Some Unpublished Decisions
U.S. v. Frierson, 2009 WL 190082 (1/28/09) (unpub'd) - An unsuccessful, but clever, attempt to get around an appeal waiver. The defendant asserts the miscarriage of justice exception to an appeal waiver applied because the sentence was based on the impermissible factor of race. The 100-1 crack-to-powder ratio created racial disparities in sentencing, the defendant pointed out. The 10th acknowledged the racial disparities but concluded that did not mean the sentence was based on race. The 100-1 ratio was imposed for a number of reasons, none of them race, the 10th says.
U.S. v. Gregory, 2009 WL 213119 (1/30/09) (unpub'd) - The defendant's defense to his assault on a prison guard [microwaved floor wax to the face, ouch] that the assault was an act of war to destabilize the government in order to create an all-white nation in 5 western states was not a valid defense. It did not satisfy the requirements for a justification defense.
US v. Hopkins, No. 06-3067 (10th Cir. 2/4/09) (unpublished): Up and down and up and down again. The 10th remands this meth case for resentencing a second time. The first time the Tenth had reversed and remanded for resentencing because the district court applied an erroneous "proportional estimate" methodology to determine the amount of drugs attributable to the defendant, who was convicted of participating in a large, multi-state, multi-defendant conspiracy. US v. Hopkins, 128 Fed.Appx. 51 (10th Cir. 2005). On remand, the district court held a two-day hearing and allowed the government to present evidence concerning the defendant's involvement in the conspiracy and then decided it would not consider the new evidence because the government should have presented the evidence at the first sentencing. The court then sentenced Mr. Hopkins to 108 months, which was 13 months less than his original sentence. The government appealed and the Tenth concludes that the district court abused its discretion by allowing the government to present the evidence and then refusing to consider it where there was no evidence the government engaged in inappropriate conduct and remanded for the district court to consider all relevant evidence. Judge Holloway dissenting, stating he was not convinced the district judge had abused his discretion.
US v. Rosas-Caraveo, 2009 WL 141896, 1/22/09 - Bottom range sentence in this reentry case affirmed. Of note is the panel's refusal to adopt in this circuit a requirement to assess requests for downward variances based on cultural assimilation in light of various factors culled from cases from other circuits, including "the length of time the defendant has lived in the United States, whether he came to the United States as an adult or as a child, whether he was educated in the United States, any steps he has taken to establish residency or become a citizen, his familiarity with his country of origin and whether he has any children who reside in the United States." Instead, cultural assimilation is just one more ingredient in the 3553(a) stew.
US v. Waldon, 2009 WL 142041, 1/22/09 - Revocation of convicted bank robber's supervised release for committing misdemeanor offense of disorderly conduct by propositioning 12 year old girl in the public library affirmed. Defendant was cited for the offense and his PO filed a revocation petition. The district court essentially conducted its own trial and found the defendant guilty. There is no mention of what happened, if anything, on the citation itself.
U.S. v. Gregory, 2009 WL 213119 (1/30/09) (unpub'd) - The defendant's defense to his assault on a prison guard [microwaved floor wax to the face, ouch] that the assault was an act of war to destabilize the government in order to create an all-white nation in 5 western states was not a valid defense. It did not satisfy the requirements for a justification defense.
US v. Hopkins, No. 06-3067 (10th Cir. 2/4/09) (unpublished): Up and down and up and down again. The 10th remands this meth case for resentencing a second time. The first time the Tenth had reversed and remanded for resentencing because the district court applied an erroneous "proportional estimate" methodology to determine the amount of drugs attributable to the defendant, who was convicted of participating in a large, multi-state, multi-defendant conspiracy. US v. Hopkins, 128 Fed.Appx. 51 (10th Cir. 2005). On remand, the district court held a two-day hearing and allowed the government to present evidence concerning the defendant's involvement in the conspiracy and then decided it would not consider the new evidence because the government should have presented the evidence at the first sentencing. The court then sentenced Mr. Hopkins to 108 months, which was 13 months less than his original sentence. The government appealed and the Tenth concludes that the district court abused its discretion by allowing the government to present the evidence and then refusing to consider it where there was no evidence the government engaged in inappropriate conduct and remanded for the district court to consider all relevant evidence. Judge Holloway dissenting, stating he was not convinced the district judge had abused his discretion.
US v. Rosas-Caraveo, 2009 WL 141896, 1/22/09 - Bottom range sentence in this reentry case affirmed. Of note is the panel's refusal to adopt in this circuit a requirement to assess requests for downward variances based on cultural assimilation in light of various factors culled from cases from other circuits, including "the length of time the defendant has lived in the United States, whether he came to the United States as an adult or as a child, whether he was educated in the United States, any steps he has taken to establish residency or become a citizen, his familiarity with his country of origin and whether he has any children who reside in the United States." Instead, cultural assimilation is just one more ingredient in the 3553(a) stew.
US v. Waldon, 2009 WL 142041, 1/22/09 - Revocation of convicted bank robber's supervised release for committing misdemeanor offense of disorderly conduct by propositioning 12 year old girl in the public library affirmed. Defendant was cited for the offense and his PO filed a revocation petition. The district court essentially conducted its own trial and found the defendant guilty. There is no mention of what happened, if anything, on the citation itself.
posted by Anonymous at 8:50 AM
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