Unpublished Decisions
U.S. v. Rickett, 2013 WL 4750781 (9/5/13) (N.M.) (unpub'd) - Any error was not plain where the d. ct. failed to sua sponte hold SORNA unconstitutionally delegated congressional authority to the AG when it assigned the AG the job of deciding whether to apply SORNA to those convicted prior to SORNA. All the circuits deciding the issue have decided against the defendant's position. Concurring and dissenting opinions of some judges agreeing with the defendant's position don't cut it. The 10th addressed the issue even though the defendant entered a conditional plea that only preserved issues he did not raise on appeal. This was because the government expressly waived the guilty plea waiver argument and implicitly waived the appeal waiver argument. The 10th noted the possibility a facial constitutional challenge to a statute may not be waived by an unconditional guilty plea. But the government's waivers allowed the 10th to avoid that issue.
Hooper v. Jones, 2013 WL 4734106 (9/4/13) (Okl.) (unpub'd) - The 10th confirms that a d. ct.'s decision regarding a CJA attorney's compensation is ordinarily not appealable because it's an administrative, not a judicial, decision, but holds that a d. ct.'s decision about the proper reach of appointed counsel's authority under the CJA statute is appealable. The 10th took the defense side in a circuit split because the interpretation and application of statutory directives is the essence of d. ct. decision-making routinely reviewable under 28 U.S.C. § 1291. In this case the d. ct. refused to pay an attorney appointed to represent a capital petitioner [now deceased, the 10th notes] in his federal habeas case for the work he did in a § 1983 suit challenging Oklahoma's lethal injection procedure. The § 1983 suit was within the scope of the attorney's CJA appointment under 18 U.S.C. § 3599(c), just as was the clemency proceeding in Harbison v. Bell, 129 S. Ct. 1481 (2009). The S. Ct. has approved filing a § 1983 action to enjoin a lethal injection protocol. See Hill v. McDonough, 547 U.S. 573 (2006). It didn't hurt that the 10th had already paid counsel for counsel's work on the § 1983 appeal. It will now be up to the d. ct. how much counsel gets paid---a decision counsel cannot appeal.
U.S. v. Lee, 2013 WL 4750787 (9/5/13) (Kan.) (unpub'd) - A very sad story with the apparent help of counsel. The PSR initially determined the defendant was responsible for 41.08 grams of crack leading to a range of 70-87 months. The defendant objected to that quantity determination. At the sentencing hearing the government presented witnesses whom the d. ct. found credible and who testified the defendant was responsible for a lot more crack than the PSR found. The defendant testified differently. The range zoomed up to 292-365 months, given the new quantity of 190 grams and, thanks to a finding that he committed perjury at the sentencing hearing, the defendant's loss of an acceptance of responsibility reduction and the gaining of an obstruction of justice enhancement Ouch! The defendant got 235 months. The 10th holds the plea was voluntary even though during the plea hearing the defendant expressed confusion several times about the very uncertain sentence he faced. The d. ct. made sure the record eventually reflected the defendant knew what the sentence possibilities were. Counsel's letter to the defendant provided as much guidance as was possible where counsel said counsel did not know how things would play out since it depended largely on the judge's relevant conduct findings. The sentence appeal waiver was valid since the defendant's other complaints about counsel's conduct did not relate to the negotiation of the plea agreement, just some other aspects of the plea. (Emphasis by the 10th).
U.S. v. Zapata-Reyes, 2013 WL 4750779 (9/9/13) (Wyo.) (unpub'd) - The 10th says there was no plain error when the court did not advise the defendant at the plea hearing that the maximum sentence for a 924(c) count was life, because 924(c) does not provide for any maximum sentence and the 10th couldn't find any support for the life-max proposition. But the S. Ct. and many circuit courts, including the 10th, have said life is the max, [though not always as a holding]. See U.S. v. Bowen, 527 F.3d 1065, 1074, n. 7 (10th Cir. 2008).
Holt v. McBride, 2013 WL 4757947 (9/5/13) (Col.) (unpub'd) - The prison doctor's failure to determine the side effects of the drugs the prisoner was taking did not give rise to an 8th Amendment claim. There would only be relief if the doctor knew the side effects. Ignorance is bliss. So no relief where the prisoner was removed from a lower bunk restriction and later fell from a top bunk due to the heavy sleeping induced by the drugs he was taking.
Hooper v. Jones, 2013 WL 4734106 (9/4/13) (Okl.) (unpub'd) - The 10th confirms that a d. ct.'s decision regarding a CJA attorney's compensation is ordinarily not appealable because it's an administrative, not a judicial, decision, but holds that a d. ct.'s decision about the proper reach of appointed counsel's authority under the CJA statute is appealable. The 10th took the defense side in a circuit split because the interpretation and application of statutory directives is the essence of d. ct. decision-making routinely reviewable under 28 U.S.C. § 1291. In this case the d. ct. refused to pay an attorney appointed to represent a capital petitioner [now deceased, the 10th notes] in his federal habeas case for the work he did in a § 1983 suit challenging Oklahoma's lethal injection procedure. The § 1983 suit was within the scope of the attorney's CJA appointment under 18 U.S.C. § 3599(c), just as was the clemency proceeding in Harbison v. Bell, 129 S. Ct. 1481 (2009). The S. Ct. has approved filing a § 1983 action to enjoin a lethal injection protocol. See Hill v. McDonough, 547 U.S. 573 (2006). It didn't hurt that the 10th had already paid counsel for counsel's work on the § 1983 appeal. It will now be up to the d. ct. how much counsel gets paid---a decision counsel cannot appeal.
U.S. v. Lee, 2013 WL 4750787 (9/5/13) (Kan.) (unpub'd) - A very sad story with the apparent help of counsel. The PSR initially determined the defendant was responsible for 41.08 grams of crack leading to a range of 70-87 months. The defendant objected to that quantity determination. At the sentencing hearing the government presented witnesses whom the d. ct. found credible and who testified the defendant was responsible for a lot more crack than the PSR found. The defendant testified differently. The range zoomed up to 292-365 months, given the new quantity of 190 grams and, thanks to a finding that he committed perjury at the sentencing hearing, the defendant's loss of an acceptance of responsibility reduction and the gaining of an obstruction of justice enhancement Ouch! The defendant got 235 months. The 10th holds the plea was voluntary even though during the plea hearing the defendant expressed confusion several times about the very uncertain sentence he faced. The d. ct. made sure the record eventually reflected the defendant knew what the sentence possibilities were. Counsel's letter to the defendant provided as much guidance as was possible where counsel said counsel did not know how things would play out since it depended largely on the judge's relevant conduct findings. The sentence appeal waiver was valid since the defendant's other complaints about counsel's conduct did not relate to the negotiation of the plea agreement, just some other aspects of the plea. (Emphasis by the 10th).
U.S. v. Zapata-Reyes, 2013 WL 4750779 (9/9/13) (Wyo.) (unpub'd) - The 10th says there was no plain error when the court did not advise the defendant at the plea hearing that the maximum sentence for a 924(c) count was life, because 924(c) does not provide for any maximum sentence and the 10th couldn't find any support for the life-max proposition. But the S. Ct. and many circuit courts, including the 10th, have said life is the max, [though not always as a holding]. See U.S. v. Bowen, 527 F.3d 1065, 1074, n. 7 (10th Cir. 2008).
Holt v. McBride, 2013 WL 4757947 (9/5/13) (Col.) (unpub'd) - The prison doctor's failure to determine the side effects of the drugs the prisoner was taking did not give rise to an 8th Amendment claim. There would only be relief if the doctor knew the side effects. Ignorance is bliss. So no relief where the prisoner was removed from a lower bunk restriction and later fell from a top bunk due to the heavy sleeping induced by the drugs he was taking.
posted by Anonymous at 5:02 PM
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