Unpublished Decisions

U.S. v. Olvera-Rivera, 2011 Wl 550086 (2/16/11) (Kan.) (unpub'd) - It was okay to enhance under § 2D1.1(b)(1) for possession of a firearm during the drug offense where the firearm was brought by the drug customer of the defendant. It was reasonably foreseeable that a drug customer would arrive at a scheduled transaction armed with a gun.

U.S. v. Parker, 2011 WL 573448 (2/18/11) (Colo.) (unpub'd) - Upward variance from 20 to 30 years was okay where the d. ct. thought it aggravating that the defendant had a loving and supportive family, but turned to drugs, and her crime was "particularly repugnant." While working as a nurse in a hospital, the defendant, knowing she had hepatitis C, removed from operating room carts syringes containing Fenatnyl [which is a controlled substance that is a lot more powerful than morphine], refilled the syringes with saline and then returned the syringes to the carts. 17 patients developed a strain of hepatitis C linked to the defendant and at least one patient awoke mid-surgery in severe pain.

U.S. v. Vasquez, 2011 WL 490526 (2/14/11) (Kan.) (unpub'd) - The 10th affirms a pre-sentencing detention order for a defendant subject to a reinstated removal order. While the defendant offered scenarios where he could possibly be released from ICE custody, he did not meet his burden to show by clear and convincing evidence that he was not likely to flee.

U.S. v. Lasley, 2011 WL 489786 (2/14/11) (Kan.) (unpub'd) - A search behind the defendant's genitals was within the "full search of the person" allowed as incident to an arrest.

Titsworth v. Mullin, 2011 WL 489775 (2/14/11) (unpub'd) - No federal habeas relief for the state prisoner even though the state gave him less good time credits than it should have, based on a conviction that had been vacated. The prisoner filed his petition too late---more than a year after he learned he was not receiving enhanced credits due to his vacated conviction. The 10th in its inimitable underplayed fashion says: "the record before us suggests the Oklahoma Corrections Department and state courts may have been insufficiently attentive to the prisoner's arguments. . . . But our sympathy for his circumstances cannot trump positive law."

Sperry v. Werholtz, 2011 WL 489826 (2/14/11) (unpub'd) - It was okay for the Kansas corrections department to prohibit inmates' possession of sexually explicit material because the prison authorities might reasonably have thought the policy would advance its interests in security, rehabilitation of sex offenders and preventing sexual harassment.

Officers May Not Demand ID Absent Reasonable Suspicion of Other Criminal Conduct;

Romero v. Schum, 2011 WL 505144 (2/15/11) (N.M.) (unpub'd) - The 10th reverses a ruling that a state police officer was entitled to qualified immunity. It was clearly established law that an officer cannot demand a person disclose his identity [and arrest him if he doesn't do so] absent reasonable suspicion that the person was engaged or had engaged in criminal conduct. It was not enough justification that the person might be a witness to a crime. If the officer was not authorized to arrest the plaintiff for concealing his identity due to a lack of reasonable suspicion of an underlying crime, then the arrest was unconstitutional, regardless of whether there was probable cause for the concealing-identity offense itself. The 10th remanded for the d. ct. to decide in the first instance whether there was reasonable suspicion.

Tenth Restricts Conditions That Can Be Placed On Supervised Release Conditions

U.S. v. Mike, 2011 WL 538867 (2/17/11) (Published) - Some important restrictions placed on supervised release conditions in sex offender and other cases. First, the 10th shoots down a ripeness argument. Supervised release terms are directly appealable even though they are subject to later modification. A d. ct. may not delegate to the probation officer the decision whether to require a defendant to do anything that affects a significant liberty interest, such as in this case inpatient treatment or undergoing penile plethysmographic testing or taking psychotropic drugs. And any such imposition by the d. ct. must be supported by particularized findings. Also, the d. ct. erred when it failed to make the required occupational-restriction findings to justify prohibiting the defendant from having a job with access to children, requiring him to notify potential employers or educational programs of his criminal convictions and possibly restricting the defendant's use of the computers of the defendant's employer. The condition requiring avoiding direct and indirect contact with minors should be read to exclude chance or incidental encounters with children. On the other hand, it was okay for the d. ct. to impose computer monitoring conditions based on a general sex-offender rationale, even though the defendant was not convicted of a sex offense and had no history of using computers abusively. The results of previous psychological evaluations were problematic, The defendant had committed a particularly gruesome sex offense in 1997. He had not complied with sex offender registration requirements and there is "a prevalence of content on the internet that appeals to individuals prone to committing sexual offenses." The 10th did not have to vacate a condition the defendant challenged just because the government did not address the challenge in its answer brief. Given a split in the circuits, any error in prohibiting the possession of sexually explicit material was not plain. The 10th interpreted the prohibition not to include his PSR and any writings that are part of his treatment.

U.S. v. Torrez-Chavez, 2011 WL 465489 (2/10/11) (N.M.) (unpub'd) - While acknowledging a few unpublished decisions presumed a below-guideline-range sentence to be reasonable, this particular panel suggests such a sentence would not be entitled to that presumption. In any event, the fact that a sentence is below the guideline range is strong evidence the d. ct. carefully considered the § 3553(a) factors. The 45-month reentry sentence---25 months below the range---was reasonable.

U.S. v. Hartley, 2011 WL 441700 (2/9/11) (Wyo.) (unpub'd) - An upward variance from 30-37 months to 48 months for being a felon in possession of a firearm was reasonable because the defendant was serving 3 separate probations at the time of the offense. § 4A1.1(d)'s points for being under a criminal justice sentence only accounted for one of the probations.

U.S. v. Guerrero-Sanchez, 2011 WL 465851 (2/10/11) (Kan.) (unpub'd) - The 10th finds a traffic stop and search that lasted 3 hours before the officers found something to be consistent with the 4th Amendment. Reasonable suspicion then consent to search and then probable cause to search kept the detention lawful.

Titsworth v. Mullen, 2011 WL 379322 (2/7/11) (Okl.) (unpub'd) - Even though the habeas petitioner presented evidence calling into "serious" question the use of all five of his prior convictions as prior felonies, he cannot overturn his conviction that was based on those priors because, under the actual innocence standard, he did not carry his burden to prove more likely than not that no reasonable juror would have convicted him.

U.S. v. Burke, 2011 WL 310520 (2/2/11) (Kan.) (Published) - The 10th puts a premium on careful pleading in the district court re: suppression motions. As the more specific rule, Rule 12(e)'s waiver rule prevails over Rule 52's plain error provision. So, failure to make a particular argument for suppression amounts to a waiver, precluding plain-error review of the argument, absent the "rare" good cause for not raising the issue below. The 10th acknowledges it has sent mixed messages by reviewing some suppression issues for plain error, but Rule 12(e) was meant to protect the government. In a footnote the 10th notes all the active 10th judges have signed on to the holding. In this case, the defendant had waived the argument that the search warrant affidavit lacked sufficient detail. The 10th does concede in a footnote that the affidavit in this case was unnecessarily vague, e.g. it referred to "child porn" without specifically describing what that meant. The 10th did address the particularity of the warrant. The warrant was sufficiently particular in that it limited the computer search to material related to child porn. Again, the 10th does say "the government can do better," as far as specificity goes.

The factual recitation in the plea agreement that there were 155 child porn images did not prohibit the government from presenting evidence that there were more images than that. There was no explicit stipulation to the number of images. The defendant waived in the plea agreement the right to challenge his sentence.

U.S. v. Mitchell, 2011 WL 322371 (2/3/11) (Utah) (Published) - Another scary tool for the government. A defendant can waive his rights under Rule 410 that preclude the use of a withdrawn guilty plea and statements made during plea negotiations, so as to allow the government to introduce that evidence in the case-in-chief. The 10th saw no good reason why the S. Ct.'s decision in U.S. v. Mezzanatto, 513 U.S. 196 (1995), which allowed a Rule 410 waiver for impeachment, should not also apply to presentation in the case-in-chief. The Rule 410 waiver in this case was knowing and voluntary, even though the court had allowed the withdrawal of the plea because counsel had exerted "undue influence." Counsel telling the defendant he would be a "fool" to reject the plea offer and asking the defendant's brother to convince the defendant to take the plea did not make the plea involuntary.

U.S. v. Michael, 2011 WL 338421 (2/4/11) (N.M.) (unpub'd) - Bad faith destruction of marijuana did not entitle the defendant to dismissal of the charges. Judge Armijo indicated the DEA agent acted in bad faith when he destroyed the marijuana after learning from the AUSA that there was a pending motion to preserve the evidence. The court's preclusion of any evidence of the odor of the marijuana found in the truck the defendant was driving cured any possible prejudice from preventing an odor expert from testifying the marijuana could not have exuded an odor noticeable to the defendant. Any affirmative use of the odor analysis to demonstrate the defendant's lack of knowledge is "purely speculative." The d. ct.'s mere statement that it was overruling the objection to a perjury obstruction-of-justice enhancement constituted a sufficient finding to justify that enhancement because of the PSR's findings and the arguments made by the parties to the d. ct. The 10th admonishes that it would be better practice to make specific findings.

U.S. v. Medlin, 2011 WL 304583 (2/1/11) (Okl.) (unpub'd) - While holding the instructions as a whole adequately communicated the presumption-of-innocence principle the 10th does say the court should instruct the jury the presumption remains with the accused during the jury's deliberations and is extinguished only when the jury finds the defendant guilty beyond a reasonable doubt.

Reyes v. Central New Mexico College, 2011 WL 286361 (1/31/11) (unpub'd) - It was reasonable to temporarily detain the plaintiff where an argument in the financial aid office became contentious and almost escalated to a physical altercation.

U.S. v. Morrison, 2011 WL 286365 (1/31/11) (Kan.) (unpub'd) - Just an example of how bad these waivers can get. By waiving the right to file a § 2255, the defendant waived his right to claim it was ineffective assistance ("IA') for counsel not to present any evidence at sentencing. Counsel told the defendant counsel was not prepared to present evidence. The IA claim did not go to the validity of the waiver itself, only to post-waiver sentencing.

Marshall v. Milyard, 2011 WL 285563 (1/31/11) (Colo.) (unpub'd) - The 10th became troubled that the same assistant AG argued in one case to defeat a habeas claim that the loss of earned-time-credit eligibility cannot be brought in a habeas proceeding and then argued in this case that the § 1983 plaintiff could not raise an earned-time-credit eligibility claim because it's an issue that could be raised in habeas. The 10th sent the case back to d. ct. to clarify the AG's position.

Harris v. Wands, 2011 WL 30482 (2/1/11) (Colo.) (unpub'd) - The 10th rejects the prisoner's argument that, under civil commercial law, his criminal judgment is a warehouse receipt and his acceptance of that negotiable instrument gave him control of his body and entitled him to release.

US v. Madrid, 2011 WL 455766, No. 09-2262 (NM), 2-10-11 - The issue was how the government can challenge the district court's extension of time in which to file a notice of appeal. Defendant counsel filed motion to extend time to file notice of appeal after time had already run. The motion alleged only that counsel had not done a federal criminal appeal in a long time and thought he had thirty days, and stated the government opposed it. The district court granted the motion before the government's time to file a response had expired. The government did not move in the district court to reconsider, but rather field a motion to dismiss in the 10th.

The motion was granted. 1) counsel's mistake as to time limit was not excusable neglect warranting granting an extension of time; 2) once the district court granted the extension, it no longer had jurisdiction, so even if the government had moved to reconsider, the court was powerless to do so; and 3) government was not required to file a cross appeal to raise the issue, since it was not asking for additional relief beyond what it had already received (defendant's conviction and sentence).

It should also be noted that the government will still have to deal with the merits at some point, because counsel's failure to timely file an appeal pursuant to his client's wishes is an automatic slam-dunk 2255, and the remedy is -- the notice of appeal gets filed. So, what an utter waste of judicial resources.

US v. McBride, -- F.3d --, 2011 WL 489681 (10th Cir. 2/14/11) (Kansas) - a rebuttable presumption of reasonableness is accorded to a sentence imposed upon revocation of supervised release when it is within the range suggested by USSC policy statements. The district court imposed a sentence of 12 months, rather than 12 months and one day, which Mr. McBride requested so that he could earn good-time credit. The COA concludes the defendant failed to overcome the presumption of reasonableness by showing that the sentence imposed was outside the range of reasonableness. Mr. McBride's procedural reasonableness arguments fare no better. Underlying factual disputes were not brought to the district court's attention and did not amount to plain error where there had been no showing that the sentence would probably be different on remand.

US v. Perez, 2011 WL 304565, Docket No. 10-3063 (10th Cir. 2/1/11) (unpublished): A defense victory for the defendant charged with illegal possession of a sawed-off shotgun. The Tenth affirms the district court's suppression of a bullet found in the defendant's pocket. The district court held that the bullet was retrieved after the officer exceeded the permissible bounds of a protective frisk, and that without the bullet, the officer lacked probable cause to search the defendant's car, in which the shotgun was found

US v. Begay, -- F.3d --, 2011 WL 359355 (10th Cir. 2011) (NM) - The COA upholds the post-release modification of Mr. Begay's supervised release conditions to include polygraph testing. Mr. Begay was a convicted sex offender who was released to a halfway house after serving a 196-month sentence. Although he had not violated any of his conditions and there were no changed circumstances, the COA holds the district court had authority to grant the USPO request to add a polygraph testing condition. The COA pronounced itself "somewhat skeptical of the usefulness of polygraph testing as a supervision tool," and noted "significant reliability problems with polygraph testing," but concluded the district court had not abused its discretion by ordering it.

A few 10th Circuit cases, including a defense victory in a published case!

U.S. v. Goodman, 2011 WL 258282 (1/28/11) (Okl.) (Published) - Where PTSD insanity was the defense, the d. ct. reversibly erred when it limited the testimony of lay witnesses to their observations immediately before the robberies and precluded lay opinions on the defendant's sanity. The defendant preserved his claims because he laid out what the witnesses would testify about and the d. ct. ruled unequivocally pretrial. Lay witnesses have broad latitude in insanity trials. The proffered evidence was not too stale where the oldest evidence was 3 years old and all were part of a continuous pattern. The exclusion of that evidence was not harmless, since it compromised the defendant's ability to persuade the jury and affected counsel's defense strategy. And no evidence rules preclude lay opinion, as opposed to expert opinion, about a defendant's mental state. The d. ct. still had discretion to decide if the lay opinions had sufficient foundation or were violative of Rule 403. The error was not harmless because it might have affected defense strategy. On the other hand, it was okay for the government to ask its expert a hypothetical question as to whether the defendant's actions during the robbery were consistent with someone having PTSD. That did not call for an opinion on the ultimate issue of the defendant's mental state, although it was the next-to-last step in the process.

Olivan-Duenas v. Holder, 2011 WL 223804 (1/26/11) (unpub'd) - The BIA did not arbitrarily interpret 8 U.S.C. § 1182(h), which allows an alien to adjust status to an LPR when a prior conviction "relates to simple possession of marijuana." The BIA decided possession of marijuana within a drug-free zone was more than simple possession and therefore the alien's conviction for that offense disqualified him from adjusting his status. It was reasonable to conclude the location of the crime is a sufficiently aggravating feature. And perhaps giving us insight into how the 10th thinks about our clients, it says it was not inconsistent for the BIA to interpret the term "relates to" narrowly in this context, but broadly when it makes more offenses aggravated felonies. The BIA is just consistently treating criminality as a presumptive disqualifier.

Wright v. Arellano, 2011 WL 223736 (1/26/11) (Colo.) (unpub'd) - The state reasonably decided the trial court was not under a duty to investigate the defendant's competence when in response to questions regarding his right to testify, the defendant said: "I've been sitting in this trial; I don't know what's going on. . . . I really don't know what point in time this is. . . . we can just move forward without me testifying, I guess. And just whatever y'all have to do, do it."

U.S. v. Lopez, 2011 WL 208426 (1/25/11) (Colo.) (unpub'd) - It was not structural error that one of the written jury instructions said the government had to prove the defendant's guilt beyond a reasonable "double." The Court read to the jury "doubt", not "double," and there were other instructions that said "doubt."

U.S. v. Gonzalez, 2011 WL261756 (1/28/11) (N.M.) (unpub'd) - The 10th affirms a sentence following an Anders brief without the defendant getting notice of counsel's wish to withdraw. The 10th says it tried to contact the defendant, but the Inmate Locator Internet site kept saying the defendant was in transit and the court's letters were returned as undeliverable when they were sent to the address counsel gave the 10th.