Monday, March 20, 2017

United States v. Wireman

United States v. Wireman, 2017 WL 765769 (February 28, 2017)(KS)(published): This case is notable because of Judge McKay’s concurrence. The panel reviews how much a district court must say when rejecting nonfrivilous arguments asking for a variance based on policy critiques of a pertinent guideline provision. (Here, Wireman attacked USSG § 2G2.2). According to the majority, when a district court sentences the accused within the recommended imprisonment range, not much needs to be said. A court does not have to explicitly address the accused’s arguments as long as the “context and the record make clear” the court’s reasoning for rejecting those arguments. An accused will almost certainly lose a procedural unreasonableness argument if he does not object to the “method by which” the court arrived at its sentence. This means he must tell the court it has not adequately explained the sentence imposed if he wants to the court to use de novo review on appeal.

Judge McKay disagrees with the majority’s procedural unreasonableness analysis because it “has not required enough of the district court.” He writes that the court should have explained why it rejected Wireman’s policy argument because “policy critiques . . . are different and deserve more attention.” Since the guidelines “anchor a sentencing” they set “the starting point”; the parties then “argue whether the facts and circumstances” call for “a different endpoint.” Challenging the guidelines “is more like rejecting the starting point. If the applicable Guidelines do not reflect a sound judgment it stands to reason that they should not anchor the sentencing. And because the anchoring effect of the Guidelines is so strong, a winning policy argument would have an outsized effect on the sentencing proceedings.” Judge McKay also notes that when the accused has a reasoned argument for challenging the soundness of a particular guideline, the appellate court should not presume a sentence is reasonable even if it falls within the recommended imprisonment range. Still, Wireman loses because he cannot overcome plain error review.

Monday, March 06, 2017

U.S. v. Lopez, 2017 WL 743982 (2/27/17)(Kan.)

The Tenth reverses the defendants' methamphetamine-conspiracy convictions, holding that the district court should have granted their motion to suppress. A Kansas Highway Patrol Trooper stopped the defendants for speeding, gave them a warning, questioned them about their travel plans, and then asked them for consent to search the car. They refused. The trooper detained them anyway, waiting on a drug dog. This detention was illegal, despite the trooper's claim that the defendants were nervous, said suspicious things, and had suspicious travel plans, and that the driver had only a temporary paper license (giving the trooper probable cause to arrest her for driving without a license).

Some lessons from Lopez:

Nervousness: "[W]e have consistently assigned this factor limited significance because its measure is so subjective and innocent people can vary widely in how they respond to an encounter with police . . . . Only extreme nervousness can substantially contribute to reasonable suspicion."

Travel plans: "[W]e have generally been reluctant to give weight in the reasonable-suspicion analysis to unusual travel purposes, at least absent lies, inconsistencies, or the like."

Driver's license: The driver had a printed license receipt from the California DMV rather than an actual license. But the dispatcher confirmed for the trooper that the driver had a valid license. Once he had this information, the trooper should have known that the driver could not have been arrested for driving without a license. Kansas law prohibits convictions of that crime if the arrested person later produces a valid license. "An officer does not have probable cause to arrest a person for a crime when he knows she could not be convicted. See Brown v. Fisher, 251 F. App’x 527, 534 (10th Cir. 2007) (expressing doubt that officer could arrest driver for violation of this very statute when officer knew that driver was licensed); see also United States v. Edwards, 632 F.3d 633, 640 (10th Cir. 2001) (‘If the police learn information that destroys their probable cause to arrest a defendant, the arrest may become illegal.’)."

U.S. v. John, 2017 WL 743976 (2/27/17)(NM)

The Tenth, which rejects confrontation, jury instruction, and lesser-included-offense claims re: aggravated sex abuse and aggravated sexual contact convictions. The district court properly refused to permit cross-examination of the victim about a bizarre incident in which the victim made dubious claims about her sister coercing her to consume alcohol and the victim subsequently slit her wrists and was hospitalized and evaluated for mental health disorders. The Tenth decides none of this is relevant to her ability to perceive, remember, or relate the events she testified about at trial. The three challenged jury instructions were just fine. The instruction that the victim's testimony could be believed without corroboration did not suggest the victim was especially credible. It was proper to give an instruction that an attorney's communication with a witness does not reflect on the truth of the witness's testimony--despite the fact that during the trial, the prosecutor called for a recess after its witness testified untruthfully, then was permitted to return to the stand and change her testimony. An instruction that the jury can infer a person intends the natural and probable consequences of acts is ok so long as the instructions as a whole tell the jury of the government's burden to prove the necessary intent beyond a reasonable doubt. A simple assault instruction was appropriately denied because there was no reasonable basis to conclude the charged assault occurred without sexual intent.

Thursday, February 16, 2017

Stop of Defendant Walking with Two Backpacks in High-crime Area Was Without Reasonable Suspicion

S v. Hernandez, No. 15-1116, 2/9/17 (Colo) - In a published opinion, a divided panel affirms the grant of a motion to suppress based on an illegal stop without reasonable suspicion. Defendant was walking next to a construction site in a high-crime area at 7:43 p.m., dressed all in black and with two backpacks. Two cops were patrolling in the area in a marked unit and spotted him. They pulled up next to him and started asking him questions. Defendant kept walking while answering the questions and the cops drove along beside him. Defendant told them that he was on his way home from his grandmother’s housed, but did not know her address. One of the cops noted in his report the next day that defendant “tried not to talk to us.” The cop then asked defendant if he would stop so they could talk to him and he did. The cops wound up learning that defendant had an active warrant for a parole violation, even though defendant gave a false date of birth, so they put the car in park and got out and approached him, at which point he began to walk away quickly. One of the cops saw him reach for his waistband and asked him if he had a gun, which he admitted he did. The cop grabbed him, causing the gun to fall out of his waistband. He was then arrested for felon in possession.

Held - (1) asking defendant to stop and talk was, considering the totality of the circumstances, a seizure; and (2) again considering the totality of the circumstances, there was no reasonable suspicion to justify it. The majority considered it a close case, but held that the district court got it right in granting defendant’s motion to suppress. Judge Briscoe could not have disagreed more with the majority (Judge Seymour, joined by Judge Lucero). To her, this was clearly not a stop, and there was reasonable suspicion even if it was.

A very interesting quirk here is that the government had submitted a Rule 28(j) letter calling the panel’s attention to the Supreme Court’s recent decision in Utah v. Strieff, in which the court held that discovery of an outstanding warrant during an illegal stop attenuated the original illegality and permitted introduction of evidence found on the defendant after he was arrested on the warrant. The majority found that the government had waived any argument based on Strieff because the government could have raised the argument below, as did the defendant in Strieff, two other circuits had already ruled the same way the Supremes did in Strieff, and Strieff supplemented governing law by applying the factors from Brown v. Illinois rather than change it.

Government Given Third Option for Proving Mens Rea in Child Sex-Trafficking Cases

United States v. Duong, 2017 WL 586439 (February 14, 2017) (OK, published): In child sex trafficking cases, the government, apparently, has had difficulty proving the mens rea element with respect to the victim’s status as a minor. This explains why Congress has repeatedly amended 18 U.S.C. § 1591 to “lower the government’s burden.” After examining the statute’s “plain language”, the panel concludes that the government is “no longer limited to the proof of actual knowledge.” Instead, the government need not prove actual knowledge when the accused had a “reasonable opportunity to observe the child victim.” This is a standard lower than the one that first reduced the knowledge requirement: reckless disregard of the fact that the child was a minor. To summarize, the government now has three ways to prove mens rea with respect to the age of the child victim: (a) the accused knew he was a minor; (b) the accused recklessly disregarded the fact he was a minor; or if these first two are unprovable (3) the accused had a reasonable opportunity to observe her.

Possible Sentence in Revocation Proceedings is Based on the Original Conviction, Not the Violation Conduct

United States v. Collins, 2017 WL 586436 (February 14, 2017) (KS, published): Following a second revocation of supervised release, Collins argued that the relevant “offense” referred to in 18 U.S.C. § 3583(e)(3) is the violative conduct that gave rise to the first revocation. If he was right, the district court properly sentenced him to only one year in prison. Section 3583(e)(3) directs a court to sentence the accused “to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release . . .” The panel said that Collins’ interpretation was incorrect. “Offense” in § 3583(e)(3) means the original case for which the accused was convicted. Here, the district court could have sentenced Collins to three years for the Class B felony for which he was first sentenced. The case is remanded for resentencing.

Wednesday, January 25, 2017

Tenth Addresses When An Entity is a Government Agent for 4th Amendment Purposes; Reverses Denial of Motion to Suppress

U.S. v. Ackerman, 831 F.3d 1292 (10th Cir. 2016) - The 10th reverses a suppression denial in a case involving private/public search issues. AOL intercepted Mr. Ackerman's e-mail because an AOL filter identified one of the 4 images attached to the e-mail as child porn. AOL did as federal law required and forwarded a report to the National Center for Missing and Exploited Children (NCMEC). The report included the e-mail with all 4 images. A NCMEC analyst opened the email and decided all 4 images were child porn. NCMEC determined Mr. Ackerman was the likely account owner and informed law enforcement agents in the area where Mr. Ackerman lived. A child porn indictment soon followed.

The 10th rules the NCMEC qualifies as a government entity subject to the 4th Amendment. It's the entity's function, not how it's organized, that determines whether it is a government agency. When an actor is endowed with law enforcement powers beyond those enjoyed by private citizens, the actor is exercising police power and so is governed by the 4th. Here NCMEC's authorizing statutes mandate collaboration with law enforcement in over a dozen different ways, many of which involve duties and powers beyond what private folks have. For example, NCMEC must operate an official national clearinghouse of information about missing and exploited kids. With respect to child porn, NCMEC must maintain an electronic tipline for ISPs to use to report possible internet chid sexual exploitation, which tips NCMEC must in turn report to law enforcement. ISPs must report any known child porn to NCMEC. When NCMEC confirms receipt of the report the ISP must preserve the evidence. NCMEC is statutorily authorized to knowingly receive child porn, unlike the rest of us. Law enforcement agents participate in NCMEC's daily operations and government officials enjoy a sizeable [almost 25%] presence on its board. The 10th relies for its conclusion on recent S. Ct. cases holding Amtrak is a government entity. The 10th holds Mr. Ackerman preserved his government-entity contention on appeal by asserting below the NCMEC was a government agent. On the other hand, it holds the government forfeited substantive arguments that only amicus NCMEC made on appeal. But the 10th rejects NCMEC's arguments anyway. It doesn't matter that some private money supports NCMEC. The bulk of funding comes from the federal government. NCMEC has a duty to perform the functions it does, the 10th says. It's not discretionar,y as NCMEC argued, because the relevant statute says "shall."

In any event, the 10th says, even if NCMEC were a private entity, it acted as a government agent in this case. This is so because NCMEC acted with the government's consent with the intent to further the government's purpose. The standard of review for the agency question is de novo. So the 10th owes no deference to the district court's contrary agency finding.

It was a search to open and review the email and its attachments, just as it is a search to open snail mail. The 10th however, leaves open the possibility that the third-party doctrine might apply, that is, because he shared the email with AOL Mr. Ackerman lacked a reasonable expectation of privacy in his email. The District court did not address that issue, which it can on remand. The 10th avoids addressing the issue now because factual issues remain to be determined, such as the extent to which AOL accessed emails and the extent to which users were aware of and acquiesced in such access. The 10th rejects the government's claim that NCMEC just did what the private AOL employees already did and so there was no intrusion by the government beyond what had already been done by non-government folks. But NCMEC went beyond what AOL did, which was only to make a hash value match. NCMEC actually opened the email and the attachments. The 10th distinguishes the case's circumstances from the agents' testing of the white powder in U.S. v. Jacobsen, 466 U.S. 109 (1984), where FedEx employees had already opened the package and discovered the white powder. The Jacobsen test could only disclose whether the powder was contraband, whereas the email opening could have disclosed all sorts of non-contraband private information. In part of the opinion with which only two of the three judges agree, the 10th even questions the current validity of Jacobsen. Since Jacobsen, the Court in U.S. v. Jones, 132 S. Ct. 945 (2012), (the case involving the placing of a GPS device on a car), indicated a 4th Amendment search could involve an invasion of a reasonable expectation of privacy or a trespass. In Jacobsen, the agents physically intruded on the white powder. It's possible, the 10th suggests, that the Court today would find the Jacobsen drug testing---a destruction of a chattel--- was a search. Here there was a trespass of chattels in the opening and viewing of the email.

Tuesday, January 24, 2017

Oklahoma Assault and Battery with a Deadly Weapon is a Crime of Violence

U.S. v. Taylor, 2016 WL 7187303 (12/12/16) (Okla.) - The Tenth applies the modified categorical approach to determine that Taylor's prior Oklahoma conviction of assault and battery with a dangerous weapon is a "crime of violence" under U.S.S.G. § 4B1.2(a)(1). The Okla. statute criminalizes an intentional attempt or threat to commit violence on another that is either an attempted-battery assault or an apprehension-causing assault with a weapon capable of causing great bodily harm. The court points out that this Okla. offense is similar to New Mexico's apprehension-causing assault with a deadly weapon and the offenses have similar "deadly weapon" definitions. Under Ramon Silva, 608 F.3d 663 (10th Cir. 2010), a statute criminalizing "purposely threatening ... a victim [ ] with a weapon capable of causing death or great bodily harm" is a crime of violence. Regardless of the type of "dangerous weapon" used, the use of a "dangerous weapon" during an assault or battery always has a sufficient threat of force to satisfy the § 4B1.2(a)(1) elements clause.

Restrictive Habeas Standards Doom Batson Challenge

Washington v. Roberts, 2017 WL 74687 (1/9/17) (Kan.) - In a 28 USC § 2254 state habeas case, the 10th affirms a district court decision denying relief where at Mr. Washington's murder trial, the state exercised ten of twelve peremptory challenges against African American prospective jurors and provided weak explanations for the strikes. While the Tenth says it would likely have reversed had the case come before it on direct appeal, it decides the test applied by the Kansas Supreme Court was not contrary to clearly established US Supreme Court precedent at the time. That test prohibited only peremptory strikes that were found to be based solely on race. The prosecutor came up with multiple explanations, some of which seemed race-neutral, and that was good enough under the law as it stood in 2003. Mr. Washington also claimed that the Kansas courts misapplied even that standard and never reached the third Batson step of evaluating the facially race-neutral reasons and determining whether purposeful discrimination had occurred. But state court decisions must be given the benefit of the doubt and there is a presumption that state courts know and follow the law. And reviewing courts must defer to trial court findings on discriminatory intent because they largely turn on credibility.

The Court gives little attention to Mr. Washington's remaining claims. There was ample evidence that he was not in custody before he received Miranda warnings. Even if counsel was ineffective in failing to call Mr. Washington to testify in support of his Miranda claim, there was no showing of prejudice. And the prosecutor's improper argument that Mr. Washington did not have a license to kill because of his PTSD, which was the basis of his defense, was cured by the trial court's admonition to the jury.

Colorado Robbery Held to Be a Predicate Violent Offense for ACCA, Career Offender Purposes

U.S. v. Harris, 2017 WL 34458 (1/4/17) (Col.) (Published) - The 10th opinion begins: "The issue in this appeal questions what should be the obvious: That statutory robbery is a 'violent felony' under the ACCA." Colorado robbery consists of taking anything of value from the person or presence of another by the use of force, threats or intimidation. To start with, the 10th rules the robbery statute is indivisible. So if the minimum culpable conduct involving any of the three means does not "have as an element the use, attempted use or threatened use of physical force," Colorado robbery is not a "violent felony." The 10th also declares there must be a realistic probability the statute would apply to the conduct. The 10th acts like this is an obvious proposition. But there is a good argument such a probability is not required for "physical clause" questions, as argued in Maldonado-Palma---an issue the 10th didn't address in that case. Also before jumping into what Colorado robbery means, the 10th suggests hitting, slapping, shoving, grabbing, pinching, biting and hair pulling could involve enough force to be capable of causing physical pain or injury, thus meeting the "physical force" clause standard.

The 10th finds that Colorado case law describes Colorado robbery as akin to common law robbery. The Colorado supreme court has said the gravamen of robbery is "the violent nature of the taking." Colorado cases are consistent with the common law emphasis on the assaultive nature of the crime, the 10th says. The 10th notes the dictionary definition of violent, i.e., "extreme force marked by abnormally sudden physical activity and intensity." The 10th rejects Mr. Harris's citation to a couple of Colorado cases. The 10th notes they didn't explicitly discuss the requisite amount of force and one involved a "forceful shove" and the other "placing a hand over the victims mouth," which the 10th thinks "was surely enough to incite fear of personal harm." This is the extent of the support for its holding regarding the force part of the robbery statute. Luckily for us, the 10th distinguishes Colorado robbery from other states' robberies that circuit courts have found not to satisfy the "physical force" clause. Massachusetts robbery in the 9th's Parnell case departs from the common law and does not require victim resistance; Missouri robbery in the 8th's Bell case requires physical contact but it need not cause physical pain or injury; for North Carolina common law robbery in the 4th's Gardner case the degree of force is immaterial; Arkansas robbery in the 8th's Eason case is defined as "any bodily impact, restraint or confinement." The 10th cites in support a number of circuit courts that have found different state robberies to be "violent felonies."

As for the threats or intimidation parts of Colorado robbery, the 10th surges into more troubling territory. It reads one state supreme court case as saying threats or intimidation involve the use of force or violence. It then declares this means enough force is involved to be "physical force." The common denominator of all three means of Colorado robbery is force or violence, the 10th explains. The 10th rejects the contention that Colorado robbery can be committed by threats to property. The 10th switches from the common law robbery notion and explains nowadays many states have abandoned the notion of threat to property as being part of robbery, creating extortion statutes instead. This is what Colorado has done, the 10th finds. The 10th concludes that only theoretically nonviolent conduct might constitute Colorado robbery. In real life robbery always involves force capable of causing physical injury or pain.

Judge Ebel concurs with the judgment. He agrees with the force component of the opinion, but opines that the court should not have addressed the threat or intimidation parts of the robbery statute because Mr. Harris had not preserved a challenge to those parts of Colorado robbery. He disagrees with the Harris majority in Crump, below.

U.S. v. Crump, 2017 WL 33530 (1/4/17) (Co.) (unpublished) - The majority in this case holds that Harris requires it to find Colorado robbery is a "crime of violence" under the career-offender guidelines. It declines to address the question whether Colorado robbery is the same as the generic robbery enumerated in the career-offender commentary. Judge Ebel dissents. He interprets state law to consider intimidation or threats to include threats to property or the rights of another and so not necessarily satisfying the "physical force" clause. He doesn't cite to a particular case involving less than force capable of causing pain or injury. But he says that , given the variety of nonviolent ways robbery could be committed, there is a realistic probability of a robbery that didn't involve the requisite "physical force." Judge Ebel goes on to hold, as we've argued, that the listing of robbery in the commentary does not mean generic robbery is a "crime of violence" under § 4B1.2 before its August amendment. Commentary cannot be inconsistent with the guideline text Without the unconstitutional residual clause in the text, robbery cannot survive in the commentary.

Monday, January 23, 2017

Tenth Explains Limits of Attorney-Client Privilege When Corporate Counsel is Involved; Convictions Affirmed

U.S. v. Merida, 828 F.3d 1203 (7/12/16)(Published)(Okl.) - The 10th affirms convictions for fraud, embezzlement and failing to report income on tax returns, holding Mr. Merida's statements under oath during an investigation were not covered by an attorney-client privilege with the Choctaw Nation's counsel. Mr. Merida was the Nation's executive director of construction. At the beginning of the interrogation, the Nation's attorney told Mr. Merida his statements were covered by attorney-client privilege because he worked for the tribe. Counsel also announced the Nation asserted any privilege and all Mr. Merida's statements were confidential. The Nation gave the transcript of the questioning to the government. At trial, during the government cross of Mr. Merida, he admitted he had made a couple of inaccurate sworn statements during the investigatory interrogation. Defense counsel moved for a mistrial on the ground that whatever Mr. Merida said during the interrogation was covered by attorney-client privilege. The 10th notes any privilege from communications between corporate counsel and corporate officers, such as Mr. Merida, belong only to the corporation, not the officer. An officer can assert the privilege only if corporate counsel conversed with the officer in an individual capacity. There are five prerequisites for counsel-officer conversations to be privileged on behalf of the officer: (1) the officer approached counsel for legal advice; (2) the officer made it clear the officer was approaching in his individual capacity; (3) counsel communicated with the officer in his individual capacity, knowing there could be a possible conflict; (4) the conversations were confidential; (5) the substance of the conversations did not concern corporate matters. Mr. Merida had failed to meet at least 4 [(1)-(3) & (5)] of the requirements. And the Nation waived its privilege when it gave the statements to the U.S. Attorney. Plus any error would be harmless, given the overwhelming evidence, the 10th says. The 10th is not impressed by Mr. Merida's claim the case was close because the jury felt it was deadlocked at one point. The jury only indicated it was deadlocked on one count and it convicted Mr. Merida of 6 of the 7 counts.

Judge Lucero concurs. He makes explicit what he thinks the majority implicitly ruled. Judge Lucero finds the privilege would not apply here even assuming without deciding that the privilege applies when a corporate counsel reasonably suggests to a layperson that a personal privilege exists, The judge concedes that a layperson might have missed the nuance of the Nation/individual distinction when counsel declared the statements were covered by the privilege. But the circumstances made it unreasonable for Mr. Merida to believe the conversation was privileged because: his supervisor ordered him to undergo the interrogation; and he was told the investigation's purpose was to help the Nation in an ongoing civil trial. Plus Mr. Merida's false statements showed he didn't really believe his statements would be kept confidential. This is apparently so because clients never lie to their attorneys.

Federal Prosecution of Intrastate Production of CP Does Not Violate Commerce Clause

US v. Humphrey, No. 15-4182 (10th Cir. 1/18/17, published): The Tenth Circuit affirms its prior precedent holding that 18 U.S.C. 2251(a) (prohibiting production of child pornography) applies to the intrastate production of child pornography. Mr. Humphrey abused his girlfriend's daughter, and documented the abuse on his laptop computer and digital camera. There was no evidence that he transmitted any images or video over the internet or shared them with anyone else. In his plea in federal court, he admitted using a digital camera that had traveled in interstate commerce and transmitting the video to his computer using an SD card that had also traveled in interstate commerce. The Court affirmed its holding in US v. Jeronimo-Bautista, 425 F.3d 1266 (10th Cir. 2005), that applying section 2251(a) in this situation does not violate the Commerce Clause. Chief Justice Roberts' concurrence in National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566 (2012), does not require revisiting Jeronimo-Bautista. NFIB held that Congress could not force individuals to participate in commercial activity. However, the case affirmed that Congress could regulate individuals' intrastate activity that had a substantial affect on interstate commerce, even if only when the activities were aggregated with others' similar activities. Here, Humphrey actively produced child pornography. Thus, regulating his activity did not violate the Commerce Clause.

Friday, January 20, 2017

Sentence Modification Motion Fell Within Scope of Plea Agreement Waiver

U.S. v. Amado, 2016 WL 6677599 (11/14/16) (CO) - the district court's denial of Mr. Amado's sentence reduction motion under 18 USC § 3582(c)(2) was appropriate because in his plea agreement, Mr. Amado waived his right to attempt to modify his sentence down the road. Sentence reductions under § 3582(c)(2) are not mandatory and it did not matter that Amendment 782 did not exist at the time of the plea. The motion fell within the scope of the plea waiver, which was knowing and voluntary, and no miscarriage of justice resulted from enforcement of the waiver.

Unpublished Decisions

U.S. v. Lee, 650 F. App'x 948 (6/1/16) (N.M.) (unpub'd) - The 10th finds the district court did not commit plain error by considering the § 3553(a)(2)(A) factors in determining what sentence to impose for a supervised release violation. Those factors---the need for the sentence to reflect the seriousness of the offense, to promote respect for the law and to provide just punishment---are omitted from the factors a district court is supposed to consider in determining a supervised release revocation sentence. See 18 U.S.C. § 3583(e). The 10th notes that several circuits have ruled that consideration of § 3553(a)(2)(A) factors does not automatically render a revocation sentence procedurally unreasonable. but placing undue weight on those factors or treating them as dominant factors may constitute reversible error. Nonetheless, since neither the 10th nor the Supremes have ruled on the matter, even if the court had primarily relied on § 3553(a)(2)A) factors, any error would not be plain, the 10th says. And the 10th doesn't find the language of § 3583(e) clear enough for plain error. The 10th acknowledges the omission of the factors from § 3583(e) must mean something. But § 3583(e) doesn't say the listed factors are the only factors district courts may consider. So maybe the omission just means § 3553(a)(2)(A) factors may not be the predominant factors, the 10th suggests.

Wright v. Collison, 2016 WL 3212489 (6/2/16) (Okl.) (unpub'd) - Some good news for a § 1983 inmate-plaintiff. The 10th affirms the district court's refusal to award qualified immunity to two jail officers. Inmates who were in a particular cell warned the officers that if they put Mr. Wright in their cell they would hurt Mr. Wright. The officers asked the inmates to give them 5 minutes to find another cell for Mr. Wright. One of the inmates responded that 5 minutes wouldn't work. Nonetheless, the officers put Mr. Wright in the cell. Less than a minute later the officers heard a commotion and found Mr. Wright on the floor with an injured face. It is clearly established that prison authorities have a constitutional obligation to protect a prisoner who has been plausibly threatened with serious harm by other inmates. A jury could believe the threat was plausible and the officers reckless for putting Mr. Wright in the cell, the 10th concludes.
Mr. Wright's suit against the sheriff did not fare so well. While the sheriff was aware the jail was overcrowded, inmate-on-inmate violence at the jail was rare and did not increase appreciably with overcrowding. It was not clearly established, the 10th rules, that a sheriff was constitutionally obliged to reduce overcrowding by any of the measures Mr. Wright suggested, e.g., asking other counties to take prisoners, releasing inmates early, reducing their bonds or using ankle monitor bracelets instead of jail. So the sheriff gets qualified immunity.

District Courts Need Not Explain Rejection of § 3582(c)(2) Motion

U.S. v. Verdin-Garcia, 824 F.3d 1218 (6/3/16) (Kan.) (Published) - The 10th holds that 18 U.S.C. § 3553(c), which requires district courts to explain the reasons for their sentences, does not apply to § 3582(c)(2) proceedings. § 3582(c)(2) only requires consideration of § 3553(a) factors. The 10th recognizes the need for district courts to create a meaningful basis for appellate review. But that need does not require discussing every argument a defendant raises. The 10th acknowledges that other circuits place greater burdens on district courts, requiring them to provide some basis for their rulings. But a majority of those circuits do not require an explicit rejection of the defendant's nonfrivolous arguments, the 10th says. Apparently the 10th doesn't require district courts to provide some basis, [a possible ground for cert grant some day?]. In these three consolidated cases, the 10th summarizes, the district courts were not persuaded by the general and largely policy-based arguments of the defendants, discussing only a few. That's not an abuse of discretion, the 10th holds. The 10th also finds that USSG § 1B1.10 does not require consideration of a defendant's post-sentencing conduct. The guideline requires consideration of § 3553(a) factors and public safety, but it only says the court "may" consider post-sentencing conduct. In these cases, under amendment 782, the defendants' guideline range went from life to 360 to life, but the courts refused to lower their life sentences.

Pre-Sentence Detention Affirmed for Defendant Facing 0-6 Months Guideline Range

U.S. v. Johnson, 652 F. App'x 619 (6/10/16) (Ut.) (unpub'd) - The 10th affirms a pre-sentence detention. The 10th rejects Mr. Johnson's contention that the post-plea, pre-sentence presumption of detention does not apply because his guideline range would be zero to six months. In other words, he argued he was "a person for whom the applicable guideline promulgated pursuant to 28 U.S.C. § 994 does not recommend a term of imprisonment " under 18 U.S.C. § 3143(a)(1). The 10th is unimpressed with Mr. Johnson's point that there are no guideline ranges of zero to zero months, so everyone would be subject to the detention presumption under the government's and the lower court's interpretation. The 10th responds that the § 994 provision to which § 3143 refers says the guidelines could call for three possible categories of punishment: probation, a fine or prison term. Probation and fine are not prison terms. End of story. The 10th finds support for the district court's fear that Mr. Johnson would flee, including that when arrested Mr. Johnson had a one-way ticket to Costa Rica and over $25,000 in cash.

Tenth Affirms Another OK Death Penalty

Smith v. Duckworth, 824 F.3d 1233 (6/6/16) (Okl.) (Published) - The 10th affirms another Oklahoma death penalty in a § 2254, AEDPA controlled case. With respect to the one issue relevant to non-death penalty cases, the 10th holds that it was not unreasonable to okay the trial court refusing to allow a neuropsychologist to testify about Mr. Smith's intellectual capability regarding the question whether Mr. Smith voluntarily, knowingly and intelligently waived his Miranda rights. The trial judge did consider Mr. Smith's intellectual ability in addressing the Miranda question, the 10th says. And there is no clearly established S. Ct. law that requires the trial court to listen to an expert , the 10th concludes. The 10th is untroubled by the following statement by the trial court: "the fact that he's of low intelligence I don't think is a huge surprise to anybody based on the fact most criminal defendants who come in here are not rocket scientists. Is there any law that says I am to take that into consideration, even someone of low intelligence?"
On the pure death-penalty front, the 10th holds it was not unreasonable for Oklahoma to preclude from death-penalty ineligibility on intellectual disability grounds those with an IQ of 76 or higher. The legislature took into account the standard error of measurement--5 points from 70---the lack of which was the problem with the Florida 70 IQ cut-off in Hall v. Florida. It was also okay not to take into account the Flynn Effect, which is the increasing of IQ scores by .3 in the population every year. Mr. Smith's IQ scores were 71, 76 and 79. But neither Hall nor any other S. Ct. case said anything about the Flynn Effect. So the Oklahoma courts couldn't have been unreasonable in upholding Oklahoma's law, despite the Flynn Effect. The 10th is also okay with the denial of an ineffective-assistance-of-penalty-phase counsel claim on lack-of-prejudice grounds. Even if the Oklahoma appellate court made an unreasonable finding that the new evidence counsel could have presented was not particularly different from what was presented at trial, the state court considered all of the evidence in finding the new evidence would have made no difference in the death verdict. So the ruling was not based on any unreasonable fact determination, says the 10th. And the state court's assessment that evidence of Mr. Smith's PCP use causing brain damage was a double-edged sword [because the jury could think Mr. Smith was extra dangerous] was not contrary to Sears v. Upton. Sears does not prohibit considering the double-edged nature of mental-health/substance-abuse evidence. Its discussion of the double-edged issue concerned Strickland's attorney performance prong, not the prejudice prong. In fact, the 10th observes, the S. Ct. has noted the two-edged nature of some mitigating evidence.