Thursday, July 25, 2013

Unpublished Decisions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.