Thursday, August 15, 2013

Unpublished Decisions

U.S. v. Lake, 2013 WL 4017293 (8/8/13) (Okl.) (unpub'd) - A very puzzling defense win due to Alleyne. The government and the 10th agreed with the defendant that increasing the guideline range under USSG § 2D1.1(a)(2) due to a judicial finding that the heroin conspiracy caused a heroin recipient's death violated the Sixth Amendment. If the 10th is serious about this, the holding undermines every guideline enhancement any judge ever imposes unless the defendant has agreed to it or a jury has found the triggering fact(s) beyond a reasonable doubt. The 10th has consistently held before this that the 6th Amendment is not violated when a judge's finding of fact increases the maximum of the guideline range because the guidelines are advisory. This was the whole point of the S. Ct. making the guidelines advisory in Booker. Certainly the 10h's holding would make sense under Alleyne if the judge's finding established a statutory mandatory minimum. But that's apparently not what happened in this case. Weird.

Thomas v. Adrahtas, 2013 WL 4008702 (8/7/13) (Okl.) (unpub'd) - The 10th affirms a denial of a summary judgment motion in a § 1983 civil rights case. The facts if proven at trial would establish an excessive force claim where the plaintiff alleged that after the police officer handcuffed him the officer stepped on his back, rendering him unconscious, drop-kicked him, kicked him in the head and neck and repeatedly slammed the patrol car door on his leg, all of this resulting in a concussion, wrist and knee injuries and long-term vision problems.

U.S. v. Huffman, 2013 WL 4008706 (8/7/13) (Kan.) (unpub'd) - The 10th affirms a 10-year prison sentence for a probation violation, despite the probation office and the government recommending a few months. The sentence was the guideline range-statutory max, for the original child porn offense but was way above the guideline range of 3 to 9 months for the violation. For the original sentencing without the max, the range was 135 to 168 months. The d. ct. strenuously resisted the parties' agreement that the defendant should get 5 years probation. After 2 experts testified on behalf of the probation sentence at a second hearing the d. ct. relented and agreed to give probation with the condition of completing a treatment program. The d. ct. said to the defendant: "if you mess up while you're in this program, you'll be standing right back here and there won't be any second chances." "If I mess up, I deserve it," the defendant responded. The d. ct. ominously replied: "I'm going to remember you said that." During a year and a half of probation the defendant successfully completed the treatment program but committed several Grade C violations, i.e,. not submitting a monthly report, not getting a job, drinking excessive alcohol once, testing positive for an unauthorized prescription drug, missing one drug screening and one weekly sex offender session, watching adult porn and once being at a home close to an internet-accessible computer. The defendant explained that transportation problems caused some of the violations and he couldn't get a job because he was a sex offender. The probation office recommended 120 days at a halfway house. The government recommended 6 months in prison. The d. ct. imposed 10 years because it realized it had made a mistake imposing probation and the only way the defendant would get the message would be to receive significant prison time.
In assessing the substantive reasonableness of the sentence, the 10th presumes the sentence to be reasonable because it was within the guideline range for the offense. Under 18 U.S.C. § 3565(a)(2), the 10th explains, a d. ct. has the authority to revoke probation and resentence the defendant under the subchapter related to the original offense conduct. So the d. ct. could ignore the guidelines for Grade C violations. To rely on the Grade C violation range would mean the defendant would be in a better position after violating probation than he was before the violations. According to the 10th, the d. ct. did not abuse its discretion in weighing the defendant's recidivist tendencies [although he never actually broke any criminal laws] more heavily than his youth and the experts' opinions which had been proven wrong by his subsequent conduct.

Williams v. Ezell, 2013 WL 4008708 (8/7/13) (okl.) (unpub'd) - An inmate win. To exhaust his administrative remedies the inmate did not have to file a grievance complaining about the prison's unresponsiveness to his grievances relating to the § 1983 claims he raised.