Thursday, July 28, 2011

Crimes of Violence, Good Faith Rule, Violation of International Law Among Topics

A few 10th Cir. cases and one S. Ct. stay denial. First, the 10th:

U.S. v. Thomas, 2011 WL 2620644 (7/5/11) (Kan.) (Published) - The 10th applies the latest ACCA S. Ct. case, Sykes v. U.S., 131 S. Ct. 2267 (2011), and holds two Kansas convictions for eluding police, one by driving around tire deflating devices or by committing five or more moving violations, and the other involving eluding capture for the commission of a felony, are crimes of violence under § 2K2.1(a)(2) and § 4B1.2(a). They are just as risky as the eluding officers by vehicle in Sykes. And the scienter requirements are similar. The Sykes statute involved knowing or intentional conduct and the Kansas statute involved willful conduct. The 10th noted that post-Sykes its prior holdings that other types of eluding officer offenses were violent felonies remain good law.

U.S. v. Soza, 2011 WL 2643901 (7/5/11) (N.M.) (7/5/11) (Published) - The 10th confirms, in light of the recent S. Ct. Davis decision, which was consistent with U.S. v. McCane, 573 F.3d 1037 (10th Cir. 2009), that the good faith exception to the exclusionary rule applies to an officer's violation of Gant in objectively reasonable reliance on 10th Circuit law that found a search of a vehicle incident to arrest is okay, even when the defendant is unable to reach anything in the vehicle.

U.S. v. Hernandez-Odilio, 2011 WL 2620997 (7/5/11) (Kan.) (unpub'd) - The defendant waived his right to appeal a sentence below the guideline range, even though the first part of the appeal waiver only referred to not being allowed to appeal a within-guideline-range sentence. The rest of the waiver indicated the defendant could only appeal a sentence above the range.

U.S. v. Grillo, 2011 WL 2631787 (7/6/11) (Wyo.) (unpub'd) - By asking for a 60-78 month sentence, the defendant waived his argument that a 78-month sentence was substantively unreasonable.

Lobozzo v. Colorado Department of Corrections, 2011 WL 2663548 (7/8/11) (Colo.) (7/8/11) (unpub'd) - Consensual sexual relations between a guard and an inmate is rape, since the inmate cannot legally consent, and is sufficiently serious to constitute a constitutional violation. But in this case, the plaintiff could not show the supervisors were responsible for the guard's misconduct.

S. Ct. news:

Garcia v. Texas, 2011 WL 2651245 (7/7/11) (per curiam) - By a 5-4 decision with the usual alignment, the S. Ct. refuses to stay the petitioner's execution, despite his, the President's and Mexico's pleas that Congress might pass legislation by January enforcing the Geneva Convention's requirement that officers notify non-U.S.-citizen arrestees of the right to consular assistance. The majority ruled the Due Process Clause does not prohibit a state from executing someone just because some day legislation might authorize a collateral attack on the judgment. The Court's job is to rule on the law as it is, not what it might be. It is unlikely that after 7 years Congress would soon actually pass the needed legislation. The Court disses the president's claim of dire consequences to international relations from denial of the stay request, saying Congress apparently does not find the consequences so dire. And, it looks like the petitioner was not prejudiced by the violation of the Convention.

Justice Breyer wrote a dissent, noting the U.S. is in irreparable breach of international law. The petitioner is entitled to the proper procedure, according to the international criminal court's ruling, whether or not the results of that procedure would lead to relief for the petitioner. The Court should take the President's word for it that Congressional legislation is a reasonable possibility. The President's view that the execution would seriously jeopardize international relations should be credited. The interest in immediate execution pales in comparison to the important interests at stake in staying the execution.