Circuit Snippets

A district court can rely on particular attributes of the local community to justify a variance in the sentence, the 2d Circuit held. It affirmed a district court's decision to enhance a defendant convicted of illegally trafficking in firearms based on the need for greater deterrence in NYC. US v. Cavera, No. 05-4591-cr (2d Cir. 12/4/08), on rehearing 505 F.3d 216.

A public official can be convicted of "honest services" fraud under federal law even though the misconduct does not violate state law, the 9th Cir. held. This holding conflicts with the 5th Circuit's interpretation of 18 USC 1346, which had held that the public official had violated a duty created by state law. US v. Weyhrauch, No. 07-30339 (9th Cir. 11/26/08)

Persons who claim to be victims of a crime under the Crime Victims' Rights Act cannot appeal an alleged denial of their rights except through a petition for mandamus, the Tenth Cir. held. US v. Hunter, No. 08-4010 (12/2/08)

A district judge erred when he concluded he was not a "judicial officer" within the meaning of 18 USC 3145(c) and he therefore could not consider a drug offender's request for release pending sentencing based on exceptional reasons, the 4th Cir. held. US v. Goforth, No. 08-4291 (4th Cir. 11/21/08)

Federal agents should have gotten a search warrant before they entered an area under tarps that the defendant had suspended over his vehicle and campsite, the Cal. Court of Appeal held. People v. Hughston, No. A118939 (Cal. Ct. App. 11/26/08)

The Fifth Circuit discussed the proper method to calculate loss in a loan fraud case, and basically determined the loss is determined case-by-case. Sometimes the value of collateral is deducted, sometimes not. In this case, each loan needed to be examined to determine actual loss. US v. Goss, No. 07-60699 (5th Cir. 11/21/08)

The sentence enhancement under USSG 3A1.4 for offenders who commit felonies intended to promote terrorism is applicable even if the conduct does not transcend national boundaries. US v. Salim, No. 04-2543-cr (2d Cir. 12/2/08)

A district court could grant a variance to bring a defendant's sentence in line with that of a co-defendant who was equally culpable but struck a deal with the prosecution, the 6th cir. held. US v. Presley, No. 07-1147 (6th Cir. 11/24/08)

District Court Can Consider Prior Guideline Reductions at 3582(c)(2) Resentencing

United States v. D.C., ___ F.3d ___, 2008 WL 5340429 (10th Cir. 2008)

Great argument in retroactive crack reduction case where Defendant had previously received 5K1.1 and Sec. 3553(e) reductions, rejected by the COA. Defendant claimed that the district court, in the reduction re-sentencing, erroneously took the extent of those cooperation reductions into account when denying the retroactive crack reduction. Court holds that district courts may indeed factor in prior guideline applications into the decision on whether to grant the retroactive reduction in spite of guideline language that in considering the reduction, “all other guideline applications decisions [must remain] unaffected.” It is discretionary whether to reduce a sentence under the crack amendment, and a court appropriately considers the overall length of a sentence in making that decision. Sec. 3582(c) modifications are narrow in scope.

Stop Based on "Tandem Driving" OK'd

United States v. Rodriguez-Rodriguez, ___ F.3d ___, 2008 WL 5340311 (10th Cir. 2008)


Sufficient evidence of tandem driving to give probable cause to stop and detain tandem driver. By two car lengths, Defendant was preceding the truck where drugs were discovered; both driving along a lightly traveled New Mexico road at 4:30 in the morning; both had California plates; and, both were traveling 5 mph below the limit. The truck behind rode low. The cop followed, and at one point Defendant pulled into another lane to take a look at the cop’s vehicle. Because the load truck lacked a light over the license plate in violation of New Mexico law, the cop stopped it. Defendant sped up and away. Cop radioed for someone to stop Defendant’s vehicle. Cop smelled and saw pot in load vehicle, and radioed this information too. An intermediary cop radioed this to cop who stopped Defendant, got Defendant’s permission to search his vehicle, and found evidence linking it to the load vehicle. Defendant later admitted transporting pot with the load truck. The relaying of info thorough 2 cops was OK. The key fact in finding tandem driving was how close the two vehicles were traveling. The COA compared this case with Zamudio-Carillo and Valenzuela.

Restitution Can Include Lost Work Hours

United States v. Wilfong, ___ F.3d ___, 2008 WL 5340423 (10th Cir. 2008)
Restitution for phoning in bomb threat to an Air Force base can include compensation for lost employee work hours due to the evacuation. Defendant owes half a million in restitution.

Real Estate Fraud Conviction, Sentence Confirmed

United States v. Baum, ___ F.3d ___, 2008 WL 5274316 (10th Cir. 2008)

Defendant, a real estate agent, was found guilty of wire fraud and money laundering for his scheme: he was an agent for buyers who did not qualify for home loans because of poor credit; Defendant lent money to buyers for down payment; home prices were inflated on the contract; buyers agreed to pay an additional amount for remodels per a contract addendum (not disclosed to mortgage lender) that were never meant to happen and that money went into a fund to pay back Defendant, plus. The mortgage lender never knew the truth.

Sufficiency of evidence: phony sales prices, undisclosed addenda, false appraisals, false info regarding borrowers supported fraud verdicts; the unperformed remodeling work was not a matter of breach of contract. (The Court criticizes the brevity of the statement of facts in Defendant’s brief–5 pages–and hints that the COA might not even have reached the merits given how poorly D developed the facts).

Sentencing: “intended loss” under the guidelines does not include an element of purpose or desire–if so, perhaps Defendant did not intend that anyone lose anything, and intended his scheme to work. Although knowledge of probable consequences might not be enough to establish intended loss, that is left for another day–Defendant did not raise the issue below, and any error does not rise to the level of plain error.

Be Sure to Argue Sentencing Issues in a Sentencing Memo; Unargued Claims are Forfeited

United States v. Zubia-Torres, ___ F.3d ___, 2008 WL 5274166 (10th Cir. 2008)

1. Defendant’s failure to challenge his prior conviction under Nevada law as not categorically a drug trafficking felony was a forfeiture, not a waiver of the argument. The COA tries to give better direction regarding the difference, and says because Defendant never made the argument he could not have “affirmatively abandoned” it–waiver is abandonment.

2. Defendant’s vague statement during allocution did not preserve the issue for de novo review, and the COA hints that only under unusual circumstances will allocution by a defendant preserve a sentencing issue–Rule 32 objections is the route.

3. The COA agrees that the Nevada law is broad and is not categorically a drug trafficking crime. However, by not raising the issue, D never gave the government or probation the opportunity to gather documents to demonstrate under a modified categorical approach whether it was a qualifying offense. The COA also faults the D on appeal: “Even on appeal, the defendant offers no evidence that his conviction was for mere possession rather than sale.” (The COA does not suggest how this might be done). All these burdens are laid at Defendant’s feet under the plain error standard: the Defendant must show that his substantial rights were affected, and cannot do so without showing a negative–that the government could not show (per Shepard) that the offense was a qualifying offense. Practice tip: prior convictions under a broad statute must be challenged as non-qualifying in the district court–the COA has made it a virtual impossibility to rescue the issue under a plain error standard.

District Court Should State Reasons for Mid-Range Sentence on Resentencing

US v. Nelson, No. 08-6076, 12/18/08 - Crack reduction case in which defendant was originally sentence at the bottom of the guideline range, but was resentenced in the middle of the amended guideline range, remanded for district court to state on the record its reasons for not imposing new bottom end sentence.

Illegal Alien's Drug, Gun Convictions Upheld

US v. Bustos, no. 07-5157, 12/18/08 - Convictions for possessing with intent to distribute meth, possession of guns and ammo in furtherance of the drug offense, and possession of guns and ammo by illegal alien, all arising from a traffic stop, affirmed. In first trial, defendant was convicted of the last charge but jury hung on first two. No such luck the second time around.

Held - no plain error in verdict forms used in both trials that arguably could be read as requiring a not guilty verdict only if the jury unanimously found defendant not guilty beyond a reasonable doubt, in light of the instructions as a whole on burden of proof and the strong evidence of guilt presented at both trials, meaning that outcome would not have been different with better verdict forms, meaning that defendant could not demonstrate prejudice.

Also, as to the gun and ammo possessed during drug crime charge, no abuse of discretion in including in elements instruction the status of the possession (whether defendant, as an illegal alien, could lawfully possess guns and ammo), since knowing you can’t lawfully possess these items and could get in big trouble for doing so makes it more likely that you took such a chance in order to further your drug dealing (got that?), and court also instructed jury not to consider defendant’s illegal status except as it might relate to the drug charge.

TX Unauthorized Use of Motor Vehicle Conviction Not an Agg Felony

US v. Perez-Gutierrez, No. 07-2129, 12/18/08 - 8 USC 1326 case in which parties did not dispute below that defendant’s Texas conviction for unauthorized use of a vehicle was an aggravated felony that justified an eight level increase. Defendant had pled, and his agreement contained an appeal waiver. On appeal, the government confessed error and chose not to seek enforcement of the waiver. The 10th agreed that error had occurred and that defendant’s offense level should have been increased by four, not eight, levels. (New, appointed counsel on appeal had filed an Anders brief because a 5th Circuit case had held that the offense was an aggravated felony. Yet the 10th had subsequently taken the opposite position and explicitly rejected the 5th’s position, making the appeal more than a little non-frivolous. Oops!).

Stop of Suspected Parole Violator OK, Led to Discovery of Gun

US v. James, No. 07-3296, 12/17/08 - Denial of motion to suppress and ACCA sentence affirmed. Cops had reasonable suspicion that vehicle defendant was driving was used and possibly being driven by parole violator who was a suspect in case in which hot checks had been written to a nursery to pay for shrubbery, so pulling it over was lawful, as was discovery of gun in plain view between driver’s seat and center console. Then, information from defendant led to discovery of guns and ammo in apartment he shared with the suspect in shrubbery caper case during a protective sweep, which was also based on reasonable suspicion. As for the sentence, defendant’s three burglary convictions were of separate structures and therefore arose from “separate criminal transactions,” triggering the 15 year minimum mandatory sentence, which was not grossly disproportional and therefore not violative of Eighth Amendment.

ATM Thief's Sentence Affirmed

US v. Hahn, No. 2008 WL 5247929, 12/18/08 -Sentence for ATM technician who pled to stealing from “straps” of cash meant for the ATMs affirmed. There was no clear error in loss calculation or restitution order, ordering sentence to run consecutively to state court sentence for lewd and indecent proposal to children was not an abuse of discretion, nor was imposing sex offender conditions as part of supervised release convictions because the conduct underlying the sex offender convictions occurred after defendant was fired for stealing the cash and is part of his history and characteristics.

Capital Habeas Petitioner's Claims of Improper Victim Impact Evidence, IAC Rejected

Young v. Sirmons, ___ F.3d ___, 2008 WL 5220520 (10th Cir. 2008)
Death penalty affirmance out of Oklahoma. Plaintiff challenged (1) admission of victim impact evidence: the COA held that the Oklahoma Court of Criminal Appeal’s determination that this evidence was not unduly prejudicial (including testimony that the victims’ aunt died of a heart attack after learning of the murders) was not contrary to nor an unreasonable application of Sup. Ct. precedent in Payne; and (2) counsel’s effectiveness during the penalty phase.

The COA agrees with the federal district court that while counsel was incompetent in failing to investigate and present mitigating family and friends evidence and expert psychological evidence at the punishment phase, there was no prejudice. First, the COA was not willing to say that Plaintiff could not establish prejudice because he did not want counsel to introduce mitigating evidence through family and friends, as in Schriro. Here, the COA could not say what Plaintiff’s position in that respect would have been if counsel had properly investigated and introduced mitigating expert psychological evidence. Second, however, there was not such malfeasance on the part of counsel as to support a presumption of prejudice. Third, after recounting significant and compelling mitigating evidence (submitted by affidavit to the habeas court) that was never introduced at trial, the COA finds no prejudice because in balancing that against the guilt phase evidence that supported the aggravators and the state’s submission of what additional rebuttal aggravation evidence it would have presented, P failed to show that a reasonable sentencer would have found that the balance would not have warranted death.

Judge Henry dissents, and would remand for evidentiary hearing on the prejudice prong of Plaintiff’s IAC claim. Plaintiff’s mitigating evidence and the state’s rebuttal were never presented, outside of affidavits and summaries respectively, to either state or federal courts. Judge Henry does not consider the existing factual record to include the state’s rebuttal summaries. Thus an evidentiary hearing is required to establish whether counsel’s failure to present mitigating evidence would have been overcome by the state’s rebuttal, therefore resulting in Plaintiff’s failing to establish prejudice.

Conviction, Sentence for Making False Threat Affirmed

United States v. Parker, ___ F.3d ___, 2008 WL 5220512 (10th Cir. 2008)
Defendant convicted after a jury trial of two counts of making or conveying false claims regarding a threat to blow up a building. (1) No plain error in admission of voice identification testimony by cop who listened to 911 tapes and who had interviewed Defendant, that Defendant had made the 911 threatening calls. A lay witness need only be minimally familiar with a Defendant’s voice before offering an opinion.

2) Evidence sufficient: cell phone from which calls were made was in Defendant’s apartment, and he was admittedly alone in the apartment in the brief time period between when the last 911 calls were made and when police arrived; not only cop but 2 close friends identified the voice on the 911 tapes as Defendant’s.

(3) Sentence was procedurally reasonable. The USSG Sec. 2A6.1(b)(2) enhancement for “more than 2 threats” refers to more than 2 communications of threats, not more than 2 targets, and the jury found D responsible for making 3 threatening calls to 911. Counts were not required to be grouped under 3D1.2 because there were multiple victims: multiple schools and city hall.

Failure to Stop Is An ACCA Predicate Offense

US v West, 2008 WL 5158599 (Dec. 10, 2008) (published): The Court holds that defendant's prior Utah conviction for failing to stop a vehicle at a police-officer's command is a predicate offense for sentencing pursuant to the Armed Career Criminal Act. Applying Begay v. US, 128 S.Ct. 1581 (2008), but relying on many of the escape cases and the usual "powder-keg" rationale, the Court concluded that failure to stop categorically presents a serious potential risk of physical injury to another for purposes of ACCA. The Court declined to find that the offense was not sufficiently similar to the other listed crimes and refused to limit the residual clause to property type crimes. Instead, it held the failure-to-stop offense was "sufficiently similar to the offenses enumerated in § 924(e)(2)(B)(ii)" because "it “typically involves purposeful, violent, and aggressive conduct.” It listed several reasons to interpret Begay more broadly, including 1) the relevant language talks about "purposeful, violent, and aggressive" conduct; 2) the enumerated crimes are not exclusively property; 3) the focus of ACCA is on gun violence; 4) the Supreme Court did not simply hold that DUI was not an ACCA predicate because it was not a property crime, but went on to focus on the manner in which the prior crime was committed; and 5) all the other courts are interpreting Begay this way. Failure to stop under the relevant statute qualified as purposeful, violent and aggressive conduct because it required the defendant to have operated a vehicle in willful or wanton disregard of the officer's signal to stop so as to interfere with or endanger the operation of any vehicle or person.

Defendant also contested the determination that his prior conviction for criminal enterprise was not a serious drug offense, but unfortunately he waived that appellate argument when defense counsel stated at the hearing to withdraw defendant's guilty plea that the criminal enterprise and a prior burglary conviction qualified as predicate ACCA offenses. However, Defendant won on some of the other enhancements because he had disputed them at the sentencing and the district court did not resolve the disputed factual issues. But the government gets another chance.

Brady Contentions in Entrapment Case Rejected

US v. Ford, 2008 WL 5173125 (10th Cir. Dec. 11, 2008) (published): Defendant was convicted of illegally selling or possessing a machine gun. At trial, his primary defense was entrapment. The defendant, a firefighter with no criminal history, contended that he sold the firearms to the informant after beiing pressured by the CI. He was acquitted of two counts and convicted of only the third. After trial, he filed a motion to set aside the conviction, alleging that the government had failed to disclose e-mails sent between him and the informant and thereby violated Brady. The district court agreed that three undisclosed e-mails existed and they were favorable, but denied the motion on the grounds that, in light of all the evidence, the e-mails were not sufficiently material to cast doubt on the guilty verdict. Judges Tymkovich and Parker agreed, upholding the district court's decision. Judge Gorsuch, however, dissented, arguing that the other two judges failed to consider the significant evidence in the record that supported the defendant's defense. He would therefore conclude that the e-mail was material and Mr. Ford should receive a new trial.

SORNA Challenges Rejected

US v. Lawrance, -- F.3d --, 2008 WL 5123846 (10th Cir. 12/8/08) - no dice on SORNA challenges. The 10th reaffirms prior holdings that prosecution under SORNA does not violate the Ex Post Facto Clause because it is civil in intent and nonpunitive in purpose. The Attorney General's Interim Rule deals only with initial registration and does not apply to Mr. Lawrance, who traveled in interstate commerce after July 2006 and failed to update his prior registration as SORNA required. SORNA does not violate the Commerce Clause because it regulates interstate activity -- the evasion of registration requirements by sex offenders who cross state lines. And there was adequate notice of SORNA's registration requirements to satisfy due process.

Tenth Creates Circuit Split with Ninth over Applicability of Booker at 3582(c)(2) Resentencings

U.S. v. Rhodes, 2008 WL 5102247 (12/5/08) (Published) - The 10th holds Booker does not apply to § 3582(c)(2) proceedings. As a result, the guidelines in § 3582(c)(2) proceedings are mandatory and a defendant seeking a lower sentence by virtue of a retroactive guideline amendment may not receive a sentence below the amended guideline range unless the defendant had received a below-guideline-range sentence at the original sentencing.

The court reasons Booker did not refer to § 3582(c)(2), but § 3553(b). But how § 3582(c)(2) becomes mandatory without § 3553(b) is unclear. § 3582(c)(2) proceedings are not full resentencings, the 10th also notes. The 6th Amendment concerns in Booker don't matter because a sentence can only be reduced in a § 3582(c)(2) proceeding. [But the prior sentence may have been imposed in violation of the 6th Amendment since the first sentencing was in 1999].

The 10th disagrees with the opposite holding of the 9th Circuit in Hicks. The latest version of § 1B1.10 prohibits a sentence below the amended guideline range. End of story. The 10th noted the district court was wrong to think it couldn't consider post-sentencing events. § 1B1.10 authorizes such consideration. But here that didn't matter since the sentence imposed was as low as possible under the amended crack cocaine guidelines.