Unpublished Tenth Circuit Cases
U.S. v. White, 2007 WL 1636426 (6/7/07)(unpub'd) - The 10th agrees with the government's concession that it violated its promise to recommend a sentence at the bottom of the guideline range when it argued for a supervised release term that was above the bottom of the guideline range. Supervised release is part of the sentence.
U.S. v. Thomas, 2007 WL 1600480 (6/5/07)(unpub'd) - The result in this case probably presages the result in future cases complaining about the d.ct.'s failure to give reasons for the sentence. The 10th holds that the d.ct. did not provide sufficient reasons for the sentence because the d.ct. did not mention § 3553(a) or respond to the defendant's nonfrivolous arguments for a below guideline range sentence or provide any explanation for the sentence. But, since the defendant did not object to the failure to give reasons, he could not prevail unless the d.ct.'s error seriously affected the fairness, integrity, or public reputation of judicial proceedings. The defendant failed to prove such an effect essentially because he could not prove the sentence was substantively unreasonable.
U.S. v. Sosa-Acosta, 2007 WL 1589416 (6/4/07)(unpub'd) - The 10th rejects the defendant's proposal that, if the defendant notes a mitigating factor not mentioned by the guidelines, the d.ct. must sentence below the guideline range unless a counterbalancing § 3553(a) factor is present. The 10th insisted the defendant always has the burden to prove that whatever factor he raises is so important and persuasive as to overcome the eighteen years' worth of "careful" consideration the Guidelines represent.
U.S. v. Kinzalow, 2007 WL 1600492 (6/5/07)(unpub'd) - The defendant's detention was lawful because he was in an area immediately adjoining an arrestee (in a chair south of a coffee table that was next to the doorway of the bedroom where the arrest occurred), regardless of whether the officers had reasonable suspicion the defendant posed a danger.
U.S. v. Contreras, 2007 WL 1589405 (6/4/07)(unpub'd) - The 10th refuses to reinstate an appeal of a defendant whose counsel neglected to file a brief after several grants of extension requests and misled the defendant into thinking counsel was seeking reinstatement of the appeal. The same counsel represented the defendant on a 2255 motion. Because the defendant failed to appeal the denial of that motion, the 10th decides the defendant's weighty interests in his right to appeal and effective assistance of appellate counsel are outweighed by "the profound interests in repose that attaches to the mandate of a court of appeals." Don't you agree?
Erickson v. Pardus, 2007 WL 1636290 (6/7/07)(unpub'd) - The 10th complies with the S.Ct. decision described in last week's update, acknowledging that the prisoner sufficiently alleged substantial harm. The 10th goes on to hold that the prisoner had also sufficiently alleged the prison's deliberate indifference to his health when it terminated his Hepatitis C treatment, despite the d.ct.'s finding to the contrary. Now on to the ever-fruitful summary judgment stage before the d.ct.
U.S. v. Thomas, 2007 WL 1600480 (6/5/07)(unpub'd) - The result in this case probably presages the result in future cases complaining about the d.ct.'s failure to give reasons for the sentence. The 10th holds that the d.ct. did not provide sufficient reasons for the sentence because the d.ct. did not mention § 3553(a) or respond to the defendant's nonfrivolous arguments for a below guideline range sentence or provide any explanation for the sentence. But, since the defendant did not object to the failure to give reasons, he could not prevail unless the d.ct.'s error seriously affected the fairness, integrity, or public reputation of judicial proceedings. The defendant failed to prove such an effect essentially because he could not prove the sentence was substantively unreasonable.
U.S. v. Sosa-Acosta, 2007 WL 1589416 (6/4/07)(unpub'd) - The 10th rejects the defendant's proposal that, if the defendant notes a mitigating factor not mentioned by the guidelines, the d.ct. must sentence below the guideline range unless a counterbalancing § 3553(a) factor is present. The 10th insisted the defendant always has the burden to prove that whatever factor he raises is so important and persuasive as to overcome the eighteen years' worth of "careful" consideration the Guidelines represent.
U.S. v. Kinzalow, 2007 WL 1600492 (6/5/07)(unpub'd) - The defendant's detention was lawful because he was in an area immediately adjoining an arrestee (in a chair south of a coffee table that was next to the doorway of the bedroom where the arrest occurred), regardless of whether the officers had reasonable suspicion the defendant posed a danger.
U.S. v. Contreras, 2007 WL 1589405 (6/4/07)(unpub'd) - The 10th refuses to reinstate an appeal of a defendant whose counsel neglected to file a brief after several grants of extension requests and misled the defendant into thinking counsel was seeking reinstatement of the appeal. The same counsel represented the defendant on a 2255 motion. Because the defendant failed to appeal the denial of that motion, the 10th decides the defendant's weighty interests in his right to appeal and effective assistance of appellate counsel are outweighed by "the profound interests in repose that attaches to the mandate of a court of appeals." Don't you agree?
Erickson v. Pardus, 2007 WL 1636290 (6/7/07)(unpub'd) - The 10th complies with the S.Ct. decision described in last week's update, acknowledging that the prisoner sufficiently alleged substantial harm. The 10th goes on to hold that the prisoner had also sufficiently alleged the prison's deliberate indifference to his health when it terminated his Hepatitis C treatment, despite the d.ct.'s finding to the contrary. Now on to the ever-fruitful summary judgment stage before the d.ct.
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