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.