Friday, April 20, 2012

US v. Cabrera-Zetina, 2012 WL 1327820, No. 11-6237 (10th Cir. 4/18/2012) (unpublished): reentry defendant's above-guideline sentence of 84 months was substantively reasonable where he had been deported five times and had 14 criminal convictions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US v. Ortiz, 2012 WL 1327818, No. 11-4110 (10th Cir. 4/18/12) (unpublished): Defendant, facing a mandatory minimum sentence of 10 years for PWID meth, reached a plea agreement in which the government agreed to recommend application of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.