Wednesday, August 31, 2011

Several 10th Circuit cases, including two very important ones, one of which contains potentially horrible news for those with juvenile drug adjudications.

U.S. v. Hernandez, 2011 WL 3673042 (8/23/11) (Wyo.) (Published) - The 10th addresses the issue of the revolving-door supervised release revocations under the "except that" clause of § 3583(e)(3). The 10th holds that clause imposes no restriction on how much prison time in the aggregate a d. ct. can impose on a defendant for multiple revocations. The words "any such revocation" in § 3583(e)(3) means the maximum applies anew to each new revocation, without regard to how much time the defendant has spent in prison already on prior revocations. The 10th rejected the defendant's argument that only revocations with respect to underlying sex offenses could not be aggregated. [The defendant argued that Congress added the "any such revocation" language when passing the PROTECT Act, which was primarily aimed at deterring child sexual abuse]. The 10th carefully notes it's not deciding whether certain language before the "except that" clause might require aggregation, i.e., the d.ct. may "require the defendant to serve in prison all or part of the supervised release term authorized by statute." The 10th also noted it was not deciding whether the reference in the "except that" clause to the "offense that resulted in a term of supervised release" might refer to the offense resulting in the prior revocation, not the underlying offense that started the whole deal, in which case, the maximum prison sentence would be one year.
Most importantly, the 10th does find an ultimate limit to the amount of prison time a defendant can receive. Under § 3583(h), a d. ct. can only impose an amount of supervised release that is the amount of authorized supervised release for the original offense minus the imprisonment term imposed. The 10th says the "imprisonment term imposed" under (h) is aggregated. So, at some point, the aggregate prison time would exceed the authorized supervised release term. The d. ct. could no longer impose a supervised release term that could be revoked.
In a footnote, the 10th rejects the defendant's classic lack-of-explanation argument based on the classic plain-error rationale that the defendant did not show the sentence would have been lower if the d. ct. explained it.

U.S. v. Coleman, 2011 WL 3773341 (8/26/11) (Okl.) (Published) - An ACCA case with very scary possible implications for felon possessors of firearms with juvenile drug adjudications and maybe those with adult N.M. second degree felony drug convictions. In this case, the defendant was initially adjudicated as qualifying under Oklahoma's Youthful Offender Act ("YOA"). He received the maximum 10 year sentence under the YOA. After he escaped, the judge converted the sentence to an adult conviction and committed him to an adult correctional facility. The defendant argued his maximum sentence was less than 10 years because he was sentenced to an adult facility for 10 years minus the time he'd already spent in juvenile facilities. But the 10th says the relevant statute is not the YOA, but the state drug act. The ACCA's 10 year-max "serious drug offense" requirement focuses on the "maximum punishment for any defendant charged with that crime, not the characteristics of a particular offender." Here the max in Oklahoma for a drug act offense is life. That's the relevant max. "The ACCA does not exclude drug trafficking convictions simply because they are committed by a juvenile." Yikes!!!

Rojem v. Workman, 2011 WL 3673100 (8/23/11) (Okl.) (Published) - The 10th did not have jurisdiction to consider the capital habeas petitioner's appeal of the d. ct.'s refusal to disburse funds to investigate the validity of the guilt determination. An order about the amount of CJA payments is not appealable on an interlocutory basis. The appeal does not concern a complete denial of counsel, which was appealable in Harbison v. Bell, 129 S. Ct. 1481 (2009).

U.S. v. Gilmore, 2011 WL 3677854 (8/23/11) (Kan.) (unpub'd) - The 10th notes, without resolving the matter, that the question whether sharing drugs constitutes distribution is unresolved in the 10th case law.

Ali v. Dinwiddie, 2011 WL 3792377 (8/26/11) (Okl.) (unpub'd) - The 10th reverses a grant of summary judgment for a prison guard where the prisoner alleged the guard punched and kicked him after he was handcuffed and not resisting. The plaintiff alleged enough for an excessive-force claim, i.e., that more than de minimis force was applied maliciously and sadistically. The d. ct. wrongly discredited the plaintiff's complaints.

Biodiversity Conservation Alliance v. BLM, 2011 WL 3734199 (8/25/11) (Wyo.) (unpub'd) - The d. ct. abused its discretion when it extended the time for the plaintiff to appeal where the attorney did not receive the electronic notice of the appealed order until a day after the entry of the order. Counsel simply misunderstood the law about when the deadline was. That's not "excusable neglect" so as to justify an extension.

U.S. v. Tucker, 2011 WL 3677886 (8/23/11) (Utah) (unpub'd) - The defendant had no recourse to get money back from the government where he contended the government had wrongly given the money to the bank victim of his robbery. The government couldn't return the money because the government no longer had it.

Kirby v. Attorney General for the State of New Mexico, No. 11-2082 (8/22/11) (N.M.) (unpub'd) - The defendant hired the "victim" to design a website for his business, but then did not pay the designer for his work. The designer changed the password to prevent the defendant from using the designs until the defendant paid up. But in turn the defendant had the web space provider reset the password thereby blocking the "victim's" blocking attempt. The 10th holds a person of reasonable intelligence would understand that the designer has an ownership interest in the website on which his designed pages are displayed and therefore the fraud statute was not unconstitutionally vague as applied to the defendant. There was sufficient evidence of the "victim's" ownership of the website, even though the "victim" testified the defendant was the owner. The defendant's complaints that he was convicted based on promises that future events would take place was based on state law that is not a proper subject of federal habeas.

Tuesday, August 09, 2011

Several Tenth Circuit Cases

U.S. v. Prince, 2011 WL 3373788 (8/5/11) (Kan.) (Published) - Some creative lawyering bites the dust. It is not a violation of equal protection under Batson or the right to have a jury selected from a fair cross-section of the community for the government to exclude by peremptory challenge every person who favored legalization of marijuana in a marijuana manufacturing case. Political or ideological beliefs are different from immutable characteristics like race, ethnicity or gender. Death penalty cases involving jurors' beliefs only apply to the capital context. The fair-cross-section right only applies to venires, not peremptory strikes, and only to distinctive groups, not groups with only shared beliefs. A defendant charged with making a false statement on a firearm application under § 924(a)(1)(A) does not have to know the application is to be kept in the records of a licensed person. The 10th distinguished Flores-Figueroa, in which the S. Ct. said the word "knowingly" applied to all the parts of the sentence, on the grounds that the records part of the sentence in § 924(a)(10(A) was only a "jurisdictional hook." It does not bear on the nefariousness of the conduct. Refraining from imposing a knowledge requirement will not create a danger of criminalizing otherwise innocent conduct. Knowingly giving a false address when filling out ATF forms violates § 924(a)(1)(A). There was sufficient evidence from neighbors, documents and defendant's statements that the defendant lived at a different address than the one he provided that was on his driver's license,where he apparently never lived. There was also sufficient evidence that the defendant was personally involved in marijuana growing in the basement of his home. There was a smell and evidence of the marijuana enterprise strewn throughout the house and the jury could compare his handwriting to handwriting on books detailing the operation. The 10th rejected the argument that it would have been stupid for the defendant to keep growing marijuana because he knew ahead of time that officers were coming over to check on his firearms.

U.S. v. Fraser, 2011 WL 3276238 (8/2/11) (Wyo.) (Published) - Yet another affirmance of a refusal to allow the jury to consider a necessity defense in a felon-in-possession case. First, the 10th questions whether a necessity defense is ever authorized to justify a felon's possession of a firearm, given the lack of a mention of that defense in § 922(g)(1) and the controversial nature of that defense in the common law. And maybe it's not even necessary given the availability of self-defense and defense-of-another defenses. After going on that tangent, the 10th holds that, even if there is such a defense, it was not available in this case because the defendant had plenty of time to call the police about the threat the shooting victim had made to him. Before the shooting, the defendant engaged in a number of errands. Before a necessity defense may be considered, the defendant must first try to seek the police's help. It doesn't matter that the defendant mistrusted the police. He had to give them a chance to protect him. The d. ct. adequately considered the § 3553(a) factors, although it did not mention § 3553(a), and adequately explained that it departed under § 5K2.21 [uncharged conduct] because the defendant was involved in cocaine trafficking for 4 years. The d. ct. did not rely on the defendant's killing of the threatener, as the defendant claimed.

Rimbert v. Eli Lilly & Co., 2011 WL 3328543 (8/3/11) (N.M.) (Published) - Yes, I did notice this is a civil non-habeas case. But it clarifies the standard a d. ct. may follow in ruling on a motion for reconsideration, which motions we come across or file occasionally. The law of the case does not apply before a d. ct.'s entry of a final judgment. So, no showing of new evidence, intervening authority or manifest injustice is required for a d. ct. to change its mind or a new judge to overturn a previously-assigned judge's ruling. In this case, it was okay for a new judge, to reverse the prior judge's ruling allowing the testimony of an expert witness.

U.S. v. Jones, 2011 WL 3329565 (8/3/11) (Okl.) (unpub'd) - A word to the wise regarding when a defendant allocutes at a drug sentencing. It was okay to vary upward for a number of reasons, including the defendant's failure to apologize to the people to whom he sold crack. He only apologized to his family and the court.

U.S. v. Nghiem, 2011 WL 3330076 (8/3/11) (Kan.) (unpub'd) - A presumption of reasonableness applies to a sentence within the child porn guideline range, even if the child porn guidelines are not empirically based. Guidelines can properly follow Congressional policy. The d. ct. erred when it considered that the defendant had violated a pretrial release condition not to use a computer, when in fact he was allowed to use a computer while on pretrial release. But no reversal because the defendant did not meet his plain error burden to show the sentence was increased because of the error. The d. ct. had rejected the 11(c)(1)(C) plea to a lower sentence long before the perceived violation and sentenced at the bottom of the guideline range. Perhaps if the sentence was at the high end, the defendant might have met his burden.

Contrearas-Bocanegra v. Holder, 2011 WL 3332469 (8/2/11) (Published) - The 10th grants rehearing en banc on issues relating to whether an alien can pursue a motion to reopen after he's been physically removed from the U.S. The panel decision was unfavorable to the alien

Monday, August 08, 2011

A Fine Distinction

Caveness v. Roberts, 2011 WL 3018785 (7/25/11) (Kan.) (unpub'd) - In the context of a habeas ineffective assistance claim for not filing a motion to suppress, the 10th found an officer did not deny the petitioner his right to counsel during custodial interrogation where the detective said: "it would look better in front of the jury if you answer my questions" without an attorney. This declaration was significantly different than saying the jury would use it against him if he asked for counsel. The Constitution only prevents a jury from drawing a negative inference from the defendant's exercise of his Fifth Amendment right. It does not bar a jury from drawing a positive inference from a decision to waive that right. You understand that distinction, don't you?

2241 Challenge Rejected as Moot

Rhodes v. Judiscak, 2011 WL 3134731 (7/27/11) (N.M.) (Published) - The prisoner's § 2241 challenge to BOP's calculation of his sentence was moot because he was now on supervised release. That a successful challenge might bolster an eventual request for shortening his supervised release under § 3583(e)(1) was not enough to avoid mootness because the d. ct. had no power to shorten supervised release now through § 2241. The d. ct. would only be giving an advisory opinion.

Loss Calculation in Fraud Case Not Affected by Turning Assets over to Government

U.S. v. Merriman, 2011 WL 3134656 (7/27/11) (Col.) (Published) - The defendant's turning in of millions of dollars worth of assets to the government at the time the defendant turned himself in for offenses the government didn't previously know about did not warrant subtraction of the value of the assets from the loss calculation. To be subtracted, USSG § 2B1.1 requires that the refunds be made to the victim, not the government, and before detection, not at the time of detection. And the d. ct. did not clearly err in finding the defendant had abused his position of trust under USSG § 3B1.3 where he had authority to make investments on behalf of investors with complete discretion to invest however he wanted. The lack of transparency significantly contributed to the defendant's ability to avoid detection. The position of trust did not have to be the only contributor to the fraud.

10th Adds to Defendant's Plain Error Burden When Challenging Priors on Appeal

U.S. v. Castellano-Barba, 2011 WL 3184203 (7/27/11) (Col.) (Published) - The 10th adds to its prior decision to clarify how it justifies requiring defendants to show plain error in categorizing prior convictions. The 10th notes it may take judicial notice of publicly filed records. So, a defendant arguing plain error should submit public documents proving her/his contention. This requirement does not violate the rule that the government has the burden to prove enhancements because the defendant has the burden to prove her/his position when alleging plain error on appeal. In this case, the defendant did not proffer any record showing that his California conviction was for transportation of marijuana for personal use rather than drug trafficking. So the defendant gets a 16-level bump.

Uncounseled Tribal Court Convictions Resulting in Jail Time Can Be Basis for Later Enhancements

U.S. v. Shavanaux, 2011 WL 3087015 (7/26/11) (Utah) (Published) - Tribal court convictions resulting in jail time, obtained in the absence of appointed counsel for an indigent defendant, can be predicate convictions for a domestic assault conviction under 18 U.S.C. § 117(a), or for any other enhanced punishment for that matter. The convictions were not unconstitutional because neither the Sixth Amendment nor the Due Process Clause applies to tribal courts. As long as the proceedings comply with the Indian Civil Rights Act by allowing representation by counsel at the defendant's expense, the resulting convictions are copacetic. This follows from the notion that tribes are independent sovereigns. The fact that convictions from foreign countries can constitutionally be used as predicate offenses if they are fundamentally fair supports the use of tribal convictions to enhance sentences. The deprivation of appointed counsel does not render proceedings fundamentally unfair. This decision is at odds with 9th Circuit precedent. There is also no equal protection problem. The singling out of Indians for prosecution on the basis of uncounseled convictions is a political, not a racial, distinction. The defendant chose to associate himself with the tribe. The 10th reverses the d. ct.'s dismissal of the indictment.

10th Refuses to Apply S.Ct. ACCA Decisions in GL Context

U.S. v. Reyes-Alfonso, 2011 WL 3134683 (7/27/11) (N.M.) (Published) - The 10th holds that a prior Colorado conviction for sexual contact-no consent was for a "forcible sex offense" under § 2L1.2's definition of "crime of violence." The 10th had already made that ruling in U.S. v. Romero-Hernandez, 505 F.3d 1082 (10th Cir. 2007). But, undaunted, the defense argued later S. Ct. decisions in Begay and Johnson called for a reinterpretation of what is a "forcible sex offense." But the 10th found Begay inapposite because it dealt with the ACCA, which listed different offenses than does § 2L1.2's definition of "crime of violence." And Johnson defined "physical force" in the ACCA, which has nothing to do with sex crimes and "physical force" is not a part of the definition of "forcible sex offense." No physical force is required to constitute a "forcible sex offense," especially in light of later defining amendments to § 2L1.2's application notes. The d. ct. adequately explained its within-guideline-range sentence by saying the bottom of the range was sufficient but not greater than necessary to meet the § 3553(a) requirements, despite the defendant's complaint that the guidelines double-counted his prior conviction. The 46-month sentence was substantively reasonable, given the defendant's 5 uncounted convictions and the fact he reentered only 5 days after his deportation.

Upward Variance OK; Ex Post Facto and Due Process Arguments Rejected

U.S. v. Waseta, 2011 WL 3071541 (7/26/11) (N.M.) (Published) - The 10th finds no ex-post-facto-due-process problem with an upward variance under Booker for a pre-Booker offense. The defendant's 46-month sentence for sexual abuse of a minor between 12 and 16, where the guideline range was 15 to 21 months, was not higher than the defendant might realistically have imagined he might receive at the time of the crime, even though Judge Vazquez found a departure, as opposed to a variance, was not warranted. What matters to the 10th is not what a particular sentencing court did after the crime. What matters is the notice of what sentence might be imposed at the time of the crime. At that time, the defendant could not have predicted he would get an acceptance of responsibility reduction, but he could have felt he could receive upward departures for underrepresentation of criminal history, uncharged conduct, extreme psychological injury or extreme conduct, all departures due to alleged repeated sexual abuse of the victim over an 11 year-period. It did not matter that the state of the record may not have supported the departures or apparently that the d. ct. did not expressly find repeated abuse. It was enough that the "universe of facts," even contested ones, would have been realistically imaginable to the defendant [by imagining all the acts the victim might falsely accuse him of?]. To make matters worse, the 10th indicates a defendant could waive an argument distinguishing precedent if the argument was only made in the reply brief, because the government wouldn't have had a chance to respond to the distinction. In other words, an appellant may have to respond in the opening brief to every argument s/he thinks the appellee might raise in the answer brief. And it was not enough to trigger the district court's duty to make a finding of fact regarding repeated sexual abuse of the victim when the defendant made a general unspecified objection to suggested grounds for an upward variance.

Upward Variance Reversed as Procedurally Unreasonable!

U.S. v. Lente, 2011 WL 3211506 (7/29/11) (N.M.) (Published) - Reversal of an upward variance on procedural unreasonableness grounds. Judge Matheson wrote the opinion, joined by Judges Holloway and Gorsuch (!!!). The principle the 10th announced that applies to other cases is that a d. ct. must address all of a defendant's nonfrivolous arguments when imposing an upward variance. In this case, the d. ct. erred when it did not address the defendant's argument, supported by sentencing data and case examples, that the government's proposed sentence of 18 years for 3 involuntary manslaughters and an assault resulting from a DWI accident created unwarranted disparities with sentences of similar offenses and offenders. The d. ct. also was wrong not to address the mitigating circumstances surrounding the DWI, including that the defendant's mother asked her to drive an obnoxious guy home. The disparity error was not harmless because the d. ct.'s consideration of the argument might have convinced the court to impose a sentence different than 16 years [where the range was 46-57 months], and the d. ct.'s lack of explanation prevented meaningful appellate review.. The court concluded: "The need to avoid unwarranted disparities is a critical sentencing factor. Equal justice is a core goal of our system. When justification of a sentence is not forthcoming, the credibility of the sentence suffers." The 10th made it clear it was not making a judgment as to whether the sentence was too high.

On the bad news side, the 10th found it was okay for the d. ct. to take judicial notice of the supposedly well-traveled nature of the road the defendant drove on in determining she was extremely reckless. The defendant received enough notice of that ground for variance because a hearing was held on the subject. The 10th attempted to clarify the difference between procedural and substantive challenges. Procedural challenges focus on the sentencing methods and substantive challenges focus on the d. ct.'s consideration of § 3553(a) factors and the sufficiency of justifications for the sentence. The 10th recharacterized as substantive some of the arguments the defendant labeled as procedural. The 10th did not consider the substantive-reasonableness arguments. The defendant's complaints about using her BAC and lack of license to show extreme recklessness really attacked the weight the d. ct. gave to those factors. The defendant's contention that the d. ct. did not give a persuasive reason for disagreeing with the policy of the guidelines was a substantive argument as well. The 10th found the defendant was really making a substantive complaint that the d. ct. did not give enough weight to her terrible upbringing and amenability to treatment.. Otherwise, the d. ct. did address those issues in a procedurally reasonable way.

Tuesday, August 02, 2011

Vague or Speculative Claims Insufficient to Warrant Duress Instructions in Drug Case

US v. Beckstrom, No. 10-4108 (UT), 7/28/11 - District court’s refusal to permit duress defense to possession with intent to distribute fifty grams or more of meth affirmed, despite defendant’s claim that he would be killed by unnamed persons with connections to Mexican drug cartels if he did not go along, because defendant had ample opportunity to notify law enforcement authorities of his situation. Vague or speculative claim that notifying the cops would be unavailing or ineffective won’t cut it.

Plus, mandatory sentence of life imprisonment was properly imposed because defendant’s two prior drug-related convictions arose from “separate criminal episodes.” One was a state conviction for possession of dangerous drugs for sale, and the other was a federal continuing criminal enterprise conviction based in part on the state conviction. Since defendant could have ceased his drug-related activity after being arrested in the state case, but chose not to, the CCE conviction, which requires at least three predicate offenses, was sufficiently distinct from the state case to warrant treating it as a separate episode.