Friday, July 21, 2017

Self-incriminating Statements Held to be "Spontaneous"

U.S. v. Yepa, 2017 WL 3014352 (7/17/17) (NM) (Published) - The 10th rejects arguments that Mr. Yepa's self-incriminating statements during a search of his person pursuant to a warrant resulted from interrogation and upholds the district court's ruling that they were spontaneous. Although officers asked a number of questions that elicited statements from Mr. Yepa, the court thinks these were just neutral follow-up questions intended to clarify spontaneous volunteered statements. The court says reasonable officers would not think their responses would be likely to result in incriminating statements despite Mr. Yepa's fatigue, intoxication, and high level of emotional stress. The court concludes that the officers' queries "did nothing to draw Defendant out" regarding the murder they were investigating.

Wednesday, July 19, 2017

Sentence reduction for accepting responsibility does not require more than pleading guilty and truthfully admitting offense conduct

US v. Spaulding, 2017 WL 2978235 (unpublished) (10th Cir. July 12, 2017): Mr. Spaulding pled guilty to distribution of meth and conspiracy to distribute meth. Acting as a courier, he had sold two ounces of meth to an undercover federal agent. He pled guilty and agreed to cooperate. The government joined Mr. Spaulding in requesting a sentencing reduction for acceptance and also promised to move for a departure based on substantial assistance. The government recommended a 77-96 month sentence. The district court imposed a 137-month sentence. It rejected the acceptance reduction because it believed the reduction required more than pleading guilty and saving the government the effort of preparing for trial; rather, the defendant needed to also do something like take steps "to deal with the victims" or combat defendant's drug addiction. It granted the motion for a reduction based on substantial assistance, but rejected the government's recommended sentence without explanation. First, the Tenth Circuit agrees with Mr. Spaulding and the government that the district court erred in its interpretation of USSG § 3E1.1. On the contrary, pleading guilty and truthfully admitting the offense conduct is "significant evidence of acceptance of responsibility," USSG § 3E1.1 cmt. n.3, and absent contrary evidence, is generally sufficient. Additionally, the court committed procedural error when it granted the substantial departure motion without adequately explaining the chosen sentence. Remand for resentencing is granted. However, Mr. Spaulding is denied his request that his case be assigned to a new district judge because he could not point to anything in the record to demonstrate personal bias against him. (I hope that Spaulding is not the defendant's real name since this decision mentions his cooperation.)

Wednesday, June 28, 2017

Unpublished decisions

U.S. v. Bell, 2017 WL 2333090 (5/30/17) (Okl.) (unpub'd) - Mr. Bell can't get § 2255 relief even though the California felonies that were the basis for his sentence enhancement under 21 U.S.C. § 841 were reduced to misdemeanors under California's Proposition 47. The 10th says he can't get a certificate of appealability necessary for 10th jurisdiction because his claim was based on statutory, not constitutional, grounds. A constitutional ground is the only basis for an appealability certificate. The 10th rejects Mr. Bell's contention that his sentence violates due process and equal protection under yet another Johnson v. U.S. case, 544 U.S. 295, 303 (2005). In Johnson, the Court held a federal defendant could reopen a sentence where the defendant has successfully obtained the vacation of a prior conviction. In this case, Mr. Bell only got the conviction reduced to a misdemeanor, the 10th points out.

U.S. v. Schubert, 2017 WL 2333588 (5/30/17) (Okl.) (unpub'd) - The 10th rejects Mr. Schubert's argument that the complexity of the categorical approach renders the entirety of the ACCA's "violent felony" definition unconstitutionally vague. A lot of us could get on board with that argument. But the 10th says there could not be unconstitutional vagueness because the Supreme Court has applied the categorical approach for more than a quarter century. Of course, courts applied the residual clause for that long and it's no longer with us.

A Rare 18 U.S.C. § 3582(c)(2) Defense Victory

U.S. v. Mowery, 2017 WL 2297390 (5/25/17) (N.M.) (unpub'd) - Mr. Mowery pleaded guilty to a meth offense. He committed that offense while on supervised release for a prior drug conviction. His guideline range ended up being 168 to 210 months after he received a three-level enhancement under USSG § 3C1.3 and 18 U.S.C. § 3147(1) for committing the offense while on release. The district court imposed a 168-month prison term. Under 18 U.S.C. § 3147(1), the district court had to impose a sentence consecutive to the underlying offense. So the judge gave Mr. Mowery 121 months for the meth offense and 47 months under § 3147(1) for a total of 168 months. Despite government support for Mr. Mowery's subsequent § 3582(c)(2) motion based on Amendment 782, the district court denied the motion on the ground that the new guideline range of 135 to 168 months was higher than Mr. Mowery's 121 month sentence for his meth offense. So § 1B1.10 prevented any sentence reduction. With the government conceding error on appeal, the 10th rules that the 168-month sentence was really the total sentence for the meth offense, even though portions of it had to be credited to § 3147(1).. The § 3147(1) violation was not a separate offense. It just required a sentence enhancement for the meth offense. Since Mr. Mowery's drug sentence was really 168 months, he was eligible for a sentence reduction to 135 months.

70-day Term of Imprisonment for Kidnapping Defendant Affirmed

United States v. DeRusse, 2017WL2641051 (June 20, 2017) (KS): The panel affirms a 70-day imprisonment term for kidnaping and rejects the government’s challenge that the sentence was substantively unreasonable. Using a BB gun, DeRusse took his ex-girlfriend from her parents home in Texas and hoped to convince her to marry him. He drove several hundred miles before he was arrested in Kansas. The forensic psychologist that evaluated DeRusse diagnosed him with major depressive disorder and obsessive-compulsive disorder. The district court and in turn, the panel, were impressed by the following facts; the offense fell far outside the heartland, it was not motivated by any evil or ill intentions, it was aberrational behavior from a first time offender suffering from a severe, then-undiagnosed mental illness and there was no reason to believe he would commit a similar crime again. The panel said the district court meaningfully discussed the statutory sentencing factors in the context of these facts and its decision to add a five year term of supervised release to the time served jail term did not exceed the bounds of permissible choice. The government’s appeal, commented the panel, amounted to a disagreement with the way in which the district court weighed the statutory sentencing factors. J. Baldock dissented. According to him, the “heinous nature” of the offense demanded more exacting punishment.

Court Affirms that Defendant Loses Benefit of Criminal History Departure At 3582(c)(2) Resentencing

United States v. Gutierrez, 2017WL2641063 (June 20, 2017) (NM): In his 18 U.S.C. § 3582(c)(2) motion, Gutierrez asked that he again be sentenced in criminal history category III. At the initial sentencing hearing, the court had departed from criminal history category IV to III and reduced the offense level from 35 to 34 to account for disparity with other defendants. Post-conviction, the district court reduced Gutierrez’s offense level after the sentencing commission promulgated Amendment 782 to the guidelines. The district court said it wanted to resentence in Category III, but USSG § 1B1.10, as modified by Amendment 759, allowed departures only for cooperating with the government.

On appeal Gutierrez argued, (1) the departure was not prohibited by § 1B1.10 because, as modified by Amendment 759, it exceeded or conflicted with the commission’s statutory authority and violated the separation-of-powers doctrine, or alternatively, (2) the district court was required by the one-book rule to calculate his amended guidelines range based on category III. The panel rejected the first argument because the commission’s authority to promulgate a revised § 1B1.10 comes from an express delegation by Congress and Congress “enjoys the power to curtail the judiciary’s discretion over sentencing.” Additionally, Congress gave the commission statutory discretion to determine which rules may further the purposes of sentencing. When the commission decided to limit reductions below the amended Guidelines range in all circumstances except where a defendant provided substantial assistance to the government, it was properly making use of that discretion. The panel also was unpersuaded by Gutierrez’s one book rule argument. Section 1B1.11(b)(2) requires that a single guidelines manual govern an accused’s sentencing calculation in its entirety. Gutierrez said, that by calculating his offense level using the post-amendment 782 version of § 2D1.1 now in effect, while calculating his criminal history category using the pre-Amendment 742 version of § 4A1.1 in effect at the time of his original sentencing, the district court violated the one-book rule’s prohibition against applying different sections from different editions of the Guidelines. Had the district court accounted for amendment 742’s elimination of recency points in calculating his criminal history score, he would fall within criminal history category III, rather than IV. The panel chose not to resolve this conundrum. Instead it said, whatever role the commission may have envisioned for the one-book rule in § 3582(c)(2) proceedings, if any, that role does not include mandating the retroactive application of amendments excluded from § 1B1.10(d) . And, to the extent that provisions of § 1B1.10 and § 1B1.11 conflict, § 1B1.10 controls because it provides more specific guidance.

Friday, May 26, 2017

Sentence Reversed for Violation of Tapia

U.S. v. Tidzump, 841 F.3d 844 (11/9/16) (Wyo.) (published) - The 10th reverses yet another sentence on plain error review for a violation of Tapia v. U.S., 564 U.S. 319 (2011). The district court indicated it gave Ms. Tidzump a higher sentence than the court would otherwise have imposed so that he could qualify for RDAP, which meant the judge tried to impose a sentence where Ms. Tidzump would have 24 months left to serve once he got to prison. Since he'd already served 4 months and it would take time to get him to a prison, the district court imposed 31 months. The only new aspect of this case is that the district court downwardly varied. The 10th says that didn't matter. The court indicated it would have imposed a much lower sentence if it didn't want to get Ms. Tidzump into RDAP. The 10th rejects the government's claim that the judge's comment: "maybe not" indicated some kind of equivocation. The error was plain. There was a reasonable probability the court would have imposed a significantly lower sentence absent the error. And that fact meant the error seriously affected the fairness, integrity and public reputation of the judicial proceedings. Plain Error Reversal!

Damages Defendant Received for Prison Mistreatment Can Be Taken for Restitution

U.S. v. Simpson-El, 2017 WL 2125891 (5/17/17) (Kan.) (published) - The 10th affirms the district court taking for a restitution payment most of Mr. Simpson-El's money he received as damages for prison mistreatment. The district court had ordered Mr. Simpson-El to pay over $400,000 in restitution at the rate of 5% of his gross monthly income. While imprisoned he was injured and then received inadequate medical care. He received a $200,000 settlement. The district court took over $145,00 for restitution. Mr. Simpson-El contended that was wrong because there was no material change in economic circumstances as required by 18 U.S.C. § 3664(k) to justify a restitution change. He argued the settlement was for the loss of future income, i.e., income that was the basis for the original restitution order. The 10th does not buy that. First, it says the settlement could have been at least in part for lost quality of life. Damages for that would be fair game, the 10th indicates. Second, with the use of charts [Judge Bacjarach's thing], the 10th illustrates that, even if the damages were for loss of future income, Mr. Simpson-El's economic circumstances changed because he got money sooner than he would have if his earning potential would only have been realized in the future. This seems like it might ignore the fact that the settlement probably reflected a discounted value of the future income lost. The 10th assures us its holding does not mean every personal injury settlement would allow for quicker restitution payments.

Wednesday, May 24, 2017

Violation of Municipal Domestic Battery Ordinance Cannot Support a 18 USC § 922(g)(9) Conviction

United States v. Pauler, 2017 WL 2233740 (May 23, 2017) (KS) (published): The panel reverses Pauler’s conviction for possessing a firearm after having been convicted of a misdemeanor crime domestic violence. The term “misdemeanor crime of domestic violence” is defined in 18 U.S.C. § 921(a)(33)(A) as a “misdemeanor under Federal, State of Tribal law.” Using basic rules of statutory construction, the panel concludes that Pauler’s conviction for violating a municipal domestic battery ordinance is not a “misdemeanor under Federal, State or Tribal law.” In other words, since this phrase does not include a violation of a municipal ordinance, that type of transgression cannot be used prosecute someone for violating 18 USC § 922(g)(9). If you have a statutory interpretation issue, this case is worth looking at.

DOJ thought this case was important enough to assign it to the DOJ/DC appellate unit. Congratulations to our colleague in the Kansas City office, Dan Hansmeier, who showed them how the cow ate the cabbage west of the Mississippi.

Tuesday, May 23, 2017

Challenge to Pattern Reasonable Doubt Instruction Rejected

U.S. v. Petty, 2017 WL 2219098 (5/22/17) (CO) - the court rejects Mr. Petty's constitutional challenge to the Tenth Circuit's Pattern Jury instruction on reasonable doubt. He maintained that instructing the jury to convict if "firmly convinced" of guilt connotes a lesser standard of proof than beyond a reasonable doubt; that the instruction failed to communicate the government's heavy burden; and that it failed to inform the jury that reasonable doubt could arise from lack of evidence as well as from presented evidence. The Tenth says there was no "reasonable likelihood" that the jury understood from the instructions that the defendant could be convicted on proof insufficient to meet the reasonable doubt standard. There was no requirement that the jury be told specifically that the government has a heavy burden in a criminal case and that reasonable doubt may arise from the government's failure to present adequate evidence. Mr. Petty was not denied due process or deprived of a fair trial.

Tuesday, May 16, 2017

60-year Sentence Was Not Unreasonable, Court Says

US v. Gallegos, 2017 WL 1735221 (10th Cir. 5/3/17) (unpub'd) - The Tenth Circuit is not sympathetic to the defendant's argument that his 60-year sentence for 22 counts of production of child pornography and 1 count of possession of child pornography is substantively unreasonable. In a plea agreement, the defendant admitted to producing about 110 videos and images of himself engaging in sexual acts with a minor when she was between the ages of 3 and 7 years old. He also admitted to possessing more than 200,000 images and 16,000 videos of child pornography. His offense level was calculated to be 53, so even though his criminal history category was I, his advisory guideline sentence was life imprisonment. The PSR reduced the offense level to 43, the maximum recognized under the guidelines, and recommended a total sentence on all counts of 70 years. Emphasizing the need for community safety and punishment (this was the worst case of child porn production and sexual assault on a young child the court had ever seen), the district court imposed a 60-year sentence. The panel concludes that the district court did weigh all the sentencing factors, including the mitigating factors of acceptance of responsibility, remorse, the defendant's claim of having been sexually abused as a child, his lack of criminal record, and a psychiatrist's report. Accordingly, the defendant did not show that the court's sentence was arbitrary, capricious, whimsical, or manifestly unreasonable.

In a rare decision, Tenth concludes 3582(c)(2) movant is eligible for sentence reduction despite Rule 11(c)(1)(C) plea agreement

U.S. v. Jordan, 853 F.3d 1334 (4/18/17) (Kan.) - The 10th finds Mr. Jordan eligible for a sentence reduction under 18 USC § 3582(c)(2)/11(c)(1)(C). The 11(c)(1)(C) agreement called for a sentence within the range of 135 to 168 months based on an offense level of 31. The agreement did not mention what criminal history category Mr. Jordan was in. The agreement said both that the range did not offend the advisory guidelines and that the partes were not requesting the imposition of a guideline sentence. The PSR found the offense level to be 33 because it found a higher amount of cocaine was involved than did the parties, leading to a range of 168 to 210. No one objected to the PSR. At sentencing, the district court accepted the agreement, noted the discrepancy in the range calculations and imposed a 168-month sentence, It pointed out the sentence was the low end of the PSR's range, which it thought was "an important factor." With Guideline Amendment 782, both the parties' and the PSR's offense level decreased by two levels. Mr. Jordan filed a § 3582(c)(2) motion. The district court denied the motion on the ground that the sentence was based on the agreement not on a subsequently reduced guideline range.

Pursuant to 10th precedent, the 10th assesses whether Mr. Jordan's sentence was based on a subsequently-reduced range according to the analysis of Justice Sotomayor's concurrence in Freeman. In answering that question in the affirmative, the 10th fights back a number of problems.

First, it holds it doesn't matter that the agreement did not state Mr. Jordan's criminal history category. The 10th has beaten back many a § 3582(c)(2) claim based on that fact. But here the 10th says the criminal history category was III because that corresponds to the offense level and range the parties agreed to. Importantly, the 10th explains that the agreement in Freeman was not 100% explicit about how the parties' sentence was calculated Justice Sotomayor figured it out with some logic, despite some missing information. Also importantly, the 10th relies to some extent on the parties' representations at the plea hearing and the PSR's calculations indicating what the criminal history category was, i.e, extra-agreement evidence. The 10th uniformly, until now, has dismissed the relevance of such evidence in other Freeman cases.

Second, the 10th says the agreement did not have to spell out the drug quantity attributable to Mr. Jordan. The agreement's factual basis indicated 10 kilograms of cocaine was involved and that corresponded to the ultimate offense level agreed-to, given an upward enhancement for firearm possession and an acceptance-of-responsibility reduction [the enhancement and reduction were apparently not mentioned in the agreement].

Third, the 10th is undisturbed by the statement in the agreement that the parties were not requesting the imposition of a guidelines sentence. Reviewing the agreement as a whole, the 10th concludes the reference to a guideline rage renders that statement ambiguous. Ambiguities must be construed against the government. The 10th notes prior 10th decisions relying on that very disclaimer to deny relief. This case is different, the 10th says, because the link between the stipulated sentence and the Guidelines in those cases was somewhat more tenuous than in this case.

Fourth, the 10th sweeps away the problem that the parties agreed to one guideline range and the district court found another. The 10th disagrees that the range upon which a defendant's sentence is "based" under § 3582(c)(2) has to be the same as the range "applicable to" the offense under § 1B1.10. The 10th finds inapposite its prior decision in U.S. v. White, 765 F.3d 1240 (2014), in which the 10th held § 3582(c)(2)'s "based on" language referred to the correctly calculated range. That was a non-11(c)(1)(C) case the 10th points out. In an 11(c)(1)(C) case, under Justice Sotomayor's Freeman concurrence, the range that matters is the one the parties agreed to, even if it differs from the district court's range.

Fifth, what about the fact that § 1B1.10's "applicable" range might be the district court's range and § 1B1.10 prohibits considering departures from that range? The 10th says it doesn't need to address that question. Mr. Jordan only asked for the bottom end of the court's range, 135 months.

Sixth, it doesn't matter, the 10th rules, that the new "applicable" range is identical to the old parties' guideline range. That fact might be relevant to what sentence the district court ultimately imposes, but it does not bear on the court's jurisdiction.