A few instructive, unpublished 10th Circuit cases
U.S. v. Matias-Medina, 2008 WL 2097418 (5/20/08) (unpub'd) - The 10th remands for reconsideration of whether a Colorado 3rd degree assault was a crime of violence under § 2L1.2. The 10th could not tell if documents acceptable under Shepard were consulted as to whether the defendant was found guilty of the requisite elements, where the PSR only quoted from a "PSR" (?) from a prior deportation proceeding.
U.S. v. Clarkson, 2008 WL 2217257 (5/29/08) (unpub'd) - The government failed to present sufficient proof the defendant possessed stolen mail where the storage unit in which the stolen mail was found was rented to the co-defendant, and the co-defendant listed the defendant as having authority to use the unit, but there was no evidence the co-defendant ever gave the defendant the access code and key.
Mendiola v. Mukasey, 2008 WL 2222018 (5/30/08) (unpub'd) - The defendant's possession-of-a-controlled-substance offense was an aggravated felony, despite Lopez v. Gonzales, 549 U.S. 47 (2006), because the alien had previously been convicted of a controlled substance offense and a second controlled substance conviction would have subjected the alien to a felony punishment under federal law, 21 U.S.C. § 841(a). So, without saying so, the 10th essentially applied the recent Rodriquez rationale in the immigration context.
U.S. v. Merino-Garcia, 2008 WL 2175338 (5/27/08) (unpub'd) - Hopefully just a careless statement in a non-precedential decision by Judge McWilliams, and not a reasoned opinion about the impact of Gall and Kimbrough, but the 10th says the Guidelines' assertion that family ties and responsibilities are ordinarily not relevant applies to variances as well as departures.
U.S. v. Pena, 2008 WL 2175356 (5/27/08) (unpub'd) - The defendant did not express his desire to represent himself explicitly enough when he said: "can I represent myself?" and received no response, in the midst of a discussion of his complaints against his current counsel. Interestingly, counsel helpfully explained: "I think this is just another ploy to get a continuance with another attorney."
Davis v. Cline, 2008 WL 2043292 (5/14/08) (unpub'd) - The Kansas courts' rejection of the petitioner's Brady claim. though perhaps not what the 10th would have done, was not contrary to, or an unreasonable application of, S.Ct. law, where the state did not disclose evidence that another person committed burglaries in the same way as the petitioner was accused of committing the charged burglaries. The 10th affirmed that materiality is assessed on a sliding scale depending on the specificity of evidence requests the defense makes. So, making specific evidence requests makes a difference.
Padilla v. Enzor, 2008 WL 2039274 (5/13/08) (unpub'd) - The plaintiff prisoner did not have a constitutional right not to be charged excessive prices for phone calls.
U.S. v. Clarkson, 2008 WL 2217257 (5/29/08) (unpub'd) - The government failed to present sufficient proof the defendant possessed stolen mail where the storage unit in which the stolen mail was found was rented to the co-defendant, and the co-defendant listed the defendant as having authority to use the unit, but there was no evidence the co-defendant ever gave the defendant the access code and key.
Mendiola v. Mukasey, 2008 WL 2222018 (5/30/08) (unpub'd) - The defendant's possession-of-a-controlled-substance offense was an aggravated felony, despite Lopez v. Gonzales, 549 U.S. 47 (2006), because the alien had previously been convicted of a controlled substance offense and a second controlled substance conviction would have subjected the alien to a felony punishment under federal law, 21 U.S.C. § 841(a). So, without saying so, the 10th essentially applied the recent Rodriquez rationale in the immigration context.
U.S. v. Merino-Garcia, 2008 WL 2175338 (5/27/08) (unpub'd) - Hopefully just a careless statement in a non-precedential decision by Judge McWilliams, and not a reasoned opinion about the impact of Gall and Kimbrough, but the 10th says the Guidelines' assertion that family ties and responsibilities are ordinarily not relevant applies to variances as well as departures.
U.S. v. Pena, 2008 WL 2175356 (5/27/08) (unpub'd) - The defendant did not express his desire to represent himself explicitly enough when he said: "can I represent myself?" and received no response, in the midst of a discussion of his complaints against his current counsel. Interestingly, counsel helpfully explained: "I think this is just another ploy to get a continuance with another attorney."
Davis v. Cline, 2008 WL 2043292 (5/14/08) (unpub'd) - The Kansas courts' rejection of the petitioner's Brady claim. though perhaps not what the 10th would have done, was not contrary to, or an unreasonable application of, S.Ct. law, where the state did not disclose evidence that another person committed burglaries in the same way as the petitioner was accused of committing the charged burglaries. The 10th affirmed that materiality is assessed on a sliding scale depending on the specificity of evidence requests the defense makes. So, making specific evidence requests makes a difference.
Padilla v. Enzor, 2008 WL 2039274 (5/13/08) (unpub'd) - The plaintiff prisoner did not have a constitutional right not to be charged excessive prices for phone calls.
posted by Anonymous at 3:39 PM
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