US v. Cabrera-Zetina, 2012 WL 1327820, No. 11-6237 (10th Cir. 4/18/2012) (unpublished): reentry defendant's above-guideline sentence of 84 months was substantively reasonable where he had been deported five times and had 14 criminal convictions in the US, including a felony drug offense and convictions for assault with a dangerous weapon.

US v. Ortiz, 2012 WL 1327818, No. 11-4110 (10th Cir. 4/18/12) (unpublished): Defendant, facing a mandatory minimum sentence of 10 years for PWID meth, reached a plea agreement in which the government agreed to recommend application of the safety valve statute. The friendly probation officer determined that defendant was a leader/organizer and therefore ineligible for safety valve, and the government filed a non-objection to that report, and did not recommend safety valve. The district court agreed and imposed the 10 year sentence. The COA affirms, finding that the sentencing court did not clearly err and refusing to reweigh the evidence or the trial court's rejection of the defendant's testimony indicating he was not a leader. The COA is clearly somewhat disturbed by the government's change of position, and explicitly observes that it is not considering whether the government's actions might justify a remand because the defendant specifically stated he wasn't making that argument.

U.S. v. Johnson, 2012 WL 1183972 (4/10/12) (Col.) (unpub'd) - The 10th suggests that some weapons possessions could be crimes of violence under the Career Offender guidelines definitional provision, § 4B1.2, but not under the statutory Armed Career Criminal Act, 18 USC §924(e). In this case, the offense of possessing a knife in a prison was a crime of violence under § 4B1.2

U.S. v. Garcia-Roman, 2012 WL 1130646 (4/5/12) (Kan.) (unpub'd) - In a rare moment of candor, the 10th allows some reality to filter in. The 10th dismisses a defendant's appeal because it was untimely, despite the defendant's claim that counsel, who is currently on disability inactive status, failed to file a timely appeal, despite his request that counsel do so. In a footnote, the 10th acknowledges that judicial resources might have been saved if the government had not insisted on relying on the untimeliness of the appeal. It notes the defendant will now file a § 2255 petition and the case will eventually come back to the 10th where such defendants' appeals are "often unmeritorious."

Prisoner Held in Harsh Administrative Confinement Is Entitled to Meaningful Periodic Review

Toevs v. Reid, 2012 WL 1085802 (4/2/12) (Col.) (Published) - Following the prison defendants' petition for rehearing, the same result as in Toevs v. Reid, 646 F.3d 752 (10th Cir. 2011): the 10th [Ebel, Matheson and McKay] holds that a prisoner in administrative confinement under conditions that constitute an atypical and significant hardship for about seven years, with the sole justification of encouraging the prisoner to modify his behavior, is entitled under the Due Process Clause to periodic meaningful reviews; the prisoner did not receive meaningful review, but because the law was not clearly established that due process required such reviews, the defendants are immune.

The 10th explains in this version of the decision that it could just go to the immunity part of the decision, but it feels it's important to help develop constitutional precedent and promote law-abiding behavior by telling prisons what due process requires. The 10th takes back its discussion about why the prisoner's conditions constituted atypical and significant hardship so as to trigger due process protection. Instead, it rules the government's failure to contest that notion in its opening brief waived the issue. Helpfully, it says the waiver rule should apply equally to the government as it does to prisoners. The prison violated due process because it either gave no explanation for why the prisoner remained at a particular level or it provided no review at all. At the very least, the prison should say circumstances have not changed, if that is what happened, rather than "relying on a meaningless, repetitive, and rote response." Meaningful review was required even where the prison changed the name of the prisoner's custody to "close custody" rather than "administrative segregation." The conditions were the same under either name.

Divided Court Affirms Large Upward Variance For Supervised Release Violation Eventhough Sentence was "Plain Error"

U.S. v. Collins, 2012 WL 1130640 (4/5/12) (N.M.) (unpub'd) - The majority assumes the d. ct. committed plain error in extending the defendant's prison term [41 months where the top of the range was 10 months] for a supervised release violation, in order to allow the defendant time to avail himself of sex offender treatment. But it finds the defendant did not show the d. ct. would have imposed a different sentence absent the error. The d. ct.'s "formulaic" reference to all the § 3553(a) factors, including the need for correctional treatment, did not matter. The d. ct. relied on the defendant's repeated failures to abide by his conditions and his danger to society.

Judge Holloway, importantly, explains why U.S. v. Tsosie, 376 F.3d 1210 (10th Cir. 2004), which held a d. ct. could lengthen a prison term to promote rehabilitation upon supervised release revocation, is no longer good law in light of Tapia. The logic of Tapia, in particular the point that district courts have no power to order rehabilitation in prison, undermined Tsosie. And, Judge Holloway determined, the d. ct. did rely on rehabilitation when it imposed the sentence, especially because the government sought the exact sentence imposed based on the need for the defendant to undergo sex offender treatment in prison. The 4th prong of the plain-error test was satisfied because allowing the sentence to stand suggests "courts may usurp Congress's authority to lay down the foundations of the sentencing process." Judge Holloway concluded he "respectfully but emphatically dissented."

Elliott v. Martinez, -- F.3d --, 2012 WL 1153488 (4/9/12) - The New Mexico statutory requirement that an individual be informed that he or she is a target of a grand jury investigation constitutes a procedural limitation which does not create a substantive liberty interest protected by the Fourteenth Amendment Due Process Clause. Because the plaintiffs did not have a constitutional right to compliance with the grand jury procedures, they were not entitled to relief under § 1983.

U.S. v. Cano, 2012 WL 1010330 (3/27/12) (Wyo.) (unpub'd) - The 10th denies appellate counsel's request to withdraw under Anders because the government conceded the d. ct. applied the wrong guideline range based on an un-noticed misreading of the guideline sentencing table [offense level 21 and criminal history II is 41-51 months, not 51-63]. But the 10th rejects the defendant's other claims he raised pro se, even though an attorney never argued on behalf of those issues.

U.S. v. Viera, 2012 WL 1021923 (3/28/12) (Kan.) (unpub'd) - A plea agreement waiver of the right to pursue § 2255 relief waives the right to an IA claim that counsel failed to pursue an appeal, despite the defendant's request that counsel do so. Thus, the 10th's decision in U.S. v. Garrett, 402 F.3d 1262 (10th Cir. 2005), finding it to be IA to fail to appeal after the defendant requests an appeal, despite an appeal waiver, means nothing if there is also a § 2255 waiver.

Schubler v. Holder, 2012 WL 1021957 (3/28/12) (unpub'd) - The reference in the petty offense exception to inadmissibility, 8 U.S.C. § 1182(a)(2)(A)(ii)(II), to "the maximum penalty possible for the crime" means the statutory maximum, not the top of the applicable guideline range. So, the exception did not apply to the alien's conviction for wire fraud, which has more than a one year stat max.

U.S. v. Espinoza-Aguilar, 2012 WL 1059739 (3/30/12) (Wyo.) (unpub'd) - Defense counsel had no conflict of interest after it was discovered counsel had given the defendant information the court had ordered counsel not to give him. [The co-defendant complained the defendant was threatening him after the defendant received the information]. Counsel became hysterical when the government threatened to hold counsel in contempt. But there was no evidence counsel's representation changed after the discovery, says the 10th.