Friday, August 15, 2014

IRS issuing refund pursuant to fraudulent tax return does not support jury instruction on entrapment by estoppel

U.S. v. Rampton, 2014 WL 3882564 (8/8/14) (Ut.) (Published) - Ms. Rampton was not entitled to an entrapment-by-estoppel instruction. She was involved in a 1099-OID tax-return scheme. She contended that the refund check from the IRS validated her belief that her scheme was legit because it was just a way to get money like the banks were getting. Ms. Rampton did not satisfy the estoppel requirement that her reliance be reasonable. This requirement was necessary because otherwise the "Ill-educated and the naive" would be able to get away with all those tax refunds, while educated folks would get convicted. In this case Ms. Rampton fabricated the forms and provided false information, such as that more than $200,000 had been withheld to cover her income taxes. No one would reasonably infer the IRS audited her forms for accuracy, discovered her deceit and still decided she was due a refund. And besides, she knew the IRS told a friend of hers doing the same thing that the scheme was bogus.

Monday, August 11, 2014

Continuances Did Not Violate Speedy Trial Act; Exclusion of Defense Expert Testimony OK'd

U.S. v. Banks, -- F.3d --, 2014 WL 3805481 (8/4/14) (Colo.) - the Tenth affirms multiple mail fraud and wire fraud convictions in a multi-defendant case. Defendants' speedy trial rights were not violated under 18 U.S.C. § 3161(c)(1) or the Sixth Amendment by several continuances granted by the district court. Although the length of the delay (greater than a year) weighed in defendants' favor, the balancing of the remaining three factors did not. The district court properly weighed the applicable factors and supported its rulings with detailed factual findings.

The district court did not compel co-defendant Barnes to take the stand in violation of his Fifth Amendment privilege against self-incrimination; he took the stand voluntarily. And the district court's curative instructions to the jury in this regard did not violate defendants' Sixth Amendment right to a fair trial. Defendants rejected the court's first proposed curative instruction and failed to object to either the substance or the timing of the second curative instruction. Defendants did not demonstrate any error by the district court, much less plain error.

The district court did not abuse its discretion by excluding testimony from defendants' expert witnesses on account of defendants' failure to make proper disclosure of the witnesses under Fed. R. Crim. P. 16 and 702. Defendants offered no legitimate reasons for failing to comply with the disclosure requirements and the government would have been prejudiced in its ability to effectively cross-examine the experts about their qualifications and conclusions if defendants had been allowed to call their expert witnesses on day 9 of trial. The district court's refusal of a continuance was appropriate because the government had already rested its case.

AEDPA Filing Deadline Is Tolled While State Petition is Pending, No Matter How Dilatory State Courts Are

Fisher v. Raemisch, 2014 WL 3827163; No. 13-1144 (Colo.)(published): The court reverses a district court decision to dismiss a habeas petition. The district court dismissed Fisher’s petition because it felt that he had abandoned a state post-conviction petition which made his federal petition untimely. The 10th Circuit said that AEDPA’s one year filing limitation period is tolled while an application for post-conviction relief is pending in state court. Here, the state court took 8 years to rule on Fisher’s post-conviction petition. The 10th Circuit said that wasn’t his fault. It rejected the argument of the respondent and the lower court that Fisher had abandoned the post-conviction proceedings because he didn’t ask for an expeditious ruling. The court held that the limitations period is tolled while a post-conviction application works its way through the state courts.

Object, Object, and Object Again

United States v. Gonzalez-Perez, 2014 WL 3827586; No. 13-2147 (N.M.)(unpublished): another opinion that points out why it is important to object and preserve in the lower court. Gonzalez raised numerous compelling issues. First, he argued that his 5th and 6th Amendment rights were violated when the government let a material witness be “voluntarily deported” before defense counsel could speak with him. Gonzalez asked the court to adopt the rule developed by the 9th Circuit in Leal del Carmen, 679 F.3d 964, 970 (9th Cir. 2012). There the Court found that when the government interviews a witness or has other information suggesting that he could offer exculpatory evidence, the government may not deport him without giving defense counsel a chance to interview him. The panel rejected that rule but said the “more prudent practice” would have been to hold the witness until defense counsel could talk to him. Still, the agent who let him go was merely negligent - he didn’t do that in bad faith.

Gonzalez next argued that his right to confrontation was violated when the court let an agent tell the jury about the missing witness’s statements. Gonzalez had successfully moved pretrial to exclude the witness’s statements about his immigration status. At trial the government brought them in anyway and defense counsel didn’t object. On appeal the parties agree defense counsel had preserved the issue. That is the Court’s decision, said the panel. It then explained it would review the issue for plain, not harmless error, because even the granting of a pretrial limine motion does not relieve the party from objecting when the excluded evidence is admitted. Gonzalez couldn’t satisfy this standard because there was abundant other evidence of Gonzalez’s immigration status.

Finally, Gonzalez said that the court shouldn’t have allowed an agent to give an opinion on his mental state at the time of the alleged offense. Here again the court commented it had some concern with how the government manipulated the agent’s testimony but since Gonzalez didn’t object he couldn’t meet his burden of proving plain error.

Monday, August 04, 2014

District Court Can't Revisit Sentencing Issues Unaffected by Guideline Amendment in Resentencing Procedure

U.S. v. Washington, 2014 WL 3537842 (7/18/14) (Kan.) (Published) - A defendant cannot use § 3582(c)(2) to have the 10th resolve a dispute previously unresolved on appeal. In this case on direct appeal Mr. Washington challenged the district court's crack quantity calculations in 2 respects: (1) the estimation that he and his co-conspirators bought a certain amount of crack with pooled money and (2) the conversion of money into an amount of crack. The 10th elected not to resolve issue (2) because when it resolved issue (1) Mr. Washington was stuck in the same offense level regardless of the resolution of issue (2). By & by the crack guidelines change and now Mr. Washington would be in a different offense level under the new guidelines if issue (2) were resolved in his favor. He filed a § 3582(c)(2) motion which recognized the district court was stuck with its previous ruling on issue (2), but asked the court to deny the claim on law-of- the-case grounds and move the case along to the 10th, which hopefully would resolve issue (2) in his favor, rendering him eligible for relief.

On the positive side, taking the side of the 9th over the 6th, the 10th holds it is bound by Hahn [the infamous appeal waiver case] to conclude it had jurisdiction to hear the case under 28 U.S.C. § 1291. This is so even if there wasn't jurisdiction under § 3742(a), given the case didn't precisely fit under any of the appeal categories listed, e.g. "imposed sentence in violation of law" [where the district court followed the law of the case]. Nor did the 10th buy the government argument that Mr. Washington wasn't aggrieved by the lower court decision. He didn't seek denial of his motion. He simply conceded the district court's lack of power to help him. But in the end Mr. Washington gets no relief. § 3582(c)(2) and § 1B1.10 don't allow courts to revisit aspects of a sentence unaffected by the retroactively applicable guideline amendment. The 10th distinguishes U.S. v. Battle, 706 F.3d 1313 (10th 2013), where the 10th allowed the district court to resolve a disputed drug quantity issue in a § 3582(c)(2) case. In Battle the contemplated procedure flowed directly from the original record, memos and previously-made factual findings. Here, what Mr. Washington asked for doesn't flow from a legal determination made on the previous appeal. And Mr. Washington didn't ask the 10th to resolve issue (2) based on the briefs in the prior appeal. Those briefs only argued the issue in a couple of sentences whereas he took 12 pages on this appeal. Mr. Washington could try to seek a recall of the mandate. But the 10th didn't think that would be too fruitful, especially given the skimpy original briefing on issue (2).

Upward Variance to 16 Years (From 57 Months) Affirmed in Involuntary Manslaughter Case

U.S. v. Lente, 2014 WL 3537830 (7/18/14) (N.M.) (Published) - In the 3rd sentencing appeal in this case, the 10th affirms the district court's 16 year sentence---an upward variance from 57 months--- for a young woman who, while driving drunk, drove head-on into a pickup after her passenger tried to pull the steering wheel from her and she jerked it. Three people - two kids and an 18-year-old - died and another young adult was seriously injured.

First, the 10th declared the procedural-error arguments were really challenges to the substantive reasonableness of the sentence. The claim that it was irrational to refuse to consider the mitigating fact of the passenger's actions causing the accident was really a challenge to the weight given. The claim that the district court didn't consider the Sentencing Commission's careful consideration of the multi-victim circumstance was considered by the court and so the complaint was really substantive.

Next the 10th found permissible the district court's primary reason for the variance: a policy disagreement with the Commission regarding how much extra punishment should be associated with multiple victims of involuntary manslaughter. The Guidelines say use the grouping rules. The 10th says the court's disagreement was specifically attached to the "rare" facts of this case: multiple involuntary manslaughter convictions involving people who just happened to be in the wrong place at the wrong time, rather than passengers of the drunk defendant . So the "closer review" that Kimbrough suggested might be needed for pure policy disagreements was not necessary. The 10th noted Commission Groups and courts have expressed dissatisfaction with the involuntary manslaughter guidelines and in particular, the grouping rule application. The 10th was unimpressed by the notion that it was unfair to punish so severely for consequences that were substantially the result of happenstance. The 10th was unwilling to look at how unlikely the consequences were of Ms. Lente's conduct. Instead it said Ms. Lente's extreme recklessness justified disregarding the happenstance factor. The 10th found permissible the district court's finding of extreme recklessness based on: (1) a .21 BAC two hours after the accident where the average BAC in a fatality is .16; (2) State Road 47 was a well-traveled road that was designated as unusually significant to its metropolitan area with 500-600 vehicles per hour at the time of Ms. Lente's drive; (3) Ms. Lente had no driver's license. The 10th acknowledged (2) & (3) didn't show extraordinary recklessness. But together with the BAC it was okay to find Ms. Lente extra reckless. It was permissible to vary due to Ms. Lente's tribal criminal history of two disorderly conducts and an assault and battery over the course of 3 or 4 years. The court could conclude these showed a repeated willingness to abuse alcohol and engage in violent and reckless behavior. The 10th noted less than 10 % of vehicular homicide defendants had assault & battery priors. Zero criminal history points "clearly" understated her criminal history, the 10th says. The 10th found Ms. Lente's prison conduct, which included use of controlled substances,a statement she wanted to get drunk when she got out and refusal to take her headphones off during drug education class, supported the district court's conclusion Ms. Lente was a high risk for recidivism. Pepper not only allows post-sentence rehabilitation evidence but also post-sentence evidence showing the defendant was not rehabilitated.

There was no unwarranted disparity. The 10th found Ms. Lente's mitigating evidence unconvincing. Her horrible childhood, her youth, and mental health issues were counteracted by the fact she hadn't rehabilitated herself. And such mitigating evidence is a "double-edged sword" because it means she's dangerous. The 10th consoled Ms. Lente with its opinion that she is not beyond hope of recovery. The 10th expressed its "sincere hope" she obtains the treatment she needs. Ms. Lente's passenger's role in the accident meant nothing. As the district court said, the going into the wrong lane was just a small action that could be ignored. She and the passenger together caused the crash and in her guilty plea she acknowledged she acted with the reasonable foreseeabilty she was imperiling the lives of others. "There is nothing irrational about considering the harm caused by that decision, even if other factors contributed to the result.

The 10th affirms the sentence "not without some pause." The 10th worried sentences could be widely divergent if one judge thinks harm is the most important and another thinks the lack of bad mens rea is important. The 10th stressed the role of the "extensive record" in this case that helped justify the extreme variance. It ended the opinion by assuring us "appellate review continues to have an important role to play and must not be regarded as a rubber stamp." On the bright side for those other than Ms. Lente, this case will make it all the harder for the government to overturn a substantial downward variance.

Friday, July 18, 2014

USSC Authorizes Delayed Retroactive Sentence Reductions for Federal Drug Offenders

On July 18, 2014, the Commission voted unanimously to apply a reduction in the sentencing guideline levels applicable to most federal drug trafficking offenders retroactively. Unless Congress disapproves the amendment, beginning November 1, 2014, eligible offenders can ask courts to reduce their sentences. Offenders whose requests are granted by the courts can be released no earlier than November 1, 2015.

The press release and additional information is available at
http://www.ussc.gov/.

Thursday, July 17, 2014

Habeas Petitioner Gains Remand for Court to Address Other Claims; State Could Not Take Back Admission the State Claims Were Exhausted

McCormick v. Parker, 2014 WL 3306546 (7/9/14) (Okl.) (unpub'd) - Everyone agrees the district court erred when it found its grant of relief vacating the Count II conviction---the child abuse charge---mooted Mr. McCormick's challenges to the Count I child sexual abuse charge. Mr. McCormick still had an interest in getting relief with respect to Count I. The state's statement in its response that Mr. McCormick had exhausted his state court remedies and its addressing of the merits of the petition constituted the express waiver that absolves a petitioner from having to exhaust his claims. This was not an inadvertent mistake. "The fact that the state now regrets its waiver is not a sufficient reason to allow rescision of the waiver." And by waiving exhaustion the state also waives a procedural default argument that Mr. McCormick could not raise the issues now in state court because he didn't raise them before in state court. On the other hand, the district court could consider on remand the state's argument that the claims were defaulted because the state post-conviction court found Mr. McCormick's issues could have been raised on direct appeal. The 10th refuses to address the merits, as the state requested, because their resolution is not beyond any doubt. Mr. McCormick raised Brady and ineffective assistance claims based on evidence the state witness who testified penetration was indicated by tearing and scarring of the child victim's hymen and anus lied about her qualifications. She claimed to be RN and SANE certified, but she had lost her RN and SANE certification almost 3 years before trial.

Descamps did not recognize new right for filing of habeas petitions

U.S. v. Montes, 2014 WL 3032185 (7/7/14) (N.M.) (unpub'd) - The 10th espouses a theory that would put the kibosh on almost all § 2255s relying on Descamps v. United States, 133 S.Ct. 2276 (2013). The 10th holds the § 2255 motion based on Descamps was not timely even though it was filed within one year of Descamps. Descamps simply applied existing precedent. It did not recognize a new right---a prerequisite under § 2255(f)(3) for restarting the running of the statute of limitations.

Habeas Petition Untimely Where Defendant Knew Witness Lied At Time of Trial

Taylor v. Martin, 2014 WL 3057197 (7/8/14) (Okl.) (Published) - Mr. Taylor's § 2254 petition was untimely even though it was filed within one year of his acquisition of a key prosecution witness's affidavit swearing the witness had lied at trial. This was not a newly discovered factual predicate triggering a restart of the statute of limitations under 28 U.S.C. § 2244(d)(1)(D). Mr. Taylor knew the witness was lying when the witness was testifying. He could have pursued his claim without the affidavit. The fact that Mr. Taylor couldn't possibly have succeeded on his claim without the affidavit doesn't seem to disturb the 10th.

Court committed Bruton error, but error was harmless

U.S. v. Shaw, 2014 WL 3377652 (7/11/14) (Kan.) (Published) - The 10th finds it violated the Confrontation Clause to admit an alleged accomplice's confession to police, although Mr. Shaw's name was replaced with a neutral pronoun. The district court thought the admission was okay under Bruton. But it was only okay under Bruton to stick in neutral pronouns in a joint trial where the statements were admissible against the confessor and an instruction is given to disregard the evidence with respect to the confessor's co-defendant. But here Mr. Shaw was on trial by himself and the evidence was used against him. But the error was harmless beyond a reasonable doubt because the offending statement only related to a bank robbery concerning which Mr. Shaw obtained an acquittal and the evidence regarding the other robberies was very strong.

The 10th also finds inadmissible brief testimony about an uncharged bank robbery. A witness testified Mr. Shaw asked him to pick up a man and later that day he learned there was a bank robbery in the same town. The evidence had too little relevance to be admissible. But the admission was harmless. The improper evidence so tenuously tied Mr. Shaw to a robbery that it couldn't have influenced the verdicts that were supported by strong evidence.

The 10th holds that a trial court does not abuse its discretion when it refuses to dismiss a juror who has in some way indicated she may not be impartial if she subsequently affirms her impartiality. Thus the 10th precludes virtually any juror bias challenge on appeal. In this case, Mr. Shaw mouthed the words "call me" and gestured to a juror as if he were holding a telephone to his ear. This upset the juror. Let's call her juror 121. [Mr. Shaw explained he was actually trying to gesture to a different juror. He obviously needs to refine his flirting technique]. 121 told the bailiff about Mr. Shaw's behavior in front of the other jurors. The court questioned all the jurors about this. One juror, 76, said the incident made her sick and she would have to make an effort to get the implanted event out of her mind. Eventually 76 said she thought could put the matter aside. The court excused 121, but refused to excuse 76. The 10th found this to be okay. The 10th also noted its concern about removing jurors as a result of a defendant's misconduct.

NBC's Dateline Search Was Government Action Where Dateline Cooperated with State

Brokers' Choice of America v. NBC Universal, Inc., 2014 WL 3307834 (7/9/14) (Col.) (Published) - The search by NBC's Dateline constituted state action where: both Alabama and NBC were interested investigating fraudulent sales of annuities to seniors; knowing the producers would use hidden cameras to record a training seminar for insurance brokers, Alabama officials supplied the producers with insurance licenses they could not otherwise obtain; the trainers restricted the seminar to those with such licenses; NBC agreed to share with Alabama the information and recordings it acquired during its investigation and did so after the seminar.

Nonetheless, no Fourth Amendment violation occurred. The trickery and deception used was not so extreme that it deprived the trainers of the ability to make a fair assessment of the need to surrender their privacy. Generally misrepresentation of official capacity is not beyond the Fourth Amendment's limits. What happened here was akin to undercover officers pretending to be drug dealers. There was no coercion involved. It didn't matter that the trainers specifically prohibited recording the seminars. While perhaps a breach of contract, the recording passed constitutional muster. Surreptitious recording is not violative of the Fourth Amendment if statements are made in the presence of outsiders. The 10th distinguished Alabama's conduct from that of the officers in Hanlon v. Berger, 526 U.S. 808 (1999) and Wilson v. Layne, 526 U.S. 603 (1999) where officers invited media along to observe the execution of warrants. In those cases the government used its coercive powers to gain access and the media did not serve any investigative purpose.

Unpublished Decisions

U.S. v. Marquez, 2014 WL 2978546 (7/3/14) (Kan.) (unpub'd) - Mr. Marquez's appeal waiver was enforceable even though he was surprised by the Sentencing Commission's post-sentence announcement of reductions in the offense levels for drug offenses.

Smith v. Howell, 2014 WL 2958785 (7/2/14) 9Kan.) (unpub'd) - It was not clearly established that Mr. Smith's 8th Amendment rights were violated by exposure to a "small" quantity of friable asbestos from a damaged pipe for "just" a few hours. So the prison employees are entitled to qualified immunity.

Kennedy v. Addison, 2014 WL 3361131 (7/10/14) (Okl.) (unpub'd) - A defendant's absence from individual voir dire in chambers was not enough to establish a constitutional error.

Claim that Sentencing Court was Guilty of Gender Bias Was Speculative

U.S. v. Johnson, 2014 WL 2958595 (7/2/14) (Kan.) (Published) - Ms. Johnson did not plainly show the district court was guilty of gender bias. In response to Ms. Johnson's contention that she committed the mail theft and fraud offenses in large part due to abuse by her boyfriend-co-defendant, the court said: "in most of those domestic violence situations,both parties are involved." Ms. Johnson argued that placing part of the blame for domestic violence on the victim was a recognized form of gender bias. The 10th found the bias allegation was too speculative. A further airing out of the issue below may or may not have exposed bias. But the failure to raise the issue before the district court doomed the chances for finding any plain error.

Agent's Error Regarding Plaintiff's Right to Bear Firearms was Negligent at Worst; No Relief for Civil Rights Plaintiff

Stonecipher v. Valles, 2014 WL 2937038 (7/1/14) (N.M.) (Published) - An unfavorable Franks decision in a § 1983 context. An ATF agent learned that Mr. Stonecipher might have firearms in his home. The agent also got a Missouri court document showing Mr. Stonecipher pleaded guilty to a misdemeanor domestic violence offense, received a suspended sentence, which required one year of probation, and that he was discharged from probation after one year. A background check report indicated Mr. Stonecipher had been denied the right to purchase a gun due to his domestic assault conviction, but it also indicated the denial had been overturned, that he had zero convictions and that suspended sentences are not convictions when probation is completed. The agent ran all this information by an AUSA, who concluded Mr. Stonecipher was not allowed to possess firearms under § 922(g)(9). Actually the Missouri adjudication was not considered a conviction under Missouri law due to the suspended sentence and the discharge and so it did not disqualify Mr. Stonecipher from possessing firearms. The agent's affidavit for a warrant to search Mr. Stonecipher's home did not mention the sentence suspension or that the denial status, which he did mention, was later overturned. In the midst of the ensuing search, Mr. Stonecipher read to the searching agents a letter from his attorney in the Missouri case that explained that once he served his probation the adjudication would not count as a conviction. The agents continued with the search. The lead agent, after consulting with the AUSA, filed a criminal complaint in federal district court. Five days later an AUSA had the complaint dismissed.

The 10th held that the nuances of Missouri law in combination with the facts and the ATF regulations, which incorporate state definitions of conviction, were not so obvious that the agent acted recklessly in failing to recognize Mr. Stonecipher was permitted to possess firearms. It was reasonable for a non-legally trained officer to assume a conviction and sentence are two separate things. The background reports indicated Mr. Stonecipher was convicted and not convicted. The overturning of the denial status didn't necessarily mean the conviction was overturned. In sum, at worst the agent was negligent. The consultations with the AUSA and provision of all the materials to the AUSA "undercut" any notion he acted recklessly. The agents were not required to forego arresting Mr. Stonecipher after he read his attorney's letter to them. The letter was not conclusive and there was no way at that time to verify its authenticity or accuracy.

District Court Failed to Make Proper Findings to Support Pretrial Detention

U.S. v. Gerkin, 2014 WL 2978549 (7/3/14) (Ut.) (unpub'd) - The 10th declares what we all know not be true in federal court that "liberty is the norm" when it comes to whether or not criminal defendants are released or detained. In this case, the district court erred when it detained Mr. Gerkin without deciding whether there were any conditions or combination of conditions that could reasonably assure Mr. Gerkin's appearance and the safety of the community. Moreover, the district court needed to explain why it shifted the rationale for detention from the magistrate judge's danger rationale to flight risk. It also had to make factual findings supporting its flight risk determination. Without the necessary findings the 10th could not properly review the detention decision. The 10th remanded for proper findings.

Completion of Sentence Did Not Moot Habeas Petition

Gonzales v. Garcia, 2014 WL 2871347 (6/25/14, NM) (unpub'd) - The district court erred when it dismissed as moot a 28 USC sec. 2254 habeas challenge to a New Mexico 7th DWI conviction because Mr. Gonzales had finished his sentence. The court failed to apply the presumption of collateral consequences of a felony conviction. The relevant consequences did not only derive from the N.M. DWI statutes, as the court thought.

No Habeas Relief Even Though Juror was Married to Prosecution's Expert

Benjamin v. Meyer, 2014 WL 2724636 (6/17/14) (Wyo.) (unpub'd) - No habeas relief in the following odd situation. A prospective juror who became an actual juror assured the trial court she could be impartial even though her husband was an expert for the prosecution. She noted she was an independent thinker and, [unlike most spouses], often disagreed with her husband. Defense counsel explained to the court he didn't seek her excusal because he "kind of liked her." During the trial, however, although the husband never testified, he did rush up to the prosecution table during cross of the defense expert, giving the impression he disagreed with that expert. The court denied the defense's request to remove the juror at that point. The 10th found no clearly established law that the juror was implicitly biased, nor that the trial court had a sua sponte duty to hold a hearing on the juror's actual bias. Ms. Benjamin failed to rebut the state court's finding that circumstances had not changed since voir dire such that the juror's impartiality would be affected.

Walkaway from Halfway Is "Escape" from Federal Custody

U.S. v. Foster, 2014 WL 2748502 (6/18/14) (Col.) (Published) - The 10th holds Mr. Foster escaped from custody under 18 U.S.C. § 751(a), when he left a residential reentry center where he was ordered to reside as a supervised release condition. The 10th reversed the district court which dismissed the indictment on the grounds that it imposed the half-way house condition only to prevent a recently-released prisoner's homelessness. "Any" custody in § 751(a) is not restricted to punitive custody, the 10th says. The custody's purpose doesn't matter. And direct physical restraint is not required. Halfway house restrictions are sufficiently limiting to constitute custody. Mr. Foster had fair notice he would violate § 751(a) if he left the halfway house.

Incorrect Sentencing Calculation Was Plain Error Even Though Sentencing Court Varied Based on Policy Disagreement with Reentry Guideline

U.S. v. Rosales-Miranda, 2014 WL 3033419 (decided 6/17/14, published at the request of the defense, 7/7/14) - A good case for the 3rd and 4th prongs of the plain error analysis in a sentencing context. Both parties agreed the district court committed plain error when it imposed a 16-level enhancement under § 2L1.2 based on misdemeanor domestic violence convictions. The court varied downward from a guideline range of 70 to 87 months to 36 months based on its policy disagreements with USSG § 2L1.2's double-counting of convictions and its lack of an empirical basis. There was a reasonable probability the error significantly affected the sentence. The range without the error would have been 30-37 or 33-41 months. The 10th noted the error more than doubled the guideline range, which the 10th stressed must be the starting point for any sentencing. The incorrect range then exerted its force on the judge, even though the ultimate sentence was within the correct range. And the policy reasons the court gave for varying downward from the wrong range would justify varying downward from the correct range. The 8-level bump for Mr. R-M's aggravated felony would warrant a complaint about double-counting. The 10th held that, although U.S. v. Hoskins, 654 F.3d 1086, 1099 (10th Cir. 2011), might dictate a different 3rd- prong determination, earlier precedent, which controls in a precedent-conflict situation, allowed for reversal even if the ultimate sentence fell within the correct range. The government was wrong to say the district court so hated the § 2L1.2 guidelines it would have ignored the correct range. The 4th-fairness-integrity-public-reputation prong was met because the court made a "patent, egregious" calculation error and there was a strong possibility the error had made a significant difference in the sentence imposed. Sentence reversed.

Nervousness, Air Fresheners, and "Jesus" on the License Plate Ring Did Not Provide Probable Cause for Car Search

Felders v. Malcolm, 2014 WL 2782368 (6/20/14) (Ut.) (Published) - In this § 1983 case, it was clearly established the officers did not have probable cause to search Ms. Felders' car in the following circumstances after a traffic stop for speeding. According to one officer, Ms. Felders was nervous and would not maintain eye contact. There was a strong odor of air freshener and, most suspicious of all, affixed to the car was a license plate ring with "Jesus" written on it. Also the officer perceived inconsistencies between the passengers' and Ms. Felders' versions of their trip details. The circumstances did not show probable cause of drug involvement or lying to an officer under Utah law. The story inconsistencies did not indicate an intent to hinder an investigation---an element of the Utah offense. It was not objectively reasonable for the canine officer to rely on the detaining officer's belief in probable cause where the facts the detaining officer relayed did not amount to probable cause. This type of holding could be important in the future if courts start applying the good faith exception to the 4th Amendment in these non-warrant types of situations.

There was sufficient evidence the officers facilitated the drug-sniffing dog's entry into the car. This would be unconstitutional absent probable cause. The officers decided to get all the occupants out of the car. A tape of the events showed one officer preventing the rear passenger from closing the door and the officers agreeing it was nice of another passenger to leave the back hatch door open. While on a leash, "Duke", [the dog, not the officer], almost immediately jumped through the open rear passenger door and alerted to the center console which contained two bags of jerky. Unlike in our cases, no drugs were found.

ICE Officials Lacked Reasonable Suspicion to Detain Defendant; Fingerprints and A-File Must Be Suppressed

U.S. v. Achana-Suaso, 2014 WL 2782365 (6/20/14) (Col.) (unpub'd) - Olivares-Rangel victory continues to do good. In this case, the government conceded ICE officers had no reasonable suspicion to continue Mr. Achana-Suaso's detention based on his lack of familiarity with English and his presence in a drug-dealing area. The government also conceded there was a factual nexus between the constitutional violation and the taking of Mr. Achana-Suaso's fingerprints and the subsequent retrieval of his A-file. The 10th held the district court clearly erred when it found the prints and A-file were obtained for routine booking purposes [which would make the prints admissible] where the government presented no evidence regarding booking procedures and the acquisition of the prints and the A-file. Mr. Achana-Suaso's admission following his illegal seizure that he entered this country illegally was insufficient to show he was not fingerprinted for an investigatory purpose. Otherwise, "widespread unconstitutional conduct" would be condoned. Impressively, the 10th refused to afford the government an opportunity to present the missing booking evidence. Olivares-Rangel, the 10th asserts, "is now well-established precedent." The government should have known it had the burden to prove the purpose of the print-taking. The prints and the A-file must be suppressed, the 10th orders.

Wednesday, July 16, 2014

Habeas Petition Improperly Dismissed as Moot

Gonzales v. Garcia, 2014 WL 2871347 (6/25/14, NM) (unpub'd) - The district court erred when it dismissed as moot a 28 U.S.C. 2254 habeas challenge to a New Mexico 7th DWI conviction because Mr. Gonzales had finished his sentence. The court failed to apply the presumption of collateral consequences of a felony conviction. The relevant consequences did not only derive from the N.M. DWI statutes, as the court thought.

Friday, July 11, 2014

Sentencing court can consider length of mandatory gun sentences when determining a reasonable sentence

U.S. v. Smith, -- F.3d --, 2014 WL 2922703 (10th Cir. 6/30/14) - district courts may consider the length of mandatory gun count sentences when imposing sentence for an underlying crime of violence. Mr. Smith received a 35-year prison term under § 924(c) for use of a gun during two robberies--meaning he would be 55 years old by the time he's eligible for release. The Tenth rejects the government's argument that the district court could not take that into account when sentencing for the underlying crime and remands for resentencing.

Probation-related searches can be based on less-reliable information than other searches

Leatherwood v. Welker, No. 13-6152, 2014 WL 3057194, ---- F.3d --- (10th Cir. 7/8/14): Employees of the Oklahoma Dept. of Corrections Probation and Parole Division who searched Leatherwood's house are entitled to qualified immunity. Leatherwood was a probationer. His probation officer, Welker, received a a phone call from his ex-wife alleging that Leatherwood had raped his current girlfriend and that Leatherwood might have firearms. Welker also received an email from an assistant DA who had received it from a confidential source alleging personal knowledge that Leatherwood had alcohol and sexual materials in his home. Leatherwood's conditions prohibited possession of pornography or sexually oriented materials. Welker and the other defendants conducted a warrantless search of Leatherwood's home and found firearms. The Court held that, because Leatherwood was a probationer, the search was reasonable if supported by reasonable suspicion. Probation searches may be premised on less reliable information than what is required in other contexts. The phone call from the wife and the email were sufficiently reliable under these circumstances.