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.
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.
posted by Anonymous at 6:14 PM
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