Monday, April 20, 2015

Asylum Seeker Failed to Show Membership in Socially Distinct Group

Rodas-Orellana v. Holder, 2015 WL 859566 (3/2/15) (Published) - Mr. Rodas-Orellana failed to demonstrate his proposed group---El Salvadoran males threatened and actively recruited by gangs, who resist joining because they oppose the gangs---is a socially distinct group. So he could not show he was entitled to asylum or withholding from removal due to persecution based on his membership in that group.

Tenth Reverses Grant of Habeas Relief to Arabic Speaker

Al-Yousif v. Trani, 2015 WL 968432 (3/6/15) (Col.) (Published) - The 10th reverses a habeas grant based on the petitioner's inability to understand his Miranda rights. Mr. Al-Yousif is from Saudi Arabia and his primary language is Arabic. An expert testified that Mr. Al-Yousif had limited English proficiency and had not understood his rights. Others testified he would nod and say he understood when he didn't. He read at a fifth-grade level of English, while Miranda rights require a 7th-grade level for a native speaker to understand. Before the interrogation, an officer briskly went through the rights, while holding the rights form in a way that Mr. Al-Yousif could not read along, and Mr. Al-Yousif nodded and indicated he understood. After the officer told him he could not have his uncle present, he provided some inculpatory statements. He later lead them to a dumpster containing the body of the murder victim. After another Miranda advisement, Mr. Al-Yousif asked for an attorney. The Colorado trial court suppressed the statements. But the state supreme court reversed, holding that the trial court required a deeper understanding of the implications of a waiver than Colorado law did. A suspect need only understand that: (1) he did not have to talk; (2) he could have an attorney present; and (3) if he did talk, the statements could be used against him. Whether he understood the tactical significance of the waiver was irrelevant. After reviewing the video of the interrogation, the state's highest court concluded the waiver was knowing and voluntary, The 10th presumed that finding to be correct and found Mr. Al-Yousif had not presented clear and convincing evidence to overturn it. The 10th found the state court had considered the totality of the circumstances. The 10th says: "two trial judges agreed with the petitioner, but the highest state court did not." So tough luck.

The 10th didn't have to get into the merits because it also held the petition was untimely. Equitable tolling was inappropriate, the 10th rules. Mr. Al-Yousif's habeas attorney had determined the supreme court rehearing denial on direct appeal was entered three days after it was actually entered. The attorney based that determination on the date on the document the state gave to the attorney. That document reflected when the state trial court received notice of the rehearing denial. The 10th says the attorney should have been able to figure out the actual date of the denial from available sources. It was even on Westlaw!

Unpublished Decisions

U.S. v. Becknell, 2015 WL 874398 (3/3/15) (Kan.) (unpub'd) - The 10th holds it would be reversible error in violation of Federal Rule of Evidence 704(b) for an expert to testify that a defendant in a § 924(c)(1)(A) case possessed a firearm "in furtherance of" a crime. But in this case where, as the 10th described it, the officer expert "did everything but state that inference," there is no error. The prosecutor asked the officer "expert" to discuss some of the factors he considers in determining whether a person possesses a firearm in furtherance of a drug trafficking crime. The officer detailed a description of those various factors and then immediately described the facts of the case tracking those factors. So the officer "came close to dictating the final conclusion to the jury," but still left to the jury the ultimate finding of fact, the 10th says.

The 10th doubts that the informant's information alone, which was related in a search warrant affidavit, would be sufficient to establish probable cause where the affidavit didn't discuss the informant's reliability. But, in this case, the trash searches and traffic seen at the house suggesting drug sales were enough to corroborate the informant's tip.

U.S. v. Engles, 2015 WL 896316 (3/4/15) (Okl.) (unpub'd) - Mr. Engles, a sex offender, accompanied his live-in girlfriend to her daughter's high school to update the daughter's emergency contact form to include Mr. Engles' address and to add Mr. Engles as a person authorized to pick the daughter up from school. Someone at the school recognized Mr. Engles as a sex offender. He ended up being convicted of the state offense of "loitering" at a school, which sex offenders are not allowed to do. A jury convicted him, despite his contention that he was not loitering because he was at the school for a particular purpose. His appeal is pending in state court. Meanwhile the feds kicked into gear. The district court revoked his supervised release due to his conviction and sentenced him to the high-end of the guideline range, 13 months. The 10th held it could not do anything about the unfairness of the Oklahoma conviction. That was a matter that could only be rectified in state court.

U.S. v. Evans, 2015 WL 874516 (3/3/15) (Col.) (unpub'd) - USSG § 4B1.5(b)'s enhancement for pattern of activity involving sexual conduct applied to two separate instances of producing child-porn videos, even though those activities occurred within the time frame of the indictment to which Mr. Evans pleaded guilty. Application note 4(B)(ii) makes it clear that the two separate incidents may constitute a "pattern" even if the only "pattern" is conduct involved in the offense of conviction.

Jones v. Heimgartner, 2015 WL 873057 (3/3/15) (Kan.) (unpub'd) - A procedural victory for a prisoner. Mr. Jones filed a § 2254 petition in 2012. This was almost 10 years after his state conviction became final. He contended his 2012 petition was timely because it related back to a § 2254 petition that he filed in 2003. The federal court had no record of receiving that petition. The district court dismissed the 2012 petition on the grounds that a petitioner must provide some substantiation of having sent the 2003 petition. Mr. Jones' sworn declaration that he sent it was not enough. The 10th reversed, holding that there is no additional proof requirement for petitions that never reach the federal court as opposed to those that are delayed and eventually reach the court. In each circumstance, the district court must make a factual determination whether the petitioner sent the petition by a certain date or didn't. It couldn't add a new corroboration requirement.

Speedy Trial Act Victory for Defendant

U.S. v. Hicks, 2015 WL 968423 (3/6/15) (Col.) (Published) - A Speedy Trial Act defense victory. After the district court ruled on all pretrial motions, the government filed a motion for a conference to set a trial date. The district court did not rule on that motion for almost two months. It then set the conference for two months later. The 10th holds that only 30 days were excludable due to the government's motion, which was a pro forma or administrative motion, because a hearing was not necessary to decide the motion. The motion was "under advisement" when it was filed. It only required a simple administrative act, regardless of how complicated the matters would be at the conference, especially since the defense had agreed with everything asserted in the motion at a prior hearing.

On the other hand, Mr. Hicks's constitutional speedy trial rights were not violated. (1) The length of the delay, five and a half years favored Mr. Hicks, but all the other Barker v. Wingo factors weighed against him. (2) He was responsible for much of the delay since he filed more than 40 "unique" motions, including several for extensions of deadlines and for a delay until his state prosecution was concluded. The government's part of the delay resulted from relatively benign reasons of negligence and a crowded court docket. (3) Mr. Hicks first asserted his rights near the beginning of the proceedings, but did not renew that claim until more than 3 years later. He asked for many continuances and didn't oppose most of the government's continuance requests. So the assertion factor did not favor Mr. Hicks. (4) As for the prejudice factor, a six year delay might lead to a presumption of prejudice, but only if all of that delay was solely attributable to the government. Here Mr. Hicks was responsible for much of the delay. He couldn't complain about oppressive pretrial incarceration because he was also being held on charges pending in state court. He showed no special harm from anxiety. He didn't specify what evidence he lost due to the delay. So no prejudice was shown that the 10th is willing to recognize. On balance no constitutional violation.

911 call did not violate confrontation rights; constructive amendment argument rejected

U.S. v. Edwards, 2015 WL 1296624 (3/24/15) (OK): Edwards was convicted of possession with intent to distribute methamphetamine. On appeal he raised three issues: (1) an anonymous 911 call that mentioned him by name should not have been admitted because it violated the Confrontation Clause; (2) the trial evidence and jury instructions that allowed his conviction as a principal constructively amended the indictment; and (3) the jury instruction on aiding and abetting omitted an essential element. Addressing each of these issues in turn, the panel ruled that the 911 call was admitted only to explain why the government began its investigation. The court told the jury it could use that call only for that purpose and not for the truth of any matter asserted in the call. Even assuming the court shouldn’t have let the jury hear the call that error was harmless because the evidence against Edwards was “quite damning.” Regarding Edwards’ constructive amendment argument, the panel said only if it found that the indictment was insufficient to charge him in the alternative as a principal could it rule that the indictment was constructively amended. Since the indictment sufficiently charged him as an aider and abettor and as a principal, Edwards’ argument was without merit: the indictment charged Edwards and his co-defendant Washington with “aiding and abetting one another.” The panel interpreted this phrase to mean that the grand jury believed Edwards could have committed the substantive offense by (a) aiding and abetting Washington, making Washington the principal; (b) Washington aiding and abetting Edwards, making Edwards the principal or (c) both Edwards and Washington possessing the methamphetamine with the intent to distribute it which made them both principals and aiders and abettors. Finally, the panel found the jury instructions were correct statements of the law. Even though the instructions did not follow the circuit’s pattern instructions (“district courts are by no means required to follow pattern instructions verbatim”), they correctly instructed the jury on the elements of the substantive offense and aiding and abetting.

Defendant may seek safety-valve relief at sentencing on remand

U.S. v. Figueroa-Labrada, 2015 WL 1296563 (3/24/15) (OK): In Figueroa, the panel decided as a matter of first impression that § 3553(f)’s safety-valve is available to an accused, who did not cooperate or seek safety-valve relief prior to his initial sentencing hearing, but instead sought to satisfy the safety-valve requirements for the first time on remand before his resentencing. Using the plain text of § 3553(f), the panel concluded that when an accused gives information to the government for the first time on remand, but before the resentencing hearing, a district court must consider that information in determining his eligibility for a safety-valve sentence. The panel also found that the district court’s error was not harmless.

A case to put in the ‘reciprocal sauce’ folder.

U.S. v. Huff, 2015 WL 1639520 (4/15/2015) (KS) (published): The district court granted Huff’s motion to suppress because the officers did not have probable cause to believe he had committed or was committing a crime when they took him out of his car and arrested him. But the court changed its mind after the government filed a motion to reconsider. The government said that it now could point to a specific municipal ordinance Huff had violated when the officers took him out of the car. Huff said the court couldn’t reconsider its decision because the government could have told the court of that ordinance earlier. Unpersuaded, the court reconsidered its decision and denied the motion to suppress. On appeal Huff argued the court should not have considered the government’s reconsideration motion. The panel acknowledged that the government did not have a valid excuse for not making the local ordinance argument earlier. In some circuits, like the 11th and D.C., the government would have been out of luck. However, the panel said, it would not be fair to punish the officers for their righteous arrest when it was the prosecutor or the court that made the error. It didn’t matter if the officers had the specific ordinance in mind when they arrested Huff. The district court could consider and grant the government’s reconsideration motion because ultimately what mattered was that the officers had probable cause to arrest Huff.

Practice tip: When you want to add arguments to a motion the court just denied, file a motion to reconsider and point out that it would undermine the constitutional rights of all, your client included, if law enforcement (or the prosecutor) were allowed to get away with what they did. If nothing else those arguments should be preserved for appeal.

Monday, April 13, 2015

Court Rejects Assertion that IRS Is Not A Government Agency

U.S. v. Carpenter, 2015 WL 399904 (1/30/15) (Okl.) (unpub'd) - The 10th rejects Mr. Carpenter's claim that his tax fraud conviction should be overturned because the IRS is really a private corporation based in Puerto Rico, rather than a federal government agency.

Defense Counsel's Attempt to Bribe Victim's Mother Did Not Warrant Habeas Relief

Shue v. Hargett, 2015 WL 4009306 (2/2/15) (Wyo.) (unpub'd) - Mr. Shue's public defender offered the mother of the victim $15,000 from a $250,000 settlement Mr. Shue had just received in exchange for her recommendation of a suspended sentence. Instead of accepting the offer, the ungrateful mother told the prosecutor about the bribe attempt. The public defender was fired, but Mr Shue hired him for the sentencing. The unethical conduct the lawyer engaged in did not warrant habeas relief because there was no proof that that conduct affected the sentence, where the court promised it would not consider the bribe.

Prisoner's Civil Rights Case Remanded for Trial

Miller v. Kastelic, 2015 WL 480354 (2/6/15) (Col.) (unpub'd) - The 10th overturns a grant of summary judgment to the prison defendants in a § 1983 case. Mr. Miller provided sufficient evidence to demonstrate a triable issue as to whether officers knew he was facing a substantial risk of serious harm in the following circumstances: members of the 211 gang learned that Mr. Miller was a sex offender; that gang is known for their actions against sex offenders; they tried to extort canteen items from Mr. Miller; Mr. Miller notified guards of the threat; Mr. Miller was told it would take a few days to transfer him to a different unit; when he returned to his cell after talking to the guards, his canteen items had been stolen; he told a captain about the intimidation; the captain said: "There are no protected units here, if you refuse your assigned room, I'll put you in seg and file charges against you"; "I'll be assaulted if I return to my cell," Mr. Miller said; "Man up," the captain responded; Mr. Miller was then assaulted after he returned to his cell. Mr. Miller didn't just express general concerns to the captain. He gave specific warnings. So relief is possible.

Equal Protection Claim Not Preserved

U.S. v. Magallon-Maldonado, 2015 WL 452319 (2/4/15) (Kan.) (unpub'd) - The defense did not preserve an equal-protection challenge by arguing in the district court that giving Hispanic co-conspirators more severe sentences than the non-Hispanic conspirators violated § 3553(a)(6) [the anti-disparity factor]. The same legal theory must be presented below, not a theory that falls under the same general category as the issue on appeal. On appeal Mr. Magallon-Maldonado argued the court should have required the government to explain the disparate treatment. But any such error was not plain because there was no law imposing such a requirement except in the Batson context and, besides, at oral argument defense counsel admitted with "commendable candor" that any error wouldn't be plain.

No Sentencing Relief for Mentally Ill Man in Gun Case

U.S. v. Chapman, 2015 WL 427547 (2/3/15) (Col.) (unpub'd) - At the age of 7, Mr. Chapman witnessed a gang rape and murder his mom. Mental health issues and convictions ensued. When he moved from California to Denver, he ran out of psych medication because of a delay in getting an appointment with a mental health agency. He began having hallucinations and then acted erratically, drawing the attention of officers who found him in possession of a gun. His guideline range was 51 to 63 months. At sentencing the district court said: "If I were a judge in a different country, in the European Union, I would be able to sentence this man to treatment in a hospital, which is where he should be. I couldn't go to sleep worrying about this case." In the good ol' USA, the judge sent Mr. Chapman to prison for 46 months. This was a substantively reasonable sentence in deference to the lower court, the 10th rules.

Denial of Motion to Suppress Affirmed

U.S. v. Valdez-Perea, 2015 WL 399970 (1/30/15) (N.M.) (unpub'd) - Affirmance of suppression denial in a case involving DEA Agent Jay Perry at a Greyhound bus station. Oddly the tape did not pick up Ms. Valdez-Perea's consent. Rather, she evidenced her consent by nodding her head and standing up and lifting her arms 90 degrees. Agent Perrry's conduct was just like the officers in U.S. v. Drayton, 536 U.S. 194 (2002), where the Court held the officers had not seized the bus passengers they encountered. Drayton settles the voluntariness-of-consent question as well as the seizure question, the 10th holds. The district court could rely on Ms. Valdez-Perea's knowledge of the drug enterprise to deny a minor role adjustment.

Officers Used Excessive Force by Tasering Ill Patient

Aldaba v. Pickens, 2015 Wl 451227 (2/4/15) (Okl.) (Published) - An excessive-force decision in favor of a §1983 civil rights plaintiff. The 10th found the evidence in the light most favorable to the estate was sufficient to prove an excessive force violation that was clearly established. Mr. Lejia went to the hospital due to his pneumonia. After awhile at the hospital, his pneumonia caused low oxygen levels which affected his brain. Soon he became aggressive. He disconnected his oxygen and declared himself Superman and God. He refused medication to make him calm. He began walking down the hall. Medical personnel told arriving officers that Mr. Lejia could die if he left the hospital. The officers told him to get on his knees or they would taser him, but he didn't cooperate. An officer fired a taser that hit Mr. Lejia's torso. A struggle ensued. The officers thrust him face-first against a wall. Another taser, this time to the back of the shoulder. An officer tripped Mr. Lejia and they all fell to the floor with Mr. Lejia landing face-down. This allowed a nurse to inject Haldol and Ativan. But Mr. Lejia went limp, grunted, vomited and died.

In this kind of circumstance an additional governmental; interest comes into play: keeping a mentally disturbed person from harming himself. But with that interest comes extra responsibility. The governmental interest in using force is diminished by the fact that the person has committed no crime and poses only a threat to himself. Where officers know, as in this case, that the person has special characteristics making him more susceptible to harm from a particular use of force, officers should be especially sensitive to the likelihood of harm from use of force. In this case, the officers should have made a greater effort to take control with less intrusive means. The situation "called for conflict resolution and de-escalation, not confrontation and tasers." Importantly, the 10th thought the evidence could support the notion that Mr. Lejia only passively resisted.

Judge Phillips dissented, believing that, even in the light most favorable to the plaintiff, Mr. Lejia was actively resisting. The judge could not figure out what the officers should have done instead of what they did; conflict resolution and de-escalation didn't seem to be an option.

LPR Found Eligible for Waiver of Inadmissibility

Medina-Rosales v. Holder, 2015 WL 756345 (2/24/15) (Published) - The 10th with an alien-friendly ruling. The decision doesn't start out so friendly because the 10th holds that uncertain 10th Circuit law applies rather than 5th Circuit law, which says lawful permanent residents who acquire their status after living in the U.S. are eligible for a waiver of inadmissibility under § 1182(h). Mr. Medina-Rosales was found in Tulsa (the 10th) and was in Tulsa while the immigration judge was in Dallas (the 5th) by video-conferencing. But the 10th ends up agreeing with the 5th. The relevant statute says a person "lawfully admitted for permanent residence." is ineligible for the waiver. The 10th, in conflict with a number of other circuits, finds this refers only to those who obtained their LPR status before or at the time of their entry. The 10th says this doesn't make sense policy-wise, but the plain language is the plain language. That Congress may not have foreseen all the consequences of its statute is not a sufficient reason for refusing to give effect to its plain meaning, the 10th reasons.

Shuttling Between Federal Districts OK

DeWilliams v. Garcia, 2015 WL 756643 (2/24/15) (Col.) (unpub'd) -The Interstate Agreement on Detainers Act anti-shuttling provision did not apply to Mr. DeWillliams because he was only shuttled between federal districts. The federal government is considered a single jurisdiction.

Plaintiff Loses Malicious Prosecution Suit; Circumstances Supported Probable Cause Child Abuse Had Occurred

Tiscareno v. Frasier, 2015 WL 735668 (2/23/15) (Ut.) (unpub'd) - In a malicious prosecution lawsuit, there was probable cause that Ms. Tiscareno, a daycare worker, abused a one-year-old boy where: 4 doctors believed medical evidence indicated brain bleeding began in the boy when he was in Ms. Toscareno's sole care; some doctors thought the cause was shaking; the boy was in seemingly good health when he was dropped off; Ms. Tiscareno told police she shook the boy to try to revive him. Probable cause would have existed regardless of Dr. Frasier's allegedly fabricated medical opinions and the pathology report that indicated there had been brain bleeding before Ms. Tiscareno took over care. And no recovery for a Brady violation where the pathology report was not produced for the first trial, which ended in a guilty verdict, but was available after the district court granted a new trial and the second trial resulted in an acquittal. Brady relief only arises upon conviction and the trial court never entered a judgment of conviction. And, as for the private hospital which had the pathology report, there was no clearly established obligation to disclose the pathology report. While the hospital could have expected the Brady obligation to extend to law enforcement, thanks to Smith v. N.M. Department of Corrections case and Pierce v. Gilchrist, , it had no reason to believe it would extend to private hospitals under contract with the state. Pierce involved a chemist working with the police and Smith involved officers acting as arms of the state. Neither involved the obligation of a private hospital to help in an investigation related to its primary function of providing healthcare.

Circumstances Supported Reasonable Suspicion of Dangerousness

U.S. v. Marquez, 2015 WL 756703 (2/24/15) (Kan.) (unpub'd) - There was reasonable suspicion of an offense and that Mr. Marquez was dangerous and might gain immediate control of a weapon under the following circumstances. As officers signalled for Mr. Marquez to stop for the offense of expired tags, Mr. Marquez made a "jerking" motion indicating to the officer that he was trying to hide something. As the officers approached the stopped truck, the passenger stuffed an item in between the seat cushions. They were in a "high-crime" area after midnight, and Mr. Marquez admitted he was on parole for a firearms violation. Michigan v. Long, 463 U.S. 1032 (1983), which permitted such a search of the truck was not abrogated by Arizona v. Gant, 556 U.S. 332 (2009), which put limits on when officers can search a vehicle after arresting a driver.

The district court did not err when it denied Mr. Marquez's motion to disqualify the entire U.S. Attorney's office because he had previously burglarized the home of an AUSA in the district and the AUSA asked for a much harsher sentence for Mr. Marquez than the prosecutor in the case. All that the office needed to do was make sure the particular AUSA had nothing to do with the case. Mr. Marquez's plea negotiations were not affected since the office already had a policy of not offering pleas to stolen firearms charges in lieu of a felon-in-possession conviction.

Seifert v. Unified Government of Wyandotte County

Seifert v. Unified Government of Wyandotte County, 2015 WL 846208 (2/27/15) (Kan.) (Published) - Some helpful stuff about Giglio in the midst of a case about a police officer's lawsuit. Officer Seifert alleged that the law enforcement community retaliated against him for testifying on behalf of a defendant in a criminal case and then on behalf of that man in his suit against the police, where an officer had caused a traffic accident and then beat up the driver who was the victim. One reason the county and the sheriff's officers gave for forcing him to retire was a federal court order more than ten years old finding Officer Seifert had lied in court. They said this would be Giglio material that could be used to undermine his credibility if he had to testify in federal court. The 10th found a reasonable person could view this explanation as dubious since the order would not be admissible because it would be extrinsic evidence inadmissible under Rule 608(b), which would mean the cross-examiner asking about the order would be stuck with whatever answer Officer Seifert gave, even a denial. But see U.S. v. Williamson, 699 F.3d 1188 (10th Cir. 2012), which says kind of the opposite, but is not mentioned by the 10th here. Plus the order was so old a federal judge might not allow any cross-examination about it at all. For this and other reasons, the cause was remanded for trial.

Thursday, April 02, 2015

Sentencing-related Publications Released

The Sentencing Commission has released the 2014 Annual Report & Sourcebook of Federal Sentencing Statistics, available here. The annual report provides an overview of the Commission's activities over the past year. The Sourcebook contains numerous charts and tables analyzing federal defendants, guidelines applications, cases according to federal district, and other information.

The Commission also issued a new data sheet, "Quick Facts: Theft, Property Destruction, and Fraud Offenses," available here. The release provides information about offenders and sentences under the fraud guidelines.

The Sentencing Project has also released its 2014 Annual Report, available here. The Report documents the Sentencing Project's contributions to the national debate on mass incarceration and racial inequities in the criminal justice system.


Thursday, February 12, 2015

Must Read Decision on Double Jeopardy, Restrictive Supervised Release Conditions, and Restitution

U.S. v. Dunn, 2015 WL 525698 (2/10/2015) (UT)(Published)(slip opinion here): A successful defense appeal on Double Jeopardy, unnecessarily restrictive supervised release conditions and restitution in a possession and distribution of child pornography case.

A jury convicted Dunn of possession, receipt and distribution of child pornography. He challenged the trial court’s jury instruction on distribution. That instruction told the jury that “when a person knowingly makes images available on a peer to peer file sharing network, such as Limewire, this is considered distribution of the images. The panel held that the instruction was proper because “active distribution or transfer of possession to another is not required to prove distribution under § 2252A(a)(2).”

Dunn also argued that his convictions for receipt and possession of the same illicit material violated the Double Jeopardy Clause. Applying the plain error standard of review, the panel agreed with Dunn and ordered the district court to vacate one of Dunn’s convictions.

Dunn challenged supervised release conditions that restricted possible future employment in his prior field of computers. The district court had ordered that he participate in the probation and pretrial services computer and internet monitoring program. This program imposed numerous “robust restrictions” on his use and access to both computers and the Internet and allowed Probation to monitor that use. Again, using plain error analysis, the panel held that the district court had violated its “mandatory” duty “to specifically find that [the occupational] restriction is minimally restrictive.” The panel emphasized that the circuit’s prior decisions “unambiguously require supporting findings when courts impose special conditions of supervised release.” It noted that the district court may have not even considered the effect of the computer monitoring program on Dunn’s “prospects for future employment or his ability to pay restitution to his victims.”

Finally, the panel set aside the district court’s restitution order because it violated the restitution analysis and rules in Paroline v. United States, 134 S.Ct 1710 (2014). The ubiquitous “Vicky”(represented by Paul Cassell and the University of Utah appellate law clinic) demanded Dunn pay $583,955 of the $1.3 million of damages she allegedly has suffered. According to Vicky, $583k is the amount of her total losses minus the amount of restitution she has garnered from other defendants. Dunn balked at this amount and asked the district court to compel her to “produce a more up-to-date economic report regarding damages and regarding the damages Mr. Dunn caused as a result of his underlying criminal behavior.” (Meaning that these reports did not clearly distinguish the primary harms associated with her original abuse from those secondary harms flowing from the dissemination of images of her online.) The panel found the district court should have granted Dunn’s request. It also ruled the court incorrectly found Dunn jointly and severely liable for the entirety of Vicky’s injuries because he was a “distributor” of her images. The trial court was wrong because it “clearly h[eld] Mr. Dunn liable for the conduct of thousands of geographically and temporally distant offenders acting independently, and with whom he had no contact, in contravention of Paroline’s guidance.”

Perhaps, most importantly, the panel commented that the district court unduly emphasized Dunn’s role as a “distributor” when not all distributors are on equal footing. Coming full circle back to the challenged instruction, the panel said that a jury found Dunn distributed the image by merely placing it into a shared folder on a peer to peer network. In assessing an accused’s relative role in the causal process for restitution purposes, the district court should consider the facts underlying that conviction—i.e., did the government show that others had actually downloaded files from the accused and, if so, had only one or two other people downloaded those images from him, or had hundreds or thousands over a period of years. The panel concluded that these factors are important to consider because “the clear rationale of Paroline is that a defendant should be held accountable for the measure of losses that he individually has caused.” Restitution should reflect the consequences of an accused’s own conduct and he should not be held accountable for those harms initially caused by the pictured person’s abuser.

Wednesday, February 04, 2015

One Shot, Only One 924(c) Violation

U.S. v. Rentz, 2015 WL 430918 (2/3/2015) (en banc) (UT)(published) (slip opinion here): After Rentz fired a single gunshot that wounded one victim and killed another, he was charged with two crimes of violence—assault and murder—and two counts of using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). Rentz moved to dismiss the second § 924(c) count. The district court granted his motion, holding that multiple § 924(c) charges arising from a single use of a firearm are impermissible. The government appealed the pre-trial dismissal of the second § 924(c) count. A 10th circuit panel reversed the district court order. The court then granted Rentz’s request for an en banc rehearing to determine whether he can be charged with two § 924(c) offenses for using a gun only once. Writing for the majority, Judge Gorsuch said the question presented was whether, as a matter of statutory interpretation, § 924(c)(1)(A) authorizes multiple charges when the parties admit there’s only a single use, carry, or possession. The opinion is quite detailed with in-depth discussions of grammar, units of prosecution, legislative history and the rule of lenity. Ultimately, the court decided that when a case involves only one use, carry or possession of a firearm, the government may "seek and obtain no more than one § 924(c)(1)(A) conviction."

Death Row Inmates' Challenges to Oklahoma Execution Method Rejected

Warner v. Gross, 2015 WL 137627 (1/12/15) (Okl.) (Published) (slip opinion here) - The 10th paves the way for Oklahoma's execution of Mr. Warner and three other death row prisoners due to be killed on or before March 5th. It refuses to grant a preliminary injunction to stop the impending executions based on a challenge to the use of midazolam [which Oklahoma wanted to use because it couldn't get the ol' tried and true sodium thiopental, which the manufacturers are refusing to provide for executions], and the execution protocol. The 10th did not find the requisite likelihood of success on the merits. Oklahoma investigated the horrifying execution experience of Clayton Lockett. The execution team over the course of nearly an hour made at least 12 attempts to get IV access to Mr. Lockett's cardiovascular system They thought they finally succeeded. They injected the midazolam and determined it had rendered Mr. Lockett unconscious. It then administered the paralyzing agent. Partway through the injection of the third drug that is supposed to induce cardiac arrest, Mr. Lockett suddenly began to move and said: "This sh.. is f....ing with my mind. The drugs aren't working." The team noticed a large area of swelling near the IV access point. The team tried to insert the IV somewhere else. They eventually terminated the execution process, but Mr. Lockett died 43 minutes after the midazolam was first injected. Mr. Warner was scheduled to be executed right after Mr. Lockett. But Oklahoma postponed his execution instead. The 10th described this whole experience as a "procedural disaster."

Oklahoma determined the problem with the Lockett execution was not the midazolam, but the failure to insert the IV properly and not properly determining if Mr. Locket was really unconscious. But, despite the problems, the concentration of midazolam in Mr. Lockett's blood was greater than the concentration required to render the average person unconscious. Oklahoma instituted new procedures so it could do a really bang-up job of killing people: a higher dose of midazolam and detailed procedures for establishing IV access, administering the chemicals and dealing with "mishaps." The plaintiffs contended midazolam has a ceiling effect [there's a certain dosage beyond which there's no incremental anesthesia effect] and a risk of paradoxical reaction [agitation, etc.]. The 10th observed that some risk of pain is okay. The plaintiffs had to show an objectively intolerable substantial risk of harm. Given the d. ct.'s rejection of the plaintiffs' experts' opinion and acceptance of the state's only expert [he was a dean after all] saying the dosage of midazolam would render people unconscious because there was only a ceiling effect for the spinal cord, not the brain, the plaintiffs were not likely to show an Eighth Amendment violation. The errors in the state's expert's testimony [misidentification of the reported dose range of midalozam and the federal agency responsible for certain standards and his incorrect claim about a certain chemical effect of the drug] were not sufficiently serious to render his testimony unreliable, the 10th finds. The 10th also affirmed the d. ct.'s conclusion that the new procedures would likely prevent any future problems with executions. And it was impressed by the fact that midazolam had been used "successfully" 12 times. Plus the plaintiffs had not met their burden to proffer alternative constitutional procedures that would kill them without pain. They suggested the use of drugs that were not available to the state. There is no requirement that a state's procedure have already been tried by many other states. Otherwise states would never be able to kill people in new ways. In a footnote, the panel notes that not one of the 10th Circuit judges requested an en banc poll on the questions presented.

Student Summarily Dismissed from Law School for Lying on Application Was Not Denied Due Process

Brown v. University of Kansas, 2015 WL 150271 (1/13/15) (Kan.) (unpub'd) (slip opinion here)- The 10th affirms the granting of summary judgment against a law student who claimed his expulsion from school for lying about his prior criminal record violated due process. In his law school application, Mr. Brown denied being convicted of any non-traffic offense. In fact, he had convictions for battery and a DUI. For some undisclosed reason, after being accepted and starting classes, Mr. Brown amended his application to disclose his prior convictions. The school sent a letter to Mr. Brown seeking a written response to its proposed dismissal from the school for lying on the application. Mr. Brown demanded a hearing. The 10th holds that there was enough due process basically because no purpose would be served by more process since Mr. Brown admitted to lying on the application and that was a proper ground for dismissal.

Court Rejects Argument that Condition of Supervised Release was an Improper Delegation of Authority

U.S. v. Richardson, 2015 WL 221612 (1/16/15) (Okl.) (unpub'd) (slip opinion here)- The supervised release condition that Mr. Richardson reside at a halfway house for up to 180 days at the direction of the probation officer was not a plainly erroneous delegation of authority to the probation officer. Mr. Richardson did not show the district court would have imposed a lower term at the halfway house without the delegation. Indeed, the court did Mr. Richardson a favor by giving the probation office a chance to cut short his 180-day term

Double Jeopardy Challenge to Retrial Rejected

U.S. v. Burciaga, 2015 WL 150344 (1/13/15) (N.M.) (unpub'd) (slip opinion here) - The 10th rejects a double jeopardy challenge to a retrial after the declaration of a mistrial. Mr. Burciaga testified at trial he pleaded guilty in other cases because he was guilty but didn't consider pleading guilty in this case because he was innocent. The following day on cross, the prosecutor asked: "If you say you refuse to accept a plea, why did your attorney propose a plea deal?" The defense objected. Judge Vazquez proposed a mistrial. The prosecutor opposed, saying he had an e-mail from defense counsel saying Mr. Burciaga would take a 5-year deal "in a heartbeat." The parties worked on a jury instruction, but ultimately the judge decided the question caused too much prejudice to be cured. The judge subsequently denied a defense motion to dismiss on double jeopardy grounds, contending the prosecutor deliberately caused the mistrial. The judge denied the motion, finding the prosecutor did not subjectively intend to force Mr. Burciaga to request a mistrial. The 10th acknowledged the question was more problematic than the classic prosecutor question: "What happened next?' But the record supported the judge's subjective-intent conclusion. Although the prosecutor was experienced, he just carelessly came to the conclusion after some inept research that Fed. R. Evid. 410 [prohibiting the admission of statements made during unconsummated plea negotiations] allowed the improper question. The prosecutor's remark during the first trial that he had to "fight and claw to get my case presented fairly," did not mean the government thought it had a weak case and would rather to try the case again. The prosecutor had an objective basis to believe the heroin distribution case was going well for the government. The fact that the government presented more incriminating evidence at the second trial than it did at the first didn't establish the prosecutor's bad motives either. Ultimately, the 10th says, it couldn't overturn the district court's view of the facts.

Pretrial Release Order for Non-citizen Drug Defendant Affirmed

U.S. v. Vasquez-Garcia, 2015 WL 170247 (1/14/15) (Kan.) (unpub'd) (slip opinion here) - The 10th affirms an alien meth defendant's release. Mr. Vasquz-Garcia had been a long-time permanent resident until he went to Mexico. Three years later he voluntarily returned to the U.S. after his green card had expired. The 10th refused to reweigh the lower court's flight risk determination, given Mr. Vasquez-Garcia's voluntary return knowing he was under indictment and his taking many steps towards renewal of his green card for which he was eligible. Nor did the 10th feel like reassessing whether Mr. Vasquez-Garcia posed a threat to potential witnesses

Summary Judgment for Officer Reversed in Civil Rights Case

Baig v. Hargis, 2015 WL 221610 (1/16/15) (Kan.) (unpub'd) (slip opinion here)- In a § 1983 case, the 10th reverses a summary judgment in favor of an officer. The 10th upholds the proposition that in determining whether there is probable cause an officer has an obligation to investigate relevant, easily accessible facts. In this case, a loss prevention officer ("LPO") at a Macy's store reported to the police that three people, including a woman who was possibly Asian, were acting as though they were going to shoplift some items [e.g. taking sensor tags off, stuffing a purse with stuff]. The LPO did not say any of them had left the store. When the officer arrived, he spotted Ms. Baig, who was Asian, getting into her car in the parking lot. Aside from her race, every other aspect of her appearance conflicted with the LPO's description of the Asian woman. She wore dress slacks, not shorts, a salmon/pink shirt with grey dots, not a peach shirt, and leather sandals, not flip flops. Her hair was down, not pinned up, did not wear sunglasses and had a brown, not a burgundy, purse. Nonetheless, the officer confronted her and got her to get out of her car. He then handcuffed her and told her she was under arrest. Within a minute the officer got a dispatch that all three suspects were still in the store. The 10th holds a reasonable officer would not have ignored all the obvious differences between Ms Baig and the suspect. At worst, the 10th says, given the lack of exigent circumstances, the officer maybe could have temporarily detained her while easily determining all the suspects were still in the store. Or he could have asked for permission to search her bag for stolen items. So the officer's conduct, as alleged by Ms. Baig, clearly violated the Fourth Amendment.

Drug Conviction Affirmed; Agent's "Expert" Testimony Ok'd; Prosecutor's Misstatements of Evidence in Closing Did Not Warrant Reversal; Defendant Waived Counsel for Sentencing

U.S. v. Vann, 2015 WL 221618 (1/16/15) (N.M.) (Published) (slip opinion here) - The 10th affirms a PCP conviction overseen by 10th Circuit Judge Kelly, sitting as a district judge by designation. Agent Small found on the train bottles of codeine without labels and bottles with PCP inside a gift-wrapped box Mr. Vann was carrying. Mr. Vann told the agent he knew there was codeine, but he did not know the box contained PCP bottles. At trial the parties disputed whether Mr. Vann knew he possessed the bottles of PCP. First, the 10th affirms a denial of a Batson challenge on the grounds that the judge's "streamlined" ruling was sufficient. The government justified its excusal of the only black venire member for the trial of a black man on the grounds that the juror didn't completely fill out his questionnaire, was not educated enough, was unemployed and seemed dazed and disengaged during voir dire. Before hearing from the defense, the court found these "were nonracial reasons that made sense." The defense contended the juror was attentive, not dazed. The court rejected the challenge without addressing the demeanor issue. After trial the defense renewed its Batson challenge pointing out the excused juror had two years of college and there was a non-black person who became a juror who was also unemployed and didn't fill out everything on the questionnaire. The defense argued the court had not made a Batson third-step discrimination finding. The district court ruled its "made sense" finding was implicitly the requisite finding. It did not make a finding on the demeanor or comparative-juror analysis except to say the latter didn't make a difference. Importantly for future reference, the 10th thought the defense should have laid out all its Batson case by the end of jury selection. At that point in time the defense had only challenged one of the 4 reasons the government gave for its excusal. Nonetheless the 10th went on to hold, in conflict with other circuits, as the 10th recognized, that 10th precedent does not require an explicit discrimination finding. The 10th was satisfied that the court engaged with the evidence presented by both sides, as it was required to do, even though it didn't explicitly do so, essentially because judges are presumed to know the law. That should take care of most defense complaints. In a footnote the 10th also says a trial court doesn't even necessarily have to give the defense a chance to support its Batson challenge, as long as the judge considers all the relevant matters.

Second, the 10th held that Agent Small's testimony that PCP wholesalers do not typically package PCP for buyers [thus indicating Mr. Vann, who was a buyer, must have packaged the PCP] was based on reliable data primarily because the agent was familiar with drug dealers in general and the district court vetted Small through a pretrial Daubert hearing and at trial, providing an opportunity for counsel to present their cases why Small should or should not testify. The 10th says the agent had "numerous PCP arrests as well." In fact, he testified he had 15 to 20 arrests over the course of 29 years and admitted the drug world changes often! The 10th treats an argument under the "Santa Muerte" case, Medina-Copete with little sympathy holding that excluding expert officer testimony in general, "is the exception, not the rule."

Third, the 10th essentially holds that it will never reverse a conviction due to prosecutors misstating facts in closing as long as there is an instruction that what attorneys say is not evidence. In this case the 10th has trouble even finding a misstatement. The prosecutors argued that if Mr. Vann only thought he had codeine he could have just taken a plane instead of a train. So he must have known he had PCP. Agent Small testified you could get a codeine bottle with a prescription label past TSA. He never testified you could get codeine bottles past the TSA without a label. And pretrial he testified he came across tons of people carrying codeine on the train. The 10th thought this was just arguing based on reasonable inferences from circumstantial evidence, not lying. "Given the abstract nature of mens rea, the 10th proclaims, this tactic is as uncontroversial as it is ubiquitous." The government's theory doesn't have to be "airtight." The 10th finds on its own that prescription medicines have a decent chance to get through airport security whether names are displayed on the bottles or not. Mr. Vann also challenged a prosecutor's claim in closing that ordinarily people found with a lot more serious drugs than they thought they had become upset and break down. On appeal the government admitted there was no evidence of that. The prosecutor compared the usual reaction of people to Mr. Vann's, which was only fake surprise, according to Agent Small. The 10th concluded that in context really the prosecutor was only describing Mr. Vann's reaction, not misstating evidence. That part about the other people was all in the imagination of the court reporter.

Fourth, Mr. Vann knowingly waived his right to counsel at sentencing because three months before the court allowed him to go pro se the court warned him about the dangers of going pro se at trial. When he was given those warnings Mr. Vann chose to keep his counsel. A contemporaneous thorough inquiry is sufficient but not necessary for a knowing counsel waiver. At the post-trial hearing the court listened to Mr. Vann's complaints about his trial lawyers and denied his request for new counsel and found that he was aware of the consequences of his pro se decision, the 10th says. Once again, the 10th notes it would have preferred a more comprehensive procedure. But the "ongoing dialogue with Mr. Vann" was good enough.

Community Caretaking Function Justified Pat-Down Search of Apparently Drunk Man

U.S. v. Gilmore, 2015 WL 221619 (1/16/15) (Col.) (Published) (slip opinion here) - The 10th holds an officer had probable cause to believe Mr. Gilmore was a danger to himself, justifying a pat-down search that lead to the discovery of a firearm, One morning, Mr. Gilmore was mumbling to himself, apparently disoriented and staggering around a western stock show in 8 degree weather. The officers said Mr. GIlmore did not appear to recognize their presence at first. When asked what he was doing there, Mr. Gilmore looked at the officers but didn't respond. Mr. Gilmore complied when asked to put down the items in his hand. He mumbled incoherently in response to a question and did not answer whether he had a weapon. The pat-down ensued.

This was okay, says the 10th. Their community caretaking function allows officers to seize an intoxicated person if they have probable cause to believe the person is a danger to himself or others. There was such probable cause here under the totality of the circumstances, the 10th finds. (1) The officers could believe Mr. Gilmore was intoxicated given his apparent disorientation, evidenced by staggering, gazing into space and inability tor respond to simple questions. This was so despite the absence of typical alcohol consumption indicators, such as the smell of alcohol. (2) The officers reasonably believed Mr. Gilmore's perception and reaction time were impaired. (3) There was evidence the neighborhood surrounding the stock show was dangerous [gang activity, car thefts, weapon possessions]. (4) Mr. GIlmore might wander into an area of high speed traffic. (5) If Mr. Gilmore became unconscious in a remote area in the evening he could suffer serious injury or death from the colder weather, even though he was dressed warm enough at the time of the encounter. The 10th stressed its holding was "narrow" and highly fact-dependent.

Conviction Reversed for New Trial Because of Faulty Jury Instructions

U.S. v. Wheeler, 2015 WL 191149 (1/15/15) (Col.) (Published)(slip opinion here) - The 10th follows its recent decision in U.S. v. Heineman, 767 F.3d 9870 (2014), that the threat statute requires a subjective intent to threaten, resulting in a reversal of the conviction. Nonetheless the 10th does find the evidence was sufficient to convict, making a retrial possible. Mr. Wheeler made Facebook posts which called on his religious followers to kill police officers, children, judges, DAs and public defenders (!). The jury instructions only required the jury to find a reasonable person would have perceived the posts as threats.

The failure to require a finding of subjective intent was error. It was not harmless, the 10th ruled, because: the jury could believe, as Mr. Wheeler told the police, that he had no Facebook friends [very sad] and there was no evidence Mr. Wheeler had any religious followers to follow his commands. Mr. Wheeler's vague sense that his statements were illegal and his statement that he was trying to "stick it to the man" did not constitute uncontroverted evidence that he intended his posts to be threatening. On the other hand, there was sufficient evidence that the posts constituted a "true threat" which the First Amendment is okay with prosecuting. The 10th rejects the approach of some circuits to make an independent review of constitutional facts to see if the statements were a "true threat." Rather the 10th applies the usual any-rational-juror standard. A statement is a true threat if a reasonable person under the circumstances would understand the statement as a declaration of an intent to inflict bodily injury. In conflict with the 9th and 4th Circuits, the 10th holds that exhortations to others to cause harm, as in this case, can constitute a true threat, especially when a reasonable person might believe the individuals ordered to take violent action are subject to the declarant's will. The line between threats and incitement to violence, which is protected by the First Amendment unless directed to produce and likely to produce imminent lawless action, is not so clear, especially in the world of cyberspace, the 10th says. The 10th doesn't want people to be able to hide behind the First Amendment by exhorting others. In this case Mr. Wheeler's statements could reasonably be considered true threats. He commanded specific deadly action against a number of people, which must be evaluated in light of recent massacres by active shooters. The question is not whether Mr. Wheeler actually had religious followers who would follow his commands, but whether a reasonable reader of the statements could have thought so. Evidence of this possibility, although not dispositive, is the fact that some people were frightened by the posts. So there will be a retrial with intent-to-threaten instructions.

Monday, February 02, 2015

Colo. Sexual Assault with 10-Year Age Difference Not a Crime of Violence

United States v. Wray, __ F.3d __, 2015 WL 328589 (10th Cir. January 27, 2015) (slip opinion here): The Court held that a Colorado statute for sexual assault with a 10-year age difference (Colo.Rev.Stat. §18-3-402(1)(e)) does not constitutes a crime of violence for purposes of U.S.S.G. §2K2.1(a)(2) and §4B1.2 because it is not a forcible sex offense and it does not fall within the residual clause.

Judge May Make Sentencing Findings Re: Drug Quantity So Long as Statutory Range Not Affected

U.S. v. Cassius, 2015 WL 327824 (1/27/15) (CO) (slip opinion here): The issue before the court was whether Alleyne v. United States, 133 S. Ct. 2151 (2013), allows a district court to enhance an accused’s Sentencing Guidelines range for a 21 U.S.C. § 841 conviction based on a judicial drug quantity finding greater than what the jury found at trial. The jury found that Cassius intended to distribute only 21 grams of crack but the district court decided afterwards that he was responsible for 450 grams. The panel held that, so long as the sentencing court does not use its own drug quantity finding to alter the defendant’s statutory sentencing range, such an enhancement is entirely consistent with Alleyne. (It didn’t help that Cassius had a prior drug trafficking conviction which raised the statutory maximum to 30 years.) Nothing in the record proved that the trial court altered Cassius’s statutory sentencing range in any way, rather the court used its larger drug quantity finding "solely as a sentencing factor to help determine [Cassius's] sentence within the prescribed statutory range." (Apparently, the jury's decision didn't help the court enough.) Two points to consider: first, the panel commented that Cassius did not challenge the method used by the sentencing court to find him responsible for 450 grams. Second, the panel noted its ruling contradicts Justice Scalia’s dissent from the denial of certiorari in United States v. Jones, 135 S.Ct. 8, 8-9 (2014). There, the justice wrote that even if a judge’s factual finding does not alter the proper statutory range, the finding is impermissible if the final sentence would be substantively unreasonable in absence of the finding.

Monday, January 12, 2015

Habeas Petitioner Loses Because of Procedural Default

Dixon v. Hartley, 2014 WL 7399056 (12/31/14) (Col.) (unpub'd) - A habeas petitioner is caught in the clutches of habeas procedural default law, as interpreted by the 10th. Mr. Dixon, proceeding pro se, raised ineffective assistance of counsel, habeas claims in the state trial court. The state trial court addressed the issues on the merits. On appeal, however, the appeals court found the issues procedurally defaulted due to a failure to develop the claims enough or belatedly raising them in the reply brief. The 10th held Mr. Dixon got all he was entitled to. Martinez v. Ryan, 132 S. Ct. 1309 (2012), which held that ineffective assistance of habeas counsel or the failure to provide habeas counsel could be cause for a procedural default, only meant the petitioner could demand that the trial court address the claims' merits. Here Mr. Dixon got that. The procedural bar only occurred on appeal. Mr Dixon's procedural default cannot be excused.

Tenth Affirms Sentence, Concluding Judge's Potentially Discriminatory Statements Were Comments on Government's Recommendations

U.S. v. Reed, 2014 WL 7375604 (12/30/14) (Colo.) (unpub'd) - The 10th avoids deciding what standard to apply to potentially discriminatory comments by a sentencing judge and affirms the sentence. In this case the government agreed to probation for a cooperating Ms. Reed for being a straw firearm buyer for her abusive felon boyfriend, down from a 46-57 month guideline range. At the sentencing hearing, the district court expressed dismay that the recommended sentence might not reflect the seriousness of aiding the "arming to the teeth" of a crafty bad guy. The court thought the government was recommending the largest departure it had ever seen the government recommend. The court then observed: "over the course of my 3 years doing criminal cases I see a very big difference between how female defendants are treated by the prosecution, the defense and the probation office, particularly Anglo female defendants, and that, just from that status they should somehow receive a more lenient sentence." The court imposed a 6-month prison term to be followed by six months home confinement. Ms. Reed argued the 10th should apply the 2d Circuit test in these types of circumstances that requires reversal and resentencing before a different judge for "even the appearance that the sentence reflects a defendant's race or nationality." U.S. v. Leung, 40 F.3d 577, 586-87 (2d Cir. 1994). The 10th refuses to decide whether to adopt that test. Instead it says it doesn't matter because Ms. Reed does not satisfy the appearance-of-justice standard in this case. The 10th finds that the court was actually showing a legitimate concern for equal treatment of all criminal defendants and a reasonable observer would not think otherwise. As support for its decision, the 10th relies on: Ms. Reed's failure to argue the sentence actually was based on her gender or race and the judge's proper reasons for the sentence the judge chose, including the seriousness of the offense and the danger of an unfair disparity with similarly-situated defendants. Simply mentioning perceived biases in the government's recommendations do not rise to the appearance of the intrusion of improper factors into the sentencing decision. In a footnote the 10th assures us that "in the unlikely event any district court did sentence using irrelevant factors of race, sex, national origin, religion or socio-economic status" in violation of USSG § 5H1.10, the 10th would reverse the sentence.