Alien Could Not Rely on Parent's US Residence For TPS Status

Celaya-Martinez v. Holder, 2012 WL 3292955 (8/14/12) (unpub'd) - The alien did not qualify for a Temporary Protected Status, ("TPS"), which would enable him to stay in this country and avoid removal to El Salvador. He did not meet the requirement that he have resided in this country since El Salvador was designated for TPS in 2001. He could not derivatively use his mother's residence. So he must return to El Salvador, which was designated for TPS because conditions in the country, [apparently rampant gang violence] prevented its nationals from returning safely or because the country is unable to handle the return of its nationals adequately.

Previously Raised IAC Claims Could Not be Raised Again

U.S. v. Taylor, 2012 WL 3264359 (8/13/12) (Okl.) (unpub'd) - The defendant could raise in a 28 USC § 2255 motion grounds of ineffective assistance of counsel that he had not raised in district court during the initial prosecution. But the defendant could not raise in his § 2255 ineffective assistance grounds that he had previously raised during the initial prosecution but did not raise on appeal to the 10th.

Expert Testimony Improperly Admitted

Hoffman v. Ford Motor Company, 2012 WL 3518990 (8/16/12) (Col.) (unpub'd) - The 10th stands up for Ford Motor Company and provides an opinion that could be used to contest a d. ct.'s admission of expert testimony. The d. ct. did not make sufficient reliability findings and the expert testimony was not relevant or reliable. The expert did not connect his experiments on seat buckles to the amount of g-force that the seat buckle in the actual accident could have been exposed to. The 10th pooh-poohed the argument that there weren't any experiments out there that could show what the g-force was on the seat buckle in the actual accident. The 10th stressed that the burden is on the proponent of the expert to show the expert's testimony was relevant and reliable. Judge McKay dissented, objecting that the majority did not afford the d. ct,. the substantial deference it was due.

Prisoner's Free-exercise Claim Reinstated

McKinley v. Maddox, 2012 WL 3292389 (8/14/12) (Okl.) (unpub'd) - A prisoner victory. The d. ct. erred when it dismissed the prisoner's First-Amendment, free-exercise-of-religion claim. He alleged more than a de minimis burden on his Baptist beliefs when he claimed the community corrections center intentionally prevented him from attending all church services, either offsite or onsite, for a month.

Alteration of Positive Letters Presented at Sentencing Supported Sentence Enhancement

U.S. v. Bishop, 2012 WL 3538526 (8/17/12) (Okl.) (unpub'd) - The d. ct. properly imposed the interference-with-the-
administration-of-justice enhancement under § 2J1.2(b)(2) where the defendant altered 11 of the 40 or so letters filed in support of a lenient sentence. The alterations were discovered after the defendant had already been sentenced for a drug conspiracy. For the enhancement to stand, the government did not have to show the sentence would have been higher absent the alterations. It only had to show the alterations interfered with the proceedings. That was shown by the d. ct.'s repeated references to the persuasive value of the letters. Because the record supported the enhancement, the 10th did not need to embarrass the second judge by deciding if it was erroneous for the new judge to rely on a personal discussion with the prior sentencing judge, who assured the second judge s/he had been influenced by the alterations. And it was okay to impose an enhancement under § 2J1.2(b)(3) for altering a substantial number of documents. The term "substantial" was not unconstitutionally vague, even though it was not so clear that the alteration of less than half the letters would be "substantial." It was not arbitrary for the d. ct. to find altering about 25% of the letters was "substantial."

Safety-valve Eligibility Requires Defendant to Act

U.S. v. Salgado-Meza, 2012 WL 3264351 (8/13/12) (Col.) (unpub'd) - The defendant could not satisfy the disclosure requirement for safety-valve eligibility by noting that the government already knew everything from all of the wiretaps. He needed to take an affirmative step of some sort, even if none of what he said would be useful to the government.

Beware of Oral Argument Concessions

U.S. v. Gonzales, 2012 WL 3291862 (8/14/12) (Okl.) (unpub'd) - This case points out the need to be careful what you say at oral argument. The 10th supports its conclusion the defendant did not preserve the argument she was making on appeal by quoting extensively from the oral argument where counsel seemed to concede a lack of preservation. The 10th held it was not enough for trial counsel to have requested a fleeting-possession jury instruction to preserve the argument that the instruction was necessary to support a coercion defense. Trial counsel had argued to the trial court that the instruction was necessary for other reasons. Any error was not plain because the 10th has explored but never adopted the notion of a fleeting-possession defense and no case law supported the defendant's appellate argument. And it was not plainly wrong for the d. ct. to conclude the brief duration of the defendant's possession of the gun [the defendant's boyfriend had her pose for a photo holding his sawed-off shotgun] was more properly a subject of argument by counsel rather than of a separate jury instruction.

Ok for judge to instruct jurors to further deliberate; prior acts testimony was admissible

U.S. v. Shippley, 2012 WL 3292413 (8/14/12) (Col.) (Published) - It was okay for the judge to tell the jurors to deliberate further to resolve an inconsistency in its verdicts where it found the defendant guilty of conspiring to distribute drugs but in special interrogatories indicated the defendant had not conspired to distribute any of the drugs listed in the indictment. Unlike in other cases of inconsistent verdicts, in this case the d. ct. couldn't give full effect to the verdicts because the inconsistency related to the same count and the same defendant. The 10th stressed it was not deciding issues the defendant had not raised, such as that the d. ct.'s actions violated double jeopardy or that the constitution required the d. ct. to interpret the verdicts with lenity towards the defendant. The d. ct. did not coerce the final verdict of guilt of conspiring to distribute 500 or more grams of cocaine where the court told the jury it could come back with the same verdicts it had already agreed on.
The 10th also held, with respect to a using-a-communication-facility-to-distribute-Percocet-pills charge, that it was okay for the d. ct. to allow testimony that the defendant sold a witness Percocet pills 20 times prior to the sale charged in the indictment. That testimony helped explain the defendant's statements recorded on a wiretap referring to "them things that you get all the time" and the quantity and price of the "things." What the defendant meant by "things" was an issue in the case, the prior sales apparently occurred within five years of the charged sale and there was little prejudice because the jury had already heard the defendant was involved in other drug-trafficking activity.
Testimony that the defendant gave a gun to a co-conspirator for his protection was sufficient to justify the possession-of-a-dangerous-weapon enhancement under § 2D1.1(b)(1). It was okay that the gun transfer might have occurred before the time period of the charged conspiracy. The d ct. could find the conspiracy extended to a time before the time period charged in the indictment.

Unpublished Decisions

U.S. v. Kaufman, 2012 WL 2308720 (6/19/12) (Kan.) (unpub'd) - The 10th acknowledges relief for ineffective assistance of counsel might be available when trial counsel's failure to object leads to the 10th reviewing for plain error, as in the prior appeal in this case. But here the 10th rules it wouldn't have reversed the conviction had counsel preserved the error because the error was harmless beyond a reasonable doubt.

U.S. v. King, 2012 WL 2362610 (6/22/12) (Kan.) (unpub'd) - The typical d. ct. remarks in the face of a defendant's request for substitute counsel that current counsel had done a terrific job did not make the record sufficiently developed so that the 10th could render a decision as to whether trial counsel was ineffective.

U.S. v. Marquez, 2012 WL 2308644 (6/19/12) (Col.) (unpub'd) - The d.ct.'s determination of the defendant's likelihood of recidivism is not assessed under the procedural reasonableness rubric but as a substantive reasonableness challenge.

Felon-in-possession conviction affirmed; NM law does not fully restore civil rights

U.S. v. Molina, 2012 WL 3065281 (10th Cir. 7/30/12) - By operation of New Mexico law (N.M. Stat. Ann. § 30-7-16(A)), a felon's right to possess firearms is restored after the passage of 10 years following completion of the imposed sentence. The rights to vote and serve on a jury are restored by operation of New Mexico law after service of the entirety of the sentence imposed for a felony conviction. However, a person convicted of a felony is not qualified to be elected to public office unless a gubernatorial pardon has been granted. Because all four rights must be restored in order to show full restoration of civil rights under 18 USC § 921(a)(20), Mr. Molina was properly convicted of felon in possession. The court also rejects Molina's void-for-vagueness argument as to § 921(a)(20) and his argument that he had a Second Amendment right to possess firearms.

unpublished decisions

U.S. v. Nelson, 2012 WL 2581039 (7/5/12) (Okl.) (unpub'd) - The 10th indicates a defendant who was sentenced for a pre-Act crack offense after the effective date of the Fair Sentencing Act as though the old mandatory minimum applied may be able to get relief pursuant to § 2255 under Dorsey. The 10th remands for reconsideration by the d. ct. in light of Dorsey.

U.S. v. Wright, 2012 WL 2402635 (6/27/12) (Kan.) (unpub'd) - The defendant could not satisfy the third, substantial rights affected, prong of the plain error test where at the revocation hearing only the defense attorney admitted the defendant had violated supervised release conditions. The defendant himself never admitted any violations. The defendant did not show that on remand the government couldn't put on enough evidence to prove its case.

Heidtke v. Corrections Corporation of America, 2012 WL 2370072 (6/25/12) (Col.) (unpub'd) - Prison doctors were not deliberately indifferent when they failed to refer the plaintiff to an orthopedic surgeon for 7 1/2 weeks even though the condition of his wrist [broken while playing that dangerous game of softball] kept getting worse. Because of the neglect, the plaintiff ended up with Complex Regional Pain Syndrome ("CRPS"). No relief because the malunion of the wrist and the onset of CRPS were not so obvious that even a layperson would recognize the conditions. The mistreatment of the plaintiff's condition was so bad, Judge Briscoe dissented.

Stallings v. Werholtz, 2012 WL 2626942 (7/6/12) (Kan.) (unpub'd) - Confinement in a 70-square-foot cell for at least 23 hours a day and being limited to family visits through video-conferencing are not extreme enough conditions to trigger due process protection. And the monthly reviews of placement under those conditions were not a sham, even though the many times the reasons given for keeping the prisoner in administrative segregation were the same each time, relating to the reasons for the initial placement.

Mitchell v. Medina, 2012 WL 2628076 (7/6/12) (Col.) (unpub'd) - The prison mailbox rule did not apply to render the petitioner's § 2254 petition timely, even though the petitioner signed the petition and certified service on a date within the time limit. He did not submit with the petition the requisite notarized statement of when and how he mailed the petition

Petitioner loses on equitable tolling issue

McCosar v. Standiford, 2012 WL 2819779 (7/11/12) (Okl.) (unpub'd) - The 10th indicates it thinks maybe the d. ct. was wrong when it held the § 2254 petitioner was not entitled to equitable tolling of the year time limit, since the petitioner did not get timely notice of the final decision of the state's highest court. The d. ct. faulted the petitioner for not providing the date when he did learn of the decision, for not producing the prison mail log and for waiting 11 1/2 months to file the state habeas petition. The 10th affirms the dismissal because it had to defer to the d.ct.'s resolution of the equitable tolling issue.

Gotta supply sufficient record

U.S. v. Mullins, 2012 WL 2765255 (7/10/12) (Okl.) (unpub'd) - The 10th affirms because the defendant did not provide enough record for the 10th to address the issues he raised.

Federal firearms license revocation upheld

Borchardt Rifle Corp. v. Cook, 2012 WL 2775012 (7/10/12) (7/10/12) (Published) - There was enough evidence to support the revocation of the plaintiff's federal firearms license for a willful violation of the paperwork requirements. To be willful it is enough that the dealer acts recklessly or with plain indifference regarding known legal obligations. A dealer's repeated violations after being informed of the regulations and warned of violations shows the requisite mens rea. Here the 10th was not impressed with the dealer's argument that it didn't make that many mistakes because only 3 to 6 % of the blanks on the forms were incorrectly filled out. The 10th thought it was more significant that 90 % of the forms were completed incorrectly.

Qualified immunity denied to jail administrator in civil rights case

Allen v. Avance, 2012 WL 2763508 (7/10/12) (Okl.) (unpub'd) - The administrator of an Oklahoma jail was not entitled to qualified immunity with respect to the pretrial detainee's cruel-and-unusual-punishment and retaliation claims. The plaintiff asked for a grievance form to protest the cancelation of visitation rights so the guards could go to a funeral. He was put in an observation cell with no toilet paper, toothbrush, toothpaste, towel, mattress, blanket or pillow. To go to the bathroom he had to bang on the cell door and ask for toilet paper. The cell was covered with standing water. He spent seven days there. He then filed a grievance. In response, the administrator said: "you don't know a damn thing about the rules and you don't run a thing at this jail." The plaintiff then spent another 4 days in the observation cell.

Eluding an offense qualifies as ACCA prior

U.S. v. Denson, 2012 WL 2820978 (7/11/12) (Okl.) (unpub'd) - The defendant's offense of eluding an officer had sufficient mens rea to be a violent felony under the ACCA. Although the offense included the element that the defendant drove in a reckless manner, the offense required a purposeful state of mind with respect to eluding the officer. It didn't matter what the mens rea was with respect to dangerous driving.

Officer's estimate of speed sufficient to support traffic stop

U.S. v. Swan, 2012 WL 2763662 (7/10/12) (Okl.) (unpub'd) - There was reasonable suspicion to stop a car for a speeding violation based solely on the officer's visual estimate of the car's speed. The officer was a veteran officer with substantial experience estimating speed and the d. ct. found him credible. Strangely, in support of its decision, the 10th notes the trial jury believed the officer regarding different matters. The d. ct. did not abuse its discretion when it admitted the defendant's post-arrest, on-the-scene statement that he would shoot the officers. The statement was accompanied by a gesture similar to pulling a trigger. The evidence showed the defendant's consciousness of guilt because he threatened prosecution witnesses. The trigger gesture showed his intent to possess the firearm that was found.

Pre-2007 NM 2nd-degree drug trafficking offenses are ACCA predicates

U.S. v. Romero-Leon, 2012 WL 2756042 (7/10/12) (N.M.) (unpub'd) - The 10th decides New Mexico's second-degree drug trafficking offenses sentenced before the 2007 decision in State v. Frawley, 172 P.2d 144 (N.M. 2007) (which held Apprendi prohibited aggravation), are "serious drug offenses" under the ACCA. While those offenses carried a 9-year basic sentence, they can be aggravated to 12 years. It doesn't matter that in a particular case a state district court did not find aggravating circumstances. The maximum sentence is at least 10 years. End of story. The 10th relied on U.S. v. Rodriquez, 553 U.S. 377 (2008). But in that case the enhancement was actually applied. The convictions added up to the necessary 3, even though two of them had been consolidated for sentencing.

Excited utterance hearsay exception authorized admission of statements

U.S. v. Frost, 2012 WL 27755696 (7/10/12) (Col.) (Published) - Child sex abuse victim's statements to her sister were admissible under the excited utterance hearsay exception. A.W. called her sister right after experiencing the startling events of rape and being kicked out of a house in the middle of the night. She was crying and visibly upset when she made the statements accusing the defendant of rape. The 10th discusses the factors relevant to determining whether statements in response to police questioning could be excited utterances. The more spontaneous the statements, the more stressful the event and the more open the questioning, the more likely the statements are admissible. Here A.W. was no longer in danger, but she alleged she had been through a traumatic ordeal and she spoke within an hour of the event. On the other hand, the officers asked detailed questions. Had the defendant objected at trial, a strong case against admissibility could have been made. But since the circumstances place the statements in the middle of the land between admissibility and inadmissibility, any error in admitting the statements was not "plain." Most of A.W.'s statements to a nurse fell within the medical treatment hearsay exception, such as whether, where and how A.W. was touched. But her identification of the defendant and her claims of loud resistance may not have been admissible. The identification statements were harmless because the defendant admitted they had sex. A description of loud resistance often will not be admissible, but it could be if it describes the location and intensity of pain. Here, because of the defendant's failure to object, the facts were not developed on this score. The hearsay error was not so blatant that plain error reversal was warranted even without factual development. Finally, the admission of A.W.'s later statements to another police officer did not meet the third and fourth prongs of the plain error test, since the defense first brought those statements up to show inconsistencies in A.W.'s account and whatever statements helped the government were cumulative. The failure to object reflected more a strategic choice, not an oversight, [as was true with respect to the other failures to object].
Before inviting the defendant to allocute, the d. ct. said "I will abide by the recommendation of probation and impose 200 months." Even if this violated the defendant's right to allocute, the error did not meet the 4th prong of the plain error test. The court did not accompany its comment with the trappings of a formal sentence and, after the court's announcement of its thoughts, the defendant spoke at length, apparently undeterred by the court's announcement. And, besides, on appeal the defendant does not explain what else he would have said to the d. ct. if the d.ct. had not said what it said.

Imposition of sex offender supervised release conditions reversed

U.S. v. Dougan, 2012 WL 2756427 (7/10/12) (Okl.) (Published) - The imposition of sex offender supervised release conditions violated 18 U.S.C. § 3583(d) where the robbery defendant allegedly had sex offense convictions that were 17 and 33 years old. The offenses were too remote to make the conditions reasonably related to any sentencing goal. In other circumstances, offenses that old might call for the conditions. But here none of the offenses concerned minors and the defendant did not have an extensive history of committing sex crimes. Nor was there any other evidence he had a propensity to commit future sex offenses. His failures to register as a sex offender made it a closer question, but those failures are different from sex offenses. That the defendant spent 10 of the last 17 years in prison worked against the defendant, but the 10th noted there were plenty of sex crimes committed in prison. The 10th also opined in a footnote that the d. ct. clearly erred when it found the 1994 battery conviction really was a sexual battery as initially charged. The failure of the government to introduce the criminal complaint into evidence was fatal to its claim the evidence of the defendant's conduct was reliable. The 10th nonetheless assumed for the sake of argument that the 1994 conviction was for a sex offense. The 10th could not overturn the d. ct.'s recommendation for sex offender treatment in prison because the recommendation was not binding on BOP.

It was ok for prison officials to record over relevant video tape despite inmate's request for preservation

Whitmore v. Jones, 2012 WL 2948178 (7/20/12) (Okl.) (unpub'd) - With respect to a disciplinary hearing, the failure to provide an inmate with a video tape of an alleged incident may violate the inmates' procedural due process rights under certain circumstances. But "the opportunity to present documentary evidence has never been extended to require prison officials to gather, review or preserve evidence that a prisoner might find helpful." In this case, the 10th was okay with prison officials recording over the relevant video tape after the inmate requested that the tape be preserved. The relevant officer's "workload" may have prevented her from immediately reviewing the request.

Petitioner should have been allowed to amend petition; appeal allowed on issue of criminal history points

U.S. v. Roberts, 2012 WL 2951540 (7/20/12) (Kan.) (unpub'd) - The d. ct. abused its discretion when it refused to permit the § 2255 movant to amend his petition just because the proposed amendments were not signed under penalty of perjury. The d. ct. was obligated to give the movant a chance to conform to procedural requirements, even though he sought to make new claims. And the movant was entitled to a certificate of appealability and further briefing because he alleged his attorney failed to object to too many criminal history points. Two offenses were counted separately for criminal history points. But, according to the movant, there was no intervening arrest and the offenses were sentenced on the same day.

Court may refuse to grant 3582(c)(2) reduction

U.S. v. Jones, 2012 WL 2877454 (7/16/12) (Okl.) (unpub'd) - 18 U.S.C. § 3582(c)(2) creates an opportunity for a sentence reduction, not a right. It was perfectly okay for the d.ct. to refuse to reduce the sentence based on the nature and circumstances of the defendant's underlying offense

Tenth rejects arguments concerning gov't actions regarding alleged conflict of interest, sleeping jurors, and obstruction enhancement

U.S. v. McKeighan, 2012 WL 2898670 (7/17/12) (Kan.) (Published) - While recognizing the potential for the prosecution to abuse its powers to create a conflict of interest, the government did not do so in this case when it notified the d. ct. of a potential conflict of interest in out-of-state defense counsel's representation. After his arrest, the drug defendant indicated he had no money. Yet he retained counsel for a total of $25,000, which his girlfriend obtained from defendant's friend in cash bound in rubber bands. Counsel did not give her receipts. The girlfriend thought the fee payments were suspicious. The government didn't cause counsel to withdraw. Rather, local counsel withdrew because of a perceived conflict of interest and out-of-state counsel could not get another local counsel to sponsor him. The jury's acquittal of the defendant on the money laundering charge, which related to the attorney fee matter, did not prove the illegitimacy of the government's concern about a conflict. Nor did the d. ct. engage in misconduct in this regard. It didn't force counsel to withdraw. The d. ct. could not be faulted for placing the fee in the court registry when it was counsel who suggested it do so. The d. ct.'s allowance of the government's sealed ex parte submission gave the 10th "some pause," but the d. ct. was prepared to hold an evidentiary hearing on the matter when counsel withdrew on his own.
Sleeping jurors do not warrant a new trial, absent a showing of prejudice, i.e., that a juror missed large portions of the trial or particularly critical testimony. General assertions of jurors dozing doesn't cut it. In this case, the defense and the prosecution notified the d. ct. a number of times that jurors were nodding off or shutting their eyes. But the transcript did not show the jurors were actually asleep. The d. ct. kept an eye on one of the offending jurors and declared: "every time a juror closes their eyes we can't presume they are sleeping." Counsel never claimed prejudice during trial and never asked for an investigation or substitution of jurors. The defendant on appeal did not identify what portions of the trial the jurors slept through.
The evidence supported an obstruction of justice sentencing guidelines enhancement where evidence indicated the defendant instigated a witness signing a note that said most of the items in a storage unit belonged to the witness's girlfriend. Those items were drugs and guns that were the subject of the charges against the defendant. It didn't matter that the note was never introduced into evidence. An attempt to influence the proceedings is enough.

Martinez-Mercado v. Holder, 2012 WL 3055844 (7/27/12) (unpub'd) - The Lawful Permanent Resident alien did not fit within the exception from removability for having a single offense involving possession of 30 grams or less of marijuana for one's own use because with respect to the same incident he was also convicted of possession of drug paraphernalia. That's two offenses, not a single one. It doesn't matter that the offenses were part of a single scheme.

U.S. v. Bell, 10th Cir. No. 12-6038 (7/6/12) (upon granting rehearing petition in part on 7/25/12)) (Okl.) (unpub'd) - In this § 2255 case, the 10th states without discussion that, even after Dorsey, the Fair Sentencing Act does not apply to crack defendants sentenced before 8/3/2012, the effective date of the Act.

U.S. v. Ramirez-Fragozo, 2012 WL 2989664 (7/23/12) (Okl.) (unpub'd) - The 10th interprets Kentucky v. King, 131 S. Ct. 1849 (2011), in a troubling way. In King, the S. Ct. held that officers do not create an exigency by knocking on a door which causes the occupants to hurry to destroy evidence unless the officers make a demand that amounts to a threat to violate the Fourth Amendment. The 10th found it did not constitute such a threat when the officers knocked on the front door and announced twice: "Police department Come to the front door." The 10th notes the occupants had no obligation to respond to the knock, but by trying to destroy evidence they only have themselves to blame for the creation of the exigency. The 10th does not discuss the undeniable fact that the police did not give the occupants a choice of ignoring the knocks.

Interpreting NM law regarding turn signals more expansively than state courts, Tenth reverses suppression grant

U.S. v. Burciaga, 2012 WL 3024224 (7/25/12) (N.M.) (Published) - A divided 10th reverses the grant of a suppression motion, adopting an expansive view of New Mexico's statute requiring turn signals 100 feet before turning when "any other traffic may be affected." In State v. Hubble, 206 P.3d 579 (N.M. 2009), the N.M. S. Ct. interpreted the statute to mean a turn signal must be used when there is "only a reasonable possibility that other traffic may be affected by the signaling driver's movement." In Hubble, the defendant did not turn after stopping until after an officer had passed a T-intersection [when it was obvious the defendant had to turn one way or the other]. Yet the N. M. S. Ct. held the defendant had violated the statute. The 10th says that under Hubble, while a driver doesn't have to signal before every lane change, the state doesn't have to prove other traffic "could have been affected." The standard is lower than that. [The 10th admits "Hubble is an exercise in semantics."] A driver intending to change course may affect not only drivers' actions, but also their decision-making processes in the time leading up to the movement. In this case, the defendant made the mistake of passing New Mexico State Police Officer John Valdez at 75 miles per hour on I-25 and then once he was a "little ways in front" of the officer, signalling his intention to merge back to the right lane simultaneously with the move. This gave the officer reasonable suspicion that the defendant violated the turn-signal statute, even though the officer didn't think the defendant's actions affected him or other traffic. Chief Judge Briscoe dissents. She notes the government conceded that, if another car was a great distance away from the defendant, there would be no violation. She finds insufficient evidence of a violation because the officer did not present a concrete estimate of the actual distances involved and his speed at the time.

California burglary of a dwelling not a categorical crime of violence under USSG 2L1.2

U.S. v. Huizar, 2012 WL 3055930 (7/27/12) (Okl.) (Published) - The 10th, in an opinion by Judge Gorsuch, holds that California's burglary of a dwelling is not a crime of violence under § 2L1.2. Since the offense does not have unlawful entry in the generic sense as an element, it is not generic burglary. A defendant can commit burglary even if s/he is invited into the home. The 10th indicates it might be possible that a conviction of the offense might be for generic burglary if there is a finding of lack of consent of the owner. Here the defendant was charged with "unlawfully" entering the dwelling, but that could mean 1 of 2 things. It could mean that the defendant entered without the consent of the owner [there was no need to charge that, since that's not an element], or that the owner did not invite the defendant in knowing he would commit a crime [e.g., not entering to plan a fraud with the owner]. The government didn't prove which meaning applied. The 10th helpfully stresses the government has the burden to prove the offense "necessarily" qualifies as a generic burglary. the government didn't meet that burden here. In the course of its decision, the 10th notes a prior unpublished 10th decision holding an unlawfully entering California burglary charge established generic burglary, U.S. v. Torres-Gonzalez, did not matter because the issue in this case was not raised nor discussed there. The 10th makes clear the d. ct. was free to consider what the defendant actually did when he committed the burglary, i.e., if he really did burglarize the home in the generic sense, in fashioning an appropriate sentence.

Sneakers qualify as dangerous weapon

U.S. v. Hatch, 2012 WL 3009817 (7/24/12) (Col.) (unpub'd) - Fitting comfortably in the dumb-criminal category, the defendant asked a friend to use a cell phone camera to record her assaulting a guy. Based on a review of the video, the 10th rules the d. ct. did not clearly err when it found the defendant had used her sneakers as dangerous weapons, warranting an enhancement under USSG § 2A2.2(b)(2)(B) and application note 1. The video supported the d. ct.'s finding that the victim was defenseless while she kicked him almost exclusively in the head. The victim barely moved while lying on the ground and his arms covering his head did not prevent the kicks from connecting with his head. The force from the kicks on the arms transferred through the arms and had a meaningful impact on the head.