not inadequate to sustain bank robbery conviction for failure to charge aiding and abetting because it is not an independent crime. The bank robbery elements were properly alleged...
Suspect Unlawfully Arrested Inside Motel Room When Coercive Police Tactics Forced Him to Answer Door
Posted on May 08, 2008US v. Reeves, 2008 WL 1961246 (10th Cir. 5/7/08):Tenth Circuit REVERSES the district court's denial of the felon-in-possession defendant's suppression motion, holding that the defendant was unlawfully arrested under Payton v. New York. The defendant was arrested without a warrant when he answered his motel room door at 3:30 a...
Robbery, Gun Convictions Affirmed; Speedy Trial, Suppression, and In-Court ID Challenges Rejected
Posted on May 07, 2008U.S. v. Thompson, -- F.3d --, 2008 WL 1932115 (10th Cir. 5/5/08) - affirmance of bank robbery and gun convictions. No speedy trial violation because, since there was no grand jury in session when the time to file the indictment would otherwise have expired, the period for filing the indictment was extended 30 days...
Tenth Affirms Vitality of Gall/Kimbrough for Downward Variances, But Defendant's Boots Were Suspicious
Posted on May 07, 2008United States v. Muñoz-Nava, ___ F.3d ___, 2008 WL (10th Cir. May 6, 2008)Bad news first: there was probable cause to detain Defendant and take him to DEA HQ from the bus station where he arrived from El Paso wearing boots that attracted unwanted attention, and to detain those boots pending issuance of a search warrant...
Proposed New Guidelines
Posted on May 06, 2008The Fifth Circuit Blog has already done an excellent summary of the proposed new Guidelines amendments, so rather than re-creating the wheel, I urge you to visit the discussion, available here.
Civil Rights Claim Based on Failure to Enforce Protective Orders Proceeds
Posted on May 06, 2008Price-Cornelison v. Brooks, No. 05-6140, 5/2/08 - Denial of defendant's summary judgment motion based on claim of qualified immunity in this Section 1983 case affirmed in part. This is a civil rights case against an undersheriff. The plaintiff complained about the undersheriff's refusal to enforce some protective orders she got against her long-time girlfriend...
No Scienter Req't Needed to Enhance for Possession of Sawed-Off Shotgun; City Ordinance Violation Not Necessarily Countable in Crim History
Posted on May 02, 2008US v. Saavedra, No. 07-2192 (10th Cir. May 1, 2008): Half a sentencing loaf for a defendant who pled guilty to being an addict or unlawful user of a controlled substance in possession of a firearm and ammunition, in violation of 18 USC 922(g)(3). Following a traffic stop, Mr...
Upward Variance OK
Posted on April 29, 2008U.S. v. Taghizadeh, 2008 WL 17901291 (4/21/08) (unpub'd) - The 10th affirms an upward variance from 121 months to 216 months on the grounds that the sexual-exploitation-of-a-minor Guidelines contemplated neither the videotaping of sexual acts [as opposed to sexually explicit poses] nor the defendant participating in the sexual acts...
Civil Rights Claim Against Prison Guards Reinstated
Posted on April 29, 2008Gruenwald v. Maddox, 2008 WL 1766890 (4/17/08) (unpub'd) - The 10th reverses dismissal of a civil rights complaint. The prisoner sufficiently alleged an 8th Amendment claim where prison guards beat him while he was handcuffed, despite his lack of resistance to their attempts to move him to a different part of the prison...
Remand Based on Kimbrough
Posted on April 29, 2008U.S. v. Santillanes, 2008 WL 1790381 (4/21/08) (unpub'd) - The 10th remands in light of Kimbrough. The district court mistakenly believed it had no power to grant the defendant's variance motion, which asserted that the disparity between mixed and actual methamphetamine in the Guidelines produced a sentence greater than necessary under § 3553(a).
Wrongfully Incarcerated Plaintiff Could Recover Damages for Personal Hardship
Posted on April 29, 2008Lowery v. County of Riley, 2008 WL 1701682 (4/14/08) (Published) - Plaintiff sued officers for their interrogation that resulted in a coerced confession that resulted in a wrongful rape conviction that resulted in the plaintiff serving 10 years in prison until DNA evidence exonerated him...
Drumming Anti-War Protester's Civil Rights Claim Survives
Posted on April 29, 2008Fogarty v. Gallegos, 2008 WL 1765018 (4/18/08) (Published) - The 10th affirms for the most part Judge Johnson's ruling in favor of the civil rights plaintiff in denying summary judgment motions by officers involved in the crack-down on Iraq War protestors near UNM...
Summary Judgment Properly Denied in Sec. 1983 Case
Posted on April 23, 2008York v. City of Las Cruces, __ F.3d __, 2008 WL 1795062 (10th Cir. April 22, 2008)No summary judgment in 42 U.S.C. 1983 case for qualified immunity to police who arrested plaintiff for saying ?bitch? in public and within the hearing of others, and used brutal force in arresting him...
Limited English Proficiency Doesn't Justify Tolling AEDPA Deadline
Posted on April 23, 2008Yang v. Warden, __ F.3d __, 2008 WL 1795049 (10th Cir. April 22, 2008)Sec. 2254 petition filed over one year after pro se petitioner?s state court conviction became final is untimely, and there is no equitable tolling of the time due to fact that petitioner speaks Hmong as his first language...
Prison's Confiscation of Legal Materials Shortly Before AEDPA Deadline Could Support Equitable Tolling
Posted on April 17, 2008US v. Gabaldon, 06-2348 (10th Cir. 4/17/08) (published): The district court should not have dismissed the pro se petitioner's petition that was filed 36 days after expiration of the one-year AEDPA period, which expired on March 21, 2006. Mr. Gabaldon contended that he should receive equitable tolling because, on Feb...
Sparse Statement Insufficient, But Sentence Affirmed
Posted on April 17, 2008US v. Rainwater, No. 07-6185 (10th Cir. 4/16/08)(unpublished); Although this appeal was filed as Anders brief and the Tenth ultimately affirms, it is notable because the Tenth concludes that the district court's sparse statement imposing a 24 month sentence for violating supervised release conditions gave the Court no reason to conclude that it had considered the Chapter 7 policy statements and the 3553(a) factors when imposing sentence...
Below-Guidelines Sentence Reversed as Procedurally Unreasonable
Posted on April 16, 2008U.S. v. Peña-Hermosilla, ___F.2d. ___, 2008 WL 1723664(10th Cir. April 15, 2008 )Reversal of a below-guidelines sentence as procedurally unreasonable: ?failure to provide proper explanation for the chosen sentence is reversible procedural error.? ?Proper? in this case charts to a large extent Rule 32 requirements...
Order Denying Religious Freedom Defense to Drug Charge Not A Collateral Order
Posted on April 16, 2008U.S. v. Butts, --- F.3d ----, 2008 WL 1727051 (10th Cir. April 15, 2008).District court order that defendants could not raise at trial their First Amendment, Religious Freedom Restoration Act defense to the marijuana charges against them (MJ is a god), was not a final order that could be appealed under the collateral order exception to the requirement that only final orders can be appealed...
DWI Not A Violent Felony for ACCA Purposes; Supremes Reverse the Tenth
Posted on April 16, 2008Begay v. United States (06-11543), reversing 470 F.3d 964.In a 6-3 opinion authored by Breyer (dissent by Alito joined by Thomas and Souter)(concurrence by Scalia), the Court decided that 18 USC Sec. 924(e), the Armed Career Criminal Act?s second clause: ?is burglary, arson, or extortion, involves the use of explosives or otherwise involves conduct that presents a serious potential risk of physical injury to another? does not apply to DWI, and DWI is not a crime of violence within the ACCA...
Gun Conviction for Illegal Alien Affirmed; Pending Application Defense Rejected
Posted on April 11, 2008US v. Ochoa-Colchado, No. 07-4023, 4/11/08 (published) - Defendant was convicted of unlawful entry in 1993 but remained in the country. The government finally initiated removal proceedings in 2002, in response to which the defendant applied for cancellation of removal and adjustment of status, which was pending at all relevant times...
Burglary Conviction at Age 17 Qualified as Career Offender Predicate
Posted on April 11, 2008US v. Collins, No. 06-6191, 4/11/08 - The third time was something of a charm for the defendant in a drug conspiracy case. He was originally convicted of all nine counts following a jury trial. He was seventeen when he committed a second-degree burglary, which was treated at sentencing as a crime of violence, which made him a career offender, which got him a sentence of 360 months...
Confrontation Clause, Evidentiary Claims Rejected in 2254 Case
Posted on April 10, 2008Dalton v. Dinwiddie, No. 07-6126 (10th Cir. April 8, 2008) (unpublished): The Tenth denied the certificate of appealability and dismissed the appeal of the petitioner, who is serving life in Oklahoma, in this 2254 case. Mr. Dalton was convicted of murder and sentenced to life following the shooting of a young man in a robbery of the home where the man and his parents lived...
Prisoner's Complaint that his Property was Unlawfully Destroyed Dismissed
Posted on April 10, 2008Thomas v. NM Corrections, No. 06-2224 (10th Cir. April 9, 2008) (unpublished): Although the Tenth reviews the pro se prisoner's claims liberally, it concludes that he can not prevail in his 42 USC 1983 action based on the facts he alleged and affirm dismissal of the claims...
Grant of New Trial Based on Erroneous Admission of Testimony Affirmed
Posted on April 10, 2008US v. Grigsby, No. 07-7014 (10th Cir. April 9, 2008) (unpublished): A defense win! The Tenth affirms the district court's granting a new trial to a defendant convicted of sexually abusing his grandneice in Indian Country. The district court was concerned because it had allowed defendant's niece (not the victim) testify that 20 years earlier, the defendant had tried to abuse her...
Ownership Claim Provides Standing to Contest Forfeiture
Posted on April 09, 2008U.S. v. $148,840.00 in U.S. Currency, 2008 WL 901783 (4/4/08) (Published) - The claimant established standing to challenge the forfeiture of money found in the trunk of a rental car he was driving, even though he refused, on Fifth Amendment grounds, to disclose how he came to own the money...
OK Death Penalty Conviction Affirmed Despite Divided Jury, Failure to Give Manslaughter Instruction
Posted on April 09, 2008Gilson v. Sirmons, 2008 WL 863034 (4/2/08) (Published) - A habeas death penalty affirmance by a divided court.Reviewing the issue de novo [because the Oklahoma courts did not apply the correct standard], the 10th holds it was not a violation of due process for the jury to convict the petitioner of child abuse murder, even though the jury was divided as to whether he committed the crime by committing child abuse or by permitting the mother to do so...
An Example of a Preserved Objection to a GL Sentence!
Posted on April 09, 2008U.S. v. Kinchion, 2008 WL 886039 (4/1/08) (unpub'd) - The 10th reverses a guideline sentence because the district court applied a presumption of reasonableness to the Guidelines. The defendant preserved the error by asserting generally the court was not exercising the full range of its discretion...
Consecutive Sentencing Discretion Affirmed
Posted on April 09, 2008U.S. v. O'Bryan, 2008 WL 905189 (4/4/08) (unpub'd) - The Tenth affirms that district courts have discretion in deciding whether to impose consecutive or concurrent sentences. However, in deciding to address the concurrent sentencing discretion issue as though it had been preserved, the 10th contrasts the latest plain error sentencing cases with a possibly helpful published case: U...
Split Tenth Affirms Summary Judgment for Defendants in Civil Rights Case
Posted on April 09, 2008Hernandez v. Conde, 2008 WL 867968 (3/31/08) (unpub'd) - The Tenth affirms granting summary judgment in a civil rights case raising Franks issues. An undercover officer has Travis buy cocaine for the officer from a home across the railroad tracks from where the officer's car is parked...
Eyewitnesses' ID of Defendant Admissible Despite Leading Questions
Posted on April 09, 2008Corbett v. State of Kansas, 2008 WL 901179 (4/3/08) (unpub'd) - Leading questions of eyewitnesses at a deposition with the defendant present were insufficiently suggestive to give rise to a substantial likelihood of misidentification so as to warrant suppression of the eyewitnesses' deposition identification of the defendant, even though both eyewitnesses had previously identified someone else as the perpetrator.
Plain Error Applied Despite Gov't Failure to Allege Defendant Failed to Preserve Error
Posted on April 09, 2008U.S. v. Dunham, 07-5011 (4/7/08) (unpub'd) - The 10th can apply the plain error standard, even if the government doesn't point out the defendant's failure to object below. The institutional interests of the judiciary require that application, unlike where a party can waive some time limits...
Toxicology Report Not Testimonial
Posted on April 09, 2008U.S. v. Brown, 2008 WL 867971 (3/31/08) (unpub'd) - With a short-paragraph discussion, the 10th declares a hospital toxicology report on the defendant's cocaine ingestion is not testimonial for Crawford purposes.
No Insurance Co. Duty to Defend Insured Who Pleads Guilty in Related Criminal Case
Posted on April 09, 2008Pompa v. American Family Mutual Insurance Company, 2008 WL 837050 (3/31/08) (Published) - An insurance company had no duty to defend the insured in a wrongful-death action, in light of the criminal conviction exclusion of the insurance policy. That exclusion applied to the insured's guilty plea to negligent homicide...
10th Foregoes Categorical Analysis of "Enumerated" Crime in Reentry Case
Posted on April 04, 2008US v. Machado-Delgado, No. 06-2303, 4/3/08 - 16-level enhancement for reentry defendant who had previously been deported following his Arizona conviction for aggravated assault affirmed because prior 10th precedents establish that since aggravated assault is an enumerated crime of violence under USSG Sec...
Admitting Certificate of Nonexistence of Record Not Plain Error in Reentry Case
Posted on April 04, 2008US v. Provencio-Sandoval, No. 07-2119, 4/3/08 - No plain error in admission of Certificate of Nonexistence of Record (CNR) in defendant's trial for illegal reentry, over objection raised for the first time on appeal that admission violated the defendant's right of confrontation, because the alleged error was not "plain", which means "clear under current law"; neither SCOTUS nor the 10th have explicitly ruled on this issue, and every other circuit that has considered it has rejected it...
Upward Variance Presumed Reasonable
Posted on April 04, 2008US v. Limon, No. 07-1297, 4/3/08 - Upward variance for defendant who went on a bank robbing spree in which he used firearms affirmed. Lots of bad sentencing facts (multiple priors, increasingly violent crimes, substance abuse and gambling addition issues, scared people, etc...
Loss Calculation in Odometer-Rollback Case Reasonable
Posted on April 04, 2008US v. Sutton, No. 07-1223, 2008 WL 879429 (April 3, 2008): Defendant, a Colorado car dealer, pled guilty to one count of mail fraud and one count of odometer tampering related to a scheme in which he rolled back the odometers of 76 high mileage used cars so that they looked like they had lower mileage, then manipulated the titles so that new Arizona titles were issued showing the modified mileages as being real...
Remand to District Court to Explore Government's Use of Possibly Perjured Testimony in Suppression Case
Posted on April 01, 2008U.S. v. De La Campa Rangel, 2008 WL 787114 (3/26/08) (Published) - DEA agent Jay Perry's DEA-6 report and trial testimony contradicted his criminal complaint and preliminary hearing testimony as to how he got information that the defendant took a small black bag (subsequently found to contain cocaine) from a larger bag while sitting on the bus...
Interesting Cases from Other Circuits
Posted on April 01, 2008Relying on Gall and Kimbrough, the Fifth Circuit held that the district court could impose an above-guidelines sentence on a reentry defendant based on its conclusion that USSG 2L1.2 was under-inclusive in what it counted as prior drug trafficking offenses...
Not Error to Preclude Evidence of Intoxication in Reentry Case
Posted on March 25, 2008US v. Hernandez-Hernandez, No. 07-2028, 3/21/08 )Published) - Previously deported defendant became very drunk in a Palomas, Mexico, bar, and then was found in the US and had no memory of how he got there. District court did not allow him to present evidence of his intoxication in his 1326 prosecution for being found in the US after deportation...
Habeas Petition Reinstated
Posted on March 25, 2008Yellowbear v. Wyoming Attorney General, 2008 WL 748367 (3/21/08) (published) - The district court was wrong to hold the habeas 2254 petitioner had failed to exhaust his state remedies. When the petitioner filed his petition, he had not yet been convicted, but he had already argued before the state's highest court, [and obtained a decision from that court], that the state had no jurisdiction over his alleged offense, on the grounds that the offense occurred in Indian Country, But rather than decide the jurisdictional question, the 10th remanded to the district court to ask the petitioner if it would be okay to treat the petition, which pre-conviction was a 2241 petition, as a 2254 petition, because now the petitioner had been convicted...
Example of Below-GL Reentry Sentence
Posted on March 20, 2008US v. Gonzalez-Carballo, No. 07-2155 (D.N.M. No. 07-489): Although this appeal was filed as an Anders brief and the Tenth Circuit agreed, it is notable because the aggravated reentry defendant received a below-guidelines sentence of 24 months. The original guidelines sentencing range was criminal history category III, offense level 21...
Unpublished but Interesting Decisions
Posted on March 19, 2008U.S. v. Delgado, 2008 WL 647512 (3/10/08) (unpub'd) - The defendant fails the fourth prong of the plain error test where the district court post-Booker, stated: "the 10th has told sentencing judges they are normally to abide by the guideline ranges except for extraordinary circumstances" and defense counsel failed to object to this obvious misconception of Booker...
Sec. 1983 Case Remanded for Findings on Timeliness
Posted on March 19, 2008Mondragon v. Thompson, 2008 WL 624434 (3/10/08) (pub'd) - The plaintiff's right to sue based on his detention following the issuance of a forged warrant accrued at the time he was released or due process proceedings began, whichever came first. The Fourth Amendment claim was filed too late if it accrued before the plaintiff's release...
Summary Judgment in Favor of Bullying City Official Correct in 1983 Case
Posted on March 19, 2008Williams v. Berney, --- F.3d ----, 2008 WL 708436 (10th Cir. March 18, 2008).Summary judgment was proper on substantive due process claim under § 1983 against city licensing official who bullied and assaulted business owners who did not have proper license...
BIA Correctly Construed State Conviction As Meeting Federal Child Abuse Definition
Posted on March 19, 2008Ochieng v. Mukasey, ___F.2d. ___ (10th Cir. 2008, Feb. 6, 2008)The 10th ordered published, nunc pro tunc, this decision from earlier this year. The 10th denies Petitioner?s request for review of the BIA dismissal of his appeal from an order of removal...
Tipster Sufficiently Reliable; Denial of Suppression Motion Affirmed
Posted on March 19, 2008U.S. v. Sanchez, -- F.3d --, 2008 WL 697398 (10th Cir. 3/17/08) - the 10th upholds denial of suppression motion. Police were flagged down by an unknown woman who reported she saw a man hitting a woman in the face at a nearby intersection. Police went there, found neighbors pointing at two cars pulling out quickly from an area driveway, and stopped both vehicles...
Former CEO's Insider Trading Convictions Reversed; Expert Improperly Excluded
Posted on March 19, 2008U.S. v. Nacchio, -- F.3d --, 2008 WL 697382 (10th Cir. 3/17/08) - reversal of former Qwest CEO's convictions on 19 counts of insider trading because testimony of defense expert was wrongly excluded. The defense adequately disclosed the expert's opinions and qualifications under Rule 16; the district court was wrong in excluding testimony on the basis that the defense improperly failed to disclose expert methodology and the error was not harmless...
Info on Internet Legal Research Sites
Posted on March 18, 2008Law.com has this article on resources for free legal research on the internet. Entitled "Online Legal Research Revolution," by Robert Ambrogi, it discusses trends and developments in increasing free and public access to legal materials, with links to some of the excellent public-domain resources available on the net...
New Edition of "Introduction to Federal Sentencing" Available
Posted on March 18, 2008"An Introduction to Federal Sentencing: Tenth Edition" is now available from the Western District of Texas. This new edition of the extremely useful introduction to the intricacies of federal sentencing procedure covers Booker and the advisory guidelines, nuts and bolts for applying the guidelines, plea bargaining issues, and "traps...
Tax Evasion, Fraud Charges Affirmed
Posted on March 14, 2008US v. Thompson, 2008 WL 650009 (10th Cir. Mar. 12, 2008): The Tenth affirms the defendants' convictions on various conspiracy, tax fraud, and tax evasion charges. The opinion is long and detailed, so this is very summary and written late in the day...
Assault by "Drugging" Not a Crime of Violence
Posted on March 11, 2008U.S. v. Rodriguez-Enriquez, -- F.3d --, 2008 WL 624433 (10th Cir. 3/10/08) - The Tenth reversed the imposition of the 16-level enhancement under § 2L1.2 for having a prior crime of violence, holding that a prior Colorado conviction of assault two (drugging a victim) was not for a crime of violence...
Body Armor Enhancement OK'd
Posted on March 11, 2008U.S. v. Chambers, 2008 WL 622807 (3/5/08) (unpub'd) - It was okay to impose an enhancement for using body armor during the commission of a drug trafficking offense under § 3B1.5(2)(B), even if the defendant was not using the armor in connection with the offense...
Judicial Estoppel Argument Suggested by COA
Posted on March 11, 2008U.S. v. Abo-Seba, 2008 WL 565443 (3/3/08) (unpub'd) - The 10th suggests an approach that might be helpful in some cases. It noted the defendant could have argued the government was judicially estopped from arguing the defendant's testimony did not raise self-defense because at sentencing the government argued the defendant should get an obstruction of justice enhancement, on the grounds that if he had been believed the jury would have acquitted him based on self-defense...
Detention of Neighbor Justified When Officers Searched Home
Posted on March 11, 2008Chidester v. Utah County, No. 06-4255 (3/6/08) (unpub'd) - In this civil rights suit, the 10th found the officer was justified in detaining a resident of a home next door to the one the SWAT team invaded to execute a search warrant, when the neighbor stepped out onto his front lawn...
Appeal Waiver Inapplicable Where Plea Agreement Not Formally Accepted
Posted on March 11, 2008U.S. v. Nichols, 2008 WL 565438 (3/3/08) (unpub'd) - The 10th finds an interesting way to avoid an appeal waiver. The waiver did not apply because neither the magistrate judge nor the district court formally accepted the plea agreement. But the 10th rejects the defendant's sentencing argument...
SCOTUS Justices Air Views on Writing
Posted on March 11, 2008Law.com has a couple of interesting articles about the United States Supreme Court Justices and their views on brief-writing to check out. The first is "In Series of Videos, Supreme Court Justices Make Their Case." The other article is "In the Opinion of Justice Scalia...
Wiretap Affidavit Requirements Discussed
Posted on March 06, 2008US v. Gurrola-Rodriguez, No. 06-4192 (10th Cir. 3/6/08) (unpublished): The Tenth Circuit upholds the district court's denial of the defendant's motion to suppress wiretap evidence. The defendant had argued that the government failed to provide a sufficient statement regarding other investigative procedures as required by 18 USC 2518(1)(c)...
Interesting Cases from Other Circuits
Posted on March 05, 2008Danger to Foreign Community: A district court may consider a defendant's danger to a foreign community when determining whether it can deny pretrial release under the Bail Reform Act, the 9th Circuit held. Defendant was charged with, inter alia, conspiring to provide and providing support to terrorists based on the defendant's sending money and supplies to his brother in Malaysia, an acknowledged member of a terrorist group...
Tenth Finds Reasonable Suspicion to Stop Truck, Reversing District Court's Grant of Motion
Posted on March 05, 2008U.S. v. Lopez, --- F.3d ----, 2008 WL 570802 (10th Cir. March 04, 2008) The 10th reverses the district court suppression of drugs found after police stopped Defendant?s truck. Even though the stop of the truck for a violation of a traffic law was not justified, there was reasonable suspicion to stop it based upon the officer?s observations of activity involving the Defendant and others before Defendant drove onto the freeway (the cop had radioed others to find a traffic infraction for which to stop Defendant?s truck)...
By Waiting to Object after Seizure, Defendant Waived Attorney-Client, Work-Product Privilege
Posted on March 05, 2008U.S. v. Ary, --- F.3d ----, 2008 WL 565437 (10th Cir. March 04, 2008) The attorney-client and work-product privileges can be waived in the context of involuntary disclosure or disclosure pursuant to a subpoena or warrant. Waiver is analyzed by looking at how specifically the material is identified; how quickly the defendant informs the government that it seized protected material; and how quickly the defendant seeks judicial action to enforce the protection...
Below-Guideline Sentence Upheld Pursuant to Gall, Kimbrough
Posted on March 05, 2008U.S. v. Smart, --- F.3d ----, 2008 WL 570804 (10th Cir. March 04, 2008) In the 10th?s first big post-Gall and Kimbrough decision, over Judge Hartz?s dissent, the panel (Judge Lucero writing the opinion) upholds the district court's variance of 48 months below the advisory guidelines, resulting in a sentence of 120 months in a child porn case...
Improper Placement of Temporary Tag Under KS Law Supported Traffic Stop
Posted on March 05, 2008U.S. v. Martinez, -- F.3d --, 2008 WL 554812 (10th Cir. 3/3/08) - The Tenth Circuit affirms the district court's denial of the defendant's motion to suppress based on a traffic stop involving an out-of-state temporary registration permit that was not displayed on the rear of the car, as required by Kansas law, though lawfully displayed under the issuing state's law...
Remand for Clarification in Crack Case
Posted on March 05, 2008U.S. v. Trotter, -- F.3d --, 2008 WL 555699 (10th Cir. 3/3/08) - after granting the cert petition, vacation and remand by the Supreme Court in the wake of Kimbrough, the Tenth Circuit remands this case to the district court for clarification of why it rejected defendant's request for a variance based on the crack/powder disparity...
Counterfeiting Enhancement Reversed
Posted on March 05, 2008U.S. v. Tatum, -- F.3d --, 2008 WL 554818 (10th Cir. 3/3/08) - The district court erred in imposing a six-level enhancement under § 2B1.1(b)(10) because defendant's counterfeiting conduct did not involve use or possession of equipment designed or primarily used for making, trafficking, or producing what falls within the statutory definition of access devices, i...
Life-Threatening Bodily Injury Enhancement Affirmed
Posted on March 05, 2008U.S. v. Tindall, -- F.3d --, 2008 WL 554821 (10th Cir. 3/3/08) - District court did not err in imposing seven-level enhancement for permanent or life-threatening bodily injury in assault resulting in serious bodily injury case in which the doctor opined that the victims'head laceration posed a substantial risk of death due to blood loss...
Attempted Enticement of Child Upheld
Posted on March 04, 2008U.S. v. Butters, 07-3172 (2/29/08) (unpub'd) - The defendant could be convicted of attempted enticement of a minor via the computer even though the person he was enticing was an adult agent. The involvement of a real minor is irrelevant. It was not irrational in violation of due process or cruel and unusual punishment to impose the same ten-year mandatory minimum sentence on the defendant as is imposed on people who entice real minors...
Tenth Reverses Earlier Decision on Late Filing of Notice of Appeal; Affirms Lawfulness of Truck Search
Posted on March 04, 2008U.S. v. Mitchell, 2008 WL 542130 (2/29/08) (Published) - After getting a remand from the Supreme Court, the defendant wins the jurisdictional battle, but loses the suppression war. The 10th Circuit follows the recent holding in U.S. v. Garduno, 506 F...
AEDPA Time Limits Roll On Despite Counsel's Bad Advice
Posted on March 04, 2008U.S. v. Azubuike, 2008 WL 510527 (2/26/08) (unpub'd) - The Tenth addresses the AEDPA's time limitations and equitable tolling rules. It was not a legitimate excuse for a late 2255 filing that the defendant did not learn that his attorney misadvised him about the law until an inmate informed him of that fact...
Cancellation of Removal Unavailable for Alien with Only 8 Years of U.S. Residence
Posted on March 04, 2008Pohan v. Mukasey, 2008 WL 506284 (2/25/08) (unpub'd) - The alien cannot obtain cancellation of removal on "exceptional and extremely unusual hardship" grounds because he had not been present in the U.S. for 10 years before he was served with a notice to appear [he had been here 8 years]...
Plea Colloquy Error Did Not Negate Appeal Waiver
Posted on February 29, 2008US v. Ibarra-Coronel, No. 06-2183, 2008 WL 525381 (10th Cir. Feb. 28, 2008):Defendant pled guilty pursuant to a Rule 11 agreement to conspiracy to distribute more than 1K of heroin. The plea agreement included an appeal waiver. At the plea hearing, the magistrate mistakenly stated that the maximum penalty was 120 months, when actually that is the statutory minimum sentence...
Multiple Sentencing Hearings Not Unreasonable
Posted on February 28, 2008US v. Collins, No. 06-5221, 2/27/08 (unpublished) - District court did not abuse its discretion in conducting a series of sentencing hearings in an attempt to properly determine the correct amount of substance attributable to the defendant in this drug conspiracy case...
Colorado Harassment Convictions Not Categorically Crimes of Violence
Posted on February 28, 2008US v. Maldonado-Lopez, No. 07-2195, 2/27/08 (published): The Tenth Circuit reverses for resentencing in a reentry case in which the defendant had three prior misdemeanor convictions for harassment under Colorado law. Defendant objected to the three convictions being considered misdemeanor crimes of violence and his offense level under USSG 2L1...
Abandon Hope, All Ye Who Enter Here: Pew Report Documents Prison Population Explosion
Posted on February 28, 2008Or so Dante described the words at the portals to Hell in The Inferno. The phrase could describe the new American reality. A new Pew Report says that, for the first time, more than one in every 100 American adults is in jail or prison. The report tracks the surge in inmate population...
Attorney General Must Be Notified of Constitutional Challenge to Federal Statute in Civil Case
Posted on February 27, 2008Oklahoma ex rel Edmondson v. Pope, ___F.3d___, 2008 WL 495982 (10th Cir. Feb. 26, 2008) 10th remands case to the district court with instructions that it notify the Attorney General of the United States of a constitutional challenge to a federal statute (the Telephone Consumer Protection Act) raised by a litigant...
"Fugitive Disentitlement Doctrine" Applied to Immigration Appeal
Posted on February 27, 2008Martin v. Mukasey, ___F.3d___, 2008 WL 501113 (10th Cir. Feb. 26, 2008) Appellate review of a final order of removal is barred by the ?fugitive disentitlement doctrine.?After the Bureau of Immigration Appeals affirmed the immigration judge?s order of removal, petitioner failed to appear in front of the department of homeland security for removal pursuant to an order, and ?absconded...
Death Penalty Upheld in Oklahoma Double Murder Case
Posted on February 26, 2008U.S. v. Fields, -- F.3d --, 2008 WL 483281 (10th Cir. 2/25/08) - the federal government properly exercised concurrent territorial jurisdiction in this death penalty double murder case on national forest land. Prospective juror who said he could only support the death penalty in extreme cases was substantially impaired in his ability to consider the death penalty and was properly excused for cause...
Unpublished but Interesting Decisions
Posted on February 26, 2008U.S. v. Kolthoff, 2008 WL 467001 (2/20/08) (unpub'd) - The d.ct.'s finding that the drug dog "alerted" to drugs in the car was not clearly erroneous where the video showed the dog "heavily sniffed the trunk area twice and then looked to the handler." The handler explained that when the dog looks back he expects the handler to throw him a toy or "something...
Civil Rights Claim of Unconstitutional Jail Conditions Against County Sheriff Reinstated
Posted on February 22, 2008Tafoya v. Huerfano Co. Sheriff John Salazar, No. 06-1191 (10th Cir. 2/21/08) (published):Ms. Tafoya was sexually assaulted by a detention center guard while being detained in the jail. This assault occurred three years after the Tenth Circuit had held, in another case involving assaults on female detainees by male detention officers, that the assaults were the result of unconstitutional jail conditions and that Sheriff Salazar was deliberately indifferent to those conditions...
Plaintiffs Who Interfered with Son's Arrest Were Reasonably Seized
Posted on February 22, 2008Bradford v. Wiggins, No. 06-4287 (10th Cir. 2/20/08):Defendant deputies were entitled to qualified immunity in civil rights suit arising out of the defendants' alleged seizure of the plaintiffs when they interfered with the arrest of their son. The majority assumed without deciding that the Bradfords were seized, but that it was reasonable and did not violate the Fourth Amendment...
Gov't Did not Breach "Oral" Plea Agreement
Posted on February 22, 2008US v. Tremble, No. 07-3130 (10th Cir. 2/20/08) (unpublished):Tenth Circuit affirms Mr. Tremble's conviction and sentence for felon in possession. He was sentenced on Oct. 31, 2003, in Douglas County court to 40 months based on the same incident. He was also going to get sentenced in Shawnee County...
Wiretap, Slang Evidence Admissible in Drug Case
Posted on February 22, 2008U.S. v. Verdin-Garcia, --- F.3d ----, 2008 WL 435495 (10th Cir. Feb. 19, 2008)Defendants convicted of marijuana and methamphetamine trafficking conspiracies and related counts. - The DEA investigation relied heavily on gathering information on the structure and operations of the conspiracy from wiretaps (obtained with warrants)...
Consent to Search Unconstitutionally Coercive When Obtained by Deputy Who Was Also Lawyer
Posted on February 15, 2008Eidson v. Owens, 2008 WL 376770 (10th Cir. 2/13/08)After marijuana charges brought against Mr. and Mrs. Eidson in state court were dismissed after their suppression motion was granted, they brought a civil rights action against Deputy Sheriff Owens, who participated in the search and who was their former attorney...
Improper Guidelines Calculation Leads to Too Low of a Sentence, Remand
Posted on February 15, 2008United States v. Todd, No. 06-6334 (10th Cir. Feb. 12, 2008) District court guidelines sentence based on the 37 grams of meth Defendant was arrested with, rather on the 680 grams he admitted to having dealt in the previous year (and trial evidence tended to confirm multiple sales by Defendant) was clearly erroneous and not harmless, in spite of Gall...
Mandamus Appropriate Method for Obtaining Audiotape of Sentencing, not 2255
Posted on February 12, 2008U.S. v. Mondragon-Avilez, 2008 WL 313199 (2/5/08 (unpub'd) - The defendant's collateral relief waiver did not preclude a request for an audiotape of his sentencing hearing that he claims was mistranslated. But he had to seek the tapes by mandamus, not by 2255.
One Bad Brake Light Supports Stop
Posted on February 12, 2008U.S. v. Brewer, 2008 WL 313438 (2/5/08) (unpub'd) - Reading the Utah statutes in conjunction with the federal statutes, the 10th holds the officer had reasonable suspicion to make a traffic stop of the defendant because one of the three rear lamps on the car was inoperative...
New Sentencing Required Because District Court Presumed GL Sentence Was Reasonable
Posted on February 12, 2008U.S. v. Jesus-Gomez, 2008 WL 313388 (2/5/08) (unpub'd) - The 10th reverses the district court because it applied a presumption of reasonableness to the guidelines. The error was not harmless because the sentence was at the bottom of the guideline range...
Search of Defendant's Person Several Miles Away from Her Residence Was Improper
Posted on February 12, 2008U.S. v. Young, 2008 WL 313436 (2/5/08) (unpub'd) - The 10th reverses a denial of a motion to suppress. The search warrant only authorized the search of the defendant's person in the course of searching her residence. Consequently, the search of the defendant's person several miles away from her residence was beyond the scope of the warrant...
Habeas Petitioner Sentenced to Adult Prison When a Juvenile Denied Relief
Posted on February 12, 2008Gonzales v. Tafoya, --- F.3d ----, 2008 WL 307971 (10th Cir. Feb. 5, 2008).Petitioner was a passive, small, 14 year old who had long suffered from, among other things, bipolar disorder, depression, and ADD, when along with an older juvenile, he broke into the house of a couple they thought were not home...
Tenth Rejects Claims of Error, Affirms Death Sentence in OK Case
Posted on February 12, 2008Brown v. Sirmons, --- F.3d ----, 2008 WL 307452 (10th Cir. Feb. 5, 2008).Multiple issues raised in a §2254 death penalty case?the conviction and sentence were upheld by the Tenth. The overall result, both below and in federal court seems somewhat shocking given the nature of some of the claimed errors, the relative garden variety nature of the offense (killing of a clerk during a 7-11 robbery), and the extremely mild to non-existent criminal background of the petitioner (P) (3 separate illegal firearm possessions, and one assault and battery in what looked like a crowd melee fight)...
Tenth Considers "Prison Mailbox Rule"; Jury Instruction in Alien in Possession of Firearm Case
Posted on February 12, 2008US v. Lindsay, No. 07-3180 (10th Cir. 2/7/08) (unpublished): The Tenth Circuit dismisses the 2255 petitioner's appeal on the grounds that the notice of appeal was filed late on June 18, 2007. It declines to apply the prison mailbox rule even though 1) the petitioner had until June 15, 2007 to file; 2) the NOA and certificate of service were dated June 13, 2007; and 3) the envelope in which he mailed the documents to the district court was stamped as "received" on June 14, 2007 by the prison...
Tenth Circuit Decisions
Posted on February 06, 2008U.S. v. Lozano, 2008 WL 241119 (1/30/08) (Published) - A mildly helpful case for an acceptance of responsibility reduction after going to trial. Despite the defendant's assertion in her opening brief that the 10th should review only for plain error her challenge to the one-level acceptance of responsibility reduction, the 10th, in accordance with the government's concession, reviewed for harmless error...
Convict "To End Cycle of Violence" Improper But Not Plain Error
Posted on February 01, 2008United States v. Taylor, No. 06-1449 (10th Cir. Jan. 29, 2008) (published): The Tenth Circuit declines to find plain error even though it finds that a prosecutor's remark in his opening statements in Mr. Taylor's trial were inappropriate. Mr. Taylor was on trial for assault based on a fight he instigated on a reservation...
Un-Mirandized Confessions Admissible; Sentencing Enhancements for Vulnerable Victim, Abuse of Position of Trust as "Medicine Man" Upheld
Posted on February 01, 2008United States v. Chee, No. 07-4057 (10th Cir. 1/29/08) (published): The defendant, convicted of one count of aggravated sexual abuse while in Indian Country and sentenced to 235 months' imprisonment, followed by lifetime supervised release, appealed the district court's denial of his motion to suppress his oral and written confessions, and his sentence...
Petitioner, Convicted as a Juvenile in 1981, Still Fighting for Parole
Posted on January 30, 2008Alexander v. U.S. Parole Commission, --- F.3d ----, 2008 WL 224053 (10th Cir. Jan. 29, 2008).This may be a one of a kind case, under the old Youth Corrections Act, repealed in 1984, under which the petitioner was sentenced in 1981, as a 16-year-old convicted of 4 counts of first degree murder...
Concept of "Waiver" Popular These Days
Posted on January 30, 2008U.S. v. Taylor, --- F.3d ----, 2008 WL 224055 (10th Cir. Jan. 29, 2008).This case is a little more complex than it appears on the surface?it is a standard of review decision. It seems to signal that the concept of ?waiver? is in high ascendancy.The Defendant objected to the prosecutor?s improper remarks in opening statement, to ?end the cycle of violence? on the rez by convicting Defendant of the battery with which he was charged...
Tenth Circuit Decisions
Posted on January 28, 2008Jenkins v. Currier, 2008 WL 186866 (1/23/08) (Published) - State officers did not violate the plaintiff's Fourth Amendment or due process rights when they arrested the plaintiff and took him to the penitentiary without a warrant or a hearing. The plaintiff had been mistakenly released after serving time in federal custody, instead of being transferred to state custody to finish serving a state sentence...
Convictions for Illegal Alien in Possession of Firearms, Drug Charges Affirmed
Posted on January 25, 2008US v. Baltazar Mendez, Docket No. 06-3282 (10th Cir. 1/24/08)(published): The Tenth Circuit affirms the defendant's various convictions for unlawful firearms possession and maintaining a drug house. Officers in Wichita, KS, executed a search warrant on the defendant's residence (the warrant was obtained based on an investigation into a home invasion and kidnapping)...
Magistrate's Entry of Judgment Conclusive for Determining Appellate Jurisdiction
Posted on January 18, 2008US v. Pethick, No. 06-1525, 2008 WL 152583 (10th Cir. January 17, 2008) (published):The Tenth Circuit considers whether it has jurisdiction over an appeal from a conviction for misdemeanor DUI that occurred on a military reservation in Colorado. In this case, a magistrate judge handled initial proceedings...
Jurisdictional Challenge to Original Indictment Mooted by Agreed-Upon Plea to New Indictment
Posted on January 11, 2008US v. Gachot, No. 07-6061, 1/10/08 (published): Defendant, a Native American, was involved in running a cockfighting venture. He was originally indicted on two Oklahoma state felonies and one federal crime (sponsoring or exhibiting an animal in an animal fighting venture if any animal had been transported in interstate commerce)...
Conviction for PWID Marijuana Upheld
Posted on January 11, 2008US v. Montgomery, No. 07-3069, 1/10/08 (unpublished): Cop observed defendant buy a bunch of stuff at a hydroponics store. Criminal history check turned up two pot-related convictions. Check of utility records revealed that defendant?s residence used a lot more electricity than comparable residences in the neighborhood...
"171 Easy Mitigating Factors" Now Available
Posted on January 10, 2008I don't normally include plugs for products, but this one is unique. For many years, Michael Levine has been compiling arguments to be used in getting lesser sentences in federal court. It began with "88 Easy Departures," the latest version is descriptively entitled "171 Easy Mitigating Factors? (formerly ?88 Easy Departures?)...
BOP Has Authority to Set Payment Schedules
Posted on January 08, 2008Davis v. Wiley, 2008 WL 41067 (1/2/08)(unpub'd) - The BOP does not violate due process by setting an individualized payment schedule for the prisoner to pay restitution, according to its regulations, even though the district court does not do so, or apparently even if the court sets up a different schedule...
IAC Claim Must Be Pursued in 2255 Motion
Posted on January 08, 2008U.S. v. Smith, 07-1044 (1/4/08)(unpub'd) - The 10th refuses to remand to consider an ineffective assistance of counsel claim regarding an untimely motion for new trial. The 10th says the defendant must pursue a § 2255 motion.
State Conviction Based on Contemporaneous Conduct Could Be Counted in Criminal History
Posted on January 08, 2008U.S. v. Griffin, 07-6110 (1/4/08)(unpub'd) - It was okay to count in the defendant's criminal history score the defendant's state conviction for possession of the cocaine that was found at the same time and in the same place as the counterfeiting evidence that formed the basis of his federal counterfeiting conviction...
Arrest that was Unauthorized Under State Law Was Nonetheless Constitutional
Posted on January 08, 2008Brown v. Fisher, 06-3207 (previously reported at 2007 WL 3011051) (1/2/08)(unpub'd) - The 10th denies rehearing, but amends the decision. Initially, the 10th held that the plaintiff's arrest was okay because there was probable cause and the arrest was authorized under Kansas law...
Excessive Force Claim Denied
Posted on January 08, 2008Estate of Larsen v. Murr, 2008 WL 40020 (1/2/08)(Published) - An officer did not use excessive force when he shot dead a man, who had previously threatened violence against himself and others, and who refused to obey repeated orders to put down a knife with a blade over a foot long, and while holding the high ground from 7 to 20 feet away, took a step toward the officer...
Probation Search Ok'd
Posted on January 08, 2008U.S. v. Carter, 2008 WL 44567 (1/3/08)(Published) - Another probation search approved. That the probation agreement only required the probationer to permit a home search, and did not explicitly permit a search without his consent, did not mean officers could not search without his permission under Utah law...
Denial of Safety-Valve Relief Affirmed
Posted on January 03, 2008U.S. v. Altamirano-Quintero, 2007 WL 4554290 (12/28/07)(Published) - While it would have been error for the d.ct. to deny a safety valve adjustment solely because the defendant refused to debrief, the d.ct. did not require a debriefing, as the defendant claimed...
Rejection of Plea Agreement OK Despite Court's Receipt of Undisclosed Victim Impact Evidence
Posted on January 03, 2008U.S. v. Rakes, 2007 WL 4510264 (12/26/07)(Published) - The 10th acknowledges the defendant's arguments "have force," but rejects them all. The 10th affirms the d.ct.'s rejection of the defendant's plea agreement that would have resulted in a sentence of 9 months [after trial, the defendant ended up with a sentence of 63 months!), where, prior to the plea rejection, and unbeknownst to the defendant, the victim, who was an AUSA, had written to the judge explaining the impact on her of the defendant's threatening letter...
Sentence Reversed Because District Court Underestimated Its Discretion
Posted on January 03, 2008U.S. v. Garcia-Salas, 2007 WL 4553913 (12/27/07)(unpub'd) - The 10th reverses the district judge for thinking he had less discretion than he really had. The defendant's grounds for variance included: (1) his prosthetic leg made his prison conditions bad; (2) he was a good stay-at-home father with two kids and he worked devotedly in a group that tried to discourage teenagers from having children; and (3) he suffered lots of traumas as a child, e...
Out with the Old, In with the New (Rules): 10th Circuit Rules Changes and Forms Effective Jan. 1, 2008
Posted on January 02, 2008The new rules (available here on the Tenth Circuit's website)don't change much, but be sure to download the new version of the docketing statement. The most significant change is something that affects the government. New Rule 27 explicitly discusses the government's motion to enforce an appeal waiver...
Tenth Circuit Decisions
Posted on January 02, 2008A few 10th Circuit cases:U.S. v. Shurtz, 2007 WL 4418180 (12/19/07)(Published) - Another imaginative defense argument bites the dust. The defendant argued 21 CFR § 1038.12(d) required the government to prove the meth he possessed was of sufficient quantity to have a stimulant effect on the central nervous system...
Suppression of Statements Taken In Violation of Miranda Affirmed
Posted on December 21, 2007US v. Revels, No. 06-5223 (12/20/07): Government took interlocutory appeal from order of district court suppressing defendant?s statements for Miranda violation and Tenth Circuit affirmed. Defendant and her boyfriend were in bed when cops executed search warrant at 6:00 a...
Speedy Trial Act Violated; District Court Gets to Decide if Dismissal Should Be With Prejudice
Posted on December 21, 2007US v. Williams, No. O6-5036 (12/20/07): Dismissal ordered for violation of Speedy Trial Act; case remanded for determination of whether dismissal should be with or without prejudice. On October 10, 2004, the defendant was indicted on charges of possession of crack with intent, possession of a firearm in connection therewith, and felon in possession of the firearm...
Dirty License Plate Grounds for Stop; Lengthy Detention and Search OK
Posted on December 21, 2007U.S. v. Lyons, --- F.3d ----, 2007 WL 4395442 (10th Cir. Dec. 18, 2007)Stop of vehicle at night for a dirty and hard to read license plate was valid, because it was a violation of Kansas law to have an obscured plate. Even though cop wiped the dirt off the registration sticker and read it before talking to driver/D, driver was still in violation of law (unlike 10th Cir...
Denial of Motion to Withdraw Guilty Plea Upheld
Posted on December 21, 2007U.S. v. Hamilton, --- F.3d ----, 2007 WL 4393257 (10th Cir. Dec. 18, 2007)The 10th upholds the district court?s denial of D?s motion to withdraw his plea based on ineffective assistance of counsel (no abuse of discretion in denying the motion). (D pleaded guilty to drugs and gun+drugs)...
Conspiracy to Commit 2nd-degree Burglary Not an ACCA Predicate
Posted on December 21, 2007U.S. v. Fell, --- F.3d ----, 2007 WL 4395444 (10th Cir. Dec. 18, 2007) Nice defense victory, holding that conviction of Colorado conspiracy to commit second degree burglary is not a violent felony under ACCA, after analyzing the statute under James v...
Tenth Affirms Within-GL Sentence Post-Gall
Posted on December 21, 2007U.S. v. McComb, --- F.3d ----, 2007 WL 4393142 (10th Cir. Dec. 18, 2007). A first, not very elucidating grappling with Gall, in an opinion by Gorsuch, in which a within guidelines sentence at the low end is deemed reasonable. There is the discussion of procedural and substantive reasonableness...
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What are the differences in the jurisdictions of State and Federal Courts?
U.S. Supreme Court cases must be followed by all courts nationwide. State Suprem...
Is it libel to write blog posts and/or online reviews about a local business that defames one's reputation?
Libel is the form of defamation expressed in fixed-- usually written form. Sland...
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