Tuesday, June 30, 2009

Officer's Confusion About What Law Was Violated Did Not Render Stop Unconstitutional

US v. Eckhart, -- F.3d --, 2009 WL 1841695 (10th Cir. 6/29/09) - affirmance of denial of motion to suppress. Stop of California vehicle in Utah was justified because it was in violation of Utah law requiring license plate to be clearly visible. Not a problem that the officer was confused about what law was violated since there was an actual violation. Enforcement of Utah's license plate statutes on out-of-state drivers does not violate the Commerce Clause because in-state and out-of-state travelers are not treated differently. Officer's request for drivers licenses and vehicle registration did not violate the Fourth Amendment. District court correctly concluded that driver and passenger lacked standing to challenge vehicle search because they did not establish a link between the registered owner of the vehicle and themselves. Miranda warnings were not necessary prior to arrest given that officers did not use highly intrusive measures. Finally, the district court did not clearly err in denying minor or minimal participant adjustments.

Monday, June 29, 2009

U.S. v. Robertson, No. 08-3126 (6/19/09) (Published) - Affirmance of an upward departure with a couple of preservation lessons. Departures are alive and well in the 10th Circuit. The 10th applies the same standard of review to departures it applied pre-Booker. The d. ct. did not err when it considered the defendant's conduct associated with arrests that did not result in convictions. As long as the d.ct. relies on the conduct, not the arrests themselves, the conduct is, as the 10th says, "fair game." The recitation in the PSR of the facts underlying the arrests established a factual basis for the departure because the defendant did not object to the facts. The departure from a criminal history category III to VI [from 18-24 to 41 months] was justified by the felon-in-possession defendant's prior commission of violence with guns [similar offenses to the instant offense]. The d. ct. plainly erred when it failed to adequately explain the degree of departure. It only explained the departure grounds. But the defendant's substantial rights were not affected because it was obvious the court increased the criminal history category to what it would have been had the defendant been convicted of the offenses he was arrested for, as evidenced by defense counsel's helpful statement to that effect. The 10th waxed poetic about the wonders of the contemporaneous objection rule. To preserve the error, counsel had to object to the notion that unique factors took the case from the heartland, the degree of departure, and the failure to explain the degree. Counsel was expected to make these objections even though there was no mention of a possible departure until the sentencing hearing, and counsel had objected to the departure. The 10th talked of "substantial discretion" to depart and "substantial deference" to the d. ct.'s departure decision.

Gardner v. Galetka, 2009 WL 1725937 (6/19/09) (Published) - Habeas affirmance of state murder, this time by Utah. The 10th summarizes AEDPA as providing a back-stop and precluding federal habeas courts from refining or modifying constitutional principles. An interesting [to a habeasphile anyway] and bad AEDPA ruling: failure to provide funding for the presentation of evidence in state habeas in violation of state law did not mean de novo review in federal court, even though the state conceded de novo review applied. The state cannot waive the right to deferential AEDPA review.

The 10th rejected the following ineffective assistance of counsel claims regarding failure to: investigate the petitioner's mental health for the guilt phase [the one psych's brief exam gave no indication further evaluation would obtain better evidence; mental health evidence might open door to damaging evidence; later exam for habeas did not support insanity defense]; pursue ballistics evidence [did investigate somewhat; that gun had faulty safety device didn't show gun accidentally went off]; object to the defendant's statements [there was overwhelming evidence of intent; the statement might have been spontaneously volunteered and could have been used to impeach on cross; it was a reasonable strategy not to request a limiting instruction to use only for credibility; there was no showing medication rendered the statement involuntary; the statement could not have been excluded on 403 grounds, even if the officer's testimony was not believable, because Rule 403 is not to be used to exclude testimony that a trial judge does not find credible]; discourage the defendant from testifying [there was no guilt stage defense at all without the defendant's testimony]; timely investigate mental health for penalty phase [counsel was ineffective for waiting to the last minute to talk to expert and not offering available diagnosis, but no prejudice; additional available evidence would only have added color and information that was double-edged and could have opened the door to damaging rebuttal [don't ask why color would open the door when the original substance did not]; schizophrenia---an illness the petitioner did not have---is a more sympathetic disease than an untreatable personality disorder, which the petitioner had].

It was not a conflict of interest that the petitioner's attorneys, who were brothers, were at the courthouse when the petitioner tried to escape and killed someone, and were concerned about each other's safety at that time. There was no evidence any conflict affected their performance. In closing, counsel urged the jury to set aside the fear he experienced at the time, just as he had done to then agree to represent the petitioner.

That 55 % of the prospective jurors said they formed an opinion about the petitioner's guilt due to pretrial publicity and 4 of those people were on the jury did not establish the "circus" atmosphere required to constitutionally require a change of venue. Otherwise, you could never hold a local trial in a well-publicized case. Horrors! The petitioner's shackling and heavy security measures were justified by the petitioner's prior violent escape attempts, including the one he was being tried on.

The muted reference to the petitioner's past crimes in the guilt phase was necessary to establish first degree murder, the petitioner made the same reference during his testimony and the evidence was overwhelming anyway. The concededly erroneous instruction that allowed for a conviction if the defendant was aware of either his conduct or what the result of his conduct would be, instead of both was harmless. The jury findings and the evidence indicated the jury must have found both. The jury instructions on residual mitigation allowed the jury to consider the mitigating circumstance of the petitioner acting under duress. The instructions did not require a unanimous finding of mitigating circumstances. Hypnosis of witness that seemed to make the witness more sure of somewhat damaging evidence was not a due process problem because the state played no role in the hypnosis. And, besides, the extra certainty on a collateral issue wasn't all that harmful to the petitioner. It was not witness tampering for a prosecutor to tell a witness during a break in his testimony that he was being "too polite" when he testified "the gun went off" when he could be saying "the petitioner shot the victim" and he should "tell how it happened." This was not "witness tampering but being a good lawyer."

U.S. v. Daubon, No. 08-2189 (6/19/09) (unpub'd) - After what sounds like an excellent verdict at trial [acquittal of PWID and conspiracy of marijuana in truck and convicted of falsely representing to be a U.S. citizen], the 10th affirms the conviction. The law of the case doctrine required the government to prove what the unobjected-to jury instruction required the jury to find [which the 10th hints might have been more than it would otherwise have to prove] the defendant knew he was not a citizen and deliberately made this false statement with the intent to disobey or disregard the law. The evidence established the defendant knew he was a permanent resident ("PR") alien, not a citizen, [the jury could reject the testimony of the defendant and a border patrol agent that the defendant was confused] and knew he was required to carry and produce his PR card. The jury was entitled to believe an officer's claim that the defendant clearly denied U.S. citizenship. And, the defendant had a motive to lie, since he might want to avoid the delay attendant to showing his PR card, and thus increasing the risk of discovery of the marijuana.

U.S. v. Quintana-Grijalva, 2009 WL 1652274 (6/15/09) (unpub'd) - The defendant's abandonment of his pickup was not a result of a 4th Amendment violation but was "voluntary" because the defendant never stopped in response to the border patrol activating the emergency equipment and then chasing after him. The officers could search the truck as they pleased, whether or not they had reasonable suspicion to try to stop the defendant to begin with. And, besides, they had reasonable suspicion for reasons typical for close-to-the-border stops.

U.S. v. Lasley, 2009 WL 1653871 (6/15/09) (unpub'd) - Although one of the exceptions to enforcement of an appeal waiver is the reliance on race, the racial disparities caused by the 100-1 crack-powder ratio were not grounds to invalidate the waiver. The sentence did not "rely" on race. The stupid ratio was imposed for a number of non-racial reasons. It just happens to be racist.

Bergman v. Kieffer, No. 09-1024 (6/19/09) (unpub'd) - The 10th reverses dismissal of law suit complaining that the federal prisoner paid the defendant $ 70,000 based on his misrepresentation that he was a lawyer [the defendant had been convicted of mail fraud for pretending he was a lawyer]. The d. ct. was wrong to dismiss the prisoner's complaint for failure to file a certified copy of her trust account statement. The plaintiff successfully explained to the d. ct. why she was unable to get the statement certified [the prison officials told her she didn't have to get it certified].

Allen v. Briggs, 2009 WL 1735856 (6/19/09) (unpub'd) - The pro se prisoner had not sufficiently made any arguments to warrant consideration when he told the 10th: "I'm not able to out-litigate these people, so I'm asking you to review the records."
United States v. Leifson, ___F.3d ___, 2009 WL 1758766 (10th Cir. 2009)
The COA holds that the accessory-after-the-fact perjury cross reference guideline, U.S.S.G. § 2X3.1, applied to Defendant’s conviction of perjury in front of the grand jury. The cross reference perjury guideline starts at 6 levels lower than the crime involved–in this case, second degree murder, so higher than plain perjury. The operative guideline language is “in respect to” and perjury is made “in respect to” a criminal offense when it is “related to the criminal offense in a very entwined and enmeshed way.” Defendant did not need to have been charged with second degree murder for the cross reference to apply. Defendant agreed in his plea bargain that his perjury was material to the grand jury investigation, so his argument that the perjury did not actually obstruct is to no avail.

There must be a showing that Defendant knew the grand jury investigation was for second degree murder for the cross reference to apply, and there was that showing. Defendant’s argument that the underlying cross reference crime should be kidnaping–lower than murder 2–also is to no avail. He was on notice that murder was being investigated because he was asked of the disappearance, murder and death of the girl before making his first perjured statement. It did not matter that his perjury–that he did not recall having been angry at the main suspect years earlier–was of less materiality in a murder investigation than the main suspect’s perjury that denied knowledge of what happened to the missing girl. As above, he had admitted during his guilty plea that his perjury was material.

US v. Cruz-Rodriguez, No. 07-4083, 6/24/09 - Defendant charged with illegal reentry waived his claim that the evidence and instruction impermissibly expanded the scope of the indictment, so his conviction was affirmed. The indictment specified the date of his last deportation. Defendant entered into a stipulation read to the jury that he had been deported four separate times, including the one named in the indictment. He also approved of the jury instruction that the government only had to prove that he had been previously deported. His defense was based on some kind of claim to citizenship, but the opinion does not elaborate on the factual basis for this defense.


US v. Swenson, No. 07-8097, 6/25/09 - Convictions for possession and attempted distribution of child pornography affirmed; conviction for receiving a single image reversed in light of agreement by the government that the then-existing version of 18 USC § 2252A required actual proof that the image had traveled in interstate commerce. This is another Limewire computer case in which defendant had over 2,000 photos and videos on his hard drive, some of which originated in Argentina.

US v. Ekstrum, No. 09-3039, 6/25/09 - Getting arrested three time for drunk driving (one included possession of cocaine) while on supervised release pending trial on a charge of impersonating an IRS agent justified two-year prison term, even though guidelines range was 0-6 months, and government agreed in plea agreement to recommend the low end.

US v. Reyes, No. 08-3234, 6/24/09 - Low end guidelines range sentence for possession with intent to distribute cocaine affirmed. Cop found $8,450 dollars on defendant’s person following his arrest for driving on a suspended license. He told the cop that he made the money from rap performances. Family members who came to the scene confirmed that he was a rapper, but nobody could name a performance for which he had been paid. Later, based on information from his girlfriend, cops got a warrant to search his house, where they found the cocaine and $10,300. At sentencing, the court converted all of the case into a drug quantity and calculated his guidelines range accordingly. The appeal focused on the $8,450. The 10th held that there was no plain error by the district court in failing to explain why it rejected the rapper theory, the evidence supported the finding that the cash was the proceeds of drug dealing, and the sentence was substantively reasonable.

US v. Doles, No. 08-8065, 6/24/09 - Owner of “Hip Hop Hippies” store was convicted by a jury of unlawfully selling or offering for sale drug paraphernalia, and the 10th affirmed. It held 1) no abuse of discretion in excluding evidence of prior acquittal on similar charge by state jury because this was irrelevant and improper under Rule 403; 2) no abuse of discretion in excluding testimony that defendant had told a cop that his prior counsel had advised him that his activities were legal, because the government only had to prove that defendant had knowledge that his products were likely to be used with illegal drugs; 3) admission of cop’s testimony that he heard defendant answer the phone at his store with the greeting “4-20" was okay because that’s how pot smokers identify each other, according to the cop; and 4) admission of evidence that a store employee possessed a grinder containing pot was also all right because defendant sold identical grinders, which tended to establish the knowledge element.

US v. Jackson, No. 07-2212, 6/24/09 - Conviction following jury trial for possession with intent to distribute crack affirmed. Defendant’s parole officer and cops searched the house where defendant was staying, found the crack and arrested him. Four days later, defendant’s distant relative, with whom he was very close, signed an affidavit prepared by defendant’s lawyer in which he claimed ownership of the crack. Cops interviewed the relative four months later and he eventually recanted, allegedly after they told him that they’re leaving either with him or the truth. Two months after that, the relative went back to the original story in a videotaped interview at the office of defendant’s counsel. Prior to trial, defendant filed a notice of intent to use the affidavit and videotape at trial pursuant to Rules 804(b)(3) and 807. The district court concluded that the affidavit and videotape were inadmissible hearsay and did not satisfy the requirements of either rule because defendant failed to provide sufficient corroboration of their trustworthiness and because they did not exculpate defendant. Defendant then subpoenaed relative. At the start of the trial, relative’s attorney informed the court that his client would plead the fifth. The court then placed relative under oath and made sure he understood his Fifth Amendment rights and that testifying could result in his own prosecution and punishment. Defendant objected to this procedure on the ground that it was coercive and interfered with relative’s right to decide for himself whether to testify. The court allowed relative to invoke his right not to testify.
Held: Defendant was not denied his right to present a defense. 1) The court properly allowed relative to invoke his Fifth Amendment privilege because his statements in the affidavit and videotape did not constitute waivers of that privilege and his trial testimony could definitely tend to incriminate him; 2) the government did not interfere with relative’s decision not to testify because defendant was relying on his own lawyer’s advice; 3) there was no abuse of discretion in excluding the affidavit and videotape because there was no corroboration of relative’s inculpatory statements, as required by Rule 804(b)(3), and there were insufficient guarantees of their trustworthiness, as required by 807. Plus, they did not exculpate defendant, who could still have possessed the drugs and who was also charged as an aider and abetter.

US v. Smith, No. 08-8019, 6/18/09 - Convictions for tax evasion, submitting fictitious obligations and lying in bankruptcy petition affirmed. 1) Excluding the time between the filing of pretrial motions and a brief hearing on the motions during a status conference was proper, so no speedy trial violation; and 2) no abuse of discretion in asking witnesses questions submitted by jurors because they were merely clarifying and benign questions.


US v. Jackson, No. 08-3317, 6/17/09 - Conviction for possessing shanks by a prisoner was a crime of violence for career offender purposes.

US v. Barwig, No. 08-3062, 6/17/09 - A divided panel of the 10th reverses as plain error imposition of 5-year stat max sentence for violating terms of supervised release on defendant originally convicted of making a false statement. She was originally placed on probation, but violated it. The court then gave her a term of home confinement, followed by two years of supervised release. She violated that, too but, since the court had placed her on supervised release instead of continuing her on probation, it was limited to the statutory maximum of two years under 18 USC §3583(e)(3). The court had clearly announced from the bench that it was placing her on supervised release, and that controls over a later written order in which the court stated that it had revoked and reinstated probation. Judge Murphy found the record of the second revocation hearing ambiguous as to whether the court really meant to put defendant on supervised release, concluded that the court actually intended to reinstate probation, and would have affirmed.

US v. Tom, No. 08-2175, 6/18/09 - 70 month sentence for second degree murder of newborn, where guidelines range was 168-210 months, affirmed as substantively reasonable. This is a grisly and tragic case. Defendant, who was barely 18 years old and mildly retarded, assisted his 15 year old girlfriend in cutting the throat of their baby that had literally just been born. The couple lived with the girl’s mother, who had threatened to throw them out if her daughter got pregnant. The girl had pled prior to defendant’s trial and got 44 months. This was a big part of the court’s reasoning for varying downward as much as it did. It’s pretty clear that the 10th disapproved of the sentence, but in light of Gall and the district court’s explanation of the reasons for its sentence, it felt constrained to affirm it.

Thursday, June 11, 2009

Gang Affiliation Evidence Supported Denial of Minor Role Reduction

US v. Vo, No. 08-8062 (10th Cir. June 10, 2009) (unpublished): district court did not err in denying a reduction for minor role participant where there was evidence Mr. Vo was an active member of a gang known to traffic in narcotics and where all but one of the co-defendants was also associated with the gang.

Attempted Escape Not a COV

US v. Harris, No, 08-1090 (10th Cir. June 10, 2009) (unpublished): Defendant gets a remand for resentencing in light of Chambers v. US, 129 S.Ct. 687 (2009) because the district court improperly concluded that his prior convictions for attempted escape under Colorado law were crimes of violence for USSG 4B1.2(a).

Convictions for Embezzling Emergency Tribal Funds Affirmed

US v. Oldbear, 2009 WL 1608334, No. 08-6095 (10th Cir. June 10, 2009) (published):

Court affirms the defendant's conviction on five counts of embezzling tribal funds, contrary to 18 U.S.C. 1163, and one count of making a false statement, in violation of 18 USC 1001(a)(2). Ms. Oldbear managed the tribe's emergency assistance fund, and she used money from the fund to repair her personal car and to buy another. On appeal, she asserted that the district court violated her constitutional rights when it excluded evidence from three defense witnesses who had also received tribal funds for personal purposes; that her convictions were not supported by sufficient evidence; and she was improperly cross-examined regarding another embezzlement incident and was forced to prejudicially invoke her fifth amendment rights.

Ms. Oldbear's defense was that she believed she was entitled to use the emergency assistance funds to repair her car and thus lacked the requisite mens rea for embezzlement. Her witnesses would have testified they had received funds for this purpose. The COA found the d.ct. properly found the evidence to be irrelevant and would only have shown the emergency assistance program was being managed sloppily or corruptly. Further, it would only have shown that others also improperly benefitted from the improper conduct. Finally, the exclusion of the testimony did not violate the defendant's due process rights because there was substantial evidence to support the convictions. The COA also rejected the argument that the prosecutor's questioning was prejudicial.

Tuesday, June 09, 2009

Co-Conspirator's Guns Supported 2-level Enhancement

US v. Moreira, 2009 WL 1579799 (10th Cir. 6/8/09) (unpub) - 2-level upward adjustment upheld for possession of a firearm in a meth case with a 151-month sentence. The guns in this case were possessed by a co-conspirator. It was held to be reasonably foreseeable to Mr. Moreira that his co-conspirators possessed firearms based on his participation in a large-scale drug conspiracy, the large amount of drugs found, and his personal connection to the house where the guns were found. Interesting McKay dissent on this point. He notes facts that the majority conveniently neglected to mention, like that the firearms were hidden in a false ceiling in a house Mr. Moreira had only visited once, and that he was not in the upper echelon of leadership in the conspiracy. Although the majority disclaimed reliance on a presumption that a defendant who has a non-minimal role in a large-scale drug conspiracy should reasonably foresee his co-conspirators will possess guns, McKay recognizes they implicitly rely on that very presumption.

Defendant Lacked Standing to Contest Search of Camera with Incriminating Photo

U.S. v. Moya-Breton, 2009 WL 1524900 (6/2/09) (unpub'd) - The defendant did not have standing to contest the seizure of a photo of him with a handgun and a large roll of cash, even though he told his co-conspirator to destroy it. He did not have a reasonable expectation of privacy in the searched camera that took the photo.

Denial of Rule 33 Motion Began Running of 2255 Statute of Limitations

U.S. v. Carvajal-Moreno, 2009 WL 1566799 (6/5/09) (unpub'd) - A reversal on a 2255 statute of limitations determination. The statute of limitations clock did not start until 90 days after the 10th affirmed the d. ct.'s denial of the movant's Rule 33 motion following a prior 10th remand. The mag/d. ct. had found the clock began after the 10th initially remanded to vacate the conspiracy conviction and "adjust the sentence accordingly." The remand was not so clearly ministerial that you would expect the movant to have concluded his conviction was final. The remand was open-ended and the d. ct. could have completely resentenced the defendant because the sentencing package had changed by virtue of the elimination of the conspiracy count.

Good Faith Saves Search

U.S. v. Quezada-Enriquez, 2009 WL 1565196 (6/5/09) (Published) - Another published case skipping the question whether the affidavit for search warrant established probable cause and moving on to finding the good faith exception applies. The 10th notes that, when a confidential informant ("CI") is involved, whether there is probable cause depends on the CI's veracity, reliability and basis of knowledge. These factors are evaluated as a whole to resolve the probable cause issue. In this case, the affidavit established the past reliability of the CI, that he was not working off charges and the officers corroborated matters that could be known by any member of the public. But there was nothing to show how the CI knew the defendant had a gun and no corroboration of that claim. All in all there was enough in the affidavit to show it would not have been "entirely unreasonable" for the officer to rely on the affidavit. But helpfully, the panel stresses the good faith exception "applies only narrowly and ordinarily only when an officer relies objectively on a mistake made by someone else." This might help hold off an attempt to use Herring in non-warrant situations. Curiously, the panel that very recently found good faith in another case, reported by Larry, U.S. v. Harrison (June 4, 2009), stressed the ordinariness of applying the good faith exception noting a presumption that when an officer relies on a warrant the officer does so in good faith and only "wholly unwarranted" reliance justifies suppression.

Tuesday, June 02, 2009

U.S. v. Meacham, 2009 WL 1492548 (5/29/09) (Published) - The 10th could decide whether the d. ct. abused its discretion in refusing to hold an evidentiary hearing regarding a motion for new trial based on a claim of ineffective assistance of counsel, even though ordinarily the 10th prefers to leave ineffective assistance claims to collateral proceedings. The d. ct. did not abuse its discretion because the defendant's assertion that trial counsel had refused to allow him to testify was not supported by an affidavit and was not sufficiently detailed. It was not clear how counsel prevented the defendant from testifying. An evidentiary hearing might show what happened, but making the bare conclusory allegation that counsel "refused to let" the defendant testify was insufficient to entitle the defendant to a hearing.

On the bright side, the d. ct. erred in sentencing for possession of destructive devices in 2 respects: (1) the two-level enhancement for being a prohibited person under § 2K2.1(a)(4)(B) was not warranted because the defendant's misdemeanor conviction for battery was not a misdemeanor crime of domestic violence under § 922(g)(9). The relevant Kansas battery statute allowed for a conviction based solely on "physical contact," which does not amount to the "physical force" required to constitute a § 922(g)(9) crime of violence, as held in U.S. v. Hays, 526 F.3d 678 (10th Cir. 2008). (2) The d. ct. mistakenly counted the defendant's firearms, in addition to the destructive devices, in finding there were 8 or more firearms involved under § 2K2.1(b). Firearms cannot be counted unless the defendant was prohibited from possessing them, which, as explained under (1), he was not. Most importantly, the 10th found the errors warranted reversal under the plain error standard, finding a reasonable probability the errors affected the sentence, since the sentence imposed, while a downward departure from the incorrect guideline range, was above the high end of the correct range. The likelihood of a lower sentence was enough to satisfy the third and fourth prongs of the plain error test.

U.S. v. Warren, 2009 WL 1492546 (5/29/09) (Published) - A police officer's search of a parolee's home without probable cause or a warrant was okay because the police officer acted under the direction of a parole officer [who coincidentally happened to be his wife]. The defendant was incorrect when he claimed Colorado law precluded police officers from assisting in parole searches. Troublingly, although the 10th did not rely on the doctrine, it took some time to explain the "totality of circumstances" basis for a police search of parolees, even when parole officers are not involved, given parolees' lower expectations of privacy.

U.S. v. Chavez-Quintana, 2009 WL 1396808 (5/20/09) (unpub'd) - Excellent outcome based on U.S. v. Flores-Figueroa, 129 S. Ct. 1886 (2009). The government did not present sufficient proof that the defendant knew the social security number he fraudulently used belonged to another person. That, as the government argued, it might be difficult to prove that matter, is irrelevant. It didn't do it. End of story. 18 U.S.C. § 1028A(a)(1) conviction reversed.

U.S. v. Collamore, 2009 WL 1385938 (5/19/09) (unpub'd) - The postal employee defendant did not have a reasonable expectation of privacy in his car parked in a restricted, nonpublic area of Postal Service property because the posted Postal Service policy stated that vehicles and their contents brought into the area were subject to inspection. Also, the defendant did not object to the scope of the search while it was being conducted in his presence.

U.S. v. Tapia-Cortez, 2009 WL 1385939 (5/19/09) (unpub'd) - the 10th rejects the contention that the presumption of reasonableness does not apply to a within-reentry-guideline-range sentence because the reentry guidelines are not based on empirical data and experience. Without addressing how arbitrary those guidelines are, the 10th asserts the presumption applies to promote uniformity, which interest is served no matter how irrational the particular guideline is.

U.S. v. Banuelos-Alfaro, 2009 WL 1395457 (5/20/09) (unpub'd) - The 10th suggests that to overcome the presumption of reasonableness of a guideline-range sentence, a defendant should provide empirical data to support his claim that the criminal history category overstates the seriousness of his criminal record.

Cook v. McKune, 2009 WL 1385943 (5/19/09) (unpub'd) - It was not contrary to clearly established S. Ct. law for the Kansas court to hold that a juror learning the defendant had been convicted at his first trial was not inherently prejudicial.