10th Circuit decisions
U.S. v. Williams, 2008 WL 4636724 (10/21/08) (unpub'd) & U.S. v. Leroy, 2008 WL 4636725 (10/21/08) (unpub'd) - Two cases with identical language from two different panels with a total of six different judges calling into question the chances of applying Booker to § 3582(c)(2) cases. In both cases, the pro se defendants didn't qualify for a retroactive crack reduction because they were sentenced as career offenders. But in rejecting the defendants' reliance on Booker, the panels, after referring to § 1B1.10's requirement that all non-retroactive guideline calculations remain the same, state: "Thus, § 3582(c)(2) permits the court to consider only whether Mr. [Williams/Leroy] is entitled to a two-level offense reduction under Amendment 706 [the crack cocaine amendment], not to reevaluate his sentence under the Guidelines."
Garrison v. Ortiz, 2008 WL 4636723 (10/21/08) (unpub'd) - An example of where Crawford is not good for defendants. Crawford did not govern the admission of pre-death statements [it would be quite a scoop if they were post-death] by murder victim to work colleague that "a friend from California was coming to kill me." The statements were not "testimonial" because they were not made formally to prove past events potentially relevant to later criminal prosecution. The statements need not pass the pre-Crawford reliability test.
U.S. v. Robertson, 2008 WL 4648277 (10/22/08) (unpub'd) - Affirmance of admission under 404(b) of prior firearm and drug trafficking possession convictions without any discussion of the underlying facts of the convictions where the defendant asserted he was just at the wrong place at the wrong time [in a hotel room with drugs and guns] [placing his state of mind in issue]. In determining whether one conviction was too remote, the court subtracted the time the defendant spent incarcerated between the prior offense and the current offense. Six years was not too long ago, even though the 10th had said in U.S. v. Becker, 230 F.3d 1224, 1232 (10th Cir. 2000), that six years was too long a time span for a prior drug offense to be relevant.
On the good news side, the prosecutor's calling on the jury to help the government in the process of holding the defendants accountable, i.e., suggesting the jury had a civic duty to convict, was improper. But not harmful enough to satisfy the plain error reversal test.
Beckett-Crabtree v. Hair, 2008 WL 4672305 (10/23/08) (unpub'd) - The officer did not violate the constitution when he shot at several times and killed a man armed with a flashlight from as much as 21 feet away. The officer had had a knock-down, drag-out fight with the man who had reached for, but failed to get, the officer's gun and speculation that the officer might have overreacted is insufficient to establish excessive force in violation of the 4th Amendment.
Garrison v. Ortiz, 2008 WL 4636723 (10/21/08) (unpub'd) - An example of where Crawford is not good for defendants. Crawford did not govern the admission of pre-death statements [it would be quite a scoop if they were post-death] by murder victim to work colleague that "a friend from California was coming to kill me." The statements were not "testimonial" because they were not made formally to prove past events potentially relevant to later criminal prosecution. The statements need not pass the pre-Crawford reliability test.
U.S. v. Robertson, 2008 WL 4648277 (10/22/08) (unpub'd) - Affirmance of admission under 404(b) of prior firearm and drug trafficking possession convictions without any discussion of the underlying facts of the convictions where the defendant asserted he was just at the wrong place at the wrong time [in a hotel room with drugs and guns] [placing his state of mind in issue]. In determining whether one conviction was too remote, the court subtracted the time the defendant spent incarcerated between the prior offense and the current offense. Six years was not too long ago, even though the 10th had said in U.S. v. Becker, 230 F.3d 1224, 1232 (10th Cir. 2000), that six years was too long a time span for a prior drug offense to be relevant.
On the good news side, the prosecutor's calling on the jury to help the government in the process of holding the defendants accountable, i.e., suggesting the jury had a civic duty to convict, was improper. But not harmful enough to satisfy the plain error reversal test.
Beckett-Crabtree v. Hair, 2008 WL 4672305 (10/23/08) (unpub'd) - The officer did not violate the constitution when he shot at several times and killed a man armed with a flashlight from as much as 21 feet away. The officer had had a knock-down, drag-out fight with the man who had reached for, but failed to get, the officer's gun and speculation that the officer might have overreacted is insufficient to establish excessive force in violation of the 4th Amendment.
posted by Anonymous at 1:50 PM
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