Booker backlog
There are some other issues mixed into this lot, but the theme of the day is all Booker, all the time as the Court disposes of cases it had held pending its resolution of Booker plain error issues.
US v. Tedford, 2005 WL 1023434 (10th Cir. 5/3/05): In this probation revocation case in which the court imposed a 48-month sentence, the Court noted that Booker did not change the standard of review for upward departures in revocation cases; imposition of a sentence in excess of that recommended by the Chapter 7 policy statements of the Sentencing Guidelines will still be upheld "if it can be determined from the record to have been reasoned and reasonable." The Court then held that the district court adequately considered the Guidelines policy statements in imposing sentence outside recommended range after revoking probation, and the court was entitled to consider resources of probation office in imposing sentence outside recommended range after revoking probation.
US v. Souser, 2005 WL 1030440 (10th Cir. 5/4/05): The sentencing court in Colorado imposed a requirement that the defendant inform her employers of her conviction pursuant to a local policy that required such notification unless the defendant showed it was not necessary. The defendant had objected to the employer notification requirement, and the district court imposed it nonetheless. The COA reversed, finding that the local policy was contrary to 18 USC 3563(b) and USSG 5F1.3, which only allow imposition of occupational restrictions as are "reasonably necessary," and limits them to what is necessary to protect the public. In addition, the judge failed to make the findings required by USSG 5F1.5.
US Sierra-Castillo, 2005 WL 1023341 (10th Cir. 5/3/05): In this aggravated reentry case, the judge had denied the defendant a departure based on family circumstances because the circumstances were not outside the heartland "in this part of the jurisdiction" (emphasis added). The Court held that, contrary to the district court's statement, the heartland under the Guidelines is national in scope and is not limited to a particular jurisdiction or portion of a jurisdiction. However, any error in misdefining the heartland was harmless because the defendant did not provide any support for his claim that family circumstances warranted departure. In addition, the age of his prior conviction used to support the enhancement was not a basis for departing downward. Finally, the enhancement for the prior conviction was not plain error under U.S. v. Booker. The Court distinguished Trujillo-Terrazas on the basis that the actual circumstances of the defendant's prior conviction in that case were relatively minor, whereas Mr. Sierra-Castillo's prior conviction was for attempted aggravated assault.
US v. Serrano-Dominguez, 2005 WL 1030443 (10th Cir. 5/4/05): Another affirmance of a pre-Blakely sentence in an aggravated reentry case, and an indication that the Tenth Circuit will look kindly upon those "alternative sentences" imposed in the interregnum between Blakely and Booker. Here, the sentencing court imposed a 33-month sentence and asked the defendant if he would like an alternative sentence imposed. Defense counsel agreed. So, explicitly considering the statutory factors, the court pronounced that it would impose the same sentence regardless of the guidelines. This interchange removed any doubt as to what the district court would do on remand, and thus distinguished this case from Labastida-Segura.
US v. Ambort, 2005 WL 1023345 (10th Cir. 5/3/05): Defendant was convicted of conspiracy to defraud the United States by assisting in the preparation of false tax returns, and 69 counts of aiding and assisting in the preparation of false federal tax returns. The Tenth Circuit affirmed his convictions and sentence. First, some trial issues. The defendant's and co-defendant's testimony about their good faith belief that they were pursuing the proper procedure to attempt to change federal income tax laws was not relevant; the First Amendment did not preclude prosecution for conspiracy to defraud the United States by assisting in the filing of false tax returns; and reparation of tax returns indicating that taxpayers were nonresident aliens, when defendant knew that taxpayers were not, violated statute prohibiting the aiding and assisting in the preparation of false federal tax returns. Then, on to some sentencing issues. The sentencing court's loss determination of $2.6 million under mandatory Sentencing Guidelines did not constitute plain error because the defendant admitted it; and imposition of sentencing increases for leadership or organizer role, for deriving substantial income from the criminal enterprise, and sophisticated user sentencing increase because the evidence overwhelmingly supported each enhancement. Finally, under plain error review, defendant could not point to anything in the record indicating that the court would have liked to impose a different sentence, so there was no evidence the error affected his substantial rights.
US v. Payton, 2005 WL 1030462 (10th Cir. 5/4/05): Defendant pled guilty to conspiracy to possess with intent to distribute meth. Her sentence was enhanced 2 points for possession of firearms, and she was found ineligible for the safety valve because of the possession of the guns. The COA held she was properly found ineligible for safety valve sentencing, based on, among other evidence, five guns were found in close proximity to a large quantity of meth and she testified she bought the shotgun as a Valentine's gift for her co-defendant. Since she then received the mandatory minimum sentence of 120 months, the 2-point enhancement under 2D1.1 had no material affect on her incarceration. Finally, there was no constitutional Booker error because she received the statutory mandatory minimum sentence for the crime to which she pled.
US v. Windrix, 2005 WL 1023398 (10th Cir. 5/3/04): In a case involving conspiracy to manufacture and sell meth, the COA affirmed the convictions but remanded for resentencing pursuant to Booker. The Court upheld various challenged searches. In the first, the Court held that a search warrant affidavit detailing meth-related activity provided probable cause to search the entire hill, including the defendant's mobile home. In the second, an affidavit stating that two officers detected an odor associated with meth cooking provided probable cause for a search. In a third challenged search, the Court found that the search of the defendant's car was supported by a dog's alert, and not by the defendant's four-hour detention at the police station. A search of another house for financial records was supported by probable cause in the affidavit reciting the defendants' indictment on meth charges and an officer's experience that financial records related to such crimes were often kept at their homes. The Court rejected defendants' claims that the conspiracy charged in the indictment varied from the evidence at trial. The trial court did not abuse its discretion in rejecting one defendant's motion to sever. The trial court properly denied one defendant's claim that the jury-wheel selection violated his right to a trial by a fair cross-section of the community as time-barred where it was made only four days before trial. However, defendants' sentences were reversed and remanded for resentencing because the defendants had objected on Apprendi grounds to the sentencing court making findings concerning the quantity of drugs.
US v. Porter, 2005 WL 1023395 (5/3/05): The COA held that with, in the plea agreement, the defendant waived his right to appeal his sentence on ground that it exceeded sentencing guideline range applicable on admitted facts; and the change in law resulting from Booker did not render the waiver of right to appeal sentence unlawful.
US v. Serrano, 2005 WL 1023385 (5/3/05): Defendant was charged with several counts relating to felon-in-possession of a firearm. The Tenth Circuit held that the district court and prosecutor did not interfere with the defendant's right to present a defense by intimidating or coercing two witnesses into invoking their Fifth Amendment rights where the court asked the witnesses if they had discussed their proposed testimony with counsel and, after the court appointed them counsel, they then invoked their rights. The trial court correctly denied defendant's motion to have the court grant use immunity to the witnesses because it did not have authority to do so; only the government could do so. On two Booker claims, the Tenth found that Defendant could not show prejudice from the obstruction of justice enhancement because it was trumped by application of the armed career criminal guideline. Additionally, Defendant's argument that he was entitled to have a jury determine whether his prior felonies were "violent" for application of the ACCA enhancement was rejected.
US v. Tedford, 2005 WL 1023434 (10th Cir. 5/3/05): In this probation revocation case in which the court imposed a 48-month sentence, the Court noted that Booker did not change the standard of review for upward departures in revocation cases; imposition of a sentence in excess of that recommended by the Chapter 7 policy statements of the Sentencing Guidelines will still be upheld "if it can be determined from the record to have been reasoned and reasonable." The Court then held that the district court adequately considered the Guidelines policy statements in imposing sentence outside recommended range after revoking probation, and the court was entitled to consider resources of probation office in imposing sentence outside recommended range after revoking probation.
US v. Souser, 2005 WL 1030440 (10th Cir. 5/4/05): The sentencing court in Colorado imposed a requirement that the defendant inform her employers of her conviction pursuant to a local policy that required such notification unless the defendant showed it was not necessary. The defendant had objected to the employer notification requirement, and the district court imposed it nonetheless. The COA reversed, finding that the local policy was contrary to 18 USC 3563(b) and USSG 5F1.3, which only allow imposition of occupational restrictions as are "reasonably necessary," and limits them to what is necessary to protect the public. In addition, the judge failed to make the findings required by USSG 5F1.5.
US Sierra-Castillo, 2005 WL 1023341 (10th Cir. 5/3/05): In this aggravated reentry case, the judge had denied the defendant a departure based on family circumstances because the circumstances were not outside the heartland "in this part of the jurisdiction" (emphasis added). The Court held that, contrary to the district court's statement, the heartland under the Guidelines is national in scope and is not limited to a particular jurisdiction or portion of a jurisdiction. However, any error in misdefining the heartland was harmless because the defendant did not provide any support for his claim that family circumstances warranted departure. In addition, the age of his prior conviction used to support the enhancement was not a basis for departing downward. Finally, the enhancement for the prior conviction was not plain error under U.S. v. Booker. The Court distinguished Trujillo-Terrazas on the basis that the actual circumstances of the defendant's prior conviction in that case were relatively minor, whereas Mr. Sierra-Castillo's prior conviction was for attempted aggravated assault.
US v. Serrano-Dominguez, 2005 WL 1030443 (10th Cir. 5/4/05): Another affirmance of a pre-Blakely sentence in an aggravated reentry case, and an indication that the Tenth Circuit will look kindly upon those "alternative sentences" imposed in the interregnum between Blakely and Booker. Here, the sentencing court imposed a 33-month sentence and asked the defendant if he would like an alternative sentence imposed. Defense counsel agreed. So, explicitly considering the statutory factors, the court pronounced that it would impose the same sentence regardless of the guidelines. This interchange removed any doubt as to what the district court would do on remand, and thus distinguished this case from Labastida-Segura.
US v. Ambort, 2005 WL 1023345 (10th Cir. 5/3/05): Defendant was convicted of conspiracy to defraud the United States by assisting in the preparation of false tax returns, and 69 counts of aiding and assisting in the preparation of false federal tax returns. The Tenth Circuit affirmed his convictions and sentence. First, some trial issues. The defendant's and co-defendant's testimony about their good faith belief that they were pursuing the proper procedure to attempt to change federal income tax laws was not relevant; the First Amendment did not preclude prosecution for conspiracy to defraud the United States by assisting in the filing of false tax returns; and reparation of tax returns indicating that taxpayers were nonresident aliens, when defendant knew that taxpayers were not, violated statute prohibiting the aiding and assisting in the preparation of false federal tax returns. Then, on to some sentencing issues. The sentencing court's loss determination of $2.6 million under mandatory Sentencing Guidelines did not constitute plain error because the defendant admitted it; and imposition of sentencing increases for leadership or organizer role, for deriving substantial income from the criminal enterprise, and sophisticated user sentencing increase because the evidence overwhelmingly supported each enhancement. Finally, under plain error review, defendant could not point to anything in the record indicating that the court would have liked to impose a different sentence, so there was no evidence the error affected his substantial rights.
US v. Payton, 2005 WL 1030462 (10th Cir. 5/4/05): Defendant pled guilty to conspiracy to possess with intent to distribute meth. Her sentence was enhanced 2 points for possession of firearms, and she was found ineligible for the safety valve because of the possession of the guns. The COA held she was properly found ineligible for safety valve sentencing, based on, among other evidence, five guns were found in close proximity to a large quantity of meth and she testified she bought the shotgun as a Valentine's gift for her co-defendant. Since she then received the mandatory minimum sentence of 120 months, the 2-point enhancement under 2D1.1 had no material affect on her incarceration. Finally, there was no constitutional Booker error because she received the statutory mandatory minimum sentence for the crime to which she pled.
US v. Windrix, 2005 WL 1023398 (10th Cir. 5/3/04): In a case involving conspiracy to manufacture and sell meth, the COA affirmed the convictions but remanded for resentencing pursuant to Booker. The Court upheld various challenged searches. In the first, the Court held that a search warrant affidavit detailing meth-related activity provided probable cause to search the entire hill, including the defendant's mobile home. In the second, an affidavit stating that two officers detected an odor associated with meth cooking provided probable cause for a search. In a third challenged search, the Court found that the search of the defendant's car was supported by a dog's alert, and not by the defendant's four-hour detention at the police station. A search of another house for financial records was supported by probable cause in the affidavit reciting the defendants' indictment on meth charges and an officer's experience that financial records related to such crimes were often kept at their homes. The Court rejected defendants' claims that the conspiracy charged in the indictment varied from the evidence at trial. The trial court did not abuse its discretion in rejecting one defendant's motion to sever. The trial court properly denied one defendant's claim that the jury-wheel selection violated his right to a trial by a fair cross-section of the community as time-barred where it was made only four days before trial. However, defendants' sentences were reversed and remanded for resentencing because the defendants had objected on Apprendi grounds to the sentencing court making findings concerning the quantity of drugs.
US v. Porter, 2005 WL 1023395 (5/3/05): The COA held that with, in the plea agreement, the defendant waived his right to appeal his sentence on ground that it exceeded sentencing guideline range applicable on admitted facts; and the change in law resulting from Booker did not render the waiver of right to appeal sentence unlawful.
US v. Serrano, 2005 WL 1023385 (5/3/05): Defendant was charged with several counts relating to felon-in-possession of a firearm. The Tenth Circuit held that the district court and prosecutor did not interfere with the defendant's right to present a defense by intimidating or coercing two witnesses into invoking their Fifth Amendment rights where the court asked the witnesses if they had discussed their proposed testimony with counsel and, after the court appointed them counsel, they then invoked their rights. The trial court correctly denied defendant's motion to have the court grant use immunity to the witnesses because it did not have authority to do so; only the government could do so. On two Booker claims, the Tenth found that Defendant could not show prejudice from the obstruction of justice enhancement because it was trumped by application of the armed career criminal guideline. Additionally, Defendant's argument that he was entitled to have a jury determine whether his prior felonies were "violent" for application of the ACCA enhancement was rejected.
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