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Criminal Law

Tenth Circuit Blog

Commentary and summaries of cases before the Denver-based 10th U.S. Circuit Court of Appeals.
By Shari Allison

Post Frequency: 2.7/day

Last Entry: August 28, 2020 at 17:58:00

Above-Guideline Sentence for Bank Robbery Affirmed

Posted on August 04, 2010
U.S. v. Redmond, 2010 WL 2881515 (7/23/10) (unpub'd) - Affirmance of an above-guideline-range bank robbery sentence. The district court varied from 125 months to 180 months by running 55 months of a sentence for one of the bank robberies consecutively to the others...

State Habeas Petitioner's Right to Due Process Were Violated

Posted on August 04, 2010
Jackson v. Whetsel, 2010 WL 2881518 (7/22/10) (unpub'd) - Victory for an accused in a habeas case. The Oklahoma Court of Criminal Appeals ("OCCA") violated the petitioner's right to due process when it held there was insufficient evidence to support the defendant's conviction for making an indecent proposal to a minor to have sexual relations with another person [when the petitioner only asked her to touch herself], but ordered the trial court to convict the petitioner of soliciting the minor to perform obscene acts...

Grant of Qualified Immunity to Prosecutor Reversed

Posted on August 04, 2010
Mink v. Knox, 2010 WL 2802729 (7/19/10) (Colo.) (Published) - The 10th reversed a grant of qualified immunity to a state prosecutor. The § 1983 case should go to a jury because the plaintiff presented enough to establish the prosecutor could not have reasonably concluded probable cause existed to support a search warrant application or that the warrant was sufficiently particular...

Firearms Convictions, ACCA Enhancement Affirmed

Posted on August 04, 2010
United States v. Ford, ___ F.3d ___ , 2010 WL 2902747 (10th Cir. 2010) (NM). A jury convicted the defendant of firearm offenses (felon in possession, fugitive in possession, possession of stolen firearms). His guidelines were enhanced for offense characteristics and he was sentenced to a total of 30 years, with the Armed Career Criminal (ACC) enhancement concurrent...

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Denial of Entrapment Defense, Request for CI Disclosure Upheld

Posted on August 04, 2010
United States v. Vincent, ___ F.3d ___ , 2010 WL 2902748 (10th Cir. 2010) (Ut.). The Court holds that the district court properly denied an entrapment defense and properly denied disclosure of the confidential informant (CI). The DEA, unsuccessful in its undercover buy from Mr...

Minimal Colloquy Sufficient For Conviction; Resentencing Ordered For Rule 11 Violation

Posted on August 04, 2010
United States v. Landeros-Lopez, ___ F.3d ___ , 2010 WL XXX, No. 09-8056 (10th Cir. 2010) (Wyo.)Plea colloquy adequate to establish factual basis for drug conspiracy conviction. (Defendant said the drugs belonged to his roommate, he was present when roommate dealt the drugs, and he accepted rent?drug proceeds?from the roommate, but did not state anything to establish that he agreed to violate the law, knew the objective of the conspiracy, that he voluntarily became a part of the agreement)...

Unpublished Decisions

Posted on August 04, 2010
U.S. v. Rivera-Carrera, 2010 WL 2926543 (7/28/10) (Wyo) (unpub'd) - The 10th acknowledged it was doubtful a conspirator's explanation of the players involved in a conspiracy to an unconnected bystander was "in furtherance" of the conspiracy under the co-conspirator-hearsay rule...

Mortgage Fraud Defendant Raises Numerous Issues, Conviction and Sentence Affirmed

Posted on August 04, 2010
U.S. v. Mullins, 2010 WL 2947873 (7/29/10) (Colo) (Published) - Another lengthy opinion in a white-collar case, but affirmance on all issues. This is another case where the defendants helped to deceive lenders about the financial wherewithal of lower-income home buyers...

Defendant Not Seized Until Cuffed

Posted on August 04, 2010
U.S. v. Martin, 2010 WL 2977721 (7/30/10) (Kan) (Published) - An affirmance of denial of a suppression motion. The officers had not seized the defendant until they placed him in handcuffs because, before that time, they had ordered him to place his hands on the wall, but instead he dropped his hands out of sight and said he had "something on" him...

Tenth Avoids Heller Issue; Affirms Conviction for Unlawful Possession of Firearm by DV Misdemeanant

Posted on July 26, 2010
US v. Pope, No. 09-4150, 7/23/10 (Utah - Denial of pretrial motion to dismiss based on Heller/McDonald as-applied challenge affirmed. Defendant was charged with possession of a firearm by a person convicted of a misdemeanor crime of domestic violence...

Criminal Liability for a Strict-Liability Offense Requires Fair Notice and Proximate Cause

Posted on July 12, 2010
United States v. Apollo Energies, Inc., ___ F.3d ___ , 2010 WL 2600502 (10th Cir. 2010) (Kan)Violation of the Migratory Bird Treaty Act (MBTA) is a strict liability crime, requiring no mens rea to commit an offense. However, due process is satisfied in this case only if defendants?in this case, oil and gas producers whose exhaust equipment sometimes traps and kills migratory birds sheltering or nesting there?proximately caused the harm to protected birds...

United States v. McGinty, ___

Posted on July 09, 2010
United States v. McGinty, ___ F.3d ___ , 2010 WL 2573980 (10th Cir. 2010) (OK). Defendant?s assets at the time of sentencing for misapplication of bank funds were his home and boat, which were also the proceeds from his crime. Under the plea agreement, the parties agreed to forfeiture of these assets and to the entry of a money judgment...

Procedural Maze Dooms Habeas Petitioner

Posted on June 22, 2010
Sines v. Wilner, -- F.3d --, 2010 WL 2473163 (10th Cir. 6/21/10) (CO) - affirmance of district court dismissal of 28 USC § 2241 habeas corpus petition. Mr. Sines argued he was entitled to relief under § 2241 because his remedy under 28 USC § 2255 was inadequate or ineffective to test the legality of his detention...

Defendant Seized When He Obeyed Command to Exit Truck, Not When Trooper Blocked Vehicle

Posted on June 22, 2010
US v. Salazar, -- F.3d --, 2010 WL 2473162 (10th Cir. 6/21/10) (KS) - reversal of grant of suppression motion. At issue is when Mr. Salazar submitted to the officer's show of authority. If it was when the trooper activated his emergency lights and blocked Mr...

Unpublished Decisions

Posted on June 22, 2010
U.S. v. McCarthy, 2010 WL 2413024 (6/16/10) (unpub'd) - The 10th found no ambiguity in the defendant's statement to the officers: "I don't want nothing to say to anyone," and his "no" response to the question "You don't have anything to say to anybody?" [despite the resulting double-negative], regardless of the defendant's heavy accent and tendency to mumble...

Unpublished Decisions

Posted on June 16, 2010
U.S. v. Yellowbear, 2010 WL 2340819 (6/11/10) (Wyo) (unpub'd) - While the 10th noted notice and explanation violations of Rule 25 when a judge substituted for the trial judge at sentencing, it was okay for the substitute judge to sentence the defendant, although the judge had not witnessed the trial and the defendant relied in part on trial evidence and the emotional reaction of the jurors to their verdict...

Denial of New Trial Motion Affirmed

Posted on June 15, 2010
US v. Carlos Lopez, No. 09-3148 (10th Cir. June 10, 2010) (unpublished): A very lengthy opinion for an unpublished decision. The Tenth Circuit affirms the district court's denial of drug defendant's motion for new trial. Defendant, arrested with methamphetamine in a cooler in his vehicle, moved for new trial based on newly discovered evidence that government witness had set him up, based on a federal prisoner's affidavit who allegedly overheard the witness telling another inmate about concocting the story so as to avoid disclosing the real courier...

Tenth Circuit published casesBunton

Posted on June 07, 2010
Tenth Circuit published casesBunton v. Atherton, ___ F.3d ___ , 2010 WL 2041266 (10th Cir. 2010). In this Colorado state first degree murder conviction and life sentence, the Tenth Circuit found that the record developed in the state post-conviction hearing on claim of ineffective assistance of trial counsel, upon which the Colorado appellate court based its affirmation of the denial of state post-conviction relief, was unassailable under AEDPA § 2254 standards...

U.S. Supreme Court :Jefferson v.

Posted on June 07, 2010
U.S. Supreme Court :Jefferson v. Upton, 2010 WL 2025209 (5/24/10) (per curiam) - Another example of the S.Ct. reaching out to correct an error, this time for a good reason. The Court remanded a death penalty habeas denial by the 11th Circuit. Under pre-AEDPA law, the S...

Circuit Snippets

Posted on May 25, 2010
A defendant charged with growing marijuana on his farm was deprived of his Sixth Amendment right to present a defense by the trial court's evidentiary rulings, the 9th Circuit held. The court denied the defendant's Rule 16 request to compel to government to disclose information about the marijuana-growing activities of Mexican drug trafficking organizations and ruled that the defendant could not bring up the issue at trial...

Despite Chambers, Kansas Offense of Fleeing Cops a Crime of Violence Under USSG § 4B1.2

Posted on May 21, 2010
US v. McConnell, No. 09-3036, 5/19/10 - Fleeing or eluding cops, in violation of Kan. Stat. Ann. § 8-1568, is a crime of violence under USSG § 4B1.2. The Tenth had already held as much in regard to a similar Utah statute in US v. West, 550 F3d. 952 (2008), but the defendant claimed that the Supreme Court?s decision in Chambers v...

Chiropractic Board President Entitled to Qualified Immunity in Connection with Alleged Illegal Administrative Search; District Court Reversed

Posted on May 19, 2010
Lewis v. Tripp, ___ F.3d ___ , 2010 WL 1949030(10th Cir. 2010). This decision may be of more interest to civil rights practitioners. The Court of Appeals reverses denial of qualified immunity to respondent chiropractic board president on claim that he was involved in the allegedly illegal administrative search of petitioner?s office...

US v. Campbell, -- F.3d --, 2010

Posted on May 17, 2010
US v. Campbell, -- F.3d --, 2010 WL 1839028 (10th Cir. 5/10/10)(Kan). Affirmance of denial of suppression motion. COA bypasses the "troublesome issue" of whether there was pc for search warrant seeking evidence at Mr. Campbell's home of his criminal activities and his Crips membership, in violation of RICO, because the executing officers acted in the good faith belief that the magistrate properly authorized the warrant...

Good Faith Saves Search

Posted on May 17, 2010
US v. Campbell, -- F.3d --, 2010 WL 1839028 (10th Cir. 5/10/10)(Kan). Affirmance of denial of suppression motion. Court of Appeals bypasses the "troublesome issue" of whether there was probable cause for a search warrant seeking evidence at Mr. Campbell's home of his criminal activities and his Crips gang membership, in violation of RICO, because the executing officers acted in the good faith belief that the magistrate properly authorized the warrant...

Lesser-included Instruction Should Have Been Given; State Capital Habeas Petitioner Gets Relief

Posted on May 17, 2010
Phillips v. Workman, 2010 WL 1882313 (10th Cir. 2010). Tenth Circuit grants habeas relief in Oklahoma capital case. Defendant was convicted of first-degree malice aforethought murder after he stabbed a teenager in a parking lot with a pocketknife for no apparent reason other than racial animosity, intoxication, and, possibly, mental illness...

Bank Fraud Sentence of Five Years Affirmed

Posted on April 28, 2010
US v. Ratliff, 2010 WL 1645144 (10th Cir. 4/26/10) (unpub.) - The Court affirms a 60-month sentence imposed after defendant entered a guilty plea to one count of bank fraud. The two-level enhancement for abuse of a position of trust was proper because Defendant held a position in which she had authority to make substantial discretionary judgments for her employer, who was a victim of the bank fraud since his company was the true owner of the checks she converted to her own use...

Upward Enhancement of Sentence for SR Violation Held Reasonable

Posted on April 28, 2010
US v. Steele, -- F.3d --, 2010 WL 1644575 (10th Cir. 4/26/10) - 18-month sentence for 2nd supervised release violation was procedurally and substantively reasonable, despite advisory guidelines' recommendation of 4-10 months. Disagreeing with some other circuits, the 10th decides a sentencing judge is not required to specifically elicit objections after announcing a sentence...

Evidence Properly Admitted Under FRE 413

Posted on April 28, 2010
U.S. v. Batton, 2010 WL 1632931 (4/23/10) (Published) - The defendant's 1995 conviction for having oral sex with a 14-year-old boy was admissible pursuant to Rule 413 with respect to the charge of transporting a 14-year-old boy across state lines in 2006 with the intent to engage in genital contact with the boy...

Search Warrant Based on Old E-mails Linked to Address Supported by PC

Posted on April 28, 2010
U.S. v. Burkhart, 2010 WL 16340151 (4/23/10) (Published) - The warrant to search the defendant's home for child pornography was supported by probable cause. E-mails sent at the latest 2 years and 4 months before the search requesting child porn, the linking of the e-mail address to a David Burkhart whose subscriber address was in McAlester, Oklahoma, motor vehicle division records linking David Burkhart to 2 different addresses in McAlester and the registered Jeep Cherokee outside one of the residences was enough evidence...

Unpublished Decisions

Posted on April 28, 2010
U.S. v. Blacknoll, 2010 WL 1474489 (4/14/10) (unpub'd) - The 10th indicates it would be okay to deny a safety valve reduction on the grounds that the defendant's many misrepresentations in the past made it unlikely the defendant's current description of his role in the offense was truthful and complete...

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