Several unpublished 10th Circuit cases of some interest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.
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."
______________________
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.
______________________
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.
posted by Anonymous at 4:07 PM
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