Tuesday, November 01, 2011

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.