Pepper In the Eye is a 4th Amendment Seizure

Lemery v. Beckner, 2009 WL 990523 (4/14/09) (unpub'd) - An officer's hitting a person with a pepper ball shot in the eye and momentarily stopping the person constituted a seizure under the Fourth Amendment.

Denial of Summary Judgment in 1983 Action Affirmed

Hostetler v. Green, 2009 WL 997426 (4/15/09) (unpub'd) - In a § 1983 case, the question whether the district court properly relied on a particular fact to determine the officer's subjective knowledge was a question of law. The district court correctly considered whether the guard violated prison policy when he left a male trustee inmate alone in a cell with a female prisoner. Violation of the policy supports the inference that the officer was aware of the increased risk of sexual assault when the policy is violated.

A Black Eye Can Constitute Excessive Force

Grass v. Johnson, 2009 WL 997346 (4/15/09) (unpub'd) - Force used by police can be excessive even if it does not result in that much damage. In this case, the plaintiff ended up with a black eye. The unwarranted nature of the force, not the potential for physical harm, rendered it unconstitutional. The allegations were sufficient to avoid summary judgment where the booking forms indicated the plaintiff had no injuries, but the plaintiff alleged those reports were false and he indisputably did have a black eye the morning after the arrest.

Investigatory Stop OK'd

U.S. v. Crespin, 2009 WL 1069167 (4/22/09) (unpub'd) - One of the factors establishing reasonable suspicion to conduct an investigatory stop: all the occupants of the minivan reacted to the officer's presence with an "oh crap look," as though they had something to hide. Also, they were all dressed like gang members and the officer thought he recognized a couple of them.

Harmless Error for Court to Consider State Prosecutor's Letter

U.S. v. Bacon, 2009 WL 997400 (4/15/09) (unpub'd) - Any error in the district court considering a letter from a state prosecutor calling the defendant a "menace to society," without telling the defendant was harmless because the court's upward departure from 37 months to 60 months was overwhelmingly justified by the defendant's horrible record.

No 3582(c)(2) Relief for Career Offender

U.S. v. Robinson, 2009 WL 1067591 (4/22/09) (unpub'd) - A little twist on the typical career offender denial of 18 USC § 3582(c)(2) relief. At the original sentencing the court applied the offense level determined by the crack quantity. But no relief, the 10th says, based on the crack amendment because the defendant's career offender offense level, which was the same as the quantity-driven level, was not reduced and trumped the amendment's reduction, even though the court did not originally rely on the career offender level.

OK to Pat Down Suspected Burglar

U.S. v. Luginbyhl, 2009 WL 1014853 (4/16/09) (unpub'd) - The officer had a reasonable suspicion the defendant was armed and needed to be patted down because: (1) the defendant was a suspected burglar and burglars often are armed and (2) the officer reasonably misunderstood the dispatcher to indicate the defendant was going to get a gun [it was actually the caller who said she might get a gun]. Judge Hartz concurred in the result but refused to join in the entire opinion because he did not agree with the reliance on the officer's misunderstanding.

Prior Conviction Counts Eventhough Defendant was a Juvenile

U.S. v. Rayas, 2009 WL 1067943 (4/22/09) (unpub'd) - It was okay to count a conviction, even though the defendant was a juvenile at the time of the conviction, because the juvenile claimed to be an adult at that time and received an adult conviction he didn't deserve.

Defendant Properly Denied Acceptance Points

U.S. v. Tharps, 2009 WL 975532 (4/13/09) (unpub'd) - The 10th affirms denial of acceptance of responsibility reduction where the defendant was convicted of only the offenses he admitted to on the stand: possession of cocaine for personal use and felon-in-possession, and was acquitted of possession with intent to distribute and possessing a gun in furtherance thereof. First, the defendant did not admit to being a felon-in-possession prior to trial. Second, he required the government to prove its case before he testified [the government had to prove he was a felon, etc.].

"Community of Reference" Test for Indian Country Applied

Hydro Resources, Inc. v. U.S. EPA, 2009 WL 1027184 (4/17/09) (Published) - The 10th holds the EPA did not err in finding a checkerboard area in N.W. New Mexico is "Indian country." As a result, the uranium mining company has to deal with the EPA, not state authorities, for permission to help spread radioactivity throughout the land. The 10th reached its conclusion, even though there are no actual people who live in the land in question, the state and counties supply plenty of services nearby and non-Indians own the land. The land was within the province of the Church Rock Chapter. The 10th insists its "community of reference" test survived the S. Ct.'s decision in Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520 (1998). First, the Church Rock Chapter was a definite geographic area determined by the Navajo Nation. Second, the Chapter area was "cohesive" enough to be a "community. Almost everyone in that area is Navajo, the Chapter's residents primarily engage in traditional self-employment. Third, the area was a separate "mini-society," The Chapter is a distinct political entity. It has a collection of homes organized in camps or housing developments and has a school and churches. Area people avail themselves of the services of the Chapter regularly. It cannot be expected that most of the needs of modern life would be supplied by the community.

And the Chapter was set aside by the federal government for use by Indians. The government bought back the land from a railroad company in trust for the Navajo Nation. And the Chapter is dependent on the federal government such that the government and the Indians exercise primary jurisdiction. The federal government is actively involved, owning 92 % of the land and providing services and protecting the land and its natural resources.

District court judge Frizzell dissented, He did not think the entire Chapter was an appropriate community of reference. Never before, he said, has non-Indian fee land outside the exterior boundaries of a reservation or Pueblo been held to be a dependent Indian community. He expressed concern that Indians could just declare land to be theirs and thus overwhelm non-Indians. The majority responded Congress and the courts could fix that if that were a problem.

"Community of Reference" Test for Indian Country Applied

Hydro Resources, Inc. v. U.S. EPA, 2009 WL 1027184 (4/17/09) (Published) - The 10th holds the EPA did not err in finding a checkerboard area in N.W. New Mexico is "Indian country." As a result, the uranium mining company has to deal with the EPA, not state authorities, for permission to help spread radioactivity throughout the land. The 10th reached its conclusion, even though there are no actual people who live in the land in question, the state and counties supply plenty of services nearby and non-Indians own the land. The land was within the province of the Church Rock Chapter. The 10th insists its "community of reference" test survived the S. Ct.'s decision in Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520 (1998). First, the Church Rock Chapter was a definite geographic area determined by the Navajo Nation. Second, the Chapter area was "cohesive" enough to be a "community. Almost everyone in that area is Navajo, the Chapter's residents primarily engage in traditional self-employment. Third, the area was a separate "mini-society," The Chapter is a distinct political entity. It has a collection of homes organized in camps or housing developments and has a school and churches. Area people avail themselves of the services of the Chapter regularly. It cannot be expected that most of the needs of modern life would be supplied by the community.

And the Chapter was set aside by the federal government for use by Indians. The government bought back the land from a railroad company in trust for the Navajo Nation. And the Chapter is dependent on the federal government such that the government and the Indians exercise primary jurisdiction. The federal government is actively involved, owning 92 % of the land and providing services and protecting the land and its natural resources.

District court judge Frizzell dissented, He did not think the entire Chapter was an appropriate community of reference. Never before, he said, has non-Indian fee land outside the exterior boundaries of a reservation or Pueblo been held to be a dependent Indian community. He expressed concern that Indians could just declare land to be theirs and thus overwhelm non-Indians. The majority responded Congress and the courts could fix that if that were a problem.

Always, Always Object

U.S. v. Uscanga-Mora, 2009 WL 1100458 (4/24/09) (Published) - Following the Supreme Court's recent Puckett case, the court extols the virtue of plain error review. E.g., a contemporaneous objection will enable the court to correct any procedural error right then. But somewhat helpfully, the 10th also says: "plain-error review should not be like a hidden mantrap, encountered without warning yet often deadly." So, counsel will be excused from objecting if counsel is not afforded an opportunity to object or an objection would be futile. Perhaps helpfully, the 10th in a footnote acts as though 10th precedent might be consistent with 6th Cir. law, which requires the district court to ask the parties if they have any objection to the sentence before plain error review is applied. In this case, the court asked if counsel had "anything else" to add and whether there was any reason that the sentence should not go forward. So counsel had an opportunity to object to the inadequacy of the court's explanation for its application of the two-level leader enhancement under § 3B1.1(c). The defendant could not meet the third plain error prong because there was sufficient evidence to support the enhancement. Wiretapped conversations evidenced the defendant ordering someone else to do certain things with respect to drug transactions.

Nunc Pro Tunc State Order Shortening Probation Did Not Negate Sentencing Increase

U.S. v. Pech-Aboytes, 2009 WL 1026484 (4/17/09) (Published) - A post-federal-plea nunc pro tunc state court order that shortened the defendant's probation so that it ended before he committed the federal offense did not preclude the application of the two level increase under § 4A1.1(d) for committing an offense while under a criminal justice sentence because the state court entered the order for reasons unrelated to the defendant's innocence or errors of law. As a result, the defendant did not qualify for the safety valve. He gets 10 years instead of 70 months. Sadly, at the time of the plea everyone thought the defendant would qualify for the safety valve. The first PSR said he did, but 6 weeks later an eager probation officer found the conviction.

Court Reverses Some Enhancement Imposed on Defendants Convicted of Civil Rights Offenses

United States v. Egbert, ___ F.3d ___, 2009 WL 983054 (10th Cir. 2009)
Three white supremacists convicted of conspiracy to violate civil rights and, in the case of one of the three Ds, a substantive civil rights offense, launched unsuccessful and successful challenges to guideline calculations.

1. Because the overt acts of the conspiracy count included the single substantive assault offense that involved only one of the three Ds, that one assault was relevant conduct for the other two Ds–the assault was a reasonably foreseeable act of the conspiracy to beat up non-whites. The guidelines allow the overt acts, because they involve two different victims, to be grouped as if separate counts, even though they are part of a single conspiracy count. Read the opinion and the GL if you have a multiple overt act conspiracy and wonder how the guidelines might be calculated.

2. Demonstrating that it can be fairly exacting in how it reads the language of the GL and the evidence that satisfies that language, the COA reverses the sentence on the ground that there was insufficient evidence of serious bodily injury to support the SBI GL enhancement. Looking to the definition for SBI, and reviewing cases in which the extent of the injury necessitated medical care, the COA found that the statements of witnesses about the blows they saw the victim receive and that fact that he seemed unconscious afterwards was insufficient (the victim apparently left and was not found afterwards). Also, there was no evidence that the unconsciousness was protracted as required by the SBI enhancement.

3. The COA reverses the “organizer and leader” enhancement to the D who was the head honcho of the white supremacist group. The fact that he was the titular head was not enough to show leadership in relation to the crime, and no other evidence was sufficient to establish his leadership role in the assaults–specifically, no evidence that he controlled the others.

Possessing Unregistered Gun Not a Crime of Violence Under 924(c)(1)

United States v. Serafin, ___ F.3d ___, 2009 WL 983055 (10th Cir. 2009)
Possession of an unregistered firearm–a short-barreled .22 assault rifle–was not a crime of violence, so that D’s possession of a different firearm at the same time he possessed the unregistered rifle could not constitute the offense of possession of a firearm during a crime of violence in violation of 18 USC Sec. 924(c)(1).

The COA employed the Taylor categorical approach. The operative language for crime of violence under 924(c)(3)(B), which has not been construed by the S. Ct., is most similar in language and purpose to that under 18 USC § 16(b): to address the risk of force being used in the course of committing the crime and not merely the risk of force as a possible result of the crime. Any earlier opinions by the COA addressing possession of an unregistered firearm as a COV for purposes of applying the § 4B 1.2 crime of violence enhancement are inapplicable, since the GL is broader and addresses risk of violence as a result of the crime, not risk of violence in the commission of the crime. The COA rejected any other circuit decisions holding that the risk of force resulting from possession of an unregistered FA qualified the offense as a COV (the COA relyied on the Leocal interpretation of § 16(b)).

In sum, “the unlawful act of possession does not ‘by its nature’ involve a substantial risk that physical force will occur in the course of committing the offense.”

Gun Thief Convicted of Felon-in-Possession, Properly Enhanced for Possessing Gun with Burglary

United States v. Morris, ___ F.3d ___, 2009 WL 989011 (10th Cir. 2009)
D was convicted of being a felon in possession of a firearm for the gun he took during a burglary. The district court properly applied the § 2K2.1(b)(6) enhancement for possession of the gun in connection with another felony (the burglary), and there was no plain error in the court’s use of Application Note 14 (B). D argued that the Note improperly expanded the enhancement phrase “in connection with” to a situation like D’s, where the gun was the object of the burglary and possessed only as a consequence of the burglary. The COA noted that the Note was added in 2006 to address a conflict among the circuits–some had decided that the “in connection with another felony” required a time separation between the gun possession and the commission of the offense, and other circuits did not require such a separation. The Note, which adopted the more Draconian view, is binding.

District Court May Not Delegate Setting Restitution Schedule to BOP

Bradshaw v. Lappin, 2009 WL 921161 (4/7/09) (unpub'd) - A federal prisoner victory. The 10th reverses a dismissal of a civil rights complaint. The Bureau of Prisons does not have the authority to set up a restitution schedule and tell the inmates they would not be allowed out of supermax unless they complied with that schedule. The district court cannot delegate the restitution schedule responsibility. Also, the district court erred by failing to consider the statute of limitations problem for a medical claim when the district court dismissed that claim for misjoinder.

Separation of Powers Argument Rejected in 3582(c)(2) Context

U.S.. v. Franklin, No. 08-3315 (4/10/09) (unpub'd) - The 10th rejects a separation of powers argument against the refusal to apply Booker to § 3582(c)(2) proceedings. Congress can incorporate a guideline provision as a means of limiting a district court's authority to reduce a sentence.

Crack Resentencing Properly Denied Based on Court's Calculation of New Drug Amount

U.S. v. Valdez, 2009 WL 929921 (4/8/09) (unpub'd) - An unusual 18 USC § 3582(c)(2) case that calls into question the 10th's claim that those cases don't involve a real resentencing. When the defendant was initially sentenced, the district court found 1.5 kg or more of crack was involved, pursuant to the parties' stipulation. That put the defendant at the highest base offense level at the time--38. The defendant sought resentencing because the amended crack guidelines placed 1.5 kg at base offense level 36. But the 10th says the district court was right to calculate the drug amount as 4.5 kg or more, putting the base offense level back at 38, based on the uncontested statements in the PSR, which the initial court had adopted. As a result, the defendant's guideline range was not lowered and therefore § 3582(c)(2) did not apply. The 10th justifies this procedure on the ground that the first court had no need to make a separate explicit quantity calculation because the defendant was already at the highest level. Now that it mattered, the § 3582(c)(2) court could make a finding based on the PSR the first court had adopted. But isn't it also true the defendant had no need to object to the initial PSR and might have a need now?

Preponderance of the Evidence Standard Still Applies to Judicial Fact-Finding at Sentencing

U.S. v. Jones, 2009 WL 921116 (4/7/09) (unpub'd) - Booker did not require overturning prior precedent that only a preponderance of the evidence standard applies to judicial fact-finding that enhances the guideline range. In this case, the fact-finding increased the range from 21-27 months to 151 to 188 months. That's just fine.

Sentence Reversed Based on Plain Error

U.S. v. Mendez, 2009 WL 921125 (4/7/09) (unpub'd) - Defendant's sentence reversed because the district court mistakenly applied a 60% purity ratio to calculate the marijuana equivalent for the methamphetamine. The lab report said the purity ratio was 41%. Reversal under the plain error standard was warranted because the error probably altered the final sentence.

Petition Raising Applicability of Booker to section 3583(c)(2) Resentencing Proceedings Set for Conference

The first petition raising the issue of whether Booker's flat statement that the guidelines are advisory in all contexts includes resentencing proceedings pursuant to Section 3582(c)(2), US v. Rhodes, Docket No. 08-2111,has been set for conference next week, on April 24. The decision below is found at 549 F.3d 833 (10th Cir. 2008).

The Petitioner asks the Supreme Court to address the following issue:

Did the Tenth Circuit violate United States v. Booker, 543 U.S. 220 (2005), by holding that the federal sentencing guidelines were mandatory in sentencing hearings held pursuant to 18 U.S.C. sec. 3582(c)(2), thereby conflicting with the holding of United States v. Hicks, 472 F.3d 1167 (9th Cir. 2007)?

The Tenth Circuit had concluded that the Sentencing Commission's policy statement in USSG 1B1.10, combined with the statutory language, meant that the district court was limited to granting only the stingy 2-level reduction allowed by the crack guideline amendments, despite Mr. Rhodes' evidence of extensive post-sentencing rehabilitation. The Tenth's decision has much broader implications than the current crack resentencing cases; resentencings pursuant to future guideline amendments would be similarly limited to whatever the Commission chose to grant, effectively imposing a mandatory guideline regime in the context of 3582(c)(2) resentencings.

Mr. Rhodes' petition is not the only one pending before the Court; this writer knows of at least four others currently pending. There is a circuit split on this issue. Hopefully, the Court will grant cert. on this issue and make it clear, once and for all, that it meant what it said about advisory Guidelines.

Ohio Breaking and Entering, 3rd-Degree Burglary Convictions Qualify as ACCA Violent Felonies

US v. Scoville, 2009 WL 929521 (10th Cir. April 8, 2009) published
Defendant was properly sentenced as an armed career criminal. His Ohio breaking and entering conviction does not categorically qualify as generic burglary, but under modified approach, it qualified as generic burglary because he pled guilty to unlawfully entering a building (a laundromat) with intent to commit a crime. His Ohio third degree burglary convictions qualified as violent felonies under the catchall "otherwise involve[d] conduct that presents a serious risk of potential physical injury to another." Third degree burglary prohibited trespass into a habitation with purpose to commit a misdemeanor that is not a theft offense. The Court reasoned that although the offenses are not generic burglary, they "typically involve unlawful entry into a home ... for the purpose of committing a crime." Thus, the typical offense ordinarily creates a serious potential risk of injury to another.

Ambiguity in Appeal Waiver Created by District Court's Description

US v. Benitez-Diaz, 2009 WL 931708 (10th Cir. April 8, 2009) (unpublished)
Despite an appeal waiver in the plea agreement, defendant get a partial remand for resentencing. The district court mischaracterized the waiver provision as applying to the conviction, and it was not clear whether the defendant had already signed the agreement at the time. Therefore, ambiguity was construed in the defendant's favor and he could appeal sentencing issues. The court refused to invalidate the provision completely based on various misstatements by the district court. Regarding the sentencing issues, the district court did not give a proper opportunity for the defendant to address the court -- the district court merely asked whether he objected to the sentence and did not provide the defendant an opportunity to speak on his own behalf. The defendant obtained a remand on this basis.

Rare Reversal for Procedural Unreasonableness in Imposing Sentence

US v. Swopes, 2009 WL 929927 (10th Cir. April 8, 2009)(unpublished)
"In an exhibition of admirable candor", the Government conceded and Tenth Circuit agreed that the district court's sentence was procedurally unreasonable, and the error not harmless, because the court admitted presuming that the advisory Guidelines range was reasonable and failing to consider the 3553(a) factors!

Obstructing Federal Grand Jury Convictions Affirmed

US v. Erickson, -- F.3d --, 2009 WL 903387 (10th Cir. 4/6/09) - there was sufficient evidence to convict 2 co-Defendants of obstructing and impeding a federal grand jury under 18 USC § 1503. The requirement of proof of acting corruptly with the specific intent to obstruct or impede the proceeding in its due administration of justice was met by evidence that the defendants created false docs to deliver to the grand jury in response to its subpoena. A grand jury is obstructed whenever it is presented with manufactured evidence. There is no need for proof that the altered docs defendants created were relevant to the grand jury's investigation. Defendants' Brady claims are rejected because there was no showing that the gov't knew about the withheld audit or that it contained material evidence favorable to defendants. And while the trial judge made some caustic comments, they did not deny a fair trial or exhibit bias requiring recusal.

Over-zealous Alumni Devotion Leads to Traffic Stop

U.S. v. Orduna-Martinez, 2009 WL 884619 (4/3/09) (Published) - Kansas law did require all of the registration label on a license plate to be "clearly legible" and the defendant's Ohio State University plate frame was not cut out sufficiently enough to render the label "clearly legible," authorizing the officer's stop of the vehicle. In the course of the ruling, the 10th thoughtfully says: "the Supreme Court has made a lot reasonable." "Relatively slight obstructions of the registration decal can give rise to a proper traffic stop."

Plaintiff's Counsel's Misconduct Gets New Trial for Company

Whittenburg v. Werner Enterprises, 2009 WL 884616 (4/3/09) (Published) - A civil case , but should be useful in prosecutorial misconduct arguments on appeal. Once again a big company facing money damages seemingly gets more protection than a defendant facing the loss of liberty. Counsel's closing argument that included reading from an imaginary letter from the company to the traffic victim's daughters placing the jurors in the victim's family's shoes, introducing evidence not in the trial record and excoriating the defendant for defending itself, [over defense objections] was so prejudicial as to warrant reversal of a multi-million dollar damage award. Helpfully, the 10th says:"the d. ct.'s discretion regarding granting a new trial is not boundless. We have the advantage of considering how individual cases fit in a wider context and pass judgment after more deliberation ... we may not merely rubber stamp the district court's judgment." "There must be limits to pleas of pure passion and there must be restraints against blatant appeals to bias and prejudice." The 10th emphasized its reliance on the combination of factors

Remand for Application of Chambers to Career Offender

U.S. v. Young, 2009 WL 886236 (4/3/09) (unpub'd) - Chambers applies to the interpretation of USSG § 4B1.2(a). The 10th remands to see if the defendant's escape was a failure to return escape and thus was not a "crime of violence" for purposes of determining the base offense level for a felon-in-possession of a firearm case under § 2K2.1. On the bad news side, a pre-instant-offense plea counted as a prior conviction for § 2K2.1, even though the defendant was not sentenced on that plea until after he committed the instant offense.

Doubling of Sentence in Reentry Case Affirmed

U.S. v. Marquez-Pineda, 2009 WL 799018 (3/27/09) (unpub'd) - Without much discussion, 10th Cir. affirms upward variance in reentry case from the top end of 30 months to 60 months, due to 8 prior illegal reentries, 30 aliases, 16 different dates of birth, 5 different social security numbers and 8 DUI convictions.

Failure to Consult Re: Appeal Rights Results in 2255 Relief

U.S. v. Kelley, 2009 WL 806746 (3/30/09) (unpub'd) - A reversal of a 2255 denial. First, trial counsel had a duty to consult with the defendant about appealing, even though there was no reason to believe a rational defendant would want to appeal the within-Guidelines sentence. This is so because this particular defendant had reasonably demonstrated his interest in an appeal when he asked immediately after sentencing if counsel would "take care of everything," appeal was the only remaining legal matter and the defendant asked his sister the next day to see counsel in order to get started on the appeal, but the sister was unable to reach counsel. Second, counsel did not fulfill his duty to consult about the appeal when he simply said there was nothing to appeal. This did not constitute the informing of the advantages and disadvantages of appealing that counsel was required to engage in. Third, the defendant established the requisite prejudice by showing that had he been properly advised he would have wanted an appeal, as evidenced by his post-sentencing efforts to get counsel to appeal.

What Not To Say at Oral Argument

U.S. v. Marquez-Diaz, 2009 WL 826840 (3/13/09) (unpub'd) - Just a cautionary tale about what counsel says at oral argument. The 10th had issued an earlier decision saying counsel had waived a particular issue at oral argument. The 10th granted the petition for rehearing and begrudgingly addressed the issue, insisting all along counsel really did waive the issue. The 10th recounts that in response to a judge's question:"And so it was a valid traffic stop at its inception?," counsel said: "True, I am willing to let that go" and counsel never returned to the point.

Donating Criminal Case Records Not Tax Deduction

Jones v. Commissioner of Internal Revenue, 2009 WL 794481 (3/27/09) )(Published) - The attorney for Timothy McVeigh could not claim as a tax deduction his donation of records the government gave to him as part of the discovery in Mr. McVeigh's case. The papers were "letters, memos, or similar property held by the taxpayer for whom such property was prepared or produced," and therefore could only be deducted if the taxpayer had paid something for them, which he had not.

Voluntary ECF Filing Begins; Mandatory Electronic Filing in Two Months

The Tenth Circuit began voluntary use of the Electronic Case Filing (ECF) system this week. Use of the ECF system will become mandatory on June 1. Practitioners have to sign up for the appellate ECF system even if they have signed up for the district court system. Visit the Tenth Circuit's website for the ECF manual and frequently asked questions.