Wednesday, September 26, 2007

Guideline Sentence Held Reasonable

U.S. v. Staser, 2007 WL 2733724 (9/18/07)(unpub'd) - The 10th finds 14-month within-guidelines sentence reasonable, despite the defendant's argument that his inability to hunt game birds is sufficient punishment.

Lie about Citizenship on Employment Application Bars Entry

Kechkar v. Gonzales, 2007 WL 1991162 (7/11/07) - The 10th publishes the previously reported decision that an alien's lie about his citizenship on an employment application constitutes a misrepresentation of citizenship that bars an alien married to a U.S. citizen from admission to this country.

Upward Departure to Max Approved

U.S. v. Still, 2007 WL 2733822 (9/14/07)(unpub'd) - The 10th affirms an upward departure from 6 to 12 months to the max of 36 months for impersonating an IRS agent. The departure and its extent were justified by the 40 year criminal history of the defendant described by the 10th as a "life-long, small-time con man." His proven disdain for the law warranted a higher sentence, even though all his offenses were relatively minor.

Firearms Cross-Reference Discussed

U.S. v. Valdez, 2007 WL 2693854 (9/10/07)(unpub'd) - USSG § 2K2.1(c)(1), which provides for cross-referencing to a higher guideline if a firearm is used or possessed in connection with "the commission of another offense," applies even if the defendant did not use the firearm. The analysis for (c)(1) is no different than the analysis under § 2K2.1(b)(6), which provides for enhancements for using or possessing a firearm "in connection with another felony offense."

Uniformity of Sentencing Supports GL Sentence

U.S. v. Chaheine, 2007 WL 2561822 (9/5/07)(unpub'd) - While rejecting the claim that the district court mistakenly applied a presumption of reasonableness when it referred to Kristl, despite the valorous advocacy of Cate and Ben, the 10th made a telling fine line distinction. According to the 10th, the district court's reliance on the need for uniformity of sentencing by applying the guidelines is not the same thing as imposing a presumption of reasonableness to the guidelines.

PC to Arrest Existed, But ADA Possibly Violated Where Deaf Defendant Not Provided with Assistance

Robertson v. Las Animas County Sheriff's Department, 2007 WL 2588252 (9/10/07)(Published) - The officer had probable cause to arrest the plaintiff for violating a restraining order where one eyewitness said she saw the plaintiff outside staring into her bedroom window and another eyewitness said she saw the plaintiff run away from the property. On the other hand, the deaf plaintiff did make sufficient allegations to prove violations of the ADA where he was not provided with assistance to make a phone call from the jail or to understand the probable cause hearing.

Counsel Ineffective For Failing to Call Self-Defense Witness

U.S. v. Holder, 2007 WL 2753055 (9/19/07)(unpub'd) - The 10th affirms habeas grant for ineffective assistance of counsel. Counsel acted unreasonably in failing to call witness who supported the defendant's self-defense version that the victim drew a gun on him. Counsel did not adequately investigate or legally research their reason for not calling the witness---that the witness might be crossed about the defendant's involvement in growing marijuana. Counsel would have discovered such cross would have been irrelevant and inadmissible. Troublingly, the 10th says it can deny relief if it can make up a good reason for not calling the witness, even if counsel didn't consider such a rationale. But, the reasons suggested by the government were not reasonable in light of the tremendous value of the witness's testimony. That value rendered counsel's conduct prejudicial. Judge Hartz dissented on the ground that he could think of reasons why counsel would not want to present the witness.

Restitution Order Reversed

U.S. v. Brown, 2007 WL 2709932 (9/13/07)(unpub'd) - Remand to the district court to make specific findings to justify restitution for Native American Holistic Services. The 10th prohibited the government from presenting any further evidence to support the restitution. "The government shall not have a 'second bite of the apple.'"

Vehicle Stop to Investigate Alleged Misdemeanor Approved

United States v. Moran, 06-2175 (10th Cir. Sept. 25, 2007)

10th affirms Defendant’s jury conviction for being a felon in possession of a firearm.

1. Motion to suppress. (A) Police had reasonable suspicion that Defendant, for whom they were looking and for whom they had reasonable suspicion, had criminally trespassed in the neighborhood, was driving the black SUV. The complaining neighbors named Defendant by name as the trespasser and said he had not left the area and one cop knew Defendant drove a black SUV. (B) In a case of first impression, the 10th, noting the circuit split, decides that police can make a stop based on reasonable suspicion of a completed misdemeanor. Here, there was a strong governmental interest in addressing an ongoing and potentially violent crime (Defendant was continually crossing private land to access a national forest for hunting), and the 4 amendment intrusion was brief and limited. The 10th underscores the “limited and fact-dependent” nature of the holding.

2. 404(b) evidence. Not an abuse of discretion to admit Defendant’s 1994 firearms conviction. It was properly admitted to address Defendant’s defense that he did not knowingly possess the rifle found in his girlfriend’s SUV, which he was driving (he was bow-hunting, but his girlfriend’s rifle was half out of its case in the back seat). His knowing possession of a rifle in the past supports an inference that he knowingly possessed it in this case.(The 10th’s explanation sounds like a justification for admitting propensity evidence)

3. Theory of defense instruction. While a defendant is entitled to a theory of the case instruction, he is not entitled to one containing the specific facts of the theory and case. (?!) The “knowing” stock instruction given by the court covered the territory. Defendant was not entitled to a “fleeting possession” instruction either. There was no evidence that Defendant’s possession was momentary and otherwise, his lack of knowledge defense was addressed by the stock knowledge instruction.

Wednesday, September 19, 2007

Consecutive Life Terms Affirmed

U.S. v. Huskey, --- F.3d ----, 2007 WL 2702447 (10th Cir. Sept. 18, 2007)

Defendant, who pleaded guilty to 2 counts of trafficking over 50 grams of meth and was sentenced to 2 consecutive life terms under 21 U.S.C. § 841(b)(1)(A), challenged his sentence on 3 grounds: one of his priors should not have been counted as a previous drug felony; mandatory minimum sentences conflict with the statutory command to trial judges to consider the factors set out in 18 U.S.C. § 3553(a) in arriving at their sentencing decisions; and the sentence is cruel and unusual punishment in violation of the 8th Amendment.

1. Not plain error to determine Defendant’s prior Kansas attempted cocaine possession is a countable prior drug conviction even though the attempt statute was general and applied to any felony offense and not just drug offenses. The 10th avoids deciding it was error to count it and rules that even if it was, under the 2d plain error prong, any error was not obvious.

2. Section 3553(a) and 21 U.S.C. § 841(b)(1)(A) are not in conflict. Sec. 3553 (a) does not apply to mandatory sentences, as made clear by § 3551(a), which states that the sentencing laws of that chapter (including section 3553) apply “except as otherwise specifically provided....”.

3. Citing Harmelin v. Michigan, 501 U.S. 957 (1991), which found no constitutional infirmity where a first offender in a drug case was sentenced to life without parole for possession of more than 650 grams of cocaine, the 10th rejects Defendant’s 8th Amendment argument.

Friday, September 14, 2007

Eyewitness ID Research at UTEP

In response to a query about whether I knew anything about an eyewitness expert at UTEP, I discovered that there is not only an expert, there's a whole lab dedicated to studying the validity of eyewitness identifications. If you are interested, visit the Eyewitness Identification Research Laboratory At the University of Texas at El Paso.

Wednesday, September 12, 2007

False Imprisonment Not a COV

U.S. v. Ruiz-Rodriguez, --- F.3d ----, 2007 WL 2193677 (10th Cir. 2007): Defendant's prior conviction under Nebraska law for first-degree false imprisonment was not categorically a crime of violence for sentencing purposes.

Conlan Decision Reissued

U.S. v. Conlan, --- F.3d ----, 2007 WL 2538047 (10th Cir. Sept. 6, 2007).

Re-issued opinion, this time without the Begay reference (that because the Defendant in Begay would not have been able to anticipate the district court's sentencing error in applying the presumption of reasonableness, the sentencing court’s error was reviewed for harmless, not plain, error.) It is not a particularly important change. Begay was premised on Bartsma that was overruled in Atencio. While Bartsma still applies to any pre-Atencio sentencing appeals, there are not many of them left.

Unlawful Use of Means of Transportation Not an Aggravated Felony

U.S. v. Sanchez-Garcia, --- F.3d ----, 2007 WL 2537883 (10th Cir. Sept. 6, 2007).

The 10th held that Arizona’s Unlawful Use of a Means of Transportation (UUMT) is not an aggravated felony (USSG § 2L1.2(b)(1)(C)) crime of violence (COV) under 18 U.S.C. § 16(b), remanding Defendant's case for re-sentencing on a guilty plea of re-entry after deportation. The parties agreed that the UUMT does not have as an element the use, attempted use, or threatened use of force and that, therefore, the issue was whether it fell within § 16(b) as involving a “substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

Read this case for the analytical approach taken by the 10th. The court affirmed that under the Taylor categorical approach, the “substantial risk” of “physical force” must inhere in the elements of the offense and not in the specific conduct in which the defendant engaged. When addressing a Sec. 16(b) issue, however, at times the statute might be sufficiently ambiguous to require a review of charging documents to determine what different acts might be swept within the scope of the statute. Here, however, the UUMT was not ambiguous and addressed only one course of conduct. To establish a violation, the only elements which needed proving were that the D (1) knowingly took control (2) without authority (3) of another person's means of transportation.

The 10th outlined its position on the operative elements for a COV: “‘use of force”implies that intentional availment of force is required; “force” refers to destructive or violent force; and “substantial risk” requires a high probability that such force may be employed to carry out the offense itself. The 10th acknowledges that the UUMT encompasses inherently nonviolent conduct, such as borrowing a vehicle with the owner's permission and failing to return it on time. It declines to follow the 5th Circuit, which holds that a similar Texas statue is a COV. The 10th says that while there is some risk the crime would be committed with violence, it is not a substantial risk, and points to the fact that the UUMT can be violated, for example, by returning a rental car after it was due to be returned.

COA Reinstates 1983 Claim Based on Prison's Denying Access to Religious Materials

Kay v. Bemis, No. 07-4032 (10th Cir. Sept. 11, 2007)

Prisoner brought pro se, in forma pauperis action against prison officials under Sec. 1983 alleging 1st Amendment and Religious Land Use and Institutionalized Persons Act violations for denying him certain religious materials; 4th Amendment claim that issuance of parole violation warrant was based on knowingly false information; 8th Amendment cruel and unusual punishment claim in retaliation for seeking legal counsel; and 14th amendment claim of due process deprivation during parole revocation hearing. The 10th reverses the district court and finds 2 of the claims plausibly state a legal claim for relief: (1) in his 1st Amendment claim, Plaintiff sufficiently alleged his religion and the district court prematurely determined that his beliefs were not sincere. Plaintiff did not need to show that the items were necessary to his practice; and (2) P’s claims under the RLUIPA were not the same as his 1st Amendment claims, and the district court failed to discuss them before dismissing them.

Appeal Waiver Enforced

United States v. Smith, No. 06-3239 (10th Cir. Sept. 11, 2007)

Another reminder to be careful of appeal waivers.

10th dismissed Defendant’s appeal ruling that she had entered an enforceable appeal waiver as part of her plea agreement. The waiver of “the right to appeal the sentence in this matter except to the extent, if any, the court departs upwards from the applicable sentencing guideline range determined by the court” encompassed all sentencing challenges except the one explicitly stated. The district court was permitted to find an obstruction of justice based upon facts in an evidentiary hearing and was not limited to the facts stipulated in the plea agreement. Her waiver was knowing and intelligent and the fact the district court indicated she had the right to appeal after the sentencing hearing did not negate the waiver since she entered it before the plea hearing. Under different circumstances the district court’s statement might have rendered the waiver invalid. Finally, it would not be a miscarriage of justice to enforce the waiver. The district court did not constructively reject the plea agreement by assigning two additional points for obstruction of justice, something not contemplated by the plea agreement.

Troopers Had Qualified Immunity in Excessive Force Case

Mecham v. Johnson, No. 05-4297 (10th Cir. Sept. 11, 2007)

In Sec. 1983 action, troopers had qualified immunity against Plaintiff’s claim they used excessive force in their roadside arrest of her. The district court denied summary judgment in favor of the troopers reasoning that the objective reasonableness of the force they used to remove Plaintiff from her car was a jury question. The 10th reversed. The facts were uncontroverted and in the absence of controverted facts, the question of reasonableness is a legal issue. Troopers were objectively reasonable in subduing Plaintiff who was resisting them. Additionally, while troopers’ use of pepper spray may have gone too far, the law on use of it was not clear at the time.

Thursday, September 06, 2007

Immediate Destruction of Meth Lab Under Dep't Policy Not a Due Process Violation

United States v. Beckstead, No. 05-4178 (10th Cir. Sept. 5, 2007)

1. Immediate destruction of meth lab under standard police department policy, which may have deprived Defendant of exculpatory evidence (that fingerprints were not his; that independent weighing of drug quantities would show less drugs than alleged) was not a violation of due process when Defendant could not show that police destroyed the evidence in bad faith. Destruction of evidence according to a standard policy generally precludes a finding of bad faith absent compelling circumstances.

No specific request by Defendant to preserve the evidence though D did not have an opportunity to make such a request before it was destroyed. Defendant’s claim that it was exculpatory was conclusory and there was no objective evidence of its exculpatory nature to put the government on notice. Though the evidence was central to the case, the government had an innocent explanation for its destruction.

2. Defendant waived his 4th Amendment standing argument by raising it for the first time in his reply brief. If addressed on the merits, he had no standing to object to the search of his girlfriend’s apartment. Likewise, he presented a curt, conclusory challenge to the search of his car in his briefs, without citing authority, and waived his argument on that point. If addressed on the merits, search of the car, which was unoccupied at the time and parked in the apartment complex lot, came within the automobile exception. Police, who looked into the car and saw glassware consistent with the manufacture of meth; had a tip; found meth in the nearby apartment; and linked Defendant to the car and the apartment, had PC to believe the car contained contraband. Although there was no exigency associated with the car in this case, police still could conduct a warrantless search.

Conviction for Possession of Child Porn Reversed for Insufficient Evidence of Interstate Commerce

United States v. Schaefer, No. 06-3080 (10th Cir. Sept. 5, 2007)

An excellent defense win. The 10th reverses and remands for entry of a judgment of acquittal for insufficient evidence of the requisite “movement in interstate commerce,” in a case in which D was convicted of receipt and possession of child pornography, in violation of Sec. 2252(a)(2) and (4)(B). The government failed to present any evidence of where a CD with pornographic images was made or received from, where the porn websites he accessed were based, where the websites’ servers were located, or where his internet provider’s server was housed. Probably a prosecutorial error not to be repeated.

The 10th agrees that it is not enough to assume that an Internet communication necessarily traveled across state lines–an Internet transmission, standing alone, does not satisfy the essential jurisdictional interstate commerce element of the statute. The 10th, through J. Holmes, recognizes that superficially it appears that the 10th is breaking with other circuits that hold that Internet use alone satisfies the jurisdictional element, but states that “the true picture is more complicated.” Nice.

The court also invokes its decision in Wilson, 182 F.3d 737 that the jurisdictional nexus cannot be proved by merely showing that the image on the seized porn is of persons who are not from the state where D possessed the porn–that the images originated out of state. The government must prove that the images on the CD in question moved across state lines. Read also for discussion of Commerce Clause in other statutes.

Ominous Tymkovitch concurrence that may be dead wrong: that the court possibly can “take judicial notice of the ubiquitous intestate nature of the Internet.” Sounds like a rebuttable presumption on an element of the crime–I thought that was forbidden.

Tuesday, September 04, 2007

"Minors" Must Actually Be Minors for 2G1.3 Enhancement to Apply

U.S. v. Hill, 2007 WL 2430135 (8/29/07)(unpub'd) - The d.ct. committed reversible plain error when it incorrectly applied an enhancement under USSG § 2G1.3 on the grounds that two of the victims were minors, when in fact they were not minors. The fact that the sentence imposed was 22 months above the correct guideline range established the error seriously affected the fairness, integrity or public reputation of judicial proceedings.

District Court's Explicit Presumption that Guidelines were Reasonable Held Reversible Error

U.S. v. Conlan, 2007 WL 2460234 (8/31/07)(Published) - In light of Rita, the 10th reverses a sentence where the district court explicitly applied the presumption of reasonableness to the guidelines. Importantly, the 10th shows some respect for the parsimony clause, quoting from a Sixth Circuit case that says: "A district court's job is not to impose a reasonable sentence. Rather, a district court's mandate is to impose a sentence sufficient, but not greater than necessary, to comply with the purposes of § 3553(a)(2). Reasonableness is the appellate standard of review in judging whether a district court has accomplished its task." The defendant preserved the error by telling the district judge the presumption was an appellate standard. The error was not harmless, despite the sentencing judge's reference to some of the defendant's bad features, because the judge sentenced at the bottom of the guideline range, the probation office recommended a downward variance, and the judge thought it was a "difficult" case.