Solicitation to Commit Residential Burglary a Crime of Violence under USSG 2L1.2(b)

U.S. v. Cornelio-Pena, -- F.3d --, 2006 WL 218189 (10th Cir. 1/30/06) - 16-level increase in reentry case was appropriate because solicitation to commit burglary of a dwelling was a crime of violence under GLs § 2L1.2. Solicitation, says the court, is "the original, direct cause of the crime if it is subsequently committed" and is sufficiently similar to the offenses listed in Application Note 5 to GLs § 2L1.2 to be encompassed by it. There was no constitutional Booker error in the district court's determination that solicitation of burglary was a crime of violence because it involves a question of law and besides, the Apprendi exception for prior convictions applies to the determination whether a prior conviction was a violent felony. Non-constitutional error in mandatory application of the GLs was harmless because the district court would likely give the same sentence if there was a remand since it imposed an alternative sentence that was the same as the actual sentence.

No Plain Booker Error Where Sentence Already Completed

U.S. v. Westover, -- F.3d --, 2006 WL 218179 (10th Cir. 1/30/06) - Constitutional error in pre-Booker sentence did not meet the plain error standard. Although the first two elements of plain error analysis were met, Mr. Westover failed to establish that the error seriously affected the fairness, integrity, or public reputation of judicial proceedings. By the time the COA got around to deciding, he had done his time and was on supervised release. The district court seemed satisfied with the sentence it imposed. Mr. Westover did not seriously contest the factual accuracy of the findings pertaining to the amount of loss and re: his two levels for obstruction of justice, he conceded that his testimony was incorrect.

Teens Have No Privacy Right to Consensual Sexual Conduct

Aid for Women v. Foulston, 10th Cir. No. 04-3310 (1/27/06)(unpub'd) - In a lawsuit challenging Kansas' requirement that certain professionals, including doctors, and teachers, report consensual sexual activity by those under 16 with similarly-aged minors, the 10th holds that minors have a right to informational privacy, although not as great as adults have. However, it was not substantially likely that the plaintiffs would succeed so as to warrant an injunction of enforcement of that requirement because in Kansas sexual activity by anyone under 16, even if it is consensual and with another minor, is illegal and thus, not entitled to constitutional protection. Our own Judge Herrera dissented, arguing that Kansas' interest in the information is weak because it does not act on information about voluntary sexual conduct between adolescents of a similar age and that interest does not outweigh the very strong interest of the minor in keeping the very personal information private. "The fact that a state criminalizes voluntary sexual conduct cannot alone extinguish a federal right," she says.

Prisoner's 1983 Complaint Reinstated

Fogle v. Pierson, 2006 WL 205367 (1/27/06) - The 10th reversed dismissal of a prisoner's § 1983 complaint with respect to five matters. (1) Due process applied to the prison's placement of the prisoner in administrative segregation for three years. Under Sandin v. Conner, 515 U.S. 472, 484 (1995), those prison conditions imposed an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life," creating a liberty interest. (2) The Cruel and Unusual Punishment Clause was implicated by the prison's denial of all outdoor exercise, even if the prisoner was provided some indoor exercise. Outdoor exercise "is extremely important to the psychological and physical well-being of inmates." (3) The prisoner raised an arguable retaliation claim when he alleged a corrections department official told him if he did not stop complaining he would be transferred to long-term administrative segregation, he did not stop protesting and he was subsequently transferred as promised. (4) It was arguable the denial of all opportunity for "Christian fellowship" while in segregation was an unreasonable constraint on the prisoner's sincerely held beliefs. (5) The prisoner sufficiently alleged a deprivation of legal access claim where he alleged he had no access to a library or jailhouse lawyers and that denial prevented him from filing the claims in this case (?). On the other hand, due process was not implicated by the denial of good time credits that were within the discretion of the prison to award.

Evidentiary, Sufficiency and Jury Selection Challenges to Drug Conviction Rejected

U.S. v. Green, 2006 WL 205374 (1/27/06) - The d.ct. did not abuse its discretion in denying a mistrial where prosecution witness testified he received information the defendant was selling cocaine and prosecutor asked a question about rap artists' involvement in drug dealing and the defendant was involved in the music business. At most the incidents had a minuscule effect on the verdict, given that the evidence the defendant distributed drugs was strong, and the court gave curative and limiting instructions. The 10th pointed out a statutory challenge to jury selection procedures must be made within 7 days of defense counsel's appointment under the Jury Selection and Service Act, 28 U.S.C. § 1867. The 10th noted the conflicting circuit law as to whether a defendant's Sixth Amendment challenge to such procedures is similarly limited, but did not resolve the question. Instead, the 10th held the defendant's right to a jury pool comprised of a fair cross-section of the community was not violated because the defendant had not shown the jury selection procedures excluded a "distinctive" group. The district court used voter lists for all parts of the state and, in addition, driver's licenses for Tulsa County, the most urban county in the state. The group of rural non-voters did not have a common thread in attitude or common experience. Neither the fact of not voting or geographic location can establish a cognizable group. As everyone knows, jury instructions in the disjunctive are okay, even though the indictment charged in the conjunctive. The government presented sufficient evidence the defendant knew the sawed-off nature of the shotgun because the shotgun was found in arm's reach of the attic stairs, it was not dusty, (unlike other items in the attic), and an ATF agent testified anyone looking quickly at the gun would notice it was short.

Court Clarifies that DP Counsel Can Receive Federal Compensation for Work at State Clemency Hearings

Hain v. Mullin, -- F.3d --, 2006 WL 158892 (10th Cir. 1/23/06) - Counsel appointed to represent state death row inmates in federal habeas proceedings are authorized by 21 U.S.C. § 848(q)(8), which provides that "each attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings, including . . . proceedings for executive or other clemency as may be available to the defendant," to represent their clients in state clemency proceedings and to be federally compensated for it. To the government's argument that it is absurd to think Congress meant to fund representation at state clemency proceedings, the COA says, "[i]t is entirely plausible that Congress did not want condemned men and women to be abandoned by their counsel at the last moment and left to navigate the sometimes labyrinthine clemency process from their jail cells, relying on limited resources and little education in a final attempt at convincing the government to spare their lives." Case came up when private lawyers, whose client was denied clemency and was executed, appealed the district court's denial of compensation. OK FPD filed an amicus brief supporting them.

Drug Convictions Affirmed

U.S. v. Atencio, 2006 WL 148272 (1/20/06) - The 10th strongly suggests that to trigger the CCE life sentence based on quantity of drugs involved [e.g. 30,000 kilograms of marijuana, 150 kilograms of cocaine], the government must prove a particular charged offense, [as opposed to the enterprise as a whole, [as the government claimed], or the series of violations charged], involved the requisite quantity. But, the 10th decided it didn't have to decide that question because the defendants failed to meet the prejudice portion of the plain error test. The evidence established the defendants maintained a residence that was involved in distributing more than a sufficient amount of cocaine and marijuana. Despite the fact that first-hand knowledge testimony did not prove the requisite amounts of drugs, the evidence was sufficient to prove the requisite quantities based on the number of courier trips, drug ledgers found at the residence and expert testimony explaining how much cocaine and marijuana the ledgers were talking about. There was also sufficient evidence that a defendant supervised five or more persons, although she was "primarily in charge of the money." The admission of a videotaped deposition of a government witness, while perhaps a Confrontation Clause error because the government did not make a good faith effort to obtain the witness' live testimony, was harmless beyond a reasonable doubt because there was plenty of quantity evidence without that witness. The d.ct. did not abuse its discretion to deny a mistrial motion due to the prosecutor's reference to the pretrial detention of one of the defendants. The comment was isolated, the d.ct. gave a general instruction that attorneys' comments were not evidence and the prosecutor was responding to defense counsel's argument.

Double jeopardy was violated when the defendants were convicted of both the lesser-included offense of conspiracy and the CCE. They only have to serve one life without parole sentence rather than two. Yippee!!!!

U.S. v. Hebah, 2006 WL 148275 (1/20/06)(unpub'd) - A case to keep in mind when attempting to present an expert on false confessions. The government may very well trot this case before the court, even though it will doubtless be distinguishable. In this case, the 10th held the d.ct. did not abuse its discretion when it refused to allow such an expert to testify. The defense wanted the expert to testify about the defendant's proneness to give false confessions because of his overly compliant nature. The expert was not as well credentialed and was not as thorough as one might hope. The district court also relied on the notion that the studies used by the expert were done in Great Britain and Iceland where Miranda did not apply.

U.S. v. Briseno, 2006 WL 122448 (1/18/06)(unpub'd) - Apprendi, et al, did not change the fact that to increase the maximum sentence the government need only prove the type and quantity of the drug involved. It does not have to prove the defendant knew the type and quantity of drug involved.

District Court's Denial of New Counsel at Sentencing Upheld

UNITED STATES v. LOTT,--- F.3d ----, 2006 WL 23576 (10th Cir. Jan. 5, 2006)

(1) Although evidentiary hearing on whether D should have been appointed substitute counsel for sentencing (D raised issue before sentencing, dist ct denied motion without a hearing and in earlier decision, the 10th reversed and remanded for evidentiary hearing on D’s allegation of complete breakdown between him and his attorney prior to sentencing) was more adversarial than most hearings on substituting counsel, the 10th does not reach issue of whether there is a right to assistance of counsel at such a hearing because if there was any constitutional error, it was harmless BRD. 10th summarizes structural 6A error cases where harmless BRD test does NOT apply. It then analogizes D’s situation here to a preliminary-hearing-with-no-attorney situation that is analyzed under non-structural 6A harmless BRD standard. In this case, “nothing that occurred at [D's] evidentiary hearing contaminated [his] entire criminal proceeding.” The same facts would have come out (D testified at hearing) regardless of whether D had counsel, and the district court would have ruled the same regardless of whether D was represented by counsel.
(2) Applying the Romero test the 10th told it to use, the district court did not abuse its discretion in finding no breakdown between D and his attorney at sentencing stage to warrant appointing substitute counsel: the conflict was not so great to arise to a lack of communication, and D contributed to the conflict (though only slightly).

Prior OK Conviction Qualifies As A Drug Offense Under Guidelines

U.S. v. Smith, --- F.3d ----, 2006 WL 14571(10th Cir. January 04, 2006)

10th upheld district court decision that under the advisory guidelines (and here the 10th demonstrates that if it is a GL sentence, and the appeal is taken totally within GL issues, the GLs get crunched like in the days of old, and the decisional law applies) D had a prior drug related conviction. The more broadly worded GL advisory notes indicate that D’s Oklahoma prior for “acquiring proceeds derived from illegal drug activity” is a drug prior, even though the guideline itself is narrower and does not list anything like “acquiring proceeds” as qualifying. The GL notes say “aiding and abetting”= drug offense, and the Okla. stat. prohibits conduct that looks like aiding and abetting, so 10th looks at the Okla. charging documents and proceedings and D said in Okla. plea that he received the money from selling drugs. So, his prior should be treated as drug related under the GL.

No Speedy Trial Violation; Indictment Reinstated

U.S. v. Batie, --- F.3d ----, 2006 WL 14569 (10th Cir. January 04, 2006)

10th reverses district court’s dismissal of the indictment with prejudice for violations of D’s constitutional rights to a speedy trial and due process. No Speedy Trial violation: 10th goes through 4 part test, unremarkably so in the “length” and “reasons”prongs (attributing delays from 2 screw-up mistrials to government, though unintentional screw-ups. I cannot find the facts that describe the 3d mistrial); “assertion” weighs against D (10th designates this prong as perhaps most important) because he asked for and got a number of continuances (joint continuance NOT held against US under “reasons”) even over US objection (and note the word-to-the-wise fn. 2–if you anticipate a speedy trial challenge, and you ask for a continuance to secure the expert you want for trial, get any old expert because otherwise you may be diminishing your ST claim, hints the 10th ) ; “prejudice” weighs against D. D released after 3d mistrial granted; D cannot prove up his claim that government witness testimony shifted to his detriment. 10th signals that theoretically this is a decent claim, but again hints at how D should make a record on it with the district court. No Due Process violation: 10th says, contrary to district court, that some government misconduct required to dismiss indictment on DP grounds since standard is “shocks the conscience”. Besides, district court focused not on government misconduct but the weakness of the government’s case to dismiss. Prosecution is the government’s prerogative, even if a weak case. 10th points out that the trial court has a mechanism under Crim. P. R. 29 to dump a poor case (third hint of the day). SO, bad result for this D, but actually a well and honestly reasoned case (op. by McConnell).