Sentencing Enhancements Affirmed in Felon-in-possession Case

US v. Basnette, No. 12-7074 (ED Okla), 11/21/13 (Published) - Defendant was convicted of felon in possession of firearms, and raised several challenges to his sentence. None worked. Held: (1) enhancement for possessing at least eight guns was proper, where cops found a total of fourteen in his house; (2) no reduction in offense level for possessing antique firearms. Defendant had the burden of proof on this issue, since it constituted an affirmative defense, and he failed to show that any of them, much less all of them, were antiques; (3) same result for claim that guns were possessed for hunting or collecting, for the same reason; (4) enhancement for possessing guns in connection with another felony offense, transportation of stolen property, where defendant had sixty items of stolen property in his house, was proper. The district court properly relied on hearsay to establish that items were stolen, defendant was member of theft ring involving hundreds of thousands of dollars worth of stolen property, and some of the guns were kept out in the open, so it was proper to infer that he had the guns to protect his stash of stolen property; and (5) sentence at the bottom of the guidelines range was substantively reasonable.

Death Sentence Affirmed; Ineffective Assistance, Prosecutorial Misconduct Claims Rejected

Cole v. Trammell, 2013 WL 6051202 (OK) (11/18/13) - Mr. Cole's conviction of the first degree murder of his nine-month-old daughter and death sentence are affirmed. He received a fundamentally fair trial and any errors did not have a substantial and injurious effect or influence on either his conviction or sentence. (1) He failed to establish IAC resulting from a breakdown in communication with his trial counsel. Their defense of him was vigorous and Cole failed to even identify prejudice resulting from the communication difficulties. (2) IAC claim relating to counsel's failure to investigate and present mitigation evidence from Cole's family members is procedurally barred because it could have been raised on direct appeal. Cole had different counsel on appeal than at trial and he could have requested an evidentiary hearing to supplement the record on appeal with evidence relevant to his claim. Anyhow, it is not reasonably probable that additional evidence re: childhood difficulties would have persuaded the jury that mitigating factors outweighed the aggravating factors. (3) Admission of gruesome autopsy photos was proper to aid the jury in understanding the medical examiner's testimony re: the victim's injuries and cause of death. (4) There was sufficient evidence from the medical examiner's testimony to allow a rational trier of fact to find beyond a reasonable doubt that the murder was especially heinous, atrocious or cruel, given the amount of force it would have taken to inflict the fatal injuries and the pain the child would have endured before death. (5) Prosecutorial comment repeatedly referring to God and religion in both the trial and penalty phases may have been improper, but did not deprive Cole of a fair trial.

Court Addresses Reasonable Foreseeability of Loss in Mortgage Fraud Case

U.S. v. Crowe, 2013 WL 6051205 (CO) (11/18/13) - The concept of reasonable foreseeability applies in calculating "actual loss" under § 2B1.1(b), but not to calculation of the "credits against loss." Ms. Crowe was convicted of multiple counts of mail fraud and wire fraud, based on a mortgage fraud scheme. She falsely represented employment and income info on first and second mortgage applications for her home and on residential loan applications involving eighteen additional properties. In determining the appropriate amount of reduction to the loss amount based on what could be recovered from the various properties, it is irrelevant whether Crowe reasonably anticipated the big real estate collapse that occurred shortly after she negotiated the mortgages. The loss should be reduced only by the amount actually recovered or the fair market value at the time of sentencing, regardless of the foreseeability of any decline of the collateral's value.

District Court Erred by Dismissing One of Two 924(c) Charges Where There Were Two Victims

U.S. v. Rentz, 2013 WL 6051246 (UT) (11/18/13) - Reversal of district court holding that a single use of a firearm that resulted in severe injury to one victim and death to another cannot support multiple § 924(c) charges. Circuit precedent dictates that multiple § 924(c) charges arising from the same criminal episode are proper when there are multiple underlying violent or drug-trafficking offenses, The only issue is whether the underlying violent or drug-trafficking offenses themselves can be charged together without violating the Double Jeopardy Clause. And because second degree murder and assault resulting in serious bodily injury each require proof of an element that the other does not, the Blockburger test is satisfied and there is no double jeopardy problem. The district court therefore erred in dismissing one of the two § 924(c) charges.

Mail-Fraud Defendant Gets New Sentencing

US v. Oyegoke-Eniola, 2013 WL 6017401, 11/14/13 (Published) - Defendant pled guilty to mail fraud and making a false statement in an immigration document. The presentence report added several enhancements to the base offense level: 2 levels for possessing five or more stolen identification documents, 2 more for using sophisticated means, 8 more because the intended loss was between $70g and $120g, and 2 more because there were 10 or more victims. After deducting 3 levels for acceptance of responsibility, and with a criminal history category of I, the final range was 27 to 33 months. Defendant filed objections to all of the enhancements. The government responded that it lacked evidence that he had 5 or more stolen identity documents. The court apparently accepted the concession and wrote a letter to counsel saying the new range would be 21 to 27 months. At the sentencing hearing, the government called a Secret Service agent to establish the sophisticated means enhancement, but the court didn't buy it and refused to make a finding one way or another on the issue. In light of defendant's extensive history of fraudulent conduct, it varied upward and imposed 60 months. It did not, however, specify what offense level or guidelines range used to arrive at the final sentence. Then, 11 days after the sentencing hearing, the court filed an amended statement of reasons, in which it checked off that it adopted the PSR without changes, typed in the original offense level in the PSR, and typed in the original guidelines range of 27 to 33 months. On appeal, defendant challenged the enhancements, objected that statement he made after getting an agreement should have been stricken from the PSR, the sentence was substantively unreasonable, and challenged the district court's failure to address one of his objections to the PSR.
Held: (1) no plain error review because defendant had no reason to object to apparently winning 2 of his challenges to the PSR enhancements, so review is for abuse of discretion; (2) the district court erred in the amended statement of reasons by adopting the PSR and using an offense level of 18; (3) the error was not harmless, since the court never said that the final sentence would have been the same under multiple approaches, so remand for resentencing was required, obviating the need to address the substantive reasonableness argument and failure to address the PSR challenge; and (3)using defendant's statements after getting the standard Kastigar letter was problematic, even though they were used at sentencing rather than in the government's case-in-chief at trial, since the letter did not "specifically mention the court's ability to consider the defendant's disclosures in calculating the appropriate sentencing range" as the court had previously required in construing USSG 1B1.8(a) which deals with use of self-incriminating statements made in connection with a cooperation agreement in calculating the sentencing range. An application note says that the Commission's policy is that such statements should not be used to depart upward. Since the court varied rather than departed upward, and at least one court has suggested that using them to vary upward is just fine, he court left it to the district court to decide whether it wanted to use the statements, and make a record of whether it is doing so.

Order Denying Defendant's Motion to Unseal DEA File on Informant Reversed for Reconsideration

U.S. v. Pickard, 2013 WL 5912089 (11/5/13) (Kan.) (Published) - The 10th overturns an order denying the defendants' motion to unseal the DEA file on a CI because the district court: (1) didn't require the government to articulate a significant interest in keeping the records sealed; (2) didn't apply the presumption in favor of keeping judicial records open to the public; and (3) didn't consider whether unsealing a redacted version would serve whatever government interest there was for sealing the records. During the trial 8 years before the government filed the CI's file with the district court and complied with the court's order to turn it over to the defense. But the court also sealed the file. Since then some of the information was made public. The defendants filed the motion so that it could use the information for ongoing litigation, including Freedom of Information Act litigation. The defendants had sufficient standing to make the motion because they alleged actual injury due to their need to use the information in litigation. The government had the burden to overcome the presumption in favor of open judicial records, but didn't bother to state what interest there was in keeping the records secret. Instead the court improperly placed the burden on the defendants to show a compelling need for the documents. At the very least the court could have allowed release of information that had already been made public. On remand the government would be given a chance to disclose its interests in secrecy. The 10th suggested the district court should expedite the proceedings.

Guards Who Restrained 11-Year-Old Pretrial Detainee in Restraining Chair Not Entitled to Qualified Immunity

Blackmon v. Sutton, 2013 WL 5952135 (11/8/13) (Kan.) (Published) - Juvenile detention facility officers and officials were not entitled to qualified immunity where they allegedly shackled an 11-year-old pretrial detainee in a restraining chair for hours to punish him or for no legitimate penological purpose, even if they also used the chair at times to prevent suicide or keep order. A guard sitting on the child's chest to punish him for not doing what he was told could also be a violation of due process. Briefly sitting on a child might be reasonably related to a penological purpose, such as when the child refuses to release a weapon, but the defendants did not say what the child refused to do. He could have refused to answer an idle question unrelated to the administration of the detention facility. The denial of meaningful access to mental health care and a delay in doing so suggested a conscious disregard of a substantial risk of serious harm in violation of due process. While the defendants consulted a psychologist, they delayed considerably in doing so from the onset of the child's serious self-harm problems and there was no treatment provided after the consultation. It didn't matter that the law wasn't crystal clear on what duties were owed pretrial detainees. It is clear they have at least as much rights as convicted folks. On the other hand, it was unclear whether pretrial detainees have an independent right to be placed in a particular facility of their choice, in this case an unlocked shelter.

Unpublished Decisions

Morales v. Holder, 2013 WL 5912092 (11/5/13) (unpub'd) - A sad immigration story. The alien entered the U.S. from Mexico when he was 7, married a U.S. citizen and had 4 U.S. citizen children. While represented by counsel, during a removal hearing, the alien testified he used a copy of the birth certificate of his U.S. citizen brother-in-law to obtain work when he was 18. The immigration authorities determined this constituted a false claim to citizenship in order to obtain a benefit under the law, automatically rendering him inadmissible. The fact that there was pending legislation in Congress that might make him admissible was not helpful. "Pending legislation is not applicable law."

Thomas v. Rios, 2013 WL 5930861 (11/6/13) (Okl.) (unpub'd) - A state court ordered revocation of 2-years' worth of good time credits can be revoked and then suspended as long as the petitioner stopped seeking post-conviction collateral relief.

Bleck v. City of Alamosa, 2013 WL 5878802 (11/4/13) (Col.) (unpub'd) - The plaintiff was "seized" for 4th Amendment purposes when an officer tried to push the resisting plaintiff down on a bed while holding a gun as a show of authority and the gun accidentally discharged a bullet into the plaintiff's hip. Even though the gun accidentally discharged, it was enough that the officer intentionally used the gun as a show of authority to restrain the plaintiff's movements. The 10th remanded for a determination whether the seizure was reasonable and a city policy or custom caused the unlawful seizure. The 10th let the officer off the hook on qualified immunity grounds---a defense not available to the city. The law the 10th ruled upon in the plaintiff's favor was not clearly established. The 10th relied on dicta from a S. Ct case, Brower v. County of Inyo, 489 U.S. 593 (1989), for its constitutional ruling, but it wouldn't be beyond debate in the mind of an officer that the officer had to follow that dicta.

Unpublished Decisions

U.S. v. Smith, 2013 WL 5751748 (10/24/13) (Kan.) (unpub'd) - The d. ct. reversibly erred when it ignored USSG § 5G1.3(b). The defendant was convicted of federal wire fraud for selling stolen items on Craigslist. He received a 9-year sentence in state court for the burglaries and thefts that supplied the items sold on Craigslist. The d. ct. upwardly varied from the range of 46-57 months to 15 years for wire fraud to run consecutively to the state sentence. The defendant kept objecting that § 5G1.3(b) required the sentence to run concurrently because the underlying state offenses were relevant conduct that enhanced the loss amount for offense-level purposes for the wire fraud. The d. ct. never acknowledged § 5G1.3(b). Instead the court said: it was not required to ignore the defendant's conduct that is part of the federal crimes; there was no double punishment because wire fraud is a federal crime, not a state crime; the defendant wouldn't have to serve his full state sentence; and concurrent sentences would not be sufficiently severe. The court seemed "perplexed" by the defense objection, asking: "You think wire fraud is part of the state crime?" The 10th considered the defendant's issue as a procedural one even though the defense characterized it as substantive. Luckily the 10th found the issue preserved nonetheless. The 10th found § 5G1.3(b) applied, but that the d. ct. mistakenly believed it inapplicable. The error was not harmless given that the judge's starting point was "measurably" wrong. The d. ct. thought it was upwardly varying by 123 months, but it really was varying more than 220 months [123 months plus the length of the state sentence]. That could have made a difference in the sentence. And, while it was okay to consider the differences between the defendant and his co-defendant, the d. ct. committed plain error by relying on their differences alone without considering sentencing disparities nationwide. The defendant had not waived the issue by saying the differences between him and the co-defendant were neutral factors. He just failed to recognize the error.
The majority refused to consider the substantive reasonableness of the sentence, leaving it up to the d. ct. to reconsider in light of the 10th pointing out its errors. Judge Ebel in concurrence flat out finds the sentence to be substantively unreasonable. He notes the sentence was more than triple the range, He concludes the defendant was not necessarily incorrigible since he was only 23. He also finds significant the fact that the defendant so far had spent very little time incarcerated despite a long criminal record, meaning a lower sentence might be enough to convince the defendant to reform his ways. The defendant's record consisted mostly of petty crimes and the crimes were not the same ones over and over. He questioned imposing an extreme variance based on likelihood of recidivism rather than the seriousness of the crime.

U.S. v. Griffin, 2013 WL 5751431 (10/24/13) (Kan.) (unpub'd) - Mr. Smith's co-defendant did not fare so well. The majority gave a terse review of an upward variance and seemed to approve a Tapia violation to boot. The d. ct. varied from the top end of the range of 33 months to 5 years for wire fraud due to (1) the defendant's criminal history, (2) the need to protect the public and (3) the defendant's need for substance abuse counseling plus his lack of interest in counseling. The majority rejected the defense argument that the d. ct. failed to address his mitigation arguments. The d. ct. said it reviewed the evidence and the defendant's sentencing memo and said it would not rely exclusively on the PSR. That was enough. The majority seems to ignore the fact that an upward variance requires a more explicit consideration of the defense arguments than when a within-range sentence is imposed, as Lente says. Oddly the majority says there might be more need for an explanation for an upward departure, rather than a variance. It was not clear error to find the defendant was not interested in counseling since he did not research treatment programs before concluding he had no time while on pretrial release to engage in treatment. The d. ct.'s listing 3 specific reasons for an upward variance [2 of which are redundant and the other of which violated Tapia] was sufficient to allow for meaningful appellate review. The d. ct. didn't have to say why it didn't impose a lower sentence. Lente, which found error in a failure to address the danger of a variance creating unwarranted disparities did not apply here because, unlike in Lente, the defendant failed to raise disparity as an issue below. And a d. ct. necessarily considers the disparity factor when it mentions the guideline range.
The majority says the sentence was substantively reasonable in large part because it was less than 3 times the low end of the range---27 months---and about one-fourth of the 20-year stat max and the variance was less than in an unpublished 5th Circuit case. Judge Ebel dissented. He did not believe the defendant was incorrigible, given that he was 21 years old. And the defendant did not commit the same offenses over and over, had never before served any time incarcerated, and was less complicit in the offense than Mr. Smith. Some variance might be justified, but not such a big variance, Judge Ebel concluded.

U.S. v. Davis, 2013 WL 5716583 (10/22/13) (Kan.) (unpub'd) - Another affirmance of an upward variance that does not place a particularly demanding explanation burden on the d. ct. The d. ct. varied up 10 years to 25 years and 8 months due to the seriousness of the meth offense and the defendant's "extensive" criminal record. The defendant argued the proposed variance was unnecessary because application of the actual-meth, rather than meth mixture, guidelines already multiplied by 10 the quantity calculation. The d. ct. never explicitly addressed that argument, but did say the 93% pure meth was of a very high purity and could be cut many times. That was enough for the 10th to determine the d. ct. adequately considered the defense's actual-meth/meth-mixture argument. The court "could have given a more elaborate explication of its reasoning . . . but a reviewing court should be reluctant to read too much into a failure to explicitly respond. . . . We should just look at the record as a whole to gauge the judge's thought process." The d. ct.'s purity views mirrored those of the guidelines.

U.S. v. Baum, 2013 WL 5685786 (10/21/13) (Wyo.) (unpub'd) - An anti-Lake decision. As I'm sure you remember, in the Lake case the 10th implied that Alleyne meant any judicial fact-finding increasing the guideline range would violate due process and the right to a jury trial. In Baum the 10th says Alleyne does not require that the number of child porn images be proven to a jury beyond a reasonable doubt. Alleyne doesn't mean any fact that influences judicial discretion must be found by a jury.

Cheatham v. Cline, 2013 WL 5737055 (10/23/13) (Kan.) (unpub'd) - The petitioner's habeas complaining that his state court appeal took too long was mooted by the appellate court's eventual reversal of his convictions. This was so even if the delay was prejudicial with respect to the new trial in that an alibi witness had died during the pendency of the appeal.

Tijerina v. Patterson, 2013 WL 5718464 (10/22/13) (Utah) (unpub'd) - The 10th rules there is no constitutional right to writing paper. The prisoner's right to access to the court was not infringed by the prison's restrictions on how much paper he could get - initially 5 sheets per week and then 25 sheets per - where he borrowed paper from other inmates and the d. ct. observed that he had used 99 pieces of paper to argue he had too little paper.

Unpublished Decisions

U.S. v. Howard, 2013 WL 5630630 (10/16/13) (Okl.) (unpub'd) - The 10th affirms the imposition of an enhancement under § 2K2.1(b)(5) and application note 13 for transferring 2 or more firearms to "an individual whose possession and receipt were unlawful" where the defendant gave his accomplice firearms he had stolen. It didn't matter that the accomplice was not otherwise prohibited from possessing firearms, e.g. he was not a felon. The accomplice's possession was unlawful because it's unlawful to possess firearms one has reason to believe were stolen, as the accomplice did here.

U.S. v. Turrentine, 2013 WL 5663827 (10/18/13) (Okl.) (unpub'd) - The 10th refuses to find clearly erroneous a district court's finding that the officer saw a traffic violation despite the testimony of an FPD investigator indicating the officer couldn't possibly have done so. An FPD investigator testified based on the video, the height of the officers' cars, the location of those cars and the officer's behavior that the officer's view was blocked by the other officer's car. The other officer, who presumably would have had a better view, did not see a violation. It was okay for the district court to believe the officer's testimony. The investigator based his testimony on the video, not first-hand knowledge and assumptions of positioning that may not have been accurate. The 10th refuses to consider a claim that the officer was racially motivated to stop the defendant because the defense did not cite a case for that proposition. The 10th also finds reasonable suspicion to continue the traffic stop despite another FPD employee's testimony. The officer relied on: visible signs of nervousness, such as heavy breathing by the 2 occupants of the defendant's car; the defendant's failure to make eye contact while the officer talked with him; the passenger pretending be asleep; and the defendant saying they had gone to Las Vegas and the passenger saying they had gone to Oklahoma City and nowhere else. The defense said the heavy breathing was attributable to the fact the occupants were overweight and out of shape. An FPD IT guy testified the video showed the defendant and the officer made eye contact 11 times and the defendant looked at the officer another 12 times. But, the 10th says, the district court did not rely on the eye contact and heavy breathing nonsense. The clearly inconsistent stories and the fake sleep were enough to constitute reasonable suspicion.

U.S. v. Benford, 2013 WL 5629793 (10/16/13) (Okl.) (unpub'd) - Contrary to the recommendation of the Federal Medical Center (FMC), the 10th affirms the d. ct's refusal to unconditionally release the defendant from federal custody. 15 years ago the defendant was found not guilty by reason of insanity regarding a bank robbery. He's been in federal custody ever since except for 3 brief periods when on conditional release he failed to take his meds, abused drugs and alcohol and threatened people. The discharge recommendation of the FMC was premised on the assumption the defendant would be transferred to an Oklahoma state mental facility, but that transfer could not be guaranteed with certainty, although the FMC believed that would happen. He does need the structure of a hospital setting. And relevant to some of our cases the 10th reasoned: "past aggression is the single best predictor of future aggression."

Habeas Petitioner's Brady Claim Not Defaulted, Sent To District Court for Further Review

LeBere v. Abbott, 2013 WL 5663866 (0/18/13) (Col.) (Published) - A habeas petitioner procedural win. The petitioner's Brady claim was not procedurally defaulted due to a state court's ruling in a post-conviction proceeding that the Brady issue had been resolved on direct appeal where the Brady issue had not actually been resolved on direct appeal. The decision is determined by Cone v, Bell, 556 U.S. 449 (2009). As in Cone, the state court's finding that an issue has already been decided indicates the issue has been exhausted and is ripe for federal review and not defaulted. The Tennessee rule implicated in Cone was similar to the rule implicated in this case: a defendant is not allowed to raise a new legal theory based on old facts it raised previously. In this case the petitioner had raised the recantations of a state witness on direct appeal but did not raise Brady until the post-conviction proceedings, alleging an officer induced the lies at trial. But the state court did not rely on that forfeiture rule. It just said the issue was already decided. The 10th notes the irony that had the state court invoked the forfeiture rule the petitioner would be defaulted. But now the petitioner gets the issue decided in federal court and the review is probably de novo because the state courts have not actually addressed the issue.

Split Panel Affirms Co-Defendant's Conviction in Medicare Fraud Case

U.S. v. Adegboye, 2013 WL 5615054 (10/15/13) (Okl.) (Published) - On the other hand, Mr. Rufai's co-defendant was not so lucky, falling on the wrong side of the sufficiency ledger, according to a split 10th Circuit. Mr. Adegboye was more involved in the operation of the bogus company and, unlike Mr. Rufai, was involved after medicare started reimbursing the company. There was evidence he knew the business model was to provide durable equipment reimbursable by medicare and that the main guy was involved with other companies doing similar things. He wrote checks on the account which put him in a position to know the company was incurring expenses but not paying them out of the company's accounts and then later paying expenses for others of the main guy's companies and receiving lots of reimbursemnet but paying nothing for inventory. He persistently filled out paperwork without mentioning the main guy's primary role in the company, indicating Mr. Adegboye knew the main guy was committing medicare fraud. His visits to the office would have shown him there was no inventory and very few customer files. There was some evidence he knew about customer complaints about not receiving equipment. He made efforts to hide the fraud by writing deceptive checks. And there was evidence Mr. Adegboye profited from the enterprise. The majority acknowledged the question was a close one and that there were innocent explanations for some of what happened , but that the evidence "as a whole" was convincing enough.
Judge Matheson dissented. Mr. Adegboye must have known something was amiss. But his involvement in the business was not enough evidence to show Mr. Adegboye knew the main guy was committing medicare fraud. He visited the office but not when the company submitted false bills. There was no evidence he knew about the volume of complaints. He could have believed the deceptive checks he wrote were legitimate. After-the-fact statements---after the main guy was indicted---to hide involvement have low probative value under the 10th's precedent. It doesn't necessarily show he knew before the indictment that there was medicare fraud. The jury could possibly infer Mr. Adegboye knew about the fraud but not beyond a reasonable doubt.

Insufficient Evidence Supported Medicare Fraud Convictions

U.S. v. Rufai, 2013 WL 5615053 (10/15/13) (Okl.) (Published) - The 10th finds insufficient evidence to prove the defendant knowingly and willfully aided the medicare fraud that concededly occurred. The fraud involved getting reimbursed for wheelchairs that were never delivered to patients and delivering cheaper scooters rather than wheelchairs. The defendant did know that the main guy was using him as a straw owner of an enterprise that relied on medicare. But the government didn't show he knew he was helping to further medicare fraud. His interactions with the main guy just showed an association with the guy, not knowledge of the scheme. He had no interaction with medicare. He lived in NYC and the company's office was in Oklahoma. An employee's statements to him that people complained about not receiving equipment from the main guy's other company, which did not have inventory, and that the main guy had her put his name on tax documents may have indicated there was tax misconduct, the main guy was willing to deceive medicare and there was something fishy going on with his company, but they did not show he knew the company he was associated with would fraudulently bill months later. This case has some good quotes regarding the importance of the beyond-a-reasonable-doubt requirement when assessing a sufficiency argument as well as a condemnation of attenuated inferences based on speculation. And the 10th indicates the plain error standard for reversal is almost always met when there is insufficient evidence.