Unpublished Decisions
U.S. Gutierrez, 2012 WL 4748158 (10/5/12) (N.M.) (unpub'd) - The good faith exception applied to a search of a car pursuant to a search warrant. The affidavit for the warrant was not so lacking in indicia of probable cause as to render an officer's belief in its existence entirely unreasonable under the following circumstances: during the traffic stop, the defendant was extremely nervous; the defendant and his passenger gave inconsistent travel descriptions [in Tucson all day vs. a couple of hours]; the defendant hesitated before giving the name of the friend he had stayed with; Lordsburg, where the car was stopped, was on a pipeline of narcotics distribution [this had "minimal" value]; and the passenger was very lethargic and her eyes were droopy and glossy, indicating she was under the influence of narcotics [which could be inferred from the travel route, even though the affidavit didn't expressly state that conclusion]. The 10th declines to decide whether courts may look at incriminating facts that are not in a warrant affidavit to determine the existence of good faith. No need to do so here, the 10th finds.
U.S. v. Wallace, 2012 WL 4748176 (10/5/12) (Col.) (unpub'd) - The 10th upholds a much more drastic upward variance upon revocation of supervised release. The d. ct. varied from a 3-9-month § 7B1.4 range for Grade C violations to 63 months---seven 9-month sentences to be served consecutively for the 7 original fraud counts of conviction. The defendant had repeatedly and "flagrantly" violated his conditions. A d. ct. can stack violation sentences for each and every count, even if the original sentences were concurrent.
Vaquero-Cordero v. Holder, 2012 WL 4478372 (10/1/12) (unpub'd) - The 10th reverses the BIA's determination that the Utah offense of obstruction of justice is a crime of moral turpitude [ CMT ]. The offense involved the use of force by pushing closed a door to prevent a police officer from performing an official duty - arresting the alien - with no intent to injure the officer. The 10th held the BIA had ignored its own precedent which held resisting arrest was not a CMT. The precedent the BIA cited in support of its holding was inapposite. The 10th found significant that the alien's offense did not include an element of danger to other people or property or any other aggravating factor.
U.S. v. Loya-Castillo, 2012 WL 4748173 (10/3/12) (Col.) (unpub'd) - In upholding a 30 month reentry sentence plus a consecutive 7-month sentence for a supervised release violation, the 10th says the "law generally discourages district courts from taking family ties and responsibilities into account" and observes that d. ct.s typically consider them only when they are extraordinary.
U.S. v. Lowe, 2012 WL 4714894 (10/4/12) (Kan.) (unpub'd) - The 10th panel was bound by precedent upholding the constitutionality of the previous 100-1 crack-powder ratio, despite the Fair Sentencing Act's changing of the ratio to 18-1. In response to a petition to revoke his supervised release, the defendant moved to terminate his supervised release because he had over-served his time in prison due to the original sentence he received based on the 100-1 ratio. A sentence reduction pursuant to § 3582(c)(2) still resulted in him serving an extra 21 to 38 months he would not have served under an 18-1 ratio.
Neri-Garcia v. Holder, 2012 WL 4513201 (10/3/12) (Published) - The Mexican alien was not entitled to asylum, even though Mexican officers had beaten, tortured,and imprisoned him because he is gay between 1984 and 1994, at which time he entered the U.S. The 10th upholds the BIA's decision that the 2009 and 2010 State Department Country Reports show Mexico no longer persecutes gay folks, except in isolated instances. An inhospitable attitude, "machista" culture and even discrimination are not sufficient to establish the requisite suffering that would warrant asylum.
Waterhouse v. Hatch, 2012 WL 4748185 (10/5/12) (N.M.) (unpub'd) - Another denial of a habeas petition relying on the latest S. Ct. plea bargain cases. The attorney's deficiencies in failing to discover helpful evidence impeaching the alleged child molestation victim and in telling the petitioner he would have to serve 50% of the sentence in prison, rather than the actual 85% he had to serve, were not prejudicial. The petitioner did not show he would have declined to plead guilty had counsel performed adequately.
Reed v. Michaud, 2012 WL 4497360 (10/2/12) (Col.) (unpub'd) - The 10th rejects the plaintiff's contention that his status as a registered medical marijuana patient under Colorado law created a constitutional right to use medical marijuana and a defense against imposition of a marijuana-use prohibition as a parole restriction.
U.S. v. Wallace, 2012 WL 4748176 (10/5/12) (Col.) (unpub'd) - The 10th upholds a much more drastic upward variance upon revocation of supervised release. The d. ct. varied from a 3-9-month § 7B1.4 range for Grade C violations to 63 months---seven 9-month sentences to be served consecutively for the 7 original fraud counts of conviction. The defendant had repeatedly and "flagrantly" violated his conditions. A d. ct. can stack violation sentences for each and every count, even if the original sentences were concurrent.
Vaquero-Cordero v. Holder, 2012 WL 4478372 (10/1/12) (unpub'd) - The 10th reverses the BIA's determination that the Utah offense of obstruction of justice is a crime of moral turpitude [ CMT ]. The offense involved the use of force by pushing closed a door to prevent a police officer from performing an official duty - arresting the alien - with no intent to injure the officer. The 10th held the BIA had ignored its own precedent which held resisting arrest was not a CMT. The precedent the BIA cited in support of its holding was inapposite. The 10th found significant that the alien's offense did not include an element of danger to other people or property or any other aggravating factor.
U.S. v. Loya-Castillo, 2012 WL 4748173 (10/3/12) (Col.) (unpub'd) - In upholding a 30 month reentry sentence plus a consecutive 7-month sentence for a supervised release violation, the 10th says the "law generally discourages district courts from taking family ties and responsibilities into account" and observes that d. ct.s typically consider them only when they are extraordinary.
U.S. v. Lowe, 2012 WL 4714894 (10/4/12) (Kan.) (unpub'd) - The 10th panel was bound by precedent upholding the constitutionality of the previous 100-1 crack-powder ratio, despite the Fair Sentencing Act's changing of the ratio to 18-1. In response to a petition to revoke his supervised release, the defendant moved to terminate his supervised release because he had over-served his time in prison due to the original sentence he received based on the 100-1 ratio. A sentence reduction pursuant to § 3582(c)(2) still resulted in him serving an extra 21 to 38 months he would not have served under an 18-1 ratio.
Neri-Garcia v. Holder, 2012 WL 4513201 (10/3/12) (Published) - The Mexican alien was not entitled to asylum, even though Mexican officers had beaten, tortured,and imprisoned him because he is gay between 1984 and 1994, at which time he entered the U.S. The 10th upholds the BIA's decision that the 2009 and 2010 State Department Country Reports show Mexico no longer persecutes gay folks, except in isolated instances. An inhospitable attitude, "machista" culture and even discrimination are not sufficient to establish the requisite suffering that would warrant asylum.
Waterhouse v. Hatch, 2012 WL 4748185 (10/5/12) (N.M.) (unpub'd) - Another denial of a habeas petition relying on the latest S. Ct. plea bargain cases. The attorney's deficiencies in failing to discover helpful evidence impeaching the alleged child molestation victim and in telling the petitioner he would have to serve 50% of the sentence in prison, rather than the actual 85% he had to serve, were not prejudicial. The petitioner did not show he would have declined to plead guilty had counsel performed adequately.
Reed v. Michaud, 2012 WL 4497360 (10/2/12) (Col.) (unpub'd) - The 10th rejects the plaintiff's contention that his status as a registered medical marijuana patient under Colorado law created a constitutional right to use medical marijuana and a defense against imposition of a marijuana-use prohibition as a parole restriction.
posted by Anonymous at 4:55 PM
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