Upward Variance OK

U.S. v. Taghizadeh, 2008 WL 17901291 (4/21/08) (unpub'd) - The 10th affirms an upward variance from 121 months to 216 months on the grounds that the sexual-exploitation-of-a-minor Guidelines contemplated neither the videotaping of sexual acts [as opposed to sexually explicit poses] nor the defendant participating in the sexual acts. Those were two separate, [not double-counting] factors that justified the variance. Importantly, though, the 10th confirmed the continued vitality of the Atencio case, 476 F.3d at 1106, asserting that a district court commits a procedural error if its reason for a variance is already factored into the sentence or it uses the same justification to support multiple deviations from the guideline range. That contention might [or might not] be in some tension with U.S. v. Smart, 518 F.3d 800 (10th Cir. 2008).

Civil Rights Claim Against Prison Guards Reinstated

Gruenwald v. Maddox, 2008 WL 1766890 (4/17/08) (unpub'd) - The 10th reverses dismissal of a civil rights complaint. The prisoner sufficiently alleged an 8th Amendment claim where prison guards beat him while he was handcuffed, despite his lack of resistance to their attempts to move him to a different part of the prison. His black eyes, swelling, bruises, cuts, severe redness were not de minimis injuries. The officers' responsibility to maintain order and discipline "does not come with the attendant right to use prisoners as personal punching bags." The 10th affirmed dismissal of a claim against a supervisor who was not alleged to have witnessed the beating.

Remand Based on Kimbrough

U.S. v. Santillanes, 2008 WL 1790381 (4/21/08) (unpub'd) - The 10th remands in light of Kimbrough. The district court mistakenly believed it had no power to grant the defendant's variance motion, which asserted that the disparity between mixed and actual methamphetamine in the Guidelines produced a sentence greater than necessary under § 3553(a).

Wrongfully Incarcerated Plaintiff Could Recover Damages for Personal Hardship

Lowery v. County of Riley, 2008 WL 1701682 (4/14/08) (Published) - Plaintiff sued officers for their interrogation that resulted in a coerced confession that resulted in a wrongful rape conviction that resulted in the plaintiff serving 10 years in prison until DNA evidence exonerated him. The plaintiff could not recover for the loss of familial association due to his wrongful incarceration because he could not prove the officers had an intent to interfere with that association when they violated his rights. The plaintiff could only recover for his personal hardships.

Drumming Anti-War Protester's Civil Rights Claim Survives

Fogarty v. Gallegos, 2008 WL 1765018 (4/18/08) (Published) - The 10th affirms for the most part Judge Johnson's ruling in favor of the civil rights plaintiff in denying summary judgment motions by officers involved in the crack-down on Iraq War protestors near UNM. The plaintiff had sufficiently alleged that his disorderly conduct arrest was without probable cause because his calm drumming of a samba in the street at a reasonable volume, not in an "inciting marching cadence," [while perhaps not concert quality] did not have the potential to cause violence or other serious public disruption. The officers' defense relied on characterizations of the protest in general. But they needed individually-justified probable cause to arrest the plaintiff. "The 4th Amendment plainly requires probable cause to arrest Fogarty as an individual, not as a member of a large basket containing a few bad eggs." The plaintiff also sufficiently alleged an excessive force claim where the officers hyperflexed his wrist, dragged him towards a tear gas cloud and shot him with a projectile, while the plaintiff posed no immediate threat to flee or to the officers' safety [lack of artistic merit was not a justification]. The plaintiff sufficiently alleged that some of the officers witnessed the arrest and maltreatment and had set it in motion or should have intervened. For some officers, the plaintiff did not show they saw the constitutional violations. Interestingly, the plaintiff was not able to identify which officers actually arrested and mistreated him because the officers, per department orders at the time [since rescinded], had taped over their name tags.

Judge Ebel dissented in part on the ground that the officers had probable cause to arrest the plaintiff because he participated in a drum circle [how seditious!] that the officers believed was one source of interference with their ability to communicate with the crowd.

Summary Judgment Properly Denied in Sec. 1983 Case

York v. City of Las Cruces, __ F.3d __, 2008 WL 1795062 (10th Cir. April 22, 2008)

No summary judgment in 42 U.S.C. 1983 case for qualified immunity to police who arrested plaintiff for saying “bitch” in public and within the hearing of others, and used brutal force in arresting him. Because the facts raised the question of whether the amount of force used was reasonable, even viewing it from the perspective of a reasonable officer, and because under the law of the time no reasonable officer would have determined that there was probable cause to arrest the plaintiff for saying “bitch” in public, summary judgment was correctly denied.

Limited English Proficiency Doesn't Justify Tolling AEDPA Deadline

Yang v. Warden, __ F.3d __, 2008 WL 1795049 (10th Cir. April 22, 2008)

Sec. 2254 petition filed over one year after pro se petitioner’s state court conviction became final is untimely, and there is no equitable tolling of the time due to fact that petitioner speaks Hmong as his first language. Limited proficiency in English (he did not say that he did not understand English at all) does not constitute the “extraordinary circumstances” necessary to call equitable tolling into play (court compares this favorably to a 2007 decision that dyslexia does not state an extraordinary circumstance). Petitioner also failed to show he diligently pursued his claim.

Prison's Confiscation of Legal Materials Shortly Before AEDPA Deadline Could Support Equitable Tolling

US v. Gabaldon, 06-2348 (10th Cir. 4/17/08) (published): The district court should not have dismissed the pro se petitioner's petition that was filed 36 days after expiration of the one-year AEDPA period, which expired on March 21, 2006.

Mr. Gabaldon contended that he should receive equitable tolling because, on Feb. 2, 2006, prison officials put him in segregation and confiscated all his legal materials. Despite his requests, they did not give the materials back until April 4, 2006, and he filed his 2255 motion on April 26, 2006, which was 36 days late. The district court thought that Mr. Gabaldon hadn't been diligent before being placed in segregation and the prison's confiscation of his materials was not an extraordinary circumstance justifying his failure to timely file.

The Tenth Circuit disagreed, finding that complete confiscation of the petitioner's materials just weeks before the filing deadline would constitute an extraordinary circumstance. The Tenth also found that Mr. Gabaldon had proven due diligence in attempting to prepare his documents and criticized the district court for apparently believing that he should have filed before being put in segregation. The Tenth pointed out that Mr. Gabaldon was given one year to file, and apparently would have met that deadline. To conclude that he should have filed earlier in the limitations period would artificially shorten the time period and penalize him for attempting to thoroughly research his issues. However, the Tenth stopped short of finding that equitable tolling was proper, and remanded so that the government could contest Mr. Gabaldon's claims.

Sparse Statement Insufficient, But Sentence Affirmed

US v. Rainwater, No. 07-6185 (10th Cir. 4/16/08)(unpublished); Although this appeal was filed as Anders brief and the Tenth ultimately affirms, it is notable because the Tenth concludes that the district court's sparse statement imposing a 24 month sentence for violating supervised release conditions gave the Court no reason to conclude that it had considered the Chapter 7 policy statements and the 3553(a) factors when imposing sentence. Unfortunately, Rainwater couldn't prove prejudice because, although 24 months was the statutory max, the policy statement recommended a range of 33-41 months and Ms. Rainwater had a lengthy criminal history.

Below-Guidelines Sentence Reversed as Procedurally Unreasonable

U.S. v. Peña-Hermosilla, ___F.2d. ___, 2008 WL 1723664(10th Cir. April 15, 2008 )

Reversal of a below-guidelines sentence as procedurally unreasonable: “failure to provide proper explanation for the chosen sentence is reversible procedural error.” “Proper” in this case charts to a large extent Rule 32 requirements. The court refused an evidentiary hearing on whether managerial role and use of a minor in a drug offense enhancements applied, but took proffers. Its explanation for why the government’s proffers fell short for the managerial enhancement did not comply with Rule 32. Its failure to allow an evidentiary hearing on the use of a minor enhancement was error (the court did not apply the enhancement). The case was remanded for further fact finding, an evidentiary hearing, and explanation.

Court’s alternative sentence--same sentence even if it were determined that the enhancements applied–-was procedurally erroneous. Its cursory explanation that the “sentence is the most reasonable sentence upon consideration of all the factors . . . in . . 3553" fell short of the explanation necessary, especially for such a large variance. 3553(c)(2) requires the court to provide “the specific reason for the imposition of a sentence different from the GL range.”

Ebel’s concurrence argues that Rule 32 was never triggered because neither party challenged the historical facts underlying the enhancements, just the meaning of those facts. Ebel would, as we have all so often seen the 10th do, find that the historical facts in fact support the enhancements, and outright reverse the district court’s non-application, ordering it to apply the enhancements after remand.

Order Denying Religious Freedom Defense to Drug Charge Not A Collateral Order

U.S. v. Butts, --- F.3d ----, 2008 WL 1727051 (10th Cir. April 15, 2008).

District court order that defendants could not raise at trial their First Amendment, Religious Freedom Restoration Act defense to the marijuana charges against them (MJ is a god), was not a final order that could be appealed under the collateral order exception to the requirement that only final orders can be appealed. There is no constitutional right not to be tried when there is a free exercise of religion claim as a defense. The right can be vindicated on appellate review of the case after final judgment.

DWI Not A Violent Felony for ACCA Purposes; Supremes Reverse the Tenth

Begay v. United States (06-11543), reversing 470 F.3d 964.

In a 6-3 opinion authored by Breyer (dissent by Alito joined by Thomas and Souter)(concurrence by Scalia), the Court decided that 18 USC Sec. 924(e), the Armed Career Criminal Act’s second clause: “is burglary, arson, or extortion, involves the use of explosives or otherwise involves conduct that presents a serious potential risk of physical injury to another” does not apply to DWI, and DWI is not a crime of violence within the ACCA. The majority followed the core argument forwarded by the defense from the get-go: ejusdem generis; that these listed examples illustrate the kind of offenses that fall within the scope of the statute, and “the statute covers only similar crimes rather than every crime that presents a serious risk” to another (emphasis in the original). DWI does not fit within the statute–it is “too unlike the ... listed examples...to believe that Congress intended” it be included. The court looks not only to statutory construction but to legislative history to support its conclusion (that is, Congress declined an opportunity to use broader, more inclusive language).

The Court importantly distinguishes the listed offenses, which involve purposeful, violent and aggressive conduct, from DWI, citing to Leocal (McConnell gets his further nod from the Supremes when it quotes his Begay dissent to this effect. McConnell was only, however, making the argument raised by M and C in their 10th Cir. briefs). Another distinguishing feature is that New Mexico DWI is a strict liability offense (although I would think that this is not a necessary requirement for an offense to be a non-qualifying offense. The Court lists obscure non-qualifying examples which have mens reas of, e.g., recklessness).

This case has applicability to any prior conviction that does not fit within clause (i), and is not an enumerated clause (ii) offense, which can be distinguished from the listed offenses along the same lines as outlined in Begay. It also brings ACCA law more in line with case law interpreting USSG 2L1.2 and 18 USC 16(b).

Gun Conviction for Illegal Alien Affirmed; Pending Application Defense Rejected

US v. Ochoa-Colchado, No. 07-4023, 4/11/08 (published) - Defendant was convicted of unlawful entry in 1993 but remained in the country. The government finally initiated removal proceedings in 2002, in response to which the defendant applied for cancellation of removal and adjustment of status, which was pending at all relevant times. He was therefore allowed to remain in the US while his application was pending. He also applied for and got an Employment Authorization Document (EAD). Then he got arrested for DWI and a gun was found in his car. More were found in his house, pursuant to a valid search warrant. He was charged with unlawful possession of firearms by an illegal alien, in violation of 18 USC Sec. 922(g)(5)(A). He filed a motion to dismiss on the ground that his pending application, which allowed him to remain in the country while it was pending, meant that he was not illegally or unlawfully in the country. The district court denied the motion and the defendant conditionally pled, reserving the right to appeal the denial of his motion.

The 10th affirmed, Reviewing this purely legal issue de novo, the 10th abandoned its "suggestion" in US v. Hernandez, 913 F.2d 1513 (10th Cir. 1990) that the defendant's position was correct, which it now concludes was dicta because the defendant in that case filed his application after he received firearms, unlike poor Mr. Ochoa-Colchado. This position is in line with the "greater weight of authority" on the issue. It also rejected the defendant's alternative argument that Sec. 922(g)(5)(A) was unconstitutional as applied to him because the language of the statute, combined with the ambiguity of his status, did not adequately put him on notice that he was committing a crime by possessing guns. The argument was not one that the defendant reserved the right to challenge on appeal, in spite of his argument below that the rule of lenity supported his position, and was therefore waived by his guilty plea. The waiver was enforceable because his waiver was knowing and voluntary, and enforcing it would not result in a miscarriage of justice.

Burglary Conviction at Age 17 Qualified as Career Offender Predicate

US v. Collins, No. 06-6191, 4/11/08 - The third time was something of a charm for the defendant in a drug conspiracy case. He was originally convicted of all nine counts following a jury trial. He was seventeen when he committed a second-degree burglary, which was treated at sentencing as a crime of violence, which made him a career offender, which got him a sentence of 360 months. His conviction was affirmed but his sentence was vacated because the government had not established that the burglary conviction was in fact a crime of violence. On remand, the defendant stipulated that he had signed an affidavit that stated that the conviction involved a dwelling, so he got the same career offender sentence of 360 months. He did not appeal that, but instead filed a pro se 2255 motion, which was granted on the basis that he received ineffective assistance because his lawyer did not take an appeal from the second sentence. At the third sentencing hearing, the defendant claimed that the burglary conviction didn't count because he was only seventeen when it happened, which meant that it was not an adult felony conviction. However, USSG Sec. 4B1.2, cmt. n. 1 includes in the definition of "adult felony conviction" an "offense classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted." The defendant's counsel admitted that he had been certified as an adult, which made him a career offender. Nevertheless, taking the defendant's age into account, the district court imposed a sentence of 300 months. The 10th affirmed it, rejecting the defendant's sixth amendment challenges to how the drug quantity was calculated and also rejecting another career offender challenge, based on his age at the time he committed the burglary. His counsel's admission doomed that argument. The defendant tried to get around that by claiming that his lawyer was ineffective in failing to investigate whether he had been certified as an adult and that in fact he had not been. Both sides apparently relied on a document that had not been presented to the district court or included in the record on appeal, but was rather attached to their briefs, to support their respective position on the certification question. The 10th dismissed the ineffective assistance claim because the record was not sufficiently developed on that issue and could therefore not be resolved on appeal.

Confrontation Clause, Evidentiary Claims Rejected in 2254 Case

Dalton v. Dinwiddie, No. 07-6126 (10th Cir. April 8, 2008) (unpublished): The Tenth denied the certificate of appealability and dismissed the appeal of the petitioner, who is serving life in Oklahoma, in this 2254 case. Mr. Dalton was convicted of murder and sentenced to life following the shooting of a young man in a robbery of the home where the man and his parents lived. Three men were involved in the shooting, and both codefendants identified Dalton as the shooter. The Tenth finds that there was no Confrontation Clause violation based on the trial court's exclusion of the victim's father's prior convictions, that were more than ten years old, and the father's alleged "bootlegging" activities. The evidence was properly excluded because the ancient (37 year old) priors were minimally relevant to the father's credibility. It was unclear how the evidence of alleged bootlegging indicated a motive for the father to identify Dalton as the shooter, and, besides, there was no independent evidence of the bootlegging. Additionally, there was no error in the district court excluding the evidence of an exculpatory letter written by a codefendant because the defense did not disclose the letter as required by the Oklahoma rules.

Prisoner's Complaint that his Property was Unlawfully Destroyed Dismissed

Thomas v. NM Corrections, No. 06-2224 (10th Cir. April 9, 2008) (unpublished): Although the Tenth reviews the pro se prisoner's claims liberally, it concludes that he can not prevail in his 42 USC 1983 action based on the facts he alleged and affirm dismissal of the claims. Mr. Thomas finished his federal time and was sent to state prison in NM, where he tried to mail his personal property home at his own expense. A property officer refused to allow this, and said he had to donate his property or it would be destroyed. Mr. Thomas refused to sign a disposition sheet. He later learned the policy did allow him to mail his property home. He tried informal settlement, and then filed two grievances. The second was denied because the prison produced a disposition sheet with his alleged signature, which Mr. Thomas said was forged. His state Tort Claims Act was dismissed. Despite dismissal of the TCA lawsuit, there was no due process violation because NM provided an adequate post deprivation remedy. He failed to state sufficient facts to support an equal protection claim. He was not subject to cruel and unusual punishment. Once there were no more federal claims, the district court properly declined to assert jurisdiction over the state fraud claim.

Grant of New Trial Based on Erroneous Admission of Testimony Affirmed

US v. Grigsby, No. 07-7014 (10th Cir. April 9, 2008) (unpublished): A defense win! The Tenth affirms the district court's granting a new trial to a defendant convicted of sexually abusing his grandneice in Indian Country. The district court was concerned because it had allowed defendant's niece (not the victim) testify that 20 years earlier, the defendant had tried to abuse her. The niece was impeached (prior forgery convictions and a motive to lie), but the district court concluded that the unfair prejudice created by her testimony outweighed the probative value, and the curative instruction was insufficient, and accordingly granted a new trial. The Tenth, in affirming, also noted that the other evidence was weak -- the victim clearly could not distinguish between reality and fantasy and her statement included a clear falsehood (she claimed the defendant had stabbed one of his grandchildren that same evening as the incident, but that had not happened) and the defendant's "confession" -- obtained by an investigator with the Cherokee Nation Marshal Service -- was subject to attack. The Court noted that the investigator's own testimony raised concerns regarding the integrity of the interrogation because the investigator admitted the words in the confession were his, not the defendant's, and there were inconsistencies with the investigator's suppression hearing testimony.

Ownership Claim Provides Standing to Contest Forfeiture

U.S. v. $148,840.00 in U.S. Currency, 2008 WL 901783 (4/4/08) (Published) - The claimant established standing to challenge the forfeiture of money found in the trunk of a rental car he was driving, even though he refused, on Fifth Amendment grounds, to disclose how he came to own the money. It was enough that the claimant asserted ownership and was in possession of the currency. It would not have been enough to just assert possession. By asserting ownership, the claimant has shown he would suffer an injury in fact if the currency were forfeited. The 10th stressed the claimant's standing at this point only gives him the right to contest forfeiture. It does not mean he will prevail. The 10th also pointed out the government had not moved to strike the claimant's ownership deposition testimony on the ground that the witness asserted the Fifth to avoid answering relevant questions, while freely responding to questions advantageous to his cause.

OK Death Penalty Conviction Affirmed Despite Divided Jury, Failure to Give Manslaughter Instruction

Gilson v. Sirmons, 2008 WL 863034 (4/2/08) (Published) - A habeas death penalty affirmance by a divided court.

Reviewing the issue de novo [because the Oklahoma courts did not apply the correct standard], the 10th holds it was not a violation of due process for the jury to convict the petitioner of child abuse murder, even though the jury was divided as to whether he committed the crime by committing child abuse or by permitting the mother to do so. The means to commit the offense were not so disparate as to exemplify two inherently separate offenses.

Under the AEDPA standard, it was okay for the state court to hold it was not a violation of Apprendi for the state appellate court, not the jury, to find that the petitioner was a major participant in the felony and participated with a reckless indifference to human life, thus constitutionally qualifying the petitioner for the death penalty. Ring v. Arizona, 536 U.S. 584 (2002), which held that a judge's determination of the presence of aggravating factors in a capital case violated the Sixth Amendment, was decided after the state court proceedings were final. In light of the trial evidence, the appellate court's finding did not necessarily conflict with the finding of one or more jurors that the petitioner only permitted the child abuse. The evidence supported the appellate court's finding. Given that finding, the death penalty for permitting child abuse murder was not disproportionate.

It was procedurally incorrect to apply a statute enacted after the offense, but clearly both the old and new definition of a person responsible for child abuse applied to the petitioner under the facts, foreclosing an ex post facto claim. The petitioner had unquestionably voluntarily assumed a duty of care of the children.

The 10th holds for the first time that a state court's determination whether evidence justified a lesser-included offense is a legal determination subject to the "contrary to-unreasonable application" standard, rather than the presumed-correct standard of AEDPA. The state court did not err by failing to instruct on second degree manslaughter. The mother's testimony that supported the notion the petitioner was lying on the living room couch while she abused the child to death was riddled with internal inconsistencies and otherwise not credible and acceptance of her testimony would have led to an acquittal, not conviction of manslaughter, the 10th rules.

Under de novo review, it was okay to exclude the petitioner's expert on the lack of credibility of the traumatized children who testified. The subject matter is ordinarily for the jury to decide and the petitioner was able to extensively cross-examine the children.

Counsel's failure to present evidence of the petitioner's brain damage was not prejudicial. That evidence probably would have further convinced the jury of his guilt and dangerousness, the 10th concludes.

Judge Henry dissented. While acknowledging the horrible nature of the crime [8-year-old boy beaten to death and his body put in a freezer for months, while his siblings were told he had run away], Judge Henry believed there was sufficient evidence to give the manslaughter instruction. A rational juror could have believed the mother's testimony and found the petitioner guilty by virtue of his knowledge that the mother was beating the child, while he was lying on the couch.

An Example of a Preserved Objection to a GL Sentence!

U.S. v. Kinchion, 2008 WL 886039 (4/1/08) (unpub'd) - The 10th reverses a guideline sentence because the district court applied a presumption of reasonableness to the Guidelines. The defendant preserved the error by asserting generally the court was not exercising the full range of its discretion. The error was not harmless, even though the district court stated it saw no justification for a variance.

Consecutive Sentencing Discretion Affirmed

U.S. v. O'Bryan, 2008 WL 905189 (4/4/08) (unpub'd) - The Tenth affirms that district courts have discretion in deciding whether to impose consecutive or concurrent sentences. However, in deciding to address the concurrent sentencing discretion issue as though it had been preserved, the 10th contrasts the latest plain error sentencing cases with a possibly helpful published case: U.S. v. Tisdale, 248 F.3d 964 (10th Cir. 2001). In that case, the 10th held the defendant preserved his claim that the district court did not understand its authority to impose a concurrent sentence when, after the district court announced a consecutive sentence, the defendant reminded the district court he was serving a state sentence and asked for a concurrent sentence.

Split Tenth Affirms Summary Judgment for Defendants in Civil Rights Case

Hernandez v. Conde, 2008 WL 867968 (3/31/08) (unpub'd) - The Tenth affirms granting summary judgment in a civil rights case raising Franks issues. An undercover officer has Travis buy cocaine for the officer from a home across the railroad tracks from where the officer's car is parked. Travis walks to 336 Heizer to buy the cocaine and comes back with the cocaine. In his search warrant affidavit, the officer says: (1) Travis told him he was going to go to the white trailer, which was 340 Heizer; [the house next to 336 Heizer], and (2) the officer saw Travis "emerge from" 340 Heizer and return with the cocaine. The officers search 340 Heizer, find no drug evidence and, in the course of the search, handcuff the innocent occupants and shoot one of them. After the error was discovered, the officer recorded over one recording of his critical conversation with Travis and lost the other. The occupants sue on the grounds the officer made knowing, or reckless, false statements in his affidavit.

The 10th finds that undisputed evidence established a prima facie case that the officer objectively believed Travis went to 340 Heizer, because it was possible the officer couldn't see very well where Travis went, given the presence of train cars, and Travis went past 340 Heizer on his way back to the officer. The 10th also found the plaintiffs failed to produce specific evidence of knowing or reckless disregard for the truth because: (1) the fact that Travis testified he never indicated he was going into 340 Heizer and actually went into 336 Heizer only showed the officer misunderstood Travis and mistook which trailer Travis exited; (2) the failure to preserve the recordings only showed negligence, not that the officer had a culpable state of mind; and (3) the deposition testimony of the cooperating witness, who was with the officer during the transaction, that she saw Travis enter 336 Heizer and told the officer so, was not properly part of the appeal record [the officer only belatedly acknowledged he knew the identity of the confidential informant, delaying the plaintiff's deposition of her]. The 10th concluded the officer's carelessness was "deplorable" but did not establish a Fourth Amendment violation.

One judge dissented, concluding the fact that Travis did not enter 340 Heizer contradicted the officer's claims that Travis had told the officer he was going to 340 Heizer and that the officer saw Travis "emerge" from 340 Heizer. Judge Hartz added it would be reasonable for a jury to infer that it was highly unlikely the destruction and/or misplacement of multiple tapes was due to sloppiness, rather than misconduct.

Eyewitnesses' ID of Defendant Admissible Despite Leading Questions

Corbett v. State of Kansas, 2008 WL 901179 (4/3/08) (unpub'd) - Leading questions of eyewitnesses at a deposition with the defendant present were insufficiently suggestive to give rise to a substantial likelihood of misidentification so as to warrant suppression of the eyewitnesses' deposition identification of the defendant, even though both eyewitnesses had previously identified someone else as the perpetrator.

Plain Error Applied Despite Gov't Failure to Allege Defendant Failed to Preserve Error

U.S. v. Dunham, 07-5011 (4/7/08) (unpub'd) - The 10th can apply the plain error standard, even if the government doesn't point out the defendant's failure to object below. The institutional interests of the judiciary require that application, unlike where a party can waive some time limits. It was not enough to preserve an objection to the district court's failure to make factual findings to have made presentencing objections to facts in the presentence report.

Toxicology Report Not Testimonial

U.S. v. Brown, 2008 WL 867971 (3/31/08) (unpub'd) - With a short-paragraph discussion, the 10th declares a hospital toxicology report on the defendant's cocaine ingestion is not testimonial for Crawford purposes.

No Insurance Co. Duty to Defend Insured Who Pleads Guilty in Related Criminal Case

Pompa v. American Family Mutual Insurance Company, 2008 WL 837050 (3/31/08) (Published) - An insurance company had no duty to defend the insured in a wrongful-death action, in light of the criminal conviction exclusion of the insurance policy. That exclusion applied to the insured's guilty plea to negligent homicide. The exclusion was not against public policy and applied to more than a conviction after trial.

10th Foregoes Categorical Analysis of "Enumerated" Crime in Reentry Case

US v. Machado-Delgado, No. 06-2303, 4/3/08 - 16-level enhancement for reentry defendant who had previously been deported following his Arizona conviction for aggravated assault affirmed because prior 10th precedents establish that since aggravated assault is an enumerated crime of violence under USSG Sec. 2L1.2, n. 1(B)(iii), which are always classified as crimes of violence, regardless of whether they have as an element the use, attempted use or threatened use of physical force against the person of another.

Such a conclusion would seem to be contrary to the analysis of the Supreme Court's decisions in Taylor and Shepard. Taylor made it clear that just because a state calls something "burglary," it ain't necessarily so for federal criminal law purposes. Rather, the elements of the offense need to be analyzed to determine whether they include the elements of generic burglary, considering such sources as common law and the Model Penal Code. The Tenth's decision shortcuts this analysis and erroneously accepts the state's designation of the offense at face value. This is an issue ripe for cert.

Admitting Certificate of Nonexistence of Record Not Plain Error in Reentry Case

US v. Provencio-Sandoval, No. 07-2119, 4/3/08 - No plain error in admission of Certificate of Nonexistence of Record (CNR) in defendant's trial for illegal reentry, over objection raised for the first time on appeal that admission violated the defendant's right of confrontation, because the alleged error was not "plain", which means "clear under current law"; neither SCOTUS nor the 10th have explicitly ruled on this issue, and every other circuit that has considered it has rejected it. Note that the 10th ducked the question of whether is was actually error, and went straight to the "plain" analysis.

Upward Variance Presumed Reasonable

US v. Limon, No. 07-1297, 4/3/08 - Upward variance for defendant who went on a bank robbing spree in which he used firearms affirmed. Lots of bad sentencing facts (multiple priors, increasingly violent crimes, substance abuse and gambling addition issues, scared people, etc.). The government had nevertheless moved for a downward departure based on substantial assistance and requested a 240-month sentence. The court granted the motion, but still varied upward and imposed a sentence of 279 months. The defendant challenged his sentence, mainly on the basis that the court was impermissibly using imprisonment as a method of rehabilitating him, in violation of 18 US Sec. 3582(a) and 28 USC Sec. 994(k). This argument was rejected because it confuses the decision of whether to impose a term of imprisonment with the separate question of how long a term to impose, and Sec. 3553(a)(2)(D) expressly requires district courts to consider the need for the sentence imposed to provide the defendant with needed medical care. Following its recent decision in US v. Smart, 2008 WL 570804, the 10th applied a presumption of reasonableness to an upward variance, giving "due deference to the district court's decision that the 3553(a) factors, on a whole, justify the extent of the variance."

Loss Calculation in Odometer-Rollback Case Reasonable

US v. Sutton, No. 07-1223, 2008 WL 879429 (April 3, 2008): Defendant, a Colorado car dealer, pled guilty to one count of mail fraud and one count of odometer tampering related to a scheme in which he rolled back the odometers of 76 high mileage used cars so that they looked like they had lower mileage, then manipulated the titles so that new Arizona titles were issued showing the modified mileages as being real. His sentence was two concurrent 30-month sentences. He appealed the court's assessment of a 12-level enhancement under USSG 2B1.1(b)(1)(G) based on the court's conclusion he caused $304,000 in loss. The parties disputed the amount of loss at sentencing, and the district court ulltimately went with the government's proposed "conservative" value of $4,000 of loss per vehicle sold, or about 40% of the sales price (the government said $4,000 was conservative because a DOT study found that the loss was properly the entire price paid for the vehicle). The Tenth Circuit concluded that the district court's determination of the amount of loss was reasonable and affirmed.

Remand to District Court to Explore Government's Use of Possibly Perjured Testimony in Suppression Case

U.S. v. De La Campa Rangel, 2008 WL 787114 (3/26/08) (Published) - DEA agent Jay Perry's DEA-6 report and trial testimony contradicted his criminal complaint and preliminary hearing testimony as to how he got information that the defendant took a small black bag (subsequently found to contain cocaine) from a larger bag while sitting on the bus. The trial testimony of the bus driver and another bus passenger contradicted both of the agent's versions, indicating the defendant's taking out the black bag occurred close to the time of the bus's arrival in Albuquerque, not four hours earlier, based on the bus driver's observations or the El Paso station manager's relayed report, as the agent alternatively claimed. In the original order, the 10th (Judges Hartz, McWilliams and Holmes) expressed dismay that there were some serious ethical violations, i.e., perjury and suborning perjury, that might be occurring here. The 10th asked the parties to brief whether the 10th should take the unusual step of remanding, before resolution of the appeal, for a 2255 exploration of the government's use of perjurious testimony. Both parties thought a remand would be okay. The 10th thought a remand was appropriate because of the exceptional facts that "cast a dark shadow on a pivotal aspect of the direct appeal and implicate the fundamental fairness of the trial and propriety of the government's actions," quoting U.S. v. Taylor, 648 F.2d 565, 572 (9th Cir. 1981). [The 10th doesn't make clear how the lies affected the trial outcome]. The defendant made two requests: that the 10th clarify the defendant could still file a 2255 at a later time and that he be appointed an attorney below. The 10th denied both requests. The 10th did not feel it had the power under AEDPA to change the successive motion rule and opined the defendant will just have to make sure he raises any other arguments he can think of now. The 10th wanted to leave the counsel issue in the discretion of the district court in the first instance.

Interesting Cases from Other Circuits

Relying on Gall and Kimbrough, the Fifth Circuit held that the district court could impose an above-guidelines sentence on a reentry defendant based on its conclusion that USSG 2L1.2 was under-inclusive in what it counted as prior drug trafficking offenses. Accordingly, the district court varied upward based on the defendant's prior drug conviction that did not qualify as a 12-level drug trafficking offense. US v. Herrera-Garduno, No. 07-40327 (5th Cir. 3/10/08)

The 11th Circuit rejected the petitioner's 2255 claim that his attorney was per se ineffective for failing to object to the district court's failure to address him personally about his right to allocute. Gordon v. US, No. 05-16703 (11th Cir. 3/7/08)

Officers were justified in entering the civil rights plaintiff's apartment without a warrant or probable cause where the plaintiff had called a hot line operator and made statements about shooting people at work and suicide. The plaintiff was distraught about breaking up with his girlfriend when he called the suicide hotline. He was arrested in the parking lot of his apartment within 15 minutes as he was putting luggage in his van. A bullet was found in the suitcases. The plaintiff was a licensed gun collector, so as one group of officers took plaintiff to the psychiatric hospital, another group entered his apartment and found lots of guns, ammo, and survivalist literature, all of which was seized and not returned. The court considered the following factors in determining the reasonableness of the officers' preventive actions: the likelihood the danger will come to pass; how quickly the harms sought to be prevented will occur; and the gravity of the danger. The actions were reasonable in this case to protect public safety. Mora v. City of Gaithersburg, Md., No. 06-2158 (4th Cir. 3/4/08)

A defendant who just randomly chose a name from the phone book and then used the name to generate false identification and attempt to defraud banks could not be convicted of aggravated identity theft unless he used sufficient specific information to identify a unique individual. US v. Mitchell, No. 06-5169 (4th Cir. 3/6/08)

Due process requires that authorities try to contact the owner of a vehicle parked in violation of state registration laws before towing and impounding it, the 9th Cir. held. The officer in this case should have tried minimal means of contacting the owner, such as placing a ticket on the windshield, before towing it. Clement v. Glendale, NO. 05-56692 (9th Cir. 3/11/08)

A conviction for unlawful possession of ammunition was reversed based on insufficiency of the evidence where the government presented evidence that the defendant did not possess a license to possess a firearm but did not prove that the defendant unlawfully possessed the ammunition under Virgin Islands law. US v. Daniel, No. 07-2413 (3d Cir. 3/6/08)