Thursday, February 24, 2011

Unpublished Decisions

U.S. v. Olvera-Rivera, 2011 Wl 550086 (2/16/11) (Kan.) (unpub'd) - It was okay to enhance under ยง 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.