U.S. v. Antonio-Agusta, 2012 WL 718872 (3/7/12) (Col.) (Published) - Another modified categorical approach case, this time in the § 2L1.2 context. In this case, the indictment charged a crime of violence---Arizona aggravated assault with a knife---but the defendant pleaded to an amended indictment. Under Arizona law, a charging document is reliable evidence of the elements of a prior conviction only if it is incorporated by reference in the judgment. Here the judgment said the defendant was convicted of "Counts 1-3 Amended Aggravated Assault." The judgment incorporated the indictment by referring to "Counts" and the word "amended" referred to the plea agreement, which indicated the indictment was amended to delete the allegation of dangerousness, which would have subjected the defendant to an enhancement under state law. The 10th insists the offense itself was not amended, only the dangerousness allegation. So the defendant was convicted of a crime of violence.
U.S. v. Haymond, 2012 WL 698376 (3/6/12) (Okl.) (Published) - There was sufficient evidence the defendant knew of and controlled the child porn images in an unallocated space on his computer. The jury could reasonably conclude from the evidence that he exclusively used Lime Wire to search for and download child porn images. The jury could disbelieve the defendant's claims that he inadvertently downloaded porn from LimeWire while trying to obtain music, especially when he admitted to being addicted to child porn. Downloading from LimeWire does not occur automatically, but instead requires the user to highlight file names and to press "enter." These facts distinguish this case from U.S. v. Dobss, 629 F.3d 1199 (10th Cir. 2011), where the images were found in an internet cache that could have been automatically downloaded from a website. There was also sufficient evidence the defendant knew the ages of the children in the images because he used search terms associated with child porn. And there was sufficient evidence the images were from out-of-state because the photos were part of a series originally taken in Florida, not Oklahoma. The information in the search warrant affidavit was not too stale when it was 107 days old, because child porn images are likely to be hoarded. Any error in admitting expert testimony of a pediatrician about the ages of the children in the photos was harmless where an agent testified he talked to the children and their parents and the jury could tell themselves from the images that the children, who were 12 to 14 , were not 18.
Mwangi v. Terry, 2012 WL 718955 (3/7/12) (N.M.) (unpub'd) - The 10th holds a d. ct. has no jurisdiction to review the AG's discretionary decision to deny bond or set a too-high bond for a detainee awaiting a BIA decision as to his removability. The circumstances are different than in Zadvydas v. Davis, 533 U.S. 678 (2001), where the alien was detained indefinitely after a final order of removal and removal was no longer reasonably foreseeable.
U.S. v. Hunter, 2012 WL 718860 (3/7/12) (Col.) (unpub'd) - The 10th applies plain error review to sentencing issues. In this case, the transcript indicates the district court announced it sentence and then declared a recess without soliciting comments from counsel. The 10th notes the record isn't clear whether the court paused before declaring a recess. But, in any event, objections to the sentencing error were not preserved because counsel did not ask the court to reopen the hearing to make a record for objections. "Competent professionals do not require gratuitous superintendence," such as a request for comments. Counsel did not preserve an objection to the failure to state written reasons for the upward variance in the judgment because counsel did not file a Rule 35(a) motion. Counsel had four whole days to do so from the time the written judgment was entered 10 days after oral sentencing. [The d. ct. would have had only 4 days to respond or lose jurisdiction]. The failure to give written reasons for the upward variance was plain error, but the defendant didn't meet the 3rd prong plain-error requirement that he show the act of writing down the reasons would have led to a reduced sentence. An above-range sentence was okay even though this was the first revocation of the defendant's supervised release. The defendant could not show "nationwide disparity" by comparing the defendant's case to only two others. On the bright side, the supervised release condition that the defendant must obtain employment did not restrict him from pursuing self-employment.
U.S. v. Andrade-Vargas, 2012 WL 689177 (3/5/12) (Ut.) (unpub'd) - A firearm's proximity and potential to facilitate a drug offense may be sufficient to prevent application of the safety valve provision, including when the mere propinquity of the weapons and drugs suggests a connection between the two. While an enhancement for possessing a firearm under § 2D1.1(b)(1) does not automatically disqualify a defendant from the safety valve, a defendant need not have actual physical possession of a firearm to be disqualified. U.S. v. Zavalza-Rodriguez, 379 F.3d 1182 (10th Cir. 2004) is distinguishable because in that case it was a co-conspirator that possessed the gun, not the defendant.
U.S. v. Huggins, 2012 WL 753652 (3/9/12) (Kan.) (unpub'd) - The attempted battery of a correctional officer is a violent felony under the ACCA because of its dangerousness, in accordance with the 10th's decision in U.S. v. Smith, 652 F.3d 1244 (10th Cir. 2011) that assault of a juvenile affairs employee was a violent felony. Under Antonio-Agusta (see above),the plea colloquy indicates the amendment of the charge to attempted battery from battery was the only amendment made to the charge.
U.S. v. Carvin, 2012 WL 745609 (3/8/12) (Kan.) (unpub'd) - Although a jury acquitted the defendant of being a felon-in-possession, it was okay for the d. ct. to revoke the defendant's supervised release based on a finding that he possessed a firearm. That finding entirely depended on the d. ct. finding credible a witness the jury had not believed beyond a reasonable doubt. The standards of proof were different. Another cautionary tale for appellate types. The d. ct.'s error couldn't be plain where appellate counsel characterized the d. ct.'s statements as "appearing to indicate" error. It wasn't "plain" that the d. ct. thought it had to impose all of the supervised release term it imposed when it subtracted the prison term it imposed from the maximum amount of supervised release term authorized by statute, [if no prison term had been imposed], to determine how much supervised release to impose.
Escamilla v. Holder, 2012 WL 70162 (3/9/12) (unpub'd) - This opinion contains some possibly helpful information if you have a client from El Salvador. The 10th notes that "gang violence seems to touch nearly everyone" there. This didn't stop the 10th from denying the petition for review because, among other things, the violence the alien had suffered and would suffer upon removal was not, and would not be, based on the alien's political opinion.
Gregor v. Franklin, 2012 WL 724284 (3/7/12) (Okl.) (unpub'd) - Three different reasons to affirm the habeas denial re: Crawford. Judge Kelly felt the state court could reasonably conclude the co-defendant's statement to police indicating he was with the petitioner around the time the attempted theft occurred was not testimonial. Judge Hartz felt the evidence violated Crawford, but was harmless. Judge Holmes found the statement was testimonial but did not violate Crawford because it was not admitted for its truth but to show they were made and they were inconsistent. Judge Holmes explained statements can be testimonial even if they don't directly implicate the defendant. It's not the same test as Bruton.
Frreman v. Zavaras, 2012 WL 753651 (3/9/12) (Col.) (unpub'd) - The petitioner could not establish actual innocence to overcome statute-of-limitations problems by showing he was insane at the time of the offense. A successful insanity defense does not establish actual innocence.
Stine v. U.S. Federal BOP, 2012 WL 745607 (3/8/12) (Col.) (unpub'd) - The plaintiff sufficiently alleged imminent danger [from the prison's refusal to give him medication for reflux problems] so as to overcome the 3-strikes ban on his filings. Despite this imminent danger, the d. ct. didn't err in refusing to allow the plaintiff to file due to his failure to comply with the requirement that he set forth information about his prior federal lawsuits, which the plaintiff asserted was impossible to do since BOP takes all funds sent to him because he owes money for prior court fees and restitution.
Green v. Denning, 2012 WL 759958 (3/9/12) (Kan.) (unpub'd) - The disallowance of access to dental floss strands that were longer than six inches was not cruel and unusual punishment.
U.S. v. Haymond, 2012 WL 698376 (3/6/12) (Okl.) (Published) - There was sufficient evidence the defendant knew of and controlled the child porn images in an unallocated space on his computer. The jury could reasonably conclude from the evidence that he exclusively used Lime Wire to search for and download child porn images. The jury could disbelieve the defendant's claims that he inadvertently downloaded porn from LimeWire while trying to obtain music, especially when he admitted to being addicted to child porn. Downloading from LimeWire does not occur automatically, but instead requires the user to highlight file names and to press "enter." These facts distinguish this case from U.S. v. Dobss, 629 F.3d 1199 (10th Cir. 2011), where the images were found in an internet cache that could have been automatically downloaded from a website. There was also sufficient evidence the defendant knew the ages of the children in the images because he used search terms associated with child porn. And there was sufficient evidence the images were from out-of-state because the photos were part of a series originally taken in Florida, not Oklahoma. The information in the search warrant affidavit was not too stale when it was 107 days old, because child porn images are likely to be hoarded. Any error in admitting expert testimony of a pediatrician about the ages of the children in the photos was harmless where an agent testified he talked to the children and their parents and the jury could tell themselves from the images that the children, who were 12 to 14 , were not 18.
Mwangi v. Terry, 2012 WL 718955 (3/7/12) (N.M.) (unpub'd) - The 10th holds a d. ct. has no jurisdiction to review the AG's discretionary decision to deny bond or set a too-high bond for a detainee awaiting a BIA decision as to his removability. The circumstances are different than in Zadvydas v. Davis, 533 U.S. 678 (2001), where the alien was detained indefinitely after a final order of removal and removal was no longer reasonably foreseeable.
U.S. v. Hunter, 2012 WL 718860 (3/7/12) (Col.) (unpub'd) - The 10th applies plain error review to sentencing issues. In this case, the transcript indicates the district court announced it sentence and then declared a recess without soliciting comments from counsel. The 10th notes the record isn't clear whether the court paused before declaring a recess. But, in any event, objections to the sentencing error were not preserved because counsel did not ask the court to reopen the hearing to make a record for objections. "Competent professionals do not require gratuitous superintendence," such as a request for comments. Counsel did not preserve an objection to the failure to state written reasons for the upward variance in the judgment because counsel did not file a Rule 35(a) motion. Counsel had four whole days to do so from the time the written judgment was entered 10 days after oral sentencing. [The d. ct. would have had only 4 days to respond or lose jurisdiction]. The failure to give written reasons for the upward variance was plain error, but the defendant didn't meet the 3rd prong plain-error requirement that he show the act of writing down the reasons would have led to a reduced sentence. An above-range sentence was okay even though this was the first revocation of the defendant's supervised release. The defendant could not show "nationwide disparity" by comparing the defendant's case to only two others. On the bright side, the supervised release condition that the defendant must obtain employment did not restrict him from pursuing self-employment.
U.S. v. Andrade-Vargas, 2012 WL 689177 (3/5/12) (Ut.) (unpub'd) - A firearm's proximity and potential to facilitate a drug offense may be sufficient to prevent application of the safety valve provision, including when the mere propinquity of the weapons and drugs suggests a connection between the two. While an enhancement for possessing a firearm under § 2D1.1(b)(1) does not automatically disqualify a defendant from the safety valve, a defendant need not have actual physical possession of a firearm to be disqualified. U.S. v. Zavalza-Rodriguez, 379 F.3d 1182 (10th Cir. 2004) is distinguishable because in that case it was a co-conspirator that possessed the gun, not the defendant.
U.S. v. Huggins, 2012 WL 753652 (3/9/12) (Kan.) (unpub'd) - The attempted battery of a correctional officer is a violent felony under the ACCA because of its dangerousness, in accordance with the 10th's decision in U.S. v. Smith, 652 F.3d 1244 (10th Cir. 2011) that assault of a juvenile affairs employee was a violent felony. Under Antonio-Agusta (see above),the plea colloquy indicates the amendment of the charge to attempted battery from battery was the only amendment made to the charge.
U.S. v. Carvin, 2012 WL 745609 (3/8/12) (Kan.) (unpub'd) - Although a jury acquitted the defendant of being a felon-in-possession, it was okay for the d. ct. to revoke the defendant's supervised release based on a finding that he possessed a firearm. That finding entirely depended on the d. ct. finding credible a witness the jury had not believed beyond a reasonable doubt. The standards of proof were different. Another cautionary tale for appellate types. The d. ct.'s error couldn't be plain where appellate counsel characterized the d. ct.'s statements as "appearing to indicate" error. It wasn't "plain" that the d. ct. thought it had to impose all of the supervised release term it imposed when it subtracted the prison term it imposed from the maximum amount of supervised release term authorized by statute, [if no prison term had been imposed], to determine how much supervised release to impose.
Escamilla v. Holder, 2012 WL 70162 (3/9/12) (unpub'd) - This opinion contains some possibly helpful information if you have a client from El Salvador. The 10th notes that "gang violence seems to touch nearly everyone" there. This didn't stop the 10th from denying the petition for review because, among other things, the violence the alien had suffered and would suffer upon removal was not, and would not be, based on the alien's political opinion.
Gregor v. Franklin, 2012 WL 724284 (3/7/12) (Okl.) (unpub'd) - Three different reasons to affirm the habeas denial re: Crawford. Judge Kelly felt the state court could reasonably conclude the co-defendant's statement to police indicating he was with the petitioner around the time the attempted theft occurred was not testimonial. Judge Hartz felt the evidence violated Crawford, but was harmless. Judge Holmes found the statement was testimonial but did not violate Crawford because it was not admitted for its truth but to show they were made and they were inconsistent. Judge Holmes explained statements can be testimonial even if they don't directly implicate the defendant. It's not the same test as Bruton.
Frreman v. Zavaras, 2012 WL 753651 (3/9/12) (Col.) (unpub'd) - The petitioner could not establish actual innocence to overcome statute-of-limitations problems by showing he was insane at the time of the offense. A successful insanity defense does not establish actual innocence.
Stine v. U.S. Federal BOP, 2012 WL 745607 (3/8/12) (Col.) (unpub'd) - The plaintiff sufficiently alleged imminent danger [from the prison's refusal to give him medication for reflux problems] so as to overcome the 3-strikes ban on his filings. Despite this imminent danger, the d. ct. didn't err in refusing to allow the plaintiff to file due to his failure to comply with the requirement that he set forth information about his prior federal lawsuits, which the plaintiff asserted was impossible to do since BOP takes all funds sent to him because he owes money for prior court fees and restitution.
Green v. Denning, 2012 WL 759958 (3/9/12) (Kan.) (unpub'd) - The disallowance of access to dental floss strands that were longer than six inches was not cruel and unusual punishment.
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