Court Must Set Restitution Payment Schedule

U.S. v. Zunie, --- F.3d ----, 2006 WL 1017640 (10th Cir. April 19, 2006).

Jury found Defendant guilty of assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 113(a)(6). 10th says “recklessness” is a culpable mens rea for the assault, which is a general intent crime (following the Model Penal Code definition) and evidence was sufficient (child injured in accident where D was intoxicated, ran a couple of other vehicles off the road before running head-on into vehicle in which child a passenger). Court’s upward departure by 15 levels was reasonable given the injuries to the child and other family members not taken into account by the USSGG, and no Booker error because court stated it would have sentenced him to twice the sentence but for the ten year statutory maximum. Court did not err in imposing $1.8 million in restitution even though Defendant is indigent, but it did err in not imposing a payment schedule that took his indigence into account (court had ordered immediate payment). Remanded on payment schedule issue.

Good-Faith Exception Did Not Apply To Stop of Truck

U.S. v. Herrera, --- F.3d ----, 2006 WL 1017642 (10th Cir. April 19, 2006)

Kansas cop stopped Defendant’s truck for administrative search applicable to commercial vehicles but, because Defendant’s was not a commercial vehicle, the search was improper and violated the Fourth Amendment. Although the vehicle had a hydraulic lift and a paint sign, it did not have a DOT number, and the good faith exception did not apply. Read for discussion of when good faith does and does not apply. Reversed and remanded.

Failure to Object to Sentencing Method Results in Review for Plain Error

U.S. v. Lopez-Flores, --- F.3d ----, 2006 WL 1000810 (10th Cir. April 18, 2006)
Defendant appealed district court’s failure to explain its reasons for imposing the within-guidelines at-the-low-end sentence. (Reentry after deportation/aggravated felony). As mitigation grounds, Defendant raised his lack of information from previous counsel that it was illegal to reenter the US, but now he knew the consequences.

While the 10th reaffirms that reasonableness review encompasses not only the length of the sentence but also the method by which the sentence was arrived at, it now requires an OBJECTION AT SENTENCING to the METHOD employed by the court in order to preserve it for review. (It is likely that a contemporaneous objection to the reasonableness of the length of the sentence is not required, given the 10th’s discussion. PRACTICE TIP: Object to method and length every time the judge does not do what you want). Defendant did not object, so plain error review. 10th says no error under first prong of test. It states: “When the defendant has not raised any substantial contentions concerning non-Guidelines § 3553(a) factors and the district court imposes a sentence within the Guidelines range, our post-Booker precedents do not require the court to explain on the record how the § 3553(a) factors justify the sentence.”

Sentence Below Advisory Guideline Range Held to Be Reasonable

U.S. v. Chavez-Diaz, --- F.3d ----, 2006 WL 1000811(10th Cir. April 18, 2006)

Two primary issues: (1) Review for Reasonableness. Briscoe did something interesting here. The 10th, in what at first glance seems troubling, explicitly converts D’s argument for a mitigated sentence under 3553 into an argument for a downward departure in part, it seems, because D (validly) cited pre-Booker departure cases in support of the factual grounds for the mitigation he asserted. But Briscoe uses this as a jumping off point to blur the distinction, post-Booker, between requests for downward departures and 3553 mitigated variances. This is a good move, actually. However, so as not to overrule language in Kristl and Sierra-Castillo that there is no jurisdiction to review refusals to depart even after Booker, Briscoe emphasizes that because D’s argument was framed in 3553 terms, and not in downward departure terms, it was reviewable. (Result: sentence was reasonable, district court considered the grounds raised by the D, and gave him a lower sentence, but for different reasons. Apparently not wanting to forfeit his right to appeal the aggravated felony status of his prior drug conviction, D pleaded straight up to reentry after deportation. The PSR calculated his adjusted guidelines at level 21 (8 plus 16 for aggravated prior with 3 points off for acceptance), CH II, for a range of 41 to 51 months. The trial court found no grounds for departure, and did not accept D’s argument that his prior conviction should not be assessed at 16 points. However, because it did sentence two other Ds similarly situated who had entered 11(c)(1)(C) pleas, to avoid disparity the judge (Black) sentenced D to a sentence similar to theirs: 30 months (as if level 19, CH I).).

Issue (2): A sentence on a prior conviction is “suspended” only if judicially suspended, and not if administratively suspended. So, state court sentence of six years, with the option for the INS to pick D up and deport him immediately, was not a suspended sentence, even though INS deported him less than a month after sentencing. According to records and transcripts of the state court proceedings, the sentence was a six year sentence, and that it amounted to less was only because the INS decided to pick D up immediately. Therefore, the 16 level increase for aggravated felony applied to D’s guidelines for reentry offense.

This case appears to be good, creative post-Booker sentencing advocacy by the attorney.

Practice Tip: ALWAYS frame your reasons for a lower sentence under Sec. 3553.

Prisoner Mailbox Rule Invoked by After-the-Fact Filing

U.S. v. Moore, 2006 WL 787804 (3/29/06)(unpub'd) - The 10th allows a pro se prisoner to invoke the prisoner mailbox rule by filing the proper declaration of timely mailing after the notice of appeal was filed.

Parking in Front of Suspected Drug House Was Reasonable Suspicion to Detain

U.S. v. Carter, 2006 WL 787807 (3/29/06)(unpub'd) - Officers had reasonable suspicion to detain the defendant in the following circumstances: the defendant was parked in a high crime area in front of a suspected drug house; police had found drugs in the house two weeks before; over the years, police had discovered drugs on people who had come from the house; a CI had purchased drugs from that house once; and a female passenger in the back-seat of the defendant's car went to the front door two or three times, stayed for less than a minute and returned to the car; due to the lighting conditions, the officers could not tell if she had any contact with anyone in the house. The 10th's entire reasoning is as follows: "Without belaboring the point, we agree with the d.ct. that the officers had reasonable suspicion."

It was okay to instruct the jurors they could not consider the lesser included offense instruction unless they unanimously agreed the defendant was not guilty of the greater offense. It didn't matter that the 10th's proposed instruction on the matter allows jurors to consider the lesser offense where the jurors cannot agree on the greater after all reasonable efforts. The 10th's proposed instructions are just suggestions. They're not binding.

Interrupted Possession of Same Gun = Two Separate Charges

U.S. v. Baker, 2006 WL 906122 (4/10/06)(unpub'd) - The 10th notes that ordinarily a defendant cannot be charged with two counts of illegally possessing the same gun because the crime of possession is considered a course of conduct, not an individual act of dominion. But, there is an exception where the defendant is aware his possession is interrupted and then reacquires the weapon. That's what happened in this case where the defendant gave the gun to someone else to commit a bank robbery and then got the gun back.

Within Guidelines Sentence Presumed Reasonable

U.S. v. Marquez-Olivas, 2006 WL 775170 (3/28/06)(unpub'd) - More proof that the mandatory guidelines are alive and well. The 10th rejects a challenge to a within-guideline range sentence as unreasonable while applying the presumption of reasonableness to that sentence. The 10th reasons that the sentence is reasonable because the defendant failed to establish his cultural assimilation circumstances were extraordinary. Did I imagine the explanation in Booker that refusing to go below the guideline range except in extraordinary circumstances established a mandatory system?

Habeas Petition Not Untimely Because State Courts Had Not Ruled on State Appeal -- After 7 Years!

Brown v. Roberts, 2006 WL 936629 (4/12/06) - The 10th overturns a dismissal of a habeas petition with prejudice on statute of limitations grounds because the petitioner's conviction was not yet final. His counsel had filed a notice of appeal in state court and then not done anything else on the appeal for 7 years. Counsel forgot about the case because the case file ended up in the closed files prompting counsel to state: "it would appear we dropped the ball big time!" [exclamation point in the original]. The 10th ruled the petition should be dismissed without prejudice because the petitioner's claims had not been exhausted and the state courts should deal with the appeal.

Findings Required In Appeals Regarding FRE 413, 415

Seeley v. Chase, 2006 WL 925639 (4/11/06) - In a civil rights case against an APD officer who allegedly raped the plaintiff, the 10th remands for Judge Conway to make on the record a reasoned finding that the prejudicial value of the evidence of other sexual assaults by the officer does not substantially outweigh the evidence's probative value. The 10th could not review the d.ct.'s ruling without an explanation by the d.ct. The 10th rejected the officer's argument that two of the prior incidents did not involve attempted contact with the victims' genitalia, a prerequisite for admission under Fed. R. Evid. 415. In one incident the officer asked the victim to have sex with him to get out of a DWI charge and then rubbed her breasts. In the other incident he shined a flashlight on the victim's exposed genitalia. While the 10th ruled with respect to Rule 415, which applies only to civil cases, the 10th explained that the same considerations apply to Rule 413, the rule applicable to criminal cases.

OK to Arrest Plaintiff for Invalid Reason So Long as There was an Unexpressed Valid Reason; Civil Rights Suit Dismissed

Apodaca v. City of Albuquerque, 2006 WL 925637 (4/11/06) - Under Devenpeck v. Alford, 543 U.S. 146, 153 (2004), it was okay to arrest the plaintiff for an invalid reason as long as there was probable cause to arrest her for some other reason unexpressed by the arresting officer. The plaintiff was a passenger in her car driven by her former boyfriend when the boyfriend took the officers on a high speed chase. The officer arrested the plaintiff for violating a restraining order she had obtained against her boyfriend. The order was not mutual and so could not be enforced against her. Nonetheless, the city contended she could have been arrested for aiding and abetting, among other things, her ex-boyfriend's driving without insurance because she knowingly permitted the operation of an uninsured car. Because the plaintiff failed to contend the city did not have probable cause to arrest her for non-restraining order offenses, she lost. The 10th said: "This is not to say we are totally comfortable with the contention there was probable cause to arrest the plaintiff as an accessory or aider or abettor."

Even Momentary Detention Without Reasonable Suspicion Violates 4th Amendment

U.S. v. Lopez, 2006 WL 925619 (4/11/06) - The 10th upholds the granting of a suppression motion. The defendant was seized when the officer held the defendant's license to make a warrants check because: (1) the officer kept the license longer than necessary to confirm the defendant's identity [the address on the license coincided with the registration address of the car the defendant was standing by]; and (2) the officer instructed the defendant to remain by the defendant's car while he went to the patrol car to run a warrants check. Because the government conceded no reasonable suspicion supported the seizure, the seizure was unlawful and thus rendered suppressible the results of the officer's discovery of a warrant for the defendant's arrest and the subsequent discovery of crack cocaine and a gun. The 10th stressed detention without reasonable suspicion even for a moment violates the Fourth Amendment. The 10th also pointed out that the question whether a seizure has occurred must be evaluated from the suspect's perspective, not the officer's.

Leap Year Saves Habeas Petition

Pratt v. Mullin, 2006 WL 895501 (4/7/06)(unpub'd) - Petition was not time-barred because the time was tolled during a leap year and the d.ct. had incorrectly failed to count February 29 as an extra day that tolled the running of the statute of limitations.

Failure to File Appeal IAC Per Se

U.S. v. Palermo, 2006 WL 895493 (4/7/06)(unpub'd) - The 10th remanded a 2255 motion for an evidentiary hearing. The movant asserted he asked his attorney to file an appeal and the attorney did not do so. The d.ct. was wrong to find that claim unbelievable based on the factors noted by the S.Ct. in Roe v. Flores-Ortega, 528 U.S. 470 (2000). Those factors are only relevant when the claim is the attorney didn't consult with the defendant about whether to appeal. When the defendant wants an appeal and the attorney doesn't appeal, the attorney has been ineffective and the defendant is entitled to relief, period.

Troubling Stop Results in Consensual Search

U.S. v. Flores-Ocampo, 2006 WL 856220 (4/4/06)(unpub'd) - Troubling stop that was not challenged due to the bad pretext law. Kansas officer was looking for new, rented and out-of-state vehicles on I-35. The officer saw a young Hispanic in a "nice-looking" car with an Indiana license plate. He followed the car for three miles. He stopped the car immediately after the car crossed the white fog line once. The rest was history. The inevitable consent to search the car and move it to the police station was knowing and voluntary, despite the officer's horrible Spanish ("We have muchos drogas on highway. Any muchos drogas en su carro?"), and the defendant's limited English comprehension.

Guideline Sentence Held To Be Reasonable

U.S. v. Salome-Gonzalez, 2006 WL 895492 (4/7/06)(unpub'd) - A bad sign for any challenge to a d.ct.'s excessive deference to the guidelines. The 10th avoided addressing whether the judge was right to refuse to sentence outside the guideline range absent unusual circumstances. Instead, the 10th just held the sentence in the instant case was reasonable. "Sentencing must be an individual endeavor. Regardless of the district court's enthusiasm for the Guidelines, sound reasons were apparent for the sentence imposed, including the need to avoid disparities and the seriousness of the drug crime as reflected in the quantity involved." Importantly, the 10th held the Kristl presumption of reasonableness, although an appellate standard, "informs what role the guidelines have in a district court's sentencing procedure."

Sentence Reversed Because Guidelines Treated as Mandatory

U.S. v. Burns, 2006 WL 895233 (4/6/06)(unpub'd) - A reversal of a sentence imposed after Blakely and before Booker. The d.ct. clearly treated the guidelines as mandatory in violation of Booker. The government could not prove the error harmless in light of the court's imposition of a sentence at the bottom end of the guideline range.

Contempt Order for Late Arrival Reversed

In re Contempt Order, 2006 WL 833131 (3/31/06) - Good news for anyone planning on arriving late for a hearing. The 10th held the magistrate judge abused her/his discretion when s/he issued a summary criminal contempt order against a prosecutor who arrived 5 minutes late for a hearing. The contempt (the prosecutor's absence) did not occur in the judge's presence, there was no evidence the prosecutor knew of the judge's standing policy of a $ 50 fine for anyone who is late, there was no evidence of a series of events suggesting conscious disregard of the court's procedures, there was no evidence the lateness obstructed the administration of justice, since the prosecutor was ready to proceed when it was his turn to speak, and the judge never asked why the prosecutor was late.

Ostrich Instruction Approved

U.S. v. Baz, 2006 WL 895487 (4/6/06) - The d.ct. did not abuse its discretion by submitting a deliberate ignorance instruction under the following circumstances: the defendant testified he knew very little about his co-defendant, yet he agreed to transport boxes for the co-defendant in a plane across the country; the boxes, (which contained marijuana), were not labeled in any way to indicate they contained computer equipment, as the co-defendant told the defendant they did; the defendant had no documents referring to the co-defendant or the cargo; the defendant never asked the co-defendant why the co-defendant took a commercial plane to the drop-off location, rather than travel with him in the private plane; the defendant claimed he never inspected the boxes; and the defendant appeared nervous during the police search of the plane and gave conflicting statements.