Recent Tenth Circuit Published Cases
U.S. v. Guerrero,--- F.3d ----, 2007 WL 4217 (10th Cir. Jan. 02, 2007)
Two Hispanic guys getting gas at a station are spotted by two lunching cops who think they look a little weird (one dressed dressy and the other in jeans with an age difference between them) and decide to put down their sandwiches and try a little hunch-testing profiling.
Once police got to talking to the two men (a consensual encounter), they were able to put together a number of pretty darn weak links to form a reasonable suspicion chain to detain them long enough to do a records check and subsequently ask for consent to search: source-city-the-Drug-Road-caravan route travel; religious iconography in vehicle; single key on key ring; two mis-matched guys traveling together who did not seem to know each other well; sketchy knowledge of vehicle ownership. The detention ended when cops handed vehicle registration back to the Ds.
Even though D declined cops’ first request to consent to a search of the car, (this was after cops returned papers) the consent was voluntary. D conceded that his palms-up non-verbal gesture was consent, but that it was not voluntary. Because Ds’ argument rests on his position that he was still detained, 10th rejects it.
U.S. v. Saenz-Gomez, --- F.3d ----, 2007 WL 4215 (10th Cir. Jan. 02, 2007)
Alien D’s prior drug conviction was final and was a “conviction” within meaning of the guidelines and federal immigration law, warranting a 12 level enhancement, even though D’s appeal of the prior was pending at the time he was “removed” from the US as a result of the conviction. Joe and Chuck intend to battle on (quixotically) against the lame reasoning of the panel which rejected their finality argument that looked to the history of the immigration law for interpretation; the 10th opted for language that to the panel appeared plain.
Whitington v. Ortiz, --- F.3d ----, 2007 WL 10766 (10th Cir. Jan. 03, 2007)
Pro se prisoner exhausted his administrative remedies in 8th A prison conditions 1983 action (he was denied free personal hygiene products even though after his prison account was docked for restitution, medical care, legal postage and copying, he had nothing left to purchase such products. He claimed he was being forced unconstitutionally to choose between pursuing his legal claims and purchasing necessary basic hygiene products) when he waited to file his suit until after the prison missed its deadline for responding to his third and final level of grievance.
Martin v. Rios, --- F.3d ----, 2007 WL 10767(10th Cir. Jan. 03, 2007)
Following the Supreme Court decision in Lopez v. Davis, 531 U.S. 230, the 10th holds that the BOP regulation restricting early release after completion of a drug abuse treatment program to those convicted of a non-violent felony and which felony did not involve the use, possession or carrying of a firearm, “rationally reflects the view that such inmates displayed a readiness to endanger another's life” and applies to P who was convicted of being a felon in possession of a firearm.
U.S. v. Aguayo-Gonzalez, --- F.3d ----, 2007 WL 10758(10th Cir. Jan. 03, 2007)
D essentially conceded at trial that he was guilty of two counts, but contested the third, misdemeanor count and was convicted of all 3 counts. He did not get an acceptance reduction. He did not appeal that calculation (see footnote 3: if D accepts responsibility on some but not all counts of conviction, it is not a foregone conclusion that the D is not entitled to an acceptance reduction), but instead argued that his sentence was unreasonable because of a disparity between his sentence and similarly situated offenders who did receive an acceptance reduction.
The 10th rejected D’s position, looking at cases where acceptance reductions had been granted to, e.g. Ds who went to trial to contest mens rea elements only. It found that D’s testimony was not comprehensive enough, and did not occur early enough, to indicate acceptance of responsibility; his statements did not admit all facts necessary to convict him on the two felony counts to which he somewhat conceded, and besides, his contesting of the third count made it reasonable to differentiate his sentence from that of a defendant who had accepted responsibility on all counts.
U.S. v. Montano, --- F.3d ----, 2007 WL 10768(10th Cir. Jan. 03, 2007)
After losing her motion to suppress evidence, D entered a plea agreement (in front of the magistrate) that waived all her appeal rights including any sentence within the statutory maximum. The PSR determined she was a career offender, and the court sentenced her to 188 months in prison on a conviction of transporting with intent more than 100ks (240 lbs) of marijuana. The district court judge was aghast enough at the length of the sentence that he said he was going to suspend that part of the plea agreement that waived her right to appeal.
The 10th holds that the record demonstrates that the district court accepted the plea in full, including the waivers, and “an oral modification of an accepted plea agreement does not alter the substance of the agreement.” The 10th further declined to follow the 2d Cir. and held that it will enforce broad waivers of appeal even in pleas that do not limit the waiver to sentences within certain ranges.
U.S. v. Shaffer, --- F.3d ----, 2007 WL 10770(10th Cir. Jan. 03, 2007)
Evidence sufficient to uphold conviction for distribution of child porn. D used a peer-to- peer shared file computer program called Kazaa which allows others to access your files and you to access others’ files on the system. He admitted to agents that he downloaded the porn and said that he left his computer on while at work to allow others to download porn from his files. “Distribute” means allowing others to access it as in this case involving peer-to-peer file sharing programs, and does not require active transfer.
In a troubling ruling, the 10th holds that the district court did not abuse its discretion after a Daubert hearing to prohibit D’s expert from testifying that D’s hard drive configuration allowed him only to troll broadly for sexually explicit material, which snagged kiddie porn too. The district court, with the 10th endorsing it, held that this was mens rea evidence and inadmissable expert testimony under Evid. R. 704(b), which disallows a witness from stating an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged.
Written kiddie porn from D’s computer admissible under 404(b) to rebut D’s defense that he lacked the mens rea to have child porn.
No plain error in jury instructions that stated the government had to prove both intent to distribute and intent to cause to be distributed child porn (D did not object to these confusing instructions).
U.S. v. Martinez-Macias, --- F.3d ----, 2007 WL 10759 (Jan. 03, 2007)
D convicted and sentenced for reentry after conviction of an aggravated felony–prior offense was state cocaine possession. He received an 8 level enhancement. After Lopez, mere drug possession is not a felony under the federal controlled substances act, so case is remanded for re-sentencing.
The 10th addressed and rejected D’s second argument, holding that the availability of fast track programs to some offenders does not create an unwarranted disparity in sentences within the meaning of 3553(a)(6).
Two Hispanic guys getting gas at a station are spotted by two lunching cops who think they look a little weird (one dressed dressy and the other in jeans with an age difference between them) and decide to put down their sandwiches and try a little hunch-testing profiling.
Once police got to talking to the two men (a consensual encounter), they were able to put together a number of pretty darn weak links to form a reasonable suspicion chain to detain them long enough to do a records check and subsequently ask for consent to search: source-city-the-Drug-Road-caravan route travel; religious iconography in vehicle; single key on key ring; two mis-matched guys traveling together who did not seem to know each other well; sketchy knowledge of vehicle ownership. The detention ended when cops handed vehicle registration back to the Ds.
Even though D declined cops’ first request to consent to a search of the car, (this was after cops returned papers) the consent was voluntary. D conceded that his palms-up non-verbal gesture was consent, but that it was not voluntary. Because Ds’ argument rests on his position that he was still detained, 10th rejects it.
U.S. v. Saenz-Gomez, --- F.3d ----, 2007 WL 4215 (10th Cir. Jan. 02, 2007)
Alien D’s prior drug conviction was final and was a “conviction” within meaning of the guidelines and federal immigration law, warranting a 12 level enhancement, even though D’s appeal of the prior was pending at the time he was “removed” from the US as a result of the conviction. Joe and Chuck intend to battle on (quixotically) against the lame reasoning of the panel which rejected their finality argument that looked to the history of the immigration law for interpretation; the 10th opted for language that to the panel appeared plain.
Whitington v. Ortiz, --- F.3d ----, 2007 WL 10766 (10th Cir. Jan. 03, 2007)
Pro se prisoner exhausted his administrative remedies in 8th A prison conditions 1983 action (he was denied free personal hygiene products even though after his prison account was docked for restitution, medical care, legal postage and copying, he had nothing left to purchase such products. He claimed he was being forced unconstitutionally to choose between pursuing his legal claims and purchasing necessary basic hygiene products) when he waited to file his suit until after the prison missed its deadline for responding to his third and final level of grievance.
Martin v. Rios, --- F.3d ----, 2007 WL 10767(10th Cir. Jan. 03, 2007)
Following the Supreme Court decision in Lopez v. Davis, 531 U.S. 230, the 10th holds that the BOP regulation restricting early release after completion of a drug abuse treatment program to those convicted of a non-violent felony and which felony did not involve the use, possession or carrying of a firearm, “rationally reflects the view that such inmates displayed a readiness to endanger another's life” and applies to P who was convicted of being a felon in possession of a firearm.
U.S. v. Aguayo-Gonzalez, --- F.3d ----, 2007 WL 10758(10th Cir. Jan. 03, 2007)
D essentially conceded at trial that he was guilty of two counts, but contested the third, misdemeanor count and was convicted of all 3 counts. He did not get an acceptance reduction. He did not appeal that calculation (see footnote 3: if D accepts responsibility on some but not all counts of conviction, it is not a foregone conclusion that the D is not entitled to an acceptance reduction), but instead argued that his sentence was unreasonable because of a disparity between his sentence and similarly situated offenders who did receive an acceptance reduction.
The 10th rejected D’s position, looking at cases where acceptance reductions had been granted to, e.g. Ds who went to trial to contest mens rea elements only. It found that D’s testimony was not comprehensive enough, and did not occur early enough, to indicate acceptance of responsibility; his statements did not admit all facts necessary to convict him on the two felony counts to which he somewhat conceded, and besides, his contesting of the third count made it reasonable to differentiate his sentence from that of a defendant who had accepted responsibility on all counts.
U.S. v. Montano, --- F.3d ----, 2007 WL 10768(10th Cir. Jan. 03, 2007)
After losing her motion to suppress evidence, D entered a plea agreement (in front of the magistrate) that waived all her appeal rights including any sentence within the statutory maximum. The PSR determined she was a career offender, and the court sentenced her to 188 months in prison on a conviction of transporting with intent more than 100ks (240 lbs) of marijuana. The district court judge was aghast enough at the length of the sentence that he said he was going to suspend that part of the plea agreement that waived her right to appeal.
The 10th holds that the record demonstrates that the district court accepted the plea in full, including the waivers, and “an oral modification of an accepted plea agreement does not alter the substance of the agreement.” The 10th further declined to follow the 2d Cir. and held that it will enforce broad waivers of appeal even in pleas that do not limit the waiver to sentences within certain ranges.
U.S. v. Shaffer, --- F.3d ----, 2007 WL 10770(10th Cir. Jan. 03, 2007)
Evidence sufficient to uphold conviction for distribution of child porn. D used a peer-to- peer shared file computer program called Kazaa which allows others to access your files and you to access others’ files on the system. He admitted to agents that he downloaded the porn and said that he left his computer on while at work to allow others to download porn from his files. “Distribute” means allowing others to access it as in this case involving peer-to-peer file sharing programs, and does not require active transfer.
In a troubling ruling, the 10th holds that the district court did not abuse its discretion after a Daubert hearing to prohibit D’s expert from testifying that D’s hard drive configuration allowed him only to troll broadly for sexually explicit material, which snagged kiddie porn too. The district court, with the 10th endorsing it, held that this was mens rea evidence and inadmissable expert testimony under Evid. R. 704(b), which disallows a witness from stating an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged.
Written kiddie porn from D’s computer admissible under 404(b) to rebut D’s defense that he lacked the mens rea to have child porn.
No plain error in jury instructions that stated the government had to prove both intent to distribute and intent to cause to be distributed child porn (D did not object to these confusing instructions).
U.S. v. Martinez-Macias, --- F.3d ----, 2007 WL 10759 (Jan. 03, 2007)
D convicted and sentenced for reentry after conviction of an aggravated felony–prior offense was state cocaine possession. He received an 8 level enhancement. After Lopez, mere drug possession is not a felony under the federal controlled substances act, so case is remanded for re-sentencing.
The 10th addressed and rejected D’s second argument, holding that the availability of fast track programs to some offenders does not create an unwarranted disparity in sentences within the meaning of 3553(a)(6).
posted by Anonymous at 1:41 PM
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