U.S. v. Cudjoe, 2011 WL 904418 (3/15/11) (Okl.) (Published) - The 10th holds U.S. v. Corey, 999 F.2d 493 (10th Cir. 1993) is no longer good precedent. In Corey, the 10th held a 924(c)(1) violation was a Class D felony and so the maximum supervised release term that could be imposed for that offense was 3 years. But since then Congress made the 5 year sentence for 924(c)(1) a mandatory minimum and made the maximum life. Therefore now it is a class A felony and a 5-year supervised release term is OK. So, even though the defendant's plea agreement indicated the maximum supervised-release term was 3 years, it was OK to impose a 5-year term. Mr. Cudjoe's appeal waiver was therefore enforceable because he didn't receive an illegal sentence.
Howards v. McLaughlin, 2011 WL 856275 (3/14/11) (Colo.) (Published) - Bad 4th Amendment, but good 1st Amendment, decision. While at a shopping mall, Secret Service Agents guarding former V.P. Dick Cheney, overheard the plaintiff saying on a phone that he was going to ask Mr. Cheney how many kids he had killed that day. The agents were "disturbed" by this. The plaintiff went up to Cheney and informed Mr. Cheney his policies were "disgusting," to which Cheney cleverly and graciously responded: "Thank you." The plaintiff unfortunately then patted the V.P.'s shoulder. The agents, investigating whether the plaintiff had assaulted the V.P., later asked the plaintiff if he had touched Cheney and the plaintiff denied that he had. The plaintiff was arrested for assault. Under this scenario there was probable cause to arrest the plaintiff for lying to the agents in violation of 18 U.S.C. § 1001. It didn't matter that the agents arrested him for an entirely different offense. But under 10th Cir. law, which is actually better than some other circuits' law, the plaintiff had alleged enough to prevail on his 1st Amendment claim for retaliating against him based on his expression of political views. Lack of probable cause was not a precondition for a 1st amendment claim.
U.S. v. Tony, 2011 WL 906275 (3/17/11) (N.M.) (Published) - The § 2255 movant waived his contention that his offense was not committed in Indian Country by failing to raise it on direct appeal. While it is true that subject-matter jurisdiction cannot be waived, whether a crime is committed in Indian Country is an offense element question, not a matter of "jurisdiction." The defendant also waived his double-jeopardy argument by not raising it on appeal.
Brace v. U.S., 2011 WL 915178 (3/15/11) (Kan.) (Published) - The 10th follows its recent decision that an actually- innocent person cannot get relief on a successive petition based on a favorable interpretation of a criminal statute by the S. Ct. But the 10th adds that the defendant wouldn't be entitled to relief anyway because the S. Ct.'s decision in U.S. v. Santos, 553 U.S. 507 (2008), that "proceeds" under the money-laundering statute only refers to profits does not necessarily apply to drug sales.
Padilla-Caldera v. Holder, 2011 WL 856272 (3/14/11) (Published) - U.S. citizen wife of Mexican petitioner filed an alien relative petition for him. After the petition was approved, the couple went to Mexico, which the husband had to do at that time, so that the husband could apply for an immigrant visa. The U.S. Consulate said the petitioner was ineligible for a visa because he was inadmissible. The wife returned to the U.S. to file for a waiver of inadmissibility, But she fell ill and asked the petitioner to return to the U.S. to help her. He reentered without inspection and that eventually doomed his chances for legal residence in the U.S. An immigration provision made him permanently inadmissible because he had been in the U.S. illegally for more than a year and then left and reentered illegally. The 10th reversed a BIA decision that the petitioner was ineligible for status adjustment because there was another conflicting statute that would allow the petitioner's admission. While the petitioner's subsequent immigration proceedings were proceeding, the BIA issued an interpretation in another case that the evil statute prevailed over the conflicting kind statute due to Congress' dislike of recidivist immigration violators. So, based on that new case, the BIA again held the petitioner was not eligible for adjustment of status. The 10th holds that the intervening BIA decision, along with the Chevron deference to the BIA's interpretations of immigration law, overrode the law-of-the-case doctrine. The petitioner is out of luck.
Reyna v. Ledezma, 2011 WL 892781 (3/16/11) (Okl.) (unpub'd) - This case is not note-worthy for the decision, but for the lesson the facts teach. The BOP found the prisoner ineligible for RDAP because his revelations during his PSR interview did not indicate he had a "verifiable substance use disorder." He only admitted to occasionally drinking whiskey, smoking marijuana for 2 years and using ecstasy once.
Howards v. McLaughlin, 2011 WL 856275 (3/14/11) (Colo.) (Published) - Bad 4th Amendment, but good 1st Amendment, decision. While at a shopping mall, Secret Service Agents guarding former V.P. Dick Cheney, overheard the plaintiff saying on a phone that he was going to ask Mr. Cheney how many kids he had killed that day. The agents were "disturbed" by this. The plaintiff went up to Cheney and informed Mr. Cheney his policies were "disgusting," to which Cheney cleverly and graciously responded: "Thank you." The plaintiff unfortunately then patted the V.P.'s shoulder. The agents, investigating whether the plaintiff had assaulted the V.P., later asked the plaintiff if he had touched Cheney and the plaintiff denied that he had. The plaintiff was arrested for assault. Under this scenario there was probable cause to arrest the plaintiff for lying to the agents in violation of 18 U.S.C. § 1001. It didn't matter that the agents arrested him for an entirely different offense. But under 10th Cir. law, which is actually better than some other circuits' law, the plaintiff had alleged enough to prevail on his 1st Amendment claim for retaliating against him based on his expression of political views. Lack of probable cause was not a precondition for a 1st amendment claim.
U.S. v. Tony, 2011 WL 906275 (3/17/11) (N.M.) (Published) - The § 2255 movant waived his contention that his offense was not committed in Indian Country by failing to raise it on direct appeal. While it is true that subject-matter jurisdiction cannot be waived, whether a crime is committed in Indian Country is an offense element question, not a matter of "jurisdiction." The defendant also waived his double-jeopardy argument by not raising it on appeal.
Brace v. U.S., 2011 WL 915178 (3/15/11) (Kan.) (Published) - The 10th follows its recent decision that an actually- innocent person cannot get relief on a successive petition based on a favorable interpretation of a criminal statute by the S. Ct. But the 10th adds that the defendant wouldn't be entitled to relief anyway because the S. Ct.'s decision in U.S. v. Santos, 553 U.S. 507 (2008), that "proceeds" under the money-laundering statute only refers to profits does not necessarily apply to drug sales.
Padilla-Caldera v. Holder, 2011 WL 856272 (3/14/11) (Published) - U.S. citizen wife of Mexican petitioner filed an alien relative petition for him. After the petition was approved, the couple went to Mexico, which the husband had to do at that time, so that the husband could apply for an immigrant visa. The U.S. Consulate said the petitioner was ineligible for a visa because he was inadmissible. The wife returned to the U.S. to file for a waiver of inadmissibility, But she fell ill and asked the petitioner to return to the U.S. to help her. He reentered without inspection and that eventually doomed his chances for legal residence in the U.S. An immigration provision made him permanently inadmissible because he had been in the U.S. illegally for more than a year and then left and reentered illegally. The 10th reversed a BIA decision that the petitioner was ineligible for status adjustment because there was another conflicting statute that would allow the petitioner's admission. While the petitioner's subsequent immigration proceedings were proceeding, the BIA issued an interpretation in another case that the evil statute prevailed over the conflicting kind statute due to Congress' dislike of recidivist immigration violators. So, based on that new case, the BIA again held the petitioner was not eligible for adjustment of status. The 10th holds that the intervening BIA decision, along with the Chevron deference to the BIA's interpretations of immigration law, overrode the law-of-the-case doctrine. The petitioner is out of luck.
Reyna v. Ledezma, 2011 WL 892781 (3/16/11) (Okl.) (unpub'd) - This case is not note-worthy for the decision, but for the lesson the facts teach. The BOP found the prisoner ineligible for RDAP because his revelations during his PSR interview did not indicate he had a "verifiable substance use disorder." He only admitted to occasionally drinking whiskey, smoking marijuana for 2 years and using ecstasy once.
posted by Anonymous at 3:59 PM
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