Circuit Update April 20, 2005
Several 10th Circuit cases, quite a few with important Booker implications:
U.S. v. Trujillo-Terrazas, 2005 WL 880896 (4/13/2005) - In an aggravated reentry case, the Tenth found that the standards of Gonzalez-Huerta were satisfied. The 10th was struck by the unfairness of adding 16 levels to a reentry defendant's offense level for a seemingly minor arson resulting in $ 35 in damage. To satisfy the third prong of the plain error test, the 10th held a defendant can point to the non-guideline range 3553(a) factors, such as the defendant's history and characteristics and sentence disparity. The 10th found there was a reasonable probability had the d.ct. considered the guidelines advisory, rather than mandatory, it would have imposed a lower sentence because of the relatively trivial nature of the prior conviction, [to avoid punishing the defendant as severely as people with much more serious prior convictions] and the d.ct.'s expression of sympathy for the defendant. The 4th prong was met because the defendant presented a compelling case under the 3553(a) factors perhaps for a "significant departure." "To allow a mismatch between the sentence suggested by a principled application of the post-Booker sentencing framework and the actual sentence given to the defendant would call into question the fairness, integrity and public reputation of judicial proceedings."
The 10th also opined that in a run-of-the-mill case where there is nothing remarkable about the defendant's criminal history, the 4th prong cannot be met even if the d.ct. indicated it would have imposed a lower sentence if it had discretion, because a defendant in identical circumstances would receive a greater sentence from a less sympathetic judge.
U.S. v. Williams, 2005 WL 859427 (4/15/05) - A non-constitutional Booker error warrants plain error reversal in this case as well. Without explaining in much detail, the 10th found the 3rd and 4th prongs of the plain error test were satisfied where the d.ct. expressed disgust at the 210 month sentence it had to impose where the felon defendant possessed a gun because a tablemate passed it to him and he held it for a few seconds.
The defendant lost on all the challenges to his conviction. Even assuming the tip that someone was waving a gun under the restaurant table would be considered anonymous, [the customers making the allegation left before the officers came], there was reasonable suspicion to detain the defendant [leading to discharge of the gun] because when the table's occupants were confronted by the police the defendant fidgeted in his seat, and kept his hands in his pocket despite requests to place them on the table. There was sufficient evidence the defendant knew he possessed the gun, even though only momentarily, because there was evidence he was aware of his tablemate's attempts to push the gun on him. Proof the gun was manufactured in California and the defendant possessed the gun in Kansas proved the interstate commerce nexus. It was not error to refuse to give a "fleeting possession" instruction because there was no evidence the defendant either lacked knowledge he possessed the gun or had a legally justifiable reason to possess it temporarily. It was not error to give a supplemental instruction that if the defendant was conscious his possession could be knowing, despite his intoxication. Intoxication does not negate the general intent required for a felon in possession offense.
U.S. v. Dazey, 2005 WL 846227 (4/13/05) - The first attempt by the 10th to address plain error where a Sixth Amendment violation occurred with an important comment on what evidence is sufficient for a d.ct. to determine a guideline range. The 3rd plain error "reasonable probability" prong can be met in two ways: (1) by showing a jury applying a reasonable doubt standard would not have found the same material facts the judge found by a preponderance; and (2) showing in light of the 3553(a) factors, the court would reasonably impose a sentence outside the guideline range. The prong is applied less rigidly because a constitutional error is involved. The defendant in this case made both showings because the defendant strenuously contested the alleged loss caused by his limited participation in a conspiracy to defraud investors and the d.ct.under a Booker regime might consider the strength of the evidence of the loss in imposing a sentence below the range. The 10th stressed that, unlike other circuit courts, it did not believe simply pointing to the fact that the court enhanced the sentence based on judge-made facts satisfied the third prong. The 4th prong is also more relaxed because the error is constitutional. Under that standard the defendant satisfied the 4th prong because (1) the error was constitutional; (2) the defendant vigorously contested the enhancement; and (3) the judge-found facts substantially increased the sentence [20 level enhancement]. Significantly, the 10th in a footnote states that nothing in the S.Ct.'s Booker decision suggests that the evidentiary basis for a guideline determination [e.g. hearsay evidence allowed and proof by a preponderance] has changed.
Otherwise, the evidence was sufficient to establish each person's knowing participation in the conspiracy, in money laundering and wire fraud. The court did not abuse its discretion when it denied severance of a less culpable defendant from the others. Her defense was not mutually exclusive of the defense of another defendant and the jury should not have had difficulty separating the single crucial question raised by the defendant from the other issues in the case, as evidenced by the jury's acquittal of all but one of the defendants of one or more of the charges. It was harmless to admit notes of meetings as past recollection recorded because of the large amount of independent evidence of what happened at the meetings. It was not plain error for the prosecutor to take evidence out of context and exaggerate its importance. An expert did not usurp the role of the jury because he did not simply tell the jury his conclusion, but explained how he arrived at that conclusion.
U.S. v. Lang, 2005 WL 834669 (4/12/05) - A reversal where the Sixth Amendment objection to enhancements was preserved. The enhancements were for drug quantity, obstructing justice and abuse of trust. The error was not harmless beyond a reasonable doubt. The error was preserved even though the challenge was not raised at the initial sentencing because it was raised after remand for resentencing. The 10th's remand did not limit the d.ct.'s authority to resentence and the Blakely decision constituted a dramatic change in the legal landscape.
U.S. v. Trujillo, 2005 WL 834677 (4/12/05) - It was okay to search the defendant's house pursuant to the authority of his parole conditions even after he was arrested. The government's interest in supervising the parolee and protecting society were still in effect, the defendant's privacy interest was still insignificant and the parole agreement did not terminate upon the arrest. There was reasonable suspicion to search the home based on the following: (1) a failed drug test 4 months earlier; (2) refusal to take a drug test the day before; and (3) information from a detective that the defendant was involved in drug dealing. It was okay that there was no indication what the detective's information was based on because the traditional indicia of reliability for tips play a diminished role when it comes to parole searches. Once there was reason to believe the defendant violated his parole conditions, there was reasonable suspicion to support the search of his home, whether or not there was a sufficient basis to believe there was evidence of drug use in the home.
U.S. v. Trujillo-Terrazas, 2005 WL 880896 (4/13/2005) - In an aggravated reentry case, the Tenth found that the standards of Gonzalez-Huerta were satisfied. The 10th was struck by the unfairness of adding 16 levels to a reentry defendant's offense level for a seemingly minor arson resulting in $ 35 in damage. To satisfy the third prong of the plain error test, the 10th held a defendant can point to the non-guideline range 3553(a) factors, such as the defendant's history and characteristics and sentence disparity. The 10th found there was a reasonable probability had the d.ct. considered the guidelines advisory, rather than mandatory, it would have imposed a lower sentence because of the relatively trivial nature of the prior conviction, [to avoid punishing the defendant as severely as people with much more serious prior convictions] and the d.ct.'s expression of sympathy for the defendant. The 4th prong was met because the defendant presented a compelling case under the 3553(a) factors perhaps for a "significant departure." "To allow a mismatch between the sentence suggested by a principled application of the post-Booker sentencing framework and the actual sentence given to the defendant would call into question the fairness, integrity and public reputation of judicial proceedings."
The 10th also opined that in a run-of-the-mill case where there is nothing remarkable about the defendant's criminal history, the 4th prong cannot be met even if the d.ct. indicated it would have imposed a lower sentence if it had discretion, because a defendant in identical circumstances would receive a greater sentence from a less sympathetic judge.
U.S. v. Williams, 2005 WL 859427 (4/15/05) - A non-constitutional Booker error warrants plain error reversal in this case as well. Without explaining in much detail, the 10th found the 3rd and 4th prongs of the plain error test were satisfied where the d.ct. expressed disgust at the 210 month sentence it had to impose where the felon defendant possessed a gun because a tablemate passed it to him and he held it for a few seconds.
The defendant lost on all the challenges to his conviction. Even assuming the tip that someone was waving a gun under the restaurant table would be considered anonymous, [the customers making the allegation left before the officers came], there was reasonable suspicion to detain the defendant [leading to discharge of the gun] because when the table's occupants were confronted by the police the defendant fidgeted in his seat, and kept his hands in his pocket despite requests to place them on the table. There was sufficient evidence the defendant knew he possessed the gun, even though only momentarily, because there was evidence he was aware of his tablemate's attempts to push the gun on him. Proof the gun was manufactured in California and the defendant possessed the gun in Kansas proved the interstate commerce nexus. It was not error to refuse to give a "fleeting possession" instruction because there was no evidence the defendant either lacked knowledge he possessed the gun or had a legally justifiable reason to possess it temporarily. It was not error to give a supplemental instruction that if the defendant was conscious his possession could be knowing, despite his intoxication. Intoxication does not negate the general intent required for a felon in possession offense.
U.S. v. Dazey, 2005 WL 846227 (4/13/05) - The first attempt by the 10th to address plain error where a Sixth Amendment violation occurred with an important comment on what evidence is sufficient for a d.ct. to determine a guideline range. The 3rd plain error "reasonable probability" prong can be met in two ways: (1) by showing a jury applying a reasonable doubt standard would not have found the same material facts the judge found by a preponderance; and (2) showing in light of the 3553(a) factors, the court would reasonably impose a sentence outside the guideline range. The prong is applied less rigidly because a constitutional error is involved. The defendant in this case made both showings because the defendant strenuously contested the alleged loss caused by his limited participation in a conspiracy to defraud investors and the d.ct.under a Booker regime might consider the strength of the evidence of the loss in imposing a sentence below the range. The 10th stressed that, unlike other circuit courts, it did not believe simply pointing to the fact that the court enhanced the sentence based on judge-made facts satisfied the third prong. The 4th prong is also more relaxed because the error is constitutional. Under that standard the defendant satisfied the 4th prong because (1) the error was constitutional; (2) the defendant vigorously contested the enhancement; and (3) the judge-found facts substantially increased the sentence [20 level enhancement]. Significantly, the 10th in a footnote states that nothing in the S.Ct.'s Booker decision suggests that the evidentiary basis for a guideline determination [e.g. hearsay evidence allowed and proof by a preponderance] has changed.
Otherwise, the evidence was sufficient to establish each person's knowing participation in the conspiracy, in money laundering and wire fraud. The court did not abuse its discretion when it denied severance of a less culpable defendant from the others. Her defense was not mutually exclusive of the defense of another defendant and the jury should not have had difficulty separating the single crucial question raised by the defendant from the other issues in the case, as evidenced by the jury's acquittal of all but one of the defendants of one or more of the charges. It was harmless to admit notes of meetings as past recollection recorded because of the large amount of independent evidence of what happened at the meetings. It was not plain error for the prosecutor to take evidence out of context and exaggerate its importance. An expert did not usurp the role of the jury because he did not simply tell the jury his conclusion, but explained how he arrived at that conclusion.
U.S. v. Lang, 2005 WL 834669 (4/12/05) - A reversal where the Sixth Amendment objection to enhancements was preserved. The enhancements were for drug quantity, obstructing justice and abuse of trust. The error was not harmless beyond a reasonable doubt. The error was preserved even though the challenge was not raised at the initial sentencing because it was raised after remand for resentencing. The 10th's remand did not limit the d.ct.'s authority to resentence and the Blakely decision constituted a dramatic change in the legal landscape.
U.S. v. Trujillo, 2005 WL 834677 (4/12/05) - It was okay to search the defendant's house pursuant to the authority of his parole conditions even after he was arrested. The government's interest in supervising the parolee and protecting society were still in effect, the defendant's privacy interest was still insignificant and the parole agreement did not terminate upon the arrest. There was reasonable suspicion to search the home based on the following: (1) a failed drug test 4 months earlier; (2) refusal to take a drug test the day before; and (3) information from a detective that the defendant was involved in drug dealing. It was okay that there was no indication what the detective's information was based on because the traditional indicia of reliability for tips play a diminished role when it comes to parole searches. Once there was reason to believe the defendant violated his parole conditions, there was reasonable suspicion to support the search of his home, whether or not there was a sufficient basis to believe there was evidence of drug use in the home.
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