Tenth Circuit Decisions
Jenkins v. Currier, 2008 WL 186866 (1/23/08) (Published) - State officers did not violate the plaintiff's Fourth Amendment or due process rights when they arrested the plaintiff and took him to the penitentiary without a warrant or a hearing. The plaintiff had been mistakenly released after serving time in federal custody, instead of being transferred to state custody to finish serving a state sentence. The plaintiff's situation was like that of an escaped prisoner, even though he did nothing wrong.
Clark v. Edmunds, 2008 WL 185615 (1/23/08) (Published) - An officer did not violate the plaintiff's substantive due process rights when he knocked over the plaintiff, while taking the plaintiff's arrested daughter to a police vehicle. This split-second decision to clear the officer's path did not shock the conscience, whether or not the plaintiff intended to interfere with her daughter's seizure.
U.S. v. Doe, 2008 WL 116291 (1/11/08) (Unpublished) - The 10th affirms an upward departure, [not variance], from 108 months to 188 months due to criminal history under-representation, where the defendant accumulated 30 criminal history points. After being ordered by the 10th in a prior appeal to consider the defendant's cooperation, the district court remained unimpressed with that cooperation, since the defendant knew a lot because he was completely ensconced in a criminal lifestyle.
U.S. v. Akers, 2008 WL 152604 (1/16/08) (Unpublished) - The 10th affirms another upward departure, [not variance], this time from 175 months to 327 months, due to the defendant's repeated fraudulent activity, even while he was in custody after the indictment was filed in the instant case. Interestingly, the 10th asserts its review of the departure is more deferential under Booker, Rita and Gall, than under pre-Booker law, even though it was reviewing a departure, not a variance.
U.S. v. Hahn, 2008 WL 142784 (1/15/08) (Unpublished) - The 10th reaffirms the notion that the fact that a sentence must be [as opposed to may be] imposed consecutively is a collateral matter that no one, neither counsel nor the court, has to inform the defendant about before the defendant pleads guilty.
U.S. v. Lyman, 2008 WL 149993 (1/16/08) (Unpublished) - An appellate waiver with an exception for appealing "illegal" sentences does not allow for the appeal of the misapplication of the guidelines. A sentence is "illegal" when, for example, it is beyond the statutory maximum. It is not "illegal" due to mere ordinary legal errors. Gall does not change that proposition.
U.S. v. Prieto-Chavez, 2008 WL 193234 (1/23/08) (Unpublished) - The 10th expresses reluctance to apply plain error, rather than harmless error, review, to the district court's mistaken application of the presumption of reasonableness to the guidelines. The 10th notes the sentencing occurred before the 10th's decision in U.S. v. Begay, 470 F.3d 964, 977 (10th Cir. 2006), that it was wrong to refuse to impose a sentence outside the guideline range unless the range was unreasonable. So, the defendant might have had an excuse not to object to the judge's application of the presumption. Nevertheless, the government proved the presumption error was harmless because Judge Johnson had indicated the low-end sentence satisfied the ยง 3553(a) factors.
Cabrera v. Zavaras, 2008 WL 152592 (1/16/08) (Unpublished) - The good news: a prisoner is "in custody" for habeas purposes when a detainer is filed against him while he's detained in another jurisdiction's custody. The bad news: because the prisoner was "in custody" when the detainer was filed, the AEDPA statute of limitations began to run at that time and the prisoner's habeas petition is now time-barred.
Clark v. Edmunds, 2008 WL 185615 (1/23/08) (Published) - An officer did not violate the plaintiff's substantive due process rights when he knocked over the plaintiff, while taking the plaintiff's arrested daughter to a police vehicle. This split-second decision to clear the officer's path did not shock the conscience, whether or not the plaintiff intended to interfere with her daughter's seizure.
U.S. v. Doe, 2008 WL 116291 (1/11/08) (Unpublished) - The 10th affirms an upward departure, [not variance], from 108 months to 188 months due to criminal history under-representation, where the defendant accumulated 30 criminal history points. After being ordered by the 10th in a prior appeal to consider the defendant's cooperation, the district court remained unimpressed with that cooperation, since the defendant knew a lot because he was completely ensconced in a criminal lifestyle.
U.S. v. Akers, 2008 WL 152604 (1/16/08) (Unpublished) - The 10th affirms another upward departure, [not variance], this time from 175 months to 327 months, due to the defendant's repeated fraudulent activity, even while he was in custody after the indictment was filed in the instant case. Interestingly, the 10th asserts its review of the departure is more deferential under Booker, Rita and Gall, than under pre-Booker law, even though it was reviewing a departure, not a variance.
U.S. v. Hahn, 2008 WL 142784 (1/15/08) (Unpublished) - The 10th reaffirms the notion that the fact that a sentence must be [as opposed to may be] imposed consecutively is a collateral matter that no one, neither counsel nor the court, has to inform the defendant about before the defendant pleads guilty.
U.S. v. Lyman, 2008 WL 149993 (1/16/08) (Unpublished) - An appellate waiver with an exception for appealing "illegal" sentences does not allow for the appeal of the misapplication of the guidelines. A sentence is "illegal" when, for example, it is beyond the statutory maximum. It is not "illegal" due to mere ordinary legal errors. Gall does not change that proposition.
U.S. v. Prieto-Chavez, 2008 WL 193234 (1/23/08) (Unpublished) - The 10th expresses reluctance to apply plain error, rather than harmless error, review, to the district court's mistaken application of the presumption of reasonableness to the guidelines. The 10th notes the sentencing occurred before the 10th's decision in U.S. v. Begay, 470 F.3d 964, 977 (10th Cir. 2006), that it was wrong to refuse to impose a sentence outside the guideline range unless the range was unreasonable. So, the defendant might have had an excuse not to object to the judge's application of the presumption. Nevertheless, the government proved the presumption error was harmless because Judge Johnson had indicated the low-end sentence satisfied the ยง 3553(a) factors.
Cabrera v. Zavaras, 2008 WL 152592 (1/16/08) (Unpublished) - The good news: a prisoner is "in custody" for habeas purposes when a detainer is filed against him while he's detained in another jurisdiction's custody. The bad news: because the prisoner was "in custody" when the detainer was filed, the AEDPA statute of limitations began to run at that time and the prisoner's habeas petition is now time-barred.
posted by Anonymous at 5:02 PM
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