Restitution Order for Lost Income of Deceased Infant Affirmed

US v. Serawopp, Docket No. 06-4022 (Tenth Cir. Oct. 25, 2007)(published):
COA affirms the district court's order of restitution for the victim's lost earnings after the defendant was convicted of voluntary manslaughter of his three-month-old daughter, Beyonce. The restitution is payable to the victim's estate, and her mother is the representative. The district court had awarded restitution in the amount of $325,721, based on the assumptions that Beyonce would begin working at age 17 and would not have a high school diploma, and also included the amount of her anticipated tribal stipend.

The court held that the MVRA allows a court to order restitution for lost future earnings of a victim. Additionally, although the MVRA does not authorize restitution for such speculative reimbursements as pain and suffering, the court could order restitution for the lost future earnings of a deceased infant. Finally, the district court did not abuse its discretion in declining to reduce the restitution amount in any manner for Beyonce's expected consumption of her earnings.

Several unpublished 10th Circuit cases of some interest

U.S. v. Woody, 2007 WL 2974066 (10/12/07)(unpub'd) - An excellent insufficiency victory. First, the 10th dismissed as substantive evidence the defendant's arguably suspicious statement. Even false exculpatory statements cannot be used as direct evidence of guilt, the 10th pointed out. Second, the 10th found relevant evidence the defendant's hand was too injured for him to use in the stabbing, even though the evidence is supposed to be viewed in the light most favorable to the government. While the government doesn't have to eliminate all reasonable hypotheses of innocence, the 10th said, "readily available inferences of innocence" must be factored into the evidence-sufficiency determination.

Hastings v. Barnes, 2007 WL 3046321 (10/18/07)(unpub'd) - The 10th finds the plaintiff-estate's allegations would entitle him to relief. The police legitimately acted in self-defense, but they had unreasonably precipitated the need for deadly force by crowding themselves in the doorway of the deceased's room (leaving no room for retreat), issuing loud and forceful commands and pepper-spraying the deceased when he was not threatening them, where the police knew the deceased was emotionally distraught, Although the deceased was holding a sword, he was holding it in a defensive position. Officers act unreasonably when they "aggressively confront an armed and suicidal/emotionally disturbed individual without gaining additional information or by approaching him in a threatening manner."
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A series of cases upholding sentences above the guideline range [the logic of which could be used in support of sentences below the range]

U.S. v. Johnson, 2007 WL 2891033 (10/3/07)(unpub'd) - In upholding upward departure based on combo of 4 factors, the 10th stressed that, to be a valid factor in a combo, any individual factor does not have to meet the USSG § 5K2.0(A)(3) requirement that the factor be present substantially in excess of what is ordinarily present. Rather, it's enough if the factor is present to a substantial degree.

U.S. v. Chapple, 2007 WL 3046297 (10/18/07)(unpub'd) - The 10th had previously reversed a 33-month sentence for sending a letter with white powder, on the grounds that the d.ct. improperly refused to group the offenses based on the notion that others besides the woman to whom the envelope was addressed were victims. The only victim, the 10th ruled, was the addressee, saying: "the 33 month sentence falls clearly outside of the national norm established by the Guidelines for the crimes of conviction." Now, the 10th upholds the same 33 month sentence because the d.ct. varied under § 3553(a), based in part on the fact that other people besides the addressee were frightened by the envelope. The d.ct. could vary based on grounds not available under the Guidelines. In the course of the decision, the 10th also opined that, even though the crime happened 3 years after 9/11/01, "this country continues to experience a heightened fear of terrorist activity."

U.S. v. Finney, 2007 WL 3047335 (10/19/07)(unpub'd) - The 10th upholds a ten-year sentence for violating supervised release. The d.ct. gave good enough reasons based on the defendant's failure to abide by his conditions and committing three armed robberies.

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U.S. v. Perez, 2007 WL 3011046 (10/16/07)(unpub'd) - In rejecting an argument that the d.ct. failed to give sufficient reasons for a supervised-release violation sentence, where the d.ct. gave no reasons for its sentence, the 10th acknowledges the tension between its recent decision in U.S. v. Cereceres-Zavala, 2007 WL 2421755 (8/28/07) and its decision in U.S. v. Sanchez-Juarez, 446 F.3d 1109 (2006), which found an equally-obtuse explanation inadequate. Ripe for en banc?

U.S. v. Martinez-Martinez, 2007 WL 2981368 (10/12/07)(unpub'd) - Self-destructive defendant undermines safety valve sentence below ten-year minimum. The d.ct. was going to consider the defendant's post-arrest statements as sufficient debriefing to satisfy the information-providing safety-valve provision. However, at sentencing, the defendant disavowed his prior statements.

State Prisoner Has No Right to Prompt Preliminary Hearing on Federal Revocation

US v. Swenson, No. 07-4138 (unpublished):
Mr. Swenson is a state prisoner serving time in a Utah prison. At the time of his state conviction, he was on federal supervised release. Accordingly, he wanted the federal district court to promptly grant him a preliminary hearing on the revocation of his supervised release. The district court refused to do so because Mr. Swenson is in primary state custody, and the COA agreed. Federal Rule of Criminal Procedure 32.1(a), which requires that anyone "held in custody for violating probation or supervised release must be taken without unnecessary delay before a magistrate judge," applies only to those persons in federal custody. Mr. Swenson is in state custody and therefore must wait until his state prison sentence is completed.

Upward Departure Affirmed

US v. Yazzie, No. 05-2303 (unpublished):
The COA affirmed an upward departure from 10-16 months to 18 months, after the district court determined that Mr. Yazzie's criminal history category of I was underrepresented because of two prior tribal convictions for battery and that CH II better represented his history. The COA concluded that the departure was reasonable under USSG 4A1.3, notinig that 4A1.3(i) allows for consideration of tribal convictions. The district court's characterization of the prior convictions as crimes of violence based on arrest reports did not undermine the reasonableness of the upward departure because it was unnecessary. Shepard v. US did not apply because under the guidelines, only reliable information was required; Shepard applies only when the classification of a prior offense must be determined. Finally, the sentence was reasonable under 3553(a).

Some important points are made in footnotes: The COA concludes that Mr. Yazzie had sufficient notice of the potential upward departure because the PSR stated the factors warranting departure. It also recognizes that the presumption of reasonableness for properly calculated GL sentences applies only on appellate review. In another footnote, it states that "[i]it is not clear that a sentence departing from the guidelines, even if properly done, is entitled to a presumption of reasonablenss. Accordingly, we do not employ the presumption in this case."

Date of Docket Entry Starts Time for Filing NOA, But Failure to Object to PSR Invites Any Error Re: Reasonableness of Sentence

U.S. v. Mancera-Perez, -- F.3d --, 2007 WL 2823479 (10th Cir. 10/1/07) - appeal filed 33 days after district court judgment was filed was timely because the judgment was only entered on the court's docket 3 days before the notice of appeal was filed. Mr. Mancera-Perez pled to re-entry and got a 16-level increase based on a state statutory rape conviction. He filed no objections to the PSR and at sentencing, his lawyer agreed that the 46-month sentence imposed was appropriate. The court concludes that he thus invited and waived any sentencing error there was re: the reasonableness of his sentence.

Motions to Suppress and Dismiss Indictment Properly Denied; On Gov't's Cross-Appeal, Gov't Failed to Prove Prior CA Conviction was a Felony

US v. Sierra-Estrada, 2007 WL 2827694 (10th Cir. Oct. 1, 2007) (unpublished): Defendant convicted of conspiring to distribute meth and received mandatory minimum ten years' imprisonment. Defendant appealed (1) his motion to suppress inculpatory statements he made to Federal Bureau of Investigation (FBI) agents, (2) his motion to dismiss the indictment based on the government's deportation of a material witness, and (3) his motion for a mistrial based on prosecutorial misconduct during the rebuttal portion of the government's closing argument. The government cross-appealed his sentence, contending he should have received a 20-year sentence under 21 U.S.C. § 841(b)(1)(A). The COA affirmed.

The motion to suppress was properly denied because Defendant's asking FBI agents whether he could get a lawyer in the future was not an invocation of his right to counsel.

Dismissal of the indictment was properly denied because district court found there was no bad faith in the deportation of the material witness and the defendant agreed to allow admission of the matwit's exculpatory statements in the FBI reports at trial, so the deportation was not a due process or compulsory process clause violation. Besides the other evidence was overwhelming and having the mat wit there probably wouldn't have made a difference.

The prosecutorial misconduct involved the prosecutor invoking President Reagan (whose funeral was held the day after closing arguments). He stated: "Tomorrow, our nation lays to rest President Reagan. Those of you who were alive during the presidency will remember he often talked about America being a shining city on the hill. We stand for something. We stand for the right to have a jury trial when you're accused by the United States of America of a crime. That doesn't mean that the jury trial has to find beyond any doubt that you're guilty. It's beyond a reasonable doubt. Your duty, as you retire to deliberate, is to be part of that city on the hill. Tell Sierra-Estrada that coming to our country to deal methamphetamine, to deal heartache, to deal heartbreak, to deal destruction is wrong and we will not stand for it." Even though the comment arguably invoked "ethnic innuendo," the COA rejected the argument that harmless error did not apply. In light of the overwhelming evidence, the comment -- whether or not improper -- was harmless beyond a reasonable doubt.

But, on the cross-appeal, the defendant keeps his 10-year sentence, rather than the 20 years the government wanted. The government contended defendant had a prior felony conviction for violating Cal. Health & Safety Code §11352. At sentencing, the government presented (1) the original felony complaint alleging that defendant violated Cal. Health & Safety Code §§ 11351 and 11352; (2) the information charging him with a violation of § 11352; (3) the docket report showing that he pleaded guilty to § 11352; (4) the disposition record showing that he pleaded guilty to § 11352; and (5) a California booking photograph of him. The district court questioned whether the prior conviction was a felony, noting that the word "felony" was crossed out on some crucial documents and the sentence was misdemeanor in nature -- 49 days imprisonment and probation -- and ultimately concluded that the prior conviction was not proven to be a felony. The COA agreed.

Notably, the COA observes in footnote 2 that the government's opening brief in its cross-appeal is "rife with error." It mis-cited the statute of the defendant's prior conviction and tried to rely on a document that had not been introduced into evidence below.

No Equitable Tolling for State Habeas Petitioner

Laurson v. Leyba, 2007 WL 2874444 (10th Cir. Oct. 3, 2007): State habeas petitioner was properly denied a certificate of appealability where his AEDPA statute of limitations expired in 1999, well before the time he filed his state habeas petition in 2001. Petitioner presented two arguments for equitable tolling: he was dyslexic and was "actually innocent." The time was not tolled by his dyslexia. Additionally, his "actual innocence claim" was rejected on the bases that: 1) a claim that the crime of which he was convicted "does not exist" in Colorado is an issue of state law; 2) a claim that his guilty plea was erroneous does not equal actual innocence; and 3) the doctrine of "actual innocence" does not apply to persons convicted of noncapital crimes.

Dicta Suggests Surrender to Authority Based on Knowledge of Warrant Would Be A Seizure

Cummisky v.Mines, No. 06-5028 (9/28/07) (unpub'd) - While rejecting the plaintiff's 4th Amendment claims, in dicta the 10th suggests a person would be seized for purposes of the 4th Amendment if the person surrenders to state authority after learning of an outstanding warrant.

Jail Reg Limiting Prisoners' Book Access Not Unconstitutional

Jones v. Salt lake County, 2007 WL 281594 (9/28/07) (Published) - Allowing inmates to receive books only from the publisher or the jail library is not unconstitutional. It doesn't matter that the policy is unwritten and unpublicized. Also okay is prohibiting access to pictures of breasts and genitalia and publications containing information on weapons, escapes, how to make alcohol, how to hide contraband and how to move contraband. While sending the issue back for further consideration, the 10th also suggests banning prisoner access to all catalogs may be just fine.