Not Error to Preclude Evidence of Intoxication in Reentry Case

US v. Hernandez-Hernandez, No. 07-2028, 3/21/08 )Published) - Previously deported defendant became very drunk in a Palomas, Mexico, bar, and then was found in the US and had no memory of how he got there. District court did not allow him to present evidence of his intoxication in his 1326 prosecution for being found in the US after deportation. The defendant conceded that voluntary intoxication is not a defense to the mens rea requirement here, general criminal intent, but argued that it was possible that he might have been dragged across the border or otherwise brought here against his will. Having blacked out, though, he had no evidence to show that's what actually happened. This made his proffered testimony establishing his intoxication irrelevant - "Relevant evidence does not include the suggestion of speculative possibilities" - and district court properly granted government's motion in limine to exclude it.

Habeas Petition Reinstated

Yellowbear v. Wyoming Attorney General, 2008 WL 748367 (3/21/08) (published) - The district court was wrong to hold the habeas 2254 petitioner had failed to exhaust his state remedies. When the petitioner filed his petition, he had not yet been convicted, but he had already argued before the state's highest court, [and obtained a decision from that court], that the state had no jurisdiction over his alleged offense, on the grounds that the offense occurred in Indian Country, But rather than decide the jurisdictional question, the 10th remanded to the district court to ask the petitioner if it would be okay to treat the petition, which pre-conviction was a 2241 petition, as a 2254 petition, because now the petitioner had been convicted. The petitioner needed to be warned any subsequent petition complaining about his conviction would be considered a successive petition, if his current petition were converted to a 2254 petition.

Example of Below-GL Reentry Sentence

US v. Gonzalez-Carballo, No. 07-2155 (D.N.M. No. 07-489): Although this appeal was filed as an Anders brief and the Tenth Circuit agreed, it is notable because the aggravated reentry defendant received a below-guidelines sentence of 24 months. The original guidelines sentencing range was criminal history category III, offense level 21. His prior was related to alien smuggling. Probation agreed that his CH was over-represented. The sentence imposed by the district court was 22 months less than the original advisory range and 17 months less than the range calculated using category II.

Unpublished but Interesting Decisions

U.S. v. Delgado, 2008 WL 647512 (3/10/08) (unpub'd) - The defendant fails the fourth prong of the plain error test where the district court post-Booker, stated: "the 10th has told sentencing judges they are normally to abide by the guideline ranges except for extraordinary circumstances" and defense counsel failed to object to this obvious misconception of Booker. "Objective consideration of the § 3553(a) factors did not warrant a departure from the guideline range" so as to satisfy the fourth prong.

Burgess v. Houseman, 2008 WL 647522 (3/10/08) (unpub'd) - The plaintiff pleaded facts that established Fourth Amendment and due process violations where she alleged social workers detained her child and kept the child from her custody, without a hearing, after child abuse allegations against the child's father, but none against the plaintiff mother.

Turner v. Houseman, 2008 WL 647526 (3/10/08) (unpub'd) - The plaintiff pleaded facts that established Fourth Amendment and due process violations where he alleged he was detained and his house searched, without a hearing, based on his girlfriend's accusations of child sexual abuse that were not supported by probable cause.

Barron v. Macy, 2008 WL 681718 (3/11/08) (unpub'd) - The plaintiff prisoner did not state a constitutional claim when he alleged he was in pain and neglected for hours after his finger was broken when it was caught in a van door during his transportation, because the prisoner did not assert that his hand evidenced features that the officers should have noticed, other than his complaints of pain.

Sec. 1983 Case Remanded for Findings on Timeliness

Mondragon v. Thompson, 2008 WL 624434 (3/10/08) (pub'd) - The plaintiff's right to sue based on his detention following the issuance of a forged warrant accrued at the time he was released or due process proceedings began, whichever came first. The Fourth Amendment claim was filed too late if it accrued before the plaintiff's release. The due process claim (essentially malicious prosecution) did not begin to accrue until a favorable termination of the proceedings, in this case when the plaintiff was released, making that claim timely here. The 10th reverses dismissal of the claims and remands for the N.M. district court to address when the claims accrued pursuant to Wallace v. Kato, 127 S. Ct. 1091 (2007).

Summary Judgment in Favor of Bullying City Official Correct in 1983 Case

Williams v. Berney, --- F.3d ----, 2008 WL 708436 (10th Cir. March 18, 2008).

Summary judgment was proper on substantive due process claim under § 1983 against city licensing official who bullied and assaulted business owners who did not have proper license. Attempting to distinguish 1983 claims from general tort claims, the 10th created a framework for analyzing claims for use of excessive force by public officials who are not otherwise authorized to use force, holding that a Plaintiff must show that such official abused governmental authority as an integral element of the attack. In what seems tautological reasoning, the 10th held that the official did not abuse his governmental authority (because he was not authorized to use force).

BIA Correctly Construed State Conviction As Meeting Federal Child Abuse Definition

Ochieng v. Mukasey, ___F.2d. ___ (10th Cir. 2008, Feb. 6, 2008)

The 10th ordered published, nunc pro tunc, this decision from earlier this year. The 10th denies Petitioner’s request for review of the BIA dismissal of his appeal from an order of removal. Immigration judge could rely on minute order to determine what was the removal-worthy offense for which the Petitioner was convicted. The BIA reasonably construed the Petitioner's prior Idaho conviction for injury to children as one that met the federal statutory definition of child abuse–-a removable offense of conviction.

Tipster Sufficiently Reliable; Denial of Suppression Motion Affirmed

U.S. v. Sanchez, -- F.3d --, 2008 WL 697398 (10th Cir. 3/17/08) - the 10th upholds denial of suppression motion. Police were flagged down by an unknown woman who reported she saw a man hitting a woman in the face at a nearby intersection. Police went there, found neighbors pointing at two cars pulling out quickly from an area driveway, and stopped both vehicles. A pat-down search uncovered meth and driver consented to search. Police found a gun that seemed to belong to Sanchez and he admitted he was a felon. Court finds reasonable suspicion for the stop based on a motive by the tipster that was less suspect than typical because she was seeking help for a victim, her face-to-face report that indicated she could be held liable if her info was false, the pointing neighbors, and the haste of the departing vehicles. The pat-down search was justified by officer safety concerns.

Former CEO's Insider Trading Convictions Reversed; Expert Improperly Excluded

U.S. v. Nacchio, -- F.3d --, 2008 WL 697382 (10th Cir. 3/17/08) - reversal of former Qwest CEO's convictions on 19 counts of insider trading because testimony of defense expert was wrongly excluded. The defense adequately disclosed the expert's opinions and qualifications under Rule 16; the district court was wrong in excluding testimony on the basis that the defense improperly failed to disclose expert methodology and the error was not harmless. The government could have contested methodology at a Daubert hearing. It was OK to exclude evidence of certain classified information; the evidence would not have exonerated Mr. Nacchio. Read opinion for lengthy analysis upholding sufficiency of the evidence and correctness of jury instructions on various counts.

Info on Internet Legal Research Sites

Law.com has this article on resources for free legal research on the internet. Entitled "Online Legal Research Revolution," by Robert Ambrogi, it discusses trends and developments in increasing free and public access to legal materials, with links to some of the excellent public-domain resources available on the net. Some are searchable.

One very useful resource for Tenth Circuit practitioners not mentioned in the article is Washburn University's website with Tenth Circuit opinions. This searchable database of Tenth Circuit decisions since 1997 has links to other federal resources, as well.

New Edition of "Introduction to Federal Sentencing" Available

"An Introduction to Federal Sentencing: Tenth Edition" is now available from the Western District of Texas. This new edition of the extremely useful introduction to the intricacies of federal sentencing procedure covers Booker and the advisory guidelines, nuts and bolts for applying the guidelines, plea bargaining issues, and "traps." Many thanks to Henry Bemporad, Federal Defender for the Western District of Texas, for continuing to produce this useful resource.

Tax Evasion, Fraud Charges Affirmed

US v. Thompson, 2008 WL 650009 (10th Cir. Mar. 12, 2008):

The Tenth affirms the defendants' convictions on various conspiracy, tax fraud, and tax evasion charges. The opinion is long and detailed, so this is very summary and written late in the day.

Defendants Mr. and Mrs. Mower owned three corporations, Neways US, Neways Australia, and Neways Malaysia, that used an Avon-style system to market personal care products (quick description: company sells to distributors at a discount, who then sell to the public at retail price; distributors can recruit more distributors and get bonuses based on their sales). Anyway, Neways US needed money to pay creditors and didn't want to go through a bank, so it started getting money from Neways Australia, some of which was called "prepayment" for product later shipped to Neways Australia and some of which was called "loans." Accounting was not good. The defendants also got checks from distributors in Malaysia. The Mower Defendants had also set up a wholly controlled Mower Family Trust, which owned their personal residence. The Mowers also bought an expensive property called Hobble Creek, that Defendants Mowers bought and put into the "Trust." The property was purportedly bought using a loan from Neways Australia, but documentation was lacking, and then created and backdated. The evidence was that there was no such loan. Investigation began, and it all unraveled. It appeared that it was necessary to file amended personal tax returns for the years 1994, 1995, and 1996, to include other money the Mowers had received. But the Mowers did not file the amended returns prepared by their accountant. Instead, he prepared and filed amended corporate tax returns for Neways US. There was evidence of lots of commission checks from the various Neways companies that were not reported as income. Mr. and Mrs. Mowers were charged with conspiracy and tax fraud and evasion; Mr. Thompson only with conspiracy and corruptly endeavoring to interfere with the administration of the internal revenue laws. All three defendants were convicted and the Tenth finds sufficient evidence to support all the convictions.

The Court rejects arguments that some counts were brought outside the 6-year statute of limitations period because they were brought within six years of the last affirmative act of evasion, the filing of false amended tax returns for Neways US on Jan. 6, 1998.

Admission of "summary charts" by the government (presumably summarizing the voluminous financial info) was not error. "The government's evidence was incredibly voluminous" and "would have been incomprehensible." The court noted that everything in the summaries was cross-referenced to a specific piece of evidence.

The district court did not err in granting the government's motion to compel the grand jury testimony of the Mowers' attorneys on the basis that the testimony sought was not privileged because the purported conversations and documents were in furtherance of a crime or fraud. Other claims regarding jury instructions were also rejected.

At sentencing, the court did not err in aggregating the tax loss amounts for the different years to determine an offense level. The district court did not apply the guidelines mandatorily, and the sentence (within the GL range) was presumptively and therefore substantively reasonable. There was no plain error in the court applying the 2001 GL Manual. It did err in applying the 2005 GL for calculating tax loss, but since there was no difference between the 2001 and 2005 GL in that regard, the error was harmless.

Assault by "Drugging" Not a Crime of Violence

U.S. v. Rodriguez-Enriquez, -- F.3d --, 2008 WL 624433 (10th Cir. 3/10/08) - The Tenth reversed the imposition of the 16-level enhancement under § 2L1.2 for having a prior crime of violence, holding that a prior Colorado conviction of assault two (drugging a victim) was not for a crime of violence. Nonconsensual administration of a drug does not constitute "the use of physical force" because the word "physical" relates to the mechanism by which force is imparted to the person of another, rather than the effect of the force. The court points out that the sentencing court has discretion to vary from the advisory guidelines range to account for what may be an "artificial distinction" between shooting a victim and poisoning him.

Body Armor Enhancement OK'd

U.S. v. Chambers, 2008 WL 622807 (3/5/08) (unpub'd) - It was okay to impose an enhancement for using body armor during the commission of a drug trafficking offense under § 3B1.5(2)(B), even if the defendant was not using the armor in connection with the offense. He just had to have it on at the same time as the offense.

Judicial Estoppel Argument Suggested by COA

U.S. v. Abo-Seba, 2008 WL 565443 (3/3/08) (unpub'd) - The 10th suggests an approach that might be helpful in some cases. It noted the defendant could have argued the government was judicially estopped from arguing the defendant's testimony did not raise self-defense because at sentencing the government argued the defendant should get an obstruction of justice enhancement, on the grounds that if he had been believed the jury would have acquitted him based on self-defense. See New Hampshire v. Maine, 532 U.S. 742, 749 (2001). But the defendant did not argue estoppel.

The 10th held the government argued improperly in closing when it misstated facts, including that the defendant falsely testified the guards swung a chair at him, when there was no such testimony even close to that. But the error did not meet the plain error reversal test.

Detention of Neighbor Justified When Officers Searched Home

Chidester v. Utah County, No. 06-4255 (3/6/08) (unpub'd) - In this civil rights suit, the 10th found the officer was justified in detaining a resident of a home next door to the one the SWAT team invaded to execute a search warrant, when the neighbor stepped out onto his front lawn. The 10th did find the officer used excessive force when he tackled the plaintiff running full speed, because it was not necessary to protect the officer's safety or maintain the status quo. But this was such a close call that the officer had qualified immunity, because the defendant was not compliant enough, "regardless of how difficult it was for the plaintiff to accomplish the task" of following the officer's command to get down on the ground and place his hands above his head simultaneously. But the suit could continue on the claims that the officers were wrong to enter the neighbor's home.

Appeal Waiver Inapplicable Where Plea Agreement Not Formally Accepted

U.S. v. Nichols, 2008 WL 565438 (3/3/08) (unpub'd) - The 10th finds an interesting way to avoid an appeal waiver. The waiver did not apply because neither the magistrate judge nor the district court formally accepted the plea agreement. But the 10th rejects the defendant's sentencing argument. The government could refuse to move for the extra one point for acceptance of responsibility due to the defendant's multiple violations of his pretrial release conditions. The government may refuse to move for the point based on its own independent assessment of the defendant's acceptance of responsibility.

SCOTUS Justices Air Views on Writing

Law.com has a couple of interesting articles about the United States Supreme Court Justices and their views on brief-writing to check out. The first is "In Series of Videos, Supreme Court Justices Make Their Case." The other article is "In the Opinion of Justice Scalia."

Wiretap Affidavit Requirements Discussed

US v. Gurrola-Rodriguez, No. 06-4192 (10th Cir. 3/6/08) (unpublished): The Tenth Circuit upholds the district court's denial of the defendant's motion to suppress wiretap evidence. The defendant had argued that the government failed to provide a sufficient statement regarding other investigative procedures as required by 18 USC 2518(1)(c). The Tenth provides a lengthy discussion of the statutory requirements for the government's application for a wiretap, so this case, although unpublished is worth reviewing if you have a wiretap suppression issue.

Interesting Cases from Other Circuits

Danger to Foreign Community: A district court may consider a defendant's danger to a foreign community when determining whether it can deny pretrial release under the Bail Reform Act, the 9th Circuit held. Defendant was charged with, inter alia, conspiring to provide and providing support to terrorists based on the defendant's sending money and supplies to his brother in Malaysia, an acknowledged member of a terrorist group. The district court denied bail because the defendant posed a threat to the people of the countries in which his brother operates and no conditions of release could reasonably assure the safety of that community. On appeal, the 9th Circuit held that "[w]here, as here, a defendant is charged with an offense that had a significant adverse effect on a community abroad, we see no justification for preventing a court, for bail purposes, from considering the continuing risk to that community that might be posed by the defendant's pre-trial release." US v. Hir, No. 07-10500 (9th Cir. 9/15/08)

Protective Sweep: The Fifth Circuit held that the search incident to arrest doctrine did not justify officers' warrantless search of an auto body shop based on the fact that they had arrested a group of drug smugglers just outside the gated fence surrounding the shop. However, the search was justified under the protective sweep doctrine because the officers knew a large quantity of drugs had been delivered to the shop and that people there kept watch for law enforcement. US v. Mata, No. 06-40957 (5th Cir. 2/11/08)

Aggravated ID Theft: A conviction for aggravated identity theft under 18 USC 1028A (unauthorized use of "a means of identification of another person") requires proof that the defendant knew the identification belonged to an actual real person, the D.C. Court of Appeals held. The court reasoned that Congress intended to increase penalties for persons who actually steal identities, rather than those who just use bogus documents. US v. Villanueva-Soto, No. 07-3055 (D.C. Cir. 2/15/08)

Adam Walsh Act: The 7th Circuit upheld the Adam Walsh Act's limitations on a defendant's pretrial access to the evidence of child pornography, including the requirement that it occur only in places under government control and forbidding reproduction of it. See 18 USC 3509(m). The Court held that there is no constitutional right to pretrial discovery, and accordingly it rejected the defendant's claims based on the Sixth Amendment's right to confrontation and cross-examination. However, the court was troubled by the fact that the government had provided a coy of the hard drive to its consulting expert, who was not a member of the government. The 7th Circuit thought that the pretrial discovery rules applied to the government as much as to the defense, and the defense expert should have received equal access. US v. Shrake, No. 07-1790 (7th Cir. 2/6/08)

Other Crimes Evidence Improperly Admitted: Great decision. The Sixth Circuit held that evidence of the drug-trafficking defendant's prior convictions for drug trafficking should not have been admitted at trial under FRE 404(b) to prove the defendant's intent or absence of mistake or accident. The defendant was arrested in a home he shared with several other people; quantities of marijuana and crack were found in the residence. There was circumstantial evidence of the defendant's guilt, but the defense presented evidence that disputed the defendant's ownership of the drugs. Defendant's old convictions for PWID marijuana and crack were introduced to show knowledge, intent, and lack of mistake or accident. The Court of Appeals reversed. It pointed out that the defendant was claiming it was a mistake for the police to think he possessed the drugs, not that he was mistaken about whether the substances were drugs. On the issue of intent, the Court concluded that, without more linkage, the mere fact that the defendant possessed with intent to distribute drugs in the past is not probative on his intent now. A dissenting judge thought the evidence was properly admitted. US v. Bell, No. 06-6248 (6th Cir. 2/14/08)

HC: Right to Appointed Appellate Counsel: The en banc Sixth Circuit held that the Supreme Court's decision in Halbert v. Mich., 545 US 605 (2005), concerning the right to appointed counsel in a discretionary appeal, was a "new" rule of criminal procedure under Teague v. Lane, 489 US 288, and therefore did not apply retroactively on federal habeas review. Simmons v. Kapture, No. 03-2609 (6th Cir. 2/15/08) (en banc), rehearing 474 F.3d 869.

Plea Bargains: Despite their increased Booker discretion, district courts continue to have a duty to abide by parties' agreements pursuant to Fed.R.Crim.P. 11(c)(1)(C), the 8th Circuit said, rejecting the defendant's argument that such agreements are unconstitutional post-Booker. US v. Kling, No. 07-1303 (8th Cir. 2/14/08).

Restitution Order Reversed: The 8th Circuit reversed a restitution order imposed on a defendant who was convicted of misdemeanor copyright infringement. BMG Columbia House sells CDs and DVDs by mail order, and, rather than paying for the return of undeliverable discs, had the post office toss them in the trash. Defendant, a janitor, took the discarded discs and sold them to used record stores for $78,818. He was ordered to pay restitution to BMG. The Court reversed, concluding that the district court erred in finding that BMG suffered an actual loss from the defendant's offense. US v. Chalupnik, No. 07-1355 (8th Cir. 2/1/08)

Law of the Case: The previous, pre-Booker appellate decision holding that the district court improperly imposed an above-guideline sentence on the money-laundering defendant did not prohibit the district court from considering the same factors and imposing the same above-guidelines sentence on the defendant at the new sentencing hearing held post-Booker. Under a recognized exception the law of the case doctrine, the Booker decision was an intervening change in controlling law. Sentence affirmed. US v. Williams, No. 06-30010 (5th Cir. 2/18/08)

Prior Drug Offense: USSG 2D1.1(a)(1), which sets a high minimum base level when a defendant convicted of certain drug-trafficking crimes has a prior conviction for a similar crime, does not include an explicit time limit on the age of the prior, the Sixth Circuit held. Thus, the district court could consider the defendant's more-than-20-year-old prior conviction in setting the base offense level. US v. King, No. 07-1012 (6th Cir. 2/14/08)

Tenth Finds Reasonable Suspicion to Stop Truck, Reversing District Court's Grant of Motion

U.S. v. Lopez, --- F.3d ----, 2008 WL 570802 (10th Cir. March 04, 2008)

The 10th reverses the district court suppression of drugs found after police stopped Defendant’s truck. Even though the stop of the truck for a violation of a traffic law was not justified, there was reasonable suspicion to stop it based upon the officer’s observations of activity involving the Defendant and others before Defendant drove onto the freeway (the cop had radioed others to find a traffic infraction for which to stop Defendant’s truck).

While the government failed to certify under 18 U.S.C. § 3731 that its interlocutory appeal of the district court’s suppression order was not taken for purpose of delay and that the suppressed evidence was material to the proceeding, such failure does not deprive the 10th of jurisdiction. It was discretionary whether to take the appeal and in this case, the government showed it had made the required analysis but due to the inexperience of the attorney involved, the certificate was not filed.

By Waiting to Object after Seizure, Defendant Waived Attorney-Client, Work-Product Privilege

U.S. v. Ary, --- F.3d ----, 2008 WL 565437 (10th Cir. March 04, 2008)

The attorney-client and work-product privileges can be waived in the context of involuntary disclosure or disclosure pursuant to a subpoena or warrant. Waiver is analyzed by looking at how specifically the material is identified; how quickly the defendant informs the government that it seized protected material; and how quickly the defendant seeks judicial action to enforce the protection. In this case, defendant waived the protection as to a few boxes taken from him and his attorney under a warrant. He did not identify the contents as protected, and when he discovered that they were protected at a discovery conference, he waited six weeks to file a motion to seek protection.

Computer and paper inventory records, though hearsay, were admissible as business records under F.R.Evid. 803(6), and the chain of custodians met the requirements of the rule.

Any error in calculating loss for guideline enhancement was harmless.

Below-Guideline Sentence Upheld Pursuant to Gall, Kimbrough

U.S. v. Smart, --- F.3d ----, 2008 WL 570804 (10th Cir. March 04, 2008)

In the 10th’s first big post-Gall and Kimbrough decision, over Judge Hartz’s dissent, the panel (Judge Lucero writing the opinion) upholds the district court's variance of 48 months below the advisory guidelines, resulting in a sentence of 120 months in a child porn case. The government appealed. The panel designates the government’s claim that the district court relied on legally erroneous sentencing factors as claims of both procedural and substantive unreasonableness (it is this that draws the bulk of the dissent). By putting the claims in the category of “substantive,” they are reviewed under the highly deferential abuse of discretion standard. Deference reigns, and U.S. v. Garcia-Lara, 499 F.3d 1133 (10th Cir.2007), is overruled.

The case bears careful reading. The panel reads Kimbrough broadly as allowing the district court to disagree with guideline policy underlying any guideline, not just crack/powder disparity. The case does little to clear up confusion about the difference between procedural and substantive reasonableness, however, or how the appellate court will assess significant variances.

Improper Placement of Temporary Tag Under KS Law Supported Traffic Stop

U.S. v. Martinez, -- F.3d --, 2008 WL 554812 (10th Cir. 3/3/08) - The Tenth Circuit affirms the district court's denial of the defendant's motion to suppress based on a traffic stop involving an out-of-state temporary registration permit that was not displayed on the rear of the car, as required by Kansas law, though lawfully displayed under the issuing state's law. Defendant did not contest initial grounds for stop, but he argued the officer should have let him go once he produced a California permit attached to the front windshield as California law requires. Kansas law requires out-of-state drivers to move temporary tags from the front to the back as they pass through Kansas and the officer detained the defendant for a reasonable time to prepare a traffic citation. No constitutional issue re: infringement of the right to travel was developed.

Remand for Clarification in Crack Case

U.S. v. Trotter, -- F.3d --, 2008 WL 555699 (10th Cir. 3/3/08) - after granting the cert petition, vacation and remand by the Supreme Court in the wake of Kimbrough, the Tenth Circuit remands this case to the district court for clarification of why it rejected defendant's request for a variance based on the crack/powder disparity. If the court believed it did not have discretion to consider whether the disparity produced too harsh a sentence, the district court must re-sentence.

Counterfeiting Enhancement Reversed

U.S. v. Tatum, -- F.3d --, 2008 WL 554818 (10th Cir. 3/3/08) - The district court erred in imposing a six-level enhancement under § 2B1.1(b)(10) because defendant's counterfeiting conduct did not involve use or possession of equipment designed or primarily used for making, trafficking, or producing what falls within the statutory definition of access devices, i.e., one of a number of means of accessing accounts that can be used to obtain money, goods, services or anything of value or to initiate a transfer of funds.

Life-Threatening Bodily Injury Enhancement Affirmed

U.S. v. Tindall, -- F.3d --, 2008 WL 554821 (10th Cir. 3/3/08) - District court did not err in imposing seven-level enhancement for permanent or life-threatening bodily injury in assault resulting in serious bodily injury case in which the doctor opined that the victims'head laceration posed a substantial risk of death due to blood loss. There were no objections to facts in the presentence report that would have triggered the district court's fact-finding obligation under Rule 32. There were sufficient facts in the record to establish a life-threatening injury by a preponderance of the evidence. The sentence was substantively reasonable.

Attempted Enticement of Child Upheld

U.S. v. Butters, 07-3172 (2/29/08) (unpub'd) - The defendant could be convicted of attempted enticement of a minor via the computer even though the person he was enticing was an adult agent. The involvement of a real minor is irrelevant. It was not irrational in violation of due process or cruel and unusual punishment to impose the same ten-year mandatory minimum sentence on the defendant as is imposed on people who entice real minors. "The absence of an actual child victim does not detract from the seriousness of the crime." [Not even just a little?]

Tenth Reverses Earlier Decision on Late Filing of Notice of Appeal; Affirms Lawfulness of Truck Search

U.S. v. Mitchell, 2008 WL 542130 (2/29/08) (Published) - After getting a remand from the Supreme Court, the defendant wins the jurisdictional battle, but loses the suppression war. The 10th Circuit follows the recent holding in U.S. v. Garduno, 506 F.3d 1287 (10th Cir. 2007), that the notice-of-appeal time limit rule is a claim-processing rule, not a jurisdictional rule. So, the government, as here, can forfeit its right to enforcement of that rule, if it doesn't argue the district court wrongly granted an extension of time to appeal. After much discussion, the 10th holds that it can sua sponte raise the time limit issue. This is so because the rule serves societal and judicial administration interests, such as finality, that are not just the interests of the parties. But, ordinarily the 10th should rely on the adversary to raise the time bar and only rarely invoke the rule itself. It should not be invoked, where, as here, judicial resources are not implicated and the delay has not been inordinate [here, one day].

Dissenting Judge Lucero maintains that the 10th should almost always invoke the time bar, absent extraordinary circumstances, because otherwise parties would be ignoring the time limits willy nilly.

With respect to the merits, the 10th applies its prior holding in U.S. v. Vasquez-Castillo, 258 F.3d 1207 (10th Cir. 2001), that New Mexico's regulatory scheme allowing for inspections of commercial trucks at port of entries is constitutional. That holding is a legal holding that does not vary with the facts of any particular case. The officers had the right to inspect the defendant's truck trailer, even though he told them he had no cargo.

AEDPA Time Limits Roll On Despite Counsel's Bad Advice

U.S. v. Azubuike, 2008 WL 510527 (2/26/08) (unpub'd) - The Tenth addresses the AEDPA's time limitations and equitable tolling rules. It was not a legitimate excuse for a late 2255 filing that the defendant did not learn that his attorney misadvised him about the law until an inmate informed him of that fact. The one-year time limit starts from the discovery of a new fact, not from the discovery of the fact that counsel gave wrong advice about the law.

Cancellation of Removal Unavailable for Alien with Only 8 Years of U.S. Residence

Pohan v. Mukasey, 2008 WL 506284 (2/25/08) (unpub'd) - The alien cannot obtain cancellation of removal on "exceptional and extremely unusual hardship" grounds because he had not been present in the U.S. for 10 years before he was served with a notice to appear [he had been here 8 years]. It did not matter that his daughter suffered from multiple, severe medical conditions and could not get proper medical care in his native country of Indonesia. The alien's plea that "a young girl's life is at stake" fell on statutorily-mandated deaf ears.