U.S. v. Garcia, 2011 WL 1125777 (3/28/11) (N.M.) (Published) - The 10th affirms a conviction and sentence for straw purchase of a firearm. The d. ct. did not abuse its discretion when it admitted the testimony of an ATF agent as an expert describing what a straw buyer was and explaining that Mexican gun laws are much more restrictive than the NRA-dominated laws of this country, making the U.S. a source country for certain kinds of firearms. The agent provided a context for the government's evidence that the average juror might not know about and explained the defendant's possible profit motive and connected the defendant's MO [buying guns from multiple stores using multiple IDs] to her reasons for doing so. And the evidence didn't violate 403. Any conjuring of images of Mexican drug cartels was also connected to other evidence in the case. The d. ct. did not clearly err in applying the firearms-trafficking enhancement under § 2K2.1(b)(5). The government presented sufficient evidence the defendant knew or had reason to believe the purchases would result in the transfer of the guns to a person who would dispose of them unlawfully, given evidence she bought the types of weapons preferred by Mexican cartels in significant quantities and some of the guns she bought were found in Mexico in the possession of the Zetas cartel.
U.S. v. Rausch, 2011 WL 1137004 (3/30/11) (Colo.) (Published) - The 10th clarified that plain error review applies to claims of an unobjected-to deprivation of the right to allocution. It might not have been "plain" that the right to allocution applies to revocation proceedings because the circuits differ on that point. In any event, the allocution deprivation did not meet the 4th prong of the plain error test. Even though the 10th has said such a deprivation is prejudicial per se, it did not seriously affect the fairness, integrity or public reputation of the proceedings because at previous revocation proceedings the d. ct. had warned the defendant what sentence he would receive if he screwed up again and the defendant got to speak at the prior proceedings. And, besides, the defendant didn't explain what he would have said if he had allocuted. It was substantively reasonable to impose a 2-year sentence above the 3-9 months guideline range because the court had previously repeatedly exercised leniency and the defendant disregarded that. The 10th refused on plain error review to consider whether the life supervised release term was higher than the maximum sentence of life minus two years, given the uncertainty of how long the defendant would live. § 3583(h) requires the subtraction of the term of imprisonment from the maximum length of supervised release authorized.
U.S. v. Wilgus, 2011 WL 1126059 (3/29/11) (Utah) (Published) - The eagle feather regulatory scheme is the least restrictive method to serve the government's interests in protecting bald and golden eagles and preserving the culture and religion of federally-recognized Indian tribes. So, the defendant's conviction for possessing bald eagle feathers did not violate RFRA. The option of broadening eagle-feather permit eligibility to all sincere adherents of Native American religion would increase the number of applications to the feather repository, increasing the already long waiting time for tribal members, and would cause enforcement problems. The option of allowing tribal members to give feathers to non-members who practice a Native American religion would cause the same problems.
U.S. v. Jimenez-Valenia, 2011 WL 1137020 (3/30/11) (Utah) (unpublished) - The defendant was not coercively prevented from withdrawing his consent to search his car where he was asked to stand 100 feet away, but assured he could call out to the officer at any time.
U.S. v. Markham, 2011 WL 1206788 (4/1/11) (Kan.) (unpublished) - The 10th agrees the defendant's bipolar disorder could support a downward variance, but the d. ct. did not abuse its discretion when it didn't grant one.
U.S. v. Roberts, 2011 WL 1134309 (3/29/11) (Kan.) (unpublished) - In determining whether a defendant's prior acts are admissible under 404(b), the remoteness factor concerns only the time the defendant was not incarcerated. So in this case, although the defendant's conduct occurred 9 years before, the 10th treated the conduct as though it happened 3 years ago, since the defendant spent 6 years in prison in between. The defendant's previous possession of a gun in his front pocket was admissible to show he knowingly possessed a gun in his front pocket on the night of his arrest, and its admission was not too prejudicial. It was okay to admit a photo of the defendant even though he may have been giving a gang sign in the photo. When defense counsel said counsel was concerned about the gang-sign, the d.c t. responded: "I bet you are." This sarcasm did not constitute a recognition of the danger of undue prejudice. It was also okay for the d. ct. to deny a post-trial motion to test the gun for DNA. Even finding another person's DNA on the gun would not establish a reasonable probability of the defendant's innocence where 2 officers claimed to have seen the defendant throw the gun into a dumpster.
Licon v. Ledezma, 2011 WL 1137056 (3/30/11) (Okl.) (unpublished) - The BOP's rule that a prisoner convicted of being a felon in possession of a firearm is not eligible for a sentence reduction through participation in the RDAP complies with the Administrative Procedures Act. It is not arbitrary and capricious because it serves a public safety purpose and, looking at the entire history of the BOP's development of the rule shows the BOP sufficiently set forth that rationale to justify the rule. The 10th disagreed with the 9th and agreed with every other circuit addressing the question.
Parkhurst v. Lampert, No. 10-8078 (3/30/11) (Wyo.) (unpublished) - It was okay for the Wyoming prisons to prohibit the inmate from sending his newsletters, which summarized cases, in one package to another prison. If there is no individual addressee and mail is distributed to a general audience, there is the "potential to exacerbate tensions and cause disruptive conduct." In other words, similar to the reaction to our updates
Frazier v. Ortiz, 2011 WL 1110648 (3/28/11) (Colo.) (unpublished) - The 10th is unpersuaded by the prisoner's contention that the district court erred in denying relief, despite the prisoner presenting "some of the best work the plaintiff feels he's done in nearly six years of litigation."
