Criminal Law

Tenth Restricts Conditions That Can Be Placed On Supervised Release Conditions

Posted on February 24, 2011
U.S. v. Mike, 2011 WL 538867 (2/17/11) (Published) - Some important restrictions placed on supervised release conditions in sex offender and other cases. First, the 10th shoots down a ripeness argument. Supervised release terms are directly appealable even though they are subject to later modification...

U.S. v. Torrez-Chavez, 2011 WL

Posted on February 22, 2011
U.S. v. Torrez-Chavez, 2011 WL 465489 (2/10/11) (N.M.) (unpub'd) - While acknowledging a few unpublished decisions presumed a below-guideline-range sentence to be reasonable, this particular panel suggests such a sentence would not be entitled to that presumption...

U.S. v. Burke, 2011 WL 310520 (2/2/11)

Posted on February 18, 2011
U.S. v. Burke, 2011 WL 310520 (2/2/11) (Kan.) (Published) - The 10th puts a premium on careful pleading in the district court re: suppression motions. As the more specific rule, Rule 12(e)'s waiver rule prevails over Rule 52's plain error provision. So, failure to make a particular argument for suppression amounts to a waiver, precluding plain-error review of the argument, absent the "rare" good cause for not raising the issue below...

US v. Madrid, 2011 WL 455766, No.

Posted on February 16, 2011
US v. Madrid, 2011 WL 455766, No. 09-2262 (NM), 2-10-11 - The issue was how the government can challenge the district court's extension of time in which to file a notice of appeal. Defendant counsel filed motion to extend time to file notice of appeal after time had already run...

To access this complete feed in the blog feed reader login or register for free.

US v. McBride, -- F.3d --, 2011

Posted on February 15, 2011
US v. McBride, -- F.3d --, 2011 WL 489681 (10th Cir. 2/14/11) (Kansas) - a rebuttable presumption of reasonableness is accorded to a sentence imposed upon revocation of supervised release when it is within the range suggested by USSC policy statements...

US v. Perez, 2011 WL 304565, Docket

Posted on February 08, 2011
US v. Perez, 2011 WL 304565, Docket No. 10-3063 (10th Cir. 2/1/11) (unpublished): A defense victory for the defendant charged with illegal possession of a sawed-off shotgun. The Tenth affirms the district court's suppression of a bullet found in the defendant's pocket...

US v. Begay, -- F.3d --, 2011 WL

Posted on February 08, 2011
US v. Begay, -- F.3d --, 2011 WL 359355 (10th Cir. 2011) (NM) - The COA upholds the post-release modification of Mr. Begay's supervised release conditions to include polygraph testing. Mr. Begay was a convicted sex offender who was released to a halfway house after serving a 196-month sentence...

A few 10th Circuit cases, including

Posted on February 01, 2011
A few 10th Circuit cases, including a defense victory in a published case!U.S. v. Goodman, 2011 WL 258282 (1/28/11) (Okl.) (Published) - Where PTSD insanity was the defense, the d. ct. reversibly erred when it limited the testimony of lay witnesses to their observations immediately before the robberies and precluded lay opinions on the defendant's sanity...

U.S. v. Yeley-Davis, 2011 WL 167249

Posted on January 31, 2011
U.S. v. Yeley-Davis, 2011 WL 167249 (1/20/11) (Wyo.) (Published) - Phone company cell phone records are not testimonial and therefore not governed by Crawford's interpretation of the Confrontation Clause. The records were kept for business purposes, not for litigation...

A few 10th Cir. cases, with two

Posted on January 12, 2011
A few 10th Cir. cases, with two defense victories!!! and some S. Ct. news. First, the 10th:U.S. v. Dobbs, 2011 WL 14459 (1/5/11) (Okl.) (Published) - An incredible child porn evidence-insufficiency defense victory. The case ended up with only 2 images as the subject of the prosecution for knowingly receiving child porn...

U.S v. Regan, 2010 WL 5191328 (12/23/10)

Posted on January 05, 2011
U.S v. Regan, 2010 WL 5191328 (12/23/10) (Published) - The 10th describes the argument that the child porn guidelines are not empirically based or rational as "quite forceful," but proceeds to ignore it. Even though only a substantial reasonableness argument was made on appeal, the 10th refused to consider the absurdity of the child porn guidelines because it thought that feature of the guidelines had not been presented below...

Happy holidays!

Posted on December 22, 2010
The blog is unlikely to have any additions for the next couple of weeks, as I will be taking a vacation. I would like to wish you a happy holiday, a prosperous and healthy new year, and many, many, many not-guilty verdicts.

District Court's Refusal to Reinstate Civil Rights Suit Against City OK'd

Posted on December 22, 2010
Manzanares v. City of Albuquerque, 2010 WL 5116912 (12/16/10) (Published) - District judge did not abuse his discretion when he refused to reinstate a law suit against the city. The judge had initially dismissed the suit on the grounds the separate suit against the officer involved was meritless...

After Serving 17 Years, Exonerated Plaintiff Not Allowed to Hold City Responsible for False Testimony

Posted on December 22, 2010
Bryson v. Oklahoma City, 2010 WL 4923894 (12/6/10) (Okl.) (Published) - After serving 17 years in prison, the plaintiff was exonerated by DNA evidence where a forensic chemist had falsely testified at the plaintiff's trial that semen found at the crime scene was consistent with samples taken from the plaintiff, when in fact her own lab tests indicated the plaintiff could not have been the semen donor Although the city may have been deficient in training and supervising the chemist, the plaintiff could not establish the city's deliberate indifference that is required to obtain relief, because the city didn't know about the chemist's shortcomings until after the plaintiff's trial...

Oklahoma Allwed to Substitute Drugs for Execution

Posted on December 22, 2010
Pavatt v. Jones, 2010 WL 5072132 (12/14/10) (unpub'd) - The capital petitioners could not show Oklahoma's substitution of pentobarbitol for the hard-to-acquire sodium thiopental as part of the lethal-injection regimen had a high enough risk of causing intense pain to warrant an injunction.

Appeal Waiver Could Not Be Enforced

Posted on December 22, 2010
U.S. v. Flores, 2010 WL 5128715 (12/16/10) (Wyo.) (unpub'd) - The government concedes an appeal waiver is unenforceable when it was not mentioned at the plea hearing.

Life Sentence For Probation Violation Affirmed

Posted on December 22, 2010
Schumaker v. Ortiz, 2010 WL 5094282 (12/15/10) (Colo.) (unpub'd) - 10th denies habeas relief where petitioner received a life sentence after violating probation for a sex abuse offense. The petitioner violated the condition that he could not deny he committed the offense to which he was pleading guilty...

15-year Fraud Sentence Affirmed Despite Failure to Establish Guideline Range

Posted on December 22, 2010
U.S. v. Zaler, 2010 WL 5097758 (12/15/10) (Colo.) (unpub'd) - The 10th affirms an upward variance of unclear length to 15 years for fraud. The district court never clarified what the disputed guideline range was. When the defendant complained the court had not addressed his guideline arguments, the court responded: "I think I addressed that the guidelines are not being applied and hence the objections regarding the guidelines have no bearing at all upon my sentence...

IJ's Revocation of Immigration Petition Held Unreviewable

Posted on December 22, 2010
Green v. Napolitano, ___ F.3d ___ , 2010 WL 5157366, (10th Cir. 2010). Immigration judge?s decision to revoke an immigration petition under 8 USC § 1155 is discretionary and therefore not reviewable. In this case, the petition by a citizen for alien spouse was revoked when ex of alien said the marriage was a sham...

"The Racial Geography of the Federal Death Penalty" Article Discusses Geographic and Racial Distortions in the Federal Death Penalty

Posted on December 22, 2010
It is well known that Blacks and other minority group members are disproportionately over-represented on death rows across the US. Defendants are more likely to be sentenced to death for killing a white victim, and Black defendants are disproportionately executed...

More Ideas for Attacking "Junk" Science

Posted on December 20, 2010
Here is an excellent article at http://www.clpex.com/Information/Draft-McMurtrie_final.pdf - lots of footnotes, "also discusses other areas, notably Comparative Bullet Lead Analysis and Shaken Baby Syndrome, where petitioners have successfully raised post-conviction claims based upon new developments in forensic science...

10 Cir. Cases:Lopez v. Trani, --

Posted on December 13, 2010
10 Cir. Cases:Lopez v. Trani, -- F.3d --, 2010 WL 4923891 (10th Cir. 12/6/10) (Colo.) - Equitable tolling on the basis of a sufficiently supported claim of actual innocence, which permits a petitioner to get past an untimely filed habeas petition, does not require the petitioner to demonstrate that he has diligently pursued the claim of actual innocence beforehand...

A comment re: the SCOTUS cert grant

Posted on November 17, 2010
A comment re: the SCOTUS cert grant in Tolentino and a couple of 10th cases. First, the S. Ct.Tolentino v. New York, 2010 WL 2552574 (11/15/10) - This cert grant could very well gut our cherished decision in U.S. v. Olivares-Rangel, 458 F.3d 1104 (10th Cir...

Tenth Circuit published cases

Posted on November 17, 2010
Thomas v. United States, ___ F.3d ___ , 2010 WL xxxx, No. 9-3291 (10th Cir. 2010) (Kan).Court denies 28 U.S.C. § 2241 petition for a writ of habeas corpus challenging on ineffective assistance grounds petitioner?s court martial and sentence, finding military court?s dismissal of his post-conviction challenge rested on adequate legal grounds...

S. Ct. and 10th Cir. cases. First,

Posted on November 10, 2010
S. Ct. and 10th Cir. cases. First, the S. Ct.:Wilson v. Corcoran, 2010 WL 4394137 (11/8/10) - The S. Ct. continues its practice established last year of per curiam reversals to correct errors. This case goes against the capital habeas petitioner. The 7th Circuit granted relief on the grounds that the Indiana S...

Sheriff Not Responsible for Officer's Unlawful Tasering of Immigration Detainee; Summary Judgment Upheld

Posted on November 10, 2010
Porro v. Barnes, ___ F.3d ___ , 2010 WL xxxx, No. 10-6002 (10th Cir. 2010) (OK)Plaintiff, an immigration detainee, was tasered 3 times after being strapped into a restraint chair. District court awarded him $100k against the cop who tasered him, but granted summary judgment for the sheriff and his successor...

Unpublished Decisions

Posted on October 28, 2010
Robinson v. Ledezma, No. 10-6123 (10/14/10) (unpub'd) - Another example of how AEDPA-collateral relief rules can compromise justice, unless some spark of humanity is introduced somewhere. Everyone agrees that the defendant got screwed. He pleaded guilty to possession with intent to distribute 1...

Utah Can Constitutionally Require Sex Offenders to Register Internet Information

Posted on October 28, 2010
Doe v. Shurtleff, ___ F.3d ___ , 2010 WL 4188248 (10th Cir. 2010) Utah statute requiring all sex offenders living in the state to register their internet identifiers and address does not violate First or Fourth Amendments or Ex Post Facto clause. (Though the law was more expansive, the legislature amended it after the suit was filed, and included some restrictions on how the information could be used...

Partial Victory for Pro Se Prisoner Plaintiff Alleging Civil Rights Claims

Posted on October 28, 2010
Gee v. Pacheco, ___ F.3d ___ , 2010 WL 4196034 (10th Cir. 2010) (WY)Another partial victory for a pro se prisoner filing a Sec. 1983 civil rights claim alleging 1st, 8th, and 14th Amendment claims. The COA reversed the dismissal with prejudice of some though not all of the claims (some were time-barred; some did not state a claim)...

Reentry Defendant Received a 13+ Month Sentence For Prior Drug Offense With Prob. Violation Sentence Added

Posted on October 20, 2010
United States v. Rendon-Alamo, ___ F.3d ___ , 2010 WL xxx (10th Cir. 2010) (NM) (No. 10-2089)According to the guidelines' Commentary, the calculation of whether a reentry defendant received more than 13 months imprisonment for a prior felony drug offense, which qualifies a reentry defendant for the 16 point bump up under the USSG § 2L1...

Bloggers, promote your law blog by nominating your blog for inclusion in USLaw.com's Law Blog Directory and RSS Reader. Benefits described.