Brown v. Montoya, 2011 WL 5346064 (11/8/11) (N.M.) (Published) - It is a clearly established violation of procedural due process for a probation officer to wrongly direct a probationer to register as a sex offender and wrongly place him in the sex offender probation unit without a hearing and without proper notice. Due process is implicated where there is "stigma plus"---damage to reputation plus an alteration in legal status. In this case, there was stigma and either the requirement to register or the additional restrictions of being in a sex offender probation unit triggers due process protections. Here the probation officer claimed the plaintiff was subject to sex offender treatment under New Mexico law because he was convicted of false imprisonment of a minor. But there was absolutely no evidence that a minor was the victim of the plaintiff's offense. And the plaintiff adequately alleged the officer's state of mind as intentional and in reckless disregard of the plaintiff's constitutional rights. The 10th also held the plaintiff did not sufficiently allege that Joe Williams, the secretary of the department of corrections, was individually responsible for a policy that caused the due process violations.

Reedy v. Werholz, 2011 WL 5433798 (11/10/11) (Kan.) (Published) - The 10th finds there can be no legitimate penological interest in the prison forcing inmates who have life sentences without parole to keep 10% of funds received in a savings account so that the prisoner has funds when s/he is released. There is a valid interest for inmates who will be released some day. Unfortunately, while some of the non-lifers of the class action exhausted their administrative remedies, none of the lifers did. So everyone's out of luck.

U.S. v. Santos-Santos, 2011 WL 5433730 (11/10/11) (Colo.) (unpub'd) - California's assault with a dangerous weapon offense is a "crime of violence" under § 2L1.2. The mens rea is sufficient to have as an element the use of force, where a California S. Ct. decision described the mens rea as being aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. The decision went on to explain the intent was a general intent, which the 10th interpreted to mean it was not a lesser mens rea of recklessness. The 10th stressed the acts that constitute the assault must be intentional. Battery would be the "natural but unfulfilled" consequence of the acts.

U.S. v. Salazar, 2011 WL 5383928 (11/9/11) (Kan.) (unpub'd) - The 10th finds the d. ct. did consider the defendant's leniency arguments, even though the d. ct. said: "You know there are so many things I would have considered had he not absconded. I might have considered other things. But once he broke his promise to me, I would never consider a downward variance under those circumstances."

Exhaustion Req't May Be Excused for Prisoner Who Fears Retaliation

Tucker v. Grover, 2011 WL 5346038, No. 10-1353 (Tenth Cir. Nov. 8, 2011) (published): state inmate filed a 1983 lawsuit against prison officials, claiming he was beaten in retaliation for complaining. The district court granted summary judgment on the grounds the plaintiff failed to exhaust administrative remedies. The COA reversed. A plaintiff with an objectively reasonable fear of retaliation from prison officials may show that administrative remedies were unavailable to him and thereby be excused from the exhaustion requirement. Because there were disputed issues of fact, the cause was reversed and remanded.

Failed Attempt to Withdraw Guilty Plea Results in Serious Sentence Enhancement

US v. Armendariz-Soto, 2011 WL 5346068 , No. 10-3307 (10th Cir. November 8, 2011) (published): Tenth holds that the district court does not need to allow a defendant to withdraw his guilty plea when the defendant's alleged basis for withdrawal is a lie. The defendant had pled guilty to various gun and drug charges. He wanted to withdraw his plea of guilty and claimed his attorney promised him a 15-year sentence. Main problem was that, in the colloquy, he repeatedly said no specific sentence was promised to him and when he tried to claim his attorney had told him to just say "yes" to all the questions, his attorney swore to the contrary. End result: the court found the defendant not credible, enhanced him for obstruction, denied him acceptance, and sentenced him to the low end of the 420-life guideline range. The COA found no reason to find that the district court's findings were erroneous, and further refused to find that the sentence was either procedurally or substantively unreasonable. This is a good case to show your client who may want to withdraw a guilty plea for no good reason.

Former ClearOne Exec's Perjury Conviction Affirmed

US v. Strohm, 2011 WL 5346069 , No. 10-4101 (10th Cir. November 8, 2011) (published): former executive of ClearOne Communications appealed her conviction for perjury. Conviction affirmed. She had been asked if she was involved in a particular sale by ClearOne that was the focus of an SEC investigation. She said she was not and approximated that she learned of the sale before or after the end of the company's fiscal year. The Court found that the questions were not ambiguous, there was sufficient evidence that she knowingly made the false statements, and the testimony was material because it involved a transaction that the SEC believed demonstrated the company's irregular accounting.

Tenth Circuit 2012 Calendar

The Tenth Circuit's 2012 calendar and oral argument sessions are available here.

Fee Schedule Changes Effective November 1st, 2011

The Tenth Circuit has announced changes to the miscellaneous fee schedule. An announcement states:

At its September 2011 session, the Judicial Conference of the United States approved changes to the miscellaneous fee schedule for the Courts of Appeal. These changes will take effect on November 1st, 2011, and will apply to all transactions occurring on or after that date. The new fees will be as follows:
Item Amount
Record Search $30.00
Certification $11.00
Copy of Audio Recording $30.00
Record Reproduction (by the clerk's office) $83.00
Record Retrieval Fee $53.00
Returned Check Fee $53.00
Attorney Admission Fee
(please note, however, that the total admission fee for the 10th Circuit Bar will remain $200--the increase noted here is to the national portion of the fee--at this time the 10th Circuit will not increase the total fee) $176.00
Certificate of Good Standing $18.00

Koch v. City of Dell City, 2011 WL 5176164 (11/2/11) (Okl.) (Published) - The 10th affirms granting qualified immunity to an officer, while raising some interesting questions regarding a detainee's right to refuse to answer questions. Ultimately, the 10th rules it was not clearly established the plaintiff had a right to refuse to answer the officer's questions while detained during a Terry stop. The officer's encounter with the plaintiff became an investigative detention where the officer went to the plaintiff's home to check on the welfare of an elderly woman pursuant to a court "pick-up" order, engaged the plaintiff to check on the woman and to try to determine the woman's whereabouts. It was not clear that the plaintiff had a right to refuse to answer the officer's questions regarding the woman's whereabouts under the 4th, 1st or 5th amendments, once she was validly stopped pursuant to Terry. Maybe the 4th might allow a requirement to answer questions on other topics in addition to identity. There might not be a 1st amendment right not to speak during a Terry stop. While the officer may have made it impossible for the plaintiff to invoke her right to remain silent under the 5th, the 5th right may only be a trial right. So, here, a reasonable officer could believe the plaintiff was withholding information she was lawfully required to convey regarding the woman's whereabouts. Consequently there was probable cause to arrest the plaintiff for obstructing an officer when she refused to reveal the woman's location. The plaintiff's superficial abrasions and numbness in her wrist and forearm were de minimis injuries that did not qualify her for relief due to the manner she got handcuffed.
On the good news side, the officer did not have probable cause to arrest for obstruction based on the plaintiff telling the officer to get off her property and that he should talk to her attorney. The officer had no way of knowing the attorney was ignorant of the missing woman's whereabouts.

Milligan v. Archuleta, 2011 WL 5148966 (11/1/11) (Col.) (Published) - The d. ct. erred in dismissing the plaintiff prisoner's retaliation claim. While the termination of his employment did not trigger due process protection, it could still constitute a First Amendment violation if the prisoner lost his job in retaliation for filing a grievance. And the d. ct. erred in not allowing the plaintiff to amend his petition to show his classification as an escape risk lacked a rational relationship to a legitimate penological interest.

U.S. v. Molina-Chavez, 2011 WL 5248226 (11/4/11) (Okl.) (unpub'd) - The rule of lenity does not apply to the construction of an order of supervised release. The N.M. order that both prohibited the defendant from reentering the U.S. and required him to remain within the N.M. district did not constitute a "prior authorization" to reenter the U.S. It was not "express consent" required by 8 U.S.C. § 1326(a)(2).

U.S. v. Lehi, 2011 WL 5222885 (11/3/11) (Col.) (unpub'd) - Spitting constitutes "physical contact" under § 111(a) that raises a simple assault on a federal officer to a felony. Spitting on a person is an offensive touching that is not a de minimis form of physical contact. This might be good news for somebody when the government tries to use a § 111(a) offense as a predicate crime of violence.

U.S. v. Sussman, 2011 WL 5148967 (11/1/11) (Col.) (unpub'd) - A challenge to the government's usual delay prosecuting supervised release violations until the defendant completely serves his state sentence goes by the wayside. The fact that the federal detainer caused worsening of the defendant's conditions in the state facility did not trigger due process protections. Fed. R. Crim. P. 32.1's requirement to take an alleged supervised release violator promptly to a magistrate judge did not apply until the defendant was in federal custody. He was not in "technical" federal custody when the detainer was filed.

Hooper v. Workman, 2011 WL 5148969 (11/1/11) (Okl.) (unpub'd) - The 10th keeps the Okl. death train rolling. The 10th refuses to overturn a finding that the petitioner was competent when he waived his right to challenge his death sentence. At the time of the waiver, he was depressed, but not taking any medications. After he started taking antidepressants, he decided he wanted to challenge his sentence. Too late. His prior waiver was perfectly valid. Just because he changed his mind after meds doesn't mean he was incompetent without the meds.

U.S. v. Kort, 2011 WL 5310586 (10th Cir. 11/7/11) (OK)(unpub.) - district court did not impermissibly determine that Mr. Kort was entitled only to a four-level reduction for his substantial assistance, as the government' recommended, and did not err in concluding that the government was in the best position to judge the level of reduction warranted.

Sentencing Court May Consider Disparity with Fast-Track Districts in Reentry Cases

U.S. v. Lopez-Macias, -- F.3d --, 2011 WL 5310622 (10th Cir. 11/7/11) (CO) - The district court has discretion to vary in sentencing for immigration offenses in non-fast-track districts based on fast-track sentencing disparity. The defendant must initially demonstrate entitlement to a variance in light of how defendants convicted of similar offenses are sentenced in fast-track districts.

Companion RICO Cases Address Jury Instruction Issues

US v. Knight, 2011 WL 5148802 (10th Cir. Nov. 1, 2011) (published): Applying plain error standard, Tenth Circuit rejects challenge to jury instructions in racketeering case involving a conspiracy to sell illegal drugs by Crips members. The district court had relied on H.J. Inc. v. Northwestern Bell Telephone Co., 492 US 229 250 (1989), in defining the "relatedness" element of racketeering. The Tenth finds no plain error because no there is no single test for determining whether predicate RICO acts are related and where the law is unsettled, the decision to instruct one way or another is not plain. Nonetheless, "the more prudent course for district courts is to continue to adhere" to the pattern instructions. The COA also rejected the argument that the district court committed plain error by not submitting an instruction on constructive possession, where the defendant had not requested such an instruction.

US v. Randall, 2011 WL 5148862 (10th Cir. 2011) (published): a companion case to US v. Knight. Mr. Randall was charged with one count of conspiracy to commit a RICO violation, based on drug activity by Crips members. He sought to have the district court present an instruction on withdrawal from the conspiracy. Such an instruction was not warranted based on evidence that Mr. Randall had once told a prison official that he was no longer part of a gang. The "vague statement" -- which did not even include information about which gang or what illegal activity might be involved -- did not "rise to the level required for withdrawing from a conspiracy." "Insofar as we can infer, this barebones statement is nothing more than the run of the mill statement that prisoners often make to prison officials to convince them that they no longer present a threat to society and so should get a break. That is not enough." Alternatively, Mr. Randall might have told other gang members he had withdrawn, but there was no evidence that he had done so. As a cautionary note, the Court observed in a footnote that it could have denied this issue based solely on the grounds that Mr. Randall did not include the jury instruction he appealed in the record.
Additionally, the district court did not commit plain error by failing to instruct the jury that it had to be unanimous as to the specific predicate acts that supported the RICO charge. The Court joined those circuits that have held that "or a charge of RICO conspiracy, a jury need only be unanimous as to the types of predicate racketeering acts that the defendant agreed to commit, not to the specific predicate acts themselves."

A few 10th Circuit cases, a S. Ct. habeas decision and review of some of the new guideline amendments effective today.

First, the 10th:

U.S. v. Villalobos-Varela, 2011 WL 5110247 (10/28/11) (N.M.) (unpub'd) - The 10th once again concludes that Colorado menacing is a crime of violence under § 2L1.2. It doesn't matter that Colorado menacing does not require the victim to be aware of the threat to her/his safety. A victim need not perceive a threat for the defendant's offense to have as an element the threatened use of physical force.

U.S. v. Ragland, 2011 WL 5041913 (10/25/11) (Kan.) (unpub'd) - While the d. ct. could have granted a variance based on the fraud guidelines' irrational obsession with the amount of loss, the 10th will not find a sentence substantively unreasonable based on policy objections to a guideline.

U.S. v. Rodriguez-Padilla, 2011 WL 5041917 (10/25/11) (Utah) (unpub'd) - To receive a mitigating role adjustment, a defendant must be substantially less culpable in comparison with both other participants in the specific criminal activity and the average participant in general. The d. ct. did not clearly err when it refused to award such an adjustment. The defendant's offense level was determined solely on the amount of drugs he personally transported. Tthe longer history of large drug trafficking by his co-conspirators did not require finding him to be a minor participant.

U.S. v. Garcia, 2011 WL 5027544 (10/24/11) (Okl.) (unpub'd) - It was okay for the government to introduce at a hearing on its appeal of a magistrate judge's release order, pursuant to 18 U.S.C. § 3145, evidence it could have, but didn't, present at the initial detention hearing. The 10th distinguishes this case from cases where a defendant was not allowed to present that kind of evidence where the defendants sought to reopen detention hearings pursuant to § 3142(f).

Miller v. Arbogast, 2011 WL 5042516 (10/25/11) (N.M.) (unpub'd) - In a civil rights case involving the infamous 1999 murder of Girly Hossencofft, the 10th affirms summary judgment dismissal of a malicious prosecution claim. There was probable cause to arrest based on a co-participant telling her cellmate the plaintiff was '"with us" and did most of the work in killing the victim. The plaintiff's alibi evidence was not comprehensive enough to render the co-participant's statement incredible. Just because another witness lied once doesn't mean all of his statements are not believable for probable-cause purposes. The failure of the grand jury to indict does not vitiate probable cause because, among other reasons, the plaintiff was arrested after new post-grand-jury evidence came to light.

U.S. v. Dewitt, 2011 WL 5041919 (10/25/11) (Okl.) (unpub'd) - The defendant did not qualify for the sporting purposes exception under § 2K2.1(b)(2) because she possessed the gun while hunting illegally. She was "headlighting," hunting from a motorized vehicle and hunting out-of-season.

Thompson v. Milyard, 2011 WL 5036009 (10/24/11) (Col.) (unpub'd) - The petitioner cannot get habeas relief because he can't fit his new evidence into a constitutional claim where post-trial he learned by using new DNA techniques that the blood found in the van he used was not that of the victim, contrary to what the state had argued at trial.

S. Ct. case:

Cavazos v. Smith, 2011 WL 5118826 (10/31/11) - In a 6-3 vote, another per curiam reversal of a 9th Cir. habeas grant. It was not unreasonable for the California courts to find sufficient evidence to convict a grandmother of assaulting and killing her grandson. The S. Ct. was peeved at the 9th for repeatedly granting relief after two prior remands in light of new S. Ct. habeas cases. The 9th chose to believe the defense experts that the baby's death was not caused by being shaken and to discredit the state's experts' opposite opinions. But by doing so the 9th was usurping the jury's role. The 9th found troubling the lack of evidence of a brain tear. But the S. Ct. said there was evidence in the brain to indicate shaken baby syndrome ("SBS") and reasons why the experts didn't find a tear. Justice Ginsburg, joined by Justices Breyer and Sotomayor, wrote a very interesting dissent. Justice Ginsburg does not say the petitioner was entitled to relief. Rather, she says the S. Ct. should never have considered the merits because its decision only serves to prolong the petitioner's suffering for no good reason. The S. Ct. usually doesn't grant cert just to correct a fact-bound error, the petitioner has been free for the last five years and will now have to return to prison for at least another five years, the petitioner had no motive to hurt the baby [i.e., the baby wasn't crying], she had never hurt the baby before, the other kids in the room didn't hear her do anything, new post-trial information on SBS shows the state's experts were wrong and the petitioner's attorney did a terrible job. So, it's unfair to reverse. It was particular unfair to do so without according the petitioner a chance to brief the issues. The majority's response is that her remedy is a political one: to obtain clemency from the governor. On the bright side, we have another case to cite on behalf of granting cert with respect to a fact-bound issue.

Guideline Amendments:

In addition to reducing 16 level offenses to 12 levels and 12 level-offenses to 8 levels - if the prior conviction does not count for criminal history purposes - the new § 2L1.2 also suggests departures if the offense level overstates or understates the seriousness of the prior. It gives as an example of a downward departure a 16-level offense that is not an aggravated felony. It gives as an example of an upward departure a prior simple possession offense that involved a quantity of drugs inconsistent with personal use.

§ 5D1.1(c) now discourages giving supervised release terms to those who will be deported. Plus the minimum supervised release terms have been reduced to 2 years for Class A and B felonies and to 2 years for Class C and D felonies.

Defendants convicted of wilfully failing to pay child support do not get the 2-level bump for violating a court order. § 2J1.1, n. 2.

The Commission struck from § 3B1.2 some unhelpful language. § 3B1.2 no longer says the d. ct. can't award a role reduction solely based on the defendant's "bare assertion." And the note that the adjustment for minimal participant should be used infrequently was also eliminated.

§ 2K2.1, n. 15 encourages departures for straw firearm purchasers who were motivated by fear or a family relationship.

The interim FSA amendments are now permanent and in addition all minimal participants are capped at a 32 offense level.

Phillips v. Addison, 2011 WL 5068099, No. 11-5100 (10-26-11 10th Cir.)(unpublished): equitable tolling of limitations period for filing a federal habeas petition is not justified where attorney made a simple, negligent mistake in calculating the filing deadline

US v. Corley, 2011 WL 5068106 , No. 11-7013 (10th Cir. 10-26-11) (unpublished): a 50-month sentence imposed following revocation of supervised release, which was 4 months above the maximum guidelines range, was substantively reasonable. The supervised release revocation was based on allegations that Mr. Corley possessed meth and a gun. One of the witnesses lied about her meth use. The judge dismissed the gun charge because it was based solely on her testimony and she was not credible, but revoked Mr. Corley based on the drug possession charge. On appeal, the Tenth Circuit affirmed. The sentencing court did not rely on the witness's testimony because it dismissed the gun charge, which was based solely on her testimony, and the meth charge was supported by other evidence. The guidelines allowed for an upward enhancement where the underlying sentence had been based on a downward variance, as this one was.

U.S. v. Marrufo, 2011 WL 4925883 (10/16/11) (N.M.) (Published) - The 10th holds that the defendant's possession of a firearm "facilitated" the felony offense of tampering with evidence when the defendant hid that very same firearm to avoid detection of his crime of possessing the firearm. The defendant's hiding of the firearm was made easier by his possession of the firearm. So therefore he possessed a firearm in connection with another felony offense, resulting in a four level enhancement under § 2K2.1(b)(6). The defendant's firearm possession was not an accident or coincidence. There was no requirement that the felony offense be a separate, active offense and, even if there were, the tampering was a separate offense. It didn't matter that the defendant did not intend to facilitate a separate crime. § 2K2.1(b)(6) has no intent requirement.

U.S. v. Chavez, 2011 WL 4925884 (10/18/11) (N.M.) (Published) - The officer had reasonable suspicion to stop the defendant driving a Cadillac in a Wal-Mart parking lot where an anonymous caller told dispatchers he was a Wal-Mart employee at a specific Wal-Mart store and he saw a "disturbance" involving a Cadillac and a pickup and the driver of the Cadillac was "potentially intoxicated." When an officer came to the parking lot, someone pointed to the Cadillac and pickup. The tip was reliable enough because the tipster did provide enough information to learn his identity, he witnessed the events and gave a detailed description and an explanation for why he was calling and the officer verified some of the information when he saw the described vehicles in the lot. The 20-minute stop was not too long because after 9 minutes the officer had probable cause to arrest the defendant, even though the officer didn't execute an arrest at that time. There was probable cause that the defendant was guilty of DWI because his eyes were bloodshot and watery, an alcohol odor "emanated" from the defendant, the defendant admitted having a couple of beers and the officer was certain the defendant was intoxicated after giving the defendant sobriety tests. The § 4B1.2 commentary which says attempts of controlled substance offenses are "controlled substance offenses" was a proper exercise of the Sentencing Commission's broad authority under 28 U.S.C. § 994(a), even if the requirement of close-to-maximum sentences for career offenders under § 994(h) did not cover attempts.

U.S. v. McGuire, 2011 WL 4925781 (10/18/11) (Okl.) (unpub'd) - The d. ct. did not abuse its discretion when it upwardly varied from 327 months to 500 months for a kidnapping, based on the facts that the defendant sexually assaulted a 10-year-old 3 times during the kidnapping. This was okay even though the guidelines provided for sexual-exploitation and minor-victim enhancements. The 10th expressed reluctance to "recalibrate" review depending on a sentencing court's lack of experience with respect to a particular offense. The 10th determined the defendant had not shown what was the typical kidnapping case that received the average kidnapping sentence. The 10th also found unconvincing letters from supporters who held the defendant in high esteem at the same time that he was kidnapping. The letters did not show the defendant had reformed but rather that he led a double life.

U.S. v. Mata-Rodriguez, 2011 WL 5009858 (10/21/11) (Kan.) (unpub'd) - To be guilty of maintaining a residence for the purpose of drug distribution it is not necessary that drug distribution be the sole purpose for the residence. It need only be one of the primary purposes. There was sufficient evidence the defendant possessed the methamphetamine that was found in the police car he was transported in. That no drugs were found during a pat-down and the initial search of the car could be attributed to "sloppy" police work.

U.S. v. Dozal, 2011 WL 4959207 (10/19/11) (Kan.) (unpub'd) - A plea-agreement waiver of the right to collaterally attack the judgment includes a waiver of a claim that counsel was ineffective because counsel failed to file a motion to suppress before deciding to advise accepting the plea agreement.

KC v. Holder, 2011 WL 4925859 (10/18/11) (unpub'd) - The BIA abused its discretion when it found the Maoists in Nepal extorted her for financial gain, rather than for political reasons, despite the Immigration Judge crediting her explanation that the Maoists extorted her because she belonged to the Congress Party.

Cordova-Soto v. Holder, 2011 WL 4908351 (10/17/11) (unpub'd) - The alien's prior order of removal may be reinstated under 8 U.S.C. § 1231(a)(5), which allows such a procedure where an alien has "reeentered the U.S. illegally" after being removed, even though the alien reentered in a procedurally regular way. The alien was stopped at the border and was asked for her ID. She pretended to look for it and the inspector dealt with the other car passengers and then waved the car through. This reentry was illegal under § 1326(a) and therefore "illegal" under § 1231(a)(5).

Flores v. U.S. A.G., 2011 WL 4908363 (10/17/11) (Colo.) (unpub'd) - The 10th dismisses some alarming allegations. In this case, white federal employees were alleged to have used advanced technology from an outer space satellite to detect the genetic code of Mexican-Americans in El Paso and caused them severe pain and organ failure.