Guideline Enhancement Based on Co-Defendant's Use of Gun During Robbery Upheld

United States v. Miera, ___ F.3d ___, 2008 WL 3905885 (10th Cir. 2008)
The COA upholds application of the two level GL enhancement, §2B3.1(b)(4)(B), restraint of a person, when D’s accomplice waved a gun at the bank door during a robbery and ordered no one to move. While more is required to be done with the gun to restrain than just brandishing it for the application of the enhancement, there also is no requirement that an individual be targeted for restraint. In this case, that “more” was demonstrated by the accomplice waving the gun around generally, by his ordering a number of times that no one was to move, and by his positioning himself at the door, preventing anyone from leaving.

Wyo. Law Fails to Restore Federal Gun Rights to DV Misdemeanants

Wyoming ex rel. Crank v. U.S., 2008 WL 3906587 (Aug. 26, 2008): The State of Wyoming sought declaratory and injunctive relief against the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), which had ruled that a Wyoming statute purportedly establishing a procedure to expunge convictions of domestic violence misdemeanors, so as to restore lost firearms rights, would not restore federal firearm rights. The district court ruled against the State.

On appeal, the Tenth found that Wyoming had standing to bring the action, but affirmed the ATF's interpretation. It held that Wyoming waived its Tenth Amendment argument by not reasserting it on appeal. On the merits of the Wyoming law, which purports to set aside or expunge convictions for the purpose of restoring lost firearms rights, the Tenth determined that the ATF's interpretation that federal law governed definition of "expunge" for purposes of 18 USC 921(a)(33)(B)(ii) and that the Wyoming law did not meet the federal definition was not arbitrary and capricious. The Tenth, in upholding the ATF's position, concluded that § 921(a)(33)(B)(ii) requires the complete removal of all effects of a prior conviction to constitute either an expungement or a set aside for purposes of restoring federal firearms rights.

Safe Haven? Not!

U.S. v. Cabanillas, 2008 WL 3843463 (8/19/08) (unpub'd) - In rejecting a claim of the substantive unreasonableness of a sentence, the 10th expresses its belief, contrary to the defendant's claim, that the BOP will take all necessary steps to ensure the safety of a prisoner who has snitched off gang members.

Bacause Defendant Was Already Incarcerated, No Relief for Speedy Trial Violation

U.S. v. Hill, 2008 WL 3861201 (8/20/08) (unpub'd) - In a divided decision, the 10th rejects Speedy Trial Act and speedy trial right claims. There is no provision in the Act for dismissal of an indictment when, as occurred here, the government violates its obligations under 18 U.S.C. § 3161(j) to bring a defendant to trial promptly when the defendant is incarcerated on another charge and demands a speedy trial. The 10th does not suggest any remedy for the violation. The 10th essentially finds all four Barker v. Wingo factors in the defendant's favor: the delay was 18 months, the delay was due to the government's negligence, the defendant asserted his speedy trial right, and the defendant ended up in a more severe custody situation because BOP was told a detainer would be filed against him due to the charges. But because the defendant was already in custody anyway, the 10th didn't think the prejudice was substantial enough, and the other factors strong enough, to warrant relief.

In dissent, Judge Holloway disagreed in particular with the majority's rejection of the claim the defendant was deprived of his right to have his sentences be served concurrently by the government's delay. The majority felt the defendant still had the opportunity to get a lower sentence by arguing the concurrence deprivation as a variance ground under Booker. Judge Holloway believed prior pre-Sentencing- Reform-Act cases where a similar argument could have been made precluded that theory. He also disagreed with the majority's belief that, because the defendant was already incarcerated, he had to show substantial prejudice to prevail.

Nature of Prior Not Dependant on Defendant's Actual Sentence But On Potential Sentence

U.S. v. Hill, 2008 WL 3876846 (8/22/08) (Published) - Upon the government's rehearing petition, the 10th reverses its prior decision in light of the Supreme Court's decision in U.S. v. Rodriquez, 128 S. Ct. 1783 (2008). The 10th previously ruled the defendant could not be a felon in possession of a firearm since his prior conviction was for a crime punishable by only 11 months under Kansas' guidelines, given the defendant's particular criminal history. But the 10th now says you look at the offense, not the offender's particular characteristics, in which case the Kansas guideline range was 7 to 23 months. § 922(g)(1) speaks in terms of a crime punishable by imprisonment of more than one year. Thus it focuses on the offense, not the offender. Rodriquez supports this conclusion, the 10th says. In the ACCA context, the Court refused to hold the maximum punishment is limited by the defendant's guideline range.

Tenth Denies Claim that Right to Present Defense was Abrogated by Co-Defendant's Refusal to Testify

U.S. v. Rivas-Macias, -- F.3d --, 2008 WL 3892728 (10th Cir. 8/25/08) - COA rejects claim that right to present a defense at drug conspiracy and possession with intent to distribute trial was violated by co-conspirator's invocation of his 5th privilege. Tho co-conspirator had pled and debriefed, he had not yet been sentenced and faced an authentic risk of further incriminating himself by testifying. The debrief did not waive the 5th Amendment privilege; a witness' testimonial waiver of the privilege is effective only it if occurs in the same proceeding in which a party desires to compel the witness to testify. There was no request below for a trial continuance until after the co-defendant was sentenced and the district court did not commit plain error by not granting one sua sponte.

Alien-In-Possession of Firearm, Ammo Convictions Affirmed

U.S. v. Gambino-Zavala, -- F.3d --, 2008 WL 3892073 (10th Cir. 8/25/08) - police sweep of apartment where multiple gunshots were reported by multiple 911 calls early in the morning was justified by exigent circumstances and motion to suppress was rightfully denied. After police knocked on apartment door for several minutes, Mr. Gambino-Zavala opened it and said no one else was there. Officers reasonably concluded that an injured victim could be inside and that there was an immediate need to search to protect the safety of others. They went in and discovered a shotgun and ammunition. Gambino-Zavala was convicted of unlawful possession of a firearm and ammunition by an illegal alien. The district court's requests that the gov't present more testimony to support the enhancements he wanted to impose did not bespeak actual bias or the appearance of bias. There was sufficient evidence to support enhancement for an offense involving 3-7 guns found in apartment closets and under a bed because Gambino-Zavala had access to all areas, co-signed the lease, and was listed on the lease as a resident. The sentence was also appropriately enhanced for possession of a gun used in connection with distribution of heroin found in the apartment.

New Federal Convictions Reversed Available

Tne Federal Defenders for the District of Northern New York have an updated edition of Federal Convictions Reversed available here at their website. This is a very useful list of successful criminal defense wins that can shortcut the painful process of finding favorable case law.

Conviction Rev'd Because Indictment Constructively Amended

United States v. Farr, ___ F.3d ___, 2008 WL 3843336 (10th Cir. 2008)
The COA finds that during trial the government constructively amended the indictment against Defendant in a employment tax fraud case, charging her in the indictment as an employer/individual, but having the charge amended to a charge against her as an employer/business, when D defended in closing that the case had not been proved against her as an individual. The COA said the amendment resulted in Defendant being tried not just for the crime described in the indictment but also for a separate and additional offense. Under the Fifth Amendment, the government may only proceed on a crime found by a grand jury. In reversing and remanding the case, the COA finds that nevertheless there was sufficient evidence to convict her “and thus no double jeopardy impediment exists to her retrial under a properly framed indictment.”

Divided Panel Upholds Drug Conviction Enhancement in Reentry Case

United States v. Torres-Romero, ___ F.3d ___, 2008 WL 3843344 (10th Cir. 2008)
Defendant was convicted of illegal entry after deportation. The COA held that his prior Colorado drug conviction was properly treated as a qualifying
“drug trafficking offense” for the 16 point guideline enhancement. The COA looked only at the state information, and the judgment that stated D had pleaded guilty to the information, to support its decision, even though it appeared that the information parroted the broad language of the statute that included both possession and trafficking acts. Because under 10th Cir. law and under Colorado law, a “plea admits all material allegations already contained in the indictment,” this was sufficient to establish that D had been convicted of a qualifying drug trafficking offense.

Hartz dissented. Under the Taylor/Shepard line of cases, additional evidence, such as an admission in a plea agreement or during a plea colloquy would be necessary to establish that Defendant's Colorado conviction was for a drug-trafficking offense. Hartz did not buy the majority’s glossing over the “either/or” problem by interpreting the plea unrealistically as “and”: guilty of possessing and trafficking.

Probation Officer Could Identify Defendant In Robbery Video; Life Sentence Affirmed

U.S. v. Contreras, -- F.3d --, 2008 WL 3823059 (10th Cir. 8/18/08) - it was OK to permit Mr. Contreras' probation officer to testify she recognized him in bank robbery video. While the jury could review the surveillance footage, the po could base her identification on many factors that would not be apparent to the jury viewing Mr. Contreras in a courtroom. The probation officer could have been cross-examined re: her ability to ID without getting into details re: the nature of the relationship. There was no 6th Amend. violation because Mr. Contreras was afforded the opportunity to cross-examine the probation officer, even tho he elected not to take it.

Mr. Contreras' life sentence is upheld. Analogizing to the defendant's burden of proof of an affirmative defense at trial, the COA reaffirms prior case law holding constitutional the requirement that the defendant prove, in order to avoid a life sentence, that a prior robbery conviction should not count as a serious violent felony because no gun or dangerous weapon was used or threatened and there was no death or serious bodily injury.

USSG 2K2.1 Enhancement Proper; Low-End GL Sentence Affirmed

US v. Hodge, 2008 WL 3507464 (unpublished) - In this felon in possession case, district court did not clearly err in finding that defendant possessed firearm "in connection with another felony offense" and applying four-level sentence enhancement pursuant to USSG section 2K2.1(b)(6), where gun was found in defendant's motel room, along with heroin, marijuana and drug paraphernalia, during execution of search warrant. Also, court did not abuse its discretion in sentencing at the low end of the guideline range, especially in light of his criminal history, in spite of defendant's drug addiction, minimal education, age and family ties.

Capital Habeas Petitioner Gets Evidentiary Hearing on IAC Claim; Other Contentions Rejected

Wilson v. Sirmons, 2008 WL 3166975 (8/8/08) (Published) - Judge McConnell wrote an excellent opinion regarding ineffective assistance ("IA") of counsel in a capital case. But it was not joined in by any other judge. Judge Hartz concurred in the result remanding for an evidentiary hearing on the IA issue and Judge Tymkovich dissented. Judges McConnell and Hartz did agree on the standard of review. They held the review was de novo because the state appellate court denied the claim without considering the post-trial affidavits the petitioner submitted. Oklahoma law precludes an appellate court from considering evidence not presented at trial unless an evidentiary hearing is held in district court and no such hearing was held. Since the state court did not address the merits of the claim the petitioner raised in federal court, which included the affidavits, no deference was owed the state court's decision. The 10th noted the S.Ct. will decide whether this standard of review is correct next term in Bell v. Kelly.

Judge McConnell found the allegations sufficient to establish counsel was deficient with respect to the penalty phase in failing to: (1)give his mental health expert sufficient time before trial [three weeks] to fully develop evidence that the petitioner suffered from schizophrenia; (2) interview any family members, who were reasonably available, to develop evidence that the petitioner had delusions, hallucinations, nightmares and inability to maintain contact with reality; and (3) present the diagnoses that the expert had arrived at, such as bipolar, PTSD, generalized anxiety disorder. These failings allowed the prosecutor's cross-examination to suggest the petitioner was a psychopath. It's important that the defense be able to explain to the jury the difference between abnormal personalities and actual mental disorders for which the jury might have sympathy. For that reason, the petitioner's allegations established prejudice. Judge McConnell's opinion is powerful support for the need for capital counsel to follow ABA guidelines and investigate and present all possible mitigating evidence. Judge Hartz shared the dissent's concern with the perils of putting on mental health evidence and was troubled by the lack of any mention in the affidavits of what the expert told counsel. But he was convinced a remand for a hearing was appropriate in light of the fact that the petitioner need not prove his claim to get a hearing. Judge Hartz did not consider it implausible that IA relief could be established. He also suggested the state could present counter-affidavits that might obviate the need for a hearing.

The 10th unanimously held that: (1) it was okay for the trial court to begin the voir dire by asking prospective jurors their position on the death penalty, refuse to conduct individual sequestered voir dire and conduct a dual jury procedure whereby one jury decided one defendant's guilt and penalty and the other decided the co-defendant's guilt and penalty [one jury was excused when the defense presented evidence prejudicial with respect to his co-defendant]; (2) it was not a violation of due process to introduce a PCR DNA test result without a Daubert hearing [such analysis has been found to be reliable]; (3) it was not error to refuse to give a 2d degree murder instruction [under state law once a dangerous weapon is involved during a robbery, 2d degree murder is not an option]; (4) there was sufficient evidence the victim endured conscious physical suffering [the victim was still alive when he was beat up and before the deadly baseball bat blow was administered], the heinous offense aggravator was not unconstitutionally vague; (5) no Miranda warnings were required during a traffic stop; (6) it was okay to consider the petitioner's conviction for being an accessory after the fact for murder and evidence he supplied the ammunition for that murder; (7) it was okay to admit out-of-court statement that the petitioner was driving a car used in a homicide because it explained why he was stopped and it's not clear the Confrontation applies to capital hearings; (8) it was improper to admit evidence of the victim's childhood, but it did not deny the petitioner a fundamentally fair trial, even though the prosecution's victim advocate was so overcome by the victim impact evidence she broke down in tears and was ordered to leave the courtroom; (9) the post-autopsy photo of the inside of the victim's skull evidence was irrelevant and prejudicial but harmless; (10) the prosecutor acted improperly in misstating that the petitioner was found with money on him, calling the petitioner an animal and unadulterated evil, disparaging defense counsel as creating a smoke screen, asking the jurors to put themselves in the victim's shoes as he left for work never to see his family again, imploring the jury to be the Great Equalizer, and misstating that the petitioner's presence at the robbery was enough to warrant a conviction. But all of the errors did not render the trial fundamentally unfair, although the 10th opined that, if the "Great Equalizer" comment had been made at sentencing, it might have warranted reversal. Ironically, the 10th noted it also might have reversed had counsel put on a stronger mitigation case. The 10th admonished the prosecutors: "We are puzzled why prosecutors take such risks of a reversal when the evidence is so overwhelming." Perhaps because the courts have proven the risk of reversal for misconduct is infinitesimal.

Prisoner Civil Rights Complaint Reinstated

Fuller v. Wilcox, 2008 WL 2961388 (8/4/08) (unpub'd) - The 10th reverses dismissal of civil rights action filed by prisoner who had filed so many frivolous actions he was banned from filing anything in federal court absent imminent danger of physical injury. He had sufficiently alleged such danger when he claimed he was unable to get around, take a shower, get into his bed, etc., without a wheelchair and the prison refused to provide him with one.

Sufficient Evidence Supported Conviction

Mars v. Dinwiddie, 2008 WL 2954292 (8/4/08) (unpub'd) - The 10th finds sufficient evidence to support the conviction for assault and battery with intent to kill, rejecting the petitioner's claim that he could not have used the requisite force or had the requisite intent because, "despite all the problems, he loved" the victim.

10th Refuses to Reconsider IAC Argument

U.S. v. Lewis, 2008 WL 2961812 (8/4/08) (unupb'd) - Evidencing the downside of raising ineffective assistance ("IA") of counsel on direct appeal, the 10th refuses to consider the § 2255 movant's IA claim because the 10th already rejected the claim on the merits in the direct appeal.

Piecemeal Dismissal of Claims Improper

Snyder v. Ortiz, 2008 WL 2961343 (8/4/08) (unpub'd) - In habeas case, the district court was wrong to dismiss the unexhausted claims and deny the other exhausted ones. A mixed petition must either be dismissed in its entirety without prejudice or the district court must deny all the claims on the merits.

Possible Old Chief Error Was Harmless

U.S. v. Riley, 2008 WL 3019438 (8/5/08) (unpub'd) - The 10th strongly hints it was wrong to allow the admission of evidence of the nature of the offense that the defendant was convicted of in a felon-in-possession case. But any error was harmless.

FRE 403 Violated by Admitting Gang Evidence, But Harmless

U.S. v. Brown, 2008 WL 2967708 (8/5/08) (unpub'd) - It was error in violation of Evidence Rule 403 to admit evidence of the defendant's membership in a drug-dealing gang to show his intent to distribute drugs. The 10th found it significant that the defendant was not charged with conspiracy. Nevertheless, the error was harmless.

Officers Not Entitled to Qualified Immunity Re: Excessive Force Claim that Cuffs Were Too Tight

Vondrak v. City of Las Cruces, ___ F.3d ___, 2008 WL 2967656 (10th Cir. 2008)

In Sec. 1983 action against two cops and the city arising out of cops' arrest of Plaintiff for DWI. COA first determines it has no pendent jurisdiction over Plaintiff’s cross appeal and City’s appeal. Next, COA says arresting cop gets qualified immunity on Plaintiff’s illegal arrest claim. Plaintiff’s statement that he had consumed one beer three hours earlier gave cop reasonable suspicion to subject him to a field sobriety test.

COA upholds denial of qualified immunity on excessive force claim against cops–handcuffs too tight and Plaintiff showed he was injured (permanently. Plaintiff is an orthodontist and claimed the injury affected his ability to work). Law is clearly established that too-tight cuffing equals excessive force. Plus, second non-cuffing officer has no qualified immunity because clearly established law imparts a duty to intervene to protect constitutional rights.

Hartz dissents on ground that he would not give qualified immunity on the illegal arrest claim, pointing out that Plaintiff said he had consumed only 1/3 of one beer 3 hours earlier, and that did not give reasonable suspicion to administer the field sobriety test.

Cop Should Not Have Arrested Plaintiff for Allegedly Concealing Identity

Keylon v. City of Albuquerque, ___ F.3d ___, 2008 WL 2967658 (10th Cir. 2008)

In Sec. 1983 action arising out of cop’s arrest of Plaintiff, without probable cause, for concealing ID, the district court erred in denying Plaintiff judgment as a matter of law and erred in submitting the issue of qualified immunity to the jury. The COA ruled that under the facts, no reasonable police officer would have believed that Plaintiff violated the law and concealed her identity. Also, there were no disputed facts regarding qualified immunity–as a matter of law, Plaintiff’s rights were so clearly established that the cop should have known his actions in arresting her violated those rights–and therefore, the question of immunity should not have gone to the jury.

Venue Challenge Preserved by General Motion for Judgment of Acquittal; However, Evidence was Sufficient to Prove Venue in Utah

United States v. Kelly, ___ F.3d ___, 2008 WL 2972731(10th Cir. 2008)
Defendant did not waive his challenge to venue being proper in Utah–nothing on the face of the indictment alerted him to a venue issue, and it only became apparent when the government rested its case. Nor did he fail to preserve it–in generally moving for an acquittal after the government rested, a challenge to venue and all essential elements of the offense was included in the objection. PRACTICE TIP: (if he had challenged sufficiency of the evidence on a particular ground, he would have failed to preserve all other grounds except that specified).

Venue must be found by the jury, but only upon a preponderance of the evidence. The evidence was sufficient that Defendant committed the offenses in the district of Utah. Enough evidence of particular geographic locations was introduced so that a jury could infer the crime (possession of methamphetamine by D on a motorcycle) occurred in Utah. The COA took judicial notice of the named counties as being in Utah.

No plain error in district court not giving a jury instruction on venue. An instruction was included (buried) in the elements instruction. Additionally, he could not show that his rights had been affected since venue was proper in Utah.

Although the trial court erred in instructing the court reporter not to transcribe the instructions as read from the bench, the error was harmless. The district court provided a copy of the instruction it represented it had read to the jury, and that was good enough for the COA.

A Gamble that Didn't Pay Off: Detention Following Traffic Stop Justified by Reasonable Suspicion

US v. Thao, No. 07-8066, no WL citation yet (August 7, 2008) (unpublished):

State trooper stopped out of state SUV for allegedly going 79 mph in a 75 mph zone. Trooper had reasonable suspicion for continued detention based on: (1) defendants claimed they had gone from Minneapolis to Reno for a quick gambling trip, but there were 500-700 unaccounted for miles; (2) the driver, Lor, was not authorized to drive the vehicle; (3) the SUV was rented by a third party who was not present on the trip; (4) the defendants said this third party lived in Minnesota, but documents indicated he was from Wisconsin; (5) unusual and increasing nervousness; (6) inconsistent stories about visiting family and friends in Reno, vis-a-vis gambling; and (7) a lack of luggage (there was a laundry basket full of clothes). The COA held that, collectively, these facts justified detaining the defendants until they consented to a search of the vehicle, which led to the discovery of the meth. The search to consent to voluntary and, despite defendants' claim that one of them tried to stop the search, district court found otherwise based on several troopers' testimony.

No Constitutional Right to Have State Conduct DNA Test

Armijo v. Tapia, 2008 WL 3059465, No. 08-2095 (10th Cir. Aug. 6, 2008) (unpublished):

Certificate of appealabitlity denied for state habeas petitioner. He failed to make a substantial showing of the denial of a constitutional right as required by 28 USC 2253(c)(2). Defendant convicted of various charges relating to the kidnapping and assault of his girlfriend. Brady did not require the state to perform DNA testing that would arguably support defendant's argument that blood on the knife was his, not his girlfriend's; the state was not required to perform any particular forensic tests. The Court rejected his claim that the Sixth Amendment required the state to conduct the DNA tests because he did not raise the argument before the district court and cited no authority. The Court also rejected the argument that the state committed prosecutorial misconduct by not failing to do the DNA analysis because the trial court did not actually order the state to perform the test; rather, the trial court had suggested that the prosecution help petitioner collect a DNA sample to be used in testing.

Defendant Waived Challenge to Sentence Enhancement

U.S. v. Carrillo-Jaime, 2008 WL 2894033 (7/29/08) (unpub'd) - Another "caveat defense attorney" case. The defendant had waived, not just forfeited, his right to challenge the classification of a burglary as a "crime of violence" under U.S.S.G. § 2L1.2 because counsel raised the issue below, but, after seeing the information filed in the burglary case, counsel said: "the wind has been taken out of the sails of that argument."

Wearing Similar Clothing to Person Sought Justified Stop

U.S. v. Goodlett, 2008 WL 2893912 (7/29/08) (unpub'd) - Rather slim evidence establishes reasonable suspicion to stop the defendant. Late at night the complainant thought she saw her ex-husband, who had threatened her life, near her home in violation of a protective order. She told the police he was wearing a brown jacket and a ball cap. For some reason, apparently she did not give a more detailed description. Officers discovered the defendant , who was not the ex-husband, walking about a mile from the complainant's home, near a store where the ex-husband frequented, wearing brown coveralls. Essentially because he wore the same color clothing, [but not the same kind of clothing], there was reasonable.suspicion.

Search of House Upheld

U.S. v. Esterline, 2008 WL 2893819 (7/29/08) (unpub'd) - The 10th acknowledges finding drugs in a person's car does not necessarily establish nexus with the person's residence to justify a residence search. But in this case there was also evidence the defendant sold drugs from his residence.

Evidentiary Challenges Rejected

U.S. v. Tsosie, 2008 WL 2940800 (8/1/08) (unpub'd) - It was okay to present evidence defense witnesses belonged to the same gang as the defendant to show their bias. It was also okay to admit a threatening statement by one of the attackers, even if the defendant himself did not make the statement because the attackers were acting in concert. It was not reversible plain error to present evidence that the victims were devout members of a church [it didn't affect the verdict] and were reading Bible verses immediately before the assault [it was part of the narrative]. The recitation of the particular verse they were reading rebutted the defense's charge that the victims had memory issues.

Stored Guns Properly Counted for Enhancement

U.S. v. Bertollini, 2008 WL 2940675 (8/1/08) (unpub'd) - The 10th holds that guns stored for years in the defendant's ex-wife's home were "relevant" to his possession of two guns in his car to support a number-of-guns enhancement under § 2K2.1(b)(1).

Removal Did Not Moot Challenge to Sentence

U.S. v. Jurado-Lara, 2008 WL 2893974 (7/29/08) (unpub'd) - The defendant's challenge to a 16-month sentence was not moot, even though the defendant had finished his sentence and had been removed to Mexico. There were still sufficient collateral consequences attached to his sentence because, if his sentencing argument was correct, the upper end of his guideline range would be less than twelve months and his conviction for using false information and documents in violation of 18 U.S.C. § 1546 would not constitute an "aggravated felony" if he received a sentence less than 12 months. If he was not convicted of an aggravated felony he would not be permanently inadmissible. The defendant had a very sad story. He was convicted for using false photo-ID cards to get jobs in early 2004. After he did that, but long before he was arrested, he met and then married a U.S. citizen. Through his wife's petition for alien relative he received a social security card and, from then on he worked under his own name. The same month his wife received a notice of approval of relative-immigration visa petition in February 2007, he was arrested for his 2004 offense. On appeal, he argued the government had failed to justify an enhancement under § 2B1.1(b)(10)(C)(I) for using the identification of an actual person, because the government had not shown he used the ID without the actual person's permission. The 10th noted that the record did not contain such evidence. But the 10th could not find plain error because the issue was a factual one that the defendant, by failing to raise the issue below, had not afforded the government an opportunity to flesh out the record.

Prisoner Sufficiently Alleged Claim to Medical Care

Edmisten v. Werholtz, 2008 WL 2940794 (8/1/08) (unpub'd) - The 10th reverses a denial of a request for a preliminary injunction for medical care. The plaintiff had made sufficient allegations to warrant an injunction where: a doctor determined he needed immediate surgery to replace the prosthesis in his jaw ravaged by bone cancer, and prescribed pain medication, antibiotics and a special diet, while awaiting surgery by the only doctor capable of performing the surgery; the Kansas prison denied his medication, antibiotics and special diet and stalled off the surgery, including not transporting him to his surgeon, despite doctor's orders to do so, because the surgery would cost $100,000; the plaintiff suffered lots of pain, etc. and was close to losing any chance the surgery could help. The plaintiff alleged he was the victim of an informal policy to give low priority to the medical needs of inmates requiring specialized, expensive care. The plaintiff sufficiently alleged the defendants interfered with a prescribed procedure and the danger of irreparable harm. The cost to the state was not undue if the defendants were legally obligated to provide medical care that cost that much. "The public has an interest in protecting the civil rights of all persons under the Constitution."

Offense Improperly Grouped

U.S. v. Hasson, 2008 WL 2894087 (7/29/08) (unpub'd) - It was reversible error to add the enhancement for one of the offenses (money laundering) after grouping all the offenses. Adding the enhancement to an offense that had a lower base offense level before grouping, as should have been done, would result in a 57-month reduction in the bottom of the guideline range.

Railroaded: Evidence in Backpack Linking Defendant to Drugs on Train Not Subject to Suppression

US v. Davis, No. 07-2101, 7/31/08 - Denial of motion to suppress, conviction by jury and sentence for conspiracy to distribute PCP affirmed. Defendant flew into LA from Vegas and was questioned by cops, who also searched his backpack. Inside were $12,000 cash and travel itineraries, including one for another guy, Stewart. That itinerary led DEA to stop Stewart on an Amtrak train in Albuquerque. Agents find PCP in his backpack. The defendant moved pretrial to suppress the evidence found in his backpack in LA on ground that, although initially consensual, the encounter there turned into a seizure because the cops had seized his backpack, which meant he was not free to leave, and he did not give explicit verbal consent to the search of the backpack. The district court didn't buy the story and denied the motion. On appeal, the defendant tried to argue that the post-9/11 airport security environment is so inherently coercive that all encounters with cops there should be considered non-consensual. The 10th refused to consider this argument; even assuming it had been implicitly raised below, it was nevertheless based on pure speculation.

Other issues - 1) District court did not abuse its discretion in refusing to declare mistrial when cop mentioned defendant's prior arrest, even though district court had granted notion in limine to exclude this, because it came up on cross in direct response to counsel's question about all reports cop had reviewed, and court promptly told jury to disregard it. 2) No abuse of discretion in refusing to instruct jury about effect of drug abuse on witness credibility where defense witness testified about Stewart's habit of smoking pot two years earlier and never expressly testified that Stewart was a drug abuser, especially since jury was instructed to treat Stewart's testimony with great care because he was a cooperating witness for the government. 3) Application of advisory guideline system is not a "de facto" violation of 5th and 6th Amendments. Defendant raised this issue merely to preserve it for further review. The 10th found this case to be a "peculiar vehicle" for such a challenge, given that his sentence was well below the advisory guideline range.

Witness Tampering Conviction Affirmed

US v. Stroup, 2008 WL 2914964, 7/30/08 - Friend's testimony, along with a letter written by the defendant to the friend soliciting him to "truthfully" testify that money the defendant wired to the friend was to allow friend to get his car fixed (instead of buying drugs with it), that mentioned witness tampering, and asked the friend to destroy the letter and not to tell anyone about it, was sufficient to support conviction for witness tampering under 18 USC 1512(b).

CA 2nd-degree Robbery Not Categorically a Crime of Violence

US v. Servin-Acosta, 2008 WL 2908932 7/30/08 - 16-level enhancement based on California conviction for 2d degree robbery in this reentry case reversed and case remanded for resentencing. Although a minute order, along with Border Patrol records, were sufficient to establish the fact of conviction, mere fact that "robbery" is an enumerated crime of violence under USSG 2L1.2 was not sufficient to establish that the defendant's conviction was for "generic robbery." The California statute defines robbery as the felonious taking of personal property of another, from his person or immediate presence, against his will, accompanied by means of force or fear. The government made no attempt to show that the California statute satisfies the definition of 'generic robbery" (in other words, passes muster under the categorical approach, although the 10th did not use that term here), and merely argued that "robbery is robbery." The 10th did not like that.