U.S. v. Moya, 2012 WL 1259008 (4/16/12) (N.M.) (Published) - The 10th takes its first crack at interpreting the recent S. Ct. plea-bargaining cases. It acknowledged that the more general prejudice test was now whether the end result of the criminal process would have been more favorable to the defendant, absent counsel's deficiencies. But the 10th notes the Hill v. Lockhart standard is still applicable when the defendant complains that his guilty plea was involuntary due to IA. He still must show he would have gone to trial absent counsel's incompetence. In this case, the defendant contended his attorney should have negotiated a conditional plea where he could appeal the denial of his suppression motion and seek a downward departure. Under the new Frye test, the 10th finds the defendant couldn't show prejudice because he didn't allege any facts showing counsel could have negotiated a better deal or that he would have prevailed on appeal or gotten a downward departure.

U.S. v. Gavilanas-Medrano, 2012 WL 1372129 (4/20/12) (Ut.) (unpub'd) - There was sufficient evidence to support the d. ct.'s determination that the drug dog "alerted." It stopped its fluid movement along the car, stood up on its hind legs and sniffed "more intently." And, anyway, there was probable cause to search because of a reliable tip that the car was possibly carrying narcotics, the dog's change in behavior, the length of time it took for the car to pull over, the driver's nervousness and the passenger's furtive movements.

U.S. v. Cabrera-Zetina, 2012 WL 1327820 (4/18/12) (Okl.) (unpub'd) - A case that has already been reported on. I was struck by a footnote, which offered a rare moment of candor and insight. In a re-entry substantive unreasonableness case, the court punctuates the holding by noting "We have little doubt as to why the defendant did not request oral argument." This is exhibit A as to why we should always request oral argument absent extraordinary circumstances.

U.S. v. Hanns, 2012 WL 1354079 (4/19/12) (Col.) (unpub'd) - A Colorado offense that prohibits a non-medical person administering a drug without the person's consent is an intentional offense that poses a substantial risk of injury to another and so is a crime of violence under § 4B12(a)(2). The 10th has held in U.S. v. Rodriguez-Enriquez, 518 F.3d 1191 (10th Cir. 2008) that the same offense is not a crime of violence under § 2L1.2, but that was because it does not involve the use of physical force. § 4B1.2 includes the additional "serious potential risk of physical injury" component.

U.S. v. Mach. 2012 WL 1302582 (4/17/12) (Col.) (unpub'd) - A troubling application of the 4th prong of the plain error test. The defendant argued that his conviction for violating a Colorado statute prohibiting the possession of a short shotgun was not a conviction for a crime of violence as defined under § 4B1.2, comment. 1. He contended the offense did not involve a firearm as described in § 5845(a) because the Colorado statute criminalized short shotguns even if they were not modified and, according to the defendant, § 5845(a) requires a modification. The 10th refuses to address the legal question presented. Instead, it finds that the enhancement did not result in a miscarriage of justice because an unmodified short shotgun is as "especially dangerous" as one that was modified. That the defendant's sentence may have been 6 offense levels longer because of the legal error makes no impression on the 10th.

U.S. v. Lucas, 2012 WL 1302587 (4/17/12) (Okl.) (unpub'd) - It didn't matter that the woman who let the officers into the defendant's house told the officers she didn't live there. Once the officers were in and before they saw anything incriminating, the defendant, who did have actual authority to consent, consented to their presence and their search of the place.

U.S. v. Granados, 2012 WL 1302584 (4/17/12) (Col.) (unpub'd) - A preservation warning. The defendant's argument that she was entitled to a downward variance because it wasn't foreseeable that her co-conspirator would use the money she gave him for drugs did not preserve her appellate argument that the d. ct. mistakenly counted those drugs to calculate her offense level. And, anyway, it was foreseeable, even though she denied knowledge on that score in the plea agreement.

Rezaq v. Federal Bureau of Prisons, 2012 WL 1372151 (4/20/12) (Col.) (unpub'd) - The plaintiffs' complaint about being transferred to the Administrative Maximum Prison ("ADX") in Florence, Colo., is not moot, even though they are no longer incarcerated there. The fact that they were transferred may explain their current less-than-ideal conditions of confinement and they may be entitled to additional due process. But there is no due process violation here because they did not have a liberty interest in avoiding the transfer. For such an interest to be triggered the prisoner must suffer atypical and significant hardship. To determine whether such hardship is suffered the prisoners' conditions must be compared to those ordinarily experienced by inmates with records and sentences similar to the prisoners. Here the prisoners have been convicted of terrorism offenses and non-disciplinary administrative segregation is the sort of confinement inmates should reasonably anticipate receiving at some point. Penological interests may be considered in deciding if the requisite hardship has been incurred. Here, while the ADX is "undeniably harsh" [23 hours a day in a cell], there were some fabulous benefits: they had control of the cell lights; they got outdoor recreation, albeit all alone in a fenced-in area slightly larger than their cells; they had regular contact with staff and occasional opportunities to communicate with other inmates; and they got five no-contact social visits and 2 15-minute calls per month. Because things weren't so bad and there were regular reviews of their placement [but none that resulted in release from ADX for many years] the prisoners had no liberty interest.