Unpublished Decisions

U.S. v. Cooper. 2013 Wl 3767349 (7/19/13) (Kan.) (unpub'd) - The d. ct. committed reversible error when it determined the guideline sentence was the mandatory minimum of 10 years for possessing a short-barreled rifle in violation of § 924(c) where the government had not alleged that fact in the indictment. The 10th did not decide if the short-barreled nature of the firearm was an element of the offense because the government conceded that it was. If it was an element then the defendant was not subject to the § 924(c)(1)(B)(i) mandatory minimum because an element has to be alleged in the indictment. Since the error resulted in a guideline calculation error, it was not harmless. On the other hand, the 10th rejects the defendant's contention that the 10-year minimum was a fixed sentence that the d. ct. could not exceed.

U.S. v. Lee-Speight, 2013 WL 3722126 (7/17/13) (Kan.) (unpub'd) - The § 2255 movant's allegation that counsel failed to file an appeal as requested was sufficient to avoid dismissal. The d. ct. thought the movant should have alleged he requested the appeal before the notice of appeal was due. But since there was no indication in the record the request was untimely, a pro se pleading must be construed liberally and the movant did respond quickly when he learned counsel had not appealed, the record failed to conclusively show the movant was not entitled to relief.

Burgin v. Leach, 2013 WL 3491636 (7/15/13) (unpub'd) - The officer was not deliberately indifferent to an extreme risk of very serious harm where the officer was traveling at over 90 miles per hour in response to a non-emergency call, only intermittently activated his emergency lights, and then lost control trying to avoid a collision, killing the plaintiff's husband.

Conley v. McKune, 2013 WL 3722124 (7/17/13) (Kan.) (unpub'd) - The prisoner stated a claim for relief when he alleged the condition of his teeth caused him intense and chronic pain, a speech impediment, clogged sinuses, and choking when food dislodged from his teeth, and prison authorities refused to provide the orthodontic treatment required to alleviate the problem. According to the plaintiff, prison officials told him the recommended procedure was too expensive, that they wouldn't help him because he had complained to the governor, and that they hoped he would choke to death. On the other hand, it was okay for the d. ct. to refuse to order the prison to relieve the prisoner's dental pain by providing medical marijuana, an iPod, and pornography.

U.S. v. Couchman, 2013 WL 3491562 (7/15/13) (Okl.) (unpub'd) - The 10th rules the Ex Post Facto Clause only prohibits application of adverse laws that are enacted after the defendant's offense, not any adverse law enacted after the offender's birth, as the defendant contended.

Justice System Hammered by Sequestration

I recently saw a spate of articles asserting that sequestration hasn't been that bad, that no one was really hurt by it, and that federal agencies had coped just fine. The Huffington Post, among others, has been running excellent articles debunking this myth and documenting the devastation inflicted on many Americans by the ill-advised mandatory budget cuts, which are hitting agencies that provide services particularly hard. Among the victims are the federal court system, and in particular the agency responsible for providing defense for thousands of federal criminal defendants -- the Federal Defender Organization. The US Courts are being decimated by sequestration. The result will be the denial of constitutional rights, including to due process, to serve on juries, and to have constitutionally effective counsel, to a staggering number of people.

Many others have detailed the situation better than I, so I have gathered below a small sample of articles from around the country on the issue. These articles demonstrate that the crisis is nationwide.

Austin American-Statesman
Federal courts in Texas brace for leaner budgets

Judiciary Needs More Resources

Daily Astorian
Sequestration Pummels Oregon's Federal Courts

Huffington Post
Sequestration's Biggest Victim: The Public Defender System

Honolulu Star-Advertiser
Cuts might jeopardize U.S. public defenders in the isles

Las Cruces Sun-News
Defense attorney says slashed budget will erode constitutional rights, won't save feds money

Daily Bulletin
Public Defenders Warn Of Dire Budget cuts

Santa Fe New Mexican
Public defender cuts may hike costs, jeopardize justice

Philly.com
Federal cuts hit Philadelphia defenders

The Atlantic
How the Sequester Threatens the U.S. Legal System

Prisoner Has a Property Interest in Good-time Credit-earning Classification Level

Ali v. Taylor, 2013 WL 3336817 (7/3/13) (Okl.) (unpub'd) - A prisoner victory. The prisoner had a property interest protected by due process in his good-time credit-earning classification level.. This was because his demotion in levels was non-discretionary once he was placed in short-term administrative segregation. That happened because an administrator of a faith-based program charged him with sexual harassment after he inquired about the administrator's sexual orientation, since his religious beliefs prohibited him from being instructed by a homosexual.

10th Can't Review BIA Hardship Determination

Munis v. Holder, 2013 WL 3306406 (7/2/13) (Published) In a matter of first impression for the 10th, the 10th decides the hardship determination underlying the denial of a waiver of inadmissibility is a discretionary decision and therefore under 8 U.S.C. § 1252(a)(2)(B)(i) the 10th can't review it.

Alien Abandoned Appeal of BIA Decision Despite Circumstances of Departure

Montano-Vega v. Holder, 2013 WL 3285584 (7/1/13) (Published) - The alien was faced with an impossible choice. If he left the country the BIA would deem he abandoned his appeal of the voluntary departure denial, meaning he couldn't return for 10 years. Or he could stay, pursue his appeal and accumulate more than one year in the U.S., again triggering the 10-year ban. He chose to leave the country and challenge the BIA's finding of abandonment of the appeal because his departure was coerced. The 10th was unimpressed. The motivations for leaving didn't matter. Courts may intercede only when a governmental action violates positive law or needlessly penalizes the assertion of a constitutional right. Here the BIA violated no statute or regulation and there is no constitutional right to litigate a BIA appeal.

37-Month Sentence for Bank Robbery Held to Be Substantively Reasonable

U.S. v. Borghee, 2013 WL 3326343 (7/1/13) (Okl.) (unpub'd) - In the course of upholding as substantively reasonable a 37-month sentence for bank robbery, the 10th finds "compelling" the defendant's mitigation argument that the defendant's growing depression and panic attacks, fueled by his financial situation, combined with his youth and immaturity, led him to commit the robbery.

Texas Assault Prior Conviction Held to Be a Crime of Violence for Career Offender Purposes

U.S. v. Rodriguez, 2013 WL 3337776 (7/3/13) (Okl.) (unpub'd) - The 10th figures out a clever way to find the defendant was convicted of a crime of violence ("cov") for career offender purposes. The defendant was convicted under the same Texas assault statute that lead to the 10th holding in Zuniga-Soto, that the defendant had not been convicted of a cov. The statute can be violated by intentional, knowing or reckless conduct. If it's reckless there's no cov. Here the defendant was charged with intentionally, knowingly and recklessly causing bodily injury. Under Texas law those seemingly contradictory states of mind don't cancel each other out. Proof of a higher level of culpability is proof of the lower. The defendant pleaded guilty to "all the allegations in the indictment." So he was convicted of the intentional version of the statute. It's a crime of violence. The defendant's 188-month sentence for meth distribution was substantively reasonable even though he was classified as a career offender due to the timing of the federal prosecution after he was convicted of a state offense that happened after the federal offense. The 10th was unimpressed by the policy argument that the purpose of the career offender provision was to punish someone who hadn't learned his lesson from being convicted twice before.

Tenth Affirms Applying the Higher of Two Possible Guidelines When Sentencing for Interfering with Administration of Tax Law

U.S. v. Neilson, 2013 WL 3306368 (7/2/13) (Ut.) (Published) - The 10th reviews de novo which guideline to apply to interfering with the administration of the IRS laws. The question is whether the defendant's conduct as a whole is akin to the offenses under the tax guideline, § 2T1.1 or under the obstruction of justice guideline, § 2J1.2. The defendant used 3rd parties to transfer property to trusts to avoid taxes, reported different financial information to the IRS than he did to a lender, and mailed "frivolous" letters seeking to "redeem" the value of his birth certificate and other similar wacko Redemption stuff. The 10th decided this conduct had more in common with tax than obstruction offenses, e.g. a case where the defendant obstructed a tax auction. So the 10th affirms the district court's application of § 2T1.1, which resulted in a higher guideline range than under § 2J1.2.

Another Detention in "High-Crime Area" OK'd Even Though No Single Circumstance Was Suspicious

U.S. v. Briggs, 2013 WL 3306393 (7/2/13) (Okl.) (Published) - This was a "close case," but there was reasonable suspicion to detain the defendant where: (1) the defendant and his companion were walking in a high-crime area; (2) the men changed direction and picked up their pace when they saw a police car, while the defendant repeatedly looked over his shoulder at the officers; (3) the defendant repeatedly grabbed at his waistline, which the officers thought indicated he had a gun; (4) the men took divergent paths into a yard of a home; (5) when officers asked to speak with the men, the defendant back-pedaled and acted nervous; and (6) the defendant's companion fled. The 10th indicated none of the factors alone justified detention. The reaction by the men to the police car was suspicious even though they didn't run. They were not simply going about their business. The 10th disagreed with the district court discounting the waistline grabbing. While the district court thought the defendant could have been just pulling up his pants, ambiguous conduct with an innocent explanation can still arouse suspicion. The companion's flight was suspicious, even though it wasn't in U.S. v. De La Cruz, 703 F.3d 1193 (10th Cir. 2013). Here the two men were acting in concert so that the wrongdoing of one was likely to be shared with the other. That the defendant chose not to flee could be because he didn't have time to do so, not that he had nothing to hide.

Constitutionality of Hate Crimes Prevention Act Upheld

U.S. v. Hatch, 2013 WL 3336809 (7/3/13) (N.M.) (Published) - The 10th upholds the constitutionality of the Hate Crimes Prevention Act as a Congressional exercise of its powers under the Thirteenth Amendment. Congress could decide that racially motivated violence is a badge and incident of slavery and criminalize it. The 10th felt bound to follow Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), which held Congress had the power pursuant to the 13th Amendment to forbid discrimination in buying and selling property. The 10th found that under Jones Congress can rationally define most forms of racial discrimination as badges and incidents of slavery and legislate accordingly. The 10th was impressed with defense arguments, relying on the Tenth Amendment and Commerce Clause cases, that post-Jones federalism cases call into question giving Congress what amounts to police power the states are supposed to exclusively have. The 10th shared the defense's concerns, but believed it was up to the S. Ct. to modify its Jones decision. Plus the 10th thought the Hate Crimes Act had principles limiting Congressional power that are consistent with the limiting principles it saw in Jones. (1) The Act is confined to aspects of race---"race, color, religion or national origin"---as understood when the 13th Amendment was adopted. Congress placed non-racial classifications in another section where there must be an interstate connection. (2) The state of mind requirement further restricts the Act's reach. (3) Congress could rationally conclude physically attacking someone to assert superiority over that race is a badge or incident of slavery. Congress's requirement that the DOJ certify the prosecution was "in the public interest and necessary to secure substantial justice" was okay even though it was so toothless that the government certified this case where the state adequately punished the defendants involved - the federal sentence was concurrent with the state sentence.

"Negligent Child Abuse with No Injury" Conviction Did Not Preclude Cancellation of Removal; Useful Categorical Analysis Discussion

Ibarra v. Holder, 2013 WL 3490753 (amended 7/12/13, originally published 7/1/13) - Although this is an immigration case, it has some helpful categorical analysis in a win for the alien. The alien's conviction for negligent child abuse with no injury is not a "crime of child abuse, child neglect or child abandonment" that would have precluded cancellation of the alien's removal. The BIA incorrectly interpreted the child-neglect provision to include criminally negligent omissions which endanger children. It was wrong to adopt a civil mens rea when, by using the word "crime" Congress meant to restrict the definition to a criminal mens rea. A generic meaning that is not dependent on a particular state's definition applies. In 1996 when the child abuse provision was enacted the majority of the states required a mens rea of knowing or intentional for criminal sanctions to apply for child neglect with no injury. So a conviction, like the alien's, for criminal negligence with no injury does not fit within the child-neglect category. The BIA's interpretation was so out of the loop it didn't deserve deference. The 10th helpfully observes the categorical approach requires examining only the minimum conduct needed for a conviction. The 10th also questioned whether the BIA could change its interpretation of the child neglect provision to cover crimes like the alien's after the alien already pleaded guilty.

Left Turn Into Far Right Lane Did Not Support Traffic Stop Under NM Law

U.S. v. Nicholson, 2013 WL 3487743 (7/12/13) (N.M.) (Published) - The defendant was stopped after he turned left at an intersection and drove into the far right lane. The relevant New Mexico statute, N.M. Stat. Ann. § 66-7-322 requires people to turn into particular lanes under certain circumstances, such as turning right and turning left where there are markings showing you into what lane to turn, but it doesn't really say you have to go into the left lane if you're turning left into a street with more than one lane on that side of the median. As this case was being appealed, the New Mexico Court of Appeals interpreted the statute not to require a left turn into the left lane. All 3 judges agreed that was a correct interpretation given the specific prohibitions regarding some turning but the silence in the defendant's situation.Judges Briscoe and McKay held that the detention for what was not a violation of the statute violated the Fourth Amendment, even if the statute was ambiguous. They held, as the 10th has said before, that mistakes of law by an officer are always objectively unreasonable. They justified that stance on the grounds that: officers are supposed to enforce the laws; the rule provides an incentive for officers to make certain they understand the law; ignorance of the law is not an excuse for defendants and shouldn't be for officers; on plenty of occasions the officer can justify a stop based on laws the officer hadn't thought of at the time; officers can seek a warrant to clarify a statute's meaning; reasonable mistakes of fact don't invalidate a stop; some mistakes of law are excusable, e.g. re: legal ownership. The majority refused to consider the government's arguments for a good faith exception and that the defendant violated other traffic laws because the government had not raised those issues below, leaving the record without facts to support its claims.

Judge Gorsuch dissented in an opinion that's longer than the majority's. He believes a totality of the circumstances, case-by-case test should apply when the relevant statute is ambiguous, just like a lot of other 4th Amendment reasonableness determinations. Relevant considerations would be the officer's training, how other officers understand the statute or even how do many New Mexicans perceive the law. The judge worries about a legal regime that discourages officers from "investigating facts thoroughly enough or attend to the Constitution's commands carefully enough." The totality test is a sufficient protection for the 4th He feels distinguishing between mistakes of law and mistakes of facts can be "vexing." And then there are the mistakes of a man who takes an umbrella and thinks theft is not a crime and one that thinks the umbrella is his. What a tangle! Judge Gorsuch also questions whether the 10th's precedent really conforms to the majority's holding. He believes on remand the d. ct. could address the good faith question as well, determining if the officer acted with deliberate or reckless indifference. The government shouldn't be faulted for not raising good faith when it won and didn't need to raise the matter.

Cop's first shot OK; next six -- maybe not: Denial of summary judgment affirmed

Fancher v. Barrientos, 2013 WL 3481983 (7/12/13) (N.M.) (Published) - The 10th affirms a denial of the defendants' motion for summary judgment in a § 1983 case. While the evidence indicated the deputy sheriff had good reason to shoot the suspect the first time as the suspect was about to drive off with his patrol car that contained guns, the evidence could support that the officer should not have shot the suspect 6 more times. The officer testified he saw the suspect slump after the first shot and was not reaching for the guns. The slumping suspect in a car that was in reverse going away from the officer was no longer a danger to the officer. There was evidence the officer had time between shots to step back from the car and assess the situation and know there was no more danger [to anyone except the dying suspect].