No Errors in Felon-in-Possession Case

U.S. v. Herron, --- F.3d ----, 2005 WL 3475781(10th Cir. December 20, 2005)

In trial on charge of felon in possession of a firearm, D stipulated to his prior felony conviction. His defense was innocent possession. It was not error for court to allow redacted parole conditions which included drug testing, no firearms, submission to searches. It was not abuse of discretion to deny mistrial when parole officer testified that it was important to find the firearm because it could be in possession of a parolee with a violent history when court gave curative instruction. On sentencing: under ACCA, D’s prior for menacing under Colorado law was a violent felony because it has as an element the use of a threat or physical action, to knowingly place another person in fear of imminent serious bodily injury. District court did not err in finding that D did not admit factual guilt entitling him to acceptance of responsibility reduction: he did not admit knowing possession, and he challenged the commerce element (court noted that D never claimed he was going to trial to preserve issues on appeal unrelated to factual guilt).

Tenth Circuit affirms conviction, sentences

U.S. v. Williams, -- F.3d --, 2005 WL 3462795 (10th Cir. 12/19/05) - 2-offense level enhancement for possession of a dangerous weapon in connection with a drug trafficking offense was proper as Mr. Williams did not meet his burden to show it was "clearly improbable" that his gun was connected to cocaine distributing. There was no plain Sixth Amendment error in the district court's finding of the underlying facts for the enhancement because the sentence imposed was within the maximum authorized by the facts Williams admitted. The non-constitutional Booker error did not meet the 4th prong of the plain error test. While the sentence was at the bottom of the GLs range, the district court did not indicate it was too high.

U.S. v. Waldroop, -- F.3d --, 2005 WL 3462801 (10th Cir. 12/19/05) - there was sufficient evidence of bank fraud and conspiracy to commit bank fraud, based on evidence that Mr. Waldroop knew he was deceiving the bank re: nominee loans. The jury didn't buy evidence to the contrary. Constitutional Booker error was harmless as the record indicated the district court would not have given a lower sentence if it thought it could. District court properly excluded amount of civil settlement in calculating actual loss.

Collateral Attack on Prior Deport Order Not Allowed

U.S. v. Chavez-Alonso, -- F.3d --, 2005 WL 3367056 (10th Cir. 12/12/05) - Defendant moved to dismiss his indictment for illegal reentry after deportation subsequent to an aggravated felony conviction on the ground that his deportation was fundamentally unfair because he was not informed of eligibility for relief from deportation. District court denied motion and defendant entered conditional plea. COA holds defendant's waiver of right to appeal the deportation order constitutes a failure to exhaust administrative remedies and he therefore could not collaterally attack the deportation order.

Tenth Orders Issuance of 2241 HC Writ

Wilson v. Jones, --- F.3d ----, 2005 WL 3307368 (10th Cir. Dec 07, 2005)

10th remands for issuance of writ of habeas corpus under 28 U.S.C. § 2241. For “Class X” misconduct in Oklahoma state prison (using his savings account to pay for certain legal copying costs, which was contrary to law!), P’s classification was lowered so that he lost the ability to accumulate good time credits altogether for a period, and would thereafter be earning them at a lower rate. 10th held: (1)following Gamble, in a claim such as this it would be futile to pursue state court remedies after exhausting administrative remedies; (2) analyzing S. Ct. Sandin decision, P has a liberty interest in his good-time credit earning classification because it has a direct impact on the length of sentence. This determination is supported by fact that prison had no discretion whether to impose the punishment if there was a finding of Class X misconduct; (3) in this case insufficient evidence that P engaged in deception, trickery, false pretenses, etc. to gain access to and use his savings account.

District Court's Refusal to Go Below Guidelines Affirmed

U.S. v. Morales-Chaires, --- F.3d ----, 2005 WL 3307395(10th Cir. Dec 07, 2005)

For sentencing on a re-entry aggravated felony, D moved for “downward departure” (really a lower sentence under §3553(a) factors) from the advisory guideline sentence on multiple grounds, including sentencing disparity. His only issue on appeal was the district court’s legal rejection of the disparity ground: D argued that he did not get “fast track” consideration (fast track is not available in Dist. of Colo.), creating a disparity. The 10th (Anderson) indulged in much discussion regarding fast track programs, only to hold that it did not need to determine if that was an appropriate §3553 reason to set a lower sentence because sentencing disparity is only one of many §3553 factors the court must consider, and the sentencing court considered all of them. (It did not help that the D had a pretty extensive criminal history).

Deferential Review Applied to District Court's Decision re Consolidation of Prior Cases for Sentencing

U.S. v. Humphries, 2005 WL 3257513 (12/2/05) - Deference is owed a district court's determination regarding whether prior convictions were consolidated for sentencing and thus "related" and thus count as only a single conviction for guideline purposes. The 10th felt the issue was determined by Buford v. U.S., 532 U.S. 59 (2001), in which the S.Ct. held deferential review was appropriate for a district court's finding that a particular set of circumstances demonstrated "functional consolidation." The same reasons that required deferential review in that case applied to the consolidation question in this case, the 10th holds. The 10th affirms the district court's finding that the defendant's prior convictions were not consolidated for sentencing.