Unpublished Decisions
U.S. v. Owens, 2010 WL 3516710 (9/10/10) (Okl) (unpub'd) - The d. ct. erred when it applied the guideline range for a Grade B supervised release violation where the defendant's violation consisted only of committing a misdemeanor DWI---a Grade C violation. But the defendant could not meet the prejudice prong of the plain-error test because the court varied below the wrong range to a point within the correct range and gave a detailed explanation for choosing that sentence.
U.S. v. McMahan, 2010 WL 3446852 (9/2/10) (Okl) (unpub'd) - A deliberate ignorance instruction may be proper when knowledge of a conspiracy's fraudulent goal is at issue, even if the 2d Circuit is correct that such an instruction is inappropriate when knowing and intentional participation in the conspiracy is at issue. The defendant could only present general reputation evidence to establish his character. Rule 405(b) prohibited evidence of specific instances of the defendant refusing to accept questionable campaign contributions and not giving favorable treatment to an alleged briber.
U.S. v. Fernandez, 2010 WL 3422586 99/1/10) (Okl) (unpub'd) - The defendant was not deprived of his right to effective assistance of counsel when counsel did not file a cert petition, as the defendant requested, to take advantage of Blakely, which had been argued, but not decided yet. The defendant did not have a right to counsel on discretionary appeals. The 10th also refused to recall the mandate to allow a belated cert petition based on the attorney's failure to comply with the 10th Circuit CJA plan, saying the defendant could not prove prejudice. Seemingly as a slap to the other 2 members of the panel [Judges Ebel and Hartz], Judge O'Brien concurred, but wrote separately to provide "a more robust analysis." Judge O'Brien noted that other circuits have on occasion recalled the mandate when counsel has failed to honor a defendant's request to file for cert. But in this case the circumstances were not extraordinary enough. Counsel had not promised to file a petition, the defendant was aware of the filing deadline, he waited 7 months after the deadline to file a ยง 2255 petition and did not attach any corroborating documentation. Judge O'Brien acknowledged the defendant's argument that he might have benefited from Blakely if he stayed in the pipeline was "not without merit." But, since Blakely concerned only state guidelines, his case would have had to stay in the pipeline until Booker was decided 7 months after Blakely and 10 months after his cert deadline. That seemed unlikely, especially since the defendant had not preserved the Booker issue below.
Martinez v. Davis, 2010 WL 3330287 (8/25/10) (Colo) (unpub'd) - BOP's decision to give sentence reductions of less than a year for RDAP completion to those with sentences of 36 months or less [or, as the 10th puts it, BOP's decision to give greater reductions for those with higher sentences] is reasonable because lower reductions would likely give more of an incentive to a person with a shorter sentence than it would for someone with a higher sentence.
U.S. v. McMahan, 2010 WL 3446852 (9/2/10) (Okl) (unpub'd) - A deliberate ignorance instruction may be proper when knowledge of a conspiracy's fraudulent goal is at issue, even if the 2d Circuit is correct that such an instruction is inappropriate when knowing and intentional participation in the conspiracy is at issue. The defendant could only present general reputation evidence to establish his character. Rule 405(b) prohibited evidence of specific instances of the defendant refusing to accept questionable campaign contributions and not giving favorable treatment to an alleged briber.
U.S. v. Fernandez, 2010 WL 3422586 99/1/10) (Okl) (unpub'd) - The defendant was not deprived of his right to effective assistance of counsel when counsel did not file a cert petition, as the defendant requested, to take advantage of Blakely, which had been argued, but not decided yet. The defendant did not have a right to counsel on discretionary appeals. The 10th also refused to recall the mandate to allow a belated cert petition based on the attorney's failure to comply with the 10th Circuit CJA plan, saying the defendant could not prove prejudice. Seemingly as a slap to the other 2 members of the panel [Judges Ebel and Hartz], Judge O'Brien concurred, but wrote separately to provide "a more robust analysis." Judge O'Brien noted that other circuits have on occasion recalled the mandate when counsel has failed to honor a defendant's request to file for cert. But in this case the circumstances were not extraordinary enough. Counsel had not promised to file a petition, the defendant was aware of the filing deadline, he waited 7 months after the deadline to file a ยง 2255 petition and did not attach any corroborating documentation. Judge O'Brien acknowledged the defendant's argument that he might have benefited from Blakely if he stayed in the pipeline was "not without merit." But, since Blakely concerned only state guidelines, his case would have had to stay in the pipeline until Booker was decided 7 months after Blakely and 10 months after his cert deadline. That seemed unlikely, especially since the defendant had not preserved the Booker issue below.
Martinez v. Davis, 2010 WL 3330287 (8/25/10) (Colo) (unpub'd) - BOP's decision to give sentence reductions of less than a year for RDAP completion to those with sentences of 36 months or less [or, as the 10th puts it, BOP's decision to give greater reductions for those with higher sentences] is reasonable because lower reductions would likely give more of an incentive to a person with a shorter sentence than it would for someone with a higher sentence.
posted by Anonymous at 3:24 PM
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