Unpublished Decisions of Interest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.