Wednesday, January 27, 2010

Upward Variance for "Exceptional" Reckless Endangerment Approved

United States v. Osborne, ___ F.3d ___ , 2010 WL 277134 (10th Cir. 2010) (per curiam)
The Tenth upholds an upward departure of two levels for reckless endangerment during flight in excess of the reckless endangerment already provided for by the adjustment under the guidelines (so 2 levels up under § 3C1.2, and another 2 level departure). The Tenth determines that the district court legally erred in determining that all high-speed chases automatically deserved a departure. However, the district court finding that the circumstances of the car chase were “exceptional” and “outside the heartland”–75 mph in a 25 mph zone, four 50 mph turns through a busy Wal-Mart parking lot while being chased by numerous police vehicles–was a factual determination reviewed with substantial deference. The court did not abuse its discretion in departing.

Tuesday, January 12, 2010

Court Erred in Not Giving Requested Instruction in Civil Rights Case

Arnold v. Curtis, 2009 WL 5159766 (12/31/09) (unpub'd) - The plaintiff presented sufficient evidence to warrant an instruction that the officer seized her in violation of the 4th Amendment if he intentionally grabbed her, and threw her down the stairs in a movie theater. The error in failing to give that instruction was not harmless because, although the jury found the officer did not violate the plaintiff's substantive due process rights, the test for an excessive force 4th Amendment violation is significantly easier to meet than the due-process, shock-the-conscience test.

No Double Jeopardy Bar to Retrial After Reversal Due to Constructive Amendment of Indictment

US v. Farr, -- F.3d --, 2010 WL 60904 (10th Cir. 1/11/10) - retrial did not violate double jeopardy after initial conviction was reversed due to government's constructive amendment of the indictment. Reversal for constructive amendment does not engender double jeopardy concerns; factual findings had not been made that were tantamount to a judgment of acquittal and there had been no conclusion that the government had failed to prove an element of the offense.

Thursday, January 07, 2010

Immigration Law Primer From the Federal Judicial Center

This blog focuses on Tenth Circuit decisions and issues pertinent to lawyers specializing in federal criminal defense. However, with the dramatic increase in immigration crimes and the harsh immigration results that even an apparently minor conviction in state court can have on non-citizens, every criminal defense lawyer should also have a basic knowledge of immigration law. The Federal Judicial Center has posted a monograph on the topic. Intended to give judges an overview of immigration issues, it is called Immigration Law: A Primer, by Michael A. Scaperlanda.

The 186-page publication is described as follows: "This monograph provides an introduction to and overview of immigration law, with a focus on analyzing issues that arise in litigation. It sets out the legislative history, explains the statutory and administrative regime, and describes the substantive and procedural law relevant to federal judges, including circuit splits. Topics covered include the Real ID Act and its effect on judicial review, categories of admissibility, asylum, deportation, removal, relief, waiver, and remedies. The Primer addresses the role of the immigration judge, and explains the procedures set forth by the BIA, DHS, and DOJ. Workplace and enforcement issues are also discussed. Case law is current through the October 2008 Supreme Court term, and appellate and district court cases reported through 558 F.3d and 594 F. Supp.2d. The monograph contains sources for further reading, glossary, appendix, and table of cases."

Although a print version will be available later this month, it can be downloaded now from this page.

Wednesday, January 06, 2010

Prior Colo. Conviction for Attempted Sexual Abuse of A Minor Categorically a Crime of Violence

United States v. De La Cruz-Garcia, ___ F.3d ___ , 2010 WL 11011 (10th Cir 2010):

Colorado attempted sexual abuse of a minor is categorically a crime of violence under U.S.S.G. section 2L1.2. The Tenth Circuit rejects as strained the reentry defendant’s argument that there is a manner of violating the statute that would not be a crime of violence: when one touches him/herself directly or through clothing in the presence of a child. Assuming that the statute punishes that behavior, that behavior too is a crime of violence, because exposing a minor to such lascivious acts with knowledge of the child’s presence would be sexual abuse and harmful to the child. The COA does not address defendant’s arguments that the district court wrongly considered the acts underlying his attempted sexual abuse conviction and that it applied the wrong version of the guidelines, because the determination that the offense was categorically a crime of violence renders those other alleged sentencing errors harmless.

Saturday, January 02, 2010

Several 10th Cir. decisions, all but one published and a couple that are quite important:

U.S. v. Rivera-Oros, 2009 WL 5102789 (12/29/09) (Published) - The 10th holds that a burglary of a dwelling under the USSG § 2L1.2 definition of crime of violence [and impliedly under the career offender guidelines] includes movable dwellings. While making it clear "structures" under Taylor include more than just "buildings," which arguably must be permanent, the 10th holds the Taylor definition of structure, which excludes, for example, tents, does not limit the definition of "dwelling" in the guidelines. The question is the intent of the Sentencing Commission, not the intent of Congress, as was the question in Taylor. The Commission focused on the severity of the particular burglary and it is dangerous and psychologically harmful when someone enters a place where people are living, even if the place is movable. So, "dwelling" means "any enclosed space that is intended for use as a human habitation." Consequently, the burglary under Arizona law of a "structure movable or immovable, permanent or temporary, that is adapted for both human residence and lodging, whether occupied or not," is burglary of a dwelling under § 2L1.2. The case has one possibly helpful footnote refusing to consider as dispositive a prior 10th case regarding the same Arizona burglary statute because the parties did not dispute the aspect of the Arizona statute in dispute in this case.

U.S. v. Villa, 2009 WL 5103113 (12/29/09) (Published) - Another "consensual" encounter on the highway, this time in a patrol car. First, the 10th held it was okay for the officer to instruct the defendant to accompany him to his patrol car, even though the defendant's license and registration had come back clear. The officer hadn't completed the speeding citation paperwork and the officer had the right to try to clarify the different addresses on the defendant's license, insurance and registration. Second, after the officer returned the papers to the defendant, the defendant's encounter with the officer in the patrol car was consensual where, as she was exiting the car, the officer asked her if she would answer more questions and she agreed. There was no evidence of coercive authority, e.g. threatening tone or gun to the head. Third, the officer had reasonable suspicion to detain the defendant to wait for a drug-sniffing dog after the defendant refused to allow a search because the defendant gave "inconsistent and unusual statements." (1) she first said she was going to visit family and then later clarified it was the passenger's family they were visiting; (2) she didn't know what city she was visiting in Minnesota; (3) she said she didn't know their destination because she had just woken up; (4) she said they were driving all the way from California for a 2-day visit; and (5) she said she might leave her newly purchased car in Minnesota and fly back to California. And the defendant was nervous. And some of the passenger's statements contradicted the defendant's.

There was sufficient evidence the defendant's possession of the gun in her boot or the console of the car was in furtherance of the drug crime where (1) $ 250,000 worth of meth was found in the panel of the car [not for small-time use]; (2) the gun was kept where the defendant had immediate access; (3) the gun was loaded; and (4) the gun was kept in close proximity to the drugs, i.e., in the same car.

The 10th agreed with the majority of circuits and disagreed with the 2d Cir., holding that a sentence under § 924(c)(1) must be imposed consecutively to the underlying offense even though the sentence for the underlying offense provides for a greater minimum sentence. The defendant contended the prefatory phrase in (c)(1)(A) "Except to the extent a greater minimum sentence is otherwise provided by this subsection or other provision of law" meant only the greater minimum applied. The 10th held that phrase refers to mandatory minima called for under § (c)(1)(B), (c)(1)(C) or another penalty provision meant to punish the § 924(c)(1) offense, not the underlying offense.

U.S. v. Caldwell, 2009 WL 5103110 (12/29/09) (Published) - The government didn't present sufficient evidence to establish a tripartite conspiracy charged by the government among the defendant and Messrs. Herrera and Anderson. It was not enough that the defendant introduced Anderson to Herrera to enable Anderson to receive marijuana from Herrera and that Anderson had sold marijuana to the defendant one-year before the introduction. First, the introduction was not a continuation of the discrete prior sale of a small quantity. Rather they each used the year in between to build separate illicit businesses. Second, the friendly introduction, for which the defendant received no economic benefit, did not show the 3 acted together for mutual benefit. Does this holding help the defendant? Not much. There was a variance from the tripartite charge to two bipartite conspiracies, but it was not prejudicial because the evidence regarding the dealings between Anderson and Herrera did not affect the jury guilty verdict. The jury's quantity determination that may have been affected by that evidence was not a determination of an element that increased the maximum sentence. But, the 10th did reverse the sentence because the d. ct. considered the marijuana amount Herrera sold to Anderson, which it may not count. The 404(b) evidence of the defendant's prior drug convictions was harmless, given the overwhelming evidence of guilt.

U.S. v. Ruiz, 2009 WL 5102787 (12/29/09) (Published) - Despite the valiant efforts of our esteemed colleague Todd Hotchkiss, the 10th holds the defendant's soliciting of charitable contributions in lieu of fines that would otherwise be owed to the N.M. Insurance Department deprived the state of "honest services" in violation of the mail and wire fraud statutes. The defendant argued there could be no deprivation of honest services because what the defendant did was not in violation of N.M. law, which required that "all money received by the insurance department be paid daily to the state treasurer." The defendant pointed out none of the money was ever "received" by the department. The 10th recognized the question whether there could be deprivation of "honest services" without a state law violation is before the S. Ct. in Weyhrauch v. U.S.. The 10th bypassed that question because it believed the defendant did violate state law, although there was no state court decision interpreting the relevant statute. The 10th felt the defendant's interpretation of the statute would produce absurd results because it would allow regulated entities to buy off a regulator by putting money in the regulator's spouse's bank account and the N.M. Court of Appeals has recognized that charitable contributions unauthorized by statute could not be a lawful alternative to paying a fine. Also, the defendant was guilty of mail fraud because he could reasonably foresee the solicited companies would pay their charitable contributions through the mail. The government did not have to show the defendant had meaningful control over the companies' method of delivering the contributions.

U.S. v. Jordan, 2009 WL 5102792 (12/29/09) (Published) - The plaintiff had not established a right under the Innocence Protection Act to DNA testing. He had not shown favorable DNA test results would raise a reasonable probability he did not commit the offense. That the DNA of the person the defendant said stabbed the fellow prisoner was on the knife that was used for the stabbing would not have diminished the strong evidence that he did the stabbing, i.e., his expressed motive to get in trouble so he could be in segregation to avoid debt collectors; his curious post-arrest statements; the uncontested facts he chased after the victim after the stabbing and discarded the murder weapon; and the eyewitness testimony that he was the stabber. Plus, the jury did hear evidence that an unknown third person's DNA was on the knife.

U.S. v. Santana-Illan, 2009 WL 5103592 (12/29/09) (unpub'd) - The 10th decides in the defendant's favor an issue that is before the S. Ct.. The defendant had been convicted of a state misdemeanor drug possession after having been previously convicted of a state misdemeanor drug possession. The government argued the second conviction could have been a recidivist possession conviction that under federal law would have been a felony and so the second conviction was an aggravated felony. The 10th disagreed because the defendant was not convicted of recidivist drug possession. It would be piling a hypothetical upon a hypothetical to determine the defendant "could have been" convicted of recidivist possession. Also, adopting the government's argument would violate the categorical approach, which prohibits looking at the underlying facts, in this case, whether the defendant had been convicted before, a fact the later state court did not find. Judge O'Brien dissented on the ground that the panel should wait for the S. Ct. to decide the issue in Carachuri-Rosendo v. Holder. The majority---Judges Henry and Murphy---thought the issue should be decided because its decision would dramatically reduce the defendant's guideline range to 6 to 12 months, [probably leading to the defendant's prompt release from prison]. Interestingly for us appellate types, the 10th strikes the defendant's 28(j) letter because it was argumentative. Ouch.