Thursday, August 30, 2007

COA Reissues Decision in US v. Pruitt

U.S. v. Terri Pruitt --- F.3d ----, 2007 WL 2430125(10th Cir. August 29, 2007)

The earlier published opinion from June 4 is pulled and the 10th issued this opinion, with corrections (adding Rita, and clarifying that D did not object to the presumption of reasonableness in the district court, but objected to its application on appeal) , after granting a panel re-hearing. En banc consideration was denied. The holding and reasoning did not change.

The Tenth affirmed a 292-month GLs sentence for a career offender with old, petty nonviolent drug priors because the district court correctly analyzed the 3553(a) factors and reasonably found the GLs sentence appropriate to promote respect for law and adequately punish Ms. Pruitt. She did not rebut the presumption of reasonableness accorded to her GLs sentence and "the sentence would be reasonable-even if marginally so-absent the presumption." McConnell writes a thoughtful concurrence, noting that the rebuttability of the presumption of reasonableness is more theoretical than real. In the two years since Booker, only one of the thousands of GLs sentences reviewed by the twelve COAs has been declared substantively unreasonable and the exact same sentence was imposed on remand in that case, later affirmed by the 8th Cir. "This makes me suspect that the real holding of this case-and of dozens like it-is that a substantively unreasonable within-Guidelines sentence does not exist. This raises the question of what we all are doing, and why." Although McConnell characterizes this case as an "ideal candidate" for a variance or a departure and concludes that Ms. Pruitt's sentence was "wildly excessive," he also concludes that it is sensible to presume reasonable the district court's exercise of discretion to impose a GLs sentence.

Court Dismisses Sec. 1983 Claim Based on Denial Of Marriage License

Bronson v. Swensen, --- F.3d ----, 2007 WL 2430124(10th Cir. August 29, 2007)

Ps’ § 1983 claim of denial of their right to free exercise of religion and privacy against county clerk who denied them a marriage license for a polygamous second marriage, which is banned under Utah civil law, was ordered dismissed by the 10th for lack of subject matter jurisdiction. First, because Ps’ opening appellate brief addressed only the criminal law banning polygamy, the 10th held that they forfeited any argument regarding constitutionality of the civil statute. Second, the district court lacked subject matter jurisdiction over any constitutional attacks on Utah’s criminal polygamy law because Ps lacked standing: they could show no injury in fact, no causation, and could not show that even if they would be injured, the injury would be redressed by a favorable decision.

No Error In Admission of Prior Bad Acts Evidence Under FRE 413, 414

U.S. v. Benally, --- F.3d ----, 2007 WL 2430133 (10th Cir. August 29, 2007)

Fed. R. Evid. 413 and 414 evidence of four earlier sexual abuse incidents properly admitted in trial of grandfather, who was convicted of sexual abuse of his 13 y/o granddaughter. The granddaughter was highly impeachable as a liar, and there was no physical evidence to back up her story. Other children in the hogan at the time, however, corroborated her account to varying degrees.

Two of the four earlier incidents occurred at least 40 years earlier, and the other 2 at least 20 years earlier. In one, the female was 20, in the others, she was 10 to 13 years old. All were family members either by marriage or blood (one was his sister, one was his daughter, the mother of the victim charged in the current case). Two of the cases resulted in a conviction of rape, one in a guilty plea to assault. The trial court followed the analysis outlined in U. S. v. Enjady, 134 F.3d 1427 (10th Cir.1998) and U. S. v. Guardia, 135 F.3d 1325 (10th Cir.1998) in determining admissibility. The 10th found no problem with any of its determinations, and no problem with its 403 balancing. READ THE CASE if you have this issue.

Plaintiff's Sec. 1983 Claims Against Media Actors Fail

Anderson v. Suiters, --- F.3d ----, 2007 WL 2421765 (10th Cir. August 28, 2007)

After discovering a videotape of the act, Plaintiff reported her husband raped her when she was unconscious. She gave the video to police, who disclosed it to the media, and the media aired part of the tape without Plaintiff’s permission. She brought 1983 claims against the cop, and the media, claiming in part invasion of privacy.

For Plaintiff’s claims arising under the federal constitution and § 1983 to survive, her right to privacy claim against the media defendants must allege that, even though private, they should be considered state actors. Her allegations were inadequate to meet the test.

COA Addresses Fed.R.Crim.P. 32's Scope; Affirms that Within-Guidelines Sentence Needs Little Explanation

U.S. v. Cereceres-Zavala, --- F.3d ----, 2007 WL 2421755 (10th Cir. August 28, 2007)

The 10th discusses the parameters of the present Criminal Procedure Rule 32. The rule does not broaden the scope of objections to a PSR that require the district court to respond by making findings and attaching them to the PSR–only objections to factual inaccuracies require this kind of response by the court, not legal objections. Here, D challenged the determination that his prior Texas conviction was for a crime of violence–that was a legal determination. Also, for a within guidelines sentence, the district court need give only a general explanation of its reasons for imposing the sentence to comply with procedural reasonableness.

Tenth Upholds Denial of Suppression in Case Involving "Tandem" Cars

U.S. v. Zamudio-Carrillo, --- F.3d ----, 2007 WL 2421760 (10th Cir. August 28, 2007)

Following up on and distinguishing United States v. Valenzuela, 365 F.3d 892, 896 (10th Cir.2004) in which the 10th found no probable cause to arrest Valenzuela on the belief she was traveling in tandem with another vehicle already stopped for drugs, the 10th upheld the district court determination that there was PC to arrest D, the driver of the tandem vehicle. Here, the drug and the tandem vehicles both had sequentially numbered out of state specialty license plates. The driver of the drug vehicle said she had recently purchased her vehicle and the cop inferred that the plates were sequential because the vehicles were purchased and licensed at the same time. Also, the drug vehicle driver denied she was traveling with another vehicle and tandem drug drivers usually deny they are traveling with another.

Gov't Prematurely Filed Lis Pendens on Substitute Property and Prevented Defendant from Hiring Counsel

U.S. v. Jarvis,--- F.3d ----, 2007 WL 2421758 (10th Cir. August 28, 2007)

A nice defense victory. In a multi-D multi-count CCE drug and conspiracy case, a superceding indictment also charged criminal forfeiture of certain identified properties and alleged a demand of over $150 million in judgment. The government filed a lis pendens (lp) under NM law on D’s Mora real property. The lp prevented D from liquidating his property to pay for private counsel. He appealed the district court’s denial of his challenge to the propriety of the lp under the collateral order doctrine.

D did not raise the precise theory below that he raised on appeal; the 10th held that this was one of those rare cases in which the issue was not forfeited because it was purely a question of law and proper resolution of the matter was certain, and so exercised discretion to address the issue.

There was no dispute in this case that D’s Mora properties were acquired before any alleged criminal activity, so it is “substitute” property, and the government would first need to obtain a conviction to claim any right to forfeit the property to satisfy a money judgment. All Cts of App. but one which has ruled on the issue have ruled that substitute property in 21 USC § 853(e) precludes pre-conviction restraint of substitute property. Under NM law, to be eligible to record a lp notice on a piece of real property, the party recording the notice must assert a present claim to the property's title or have some other present interest in the subject property. The United States did not have that interest and was not entitled to file a lp under NM law.

Summary of Supreme Court's Criminal Cases This Past Term

Thanks to SCOTUSBLOG, here is a link to a review of the criminal cases before the Supreme Court during its recent term. The review was prepared by Professor Rory K. Little, and Sharif Jacob (Hastings Class of 2007) of Hastings College of Law (University of California), and presented at the 2007 annual meeting of The Criminal Justice Section of the ABA, held in San Francisco, California. The review contains summaries of all criminal law (and related) opinions of the U.S. Supreme Court October Term 2006, and their rationales, as well as a narrative overview and some statistics.

Tuesday, August 28, 2007

New E-Filing Order Takes Effect Sept. 4

The Tenth Circuit has issued a new order regarding electronic filing of cases with some significant changes. Most importantly, hard copies of documents filed by e-mail must be in the clerk's office within two days of e-mailing. The complete order, as well as the former order so that they can be compared, can be obtained at the Tenth Circuit's website.

Rehearing Denied, But Scope of Computer Search Case Restricted

U.S. v. Andrus, 2007 WL 2405256 (8/24/07) - The 10th denies rehearing, but restricts the holding in U.S. v. Andrus, 483 F.3d 711, decided back on April 25, 2007. In Andrus, the 10th issued a ruling that the homeowner had apparent authority to consent to the search of his son's password-protected computer in his son's room. In denying rehearing, the panel explicitly states that its holding is restricted to "the specific factual setting, including the undisputed fact that the owner had access to the computer, paid for internet access and had an e-mail address used to register on a website that provided access to the child porn his son downloaded." The panel stressed that this was not a case where facts were presented about "the extent of capability and activation of password protection or user profiles on home computers, the capability of Encase software to detect the presence of password protection or a user profile or the degree to which law enforcement confronts password protection or user profiles on home computers." Four judges (Kelly, Lucero, McConnell and Holmes) voted for en banc rehearing.

District Court Rendered Appeal Waiver Ambiguous, But Sentence Affirmed

U.S. v. Wilkens, 2007 WL 2372381 (8/21/07)(Published) - The defendant did not waive his right to appeal his sentence, despite the clear wording of the plea agreement appeal waiver, because the district court muddled the meaning of the waiver at the plea hearing. The district court explained that the defendant had waived the right to appeal except if the "sentence was imposed in violation of the statute," [either § 3553(a) or 3742]. If the court's statements can clarify an appeal waiver, they can also render the waiver ambiguous and render the defendant's waiver unknowing.

But, the 10th affirms the sentence. The district court erred when it adopted the PSR's reckless endangerment enhancement under § 3C1.2 over the defendant's objection that he just fled the traffic stop and didn't speed away with an officer half-way in the vehicle, as the PSR alleged. Just fleeing would not have warranted the enhancement. However, since the career offender provisions applied, and therefore the offense level was the same regardless of the enhancement, the error was harmless. The 10th rejected the defendant's argument that the enhancement was not harmless because it might affect his security designation. "We determine whether an error is harmless with reference only to the sentence imposed."

The 10th put aside the "vexatious" question whether a presumption of reasonableness applies to a sentence within the guideline range determined by a departure under the Guidelines. It was not unreasonable for the d.ct. to refuse to deviate from the guideline range based on a disagreement with the policies underlying a particular guideline provision, in this case the irrationality of the career offender designation involving prior drug offenses. Nor did the alleged over-statement of the defendant's criminal history render unreasonable his below-guideline-range sentence.

Unpublished Decisions

Mercado v. Wiley, 2007 WL 2309796 (8/14/07)(unpub'd) - The district court incorrectly charged the § 1983 prisoner plaintiff, as payment towards the filing fee, 20 % of the prisoner's six-month-deposit total in his prisoner account, instead of the correct 20% of his average monthly deposit.

U.S. v. Aguirre, 2007 WL 2372383 (8/21/07)(unpub'd) - The d.ct. was wrong to deny the defendant's Rule 41(g) motion for return of his property based solely on the prosecutor's assertion of what agents had told her. The prosecutor's assertions were unverified and not based on first-hand knowledge of what happened to the property. Unverified pleadings are not evidence.

Vaughn v. Calbone, 2007 WL 2309806 (8/14/07)(unpub'd) - The d.ct. applied the wrong standard when it held the petitioner's sentence was not cruel and unusual because it was within the state statutory limits. But, the 10th ruled a life sentence was not grossly disproportional to the defendant's possession of marijuana and meth offense, in light of his two prior drug felony convictions.

U.S. v. Campos-Guel, 2007 WL 2309773 (8/14/07)(unpub'd) - It was okay for the district court to refuse to recuse itself, even though, in front of the jury, the court told defense counsel it could not understand the point of counsel's cross and the court indicated at sentencing it might have called the defendant stupid at trial and nothing had happened since to change the court's opinion.

Jago v. Ortiz, 2007 WL 2358680 (8/20/07)(unpub'd) - The habeas petitioner requested the 10th to "put him on a stake and let the townspeople come and burn him." The 10th (Judge McConnell) responded: "Having neither the power to afford such a remedy ... nor the inclination to create the conditions upon which Mr. Jago might have an actual Eighth Amendment claim, we deny the request."

Thursday, August 23, 2007

Tenth Reels In Another Below-Guideline Sentence

U.S. v. Garcia-Lara, --- F.3d ----, 2007 WL 2380991(10th Cir. August 22, 2007)

10th reverses the district court’s below-career-offender-guidelines variance on Defendant’s plea to possession with intent to distribute over 500 gr. of meth., sentencing him to what the GL would be if he were not CO. (Judge Lucero dissents)

The 10th sets out to explain in detail its reasonableness review post-Booker, noting that Rita has not changed reasonableness review and that it has always been centered in an abuse of discretion standard.

The sentence imposed by the district court was 47% lower and a full 122 months less than the advisory guidelines. The district court erred in determining that Defendant’s drug priors, though involving small amounts when he was young and not entailing any violence, overstated his criminal history making the CO GL inappropriate. Moreover, the district court failed to consider that Defendant’s sentence was disparate when compared to other career offenders.

But...Judge Lucero dissents. He analyzes post-Booker and post-Rita Tenth Circuit case law as essentially mandating that district courts sentence within or above the guidelines range or risk reversal.

Wednesday, August 22, 2007

Defendant's Waiver of Appeal Rights Included Amount of Restitution Issue

U.S. v. Cooper, --- F.3d ----, 2007 WL 2372382(10th Cir. August 21, 2007)

D’s appeal waiver barred his appeal of the restitution award and conditions of supervised release. D broadly waived his right to challenge his “guilty plea and any other aspect of his conviction,” and the “sentence as imposed by the Court and the manner in which the sentence is determined.”Although a majority of circuits have concluded that such language does not include a general waiver of the right to appeal a restitution award, in this case the plea agreement makes clear that the parties considered restitution as part of his sentence: “[T]he parties further agree that, as part of the sentence resulting from the defendant's plea, the Court will enter an order of restitution....” Likewise, D’s challenge to the condition of supervised release is also clearly part of his “sentence” and is thus barred by his waiver of the right to appeal. The 10th’s earlier decision in Gordon is extremely narrow and applies only in cases where there is no factual dispute as to the amount of restitution, and in this case D’s is a factual challenge to the amount of restitution, not a challenge to the legality of the restitution.

Friend Lacked Apparent, Actual Authority to Consent to Search

U.S. v. Cos, --- F.3d ----, 2007 WL 2372376 (10th Cir. August 21, 2007)

A great defense victory on the merits: the 10th upheld the district court’s suppression of evidence grounded upon a lack of actual and apparent authority to consent to a search.

1. Appellate jurisdiction: the 30 day period available to the government for filing an interlocutory appeal under 18 U.S.C. § 3731 began when the court denied the government’s THIRD motion to reconsider its grant of D’s motion to suppress, because the court in fact tentatively engaged in a consideration of the government’s late-raised issue of a good faith exception, and invited the government to file a more extensive motion. Read the opinion for more on the convoluted facts, but once again it seems, the bad bad doggie still gets a bone. Interestingly, Gorsuch was pulled by D into a dissent, reasoning that there was no appellate jurisdiction, and that under the recent S. Ct. Bowles decision, a statutory deadline such as in this case, as opposed to a court rule deadline, is mandatory, and equitable considerations for loosening those time limits do not apply.

2. The merits: Friend of D’s using the apartment for the day answered the door when cops came with an arrest warrant for D. She told them it was not her apartment, etc. etc., but they swept, mini-searched and found a gun, and obtained a search warrant. Read the opinion–the facts are operative.
Actual authority: 10th confirms that this circuit rejects assumption of the risk analysis, and distinguishes its recent Trotter decision. The friend was an occasional visitor who was allowed in only with D’s consent, without control over the premises, and there would be no societal recognition that her relationship to the D and the apartment would be one that gave her actual authority over it. Apparent authority: the inquiry is objective-- whether the facts available to the police warranted a reasonable belief that the person had authority over the premises to consent, and any ambiguous facts related to authority require further investigation. Even though in this case the friend had children over in the apartment when police came, that was no baby on the hip per Matlock that supported a belief that she had authority to consent. They did not know who she was, it was 3 in the afternoon and she could have been cleaning the apartment with children present, etc. They made no further inquiries. Good Faith exception: 10th reaffirms that the Leon exception applies generally only when the officer is relying upon a decision made by another–e.g., a magistrate decision to issue a warrant.

Friday, August 17, 2007

Rule Changes Announced For Tenth Circuit

The Tenth Circuit has announced that, effective January 1, 2008, the court will amend its local rules. In addition, there is one change to the Federal Rules of Appellate Procedure which will take effect on December 1, 2007. Attached below are links to a memo regarding the proposed rules changes, as well as links to redlined and non-redlined versions of the proposed amendments. Interested parties are invited to submit comments on the proposed changes to the Clerk of Court. The comment period will extend through the close of business on Wednesday, October 10, 2007. Comments may be submitted in writing to the Tenth Circuit Clerk's Office care of 1823 Stout Street, Denver, Colorado, 80257, or via email to

Memo Outlining Changes in Supreme Court Rules Taking Effect October 1, 2007

How Appealing and the Fifth Circuit Blog alerted us to this handy memo from the Clerk of the Supreme Court outlining some of the more important changes to the Supreme Court Rules taking effect on October 1, 2007.

Court Finds First Amendment Claim in Tax Challenge Case

Van Deelen v. Johnson, --- F.3d ----, 2007 WL 2309778 (10th Cir. August 14, 2007)

(This may have some remote applicability to our cases) 10th reversed summary judgment entered against Plaintiff who brought a federal First Amendment claim that city officials unlawfully retaliated against him for engaging in protected First Amendment petitioning activity: Plaintiff challenged local tax assessments on his property, and Plaintiff stated a valid 1st Amendment claim when he alleged that Defendants threatened him during the course of one of the meetings to resolve the tax issues. It matters not what the merits were on Plaintiff’s underlying tax claims.

Tuesday, August 07, 2007

Not IAC for Counsel to Rely on Inaccurate Pre-plea Report

Gardner v. McKune, 2007 WL 2204352 (8/2/07)(unpub'd) - The habeas petitioner could not obtain an invalidation of his plea due to his counsel's failure to find out he had a prior juvenile conviction that increased his sentence above what the petitioner expected. It was reasonable for counsel to rely on the court services officers' inaccurate pre-plea report that did not mention the juvenile conviction.

Theater Altercation May Have Violated Plaintiff's Constitutional Rights

Arnold v. Curtis, 2007 WL 2193680 (8/1/07)(unpub'd) - The right to be free from excessive force under the Fourth Amendment clearly embraces the right of an innocent citizen to attend a movie without being seized by a self-identified law enforcement officer and thrown down a staircase. [Hurray.] The dispute started when the off-duty officer complained to the plaintiff about her talking during the movie. The parties had two completely different versions of events. A jury will have to decide whose version is more accurate.

Ignoring Rita, Tenth Reasserts that District Courts May Not Disagree with Guidelines' Policy; WA Assault Statute a COV

U.S. v. Perez-Perez, 2007 WL 2203095 (8/2/07)(unpub'd) - The Fast-Track plea agreement provided for an offense level of 12, but allowed the government to withdraw from the agreement if it was discovered the defendant had a felony conviction that fit within § 2L1.2(b)(1)(A) or (B). The PSR noted a prior conviction that would require an enhancement under (b)(1)(A). The government didn't notice this until the night before the sentencing hearing. At the hearing, the government asked the court to reject the agreement. The judge continued the hearing to allow for briefing. In the briefing, the government sought to withdraw from the plea agreement. The 10th held the government's initial request for a plea rejection, rather than a plea withdrawal did not constitute a breach, because it eventually requested a withdrawal and the agreement did not provide for the government to withdraw by any particular time before sentencing. The 10th did admonish the government in a footnote that it is supposed to follow Rule 32(f)'s objection-timing requirements.

The defendant's conviction for assault in Washington was a crime of violence, even though the Washington statute allowed for conviction based on recklessly inflicting bodily harm, because the defendant admitted to intentionally assaulting and inflicting substantial bodily harm. The 10th believed this showed the defendant intended to use physical force and so the assault was a crime of violence.

The 10th ignores Rita's apparent indication that a d.ct. can sentence based on its belief a guideline is "unsound policy," finds the sentence reasonable [the defendant did get a sentence below the guideline range, apparently due to the plea agreement confusion], and reiterates what it has said pre-Rita that a disagreement with the policy decisions of the Sentencing Commission is not a valid reason to impose an outside-the-guideline range sentence.

Tenth Sidesteps Probable IAC Issue

U.S. v. Klima, 2007 WL 2193683 (8/1/07)(unpub'd) - The 10th acknowledges the defendant's allegations, if true, would entitle him to avoid application of the plea agreement appeal and collateral relief waiver. He alleged his counsel mislead him about the guideline range in that counsel did not tell him a prior conviction could be classified as a crime of violence to enhance his offense level from 12 to 20 under § 2K2.1(a)(4)(A). Counsel indicated at sentencing that the defendant would appeal the d.ct.'s determination that the prior conviction was for a crime of violence. The appeal waiver clearly did not permit such an appeal. So, if the allegations were true the defendant would have proved ineffective assistance ("IA") with respect to the appeal waiver. But, the record was not adequate to allow the 10th to address the IA issue. So, the defendant would have to go the 2255 route.

Prisoner Denied Costs

Dulworth v. Jones, 2007 WL 2203763 (8/2/07)(Published) - After the prisoner filed his habeas petition challenging his security classification and earned credits calculation, the prison voluntarily gave the petitioner all the relief he requested. The petitioner sought an award of costs. The d.ct. denied the motion. The 10th ruled that it had no jurisdiction to address any issue involving a prisoner appeal in a habeas case unless it issued a certificate of appealability. The 10th could not issue a certificate in this case because such a certificate can only be issued when the petitioner has been denied a constitutional right. The denial of costs did not implicate the constitution.

Thursday, August 02, 2007

No Acceptance Reduction Where Defense Was Lack of Intent to Kill in Murder Trial

U.S. v. Tom ,--- F.3d ----, 2007 WL 2193657 (10th Cir. Aug. 1, 2007)

District court assigned a guideline acceptance reduction to a defendant who was charged with Murder 1 but convicted of Murder 2 after trial. His defense was lack of intent and lack of malice aforethought. The 10th reversed, characterizing Defendant’s trial position as claiming he lacked the general intent to kill. Thus, following long-standing precedent, Defendant did not accept responsibility under the guidelines. Any harmlessness of the error could not be determined on the record because of conflicting statements by the district court as to whether its additional variance reduction was the equivalent of a 6, 7, or 8 level reduction (and thus it was impossible to tell if the 2-level difference would be subsumed within the additional reduction). (Compare this to how certain the Arrevalo majority, below, was about the harmlessness of the district court’s Guidelines' error).

For those interested in post-Rita minutiae, in dicta the 10th cites Rita as determining that “our appellate review of the reasonableness of the sentence imposed merely asks whether the trial court abused its discretion.” It goes on to say that while there is no presumption of unreasonableness of an outside-the-Guidelines sentence, “the extremity of the variance between the actual sentence imposed and the applicable Guidelines range determines the amount of scrutiny we apply in our substantive reasonableness review of such sentences.” SO, so far, the 10th is not abandoning its Cage-type of substantive review of extreme variances.

Nebraska False Imprisonment Conviction Not Categorically A Crime of Violence

U.S. v. Ruiz-Rodriguez, --- F.3d ----, 2007 WL 2193677 (10th Cir. Aug. 1, 2007)

In this reentry after deportation case, Defendant’s predicate felony conviction for first-degree false imprisonment (FI) in Nebraska did not meet the crime of violence definition in U.S.S.G. § 2L1.2 and his offense level was improperly enhanced. Because FI was not an enumerated felony, the enhancement would apply only if Neb law defined FI as having as an element the use, attempted use, or threatened use of physical force against the person of another.

The 10th first notes that the U.S.S.G. § 2L1.2 crime of violence definition is much narrower than the career offender statute and guideline definitions that additionally include “[or] involves conduct that presents a serious potential risk of physical injury to another.” Therefore, case law construing those provisions was not applicable. Using the Taylor categorical approach, the Neb statute can be violated in one of 3 manners, two of which involve the use of violence, and one of which involves only deception. Categorically it is not a crime of violence.

The 10th remands so that the government can now have the opportunity (seems like 2 bites--shouldn't probation have been required to do this the first time around?) to present other documents, such as charging documents, the plea agreement, etc., on the underlying Neb conviction, to determine under Shepard whether he was convicted of a crime of violence.

Suspicion of Driving Without Insurance Supported Stop

U.S. v. Cortez-Galaviz, --- F.3d ----, 2007 WL 2181518 (10th Cir. July 31, 2007)

There was reasonable suspicion to stop the vehicle based upon a response to the cop’s computer data base query on the vehicle’s license plate, that proof was not found that the vehicle was insured. The data provided the officer was both particularized and objective information suggestive of a traffic violation–driving without insurance. Although the “not found” response was ambiguous, neither was it a “yes” response that the vehicle was insured and thus, further investigation was justified.

District Court Erred When Imposing Sentence, But Error Was Harmless

U.S. v. Arrevalo-Olvera, --- F.3d ----, 2007 WL 2181514 (10th Cir. July 31, 2007)
The Tenth Circuit agreed with the defendant that the district court incorrectly stated that it must find a within guidelines sentence unreasonable before it grants a variant sentence below the guidelines. However, the error was harmless, as demonstrated by the district court’s imposition of a sentence 3 months higher than the low end of the advisory guidelines range. The 10th rejected Defendant’s argument that because the 3 months reflected the district court’s decision to increase D’s sentence based upon his violent past, if the court had understood its discretion, the threshold upon which those 3 months were added might have been lower. Holloway dissented, believing that the government had not shown harmless error and that there was “no concrete indication the district court would impose the same sentence on remand.” He adopted the Defendant’s “threshold” reasoning.

Wednesday, August 01, 2007

Object, Object, and Object Again

U.S. v. Carrasco-Salazar, -- F.3d --, 2007 WL 2171359 (10th Cir. 7/30/07) - Mr. Carrasco is precluded from appealing the 16-level enhancement of his re-entry sentence because he waived the argument when his counsel indicated to the district court that the objection to the enhancement had been resolved. An argument that is intentionally waived is not reviewable at all, whereas an argument that is forfeited through neglect is subject to review for plain error.

U.S. v. Chavez-Calderon, -- F.3d --, 2007 WL 2171363 (10th Cir. 7/30/07) - contention that district court did not adequately explain reasons for the sentence imposed is reviewed for plain error because there was no objection at sentencing to the inadequacy of the court's explanation. The district court properly considered unobjected-to PSR facts re: domestic violence acts, some of which did not result in criminal charges.