Criminal Law

Court affirms conviction based on co-conspirator's brandishing of firearm

Posted on August 28, 2020
United States v. Bailey, No. 19-5069, 2020 WL 5083329 (10th Cir. Aug. 28, 2020) (OK) Mr. Bailey committed a series of robberies at Walgreens. For the robbery at issue in this appeal, he coached a kid through the robbery, gave him a firearm and mask, and acted as a getaway driver...

Enhancement for leader/organizer affirmed

Posted on August 18, 2020
United States of America v. Gehrmann, 2020 WL 4280673 (10th Cir. July 28, 2020) (published): Dr. Gehrmann appealed the two-level adjustment under U.S.S.G. § 3B1.1(c) for his aggravating role in a conspiracy to defraud the United States. He and his codefendant, Dr...

Federal Conviction of Assault with a Dangerous Weapon Is A Crime of Violence, Tenth Circuit Holds

Posted on August 17, 2020
United States v. Muskett, No. 17-2123, 2020 WL 4726020 (10th Cir. Aug. 14, 2020) (N.M.) 2255 appeal seeking to vacate a conviction for brandishing in furtherance of a crime of violence post-Davis. The predicate felony was assault with a dangerous weapon, 18 U...

Oklahoma Drug Convictions Did Not Qualify as Serious Drug Offenses for ACCA Purposes

Posted on July 09, 2020
US v. Cantu, 2020 WL 3636331, Docket No. 19-6043 (10th Circuit July 6, 2020): On plain error review, the Tenth Circuit reverses Mr. Cantu?s sentencing under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). Defendant?s Oklahoma drug convictions did not qualify as serious drug offenses for purposes of the ACCA...

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Oklahoma Lacks Jurisdiction to Prosecute Indians for Crimes that Occur in Indian Country, Including Much of Tulsa

Posted on July 09, 2020
In Sharp v. Murphy, Docket No. 17-1107, the Supreme Court affirmed the Tenth Circuit?s decision in Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017), for the reasons stated in McGirt v. Oklahoma. In Murphy, the Tenth had held that the Creek reservation had not been disestablished and that the State of Oklahoma lacked jurisdiction to prosecute the petitioner for a murder that occurred on the reservation...

Court Affirms Upward Variance to 30 Years

Posted on July 02, 2020
United States v. Tommy Pena, Docket No. 19-2050 (10th Cir. June 24, 2016) (published): The Tenth affirms a huge upward sentencing variance.Mr. Pena was convicted of a variety of crimes, including carjacking, felon in possession, and 18 USC 924(c). Under the 2010 guidelines, he was both ACCA and a career offender, and he was sentenced to 40 years in prison, based on the mandatory minimum sentence of 30 years for being a career offender under the guidelines and a consecutive 10-year sentence for the 924(c) conviction...

Mid-trial Waiver of Right to Counsel Was Not Knowing; Conviction Reversed

Posted on June 18, 2020
United States v. Hamett, 2020 WL 3167626 (10th Cir. June 15, 2020) (OK): The panel sets aside Hamett?s convictions, including kidnapping, and remands for a new trial because Hamett?s mid-trial waiver of his right to counsel was not made knowingly and intelligently...

Winn v. Cook, 2019 WL 72073332

Posted on June 16, 2020
Winn v. Cook, 2019 WL 72073332 (10th Cir. December 23, 2019) (OK): Winn filed a habeas petition under 28 U.S.C. § 2241. He alleged that a jury trial waiver he signed was invalid and asked the district court to order the state court to hold a jury trial...

United States v. Mendenhall, 2019

Posted on June 16, 2020
United States v. Mendenhall, 2019 WL 7207352 (10th Cir. December 23, 2019) (OK): After reviewing for plain error, the panel held that Congress has authorized restitution only for the loss caused by the specific conduct that is the basis of the offense of conviction...

Sandusky v. Goetz, 2019 WL 6834803

Posted on June 16, 2020
Sandusky v. Goetz, 2019 WL 6834803 (10th Cir. December 16, 2019) (CO): In every year since 2014, Congress has passed an appropriations rider which stipulates that the Department of Justice may not use appropriate funds to obstruct states from promulgating and enforcing their own laws legalizing acts pertaining to medical marijuana...

United States v. Robertson, 2020

Posted on June 16, 2020
United States v. Robertson, 2020 WL 54652 (10th Cir. January 6, 2020) (NM)Robertson pleaded guilty to being a felon in possession of a firearm. The probation office asked the court to apply a ten level enhancement: four levels under USSG § 2K2.1(b)(6) for assaulting a police officer with the firearm; and another six levels using U...

United States v. Tony, 2020 WL

Posted on June 16, 2020
United States v. Tony, 2020 WL 413445 (10th Cir. January 27, 2020) (NM): A remarkable reversal of a first degree murder conviction by our Colorado FPD colleague Josh Lee. The panel held the district court incorrectly excluded evidence that the alleged victim used methamphetamine before he fought with Tony because its reasons for doing so were unsupported by the record...

United States v. Rubbo, 2020 WL

Posted on June 16, 2020
United States v. Rubbo, 2020 WL 416410 (10th Cir. January 27, 2020) (CO): On appeal Rubbo complained that the government breached the plea agreement by recommending a 15% departure rather than the 20% departure called for in the agreement. The panel held the express language of the agreement shows that the government did not "unequivocally" promise to recommend a departure of a certain percentage...

US v. Sophia Zayas, No. 18-2154

Posted on June 16, 2020
US v. Sophia Zayas, No. 18-2154 (10th Cir. Feb. 6, 2020): The Tenth Circuit reverses the district court?s denial of Ms. Zayas? motion to withdraw her plea of guilty to the New Mexico crime of child abuse resulting in great bodily harm, through the Assimilated Crimes Act...

U.S. v. Gaspar-Miguel, 947 F.3d

Posted on June 16, 2020
U.S. v. Gaspar-Miguel, 947 F.3d 632, 19-2020, 2:18-PO-2441 RB-GBW (Jan. 16, 2020) (D. N.M.)Petrona Gaspar-Miguel, a citizen of Guatemala, crossed the border on foot with a group of other migrants. A Border Patrol agent watched the group through binoculars from the time they crossed until they were apprehended...

United States v. Jose Vicente Lira-Ramirez,

Posted on June 16, 2020
United States v. Jose Vicente Lira-Ramirez, 2020 WL 1071033 (10th Cir. March 6, 2020) (KS):The Tenth affirms the denial of Mr. Lira-Ramirez?s motion to dismiss. He was indicted on a charge of illegally reentering in violation of 8 U.S.C. § 1326(a) and tried to make a jurisdictional challenge, arguing that the notice to appear in his prior removal did not state the date and time of his removal proceeding...

United States v. Chatman, 2020

Posted on June 16, 2020
United States v. Chatman, 2020 WL 1239468 (10th Cir. March 16, 2020) (OK): The panel reverses two of Chatman?s three convictions. A jury convicted Chatman of being a felon in possession of a firearm, obstructing justice by attempting to kill a witness and using a firearm in furtherance of a crime of violence...

United States v. Finnesy, No. 18-3045,

Posted on June 16, 2020
United States v. Finnesy, No. 18-3045, 2020 WL 1314721 (10th Cir. Mar. 20, 2020) (KS)Defendant absconded from the halfway house and was charged with escape. He pled pursuant to a plea agreement under which the government agreed to recommend concurrent time with defendant?s state sentence and credit for acceptance of responsibility...

United States v. Blackbird, 949

Posted on June 16, 2020
United States v. Blackbird, 949 F.3d 530, 532 (10th Cir. 2020)USSG § 2A3.2(b)(1) ? 4 level enhancement for Sex Abuse of minor in custody or care or supervisory control of defendantThe Tenth interprets this enhancement as requiring the defendant must have a degree of authority or control over minor...

United States v. Manzanares, No.

Posted on June 16, 2020
United States v. Manzanares, No. 18-2010, 2020 WL 1898797 (10th Cir. Apr. 17, 2020)The Court affirms its prior holdings that New Mexico robbery (aggravated or not) is a crime of violence, post-Stokeling. The Tenth holds that Stokeling did not alter its holding in Garcia...

United States v. Sandoval, No.

Posted on June 16, 2020
United States v. Sandoval, No. 19-2041, 2020 WL 2603208 (10th Cir. May 22, 2020) This was a DWI/car accident case where the defendant was sentenced under U.S.S.G. § 2A2.2 and was subject to an increased aggravated assault sentence because the victim lost part of her pinky finger in the accident...

Traffic Stop Was Not Unreasonably Prolonged

Posted on June 16, 2020
United States v. Morales, 2020 WL 3041600 (10th Cir. June 8, 2020) (N.D. OK): The panel holds that an officer did not unreasonably prolong a valid stop by gathering information about the driver and passenger during a 15 minute phone call with the El Paso Intelligence Center (EPIC), a national law enforcement database...

The Hon. Judge McKay passed away

Posted on April 02, 2020
According to the Tenth Circuit's website, the Hon. Monroe McKay passed away March 28 for natural causes unrelated to the pandemic. For more information, visit https://www.ca10.uscourts.gov/ce/news/memorium-honorable-monroe-g.-mckay. I had the opportunity to hear him speak once...

Mortgage Fraud Conviction, Sentence Affirmed

Posted on March 24, 2011
US v. Washington, 2011 WL 1025750, No. 10-3144 (10th Cir. 3/23/11): Defendant convicted of conspiracy to commit wire and mail fraud, wire fraud, and commercial carrier fraud, based on a mortgage fraud scheme involving several loans and properties. On appeal, he claimed the evidence was insufficient on the commercial carrier fraud count because the delivery of the mortgage closing documents by FedEx to the lender was not essential to the scheme and occurred after the scheme had been completed...

U.S. v. Cudjoe, 2011 WL 904418

Posted on March 22, 2011
U.S. v. Cudjoe, 2011 WL 904418 (3/15/11) (Okl.) (Published) - The 10th holds U.S. v. Corey, 999 F.2d 493 (10th Cir. 1993) is no longer good precedent. In Corey, the 10th held a 924(c)(1) violation was a Class D felony and so the maximum supervised release term that could be imposed for that offense was 3 years...

U.S. v. Johnson, 2011 WL 729232

Posted on March 10, 2011
U.S. v. Johnson, 2011 WL 729232 (3/3/11) (Kan.) (unpub'd) - Michigan v. Summers, 452 U.S. 692 (1981), which holds that officers may detain any "occupant" of property that the officers are searching pursuant to a warrant, is a bright-line rule that is not subject to an ad hoc balancing test...

New Criminal Pattern Jury Instructions Issued by Tenth Circuit

Posted on March 10, 2011
There is a new 2011 edition of the Tenth Circuit Pattern Jury Instructions (Criminal). They are not yet posted on the Tenth Circuit's website, but they can be found on WestLaw. The Introduction says the Committee has updated all Apprendi references in light of case law developments, comments and use notes have been updated, and some instructions have been substantially revised, such as those for narcotics, coercion and duress, voluntariness of confessions, instructions before trial (in light of computer and cell phone access by jurors), and partial verdict instructions...

Important S. Ct. News and some 10th Cir. cases.

Posted on March 02, 2011
First, the S. Ct.:Michigan v. Bryant, 2011 WL 676964 (2/28/11) - By a 6-2 vote [Justice Kagan recusing], with Justice Sotomayor writing for the majority and Justices Scalia and Ginsburg dissenting,the S. Ct. explains further what it means by "testimonial" under Crawford and it's not a pretty picture...

Unpublished Decisions

Posted on February 24, 2011
U.S. v. Olvera-Rivera, 2011 Wl 550086 (2/16/11) (Kan.) (unpub'd) - It was okay to enhance under § 2D1.1(b)(1) for possession of a firearm during the drug offense where the firearm was brought by the drug customer of the defendant. It was reasonably foreseeable that a drug customer would arrive at a scheduled transaction armed with a gun...

Officers May Not Demand ID Absent Reasonable Suspicion of Other Criminal Conduct;

Posted on February 24, 2011
Romero v. Schum, 2011 WL 505144 (2/15/11) (N.M.) (unpub'd) - The 10th reverses a ruling that a state police officer was entitled to qualified immunity. It was clearly established law that an officer cannot demand a person disclose his identity [and arrest him if he doesn't do so] absent reasonable suspicion that the person was engaged or had engaged in criminal conduct...

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