District Court Improperly Applied Presumption of Reasonableness to Guidelines, But Below-Guidelines Sentence Affirmed

US v. Hernandez-Espinoza, Docket No. 07-2107 (Tenth Cir. Nov. 27, 2007) (unpublished): Mr. Hernandez pled guilty to illegal reentry by a deported alien previously convicted of an aggravated felony. The Presentence Report calculated his total offense level as 17 and his criminal history category as I, resulting in an advisory guideline range of 24-30 months.

His counsel filed a sentencing memorandum asking for a sentence of a year and a day because his only prior conviction occurred 13 years earlier and he had a family. The district court expressly agreed with the government that the guidelines range calculated in the PSR was presumptively reasonable and the defendant had the burden of disproving that presumption. The district court, however, then partially granted the requested variance, imposing a 20-month sentence. On appeal, counsel filed an Anders brief. The COA affirmed the sentence and granted the motion to withdraw. Even though the district court's application of the presumption of reasonableness was a non-frivolous issue, the defendant had not objected and therefore it was reviewed for plain error. The fact that the district court ultimately granted a below-guidelines sentence showed that Mr. Hernandez couldn't prove prejudice. Additionally, after reviewing the record, the Court concluded that the sentence as substantively reasonable.

Another Reasonable Within-the-Guidelines Sentence

US v. Rodriguez-Felisola, Docket No. 07-1217 (10th Cir. Nov. 27, 2007) (unpublished): Mr. Rodriguez pled guilty to illegal reentry of a deported alien after conviction of an aggravated felony. The plea agreement required the government to recommend a sentence at the low end of the guideline range. The court did so, sentencing him to 46 months However, the district court rejected his argument for a lower sentence based on the government's delay in prosecuting him because, although ICE was notified of his presence in the US on August 17, 2005, by Colorado authorities, the government waited until conclusion of his state sentence on Dec. 22, 2006, before prosecuting him for the reentry.

Apparently, there was no appeal bar in the agreement, because Mr. Rodriguez appealed his sentence as unreasonably long.

The Tenth Circuit affirmed the sentence. It rejected the government's argument that it lacked jurisdiction to review the sentence becauase it involved a discretionary decision not to depart downward from the advisory guidelines range. The Tenth said it could still evaluate the claim that the sentence was unreasonable. Of course, the sentence was not unreasonable.

Swerving Sufficient to Justify Traffic Stop

US v. Egan, Docket No. 06-3426 (10th Cir. Nov. 27, 2007) (unpublished): Mr. Egan was the passenger in a small "box-type" moving truck traveling through Kansas on I-70. A sheriff's deputy saw the truck veer toward the right side of the right traffic lane, causing the right rear tire to cross the "fog line" onto the shoulder. The truck then returned to the lane. This occurred two or three more times in about a mile, and once both of the right rear dual tires crossed the fog line. Concerned about that the driver might be sick, tired, or drunk, or having mechanical problems, the deputy stopped the truck. The deputy asked the driver for her papers and asked her about her travel plans. He then, for some reason, asked Mr. Egan, the passenger about his travel plans. The two stories were different. The deputy returned the documents to the driver, issued a warning, and said she was free to leave. BUT, he then asked her if he could ask a few more questions. Soon, both the driver and Mr. Egan had given consent to a search of the truck. Marijuana was found hidden in the couches in the truck.

Mr. Egan challenged the stop, asserting that there was no reasonable suspicion to stop the truck because Kan. St. Ann. section 8-1522 only requires a driver to maintain a single lane "as nearly as practicable," and the movement of the truck was minimal in light of the windy weather conditions. The court rejected the argument and distinguished US v. Gregory, 79 F.3d 973 (10th Cir. 2006), noting that in this case there were three instances of swerving and not one, as in Gregory. Additionally, the district court addressed the windy conditions, finding that the deviation in this case was more than would have been caused by the weather. There was also no reason to believe the swerving was in response to the deputy's presence. Thus, reasonable suspicion justified the stop.

Search and Seizure Outline

The Oregon Federal Defenders have updated their search and seizure outline, in which they have been "collecting Fourth Amendment cases for over ten years, integrating defense wins into an outline that provides counterpoints to the trends away from protection of individual rights." Here's the link. While there, check out the Ninth Circuit Blog. Lots of good stuff there.

Amended Rules in Effect on December 1

The Federal Rules of Criminal Procedure and the Federal Rules of Appellate Procedure have been amended effective December 1, 2007. Here's a synopsis.

Federal Rules of Criminal Procedure:

Rules 11(b)(M), 32(d)(1) and (d)(2)(F), and Rule 35(b)(1) have been amended to reflect Booker. Rule 11(b)(M) has been changed to eliminate the requirement that the court advise the defendant of its obligation to apply the Guidelines and instead requires the court to advise the defendant the court must calculate the guideline range and consider it, possible departures and § 3553(a) sentencing factors. With respect to Rule 32 (d)(1), "advisory" is added to the reference to the Guidelines. Rule 32(d)(2)(F) will provide that the court may require the presentence report to include information relevant to § 3553(a). The advisory notes state that this means an individual judge could order this in a particular case or the court as a whole could order it for all cases. The Rule 35(b)(1) change eliminates the requirement that the reduced sentence, in light of the defendant's post-sentence cooperation, be in compliance with the Guidelines.

Significantly, Rule 32(h) does not explicitly require notice of a contemplated variance outside the guideline range, even though such a notice requirement was originally proposed. This is apparently because of the severe split in the circuits on the issue. The notes indicate the matter will be given further study. The 10th Circuit requires the giving of such notice pursuant to United States v. Atencio.

The amendments to Rule 45 make it clear that the three days for mailing are added after all the other time has run. So, for example, the three days after a 30-day time limit that ends on a Saturday will not start to run until the following Monday, giving the party until Thursday. Hurray.

Rule 49.1 is a new rule governing privacy protection in compliance with the E-Government Act. No complete social security numbers, birth dates, addresses. Exceptions include the address that identifies property to be forfeited, the record of an agency or state court proceeding, a pro se filing, warrants or other court filings on criminal matters made before the filing of criminal charges, and a charging document and affidavit in support of that document. The rule provides for filing under seal and filing documents with an identifier that refers to an identifier reference list that is kept under seal.

Federal Rule of Appellate Procedure

No big deal. Rule 25(a) provides that an appeal will be governed by the new rule 49.1 privacy provisions if the case was governed by that rule in the district court. The 10th Circuit has effectively already instituted the privacy provisions of 49.1.

Unpublished Decisions of Interest

U.S. v. Sanchez, 2007 WL 3225378 (10/26/07)(unpub'd) - The 10th made clear a defendant's admission of guilt is not a prerequisite to a minor role adjustment, but found that, while the d.ct. may not have understood that,it also correctly found that the defendant had not met her burden to prove she was a minor participant. The d.ct.'s statements that its sentence at the bottom of the guideline range "is arguably greater than necessary to achieve the goals of sentencing" and that "the Guidelines hold me to a bedrock sentence that is longer than I would choose to give if it were solely discretionary" did not show the d.ct. misunderstood its discretion. The d.ct. is assumed to know the law and so, those statements "that could be read to imply a reluctant acquiescence to the Guidelines" only meant the d.ct. struck a balance between on the one hand, heeding the Guidelines as an expression of Congressional intentions and an effort at sentencing uniformity and, on the other hand, the d.ct.'s discretion under § 3553(a).

U.S. v. Beltran-Lopez, 2007 WL 3226460 (10/31/07)(unpub'd) - The 10th reviews a challenge to the d.ct. treating the guideline range as presumptively reasonable de novo, even though the defendant did not object below. The 10th reasoned that the defendant had no reason to object before the 10th's decision in Begay, 470 F.3d at 976-977, that condemned such a presumption [the conclusion seems correct, but the rationale seems wrong-headed; de novo review should be applicable because the defendant had no reason to anticipate the d.ct. would act so unreasonably]. Nevertheless, the 10th holds that the d.ct. did not employ an inappropriate presumption.

U.S. v. Esparza-Estrada, 2007 WL 3194849 (10/25/07)(unpub'd) - The 10th finds a substantive-unreasonableness argument non-frivolous, [implying that all such arguments are non-frivolous or at the very least, an argument is not necessarily frivolous just because it has no chance of success], despite the filing of an Anders brief. Nonetheless, the 10th rejects the claim because a post-hoc justification for entering a plea resulting in a prior state conviction used to enhance under § 2L1.2 "can't control a sentencing judge's calculation of a defendant's criminal history."

U.S. v. Kelley, 2007 WL 3230402 (11/1/07)(unpub'd) - 2255 movant gets a remand because, although the d.ct. correctly decided the defendant hadn't requested an appeal, the d.ct. did not consider whether the attorney acted unreasonably when he failed to consult with the movant about filing an appeal.

U.S. v. Lopez, 2007 WL 3225383 (10/24/07)(unpub'd) - Because of Fed. R. Evid. 606(b), jury notes cannot be considered in determining whether the jury actually convicted the defendant on an aiding and abetting theory, for which the defendant claimed the evidence was insufficient.

U.S. v. Raifsnider, 2007 WL 3194101 (10/25/07)(unpub'd) - The defendant's "colorful imagination" [ e.g., the IRA hired him to kill someone with a poison blow dart], did not establish that he was incompetent to plead guilty.

Tenth Affirms Denial of Habeas Relief for Prisoner Serving Life Sentence

Johnson v. Mullin, 2007 WL 3120405 (10/26/07)(Published) - The 10th upholds the denial of a habeas petition of a life prisoner. There was sufficient evidence the petitioner was present at the bank at the time of the robbery and killing of four people. It was okay to hold the petitioner liable for felony murder, even if he merely aided and abetted the principal robber. It was okay to refuse to instruct the jury that the petitioner could not be convicted of felony murder if he wasn't present at the bank, because that was not true; he could be absent from the bank and still be guilty of felony murder. The trial outcome would not have been altered if the petitioner was allowed to refresh the memory of his alibi witness because the jury could have found another witness' time estimate more accurate than the alibi witness'. The defendant's letter was admissible to rebut his claim of a horrible childhood and abuse by his co-defendant. The prosecutor's reference to the petitioner engaging in a gay lifestyle was not unduly prejudicial in light of the defense's acknowledgment of the petitioner's gay lifestyle and use of the petitioner's "passive and effeminate characteristics" to show he was bossed around by the co-defendant. The state's presentation of an inmate's testimony about the petitioner's admissions was not a knowing presentation of perjury. While the defense strongly challenged the testimony, it was "entirely plausible" and not "incredible on its face." So also an officer's testimony about the time it took to go from the petitioner's apartment to the bank was not obviously perjury. So also the bank customer's testimony that she remembered two robbers talking to each other after she had twice been shot in the head was not necessarily false, even though no other eyewitness remembered the conversation she remembered. The sentencing proceedings were not rendered unfair by virtue of the prosecutor's "perhaps improper" exhortation to the jury to remain strong. The remarks were not sufficiently egregious.

Errors Held to be Harmless; Escape a COV for Career Offender Purposes

U.S. v. Avalos, 2007 WL 3076918 (10/23/07)(published) - Even if admission of the defendant's admission of prior drug deals was an error, the error was harmless in light of three eyewitnesses identifying the defendant and the "dubious" credibility of the defendant's girlfriend's alibi testimony. It was okay to fail to hold an evidentiary hearing on whether the defendant's statements were obtained in violation of Miranda, because the defendant didn't request one.

Unsurprisingly, the 10th joins the other circuits in holding the government may designate a case agent responsible for an investigation as its representative under Fed. R. Evid. 615(2) so that the agent can listen to all the testimony. But, because the government did not designate the case agent as its representative, the d.ct. erred by failing to instruct him to leave the courtroom when the rule of exclusion was invoked. But, the defendant did not show prejudice under the plain error rule.

There was sufficient eyewitness evidence that the defendant was the person who engaged in the undercover drug deal. The defendant's generalized objection to factual conclusions in the PSR that laid out his guilt did not trigger the d.ct.'s duty to make a finding under Fed. R. Crim. P. 32(i)(3)(B). The 10th adheres to its precedent that escape from jail is a "crime of violence" for career offender purposes.

Extension of Traffic Stop OK

U.S. v. Contreras, 2007 WL 3173964 (10/31/07)(Published) - This is the case with the opinion that the 10th had to withdraw because it assumed reasonable suspicion was all that was necessary to search a car. In the new opinion, the 10th finds a different way to rule against the defendant.

The 10th found there was reasonable suspicion to extend the traffic detention of the defendant where: the defendant was shaking so badly she couldn't hold her documents; her travel plans were problematic in that she said she drove 1200 miles from Nebraska to Las Vegas, Nev., to visit her family and turned around the next day to return to Nebraska; food wrappers from a California restaurant were in the car: and the car was a rental.

The 10th assumed the defendant was still detained when the officer said "You wouldn't mind opening your trunk real quick before I let you go?" But, the defendant's consent to search given after that question was voluntary, thus justifying the trunk search. The officer's casual phrasing, tone of voice, lack of show of force, the broad daylight and the defendant's repeated "okay"s showed the voluntariness. The scope of the consent to search the trunk included inspecting the spare tire in the trunk. Probable cause developed from the suspect tire.

When the defendant fled while under state indictment for the offense that was eventually charged in federal court she obstructed justice under USSG § 3C1.1 Her absence precluded the federal authorities from proceeding with their prosecution of her. This holding is consistent with six circuits' precedent and inconsistent with the 7th Circuit.

Anonymous Caller's Reports Sufficient Basis to Stop Vehicle

U.S. v. Copening, 2007 WL 3173961 (10/31/07)(Published) - Despite applying the significant "skepticism and careful scrutiny" accorded anonymous informants, there was reasonable suspicion to stop defendant where: an anonymous caller told the police a man in a particular pickup truck with a particular license plate had dropped a pistol on the ground and then stashed it under the truck's seat [Oklahoma law prohibits hiding a gun under a seat] and then gave the police several updates on the truck's location as the caller followed the truck around. The caller wasn't completely anonymous because he called from an unblocked phone number, he claimed first-hand knowledge and gave detailed descriptions of what happened, [albeit inconsistent], there was no indication the caller had "iniquitous" intentions, since he said he "hated to see that kind of stuff going on." and an officer corroborated the caller's real-time account of what was happening [which was perfectly innocent]. The 10th stressed the result was wholly driven by the collective facts.

The "felony takedown" [handcuffs, etc.] was okay solely because the truck's occupants were suspected of a weapons violation.

COA Discusses What It Means to Be Legally Insane in Habeas Case

Diestel v. Hines, --- F.3d ----, 2007 WL 3197201 (10th Cir. Nov. 1, 1007): The Tenth Circuit affirms the denial of habeas relief to an Oklahoma habeas petitioner who was sentenced to life without parole for murder. The petitioner raised two claims: (1) the state did not present sufficient evidence to prove beyond a reasonable doubt that he was sane at the time of the offense, and (2) his due-process rights were violated because the court did not instruct the jury about the consequences of a verdict of not guilty by reason of insanity. Although the magistrate had recommended granting relief on the first issue but not the second, the district court denied relief both issues.

Mr. Diestel traveled from California to Oklahoma, where he located the victim at his workplace and shot him. Mr. Diestel contended that, at the time of the shooting, he was suffering from paranoid schizophrenia, which led him to believe that the victim was the evil emporer Nero who was responsible for raping a girl and setting numerous fires in California. Apparently, Mr. Diestel had known the victim in California.

The defense presented expert and lay testimony concerning Mr. Diestel's lengthy history of mental illness. The state presented lay testimony from people who observed the defendant briefly at the time of the shooting, who generally testified he was scary but calm, and expert testimony that, even if Mr. Diestel was a paranoid schizophrenic and was possibly suffering from paranoid schizophrenia on the day of the shooting, he could still understand what he was doing and that it was a criminal act. The state also presented expert testimony that revenge was a possible motive. Mr. Diestel was convicted and the state courts affirmed.

The panel discusses at length what it means to be criminally insane, rather than merely insane, and concludes that there was evidence from which the jury could conclude that Mr. Diestel was not legally insane at the time of the shooting. The court explained that Mr. Diestel was not entitled to an insanity defense if his mental illness led him to believe only that the victim was an evil man who raped women and set fires and he nonetheless understood that the community would regard the victim's murder as wrongful. He would, however, be entitled to an insanity defense if he not only thought the victim was evil, and also thought that he had a mandate from God or President Clinton to kill him or believed that the victim was not really human but actually an evil spirit. However, the evidence that he suffered from the latter delusions was much weaker than the evidence that he thought the victim was evil, so the COA concluded it was not unreasonable for the Oklahoma Court of Criminal Appeals to conclude that there was sufficient evidence to support the jury's verdict that Mr. Diestel was legally sane.

On the second issue, Mr. Diestel had sought a jury instruction to tell the jury that, if found not guilty by reason of insanity, he would be committed to a mental hospital. The COA found that this was not a basis for relief because the trial court's decision was not clearly contrary to any federal law or Supreme Court decision.

Judge Henry concurred, saying that this was a close and difficult case, with the expert testimony "strongly suggesting" that Mr. Diestel was under the influence of hallucinations and unable to appreciate the wrongfulness of his actions at the time of the murder. However, Oklahoma law (unlike the FRE) allow experts to testify as to whether a defendant had the requisite intent to commit the charged crime, and thus the testimony was properly admitted. Judge Henry was disturbed by the state court's reliance on lay witnesses who had only briefly seen the defendant at the time of the shooting. Thus, "[g]iven the above and given what Dr. Call said regarding Mr. Diestel's mental state, I cannot say that, abesnt AEDPA's strictures, I could affirm the OCCA's legal conclusion that Mr. Diestel was sane at the time of the crime."

Judge Henry also notes that, since Mr. Diestel's trial, the Oklahoma courts have essentially adopted the jury instruction he desired. But, too late for him.

New Guideline Amendments Effective Today, November 1, 2007

The new guideline amendments promulgated this past year become effective today, November 1, 2007.

The amendments to section 2D1.2 of the sentencing guidelines are perhaps of the greatest interest. The Drug Quantity Table has been amended so that, for most offenders with crack, the offense level will decrease by two levels. The difficult question is whether the amendment will be retroactive; the USSC will be holding a meeting on this topic on November 13, 2007. If retroactive, many former clients may be entitled to resentencing. Families against Mandatory Minimums has additional information at its website, http://www.famm.org/.

Many other amendments, some related to the Adam Walsh Act, have also been promulgated. There are also amendments to the guidelines governing criminal history calculations, which may result in lower criminal history scores for some. For instance, fish and game violations have now been moved to the "never counted" list of Section 4A1.2. The definition of when prior convictions are related so that they are not counted separately has also been clarified.

For more information please visit the US Sentencing Commission website: http://www.ussc.gov