Tenth Circuit Decisions
A few 10th Circuit cases:
U.S. v. Shurtz, 2007 WL 4418180 (12/19/07)(Published) - Another imaginative defense argument bites the dust. The defendant argued 21 CFR § 1038.12(d) required the government to prove the meth he possessed was of sufficient quantity to have a stimulant effect on the central nervous system. That provision lists as Schedule II controlled substances: "any material, compound, ... which contains any quantity of the following substances having a stimulant effect on the central nervous system." It then lists meth, among other substances. The 10th held that the "any quantity ... having a stimulant effect ..." phrase was descriptive, not limiting. The 10th reasoned that when Congress intended the quantity to be dispositive it indicated so unequivocally.
Fricke v. Secretary of the Navy, 2007 WL 4305575 (12/11/07)(Published) - The 10th could review de novo whether the military had jurisdiction of the petitioner, even if the military fairly and fully addressed his constitutional claims. The military did have jurisdiction, even though the petitioner had received notice that he would be involuntarily discharged on a certain date, [absent certain events happening that didn't happen], before his trial commenced. A military person is not discharged until the military issues a discharge certificate or certificate of release. The military did not issue any such certificate.
U.S. v. Le, 2007 WL 443392 (12/18/07)(Unpub'd) - A good case to cite against the government's appeal waiver argument when raised for the first time in its answer brief. In that circumstance in this case, the 10th elects to address the sentencing issues the defendant raised, where "the case can be easily resolved on other grounds and the merits of the appeal-waiver assertions are subject to serious question" and raising the appeal waiver issue so late eliminated the conservation of resources that an appeal waiver is supposed to bring.
The 10th notes § 3553(g)'s apparent categorical requirement of a prison term if the defendant possesses a controlled substance in violation of supervised release has an exception under § 3583(d), if the defendant is amenable to treatment. Here, though, the defendant didn't argue that point and so the 10th affirmed the imposition of a prison term and refusal to continue supervised release.
U.S. v. Archuleta, 2007 WL 4244363 (12/4/07)(unpub'd) - The 10th reverses the district court's awarding of a minor role adjustment, which means the defendant also loses the 3-level reduction under § 2D1.1(a)(3). The 10th relied on the facts that the defendant obtained the drugs from the source, decided the ultimate price and delivered the drugs to the officers.
Davis v. Warden, 2007 WL 4403737 (12/14/07)(unpub'd) - The 10th is unimpressed with the 2255's movant's excuse for not filing his motion sooner: his skin disease infected his legal papers requiring their destruction.
U.S. v. Shurtz, 2007 WL 4418180 (12/19/07)(Published) - Another imaginative defense argument bites the dust. The defendant argued 21 CFR § 1038.12(d) required the government to prove the meth he possessed was of sufficient quantity to have a stimulant effect on the central nervous system. That provision lists as Schedule II controlled substances: "any material, compound, ... which contains any quantity of the following substances having a stimulant effect on the central nervous system." It then lists meth, among other substances. The 10th held that the "any quantity ... having a stimulant effect ..." phrase was descriptive, not limiting. The 10th reasoned that when Congress intended the quantity to be dispositive it indicated so unequivocally.
Fricke v. Secretary of the Navy, 2007 WL 4305575 (12/11/07)(Published) - The 10th could review de novo whether the military had jurisdiction of the petitioner, even if the military fairly and fully addressed his constitutional claims. The military did have jurisdiction, even though the petitioner had received notice that he would be involuntarily discharged on a certain date, [absent certain events happening that didn't happen], before his trial commenced. A military person is not discharged until the military issues a discharge certificate or certificate of release. The military did not issue any such certificate.
U.S. v. Le, 2007 WL 443392 (12/18/07)(Unpub'd) - A good case to cite against the government's appeal waiver argument when raised for the first time in its answer brief. In that circumstance in this case, the 10th elects to address the sentencing issues the defendant raised, where "the case can be easily resolved on other grounds and the merits of the appeal-waiver assertions are subject to serious question" and raising the appeal waiver issue so late eliminated the conservation of resources that an appeal waiver is supposed to bring.
The 10th notes § 3553(g)'s apparent categorical requirement of a prison term if the defendant possesses a controlled substance in violation of supervised release has an exception under § 3583(d), if the defendant is amenable to treatment. Here, though, the defendant didn't argue that point and so the 10th affirmed the imposition of a prison term and refusal to continue supervised release.
U.S. v. Archuleta, 2007 WL 4244363 (12/4/07)(unpub'd) - The 10th reverses the district court's awarding of a minor role adjustment, which means the defendant also loses the 3-level reduction under § 2D1.1(a)(3). The 10th relied on the facts that the defendant obtained the drugs from the source, decided the ultimate price and delivered the drugs to the officers.
Davis v. Warden, 2007 WL 4403737 (12/14/07)(unpub'd) - The 10th is unimpressed with the 2255's movant's excuse for not filing his motion sooner: his skin disease infected his legal papers requiring their destruction.
posted by Anonymous at 9:38 AM
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