Tenth Circuit Decisions
U.S. v. Lozano, 2008 WL 241119 (1/30/08) (Published) - A mildly helpful case for an acceptance of responsibility reduction after going to trial. Despite the defendant's assertion in her opening brief that the 10th should review only for plain error her challenge to the one-level acceptance of responsibility reduction, the 10th, in accordance with the government's concession, reviewed for harmless error. The defendant's request for a two-level reduction under § 3E1.1 preserved the issue. As 10th precedent has already established, a sentencing court can only give two levels or no levels under § 3E1.1. The error was not harmless because the district court may very well have chosen the two-level reduction, had it known it could not reduce by only one level. Post-arrest the defendant admitted to her cocaine distributions to the undercover officer and offered to plead guilty to the two distribution counts. She also engaged in rehabilitation efforts. But she refused to plead guilty to the conspiracy count and the government refused to offer a plea absent her pleading to that count. At trial, the defendant did not offer any evidence to counter the distribution charges. She was acquitted of the conspiracy count and convicted of the distribution counts. Because the d. ct. imposed a sentence at the lowest end of the guideline range, the defendant's sentence might be different on remand.
U.S. v. Banks, 07-5010 (2/1/08) (unpub'd) - The trial court erred when it admitted an officer's testimony, as lay opinion, that the defendant "most definitely distributed meth to obtain money." The government initially tried to get that testimony admitted as expert testimony, but the defendant objected that he had not gotten any notice of expert testimony. The 10th points out that the lay-opinion Rule 701 "is not designed to provide a run-around to the expert witness requirements." The government obviously was relying on the officer's specialized training and experience under Rule 702. It was not admissible because the government had not provided notice. Also, while Rule 704 allows experts to offer opinions, even if they embrace the ultimate issue, the rules don't allow an expert to offer testimony that merely tells the jury what result it should reach and, in this case, the testimony was also improper testimony about the defendant's state of mind, which Rule 704(b) prohibits. But, the error was harmless due to overwhelming evidence.
An appellate lawyer's nightmare where the 10th suggests an issue not raised on appeal might have been a good one. Officers evicted the defendant from his hotel room at the hotel's behest after noise complaints. The defendant initially refused to step out of the room as requested, but then as he started to leave, the officers grabbed him, handcuffed him and took him to the lobby. The officers then searched the room without a warrant. The 10th had "serious concerns" about the way the officers "assisted" with the eviction. But, since the defendant did not raise that issue on appeal, although it had been raised below, the 10th assumed the eviction was conducted constitutionally. This was one of the "rare"cases where the 10th could review a suppression issue not raised below, because the record was fully developed. The issue was whether the search conformed to the Fourth Amendment. It did because the defendant did not have a reasonable expectation of privacy in the room once he was properly, justifiably evicted.
U.S. v. Najera-Luna, 2008 WL 276044 (2/1/08) (unpub'd) - § 2L2.1(b)(2)(C)'s enhancement when an offense "involved 100 or more" fake identification documents, refers to documents that could be produced, as well as those that had been produced. Here, the fact that the defendant had photos and materials that could produce more than 100 such documents was enough to warrant the enhancement.
U.S. v. Ludvigson, 2008 WL 276043 (2/1/08) (unpub'd) - Plain error review applied to unobjected-to occupational supervised release restrictions because the defendant should have had an inkling they might have been imposed, given the bank fraud charges and the statutory and guideline provisions noting the possibility of such restrictions. The restrictions were okay here.
Reed v. U.S., 2008 WL 228027 (1/29/08) (unpub'd) - The petitioner could not challenge the BOP's failure to give him credit for presentence confinement until the BOP makes a confinement credit determination, which the BOP had not yet gotten around to. So, the petition had to be dismissed as not ripe.
Wellington v. Mukasey, 2008 WL 276047 (2/1/08) (unpub'd) - Just a Kafka-esque example of what gyrations a federal court can put a pro se prisoner through. The prisoner's petition must be dismissed for failure to exhaust his administrative remedies because in federal court he claimed the BOP's decision to treat his sentences as consecutive violated due process whereas administratively the prisoner only complained the BOP couldn't treat them as consecutive. It was too late now to raise the issue he raised administratively, despite all that liberal reading of pro se pleadings.
U.S. v. Banks, 07-5010 (2/1/08) (unpub'd) - The trial court erred when it admitted an officer's testimony, as lay opinion, that the defendant "most definitely distributed meth to obtain money." The government initially tried to get that testimony admitted as expert testimony, but the defendant objected that he had not gotten any notice of expert testimony. The 10th points out that the lay-opinion Rule 701 "is not designed to provide a run-around to the expert witness requirements." The government obviously was relying on the officer's specialized training and experience under Rule 702. It was not admissible because the government had not provided notice. Also, while Rule 704 allows experts to offer opinions, even if they embrace the ultimate issue, the rules don't allow an expert to offer testimony that merely tells the jury what result it should reach and, in this case, the testimony was also improper testimony about the defendant's state of mind, which Rule 704(b) prohibits. But, the error was harmless due to overwhelming evidence.
An appellate lawyer's nightmare where the 10th suggests an issue not raised on appeal might have been a good one. Officers evicted the defendant from his hotel room at the hotel's behest after noise complaints. The defendant initially refused to step out of the room as requested, but then as he started to leave, the officers grabbed him, handcuffed him and took him to the lobby. The officers then searched the room without a warrant. The 10th had "serious concerns" about the way the officers "assisted" with the eviction. But, since the defendant did not raise that issue on appeal, although it had been raised below, the 10th assumed the eviction was conducted constitutionally. This was one of the "rare"cases where the 10th could review a suppression issue not raised below, because the record was fully developed. The issue was whether the search conformed to the Fourth Amendment. It did because the defendant did not have a reasonable expectation of privacy in the room once he was properly, justifiably evicted.
U.S. v. Najera-Luna, 2008 WL 276044 (2/1/08) (unpub'd) - § 2L2.1(b)(2)(C)'s enhancement when an offense "involved 100 or more" fake identification documents, refers to documents that could be produced, as well as those that had been produced. Here, the fact that the defendant had photos and materials that could produce more than 100 such documents was enough to warrant the enhancement.
U.S. v. Ludvigson, 2008 WL 276043 (2/1/08) (unpub'd) - Plain error review applied to unobjected-to occupational supervised release restrictions because the defendant should have had an inkling they might have been imposed, given the bank fraud charges and the statutory and guideline provisions noting the possibility of such restrictions. The restrictions were okay here.
Reed v. U.S., 2008 WL 228027 (1/29/08) (unpub'd) - The petitioner could not challenge the BOP's failure to give him credit for presentence confinement until the BOP makes a confinement credit determination, which the BOP had not yet gotten around to. So, the petition had to be dismissed as not ripe.
Wellington v. Mukasey, 2008 WL 276047 (2/1/08) (unpub'd) - Just a Kafka-esque example of what gyrations a federal court can put a pro se prisoner through. The prisoner's petition must be dismissed for failure to exhaust his administrative remedies because in federal court he claimed the BOP's decision to treat his sentences as consecutive violated due process whereas administratively the prisoner only complained the BOP couldn't treat them as consecutive. It was too late now to raise the issue he raised administratively, despite all that liberal reading of pro se pleadings.
posted by Anonymous at 9:31 AM
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