Wednesday, May 24, 2017

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

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

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

Tuesday, May 23, 2017

Challenge to Pattern Reasonable Doubt Instruction Rejected

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

Tuesday, May 16, 2017

60-year Sentence Was Not Unreasonable, Court Says

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

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

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

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

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

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

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

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

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

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

Monday, May 15, 2017

Stop for bicycling without a light was reasonable

United States v. Morgan, 2017 WL 1573819 (May 2, 2017) (OK) Published: The panel finds it is reasonable for officers to stop a bicyclist who was riding without the mandatory headlight and then detain him as long as is necessary to write a citation and do a background check. And it also is reasonable for officers to order the bicyclist off the bike and keep his hands out of his pockets until the background check is completed. If the bicyclist does not do as he has been told then it is reasonable for officers to take him to the ground and taser him if he doesn’t offer his wrists for cuffing.

Wednesday, April 26, 2017

NextGen Information

The Clerk's Office has announced:

The 10th Circuit Court of Appeals will upgrade its CM/ECF system to the Next Generation of CM/ECF ("NextGen") in May 2017. The process will begin on Friday, May 12 at noon MDT and will be completed by Monday, May 15 at 7:00 a.m. MDT. CM/ECF will not be available during that time. Documentation will be posted on this page regarding the court's upgrade and what attorneys need to do to prepare for filing in NextGen. The PACER NextGen FAQ may be found here:

Friday, April 21, 2017

District Court Properly Denied Motion to Reconsider Suppression Order; Government's Argument Was Untimely

U.S. v. Verner, 659 Fed. Appx. 461 (10th Cir. 8/9/16) (Okl.) (unpub'd) - The government is hoisted on the same petard we often get hoisted on. The district court granted a motion to suppress evidence discovered after a de facto arrest without probable cause. After getting over the shock, the government moved for reconsideration on the ground that there was no nexus between the illegal arrest and the evidence discovery because the officers had probable cause before the arrest when they smelled marijuana in Mr. Verner's car. The government had not made the marijuana-smell argument until then. The district court denied reconsideration because the argument was untimely. The 10th rejects the notion that the district court addressed the nexus issue when it found there was a nexus based on Mr. Verner's assertion that there was one. The 10th refuses to conclude that by doing so the district court rejected every hypothetical argument against the nexus' existence. The 10th says those oh-too-familiar words: "raising a related issue below isn't sufficient to preserve an issue on appeal." The 10th finds no abuse of discretion in denying the reconsideration on timeliness grounds.

Court's failure to explain reasons for leader/organizer enhancement was not plain error

U.S. v. Marquez, 833 F.3d 1217 (8/12/16) (NM) (Published) - No relief for plain error failure to explain a leadership enhancement under USSG § 3B1.1. The 10th holds the district court plainly failed to live up to its duty to set out the factual basis and reasoning for imposing a leader/organizer enhancement. But no-go on the third plain-error prong. Mr. Marquez could not show the failure to explain made a difference in the outcome [a virtually impossible burden regarding any failure-to-explain error]. The record supported the bump because Mr. Marquez did quite a bit of organizing of two couriers to "orchestrate" the sale and transfer of meth from Arizona to New Mexico. No control was necessary. It was enough that Mr. Marquez coordinated and oversaw the enterprise. Sustained conduct is unnecessary. The "one-off" venture was sufficient.

Thursday, April 13, 2017

"Use" element of 18 U.S.C. § 2251(a) is met by defendant's active involvement in producing child porn, whether or not victim knows

United States v. Theis, 2017 WL 1325680 (10th Cir. April 11, 2017) (KS): Theis was charged with attempted sexual exploitation of a child. The undisputed evidence showed that with hidden cell phones he recorded his girlfriend’s 11 year old daughter while she showered and used the toilet. On appeal he said the charge failed to state an offense and this evidence was insufficient to convict him. 18 U.S.C. § 2251(a), according to Theis, requires a causal, interactive relationship between the accused and the minor: “mere voyeurism” does not satisfy the “uses” element of the statue. Tha Panel rejected this novel argument. The statute punishes those who employ, use, persuade, induce, entice or coerce any minor to engage in any sexually explicit conduct. Theis explained that he could not have “used” the minor when she was unaware he secretly recorded her and because he had no control or influence over what she did during the recording. The panel countered that the specific context in which the word is used and the broader context of the statute as a whole demonstrate that a causal relationship between the accused and the minor’s sexually explicit conduct is not required. By including the term “uses” the statute includes an accused’s active involvement in producing a depiction, “even if the interpersonal dynamics between the defendant and the depicted minor are unknown.” Thus, the “uses” element is met with proof that the accused intentionally filmed or photographed a minor’s “sexually explicit conduct.”

Theis also asked to be resentenced because the district court invited him to speak only after it announced its proposed sentence. The panel was unpersuaded. It said that the court had not definitively announced its sentence before Theis spoke. The court repeatedly characterized its proposed sentence as tentative. Besides there was no indication that Theis believed the court had already made up its mind. Theis spoke at length, encouraging the court to impose a more lenient sentence. The court then responded to Theis’s plea which “suggests it considered his comments in arriving at the sentence ultimately imposed.” This exchange shows that Theis had a “meaningful opportunity” to address the court.

Prosecutor May Threaten Defendant with Applicable Sentencing Enhancements in Plea Negotiations

United States v. Creighton, 2017 WL 1325678 (10th Cir. April 11, 2017 (WY): The panel affirms Creighton’s life sentence and rejects his challenge that this sentence was the result of prosecutorial vindictiveness. Four weeks before trial, the prosecutor emailed defense counsel and said that she thought Creighton had information that would be helpful to law enforcement. She included a proffer letter and added that she would be asking for “management” permission to file notice of a 21 U.S.C. § 851 enhancement. After getting permission, she emailed again asking for Creighton’s cooperation and/or guilty plea. Creighton went to trial, lost and was sentenced to a mandatory life prison term. On appeal he argued the prosecutor filed the enhancement out of vindictiveness. The panel disagreed. It said Creighton could not show actual or the realistic likelihood of vindictiveness. Here, the prosecutor presented Creighton with the “unpleasant alternatives” of pleading guilty and cooperating or facing charges on which he was plainly subject to prosecution. The panel rules that in the course of plea discussions, a prosecutor may threaten to subject an accused to a sentencing enhancement if he does not cooperate, as long as he actually qualifies for the enhancement.

Assault on a federal employee is not a violent felony

United States v. Ama, 2017WL1325247 (10th Cir. April 11, 2017) (UT): The panel finds that 18 U.S.C. § 111, assault on a federal employee, is not a violent felony as defined by the ACCA’s force clause. It says that § 111(a) is not divisible and the modified categorical approach is not applicable. The government argued (as it has in numerous Johnson habeas pleadings) that the modified categorical approach could be used to determine which of the alternative means were used to commit the offense. The panel explains the government is wrong because § 111(a)’s phrase “forcibly assaults, resists, opposes, impedes, intimidates, or interferes” are not elements, “but alternative means of committing the actus reus element of the offense.” The panel also dismisses the government’s argument that § 111(a) requires forcible conduct. It rules that even if the term “forcibly” extends to all six means, the offense requires force, but not violent force as defined in Johnson I (559 U.S. at 140). The panel points out that “even minor contact, such as laying one’s finger on anther person without lawful justification is forcible.” In other words, “mere forcible contact” which is enough to convict under § 111(a), does not rise to the level of physical force defined in Johnson I. The panel cites to numerous cases which illustrate that “mere contact” was enough to sustain a § 111(a) conviction.