Enhancements Based on Relevant Conduct in Gun Case Affirmed

US v. Hernandez, No. 07-2267 (10th Cir. May 22, 2008) (unpublished): Defendant convicted of being a felon in possession of a firearm and ammunition. Court found that sufficient evidence supported the application of USSG 2K2.1(b)(1)(A), which requires a two-level enhancement if the offense involved three or more firearms. Defendant had pled guilty to possession of only one firearm. The Court also affirmed application of the four-level enhancement of USSG 2K2.1(b)(6) for possession in connection with another felony. There was evidence that Hernandez was involved in three incidents in which drugs and guns were found in his vehicle and the State of New Mexico had filed drug charges against Hernandez in connection with the incidents. The trial court properly considered these incidents as relevant conduct to support the enhancements. The Tenth Circuit rejected the defendant's argument that the district court did not understand its authority to impose a below-guidelines sentence, and furthermore that he had failed to rebut the presumption that the 84-month sentence -- the bottom of the applicable guideline range -- was reasonable.

Wyo. "Simple Assault, Battery" Conviction Not a Predicate Misdemeanor Domestic Violence Offense

United States v. Hays, ___ F.3d ___, No. 07-8039 (10th Cir. May 20, 2008)

Conviction under Wyoming “simple assault, battery” misdemeanor statute is not a misdemeanor crime of domestic violence within the meaning of 18 USC Secs. 922(g)(9) and 924(a)(2), possession of a firearm by a person convicted of misdemeanor domestic violence. The federal offense requires the misdemeanor include the element of the use or attempted use of physical force or the threatened use of a deadly weapon, but the Wyoming statute is broader–includes touching in an insolent manner–under the Taylor categorical approach. The 10th noted that the state presentence report is NOT a document the court can look to under Shepard to determine what Defendant actually was guilty of under the Wyoming statute. Construing the statute, the court finds that mere touching, while it requires some physical force, does not necessarily constitute physical force within the meaning of the federal criminal statute when it is done rudely, insolently; or angrily. Indictment dismissed. Ebel dissents and would find that the touching constitutes physical force.

Cause Remanded to Determine If Somalian-born Defendant Should Have Had Interpreter at Grand Jury Proceeding

United States v. Hasan, ___ F.3d ___, No. 06-5234 (10th Cir. May 20, 2008)

Remand to the district court to enter findings on whether, under the Court Interpreter’s Act (CIA) (which applies equally to trials and to grand jury proceedings), the Somalian-born defendant was entitled to an interpreter at the grand jury proceedings. The questions under the CIA are: was his primary language other than English, and was his ability to comprehend and communicate during the proceedings inhibited without an interpreter. The district court determined that Defendant needed an interpreter for his trial on perjury charges arising out of his GJ testimony, but that determination was inconsistent with the fact that he had no interpreter at the grand jury.

Compelling case, compelling appendix of Defendant’s confused grand jury testimony, a travesty that he was prosecuted, and a travesty that Defendant was convicted. The inclusion of the appendix–unnecessary really–may be a signal by the 10th to the district court that it should find that the Defendant did not understand English well enough during the grand jury proceedings to have endured them without an interpreter, thus requiring dismissal of the perjury indictment.

The Legend Lives!

The National Association of Federal Defenders has published the May 2008 edition of The Liberty Legend, chock full of inspiring tales of victories and those selected to be this year's outstanding assistant federal defenders, investigators, research and writing specialists, and paralegals. Back issues of The Liberty Legend are available here, along with back issues of the Doing Times Times, which focuses on Bureau of Prisons-related policies and news.

Sec. 1001 Prosecution Can Be Based on False Statements to a Probation Officer

US v. Manning, No. 07-5035, 5/16/08 - The Tenth Circuit reverses the dismissal of a prosecution for making a false statement pursuant to 18 USC § 1001. The dismissal had been based on the “judicial function” exception in § 1001(b).The defendant forgot to mention the $40K he had in a 401(k) when he submitted his financial affidavit to probation after he pled guilty to misappropriating funds as a fiduciary. The government somehow found this out some years later and indicted him under § 1001, rather than charge him with obstruction of justice or perjury. Calling this a "close and difficult" case, Judge Henry, and Judge Gorsuch in a concurrence, agree with the government that both the plain language of § 1001(b) and legislative history support the prosecutability under this statute of making knowingly false statements to probation officers as part of the process of preparing PSRs. Probation officers are sufficiently distinct from judges themselves, as opposed to clerks, secretaries or courtroom deputies, so as not to come within the judicial function exception. The 9th had reached the opposite conclusion in US v. Harvath, 492 F.3d 275 (9th Cir. 2007), but two judges dissented from the denial of rehearing en banc, and the majority here thinks they had the better of the argument.

In a dissent, Judge Holloway thought the district court and 9th’s panel majority were right on because the defendant clearly knew that the information he was providing to the probation officer was intended to be relayed to the judge, and there was no doubt that it would be because the probation officer was duty-bound to pass it along.

New Trial Motion Denied; Evidence Not "Newly Discovered"

US v. Shipp, 2008 WL 2043295 (10th Cir. 5/14/08) unpublished: Mr. Shipp (acting pro se) filed a second motion for new trial on his felon in possession conviction. This motion fares no better than his first. The allegedly newly found police documents were not newly found but had been mentioned at the trial. Regarding his other complaint, that his ex-wife and her son-in-law committed perjury against him at trial, was not newly discovered because he had complained about this in a letter to a state court in a prior legal proceeding before the trial in federal court and, besides, the district court had concluded there was overwhelming evidence to support the felon in possession conviction.

Sufficient Evidence Supported Manager Enhancement in Meth Case

US v. Garcia, 2008 WL 2039535 (10th Cir. 5/14/08), unpublished: Tenth Circuit affirms 210-month sentence for one count of possession with intent to distribute lots of meth. The original presentence report gave Mr. Garcia a total offense level of 33, including a two-level safety valve reduction. The government opposed that (upon which the probation officer obligingly rewrote the report to delete the two levels) and also moved for an upward departure, both based on Mr. Garcia's alleged management of three other persons involved in the conspiracy. This resulted in a 4-offense level turnaround to defendant's detriment.

Apparently, the defendant only appealed the two-level upward enhancement and not the denial of safety valve. The Tenth concluded that the district court did not err in assessing the two-level enhancement for defendant having a management or supervisory role under USSG 3B1.1(c). The district court found that Mr. Garcia managed or supervised three other people. Although it was not clear what evidence the court relied on regarding its determination concerning two of the three, the court's statement regarding the third alleged subordinate was sufficient to support the enhancement. The defendant did not appeal the reasonableness of his sentence, but the Tenth addressed it anyway, saying the within-guideline sentence was presumptively reasonable.

Arrest by Immigration Authorities Did Not Trigger Speedy Trial Act

United States v. Paillas-Castanon, ___ F.3d ___, 2008 WL 2025106 (10th Cir. May 13, 2008)

The arrest and detention of the defendant on a civil deportation matter did not violate the Speedy Trial Act, 18 USC Sec. 3161, when he was indicted 2 months later for possession of a counterfeit green card. The arrest here was on a civil offense, and the Speedy Trial Act applies only to criminal offenses–the immigration arrest did not trigger the Act. The ruse exception–collusion between civil and criminal authorities to circumvent the Act and detain a Defendant for later prosecution–did not apply. The primary or exclusive purpose of Defendant’s detention was not to hold him for later criminal prosecution. The authorities legitimately were holding him for civil deportation.

Guideline Range Can Be Given "Considerable" Weight by District Court

United States v. Zamora-Solorzano, ___ F.3d ___, 2008 WL 2035476 (10th Cir. May 13, 2008)

Defendant plead guilty to possession with intent to distribute methamphetamine and possession of a firearm in connection with the drug offense, and was sentenced to the low end of the guideline range (270 months). He had requested 180 months (120 mandatory minimum on the drugs, and mandatory consecutive 60 months on the gun). 10th holds the sentence procedurally and substantively reasonable. The district court expressly disavowed that it was presuming the guideline range to be reasonable, but determined it would give the guidelines great weight in the interest of sentencing uniformity. It was not plain error for the court to give the guidelines "considerable" weight–Rita does not preclude a district court from giving considerable weight to the guidelines in a particular case. Due deference must be given to the district court decision to give the weight it regards appropriate to any of the 18 USC 3553 factors, one of which is the "advisory" guideline range.

Driving a Little Slow Insufficient Grounds for Stop

U.S. v. Valadez-Valadez, -- F.3d --, 2008 WL 2009867 (10th Cir. 5/12/08) - An actual reversal of the district court's denial of motion to suppress because there was no rs for the stop of Mr. Valadez-Valadez's pickup outside Tierra Amarilla, NM. The pickup was stopped for traveling ten miles per hour under the speed limit. Inside the camper shell were 21 passengers, some of them unlawfully in the country. The state law provided that a motor vehicle should not be driven "at such a slow speed as to impede the normal and reasonable movement of traffic . . . " The opinion concludes that driving at a speed moderately below the limit does not, without more, obstruct or impede traffic. The officer who stopped the vehicle in this case could have passed it.

Bank Robbery Conviction Upheld; Defendant Properly Found to Be a Career Offender

U.S. v. Ellis, -- F.3d --, 2008 WL 2004276 (10th Cir. 5/12/08) - the indictment was not inadequate to sustain bank robbery conviction for failure to charge aiding and abetting because it is not an independent crime. The bank robbery elements were properly alleged. With respect to sentencing, acceptance of responsibility reduction was properly denied as Mr. Ellis went to trial and contested underlying facts on guilt. Sentencing enhancements for aiding and abetting were properly applied at the same level as for the underlying bank robbery offense. Mr. Ellis was appropriately characterized as a career offender because his bank robbery conviction was for a violent offense and he had previously been convicted of robbery with firearms and escape from a penal institution, both of which the court concludes are crimes of violence. (It does note the cert. grant in Chambers).

Suspect Unlawfully Arrested Inside Motel Room When Coercive Police Tactics Forced Him to Answer Door

US v. Reeves, 2008 WL 1961246 (10th Cir. 5/7/08):

Tenth Circuit REVERSES the district court's denial of the felon-in-possession defendant's suppression motion, holding that the defendant was unlawfully arrested under Payton v. New York. The defendant was arrested without a warrant when he answered his motel room door at 3:30 a.m., after officers made phone calls to his room, knocked on his door and window with their flashlights, and loudly identified themselves as police officers for at least 20 minutes. The officers went to Reeves' room (where he had been living for awhile) because he was a suspect in an aggravated assault. After they beat on his door and forced him out, they saw he had a holster. A subsequent search disclosed guns and ammunition, which were the basis for the federal gun charges.

The Court found that the district court erred in denying the motion to suppress. The circumstances showed that Reeves did not open the door voluntarily but in response to coercive conduct, and therefore was unlawfully seized in the room.

The Court rejected the district court's conclusion that exigent circumstances and probable cause justified the seizure. The district court had found that the officers had to act because they knew Reeves was a felon and he was about to leave for California; problem with that conclusion was that the testimony was that the officers did not learn of the possible departure from the motel manager until after Reeves had been cuffed. The fact that the officers saw the holster when Reeves came to the door also couldn't support exigency because Reeves had been seized before ever opening the door. The court notes in a footnote that the government referred to victim and public safety in its brief, but failed to make any argument and the record is "devoid of any mention of a victim or member of the public whose safety may have been at risk during this encounter." Finally, the government forgot to argue that the unlawful arrest did not taint the subsequent search and forgot to ask for a remend for further finding, so "this court cannot say the causal connection between the illegality and the consent was broken."

Judge Tymkovich concurred, but objected to the majority's "unnecessarily broad language explaining the 'constructive entry' doctrine." In his view, the majority "implies that even limited, non-consensual knock-and=talk encounters are arrests if the suspect indicates any reluctance to open the door."

Robbery, Gun Convictions Affirmed; Speedy Trial, Suppression, and In-Court ID Challenges Rejected

U.S. v. Thompson, -- F.3d --, 2008 WL 1932115 (10th Cir. 5/5/08) - affirmance of bank robbery and gun convictions. No speedy trial violation because, since there was no grand jury in session when the time to file the indictment would otherwise have expired, the period for filing the indictment was extended 30 days. No Fourth Amendment violation where landlady consented to search of bedroom Mr. Thompson rented because he did not have exclusive control over that bedroom. The door did not lock and other residents could freely enter. And no problem at all with the in-court identification procedure in which Mr. Thompson was required to wear sunglasses in front of the jury in order for the jury to compare his appearance with the perpetrator in videotapes. Even tho he was the only black man in the courtroom, that was not unconstitutionally suggestive. Shortly before trial, the district court told Mr. Thompson he could use an in-court line-up or show photos of other black men in similar apparel and he did not avail himself of these methods.

Tenth Affirms Vitality of Gall/Kimbrough for Downward Variances, But Defendant's Boots Were Suspicious

United States v. Muñoz-Nava, ___ F.3d ___, 2008 WL (10th Cir. May 6, 2008)

Bad news first: there was probable cause to detain Defendant and take him to DEA HQ from the bus station where he arrived from El Paso wearing boots that attracted unwanted attention, and to detain those boots pending issuance of a search warrant. The totality of circumstances supporting probable cause: Defendant’s lack of luggage; the bulge in the boots; smell of fresh glue; lack of wear; similarity to false boot compartments seen before by the agent; and the iffy alert by the drug sniffing dog.

Good news: Sentencing discretion reigns: starting from a 63-78 month guidelines calculation in the presentence report, the district court did not error in adjusting the guidelines for minor role and granting 1 extra point for acceptance, leading to a new advisory range of 46-57 months. Furthermore, there was no error in granting a downward variance to one year in custody plus one year on home confinement. The court did not procedurally err, either; the court was entitled to draw inferences from the facts re: minor role (and government claim on extra point for acceptance reviewed under plain error–no error). The ultimate sentence was substantively reasonable; the court's emphasis on extraordinary family circumstances was supported by the record. Also, home confinement substantially restricts liberty as to constitute punishment, contributing to the reasonableness conclusion.

Proposed New Guidelines

The Fifth Circuit Blog has already done an excellent summary of the proposed new Guidelines amendments, so rather than re-creating the wheel, I urge you to visit the discussion, available here.

Civil Rights Claim Based on Failure to Enforce Protective Orders Proceeds

Price-Cornelison v. Brooks, No. 05-6140, 5/2/08 - Denial of defendant's summary judgment motion based on claim of qualified immunity in this Section 1983 case affirmed in part. This is a civil rights case against an undersheriff. The plaintiff complained about the undersheriff's refusal to enforce some protective orders she got against her long-time girlfriend. The undersheriff moved for summary judgment, arguing that he was entitled to qualified immunity on the claims. A denial of qualified immunitiy is immediately appealable. Basically, to avoid summary judgment on a claim, the plaintiff has to show that 1) the defendant violated a constitutional right that 2) was clearly established, or to put it another way, a constitutional right is clearly established if a reasonable officer would know that what he or she was doing was clearly unlawful.

In this case, the Tenth found that the undersheriff was entitled to qualified immunity on one claim -- her equal protection claim that she was treated differently (based on her homosexuality) from a heterosexual because the undersheriff did not enforce an emergency protective order and stop the girlfriend from removing property. Unfortunately, the plaintiff's case was sufficiently different from an allegedly simiilar case that she lost on the grounds that she had failed to prove the undersheriff would have enforced the order had she been an ordinary married woman, basically because the emergency order she had obtained gave the girlfriend until October 17 to gather her stuff and move out and the plaintiff called and complained on Oct. 16, and the order was not yet effective on that date.

However, the case is remanded for further proceedings on the other claims. Plaintiff also alleged that the undersheriff refused to enforce her permanent protective order on November 3 because she was lesbian and a victim of domestic violence. The court concluded she adequately established this right and the right was clearly established based on case law stating that, although there is no constitutional right to police protection, the police cannot discriminate in the provision of such protection.

Finally, the plainitff had argued that the undersheriff unlawfully vioalted her fourth amendment rights by threatening to arrest her on Oct. 16 if she tried to stop the girlfriend from removing the plaintiff's stuff from the house, along with the girlfriend's stuff. The undersheriff, by doing this, unlawfully assisted the girlfriend in seizing the plaintiff's property. Furthermore, the undersheriff should have known that what he was doing was wrong based on a couple of prior Tenth Circuit decisions.

No Scienter Req't Needed to Enhance for Possession of Sawed-Off Shotgun; City Ordinance Violation Not Necessarily Countable in Crim History

US v. Saavedra, No. 07-2192 (10th Cir. May 1, 2008): Half a sentencing loaf for a defendant who pled guilty to being an addict or unlawful user of a controlled substance in possession of a firearm and ammunition, in violation of 18 USC 922(g)(3). Following a traffic stop, Mr. Saavedra told ABQ officers he had a shotgun inside the vehicle. An unregistered, sawed-off 12-gauge shotgun with a barrel length of 13.25 inches and a total length of 21 inches was found. Mr. Saavedra's girlfriend helpfully volunteered that Mr. Saavedra habitually used heroin, and he confirmed this. He said he knew the weapon was "short," he thought the barrel was 18 inches long. Mr. Saavedra pled guilty to the drug user in possession charge in exchange for the government dropping the unregistered firearms count. Mr. Saavedra did not make any admissions about his knowledge of the gun barrel's length at the plea. At sentencing, he objected to 1) application of USSG 2K2.1(a)(5) base offense level of 18 for possessing a sawed off shotgun and 2) his criminal history category being calculated as II by including a prior misdemeanor conviction of negligent use of a firearm under an Albuquerque municipal ordinance.

The Tenth Circuit held the base offense level was properly calculated as 18. Although the government must prove the defendant knew of a weapon's special characteristics that render possession a crime to support a conviction under 18 USC 922, no such proof of scienter is necessary to apply the guideline because the text does not explicitly require scienter. Thus, it was sufficient for the government to prove that the weapon possessed the qualifying characteristics and did not need to prove Mr. Saavedra knew of them.

However, the court may have procedurally erred by including Mr. Saavedra's conviction under the Albuquerque ordinance. A local ordinance violation can be included in criminal history if the ordinance violation would also violate state law. In this case, the ordinance and state law overlapped only in a couple of areas. The district court committed procedural error by not inquiring into what section of the ordinance Mr. Saavedra violated and remand for resentencing was required.