Consecutive Supervised Release Sentences "Reasoned and Reasonable"

U.S. v. Cordova, --- F.3d ----, 2006 WL 2411451 (10th Cir. August 22, 2006)

D had a rich and recent history of a series of relatively small caliber federal felony drug convictions followed by violations of supervised releases that had him in and out and in and out of prison. Not the favorite type of just-can’t-adjust returnee in front of the judge, who maxed him out on his latest SR violation, running sentences on two violations consecutively.

D stipulated to the facts supporting the violation, then on appeal argued for the first time that the statute and rule that allows a judge to find facts supporting a violation of supervised release, violated his 6th A right to a jury trial and proof BRD, citing Apprendi. The 10th rejected D’s argument (under a plain error standard), adopting the reasoning of the 2d Cir. that procedural rights (such as to a jury trial and proof BRD) are among those liberty interests forfeited in the context of supervised release. Covering all bases, the 10th observes that after Booker, if a D stipulates to underlying facts supporting a conviction, there is no 6th A right to a jury trial and moreover, Booker does not apply to revocations, and imposition and revocation of SR is left to the discretion of the court.

The maximum and consecutive sentence was reasonable. The 10th said it was dodging setting what the standard of review is after Booker for a court setting consecutive sentences for two violations, but then said the court did not abuse its discretion and that the sentence was reasoned and reasonable. The court indicated on the record that it was very familiar with D and his record and the repeated opportunities it had given him.

Mail Fraud Defendant's Sentence Affirmed Despite Court's Failure to Mention 3553(a) Factors

U.S. v. Paredes, --- F.3d ----, 2006 WL 2411439 (10th Cir. August 22, 2006)

Facts supported application of guideline enhancement under Sec. 2B1.1(b)(9)(A) in fraud case for “relocation” of the scheme in order to avoid detection by law enforcement: witness said scheme was relocated because Utah “became too hot”. Moreover, D did not need to physically relocate himself, he only needed to participate in the re-locating of the scheme, for the enhancement to apply.

Citing Lopez-Flores and Sanchez-Juarez in the same paragraph, the 10th said that although the district court did not specifically mention 3553(a) factors, neither did the D raise non-frivolous factors for a below-guidelines sentence “that would have triggered the district court's obligation to address the factors on the record.” Rather than reviewing this under a plain error standard, however, the 10th found that the D did not overcome the presumption of reasonableness.(Is Hartz’s Lopez-Florez requirement that an objection be made at sentencing to the district court’s methodology still required? Good practice: YES, object, but also raise non-frivolous factors).

The district court’s wishy washy language regarding what its discretion was in sentencing under the guidelines did not indicate constitutional Booker error (treating the GL as mandatory). The district court also in its language indicated that it had discretion and, after all, the 10th will “generally assume that the district court knows the law and applies it correctly.” HA!

Booker Remand for Reentry Defendant Given 16-Level COV Enhancement for Colo. 3rd-Degree Misd.

U.S. v. Hernandez-Garduno, -- F.3d --, 2006 WL 2391401 (10th Cir. 8/21/06) - The three defendants were convicted of illegal reentry. The government appealed the district court's refusal to apply the 16-level crime of violence enhancement to two defendants with prior Colorado misdemeanor third-degree assault convictions. A third defendant in the same boat did receive the 16-level enhancement and the gov't conceded Booker error with respect to his sentence, which the district court characterized as "terribly unfair." First of all, deportation does not render gov't appeals moot. The COA rejects the argument that the Colorado priors had to meet the definition of an aggravated felony to be considered felony crimes of violence. Under the GLs, the definition of "felony" for purposes of the 16-level crime of violence enhancement is any offense punishable by more than one year of imprisonment and Colorado law provides for a term of imprisonment of up to 18 months for third-degree assault. All three cases are remanded for resentencing. The district court is instructed to review court documents pertaining to the prior convictions of the two defendants who did not get the enhancements to see whether they fall within the crime of violence definition.

IJ Should Not Have Rejected Asylum Claim Filed by An Iraqi

Daoud v. Gonzales, 2006 WL 2349232 (8/15/06)(unpub'd) - The 10th overturns the Immigration Judge's ("IJ") refusal to grant asylum to an Iraqi who has spent 22 years in the United States. The 10th called into question the IJ's claim that "things are hopefully going to get better" in Iraq because "the American military is there." The 10th pointed to statements by then Secretary of State Powell that "the insurgency in Iraq is getting worse and the U.S. occupation there has increased anti-American sentiment" and evidence in the record suggesting that at least in Baghdad the military "is not in control of the security and human rights situation."

Insufficient Factual Basis to Support Travel Act Violation

U.S. v. Bergman, 2006 WL 2338069 (8/14/06)(unpub'd) - The appellate attorney filed an Anders brief. The client raised her own issue. The government eventually concedes the defendant is right. There was an insufficient factual basis to support a Travel Act violation guilty plea where the defendant paid an undercover government agent $ 30,000 to kill her ex-husband. The facts did not establish the money constituted "proceeds of any unlawful activity" (see 18 U.S.C. §§ 1952(a)(1), 1956) or "criminally derived property" (see 18 U.S.C. § 1957(a)).

Habeas Petition Reinstated

Wilson v. State of Oklahoma, 2006 WL 2374341 (8/17/06)(unpub'd) - A reversal of a denial of a habeas petition on procedural grounds. The 10th holds the d.ct. was wrong to find the petitioner had procedurally defaulted his ineffective assistance of appellate counsel claim based on the neglect of trial counsel to file an interlocutory appeal of his certification as an adult. The omission of one counsel cannot be excused on the basis of another counsel's ineffectiveness.

Tenth Observes that Failing to Understand How Guidelines Work Is IAC

U.S. v. Contreras-Castellano, 2006 WL 2338082 (8/14/06)(unpub'd) - While rejecting the defendant's ineffective assistance claim on prejudice grounds, the 10th makes a helpful point that, although failing to accurately predict a client's sentence is not deficient performance, failing to understand the mechanics of the guidelines is.

Continued Detention At Traffic Stop OK Where Defendant Nervous, Etc.

U.S. v. Wisniewski, 2006 WL (8/16/06)(unpub'd) - Another very thin reasonable suspicion case. It was okay to continue to detain the defendant after the purposes of the traffic stop were resolved where the defendant was extremely nervous, the truck was registered to a third party whose name the defendant could not pronounce, there was a strong odor of air freshener and most convincingly, the defendant claimed to be coming from Las Vegas where he was looking for construction work, but his hands were not those of a construction worker (they were smooth, not rough and calloused)(maybe he used very effective hand cream or he just wasn't a very hard-working construction worker). The 10th refused to resolve the factual question whether the detaining officer could actually see the defendant's stomach churning, as the officer claimed.

Continued Detention At Traffic Stop OK Where Defendant Nervous, Etc.

U.S. v. Wisniewski, 2006 WL (8/16/06)(unpub'd) - Another very thin reasonable suspicion case. It was okay to continue to detain the defendant after the purposes of the traffic stop were resolved where the defendant was extremely nervous, the truck was registered to a third party whose name the defendant could not pronounce, there was a strong odor of air freshener and most convincingly, the defendant claimed to be coming from Las Vegas where he was looking for construction work, but his hands were not those of a construction worker (they were smooth, not rough and calloused)(maybe he used very effective hand cream or he just wasn't a very hard-working construction worker). The 10th refused to resolve the factual question whether the detaining officer could actually see the defendant's stomach churning, as the officer claimed.

Identity Evidence Held to be Suppressible in a Reentry Case

UNITED STATES of America, Plaintiff-Appellant, v. Gustavo OLIVARES-RANGEL, 2006 WL 2328740 (10th Cir. Aug. 11, 2006): In a split decision, Judges Ebel and Lucero held, in a criminal prosecution for illegally reentering the United States after deportation, that statements of identity could be suppressed if seized after a Fourth Amendment violation. It rejected the government’s contention that the Supreme Court's decision in Immigration and Naturalization Service v. Lopez-Mendoza, 468 U.S. 1032 (1984), forecloses the possibility of suppressing any evidence of identity in a criminal case, stating “We conclude that Lopez-Mendoza does not prevent the suppression of all identity-related evidence. Rather, Lopez-Mendoza merely reiterates the long-standing rule that a defendant may not challenge a court's jurisdiction over him or her based on an illegal arrest. Ultimately, we conclude that evidence of Defendant's oral statements were correctly suppressed. However, we remand for further factfinding on the suppression of Defendant's fingerprints and his INS file.”

Ebel wrote the decision, and was joined by Lucero, and largely affirmed Judge Brack's decision suppressing the defendant's statements. The majority agrees that Lopez-Mendoza does not forbid suppression of "identity evidence." The majority had no problem affirming suppression of Defendant's statements. However, Ebel and Lucero balked at the idea of suppressing the fingerprints and remanded for further proceedings.To my amazement, I now know that police officers take fingerprints in part to protect individual rights. Indeed, "[t]he government always has the right, and indeed the obligation, to know who it is they hold in custody regardless of whether the arrest is later determined to be illegal." Lopez-Mendoza "does not automatically exempt all fingerprint evidence from the application of the Wong Sun doctrine, application of that rule indicates that fingerprints taken as part of a routine booking procedure following an arrest later determined to be illegal ordinarily will not be poisoned fruit of an illegal arrest and should not be suppressed." Indeed, unlike every other Fourth Amendment doctrine, the officers' subjective purpose and motive in making the arrest is dispositive; if the purpose of the arrest is to obtain the fingerprints, they are tainted fruits; the fingerprints are obtained "routinely" and apparently are not unlawful fruits no matter how unlawful the arrest. To put a further confusing gloss on this bizarre contortion of the exclusionary rule, the panel makes clear that inquiry is to "determine the original purpose for arresting and later fingerprinting Defendant; that is, was Defendant fingerprinted merely as part of a routine booking or processing procedure or was the illegal arrest in part for the purpose of obtaining unauthorized fingerprints so Defendant could be connected to additional alleged illegal activity." (I guess linking Defendant to his criminal history and A-file for the purpose of enhancing his sentence doesn't count.) The panel finds the record insufficiently developed on this point, so remands for further proceedings. Fortunately, the panel does agree that if the fingerprints are found to be suppressible, then the A-file should be as well. Ebel and Lucero don't buy the bogus "Defendant doesn't have standing to contest use of the A-file" argument that other circuits, like the Fifth, have fallen for.

Baldock dissented. He would have found that the arrest was lawful because Agent Armendariz (the one Brack specifically found to be not credible) claimed to recognized Defendant as an illegal alien as soon as Armendariz laid eyes upon him. As the majority points out, however, the government waived this and many other arguments.

Mail Fraud Conviction Supported In Part By Journal Entries

U.S. v. Schuler, -- F.3d --, 2006 WL 2338080 (10th Cir. 8/14/06) - there was sufficient evidence to support convictions on 24 counts of mail fraud. Ms. Schuler solicited customers with bad credit, promising credit cards upon payment of $39.95. Instead, they got a list of banks to contact. There was ample evidence of a scheme to defraud, intent to defraud (including the defendant's journal and diaries, in which she admitted failing to provide the promised "guaranteed approval" for credit cards), and use of the mails. Inflammatory surplusage in the indictment did not amount to plain error. Use of summary exhibits was proper, given the volume of the underlying financial records that were admitted into evidence. It was not improper for the gov't to question Ms. Schuler about extrinsic evidence re: a false tax return and a false social security # given in a credit card application. There was no confrontation error in phone testimony by a witness whose social security # was used by Ms. Schuler because she took an oath, was subject to cross, and her testimony was uncontroverted and subject to a finding of "absolute proof" by the district court.

Drug Conviction Upheld

U.S. v. Zhang, -- F.3d --, 2006 WL 2338074 (10th Cir. 8/14/06) - there was sufficient evidence that Ms. Zhang knew about the drugs in the car she was driving, including speeding off while officer was searching a box after she consented, nervousness, and her co-D's testimony. District court adequately qualified expert who translated Ms. Zhang's recorded phone calls from Leavenworth, in which she spoke Mandarin.

Several 10th Cir. cases, only the first one of which is published:

U.S. v. McCulloch, 2006 WL 2294846 (8/10/06) - Officers may search a home without a warrant where they have probable cause to believe a burglary is in progress. The officers had such probable cause ("PC") here where an alarm company had alerted the police, the officers were confronted at the home by 2 people who were unusually dirty, had no form of personal identification, were admittedly not the homeowners and were acting nervously. That PC did not dissipate when the officer observed the alarm was still indicating a disturbance (even though the officer could have been the one who set the alarm off again), and the phone conversation with the claimed owner did not assuage the officers' suspicion, since she refused to say the two suspects had authority to be inside the residence. Leaving the scene to get a warrant would have allowed the suspects to continue the burglary and/or flee. [What about a telephonic warrant?]

In resolving a motion for a new trial based on new evidence, the trial court is expected to make its own credibility judgments when deciding whether the new evidence would probably produce an acquittal. In this case, the d.ct. properly denied the motion on the grounds that it disbelieved the inmates who testified the government's inmate witnesses conspired to testify falsely.

There was sufficient evidence the defendant participated in a conspiracy to use her residence for drug-trafficking, despite the lack of evidence of her direct participation, where firearms, large quantities of cash and cocaine and marijuana, were found in parts of her house that she probably used (e.g. the kitchen and the closet where she kept her clothing); a number of witnesses testified about drug transactions with the co-defendant, (her significant other), at her house and the defendant received money on a regular basis from the co-defendant. The jury could also logically convict the defendant of maintaining a residence and acquit her of possessing drugs on the date of the search of her residence. The jury could buy her testimony that she was staying with friends at that time, but still conclude she made the residence available to the co-defendant for drug-trafficking purposes. There was also sufficient evidence to convict the co-defendant of possession of the drugs found in the house where he had a long-term intimate relationship with the defendant and stayed at the house on a regular basis, his personal items (clothes, etc.) were found in the house and witnesses testified to his distribution of drugs to them. There was sufficient evidence the co-defendant possessed firearms in furtherance of drug trafficking where the guns were loaded, easily accessible, just down the hallway from the drug transactions in the kitchen and not apparently used for sporting purposes. The indictment was not multiplicitous because conspiracy and maintaining convictions were separate offenses.

The 10th also took a stand against consideration of the unfair cocaine powder vs. crack cocaine sentencing disparity. The 10th expressed agreement with those cases that refused to find a guideline sentence unreasonable for a refusal to deviate from the guideline range based on that disparity (an issue presented in this case) and those two circuits that have held it was improper to go below the range due to that disparity (an issue not presented in this case).

U.S. v. Serna-Valdiviezo, 2006 WL 2328745 (8/11/06)(unpub'd) - Victory by Shari and Dennis applying Terry's and Joe's victory in Sanchez-Juarez, 446 F.3d 1109. The defendant presented a non-frivolous argument for a below-range sentence (prior alien smuggling conviction wasn't so serious) and therefore the d.ct. erred when it didn't explicitly consider the § 3553(a) factors.

U.S. v. Lopez-Camas, 2006 WL 2171491 (8/3/06)(unpub'd) - The 10th explains why it applied a reasonableness review regarding the sentencing methodology in Sanchez-Juarez, but a plain error review of the sentencing methodology in Lopez-Flores, 444 F.3d 1218, even though in both cases the defendants did not object to the methodology. In this case, the defendant requested a reduction in the criminal history category based on over-representation. Because the defendant did not mention in the d.ct. reasonableness or the § 3553(a) factors, plain error review applied to the question whether the d.ct. inadequately explained its reasons for its sentence.

U.S. v. Terrell, 2006 WL 2328747 (8/11/06)(unpub'd) - A frightening decision on the right to counsel. An officer on a federal DEA task force did not violate the defendant's Sixth Amendment right to counsel where the defendant was appointed counsel on a state charge of possessing cocaine because the officer asked questions about a conspiracy to possess that cocaine, not just the possession of that cocaine (!!!). The defendant's statements may not be admissible in state court, but his Sixth Amendment rights were not violated in this federal case.

U.S. v. Dallah, 2006 WL 2294848 (8/10/06)(unpub'd) - Another example of the 10th's willingness to go along with upward variances from the guideline range. In this international kidnapping case, it was reasonable to impose the statutory maximum sentence on the ground that the defendant intended to continue to avoid the state child custody order.

U.S. v. Johnson, 2006 WL 2328750 (8/11/06)(unpub'd) - Another such very scary example where the d.ct. imposed 4 consecutive 24 month sentences [96 months total!!!] for violating supervised release conditions.

U.S. v. Henderson, 2006 WL 2171521 (8/3/06)(unpub'd) - The defendant did not have standing to protest a search of an outbuilding where he was staying overnight because he was merely present with the householder's permission, not an overnight houseguest present by invitation [is that clear?].

U.S. v. Christian, 2006 WL 2328749 (8/11/06)(unpub'd) - The officers had probable cause to arrest the defendant for interference with officers because he refused requests to leave an area where the officers were dealing with other people, even though the defendant never stepped between the officers and those people.

U.S. v. Brown, 2006 WL 2259290 (8/8/06)(unpub'd) - The 10th distinguished cases where courts held consents to search to be involuntary where a large number of officers encountered an occupant of a home in the early morning hours. Unlike in those cases, in this case, the consenter was awake at 3:15 a.m.

U.S. v. Thomas, 2006 WL 2171509 (8/3/06)(unpub'd) - The 10th suggests the prosecutor's cross-examination of a defense witness about her not speaking up about the defendant's alibi at his detention hearing that she attended may have been improper under 403, since it wasn't relevant. But, it's harmless.

U.S. v. Nelson, 2006 WL 2259364 (8/8/06)(unpub'd) - The d.ct. abused its discretion in denying the defendant's motion for return of property where the government was retaining property that would not be necessary for any potential resentencing.

Preble v. Estep, 2006 WL 2212686 (8/4/06)(unpub'd) - The 2254 petitioner did not meet the stringent AEDPA standard of review where he was disciplined in prison solely based on information from a confidential informant ("CI") without additional evidence establishing the CI's reliability. The 10th acknowledged that some circuits have held such an occurrence violated due process, but denied relief because the S.Ct. had never so held.

Martinez v. Martinez, 2006 WL 2076792 (7/27/06)(unpub'd) - Footnote in a 1983 case: "It is said that you catch more flies with honey than with vinegar, and Mr. Martinez seems to have taken this saying to heart. Affixed to Exhibit 12 of his federal complaint is the top of a container of grape jelly. Grateful as we are that Mr. Martinez submitted jelly rather than vinegar, we are unswayed by this evidence and consider only the more usual submissions."

Whitehead v. Unknown Agency, 2006 WL 224456 (8/7/06)(unpub'd) - The 10th upholds the d.ct.'s refusal to grant the plaintiff's request for an injunction to stop the voices in his head.

Gov't Letter Sufficient to Invoke Application of Appeal Waiver Provision

U.S. v. Contreras-Ramos, --- F.3d ----, 2006 WL 2277982 (10th Cir. August 09, 2006)

D waived his right to appeal his sentence in his plea agreement to possession with the intent to distribute methamphetamine. D filed a notice of appeal. Counsel filed an Anders brief and moved to withdraw. The government filed no brief, but submitted a letter stating that the appeal was barred by D’s appeal waiver. This letter was a sufficient invocation of the D’s appeal waiver by the government.

AEDPA Statute of Limitations Tolled By State Prisoner's Motion for Modification of Sentence

Howard v. Ulibarri, --- F.3d ----, 2006 WL 2277965 (10th Cir., August 09, 2006)

Petitioner’s motion for modification of his sentence under NM Crim. P. Rule 5-801 was a “post conviction or other collateral review” request that tolled the running of the AEDPA 1 year statute of limitations. Nothing in AEDPA limits state post conviction challenges which toll AEDPA to challenges of convictions, not sentences. Moreover the 10th’s recent decision in Robinson v. Goldberger,443 F3d 718, that the materially same modification-of-sentence procedure in Colorado tolls AEDPA, controls.

No Gov't Breach of Plea Agreement Where Gov't Merely Pointed Out Facts Supporting Enhancement

U.S. v. Rodriguez-Delma,--- F.3d ----, 2006 WL 2277968 (10th Cir., August 09, 2006)

District court enhanced D’s drug sentence by 4 levels for aggravating role, as recommended by the PSR. D and government had a plea agreement that the government would not oppose D’s opposition to application of the enhancement. The government responded, in writing, to D’s pre-sentencing opposition to the enhancement, with facts that showed D’s enhanced role. D did not claim at sentencing that the government thereby breached the plea agreement, only that the enhancement did not apply.

On appeal D claimed both a breach of the agreement and misapplication of the enhancement. The breach claim is NOT waived and can be brought for the first time on appeal. A careful reading of the plea agreement shows it included a term that the government would provide all relevant facts about the D’s criminal activities. The government did not breach the agreement.

On the merits: while a court may not rely on PSR facts under Rule 32, it is required to find facts only if a defendant makes specific allegations of factual inaccuracy, not merely an objection to the ultimate conclusion drawn by the PSR. Also, general objections “untethered to any factual statement in the PSR” are insufficient. D did not specifically contest undisputed facts, and it was not error for the court to rely on the facts in the PSR.

Defendant Not Guilty of Forgery or Money Laundering Where He Signed Own Name to Checks

U.S. v. Hunt, --- F.3d ----, 2006 WL 2280243 (10th Cir., August 09, 2006)

“With great reluctance,” the 10th, in an opinion authored by J. McConnell, vacated the conviction and ordered a judgment of acquittal be entered against a D convicted on 106 counts of forgery and money laundering involving more than $2 million. Why? Because the D used his own name and accurately identified himself and his employer on the checks and therefore did not commit forgery. (Convictions for money laundering were dependant on his being convicted for forgery). While he embezzled, committed fraud, and engaged in “brazen obstruction of justice,” he did not forge securities, the charges the government elected to pursue. Read the opinion for a lengthy and scholarly discussion of forgery at common law, and legislative intent re: the forged security statutes under which D was prosecuted.

Colo. "Misdemeanor" a Felony For Reentry Sentencing Purposes

U.S. v. Cordova-Arevalo, --- F.3d ----, 2006 WL 2259076 (10th Cir. August 08, 2006)

D pleaded guilty to reentry after deportation, 8 U.S.C. § 1326(a)(1),(2). His sentence was enhanced by 16 levels, treating his prior Colorado conviction (third degree assault) as a felony crime of violence. D did not challenge the enhancement; rather, he argued that he should be sentenced under 8 U.S.C. § 1326(a), which caps a sentence at two years incarceration, because (1) CO classified his conviction as a misdemeanor (he received 10 days); (2) 1326 does not define “felony” and because it allows either a state or federal definition it is therefore ambiguous; (3) the state definition should control (and not the guideline definition of felony at 2L1.2) The 10th applies a “broad federal concept” for what is meant by felony, looking to the term in the context of the statute as a whole. The meaning for felony, which is understood by reference to 18 USC 3559(a), defines felonies by reference to the maximum punishment attributable to an offense. (D’s prior CO offense carries a maximum punishment of 18 months though still classified as a misdemeanor.)

4-Year Delay In Deciding Defendant's New Trial Motion Not a Speedy Trial Violation

U.S. v. Yehling, --- F.3d ----, 2006 WL 2259011(10th Cir. August 08, 2006)

District court’s delay of four years in deciding and denying D’s newly discovered evidence new trial motion, during which time D remained out of custody on personal recognizance, did not deprive the district court of jurisdiction and did not violate his speedy trial due process rights (D did not assert the right during the 4 years, and he did not demonstrate prejudice). Evidence was sufficient to support drug conspiracy conviction, and particularly was sufficient to support the “interdependence” element for the conspiracy–the 8 ball D sold was not an isolated small sale but a sample of the larger goods to be sold.

More of the Same with a Roving Border Patrol Stop

U.S. v. Cheromiah, --- F.3d ----, 2006 WL 2147732 (10th Cir. Aug. 02, 2006)

Busted with pot.

Roving Border Patrol agent had reasonable suspicion to stop vehicle because: it was a van and vans are used to transport illegal immigrants; it had temporary Texas plates; it was on Hwy 26 prepared to go north on I-25 and possibly used this well-used route to avoid fixed checkpoints; it was an area frequented by smugglers; the passengers stiffened, avoided eye contact and a back seat passenger bent down when they saw the BP officer. The 10th bats back D’s “but...buts” (eye contact not enough, bending down in the back seat consistent with innocent behavior, temp. tag means nothing) with an accusation that D is trying to divide and analyze singly the totality factors, and by pointing out that on numerous occasions they have found reasonable suspicion on similar showings.

The detention did not exceed the scope of the stop. The purpose was to see if the van carried any illegal immigrants, the BP agent could not see the entire interior so reasonably opened the back door to check when he smelled fabric softener, justifying continued detention on the reasonable suspicion that drugs were present.

Defendant Voluntarily Abandoned Suitcase on Bus

U.S. v. Ojeda-Ramos, -- F.3d --, 2006 WL 2106801 (10th Cir. 7/31/06) - affirmance of denial of motion to suppress 12 pounds of heroin found in suitcase to which dog alerted during bus stopover. Pretending to be a Greyhound employee, one of the officers told the passengers the bus had mechanical problems and ordered them to claim their bags and leave the bus. After Ojeda-Ramos looked at the tag on the bag containing heroin, he was asked if it was his and he denied that it was. The district court correctly decided he had abandoned it voluntarily and not as a result of a Fourth Amendment violation. Ojeda-Ramos was not seized by the officer's order to leave the bus; there was nothing unconstitutional about the ruse by law enforcement officers. It was reasonable to search the abandoned bag without a warrant.

Gov't Breached Plea Bargain By Arguing for Enhancements Suggested by Judge

U.S. v. Scott, -- F.3d --, 2006 WL 2106953 (10th Cir. 7/31/06) - the gov't breached the plea agreement by advocating enhancement factors the district judge suggested sua sponte. The plea agreement spelled out factors relevant to sentencing and it was plainly reasonable for the defendant to conclude that the gov't would not argue for additional sentence enhancements. In the plea agreement, the gov't reserved the right to take other positions if new facts developed; the enhancements in question did not involve new facts.

Mistrial Motion Properly Denied as Untimely; Slightly Below GL Sentence OK

U.S. v. Martinez, --- F.3d ----, 2006 WL 2065066 (10th Cir. July 26, 2006)

10th implicitly accepts that government may have violated Rule 16 discovery in failing to disclose D’s statement to agent #1 (as #1 testified at trial) after arrest, and accepts that report of agent#2 present at the interview did not satisfy obligation. However, trial court did not err in denying mistrial motion as untimely when D failed to object at government’s opening or at the testimony of agent #1, but only moving for a mistrial at the end of the government’s case. Mistrial is a drastic remedy, and the court has other less drastic options to cure a violation of Rule 16 which it should resort to first, but these options were foreclosed by D’s late motion.

Slightly below guidelines sentence imposed pre-Booker but in anticipation of Booker, as both a guidelines sentence but as an alternative advisory sentence as well, reasonable. Although court did not cite all the 3553(a) factors, record shows it entertained all the sentencing arguments.

Various Unpublished Decisions

Burrell v. Armijo, 2006 WL 2045821 (7/24/06)(unpub'd) - This case maybe provides some fodder to challenge tribal court convictions. The 10th refused to apply the collateral estoppel doctrine to a tribal court decision of questionable fairness.

U.S. v. Cunningham, 2006 WL 2089776 (7/28/06)(unpub'd) - A decision that forebodes the treatment of any challenge to the new sex abuse mandatory minima. The 10th held the 15 year mandatory minimum for attempted child exploitation was not cruel and unusual punishment [noting Congress' intent to eliminate the chance for those liberal federal judges to depart downward] or a violation of the separation of powers doctrine [Congress has the power to define criminal punishment without giving the courts any sentencing discretion]. Interestingly, the unlucky defendant had ongoing computer relationships with two different minors, both of whom were actually adult agents involved in two different operations. Are there actually any real minors out there in cyberworld?

U.S. v. Osborne, 2006 WL 2065177 (7/26/06)(unpub'd) - The d. ct. correctly refused to reduce the defendant's offense level for using the firearm "solely for sporting purposes" under USSG § 2K2.1(b)(2), despite the government's stipulation, because the defendant used the firearm in a feigned suicide attempt.

Martinez v. Martinez, 2006 WL 2076792 97/27/06)(unpub'd) - The d.ct. incorrectly dismissed the prisoner's complaint about a guard's assault on him. That the prisoner was properly convicted of assault on one occasion did not preclude a claim that he was an assault victim on another occasion.

Strope v. Sebelius, 2006 WL 2045840 (7/24/06)(unpub'd) - The plaintiff stated a valid constitutional claim when he alleged prisoners on kosher diets were routinely served spoiled food.

Adams v. Neubauer, 2006 WL 2065181 (7/26/06)(unpub'd) - Prisoners are not covered by the Fair Labor Standards Act minimum wage law. Compensation for prison work is a matter of grace, not right.

Tenth Will Not Often Second-Guess Within-Guidelines Sentence

U.S. v. Garcia, 2006 WL 2076799 (7/27/06)(unpub'd) - The defendant was not entitled to a lesser harms departure solely on the grounds that he inadvertently possessed the gun his wife inadvertently left in his truck. The defendant's sentence was reasonable even though the d.ct. did not impose a sentence below the range due to the unusually innocuous circumstances of the defendant's gun possession. The 10th's explanation reveals a lot about the 10th's philosophy in reviewing within-range sentences: "If the d.ct. had credited the defendant's account and rendered a below-range sentence we might well agree the reduction was reasonable. But, Booker was not intended to give appellate courts the freedom to determine sentences in accord with our sense of justice. It was to give district courts the latitude to do justice in an individual case." In other words, it's up to the district courts, not the 10th, to do justice.

Sideyard Not Curtilage Because Utilities Employee Had Access

U.S. v. Tolase-Cousins, 2006 WL 2065060 (7/26/06), amended, 2006 WL 650654 (3/16/06) - The 10th issued a bad suppression, but a good sentencing, decision. Bad news first. It was not clear error for the district court to find that officers did not invade the curtilage of the defendants' home when they entered the sideyard, peeked through heart-shaped holes in a fence and observed marijuana plants growing in the backyard. The sideyard was not curtilage because, although it was right next to the house and melons were planted there, it was only enclosed on three sides, there was a sidewalk in the sideyard leading from the driveway to the backyard and a PNM employee would check the meter that was along the sideyard side of the house on a monthly basis. While the PNM employee was invited and the police officers were not, the employee's access and ability to report any illegal activity that he observed, as happened in this case, indicates the defendants did not take steps to protect the area from observation. Of course, social invitees inside the home could report any illegal activities they saw as well. Do such social invitations obliterate a defendant's Fourth Amendment rights to the privacy of the inside of the home?

On the happy side, the 10th held that the district court improperly counted a criminal history point for a South Carolina conviction where the defendant was not represented by counsel and was given a suspended sentenced of a fine or 30 days in jail. The defendant could challenge the conviction at sentencing, although the criminal history point did not enhance his sentence but instead precluded him from obtaining a safety valve reduction below the mandatory minimum. The defendant had a right to counsel under Alabama v. Shelton, 535 U.S. 654 (2002), which held that a defendant had a right to counsel when a suspended jail sentence was imposed. The 10th did not address the government's argument that Shelton could not apply retroactively to the defendant's pre-Shelton conviction because the government waived the argument by not raising it below.

Here is some information about the decision that would not be apparent to anyone just reading the case on westlaw, as opposed to being involved in the case and seeing the accompanying order. The 10th granted the defendant's petition for rehearing in part and, with the permission of the rest of the 10th, overruled prior 10th precedent and held that curtilage determinations must be reviewed de novo, not for clear error. The 10th relied on the S.Ct.'s decision in Ornelas v. U.S., 517 U.S. 690 (1996), (where the Court held reasonable suspicion and probable cause must be reviewed de novo), which was decided after the prior curtilage precedent. This could be helpful precedent for any issue decided against us below that requires an assessment from an objectively reasonable point of view. As Terry reported, the result was the same as it was under clear error: the sideyard was not curtilage.

Tenth Affirms Assault Conviction for DWI, Upward Sentencing Enhancements

U.S. v. Pettigrew, 2006 WL 2076796 (7/26/06) - (1) The admissibility of an unsolicited inculpatory pre-Miranda warning statement, following a voluntary statements made in violation of Miranda, turns on whether the inculpatory statement was knowingly and voluntarily made. In other words, the "fruit of the poisonous tree" doctrine does not apply to Miranda violations. The inculpatory statement was voluntary even considering the lingering psychological effect of the defendant's first two statements obtained in violation of Miranda.

(2) The d.ct. did not abuse its discretion in allowing the government to parade before the jury several times a family photo of the attractive deceased woman when she was alive along with her handsome husband and adorable two daughters. The 10th relied on the admissibility of photos to identify deceased victims, [even though the photo was never admitted and there was no identity issue], the jury instruction not to rely on sympathy, and the fact that all four were victims. The 10th was "troubled" by the government's decision to display a photo of the deceased with the rest of her family, [as opposed to just a photo of her] while saying she didn't make it home that night. That "needlessly pushed the envelope" and might jeopardize a conviction if coupled with other errors not present here. The 10th never mentioned the deliberate successful attempt by the government to prompt the husband to burst into tears in front of the jury by showing him the photo.

(3) There was sufficient evidence to establish assault on the family members who did not die. The jury could reasonably conclude the defendant "intended" the resulting "natural and probable consequences" of his actions when he drove drunk, swerved on the road causing others to honk at him and he continued to cross the highway lanes slowly, despite the passenger's warning to hurry up to avoid the oncoming van. Of course, in reality Mr. Pettigrew was too drunk to know what the heck he was doing.

(4) The upholding of the offense level and criminal history upward departures are the most "troubling" and may have the most horrible effects for our clients. (a) It was okay to depart 2 offense levels for the assault convictions on the grounds that the defendant was excessively reckless because a person can commit assault just by being reckless. The 10th ignored the fact that the typical assault defendant has a mens rea more culpable than excessively reckless. [Please note the defendant got a higher sentence, 126 months, for hitting the people who didn't die than for hitting the one who did die, 7 years for involuntary manslaughter]. (b) A one criminal history category increase was fine based on the serious nature of the defendant's prior offense---second degree murder---even though USSG § 4A1.3(a)(1) doesn't specifically authorize a criminal history departure on that basis. Three criminal history points [actually, the defendant got 6, but who's counting] for the prior murder under-represented the seriousness of that offense. So, a green light for a departure where any prior offense is serious. Ugh.

Preponderance Standard Still Applies to Sentencings; Crawford Does Not

U.S. v. Bustamante, 2006 WL 2045837 (7/24/06) - Just putting the final nail in the coffin on a couple of Booker issues. (1) As long as the d.ct. applies the guidelines in an advisory fashion, the d.ct. may rely on judicial fact-finding by a preponderance. The prior cases that said this, e.g. Magallanez, are not distinguishable on the grounds that they were plain error cases. (2) Crawford does not require overruling precedent that the Confrontation Clause does not apply to sentencing.