Thursday, December 21, 2006

Stipulation Waives Jury Trial on Element of Offense

U.S. v. Smith. --- F.3d ----, 2006 WL 3735498 (10th Cir. Dec. 20, 2006)

By stipulating that the guns with which he was charged were firearms within the meaning of the statute, Defendant waived his right to a jury trial on the element. Failure of government to read Defendant’s stipulation to the jury was meaningless–the stipulation was not evidence–and the government was free to inform the jury of the stipulation via the jury instructions, which it did. Besides, there was plenty of evidence at trial from which the jury could conclude the guns were firearms within the meaning of the statute.

COAs for 2255 Petitioners Denied in Two Cases

U.S. v. Bolden, --- F.3d ----, 2006 WL 3735557 (10th Cir. Dec. 20, 2006)

10th denies a Certificate of Appealability (COA) in pro se §2255 petition because it agrees (without ANY discussion) with the district court determination that he received effective assistance of counsel. The 10th also admonished/reminded P that he cannot preserve issues for panel or cert review by raising them for the first time in a §2255 petition, unless “he can show cause excusing his procedural default and actual prejudice resulting from the errors of which he complains, or can show that a fundamental miscarriage of justice will occur if his claim is not addressed.”

U.S. v. Valencia, --- F.3d ----, 2006 WL 3735550 (10th Cir. Dec. 20, 2006)

10th again denies COA in pro se §2255 petition, this time because it was filed too late and P did not demonstrate that any exceptions applied.

Title VII Suit May Be Useful in Making Race-Based, Cocaine Disparity Arguments

McGowan v. City of Eufala, --- F.3d ----, 2006 WL 3720238 (10th Cir. Dec. 19, 2006)

Title VII suit for retaliation brought by employee who claimed she was disciplined in retaliation for her support of a racial discrimination suit brought by a co-worker.
This opinion may have application in race based challenges (such as to crack and powder cocaine disparities).

The prima facie case the employee needed to make was to show (1) she engaged in protected opposition to discrimination; (2) a reasonable employee would have found the challenged action materially adverse; and (3) a causal connection exists between the protected activity and the materially adverse action. Once she established a prima facie case, the burden shifted to the employer to articulate a legitimate nondiscriminatory reason for the adverse action. If the employer did so, the burden shifted back to the employee to show that the employer's reasons were pretextual.

Tenth Abstains from Exercising Jurisdiction in Family Court Case

Chapman v. Oklahoma, --- F.3d ----, 2006 WL 3720258 (10th Cir. Dec. 19, 2006)

Inmate brought suit for himself and other inmates against Oklahoma’s family court system for constitutional violations arising out of its adjudications on non-custodial parent issues. 10th holds that Rooker-Feldman doctrine barring federal jurisdiction was not applicable in this case because the Plaintiff filed his suit before expiration of his state appeals process (he filed in OK state courts too), but Younger abstention doctrine applies. The 3 Younger abstention factors were present (ongoing state proceeding, important state interests, state is an adequate forum), and abstention from fed jurisdiction was therefore mandatory. Remanded for dismissal without prejudice.

Thursday, December 14, 2006

Challenge to Place of Confinement Must Be Brought Under Bivens

U.S. v. Garcia, --- F.3d ----, 2006 WL 3617652 (10th Cir. December 13, 2006)

A legal motion to change place of confinement is properly construed as a challenge to the conditions of confinement and must be brought as a civil Bivens claim, and not as a motion filed as part of the criminal case which led to the confinement.

DWI Held to be a Qualifying ACCA Prior

U.S. v. Begay, --- F.3d ----, 2006 WL 3598297 (10th Cir. December 12, 2006)

The 10th upheld the district court’s determination that felony driving while intoxicated is a violent felony under the Armed Career Criminal Act (ACCA). Defendant pleaded guilty to felon in possession of a firearm. He had 12 DWI convictions, three of which were felonies under New Mexico law. The Tenth held that DWI is a violent felony under the ‘otherwise involves conduct that presents serious potential risk” provision in ACCA, § 924(e)(2)(B)(ii). To get the full flavor of the reasoning, read the opinion and McConnell’s compelling dissent.

The district court did err in regarding itself bound by the advisory guideline sentence if it was a reasonable sentence (the court imposed the advisory guideline sentence, which was 8 months longer than the mandatory ACCA 15 years, which was the sentence urged by the Defendant in the alternative). The 10th reminds us that there can be a range of reasonable sentences both within and outside of the guidelines. Moreover, the Tenth added a glitch on to the notice-at-sentencing law: the Defendant did not have any notice that the court would interpret Booker in so novel a fashion and therefore, was excused from not objecting at the time of sentencing.

Tenth Affirms that Buie Sweep Must Be Incident to Arrest, But Nonetheless Upholds Denial of Suppression Motion

U.S. v. Torres-Castro,--- F.3d ----, 2006 WL 3598365 (10th Cir. December 12, 2006)

Despite the ultimate non-defendant-friendly result, the defense held the Tenth, for the time being, to requiring that a Buie sweep be incident to an arrest.

During a knock and talk (police were investigating a report by Defendant’s under-aged girlfriend that he had beaten her and had a gun that he would use if anyone tried to take her away from him), officers entered Defendant’s home, where others were present, conducted a sweep, found incriminating bullets during the sweep and after confronting Defendant with the bullets, got him to tell them where his gun was hidden. They then arrested him. Defendant moved to suppress the evidence, and the district court denied the motion.

The 10th held, first, that absent an en banc decision to the contrary, they could not reverse 10th precedent requiring Maryland v. Buie protective sweeps to be incident to arrest, thus leaving the 10th in the minority among circuits who have decided the issue. The sweep in this case, therefore, was in violation of the 4th amendment. The 10th stated, however, that protective sweeps can precede the arrest so long as they are incident to the arrest (as in auto searches, they said, which feeds my paranoia that courts will turn homes into cars in spite of no wheels) but stated it did not need to determine whether this sweep was incident to the arrest since it was denying D’s appeal on other grounds.

In a pretty fact bound opinion, the 10th held that Defendant, who claimed his consent was fruit of the 4th Amendment violation, did not show a factual nexus between the illegal sweep and discovery of the gun. There was a nexus between the sweep and the discovery of the bullets, but they would have been inevitably discovered and not subject to suppression. (Herein lies some of the disingenuity of the opinion). Therefore, police had an independent reason, not discovery of the bullets, to ask Defendant about the shotgun–the reason was the reports from the under-aged girlfriend. (And the bullets would have been inevitably discovered during the search for the shotgun). (Police may have had reason to ask about the gun but, sans confrontation with the bullets, Defendant had no reason to answer).

Thursday, December 07, 2006

Upward Variance OK'd by Tenth

U.S. v. Shaw, --- F.3d ----, 2006 WL 3505339 (10th Cir. December 06, 2006)

The district court’s 105 month sentence for D’s bank robbery conviction, which was an upward variant from guidelines of 57-71 months, was reasonable. The co-D, who was sentenced earlier, received a 105 month sentence–his guidelines were higher because he had a higher criminal history.

In a close-is-good-enough analysis, the 10th upheld the district court’s increase based on under-representation of D’s CH. The co-D’s CH was high because he picked up points for committing the robbery while still on supervision. D had been released from supervision 10 days before the robbery. The district court said their criminal background was the same–both had promptly reentered criminal activity. Moreover, D was more culpable because he punched the bank manager in the face, knocking out his tooth. The co-D got hit with the bodily injury enhancement as an accessory, but D was more culpable because he was the one who committed the assault.

Gov't Didn't Violate Bargain by Asking for Enhancements

U.S. v. Young, 2006 WL 3411450 (11/28/06)(unpub'd) - An appeal waiver does not preclude an argument on appeal that the government breached the plea agreement. However, in this case, the government did not violate its promise not to seek an upward departure when it argued for enhancements. Departures and enhancements are different things, even if the defendant contends he didn't know the difference.

Tenth Holds No PC Supported Package Search, But There Was Just Enough to Justify Good Faith Reliance on Warrant

U.S. v. Reed, 2006 WL 3441532 (11/30/06)(unpub'd) - There was no probable cause to issue a warrant to search a package under the following circumstances:the package was sent priority overnight, person to person, paid for in cash, the airbill was handwritten, (which only happens 3 or 4 percent of the time) and it came for California, a drug source state; the officer had previously intercepted a package with similar characteristics and found counterfeit credit cards; a drug dog did not alert on that package or on the one in this case; the recipient of the package was a known career criminal, including for forgery and fraud; packages with the same courier characteristics had contained contraband; and based on the officer's experience he believed the package contained contraband. The characteristics of the package were not unusual enough or incriminating enough to indicate criminality. The fact that the defendant was a career criminal did not mean every package sent to him contained contraband, especially since there was no indication his prior offenses included using the mails. However, the officer acted in good faith reliance on the warrant, although "this case stretches Leon's good faith exception to its elastic limit ." "But, a minimal (barely)[the 10th's parenthetical] nexus existed between the place searched, Reed and the suspected criminal activity."

New Federal, 10th Circuit Rules of Appellate Procedure Effective Dec. 1

The latest version of the Federal Rules of Appellate Procedure and the Tenth Circuit's local rules went into effect on December 1, 2006. The amended rules are available for downloading here.

Wednesday, December 06, 2006

Simple Possession Not An Aggravated Felony, Supremes Say

The Supreme Court in Lopez v. Gonzales, Docket No. 05-547 (S.Ct. Dec. 5, 2006), held that a conviction for simple possession of a controlled substance did not qualify as an aggravated felony under the Immigration and Naturalization Act, even if punishable as a felony under state law. The Court construed the statute, 8 U.S.C. 1101(a)(43)(B), as requiring the predicate drug conviction to be punishable as a felony under the federal Controlled Substances Act. Since the CSA punishes simple possession as a misdemeanor, such a conviction is not a "felony punishable under the [CSA]" and hence not a "drug trafficking crime". Additionally, the Court noted that construing "trafficking" as including simple possession created "incoherence wiht any commonsense conception of 'illicit trafficking,' the term ultimately being defined." "Trafficking" usually means some sort of commercial dealing, according to the Court, and commerce had not part in the Petitioner's prior conviction for helping someone else to possess drugs. Thomas dissented.

For additional discussion, Steve Sady has an excellent entry in the Ninth Circuit Blog, located here.