U.S. v. Franco-Lopez, -- F.3d --, 2012 WL 2989801 (10th Cir. 7/23/12) (NM) - a conviction of transporting an illegal alien under 8 U.S.C. § 1324(a)(1)(A)(ii), which criminalizes the transportation of an alien who "has come to, entered, or remains in" the country illegally, does not require proof that the transported alien illegally "entered" the United States. The elements are disjunctive; the government need only prove that the transported alien was present in the U.S. in violation of the law.

New Report Details Federal Use of Private Incarceration

The Sentencing Project has released a new report, Dollars and Detainees: The Growth of For-Profit Detention.

According to the press release from the Sentencing Project, the report details how harsher immigration enforcement and legislation led to a 59 percent increase in the number of detainees being held by the federal government between 2002 and 2011. It specifically examines how Immigration and Customs Enforcement (ICE) and the U.S. Marshals Service (USMS) have increasingly relied on private companies to detain these individuals, as well as the complex network of facilities that house federal detainees, and the failings of private detention.

The press release continues to state that among the report's major findings:

• Between 2002 and 2011 the number of privately held ICE detainees increased by 208 percent, while the number of USMS detainees held in private facilities grew by 355 percent.
• In 2011, 45 percent of ICE detainees and 30 percent of USMS detainees were held by private companies.
• Federal detainees are held in a complex network of facilities in which information on where individuals are being held, and by whom is often unavailable or incomplete.
• The private detention industry is dominated by the same companies that are regularly criticized for their management of private prisons.
• Concerns raised in the context of private prisons, including unsatisfactory levels of service, negative political and policy implications, and questionable economic effects, apply equally to private detention.

The full report, Dollars and Detainees: The Growth of For-Profit Detention, includes a list of the privately-operated facilities actively employed by ICE and USMS, as well as detailed graphs and data on the growth of private detention, and the lobbying activities of Corrections Corporation of America.

Specificity Required to Preserve Claim of Procedural Sentencing Error

US v. Soto-Arreola, No. 11-3348 (Kan), 7/12/12 (unpublished) - District court did not commit plain error in varying upward in sentencing aggravated reentry defendant, based in part on numerous arrests that did not result in convictions. (1) Court’s approach was reasonable in light of circuit precedent (US v. Mateo and US v. Robertson), so any error could not have been plain or obvious, and (2) Defendant did not even try to show that, but for the alleged error, there was a “strong possibility” that he would receive a “significantly lighter sentence” on remand.
Takeaway point about this case is about preserving procedural error. Defendant did object to upward variance, arguing that the offense level calculation and criminal history adequately took into account defendant’s criminal background. Not good enough. Had to specifically object to varying upward based on charges that did not result in convictions, including specific objection that the PSR did not even provide any underlying detail about some of them.

Unpublished Decisions

U.S. Sanchez-Ponce, 2012 WL 2108226 (6/12/12) (Ut.) (unpub'd) - A defendant cannot get a new trial based on a government witness's recantation of trial testimony unless the trial court finds the trial testimony was "actually false." Here the district court found otherwise, so no new trial.

U.S. v. Elwood, 2012 WL 2087203 (6/11/12) (Okl.) (unpub'd) - Although the district court initially announced it planned to depart upward, ultimately the increase of the sentence from a top of the range of 3 years to 10 years on criminal history grounds was really a variance and so it didn't have to explain the increase in terms of the guidelines.

Chiles v. Oklahoma Department of Corrections, 2012 WL 2161543 (6/15/120 (unpub'd) - Prison officials get qualified immunity because it is not a clearly established constitutional right to have medical restrictions ordered by a doctor honored by the prison. In this case, the doctor told the prison the defendant needed to be given a bottom bunk. A prison employee ordered that he sleep in a top bunk. The prisoner fell from the top bunk and died from head trauma he suffered from the fall.

U.S. v. Rivera-Rivera, 2012 WL 2129392 (6/13/12) (N.M.) (unpub'd) - Perhaps just carelessness, but the 10th says, in clear violation of Booker that a district court should vary downward based on family circumstances only if they are extraordinary.

Tenth Rejects Most of Capital Petitioner's Arguments, But Certifies One Issue to State Court

Black v. Workman, 2012 WL 2152828 (6/14/12) (Okl.) (Published) - The 10th for the most part affirms Oklahoma death sentence, with one possible out. It was okay to dismiss two jurors who gave opposite answers ["yes" and 'no"] to the same question as being too unwilling to vote for the death penalty. The 10th says, if voir dire were done by e-mail, the defense might have a point, but when the trial judge sees body language, demeanor, etc. it might have been clear what each prospective juror meant by the answer. The 10th indicates its decision in Mayes v. Gibson, 210 F.3d 1284 (2000), may no longer be valid in light of the S. Ct.'s decision in Cullen v. Pinholster, 131 S. CT. 1388 (2011), which severely limits the circumstances when a federal evidentiary hearing is appropriate for a § 2254 petition. The prosecution's failure to strike a white person from the jury venire, who did not disclose a prior misdemeanor conviction, would not establish by clear and convincing evidence the state was racially motivated when it peremptorily challenged 1 of 2 African-American prospective jurors [out of 400 venirepeople] for not disclosing a 1st-degree burglary charge, [not conviction].
It was reasonable for the state court to find it okay not to tell the jury the absence of heat of passion was an element of first degree murder and that the jury could not consider the voluntary manslaughter lesser until it decided the petitioner was not guilty of the greater charge. No element of 1st-degree murder was presumed. In other words, it was okay that the jury would not reach the heat of passion issue unless it found proof of 1st-degree murder lacking for some other reason. Counsel acted reasonably when they conceded the victims acted properly [because the victims were sympathetic], even though their defense depended on the jury finding the victims acted improperly. "Such a strategy has deep roots in the history of rhetoric," citing Marc Antony's "I come to bury Caeser, not to praise him." "Perhaps counsel were not as persuasive as Marc Antony, but they may have had less to work with." It was "wholly improper" for one prosecutor to counter a defense argument by assuring the jury the other prosecutor was a Christian. In holding the remark was not prejudicial, the 10th says: "in some cultures being a generic 'Christian' is not particularly noteworthy, but generally assumed." The prosecutor also went overboard by indicating all murders are the same during the death penalty closing, but everything else about the case, including the instructions indicated that wasn't true. So no prejudice. And it was wrong for the prosecutor to compare the petitioner's life in prison to the victim's lack of life. But no prejudice. No synergistic effect of the trial errors, so not relief from the cumulation of errors. No actual innocence salvages a procedural bar because the voluntary manslaughter defense and extra mitigators are legal innocence, not actual innocence, claims
The one piece of probably temporary good news. The 10th certifies to the Oklahoma Court of Criminal Appeals the question whether its denial of some of the petitioner's defaulted claims on procedural grounds was based on the assessment of the constitutional merits of the defendant's claims. If "yes," then the procedural bar is excused and the 10th may address those defaulted claims on the merits.