Monday, September 15, 2014

Perjury conviction reversed, but convictions for concealing debtor's property, transferring biological agent affirmed

U.S. v. Hale, 2014 WL 3906862 (8/12/14) (Ut.) (Published) - It was plain reversible error [the pro se motion did not preserve the issue where the district court refused to consider it because the defendant was represented by counsel]. to convict Mr. Hale of perjury where the question the government claimed he answered untruthfully was ambiguous as to whether it referred to the accuracy of his bankruptcy petition at the time it was executed or at the time of the questioning. There wasn't that much evidence Mr. Hale knew the petition information about the value of his property was false at the time he executed the petition. And the government even went back and forth in its interpretation of the question in its appellate brief. The Tenth orders an entry of a judgment of acquittal.

The Tenth upholds the conviction for concealing the "property" of the estate of the debtor in violation of 11 U.S.C. § 152(1). The real estate purchase contract Mr. Hale concealed was "property" under the statute because it was voidable, but not void. Under Utah law, Mr. Hale obtained an interest in the money promised under the contract, the trustee could have elected to ratify the agreement and so there was a right in the estate to that money.

Mr. Hale's constitutional challenge to 18 U.S.C. § 175, which prohibits transferring a biological agent, fails under plain error. On appeal he anticipated a Supreme Court ruling in Bond v. U.S., 134 S. Ct. 2077 (2014), that an analogous statute was unconstitutional because Congress couldn't implement an international treaty through the statute. But the Supreme Court avoided the question and so any unconstitutionality couldn't be plain. Mr. Hale couldn't benefit from the Supreme Court's holding that the analogous statute didn't cover the irritating chemicals involved in that case because in this case Mr. Hale mailed a substance to the trustee that he purported to contain hantavirus, a very dangerous thing. This would naturally be considered "terrorism." The Tenth also rejects Mr. Hale's unsympathetic argument that he didn't perpetrate a hoax in violation of 18 U.S.C. § 1038(a) because he actually did transmit a biological agent.

Supreme Court's Alleyne fuling not retroactive

U.S. v. Hoon, 2014 WL 3906708 (8/12/14) (Wyo.) (Published) - Alleyne does not restart the statute of limitations under 28 USC § 2255(f)(3) because it has not been held to be retroactively applicable. In other words, according to the Tenth, defendants cannot obtain relief for Alleyne violations in cases that are already final.

Unpublished Decisions

U.S. v. Beamon, 2014 WL 3933778 (8/13/14) (N.M.) (unpub'd) - Mr. Beamon was not actually detained until the DEA Agent Small, had finally subdued him by ordering him to the ground at gunpoint and he finally complied. Before then Mr. Beamon had drawn the agent's suspicion by refusing to allow Officer Tate to search his backpack and attempting to leave with the backpack, i.e., by exercising his constitutional rights. Agent Small then grabbed Mr. Beamon. They both fell down the train stairwell. Mr. Beamon then grabbed a vacuum-sealed envelope containing what appeared to be cocaine from the backpack and tried to flee. He stopped when Agent Small drew his gun on him. The Tenth notes that a detention occurs even when there is just a brief submission to authority. But here that didn't happen until Mr. Beamon surrendered at gunpoint. By that time there was probable cause to arrest him, given his removal of the envelope.

U.S. v. Howell, 2014 WL 3893339 (8/11/14) (Okl.) (unpub'd) - The Tenth admits a mistake, but it doesn't help the defendant. The Tenth acknowledges it was wrong when it said in a prior appeal that a witness testified he gave a shotgun to Ms. Howell. The Tenth used this misconception to support its conclusion that there was sufficient evidence to support Ms. Howell's conviction for possessing a firearm to further drug trafficking. Ms. Howell contended her attorney acted unreasonably in failing to petition for rehearing on account of the misrepresentation of the record. The Tenth was willing to contemplate that maybe a defendant has at least a statutory right to an attorney to petition for a rehearing. But any deficient performance did not satisfy the prejudice prong for Ineffective-assistance-of-counsel relief, the Tenth says. There was other actual, rather than made-up, evidence to support the conviction, including women's clothing in the trailer where meth manufacturing materials and firearms were found. "Hardly overwhelming," the Tenth understates, but still enough to convict, says the Tenth. Therefore no prejudice.

U.S. v. Walker, 2014 WL 3906782 (8/12/14) (Kan.) (unpub'd) - The Tenth overturns a district court's sua sponte dismissal of drug and gun charges. The district court dismissed because it believed the case belonged in state court. In what court a case belongs is up to the prosecutor, not the court, the Tenth rules. Prosecutorial misconduct might justify dismissal, but there was none in this case. The Tenth treated the issue as preserved, even though the government did not object, because the district court sua sponte resolved an issue of law on the merits. On the positive side, the Tenth refuses to remand to a different judge. There was no showing of personal bias.

U.S. v. Posada-Cardenas, 2014 WL 3933933 (8/13/14) (Col.) (unpub'd) - No relief for Mr. Posada-Cardenas despite these remarks by the district court at sentencing: "I'm distressed that for the amount of time he's been in this country, he's never bothered to try to learn English. It shows no effort to adjust to the customs of this country." While the government thought the remark was "probably unwarranted," it was a small consideration and nothing in the record indicated it was a proxy for race or ethnicity, as opposed to an observation about cultural assimilation. For you appellate geeks out there, the Tenth notes the alleged error could possibly be characterized as procedural, rather than substantive. Since defense counsel had not objected, this characterization would have sent the issue into desolate, plain-error land, the Tenth saw no need to resolve the question, since it rejected the issue under the "more lenient" abuse-of-discretion standard.

U.S. v. Varela, 2014 WL 3933878 (8/13/14) (Wyo.) (unpub'd) - It was not a deviation from Miranda for the agent to ask if Mr. Varela would mind talking to the agent, rather than asking specifically for a waiver of rights. The agent's statement: "I think we can do something. I'm just saying I can't take the charges away right now," even if it was a promise of leniency, did not overcome Mr. Varela's will. It was vague and noncommittal. The Tenth acknowledged it may have inaccurately implied the agent had the power to take the charges away. But it wasn't sufficiently misleading to render subsequent statements involuntary in light of the totality of the circumstances, including the 2 &1/2-hour-length of the interrogation in a small room, the lack of a threat of force and Mr. Varela's "relatively relaxed and comfortable" appearance.

Nevada's Controlled Substance Statute Held to Be Divisible

Ruiz-Giel v. Holder, 2014 WL 3906844 (8/12/14) (unpub'd) - Nevada's controlled substance statute is divisible under Descamps for purposes of applying the modified categorical approach. The identity of the controlled substance is an element of the offense. The statute can be violated by the sale of any of a multitude of specified substances. The modified categorical approach leads to the conclusion that Mr. Ruiz-Giel was convicted of selling heroin, which is listed in the federal drug schedules. The conviction was consequently for an aggravated felony.

Local activity can still support prosecution for creating child pornography

U.S. v. West, 2014 WL 3906842 (8/12/14) (Okl.) (unpub'd) - Prosecution for creating child porn in violation of 18 U.S.C. § 2251(a) did not contravene the Commerce Clause even if the defendant deleted all the images and never intended to distribute them interstate. Congress could decide such local activities constitute an essential part of the interstate market for child porn.

Prison nurse denied qualified immunity where she ignored plaintiff's severe pain for 5 hours

Al-Turki v. Robinson, 2014 WL 3906851 (8/12/14) (Col.) (Published) - The Tenth affirms a denial of qualified immunity to a prison nurse. Mr. Al-Turki's severe pain for five hours that caused him to collapse, vomit and believe himself to be dying satisfied the objective prong of the deliberate indifference test. It didn't matter that it turned out the cause was kidney stones, "a relatively benign" condition that could only be reduced, not eliminated, by medical treatment. And it was clearly established the nurse's conduct violated the Cruel and Unusual Punishment Clause. She was aware that severe abdominal pain, particularly in someone with diabetes, like Mr. Al-Turki, may be a sign of a number of serious, life-threatening conditions. She was also aware she was the only medical person on duty. Without her help Mr. Al-Turki would have no medical assistance. Later-learned facts that made this case less severe than other Tenth Circuit cases didn't make her choice to ignore Mr. Al-Turki's repeated requests for help any less culpable.

Court addresses circumstances supporting a stay of habeas proceedings

Doe v. Jones, 2014 WL 3906849 (8/12/14) (Okl.) (Published) - A district court has the discretion to stay § 2254 proceedings where all of the claims are unexhausted. This theoretically would enable the petitioner to exhaust state remedies without worrying about getting to federal court after the statute of limitations runs out. Here there might be good cause for a stay because only two days remained for the statute of limitations. But no dice in this case. Mr. Doe's only claim is actual innocence and that claim would excuse any untimeliness under the recent Supreme Court McQuiggins decision. So no need for a stay. Judge Tymkovich concurs in the judgment, but dissents in part. He wouldn't allow a stay where all the claims are unexhausted. He also would require good cause be shown why the claims were not exhausted, not, as the majority indicated, good cause for the stay. And, besides, innocence is not a freestanding basis for habeas relief. Habeas is available to ensure there is no imprisonment in violation of the constitution, not to correct errors of fact, like a finding of guilt when the petitioner was actually innocent.

Denial of Freedom of Information Act request upheld

Watters v.Department of Justice, 2014 WL 3893298 (8/11/14) (Okl.) (unpub'd) - The Tenth affirms a denial of Freedom of Information Act ("FOIA") requests of the FBI and ATF to obtain exculpatory information to challenge a drug conviction. It was okay to withhold identifying information of many folks, including FBI agents, an AUSA, state and local law enforcement employees, people of investigative interest and those providing information. The privacy interests of those people overrides Mr. Watters' personal interests. The FOIA purpose of revealing government wrongdoing isn't implicated because Mr. Watters presented no evidence of wrongdoing. Nor did Mr. Waters show that disclosure would contribute to the public's understanding of government-related activities. It was okay to conceal information about a third party of interest due to that person's fugitive status, despite Mr. Watters' contention that the government really wasn't trying to capture that person. It was also fine to withhold information furnished by commercial/private companies and other non-government entities because the government obtained the information under an express confidentiality assurance. This is so even though Mr. Watters knows who the confidential sources are.

Habeas petitioner sufficiently stated federal due process claim to exhaust them

Oliver v. Cline, 2014 WL 3973531 (8/15/14) (Kan.) (unpub'd) - No equitable tolling for the running of the statute of limitations, despite state habeas counsel's failure to notify Mr. Oliver immediately about the Kansas Supreme Court's denial of his habeas petition where he had only 4 days left to file the federal petition after that denial. The Tenth says Mr. Oliver wasn't diligent enough because he took 361 days to file the state habeas petition [counsel wasn't appointed until after the filing of the state petition].

Lack of diligence in filing state petition bites habeas petitioner

Oliver v. Cline, 2014 WL 3973531 (8/15/14) (Kan.) (unpub'd) - No equitable tolling for the running of the statute of limitations, despite state habeas counsel's failure to notify Mr. Oliver immediately about the Kansas Supreme Court's denial of his habeas petition where he had only 4 days left to file the federal petition after that denial. The Tenth says Mr. Oliver wasn't diligent enough because he took 361 days to file the state habeas petition [counsel wasn't appointed until after the filing of the state petition].

Wednesday, September 10, 2014

Tenth Acknowledges the Result is Unfair, But Nonetheless Affirms Denial of 3582(c)(2) Relief to Crack Cocaine Defendant

United States v. White, 2014 WL 4290585 (Kansas) (Published). In White, the court affirmed the district court’s denial of White’s section 3582(c) motion while criticizing counsel for misunderstanding the Supreme Court’s decision in Freeman v. United States, 131 S.Ct. 2685. In his concurrence, Judge Hartz wasn’t so sure that criticism was fair or that the pre-Freeman cases, Darton and Dryden, upon which the majority based its opinion are still valid.

White appealed the district court’s denial of his request under § 3582(c) to reduce his sentence because it was based on the abrogated crack cocaine guideline. The government dismissed 15 of the 16 charges against White in exchange for his guilty plea to the §924(c) charge (possession of a firearm in furtherance of a drug trafficking crime). The sentencing court wasn’t happy with a mere five year mandatory prison term for that offense, so it directed the probation officer to calculate the sentencing guidelines for the underlying drug charge [even though it had been dismissed by the government.] The imprisonment range for that offense was 70-87 months and the court tacked 87 months onto the 60 month § 924(c) term. White said he was entitled to a reduction under §3582(c) because his sentence was “based on” the abrogated crack guidelines. He argued that like Freeman, the judge used the “sentencing range as the beginning point to explain the decision to deviate from it . . .” Therefore, he was eligible for relief because his sentence was based on sentencing guidelines that had been subsequently lowered by the Sentencing Commission.

The majority admitted that White’s 60 month mandatory sentence was “based” on §2K2.4 of the guidelines. It also conceded that the court’s upward departure was based on the abrogated crack guidelines. But then the court found that the part of the sentence about which White complains - the departure -“existed apart from the applicable range.” Consequently, it ruled he wasn’t eligible for relief. The majority quotes from Freeman ostensibly to support its ruling, but that case validates White’s position: “Even where the judge varies from the recommended range, if the judge uses the sentencing range as the beginning point [here §2K2.4] to explain the decision to deviate from it, then the Guidelines are in a real sense a basis for the sentence.” 131 S.Ct. at 2692. White's sentence was indeed based on the guidelines. Sadly, the majority and Judge Hartz acknowledge the result is unfair to White. However, the remedy is in the hands of Congress or the Commission.

Generalized Suspicion and Hunches Can Add Up to Particularized Reasonable Suspicion

United States v. Tubens, 2014 WL 4290598 (Utah) (Published). Tubens was riding an overland bus when it pulled into a rest area for a prescheduled stop. There, two officers were waiting with their dogs to search the luggage compartment. Both dogs “alerted” or “indicated” to Tubens’ suitcase. He was summoned off the bus to watch one officer search his suitcase. The officer found nothing. However that was not the end of this “consensual encounter.” Based on his experience that smugglers “move their stash between checked and carry-on bags," the officer went onto the bus and took a paper bag and CD case from the rack above where Tubens had been sitting. He didn’t find anything in those containers either. Despite strike two, the court stated “common experience suggested [Tubens] was probably carrying additional luggage . . .” so the officer was justified in going back on the bus again. On board he told all the passengers to take their luggage off the racks and put it on their laps. Once all the bags were off the rack, the officer saw a black bag near Tubens seat. He demanded that someone claim the bag and no one did, so he took it off the bus. He confronted Tubens with the bag and Tubens said it wasn’t his. The officer asked for and got consent from the bus driver to open the bag. Unfortunately, he found 2 prescription pill bottles with Tubens' name and two packages of methamphetamine.

In a published opinion, the court explains that generalized suspicion and hunches can satisfy the particularized and articuable suspicion requirements of the Fourth Amendment: “Inferring from the totality of the circumstances that Tubens likely had another bag on the bus, [the officer] was justified in reboarding the bus and continuing his investigation [even if it took an hour].”

Tuesday, August 26, 2014

Court affirms district court's refusal to allow meth defendant to withdraw guilty plea; 295-month sentence affirmed

U.S. v. Sanchez-Leon, 2014 WL 4178302 (10th Cir. 8/25/14) (published) - The district court properly denied Mr. Sanchez-Leon's motion to withdraw his guilty plea on meth distribution charges. He did not assert innocence and his responses at the change-of-plea hearing indicated he understood the charges, consulted with counsel, and entered the plea voluntarily. His 295-month sentence was procedurally reasonable. Although the district court erroneously concluded it could not consider deportability as a possible variance factor, the error was harmless in light of statements by the court that it would have given the same sentence even if it had considered Mr. Sanchez-Leon's deportability and the court's expression of concern that a variance based on factors such as deportability would give rise to sentencing disparity between similarly situated defendants. The district court did not treat the Guidelines as mandatory by presuming a Guidelines recommendation would be reasonable during sentencing; it correctly treated the Guidelines range as just one of many factors it should consider. The Tenth concludes from the record that the sentence was substantively reasonable as well.

Thursday, August 21, 2014

USCourts article: Criminal Justice Act: At 50 Years, a Landmark in the Right to Counsel

Yesterday marked the 50th anniversary of the signing of the Criminal Justice Act of 1964, which established the system for providing indigent defendants in federal courts with paid counsel. An article at USCourts.gov sets out a brief history of the right to counsel. It begins:

Fifty years ago—August 20, 1964—the President signed into law the Criminal Justice Act (CJA), which for the first time assured professional legal counsel in federal courts by paying an hourly fee for court appointed lawyers. Six years later, Congress established a full-time federal defender service within the judicial branch.

Together, the measures created the modern federal defenders system, and helped secure a right that Americans now take for granted: meaningful legal representation even for those who can't afford it.

Many defenders and judges call the CJA a shining success. "It's been called the gold standard of public defense," said U.S. District Judge Catherine C. Blake, chair of the Judicial Conference's Defender Services Committee. "The Criminal Justice Act and the right to counsel have greatly strengthened the fairness and integrity of our system of justice."

The article, which also includes some videos and other links about the right to counsel, is continued here.

Friday, August 15, 2014

IRS issuing refund pursuant to fraudulent tax return does not support jury instruction on entrapment by estoppel

U.S. v. Rampton, 2014 WL 3882564 (8/8/14) (Ut.) (Published) - Ms. Rampton was not entitled to an entrapment-by-estoppel instruction. She was involved in a 1099-OID tax-return scheme. She contended that the refund check from the IRS validated her belief that her scheme was legit because it was just a way to get money like the banks were getting. Ms. Rampton did not satisfy the estoppel requirement that her reliance be reasonable. This requirement was necessary because otherwise the "Ill-educated and the naive" would be able to get away with all those tax refunds, while educated folks would get convicted. In this case Ms. Rampton fabricated the forms and provided false information, such as that more than $200,000 had been withheld to cover her income taxes. No one would reasonably infer the IRS audited her forms for accuracy, discovered her deceit and still decided she was due a refund. And besides, she knew the IRS told a friend of hers doing the same thing that the scheme was bogus.

Monday, August 11, 2014

Continuances Did Not Violate Speedy Trial Act; Exclusion of Defense Expert Testimony OK'd

U.S. v. Banks, -- F.3d --, 2014 WL 3805481 (8/4/14) (Colo.) - the Tenth affirms multiple mail fraud and wire fraud convictions in a multi-defendant case. Defendants' speedy trial rights were not violated under 18 U.S.C. § 3161(c)(1) or the Sixth Amendment by several continuances granted by the district court. Although the length of the delay (greater than a year) weighed in defendants' favor, the balancing of the remaining three factors did not. The district court properly weighed the applicable factors and supported its rulings with detailed factual findings.

The district court did not compel co-defendant Barnes to take the stand in violation of his Fifth Amendment privilege against self-incrimination; he took the stand voluntarily. And the district court's curative instructions to the jury in this regard did not violate defendants' Sixth Amendment right to a fair trial. Defendants rejected the court's first proposed curative instruction and failed to object to either the substance or the timing of the second curative instruction. Defendants did not demonstrate any error by the district court, much less plain error.

The district court did not abuse its discretion by excluding testimony from defendants' expert witnesses on account of defendants' failure to make proper disclosure of the witnesses under Fed. R. Crim. P. 16 and 702. Defendants offered no legitimate reasons for failing to comply with the disclosure requirements and the government would have been prejudiced in its ability to effectively cross-examine the experts about their qualifications and conclusions if defendants had been allowed to call their expert witnesses on day 9 of trial. The district court's refusal of a continuance was appropriate because the government had already rested its case.

AEDPA Filing Deadline Is Tolled While State Petition is Pending, No Matter How Dilatory State Courts Are

Fisher v. Raemisch, 2014 WL 3827163; No. 13-1144 (Colo.)(published): The court reverses a district court decision to dismiss a habeas petition. The district court dismissed Fisher’s petition because it felt that he had abandoned a state post-conviction petition which made his federal petition untimely. The 10th Circuit said that AEDPA’s one year filing limitation period is tolled while an application for post-conviction relief is pending in state court. Here, the state court took 8 years to rule on Fisher’s post-conviction petition. The 10th Circuit said that wasn’t his fault. It rejected the argument of the respondent and the lower court that Fisher had abandoned the post-conviction proceedings because he didn’t ask for an expeditious ruling. The court held that the limitations period is tolled while a post-conviction application works its way through the state courts.

Object, Object, and Object Again

United States v. Gonzalez-Perez, 2014 WL 3827586; No. 13-2147 (N.M.)(unpublished): another opinion that points out why it is important to object and preserve in the lower court. Gonzalez raised numerous compelling issues. First, he argued that his 5th and 6th Amendment rights were violated when the government let a material witness be “voluntarily deported” before defense counsel could speak with him. Gonzalez asked the court to adopt the rule developed by the 9th Circuit in Leal del Carmen, 679 F.3d 964, 970 (9th Cir. 2012). There the Court found that when the government interviews a witness or has other information suggesting that he could offer exculpatory evidence, the government may not deport him without giving defense counsel a chance to interview him. The panel rejected that rule but said the “more prudent practice” would have been to hold the witness until defense counsel could talk to him. Still, the agent who let him go was merely negligent - he didn’t do that in bad faith.

Gonzalez next argued that his right to confrontation was violated when the court let an agent tell the jury about the missing witness’s statements. Gonzalez had successfully moved pretrial to exclude the witness’s statements about his immigration status. At trial the government brought them in anyway and defense counsel didn’t object. On appeal the parties agree defense counsel had preserved the issue. That is the Court’s decision, said the panel. It then explained it would review the issue for plain, not harmless error, because even the granting of a pretrial limine motion does not relieve the party from objecting when the excluded evidence is admitted. Gonzalez couldn’t satisfy this standard because there was abundant other evidence of Gonzalez’s immigration status.

Finally, Gonzalez said that the court shouldn’t have allowed an agent to give an opinion on his mental state at the time of the alleged offense. Here again the court commented it had some concern with how the government manipulated the agent’s testimony but since Gonzalez didn’t object he couldn’t meet his burden of proving plain error.

Monday, August 04, 2014

District Court Can't Revisit Sentencing Issues Unaffected by Guideline Amendment in Resentencing Procedure

U.S. v. Washington, 2014 WL 3537842 (7/18/14) (Kan.) (Published) - A defendant cannot use § 3582(c)(2) to have the 10th resolve a dispute previously unresolved on appeal. In this case on direct appeal Mr. Washington challenged the district court's crack quantity calculations in 2 respects: (1) the estimation that he and his co-conspirators bought a certain amount of crack with pooled money and (2) the conversion of money into an amount of crack. The 10th elected not to resolve issue (2) because when it resolved issue (1) Mr. Washington was stuck in the same offense level regardless of the resolution of issue (2). By & by the crack guidelines change and now Mr. Washington would be in a different offense level under the new guidelines if issue (2) were resolved in his favor. He filed a § 3582(c)(2) motion which recognized the district court was stuck with its previous ruling on issue (2), but asked the court to deny the claim on law-of- the-case grounds and move the case along to the 10th, which hopefully would resolve issue (2) in his favor, rendering him eligible for relief.

On the positive side, taking the side of the 9th over the 6th, the 10th holds it is bound by Hahn [the infamous appeal waiver case] to conclude it had jurisdiction to hear the case under 28 U.S.C. § 1291. This is so even if there wasn't jurisdiction under § 3742(a), given the case didn't precisely fit under any of the appeal categories listed, e.g. "imposed sentence in violation of law" [where the district court followed the law of the case]. Nor did the 10th buy the government argument that Mr. Washington wasn't aggrieved by the lower court decision. He didn't seek denial of his motion. He simply conceded the district court's lack of power to help him. But in the end Mr. Washington gets no relief. § 3582(c)(2) and § 1B1.10 don't allow courts to revisit aspects of a sentence unaffected by the retroactively applicable guideline amendment. The 10th distinguishes U.S. v. Battle, 706 F.3d 1313 (10th 2013), where the 10th allowed the district court to resolve a disputed drug quantity issue in a § 3582(c)(2) case. In Battle the contemplated procedure flowed directly from the original record, memos and previously-made factual findings. Here, what Mr. Washington asked for doesn't flow from a legal determination made on the previous appeal. And Mr. Washington didn't ask the 10th to resolve issue (2) based on the briefs in the prior appeal. Those briefs only argued the issue in a couple of sentences whereas he took 12 pages on this appeal. Mr. Washington could try to seek a recall of the mandate. But the 10th didn't think that would be too fruitful, especially given the skimpy original briefing on issue (2).

Upward Variance to 16 Years (From 57 Months) Affirmed in Involuntary Manslaughter Case

U.S. v. Lente, 2014 WL 3537830 (7/18/14) (N.M.) (Published) - In the 3rd sentencing appeal in this case, the 10th affirms the district court's 16 year sentence---an upward variance from 57 months--- for a young woman who, while driving drunk, drove head-on into a pickup after her passenger tried to pull the steering wheel from her and she jerked it. Three people - two kids and an 18-year-old - died and another young adult was seriously injured.

First, the 10th declared the procedural-error arguments were really challenges to the substantive reasonableness of the sentence. The claim that it was irrational to refuse to consider the mitigating fact of the passenger's actions causing the accident was really a challenge to the weight given. The claim that the district court didn't consider the Sentencing Commission's careful consideration of the multi-victim circumstance was considered by the court and so the complaint was really substantive.

Next the 10th found permissible the district court's primary reason for the variance: a policy disagreement with the Commission regarding how much extra punishment should be associated with multiple victims of involuntary manslaughter. The Guidelines say use the grouping rules. The 10th says the court's disagreement was specifically attached to the "rare" facts of this case: multiple involuntary manslaughter convictions involving people who just happened to be in the wrong place at the wrong time, rather than passengers of the drunk defendant . So the "closer review" that Kimbrough suggested might be needed for pure policy disagreements was not necessary. The 10th noted Commission Groups and courts have expressed dissatisfaction with the involuntary manslaughter guidelines and in particular, the grouping rule application. The 10th was unimpressed by the notion that it was unfair to punish so severely for consequences that were substantially the result of happenstance. The 10th was unwilling to look at how unlikely the consequences were of Ms. Lente's conduct. Instead it said Ms. Lente's extreme recklessness justified disregarding the happenstance factor. The 10th found permissible the district court's finding of extreme recklessness based on: (1) a .21 BAC two hours after the accident where the average BAC in a fatality is .16; (2) State Road 47 was a well-traveled road that was designated as unusually significant to its metropolitan area with 500-600 vehicles per hour at the time of Ms. Lente's drive; (3) Ms. Lente had no driver's license. The 10th acknowledged (2) & (3) didn't show extraordinary recklessness. But together with the BAC it was okay to find Ms. Lente extra reckless. It was permissible to vary due to Ms. Lente's tribal criminal history of two disorderly conducts and an assault and battery over the course of 3 or 4 years. The court could conclude these showed a repeated willingness to abuse alcohol and engage in violent and reckless behavior. The 10th noted less than 10 % of vehicular homicide defendants had assault & battery priors. Zero criminal history points "clearly" understated her criminal history, the 10th says. The 10th found Ms. Lente's prison conduct, which included use of controlled substances,a statement she wanted to get drunk when she got out and refusal to take her headphones off during drug education class, supported the district court's conclusion Ms. Lente was a high risk for recidivism. Pepper not only allows post-sentence rehabilitation evidence but also post-sentence evidence showing the defendant was not rehabilitated.

There was no unwarranted disparity. The 10th found Ms. Lente's mitigating evidence unconvincing. Her horrible childhood, her youth, and mental health issues were counteracted by the fact she hadn't rehabilitated herself. And such mitigating evidence is a "double-edged sword" because it means she's dangerous. The 10th consoled Ms. Lente with its opinion that she is not beyond hope of recovery. The 10th expressed its "sincere hope" she obtains the treatment she needs. Ms. Lente's passenger's role in the accident meant nothing. As the district court said, the going into the wrong lane was just a small action that could be ignored. She and the passenger together caused the crash and in her guilty plea she acknowledged she acted with the reasonable foreseeabilty she was imperiling the lives of others. "There is nothing irrational about considering the harm caused by that decision, even if other factors contributed to the result.

The 10th affirms the sentence "not without some pause." The 10th worried sentences could be widely divergent if one judge thinks harm is the most important and another thinks the lack of bad mens rea is important. The 10th stressed the role of the "extensive record" in this case that helped justify the extreme variance. It ended the opinion by assuring us "appellate review continues to have an important role to play and must not be regarded as a rubber stamp." On the bright side for those other than Ms. Lente, this case will make it all the harder for the government to overturn a substantial downward variance.