Sunday, May 20, 2018

Replacement Cost An Appropriate Measure for Restitution

United States v. Howard, 887 F.3d 1072 (10th Cir. 2018) (OK): The panel addressed whether the district court correctly used the replacement cost as the restitution value and correctly determined the value of the returned property to be zero. The panel holds that depending on the factual circumstances, different measures of value may be appropriate, such as fair market value, replacement cost, foreclosure price or cost to the aggrieved. Sometimes, there may be multiple measures of value. Regardless, in every case, the ‘controlling metric’ for a restitution award is actual loss suffered. Here, the facts show that replacement cost was the correct measure of value. Although the value of the property, if returned, can offset the restitution amount, the accused has the burden of persuasion ’s with regard to any offset value. That burden can be rather exacting: because Howard did not calculate the expenses that would have been incurred to refurbish and sell the parts of the returned machine, his evidence of the general prices of refurbished parts was insufficient to meet his burden. The court did not abuse its discretion in finding the returned machine had no value to its owner.

Defendant Has Burden of Proving Inability to Pay Fine

United States v. Sanchez-Urias, 887 F.3d 1069 (10th Cir. 2018) (CO): When an accused argues that he is unable to afford a fine, it is his burden to show that he lacked the assets to pay the fine. Since Sanchez refused to provide financial information at his presentence interview and other evidence in the record showed he had some financial wherewithal, the panel finds the district court did not err in finding that Sanchez had not established his inability to pay.

Burglary Conviction Qualified as Generic Burglary, Precluding 2255 Relief

United States v. Murphy, 887 F.3d 1064 (10th Cir. 2018) (WY): Murphy filed a second 28 U.S.C. § 2255 motion to vacate his sentence in light of Johnson II. The panel holds that a second or successive § 2255 motion must satisfy two criteria before its merits can be considered: (1) a prima facie showing to the appellate court that the motion satisfies the requirements of § 2255(h), defined as “a sufficient showing of possible merit to warrant a fuller exploration by the district court,” and (2) a determination by the district court that the petition does, in fact, satisfy those requirements. Murphy’s motion did not satisfy these requirements. The district court found his prior burglary conviction met the definition of generic burglary and thus was a violent felony under the ACCA’s enumerated offense clause. The ACCA’s now defunct residual clause played no role in that decision.

Friday, May 18, 2018

Federal Bank Robbery Is Categorically a Crime of Violence, Panel Holds

United States v. McCranie, 2018 WL 205009 (10th Cir. May 3, 2018) (Colo.) Mr. McCranie’s conviction for federal bank robbery under 18 U.S.C. § 2113(a) qualified as a “crime of violence” under the career offender sentencing guideline, U.S.S.G. § 4B1.2(a)(1). The guideline states:, “[t]he term ‘crime of violence’ means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that . . . has as an element the use, attempted use, or threatened use of physical force against the person of another . . . .” The relevant portion of the federal bank robbery statute requires a taking, or attempted taking, of property “by force and violence, or by intimidation.” 18 U.S.C. § 2113(a). Because “intimidation” captures the least culpable conduct supporting federal bank robbery, for that offense to categorically be a crime of violence under § 4B1.2(a)(1), bank robbery by intimidation must require the threatened use of physical force. The panel relied on cases and Tenth Circuit Pattern Jury Instruction No. 277 to conclude that “every definition of intimidation requires a purposeful act that instills objectively reasonable fear (or expectation) of force or bodily injury.” As a result, intimidation qualifies as a threatened use of physical force against the person of another and Mr. McCranie’s conviction for federal bank robbery categorically qualified as crimes of violence.

Successive 2255 Movant's Johnson Claim Rejected

United States v. Washington, 2018 WL 2208475 (May 15, 2018) (OK): The panel reviews whether the district court relied on the ACCA’s residual clause to find that Washington’s prior convictions were violent felonies. Because this was Washington’s second habeas petition, he had to establish his claim by a preponderance of the evidence. The panel found he was unable to meet that burden because (1) his Oklahoma second degree burglary conviction involving entering a building fell within Taylor’s definition of generic burglary and thus was a violent felony as defined in the enumerated offense clause; and (2) United States v. Herron, 432 F.3d 1127 (10th Cir. 2005), and United States v. Ramon Silva, 608 F.3d 663 (10th Cir. 2010), would have supported the district court’s decision to consider his Oklahoma juvenile adjudication for pointing a weapon under the elements clause.

Panel affirms denial of motion to suppress based on pat-down search; dissent makes good points

United States v. Hammond, 2018 WL 2208523 (May 15, 2018) (CO): This decision is notable for its dissent which is detailed below. The panel was asked to decide whether police officers, who frisked Hammond for weapons, had reasonable suspicion to believe that he was armed and dangerous. It holds it is reasonable for officers to “perform a brief, non-invasive search to ensure their own safety and that of the surrounding community” when the person searched is a (1) known gang member (2) who was a suspect in a prior weapons possession case and who had (3) recently been arrested in connection with another weapons case, is pulled over (4) while riding in a car that had previously been seized in connection with the individual’s prior arrest, (5) while wearing colors which loudly display his affiliation with a gang involved in an ongoing feud. The panel noted that a criminal record, let alone arrests or suspected gang affiliation, is not sufficient to create reasonable suspicion of anything. The circumstances of the stop “must interact” with these other factors before they become “critically relevant” to the Terry-stop analysis.

Judge Phillips dissented. He said before approving a pat down search, the court must be sure there is “objective” reasonable suspicion that the accused is armed and dangerous. He agreed there was objective reasonable suspicion that Hammond was armed but that suspicion was lacking as to his dangerousness. He pointed out that “danger is specific to the moment before the police pat down a person.” He also listed four facts that weighed against finding Hammond dangerous: (1) he was a passenger in a car stopped for a burned-out taillight; (2) the police did not treat the female driver as a threat to their safety; (3) Hammond was courteous, calm and compliant, not angry intoxicated or in any other “worrisome state” and (4) he voluntarily stood outside the car in a well-lit busy intersection, surrounded by commercial buildings, with the police department on the corner. Judge Phillips criticizes the majority for “collapsing armed and dangerous into one condition.” He predicts the government will use this opinion to “stress” that the court allowed a frisk “under all of the surrounding circumstances, not just those bearing on whether Hammond was armed.”

Friday, May 04, 2018

Child Porn Defendant's 10-year Sentence Based on Prior Georgia Misdemeanor Sexual Battery Offense Affirmed

United States v. Hebert, 2018 WL 1915851 (April 24, 2018) (WY, published): An accused convicted of a child pornography offense under 18 U.S.C. § 2252A can face a mandatory minimum 10 year prison term if he has a prior state conviction ‘relating to’ aggravated sexual abuse, sexual abuse or abusive sexual conduct involving a minor or ward. Using the categorical approach, the panel rules that Georgia’s sexual battery offense 'relates to' sexual abuse as those elements are defined in 18 U.S.C. § 2242. The panel admits the Georgia statute includes some conduct that might not come within the federal definition, but it need only decide whether the sexual battery statute 'relates to' sexual abuse, not whether it 'constitutes' sexual abuse. Herbert’s 10 year minimum mandatory sentence is affirmed because his misdemeanor convictions for sexual battery triggered the enhanced sentence.

Statute Prohibiting "Transporting" of Illicit Drugs Qualifies as "Serious Drug Felony" for ACCA Purposes

US v. Johnson, 2018 WL 2058181, Docket No. 17-6228 (10th Cir. May 2, 2018): Mr. Johnson's sentencing enhancement under the Armed Career Criminal Act (ACCA) is affirmed. The Court holds that an Oklahoma statute that prohibits transportation of illicit drugs with the intent to distribute them, Okla. Stat. tit. 63, § 2-401(A)(1), qualifies as a "serious drug offense" as defined for ACCA. See 18 U.S.C. § 924(e)(2)9A)(ii). The Court acknowledges that the federal definition of "serious drug offense" does not include "transportation," but it does include "possessing" and "the transportation of drugs necessarily implies their possession." The Court also rejects Mr. Johnson's argument that his two prior drug convictions occurred on the same occasion. One conviction occurred because Mr. Johnson sold 3 grams of crack cocaine to an undercover investigator at 4:20 p.m. one afternoon. The next day, at 7:15 p.m., officers found 13 grams of cocaine base in Mr. Johnson's car. The Court rejects Mr. Johnson's argument that the two incidents involved the "continuation of a single drug deal, negotiated at the same time, between the same parties." The Court noted the crimes were related, but said they were nonetheless distinct because they were committed at "distinct, different times" and Mr. Johnson had "a meaningful opportunity to stop" after the first sale.

Wednesday, April 18, 2018

US v. Garcia-Martinez, 2018 WL 1767712 (10th Cir. April 12, 2018) (unpublished): In this drug case, the Tenth Circuit rejects defendant's arguments that the government violated Giglio and Brady by failing to disclose impeachment information regarding two confidential informants, and that the district court erred by allowing an expert witness to testify regarding his mental state in violation of FRE 704(b).

Federal Bank Robbery is a Violent Felony

US v. Ybarra, 2018 WL 1750547 (10th Cir. April 12, 2018) (unpublished): The Tenth Circuit holds that federal bank robbery by force and violence, or by intimidation (18 USC 2113(a)) is a violent felony. First, it has an element of use of force because it can be committed by intimidation. Intimidation requires conduct reasonably calculated to put another in fear or create an impression that resistance will be met by force, Thus, intimidation under the statute exists only if the defendant intentionally acted to make a person of ordinary sensibilities fear bodily harm. Second, equating fear of bodily harm with the required use of physical force is consistent with US v. Castleman, 134 S.Ct. 1405 (2014), and US v. Ontiveros, 875 F.3d 533 (10th Cir. 2017). The panel refuses to reconsider Ontiveros. Third, the Court rejects the argument that the physical force need not be directed at a person. On the contrary, according to the Court, the requirement that the taking be from the person or presence of a person confines the force to the person controlling the property. Fourth, the argument that the test for intimidation is inherently speculative was forfeited. So that argument is still alive if anyone wants to use it.

Lewd Molestation Offense Not a Crime of Violence Under the Guidelines

United States v. Gieswein, 2018 WL 1789933 (10th Cir. 4/16/18) (Okla.) - the district court wrongly decided that the defendant's prior state lewd molestation conviction was a "crime of violence." The state offense was broader than 18 U.S.C. § 2241(c) and thus not a "forcible sex offense" under U.S.S.G. § 4B1.2(a)(2) app. n.1. Consequently, the district court imposed the sentence based on a miscalculated guideline range and procedurally erred. While this error normally would not be harmless, it is in this case because the district court, based on the defendant's horrific criminal history, imposed the statutory maximum sentence and indicated that it would have imposed a higher sentence if it could have. The Tenth decides it is clear the district court would have imposed the same sentence had it not erred by treating the lewd molestation offense as a "crime of violence."

Tuesday, April 10, 2018

Financial Tax Docs Were Not Testimonial; Other Arguments and Sentence Enhancements Affirmed in Tax-evasion Case

U.S. v. Stegman, 873 F.3d 1215 (10/20/17) (Kan. published.) - The 10th affirms the convictions and sentence for tax evasion by a business owner raising a lot of issues. The 10th finds no Confrontation Clause problem with the admission of documents Ms. Stegman's deceased tax preparer sent to the IRS. All except the fax cover page were Ms. Stegman's financial documents, which were not testimonial and so did not present a Confrontation Clause issue. The 10th rejects Ms. Stegman's argument that the IRS destroyed exculpatory records in bad faith in violation of due process. The IRS previously audited Ms. Stegman's business and found some cash, but found no tax issues. Agents sent the file to archives where it was destroyed without the agents' knowledge. The 10th Circuit rules it was not a violation of Ms. Stegman's privilege against self-incrimination for the prosecutor to ask who owned or controlled Ms. Stegman's subpoenaed business ledgers and for the witness to say he assumed they belonged to Ms. Stegman. Under Braswell v. U.S., 487 U.S. 99 (1988), the government cannot present evidence that an individual produced subpoenaed corporation's records, but it can use those records against an individual defendant.

With respect to sentencing, the Court holds it was okay for the district court to aggregate the individual and corporate tax losses for guideline purposes under USSG § 2T1.1(c)(1)(D), even though the court acquitted Ms. Stegman on the corporate tax charges. The court acquitted only because of indictment flaws. The 10th okays the sophisticated means enhancement as well. Ms. Stegmand did more than not give information to her accountant. She created multiple limited liability corporations (LLCs), used straw purchases and bought money orders to make payments, An obstruction of justice enhancement was also warranted. Ms. Stegman directed employees to shred receipts, altered ledger entries and directed a witness to testify a certain way. It didn't matter that the document-related conduct concerned the corporation. The acts of personal and corporate tax evasion were inextricably intertwined. It also didn't matter that the witness tampering was unsuccessful. Attempts fall squarely within USSG § 3C1.1.

Thursday, April 05, 2018

When in doubt, statute should be considered indivisible

United States v. Degeare, 2018 WL 1280278 (March 13, 2018) (OK): An important case to help you argue a statute is not divisible and therefore, the categorical approach applies. Generally, when we argue a prior conviction cannot be used as a sentencing enhancement predicate, we are better served by an indivisible statute and the accompanying categorical approach. Degeare can fortify that argument. The court made two very important rulings. First, a court “must be certain that the violent felony [or crime of violence] moniker necessarily applies to a particular offense before [it] can treat that offense as an ACCA predicate.” Second, and perhaps more importantly, unless the court is “certain that a statute’s alternatives are elements rather than means, the statute isn’t divisible and [the court] must eschew the modified categorical approach.” In other words, if the evidence “is merely in equipoise, the modified categorical approach won’t apply.”

In this case, the panel uses what is calls “tools” from the “Mathis toolbox” to analyze whether it can be certain that Oklahoma forcible sodomy is divisible. Those tools include - the statute, case law interpreting it, jury instructions and the charging documents. After employing these tools, the panel remained uncertain that the statute was divisible. Consequently, it held that the district court incorrectly used the modified categorical approach. Since the government conceded forcible sodomy is not a violent felony under the pure categorical approach, that offense cannot be used as an ACCA predicate.

Portion of Abrogated Opinion Survives as Law of the Case

United States v. Trent, 884 F.3d 985 (10th Cir. 2017) (OK): The panel discusses whether the law of the case doctrine defeats Trent’s appeal or whether that doctrine is inapplicable because the Supreme Court’s decision in Mathis v. United States, 136 S.Ct. 2243 (2016), created a new certainty standard to determine whether an offense qualifies for an ACCA enhancement - which the 10th Circuit had not used in Trent's direct appeal. In its prior opinion, United States v. Trent,767 F.3d 1046 (10th Cir. 2014) (Trent I), the court held Oklahoma’s conspiracy statute is divisible and using the modified categorical approach found that a conviction under this statute is a ‘serious drug offense’ as defined in the ACCA. That opinion was expressly abrogated by Mathis. However, the Trent II panel found only one of the two bases for its earlier holding was undone by Mathis. Its true elements based approach survived. That part of the opinion becomes the law of the case unless Mathis “announced a contrary decision of the law applicable to the relevant issue.” Trent argued that Mathis created an intervening change in the law because courts now are required to be certain that a provision in a criminal statute is an element and in Trent I the court was not certain that the object of a conspiracy was an element of Oklahoma’s conspiracy statute. The panel disagreed. It said that Mathis comported with the certainty standard from Taylor v. United States, 495 U.S. 575 (1990). And the approach used in Trent I, although not addressing certainty directly, was consistent with Mathis. Implicitly, the court was certain the statute was divisible because its “divisibility analysis contemplate[d] a collective assessment of case law and other materials.” Thus, Trent I’s ruling that the conspiracy statute contained alternate traditional elements and was therefore divisible, was grounded in certainty. That portion of the opinion survived Mathis, and became law of the case.

Tuesday, April 03, 2018

SCOTUS to address state robbery issue

In United States v. Garcia, 877 F.3d 944 (10th Cir. 2017), a Tenth Circuit panel held that a conviction for New Mexico robbery is a violent felony under the ACCA’s force clause. Garcia was incorrectly decided because it mistakenly concluded that New Mexico robbery always involves strong, violent physical force. New Mexico law demonstrates that robbery requires only the use of enough force to overcome the resistance of attachment and does not require any particular amount of resistance.

Yesterday, the United States Supreme Court in Stokeling v. United States, Supreme Court Case No. 17-5554 (Apr. 2, 2018), granted certiorari to address this question: “Whether a state robbery offense that includes ‘as an element’ the common law requirement of overcoming ‘victim resistance’ is categorically a ‘violent felony’ under the Armed Career Criminal Act, 18 U.S.C. §924(e)(2)(B)(i), when the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.” Arguably, Garcia would be abrogated by a decision that comes out in favor of the defense. Therefore, it appears to be an issue worth preserving.