Unpublished Decisions
US v. Flanders, No. 08-6056, 2/19/09 - 10th affirms as substantively reasonable, with no discussion, an upward variance for a defendant convicted of bank fraud and related charges. Here is the whole "analysis" - "Mr. Flanders’ sole issue on appeal is that his sentence was substantively unreasonable. We have reviewed his arguments and disagree." This prompted the following concurrence from Judge O'Brien: "In a series of ceremonial rites the leveling forces of the guidelines, their hearthstone, were sacrificed on the altar of sentencing discretion and appellate courts rendered impotent. See Spears v. United States, 129 S. Ct. 840 (2009); Gall v. United States, 128 S. Ct. 586 (2007); Kimbrough v. United States, 128 S.Ct. 558 (2007); United States v. Booker, 543 U.S. 220 (2005)."
US v. Capadona, No. 08-1156, 2/19/09 - Defendant walked away from the minimum security camp at Florence CC and was arrested over six years later in California. He wanted to present a justification (duress) defense at trial, and the government moved in limine to exclude it. In response, defendant urged the court not to prejudge his defense and assured the court that he could present evidence on each element of the defense. The district court denied the motion and defendant got to tell his story, which centered around an alleged assault against him by a prison guard, to the jury. At the close of the evidence, the court ruled that defendant's story, even if believed, did not support the defense and it was not submitted to the jury. The jury of course found defendant guilty, and the court slapped him with the two-level perjury enhancement. On appeal, defendant claimed that the court erred in not ruling before trial that he could not present his defense, which prevented him from making a reasoned choice about whether or not to testify. The 10th agreed with the government that any error was invited by defendant, thus requiring no further review on appeal. As for the perjury enhancement, the 10th held that it was proper because the district court believed the prison guard's story that he never assaulted defendant, which was not clearly erroneous. Exactly how a story to support a defense about which the jury is not instructed, and therefore does not even consider, is "material" in the perjury context is not explained.
US v. Stevahn, No. 08-8036, 2/19/09 - 10th affirms denial of suppression motion where warrant authorizing seizure and search of computer for child porn was not supported by probable cause, but cops nevertheless acted in good faith in relying on it. Although Leon saves the day once again for the government, the 10th takes the opportunity to trumpet the Supreme Court's recent decision in Herring and its emphasis on exclusion of evidence that allows the guilty go free always being the last resort.
US v. Morris, No. 08-5016, 2/19/09 - It takes the court 26 pages to explain why an appeal from a prison term imposed for admittedly violating supervised release terms was frivolous, leading to dismissal of the appeal and granting of counsel's motion to withdraw. Go read it if you have nothing else to do.
US v. Coleman, No. 08-5113, 2/19/09 - Another crack sentence reduction appeal bites the dust. The district court reduced defendant's sentence to the midpoint of the lowered guideline range, and refused to vary downward from there on Booker/Kimbrough grounds. The sentence itself was not an abuse of discretion, and the variance argument has already been squarely rejected by the 10th.
US v. LeBeau, No. 08-5078, 2/19/09 - Same. This defendant got bottom end of the lowered sentencing range. No further variance allowed, rejecting the same Booker/Kimbrough argument.
US v. Capadona, No. 08-1156, 2/19/09 - Defendant walked away from the minimum security camp at Florence CC and was arrested over six years later in California. He wanted to present a justification (duress) defense at trial, and the government moved in limine to exclude it. In response, defendant urged the court not to prejudge his defense and assured the court that he could present evidence on each element of the defense. The district court denied the motion and defendant got to tell his story, which centered around an alleged assault against him by a prison guard, to the jury. At the close of the evidence, the court ruled that defendant's story, even if believed, did not support the defense and it was not submitted to the jury. The jury of course found defendant guilty, and the court slapped him with the two-level perjury enhancement. On appeal, defendant claimed that the court erred in not ruling before trial that he could not present his defense, which prevented him from making a reasoned choice about whether or not to testify. The 10th agreed with the government that any error was invited by defendant, thus requiring no further review on appeal. As for the perjury enhancement, the 10th held that it was proper because the district court believed the prison guard's story that he never assaulted defendant, which was not clearly erroneous. Exactly how a story to support a defense about which the jury is not instructed, and therefore does not even consider, is "material" in the perjury context is not explained.
US v. Stevahn, No. 08-8036, 2/19/09 - 10th affirms denial of suppression motion where warrant authorizing seizure and search of computer for child porn was not supported by probable cause, but cops nevertheless acted in good faith in relying on it. Although Leon saves the day once again for the government, the 10th takes the opportunity to trumpet the Supreme Court's recent decision in Herring and its emphasis on exclusion of evidence that allows the guilty go free always being the last resort.
US v. Morris, No. 08-5016, 2/19/09 - It takes the court 26 pages to explain why an appeal from a prison term imposed for admittedly violating supervised release terms was frivolous, leading to dismissal of the appeal and granting of counsel's motion to withdraw. Go read it if you have nothing else to do.
US v. Coleman, No. 08-5113, 2/19/09 - Another crack sentence reduction appeal bites the dust. The district court reduced defendant's sentence to the midpoint of the lowered guideline range, and refused to vary downward from there on Booker/Kimbrough grounds. The sentence itself was not an abuse of discretion, and the variance argument has already been squarely rejected by the 10th.
US v. LeBeau, No. 08-5078, 2/19/09 - Same. This defendant got bottom end of the lowered sentencing range. No further variance allowed, rejecting the same Booker/Kimbrough argument.
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