Petitioner, Convicted as a Juvenile in 1981, Still Fighting for Parole

Alexander v. U.S. Parole Commission, --- F.3d ----, 2008 WL 224053 (10th Cir. Jan. 29, 2008).

This may be a one of a kind case, under the old Youth Corrections Act, repealed in 1984, under which the petitioner was sentenced in 1981, as a 16-year-old convicted of 4 counts of first degree murder. The Act provided for rehabilitative and training programs for youthful offenders, to help them reintegrate into society.

Petitioner completed all the programs required of him, and by the late 1980's, was doing so successfully. In 1992, the Warden recommended that he be paroled, but the Parole Commission declined, due to his adjustment problems prior to 1987, the heinous nature of the crime, and his lack of remorse. After interim reconsideration hearings in 1995, 1996, and 1997, the Commission continued denying parole. In 1998, Petitioner filed his third habeas petition challenging the denial of parole, which the district court denied. At a new hearing in 2001, Petitioner fully accepted responsibility for the crime. The Commission again denied parole, continuing the case for another 15 years. On appeal, the National Appeals Board remanded for a new hearing and requested a current psychological evaluation to assess the impact of psychological counseling and therapy on Mr. Alexander's rehabilitation. The psychologist found that Mr. Alexander was not mentally ill and did not experience emotional distress. The Commission again denied parole, concerned that Mr. Alexander's remorse was not sincere.

In the current habeas, the district court found that the Commission had acted arbitrarily and capriciously, and ordered the Commission to develop a pre-release program for Petitioner. The Commission appealed. This was a final order for the Tenth to review, since setting a presumptive release date is a necessary corollary for a release plan.

First, the 10th agreed that the Commission was required to consider conditional release in its evaluation of Petitioner’s risk to the public. Under the statute, the Commission has a great deal of power to control Petitioner’s conditions for 5 years after release, before granting unconditional release, and even then, can deny unconditional release if there is a likelihood of further crimes being committed.

Although the district court was correct in requiring the Commission to consider release conditions, the Commission is entitled to consider that newly calculated factor in conjunction with the seriousness of the offense, and Petitioner's demonstrated rehabilitation. The district court erred, therefore, in requiring the Commission to set a release date before it evaluates conditional release.

The irony of the case is that, now, what seems to be holding back Petitioner's release is the concern that he be able to adjust which, the longer he stays in, becomes a self-fulfilling prophecy.

Concept of "Waiver" Popular These Days

U.S. v. Taylor, --- F.3d ----, 2008 WL 224055 (10th Cir. Jan. 29, 2008).

This case is a little more complex than it appears on the surface–it is a standard of review decision. It seems to signal that the concept of “waiver” is in high ascendancy.

The Defendant objected to the prosecutor’s improper remarks in opening statement, to “end the cycle of violence” on the rez by convicting Defendant of the battery with which he was charged. The judge sua sponte gave a “curative instruction” to the effect that what was said in opening was not evidence. The Defendant made no other objections, motions, or requests regarding the prosecutor’s remark. It was his only issue on appeal.

Gorsuch, writing for the panel (Briscoe writes a concurrence in the result) views this simply as an issue of waiver due to D’s failure to move for a mistrial or otherwise bring to the trial court’s attention his dissatisfaction with the instruction. He reviews the claimed error under the plain error standard and finds none (the remark did not get repeated again in trial). Much of Gorsuch’s opinion is a response to Briscoe.

Briscoe adopts the issue as framed by the defendant, and accuses Gorsuch of allowing the government to re-frame it. Defendant’s issue was whether the misconduct was improper and so prejudicial as to require reversal; the government framed it as the Defendant contending that the curative instruction was insufficient. Running with how the Defendant framed it (Defendant also argued that the remark was not "evidence" but rather served to confuse the jury that its role was to correct broad social problems), the standard of review should be de novo because the claim was preserved by the proper objection. Briscoe would find even under de novo that there was no prejudice to the Defendant.

A few anomalies in the area, acknowledged by both judges, are that a failure to grant a mistrial is reviewed under the more lenient abuse of discretion standard, whereas the overruling of an objection is reviewed under the more rigorous de novo standard. So what does a defense attorney do? Object to the misconduct but do not move for a mistrial, perhaps risking the plain error review of Gorsuch, or move for a mistrial and get the less than de novo review of abuse of discretion? (Actually, Gorsuch seems to imply that in a situation where there is an objection that is overruled, unlike in this case where the court’s instruction implicitly was a sustaining of the objection, a motion for mistrial would be fruitless and would not be required). Since Taylor is now the law, object and if no instruction is given and the court overrules your objection, do not ask for a mistrial and you should get a de novo review. If the court sustains your objection, then you need to take it a step further and get an instruction or ask for a mistrial and at least you get a review better than plain error.

Tenth Circuit Decisions

Jenkins v. Currier, 2008 WL 186866 (1/23/08) (Published) - State officers did not violate the plaintiff's Fourth Amendment or due process rights when they arrested the plaintiff and took him to the penitentiary without a warrant or a hearing. The plaintiff had been mistakenly released after serving time in federal custody, instead of being transferred to state custody to finish serving a state sentence. The plaintiff's situation was like that of an escaped prisoner, even though he did nothing wrong.

Clark v. Edmunds, 2008 WL 185615 (1/23/08) (Published) - An officer did not violate the plaintiff's substantive due process rights when he knocked over the plaintiff, while taking the plaintiff's arrested daughter to a police vehicle. This split-second decision to clear the officer's path did not shock the conscience, whether or not the plaintiff intended to interfere with her daughter's seizure.

U.S. v. Doe, 2008 WL 116291 (1/11/08) (Unpublished) - The 10th affirms an upward departure, [not variance], from 108 months to 188 months due to criminal history under-representation, where the defendant accumulated 30 criminal history points. After being ordered by the 10th in a prior appeal to consider the defendant's cooperation, the district court remained unimpressed with that cooperation, since the defendant knew a lot because he was completely ensconced in a criminal lifestyle.

U.S. v. Akers, 2008 WL 152604 (1/16/08) (Unpublished) - The 10th affirms another upward departure, [not variance], this time from 175 months to 327 months, due to the defendant's repeated fraudulent activity, even while he was in custody after the indictment was filed in the instant case. Interestingly, the 10th asserts its review of the departure is more deferential under Booker, Rita and Gall, than under pre-Booker law, even though it was reviewing a departure, not a variance.

U.S. v. Hahn, 2008 WL 142784 (1/15/08) (Unpublished) - The 10th reaffirms the notion that the fact that a sentence must be [as opposed to may be] imposed consecutively is a collateral matter that no one, neither counsel nor the court, has to inform the defendant about before the defendant pleads guilty.

U.S. v. Lyman, 2008 WL 149993 (1/16/08) (Unpublished) - An appellate waiver with an exception for appealing "illegal" sentences does not allow for the appeal of the misapplication of the guidelines. A sentence is "illegal" when, for example, it is beyond the statutory maximum. It is not "illegal" due to mere ordinary legal errors. Gall does not change that proposition.

U.S. v. Prieto-Chavez, 2008 WL 193234 (1/23/08) (Unpublished) - The 10th expresses reluctance to apply plain error, rather than harmless error, review, to the district court's mistaken application of the presumption of reasonableness to the guidelines. The 10th notes the sentencing occurred before the 10th's decision in U.S. v. Begay, 470 F.3d 964, 977 (10th Cir. 2006), that it was wrong to refuse to impose a sentence outside the guideline range unless the range was unreasonable. So, the defendant might have had an excuse not to object to the judge's application of the presumption. Nevertheless, the government proved the presumption error was harmless because Judge Johnson had indicated the low-end sentence satisfied the § 3553(a) factors.

Cabrera v. Zavaras, 2008 WL 152592 (1/16/08) (Unpublished) - The good news: a prisoner is "in custody" for habeas purposes when a detainer is filed against him while he's detained in another jurisdiction's custody. The bad news: because the prisoner was "in custody" when the detainer was filed, the AEDPA statute of limitations began to run at that time and the prisoner's habeas petition is now time-barred.

Convictions for Illegal Alien in Possession of Firearms, Drug Charges Affirmed

US v. Baltazar Mendez, Docket No. 06-3282 (10th Cir. 1/24/08)(published):

The Tenth Circuit affirms the defendant's various convictions for unlawful firearms possession and maintaining a drug house. Officers in Wichita, KS, executed a search warrant on the defendant's residence (the warrant was obtained based on an investigation into a home invasion and kidnapping). The officers found numerous weapons, drugs, and items associated with selling drugs. Much of this stuff was in a particular bedroom, including a shotgun, meth, a handgun, and a notebook with the name "MENDEZ" on the inside cover and including notations that looked like records of drug sales. Defendant's fingerprint was on the notebook. A second shotgun and drugs were found elsewhere in the house, and Mr. Mendez's license and bills with his name on them were in the living room. Mr. Mendez waived his Miranda rights and told officers that he lived in the house, had access to all parts of the house, and had two roommates. He admitted owning the handgun and the scales, and to buying and using meth and cocaine. He said he knew about the shotguns but they weren't his. He provided a false social security number and admitted he was born in Mexico.

The court rejected Mr. Mendez's argument that there was insufficient evidence to support his convictions for being an alien unlawfully in the United States in possession of the shotguns. Defendant argued that there was insufficient evidence to prove a nexus between him and the shotguns because there were multiple tenants in the house. As to the shotgun found in the bedroom, the court found sufficient nexus because it was with the ledger that was labeled "MENDEZ", he admitted knowing about it, and he was the primary tenant. The second shotgun, although in another bedroom, was in the open and accessible to anyone in the house. Thus, the COA concluded that a reasonable jury could find that Mendez had constructive possession of both shotguns. There was also sufficient evidence that Mr. Mendez was an alien where he admitted being born in Mexico, he had a false social security number, and the government introduced evidence that it lacked evidence of any valid authorization for Mr. Mendez to be in the US.

The COA rejected Mr. Mendez's arguments that evidence from the Immigration and Customs Enforcement database, the drug ledger, and statements of a confidential informant were inadmissible hearsay and admitted in violation of his Confrontation Clause rights. The evidence of the ICE database was not hearsay because an agent testified in court regarding the database and his search of it, using both Mendez's name and the social security number he provided. The information in the database was not excluded by the hearsay rule because it was a public record under FRE 803(8)(A)-(B). FRE 803(10) further provides that the absence of a public record is not excluded by the rule against hearsay. The COA further concluded that the ICE database is not testimonial because Crawford suggests that public records "fall outside the testimonial ambit of the Confrontation Clause."

The drug ledger was properly admitted because it was introduced as a "tool of the trade" (drug-selling) and not for the purpose of showing that the persons in the ledger owed those amounts of money. It was not testimonial because it was not kept for the primary purpose of aiding police in a criminal prosecution, even though it may have been later used for that purpose.

The COA rejected the argument about the alleged statements by a CI on the basis that, on cross examination, an officer testified that a search warrant was issued; he did not testify about statements made by a CI.

Mr. Mendez's Brady violation argument was also rejected. He complained that certain field notes taken by officers were not disclosed in pretrial discovery. Defense counsel learned of the notes during trial and was able to review them and use them on cross-examination. On appeal, Mendez did not identify any exculpatory or material evidence in the notes, and -- although belated -- the notes were disclosed and used, so reversal was not warranted.

Magistrate's Entry of Judgment Conclusive for Determining Appellate Jurisdiction

US v. Pethick, No. 06-1525, 2008 WL 152583 (10th Cir. January 17, 2008) (published):
The Tenth Circuit considers whether it has jurisdiction over an appeal from a conviction for misdemeanor DUI that occurred on a military reservation in Colorado. In this case, a magistrate judge handled initial proceedings. A district judge then issued several pretrial rulings, presided over the jury trial, and denied the defendant's motion for a new trial. The district judge then became ill and unable to continue, and the defendant consented to have the judgment and sentence entered by the magistrate judge. On appeal, the defendant challenged rulings of the district court. The Tenth Circuit rejected the defendant's argument that, because he was appealing district court rulings, the COA had jurisdiction under 28 USC 1291. Rather, the Tenth Circuit relied on 18 USC 3402 and Fed.R.Crim.P. 58(g)(2), which gives jurisdiction over appeals from judgments entered by a magistrate judge in a criminal case to the district court. The COA strictly construed the statute and declined to divide the judgment into "presentencing" and "final" judgments. Accordingly, it determined it lacked jurisdiction and the appeal had to be dismissed without prejudice. However, the defendant's notice of appeal was effective to vest jurisdiction in the district court, although docketed in the COA.

Jurisdictional Challenge to Original Indictment Mooted by Agreed-Upon Plea to New Indictment

US v. Gachot, No. 07-6061, 1/10/08 (published): Defendant, a Native American, was involved in running a cockfighting venture. He was originally indicted on two Oklahoma state felonies and one federal crime (sponsoring or exhibiting an animal in an animal fighting venture if any animal had been transported in interstate commerce). He moved to dismiss the state felonies for lack of jurisdiction, which was based on the Assimilative Crimes Act and Indian Country Crimes Act, arguing that the “Indian against Indian exception,” contained in 18 USC § 1152 applied. The district court denied the motion. A few days later, the defendant entered into an agreement by which he pled guilty to a different federal felony, operating an illegal gambling business in violation of 18 USC § 1955, and the government dismissed the original indictment. On appeal, the defendant renewed his jurisdictional challenge to the original indictment.
Held: 1) The issue was moot because that indictment had been dismissed; and 2) the district court had jurisdiction over the § 1955 charge, since it is a nationally applicable federal criminal statute predicated on the Commerce Clause, and contains no exceptions related to crimes committed in Indian Country. The Tenth went out of its way to express no opinion as to whether a conditional plea could have preserved the original jurisdictional challenge.

Conviction for PWID Marijuana Upheld

US v. Montgomery, No. 07-3069, 1/10/08 (unpublished): Cop observed defendant buy a bunch of stuff at a hydroponics store. Criminal history check turned up two pot-related convictions. Check of utility records revealed that defendant’s residence used a lot more electricity than comparable residences in the neighborhood. Cop observed two dryer vents and a temperature-regulated attic fan at the house, and dug pot stems and clippings out of the trash. He got a search warrant and found a large pot growing operation in the house and 101 plants. Defendant was indicted on one count of possession with intent to distribute 100 or more plants and was convicted at trial.
Held: 1) Probable cause supported the issuance of the warrant, and even if it didn’t, Leon good-faith exception applied; 2) defendant waived any error in court’s failure to give a special verdict form allowing the jury to find that he possessed with intent to distribute a small amount of marijuana for no remuneration, since his counsel was well aware of the issue and specifically agreed not to include this (the issue apparently was based on fact that defendant’s landlord testified that he and others smoked pot with the defendant at the house); and 3) in light of overwhelming evidence of defendant’s guilt, there was no plain error in supposedly prejudicial comments made by prosecutor during witness examination and closing argument that denigrated defense counsel, to which no objection had been made. The Tenth did not recite the contents of the prosecutor’s statements.

"171 Easy Mitigating Factors" Now Available

I don't normally include plugs for products, but this one is unique. For many years, Michael Levine has been compiling arguments to be used in getting lesser sentences in federal court. It began with "88 Easy Departures," the latest version is descriptively entitled "171 Easy Mitigating Factors” (formerly “88 Easy Departures”). It often includes cases not easily found by any other method, and covers both common and uncommon bases for mitigation, whether as departures or variances. A short sampling of the listed topics include: Rendering aid to victim; too long a sentence promotes recidivism; restitution requiring repayment for life is like life; Defendant atones by going on television to admit guilt and deter others; and dual prosecution by state and federal governments.

It has been called, "The indispensable guide to effective representation at sentencing--an essential tool for federal (and state) defense lawyers"
---Alan Ellis, Past President NACDL and sentencing expert.

It has been noted that "It may be per se ineffective assistance for defense counsel to fail to read 171 Easy Mitigating Factors when preparing for sentencing."
-- Professor Douglas A. Berman
Sentencing Law and Policy blog.

The current edition is dated January 1, 2008, and is about 125 pages. It costs $125 for a single copy of the latest edition sent by e-mail. Mr. Levine charges $400 for an annual subscription (6-12 issues depending on the law). He asks interested persons to contact him directly at the below address and to include an e-mail address so that he can send the document as an attachment. For a bound, hard copy, the cost is $175 (which includes postage). He asks that requesters include the name, address and identification number (if applicable) of the person to whom he should send the document.

If interested, send a check or money order to:

Michael R. Levine
400 S.W. Sixth Avenue, Suite 600
Portland, Oregon 97204

BOP Has Authority to Set Payment Schedules

Davis v. Wiley, 2008 WL 41067 (1/2/08)(unpub'd) - The BOP does not violate due process by setting an individualized payment schedule for the prisoner to pay restitution, according to its regulations, even though the district court does not do so, or apparently even if the court sets up a different schedule. Setting up such a schedule serves a valid penological objective and is authorized. BOP's threat to alter the prisoner's place of confinement, if he does not go along with the payment schedule, does not infringe a liberty interest.

IAC Claim Must Be Pursued in 2255 Motion

U.S. v. Smith, 07-1044 (1/4/08)(unpub'd) - The 10th refuses to remand to consider an ineffective assistance of counsel claim regarding an untimely motion for new trial. The 10th says the defendant must pursue a § 2255 motion.

State Conviction Based on Contemporaneous Conduct Could Be Counted in Criminal History

U.S. v. Griffin, 07-6110 (1/4/08)(unpub'd) - It was okay to count in the defendant's criminal history score the defendant's state conviction for possession of the cocaine that was found at the same time and in the same place as the counterfeiting evidence that formed the basis of his federal counterfeiting conviction. Temporal separation is not required for one offense to be "conduct not part of the instant offense," so as to allow it to be counted for criminal history purposes.

Arrest that was Unauthorized Under State Law Was Nonetheless Constitutional

Brown v. Fisher, 06-3207 (previously reported at 2007 WL 3011051) (1/2/08)(unpub'd) - The 10th denies rehearing, but amends the decision. Initially, the 10th held that the plaintiff's arrest was okay because there was probable cause and the arrest was authorized under Kansas law. Upon rehearing, the 10th acknowledges the arrest was not authorized by state law. Nevertheless, the arrest for driving without an operative passenger-side headlight, was constitutional because the officer had probable cause. In his concurrence, Judge Henry suggests the arrest violated the Fourth Amendment because state law did not authorize it, but, since the law was unclear, the officer was entitled to qualified immunity.

Excessive Force Claim Denied

Estate of Larsen v. Murr, 2008 WL 40020 (1/2/08)(Published) - An officer did not use excessive force when he shot dead a man, who had previously threatened violence against himself and others, and who refused to obey repeated orders to put down a knife with a blade over a foot long, and while holding the high ground from 7 to 20 feet away, took a step toward the officer. The distance is only one factor and not determinative. The barriers in between [retaining wall, shrubbery, and iron railing], could have been used to the plaintiff's advantage.

Probation Search Ok'd

U.S. v. Carter, 2008 WL 44567 (1/3/08)(Published) - Another probation search approved. That the probation agreement only required the probationer to permit a home search, and did not explicitly permit a search without his consent, did not mean officers could not search without his permission under Utah law. Therefore, a home search without consent was okay, as long as there was reasonable suspicion, as required by the agreement. The same degree of reliability was not required for a probation search as there would be for a Terry stop. Here there was reasonable suspicion where a social worker told the probation officer on an unknown date that: the probationer was going to move and had not discussed that with his probation officer; he might have been associating with drug users; and he had refused to take a drug test for child custody purposes that he wasn't required to take.

Denial of Safety-Valve Relief Affirmed

U.S. v. Altamirano-Quintero, 2007 WL 4554290 (12/28/07)(Published) - While it would have been error for the d.ct. to deny a safety valve adjustment solely because the defendant refused to debrief, the d.ct. did not require a debriefing, as the defendant claimed. Rather, the d.ct. did not clearly err in finding the defendant failed to provide a complete disclosure, as required by § 3553(f)(5). There were "obvious informational gaps" in the defendant's plea admissions, e.g. how and where he got the meth or what he intended to do with it and most importantly who were the other participants. The government had not conceded the defendant's satisfaction of (f)(5), even though the plea agreement said: "the parties believe ... all relevant conduct is disclosed ... and the stipulated facts account for all sentencing factors." That provision established that the parties had set the parameters of the criminal activity about which the defendant was supposed to provide all the information he had. It did not say the defendant had provided that information, in light of the fact that the safety valve possibility was mentioned in a different provision of the agreement, and the relied-upon provision was standard in every plea agreement in the district.

In a concurrence, Judge Holmes criticizes the majority for reaching the plea agreement question because, regardless of whether the government conceded safety valve or not, it was up to the d.ct. to make the final decision and the d.ct. was justified in making its safety valve finding. Judge Holmes bemoans the majority's refusal to look at the agreement from the defendant's reasonable perspective [e.g. how is the defendant supposed to know the provision in question was a standard provision?], and does not resolve ambiguities against the government.

Rejection of Plea Agreement OK Despite Court's Receipt of Undisclosed Victim Impact Evidence

U.S. v. Rakes, 2007 WL 4510264 (12/26/07)(Published) - The 10th acknowledges the defendant's arguments "have force," but rejects them all. The 10th affirms the d.ct.'s rejection of the defendant's plea agreement that would have resulted in a sentence of 9 months [after trial, the defendant ended up with a sentence of 63 months!), where, prior to the plea rejection, and unbeknownst to the defendant, the victim, who was an AUSA, had written to the judge explaining the impact on her of the defendant's threatening letter. The d.ct. rejected the plea based on the "very real victim impact presented by this case." Rule 32(i)(1)(B), which requires disclosure of information upon which the judge will rely for sentencing, does not require disclosure of evidence relied upon to reject a plea agreement. The 10th decided not to decide whether a d.ct. can exercise sound discretion under Rule 11 to reject a plea when it acts on undisclosed evidence. Instead, the 10th accepted at face value the d.ct.'s subsequent claim that it would have rejected the plea, even if it had not received the AUSA's letter, for the reasons it had given at the time, which were a lot about the impact on the AUSA, but also about the plea agreement sentence being below the guideline range. According to the 10th, the defendant failed to provide some reason why the d.ct, would have accepted the plea absent the letter. So, of course, no prejudice from any violation of Rule 11.

There was sufficient evidence of a conspiracy to write the threatening letter to prevent the prosecutor from going after the Aryan Brotherhood, where witnesses saw a woman writing the letter at the defendant's suggestion, without apparent coercion by the defendant.

The d.ct. correctly cross-referenced to § 2A6.1, which concerns threatening communications, rather than § 2A2.4, which concerns obstructing government employees. The defendant's offense was more like threatening harm under § 2A6.1, than simple assault under § 2A2.4. It didn't matter that the jury had acquitted the defendant of mailing a threatening communication.

Sentence Reversed Because District Court Underestimated Its Discretion

U.S. v. Garcia-Salas, 2007 WL 4553913 (12/27/07)(unpub'd) - The 10th reverses the district judge for thinking he had less discretion than he really had. The defendant's grounds for variance included: (1) his prosthetic leg made his prison conditions bad; (2) he was a good stay-at-home father with two kids and he worked devotedly in a group that tried to discourage teenagers from having children; and (3) he suffered lots of traumas as a child, e.g. train running over his leg, abandonment by his mom, the suicide of his stepmom on his 10th birthday. The judge, having been reversed for both a below-guideline range sentence in Cage and an above-guideline range sentence in Atencio, said he felt it would be "very difficult" to impose a sentence outside the guideline range under those decisions. He asked the government whether it would appeal if he imposed a below-range sentence. When the government said it would appeal, the judge said he felt "constrained" to impose a guideline sentence. The 10th held that Gall and Kimbrough made it clear the judge had greater discretion than he realized. The 10th said the d.ct. was not free to impose any sentence whatsoever on remand, but "there is undoubtedly some room below the Guidelines minimum for a 'reasonable' sentence." Judge McWilliams dissented without an opinion.

Out with the Old, In with the New (Rules): 10th Circuit Rules Changes and Forms Effective Jan. 1, 2008

The new rules (available here on the Tenth Circuit's website)don't change much, but be sure to download the new version of the docketing statement.

The most significant change is something that affects the government. New Rule 27 explicitly discusses the government's motion to enforce an appeal waiver. Rule 27.2(A)(3)(b) states such a motion "must be filed" within 20 days of the notice that the record is complete or the notice of transmittal of the record, [instead of 15 days after the notice of appeal is filed]. But, then it says failure to file a timely motion does not preclude raising the issue in a merits brief. The change in the rule suggests the requirement that good cause be shown for a late filing does not apply to motions to enforce appeal waivers. Keep in mind, though, the Le case discussed above, where the 10th chose to address possibly waived issues, because the government hadn't raised the waiver question until its answer brief. The rule also requires the government to attach to its motion copies of the plea agreement and the transcripts of both the plea and sentencing hearings.

New Rule 41.2 now provides that the clerk will not accept a motion to recall the mandate filed more than a year after the mandate was issued unless the motion states with specificity why it wasn't filed sooner. The rule states the motion will not be granted unless the party has established good cause for the delay in filing the motion.

Throughout, the new rules refer to the e-submission rules. Rule 31.5 is now unclear to me about whether defendants have to serve the AUSA. The e-submission rules seem to say service can be solely by e-mail. See page 6, Section C. But, the new Rule 31.5 says "a party must serve a single copy of all filings on ... all counsel ...." Does "single copy" include serving by e-mail alone?

Tenth Circuit Decisions

A few 10th Circuit cases:

U.S. v. Shurtz, 2007 WL 4418180 (12/19/07)(Published) - Another imaginative defense argument bites the dust. The defendant argued 21 CFR § 1038.12(d) required the government to prove the meth he possessed was of sufficient quantity to have a stimulant effect on the central nervous system. That provision lists as Schedule II controlled substances: "any material, compound, ... which contains any quantity of the following substances having a stimulant effect on the central nervous system." It then lists meth, among other substances. The 10th held that the "any quantity ... having a stimulant effect ..." phrase was descriptive, not limiting. The 10th reasoned that when Congress intended the quantity to be dispositive it indicated so unequivocally.

Fricke v. Secretary of the Navy, 2007 WL 4305575 (12/11/07)(Published) - The 10th could review de novo whether the military had jurisdiction of the petitioner, even if the military fairly and fully addressed his constitutional claims. The military did have jurisdiction, even though the petitioner had received notice that he would be involuntarily discharged on a certain date, [absent certain events happening that didn't happen], before his trial commenced. A military person is not discharged until the military issues a discharge certificate or certificate of release. The military did not issue any such certificate.

U.S. v. Le, 2007 WL 443392 (12/18/07)(Unpub'd) - A good case to cite against the government's appeal waiver argument when raised for the first time in its answer brief. In that circumstance in this case, the 10th elects to address the sentencing issues the defendant raised, where "the case can be easily resolved on other grounds and the merits of the appeal-waiver assertions are subject to serious question" and raising the appeal waiver issue so late eliminated the conservation of resources that an appeal waiver is supposed to bring.

The 10th notes § 3553(g)'s apparent categorical requirement of a prison term if the defendant possesses a controlled substance in violation of supervised release has an exception under § 3583(d), if the defendant is amenable to treatment. Here, though, the defendant didn't argue that point and so the 10th affirmed the imposition of a prison term and refusal to continue supervised release.

U.S. v. Archuleta, 2007 WL 4244363 (12/4/07)(unpub'd) - The 10th reverses the district court's awarding of a minor role adjustment, which means the defendant also loses the 3-level reduction under § 2D1.1(a)(3). The 10th relied on the facts that the defendant obtained the drugs from the source, decided the ultimate price and delivered the drugs to the officers.

Davis v. Warden, 2007 WL 4403737 (12/14/07)(unpub'd) - The 10th is unimpressed with the 2255's movant's excuse for not filing his motion sooner: his skin disease infected his legal papers requiring their destruction.