Unpublished Decisions
U.S. v. Welch, 2008 WL 4061166 (9/3/08) (unpub'd) - The good news: officers did not have probable cause for the issuance of a warrant to search the defendant's home when the information they had indicated the defendant had used his home to make meth several months before but that he had stopped doing so. The agents' arranged delivery of boxes of glassware, etc., the defendant had left at another's home and the defendant's acceptance of that delivery did not revive the stale information.
Bad news: the good faith exception applies because there was a "minimal nexus" between the defendant's home and drug manufacturing.
Also, the warrant to search the defendant's computers was specific enough because it only allowed the search for drug-related information. It wasn't possible to specify a search methodology.
U.S. v. Valle-Martinez, 2008 WL 3906738 (8/26/08) (unpub'd) - The d. ct. plainly erred when it declared that it could not vary more than 50 % below the guideline range based solely on one factor. While reliance on one factor might be a symptom of an unreasonable sentence, it does not necessarily render a sentence unreasonable. But the defendant did not prevail under the plain error reversal standard because the defendant had not shown a "strong possibility of receiving a significantly lower sentence," [significantly being the operative word here], if the d. ct. had understood the law. The 10th distinguished the error in this case from an obvious calculation error that would be more freely noticed.
U.S. v. Herrera, 2008 WL 4060168 (9/3/08) (unpub'd) - The defendant could not take advantage of the crack amendments because the defendant's offense level would still be so high, 46, after application of the lower base offense level, that his range would still be life. Thus the amendments did not have the effect of lowering the range, as required under 18 U.S.C. § 3582(c)(2). Unfortunately, the 10th goes on to reject the defendant's argument that Booker makes him eligible for a reduction by stating enigmatically, that, because the relevant guideline § 1B1.10(b) requires the leaving of all other non-amended guideline applications intact, "under § 3582, we may consider only whether Mr. Herrera is entitled to a two-level offense reduction and not whether any other reduction of his sentence is warranted under the Guidelines." The 10th then emphasizes that under § 3582 a defendant can only receive a reduction based on events that occurred after the original sentencing. Does all of this mean a defendant who does qualify for a reduction cannot receive a Booker variance below the amended range? That's hard to say.
U.S. v. Shaw, 2008 WL 3893824 (8/25/08) (unpub'd) - To keep in mind the next time you have Judge O'Brien on your panel in an appeal waiver case. In a concurring opinion to a denial of § 2255 relief because the defendant did not prove he asked his attorney to appeal, Judge O'Brien disagrees with 10th Circuit law that an attorney has an obligation to appeal when the client requests the attorney to do so, even if the client had waived appeal in a plea agreement. Judge O'Brien quotes a 7th Circuit opinion that says: "Far from having a ministerial duty to follow his client's (latest) wishes, a lawyer has a duty to the judiciary to avoid frivolous litigation---and an appeal in the face of a valid waiver is frivolous."
U.S. v. Chon, 2008 WL 4054403 (9/2/08) (unpub'd) - Yet again, another worrisome extension of the issue waiver principle. In this case, the government presented as a surprise rebuttal witness the neighbor of a juror who knew the witness "pretty good." The 10th held the problem with the circumstances was not the admission of the witness's testimony, as defense counsel had argued below and to the 10th, but the impartiality of the juror. The defendant waived, [not just forfeited], his right to raise the juror issue on appeal because trial counsel mentioned, while thinking out loud, that counsel regretted they did not have an alternate juror, but did not pursue juror disqualification. Counsel's off-hand remark indicated counsel was aware of the juror-disqualification issue and made a strategic decision to complete the trial with the juror in question on the jury. The 10th speculated that counsel must have made that strategic decision because the d. ct. had excluded certain evidence due to the government's lack of notice of expert testimony and if there was a mistrial declared, presumably that excluded evidence would come in at the retrial.
U.S. v. Bell (Jonathan), 2008 WL 3919373 (8/27/08) (unpub'd) - There was sufficient evidence of the defendant's participation in possessing meth and cocaine with the intent to distribute because the evidence indicated he did more than "tag along."
U.S. v. Widjaja, 2008 WL 3919374 (8/27/08) (unpub'd) - It was not excusable neglect for a pro se defendant to file his notice of appeal late due to his misreading of the court's website information regarding the due date.
Long v. Peterson, 2008 WL 4065546 (9/3/08) (unpub'd) - The petitioner could not overcome a statute of limitations problem by virtue of actual innocence because he admitted causing the victim's death and only sought a conviction for a lesser degree offense.
Ali v. Dinwiddie, 2008 WL 3973065 (8/27/08) (unpub'd) - The d. ct. abused its discretion when it denied the plaintiff an opportunity to amend his complaint in light of the defendants' response to his original § 1983 complaint.
Shupe v. Wyoming Dept. of Corrections, 2008 WL 3906757 (8/25/08) (unpub'd) - A prison has no constitutional obligation to provide materials to an inmate to pursue matters unrelated to convictions or confinement conditions, such as the parental termination proceedings in this case. The prison need only avoid obstructing the inmate's own efforts to access the courts.
U.S. v. Bell (Michael), 2008 WL 3906739 (8/26/08) (unpub'd) - The d. ct. did not have an affirmative duty to provide the defendant with hair clippers so that the defendant could cut his facial hair and show he did not have the scar or blemish on his face that the bank robber in the surveillance photo had.
Bad news: the good faith exception applies because there was a "minimal nexus" between the defendant's home and drug manufacturing.
Also, the warrant to search the defendant's computers was specific enough because it only allowed the search for drug-related information. It wasn't possible to specify a search methodology.
U.S. v. Valle-Martinez, 2008 WL 3906738 (8/26/08) (unpub'd) - The d. ct. plainly erred when it declared that it could not vary more than 50 % below the guideline range based solely on one factor. While reliance on one factor might be a symptom of an unreasonable sentence, it does not necessarily render a sentence unreasonable. But the defendant did not prevail under the plain error reversal standard because the defendant had not shown a "strong possibility of receiving a significantly lower sentence," [significantly being the operative word here], if the d. ct. had understood the law. The 10th distinguished the error in this case from an obvious calculation error that would be more freely noticed.
U.S. v. Herrera, 2008 WL 4060168 (9/3/08) (unpub'd) - The defendant could not take advantage of the crack amendments because the defendant's offense level would still be so high, 46, after application of the lower base offense level, that his range would still be life. Thus the amendments did not have the effect of lowering the range, as required under 18 U.S.C. § 3582(c)(2). Unfortunately, the 10th goes on to reject the defendant's argument that Booker makes him eligible for a reduction by stating enigmatically, that, because the relevant guideline § 1B1.10(b) requires the leaving of all other non-amended guideline applications intact, "under § 3582, we may consider only whether Mr. Herrera is entitled to a two-level offense reduction and not whether any other reduction of his sentence is warranted under the Guidelines." The 10th then emphasizes that under § 3582 a defendant can only receive a reduction based on events that occurred after the original sentencing. Does all of this mean a defendant who does qualify for a reduction cannot receive a Booker variance below the amended range? That's hard to say.
U.S. v. Shaw, 2008 WL 3893824 (8/25/08) (unpub'd) - To keep in mind the next time you have Judge O'Brien on your panel in an appeal waiver case. In a concurring opinion to a denial of § 2255 relief because the defendant did not prove he asked his attorney to appeal, Judge O'Brien disagrees with 10th Circuit law that an attorney has an obligation to appeal when the client requests the attorney to do so, even if the client had waived appeal in a plea agreement. Judge O'Brien quotes a 7th Circuit opinion that says: "Far from having a ministerial duty to follow his client's (latest) wishes, a lawyer has a duty to the judiciary to avoid frivolous litigation---and an appeal in the face of a valid waiver is frivolous."
U.S. v. Chon, 2008 WL 4054403 (9/2/08) (unpub'd) - Yet again, another worrisome extension of the issue waiver principle. In this case, the government presented as a surprise rebuttal witness the neighbor of a juror who knew the witness "pretty good." The 10th held the problem with the circumstances was not the admission of the witness's testimony, as defense counsel had argued below and to the 10th, but the impartiality of the juror. The defendant waived, [not just forfeited], his right to raise the juror issue on appeal because trial counsel mentioned, while thinking out loud, that counsel regretted they did not have an alternate juror, but did not pursue juror disqualification. Counsel's off-hand remark indicated counsel was aware of the juror-disqualification issue and made a strategic decision to complete the trial with the juror in question on the jury. The 10th speculated that counsel must have made that strategic decision because the d. ct. had excluded certain evidence due to the government's lack of notice of expert testimony and if there was a mistrial declared, presumably that excluded evidence would come in at the retrial.
U.S. v. Bell (Jonathan), 2008 WL 3919373 (8/27/08) (unpub'd) - There was sufficient evidence of the defendant's participation in possessing meth and cocaine with the intent to distribute because the evidence indicated he did more than "tag along."
U.S. v. Widjaja, 2008 WL 3919374 (8/27/08) (unpub'd) - It was not excusable neglect for a pro se defendant to file his notice of appeal late due to his misreading of the court's website information regarding the due date.
Long v. Peterson, 2008 WL 4065546 (9/3/08) (unpub'd) - The petitioner could not overcome a statute of limitations problem by virtue of actual innocence because he admitted causing the victim's death and only sought a conviction for a lesser degree offense.
Ali v. Dinwiddie, 2008 WL 3973065 (8/27/08) (unpub'd) - The d. ct. abused its discretion when it denied the plaintiff an opportunity to amend his complaint in light of the defendants' response to his original § 1983 complaint.
Shupe v. Wyoming Dept. of Corrections, 2008 WL 3906757 (8/25/08) (unpub'd) - A prison has no constitutional obligation to provide materials to an inmate to pursue matters unrelated to convictions or confinement conditions, such as the parental termination proceedings in this case. The prison need only avoid obstructing the inmate's own efforts to access the courts.
U.S. v. Bell (Michael), 2008 WL 3906739 (8/26/08) (unpub'd) - The d. ct. did not have an affirmative duty to provide the defendant with hair clippers so that the defendant could cut his facial hair and show he did not have the scar or blemish on his face that the bank robber in the surveillance photo had.
posted by Anonymous at 3:05 PM
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