Unpublished Decisions

U.S. v. Barraza-Flores, 2013 WL 6233941 (12/3/13) (N.M.) (unpub'd) - On the issue preservation front, a single sentence saying the "defendant's constitutional rights to a speedy trial should not take a back seat to a forensic chemist's scheduling conflicts" did not validly raise a Speedy Trial Act claim. So under the Act the issue was waived on appeal.

Fitzpatrick v. Monday, 2013 WL 6233943 (12/3/13) (Okl.) (unpub'd) - The 10th rules a state habeas filing the state court rejected for failure to comply with the page limit rules of the court was not "properly filed" under AEDPA and so did not toll the running of the statute of limitations.

Driver's Suspicious Activity Supported Reasonable Suspicion Regarding Defendant Passenger; Sufficient Evidence Supported Felon-in-Possession Conviction

U.S. v. Saavedra, 2013 WL 6246474 (12/4/13) (N.M.) (unpub'd) - There was reasonable suspicion to suspect the passenger-defendant was involved in criminal activity where, after being stopped in a high crime area for a malfunctioning license plate light, the driver swayed back and forth and leaned forward as if he was retrieving something or hiding something under the seat; the driver, when asked why he was moving around, answered unresponsively "there is nothing in the car"; an officer saw a revolver sticking out from under the driver's seat; and the driver fled when an officer tried to handcuff him. The passenger-defendant's presence in that scenario was enough to create suspicion that he was involved in something. The officer had reasonable grounds to believe he had to detain the passenger to "preserve the status quo while investigating" and prevent the passenger from accessing the gun, trying to destroy evidence or otherwise interfere with the investigation. The officers were not obligated to give the passenger the option of leaving the scene. A "valid" inventory search [no explanation why the search was "valid"] lead to discovery of a gun and heroin near where the passenger had been seated. That discovery justified the defendant's arrest leading to a valid search incident to arrest, leading to the discovery of an electronic scale in the defendant's pocket.
There was sufficient evidence to support the defendant's conviction for being a felon in possession of a firearm and ammunition, even if there was insufficient evidence to support his possession of other ammunition found in an undetermined part of the car. There was sufficient evidence he possessed the loaded gun found between the center console and the passenger seat, for which he was also charged in the same count of the indictment.

Tenth Rejects Extended Vacation Defense in SORNA Case

U.S. v. Forster, 2013 WL 6334796 (12/6/13) (N.M.) (unpub'd) - The 10th affirms the defendant's SORNA conviction and sentence. The government's theory was that the landlord asked the defendant to leave his residence in Mesquite, NM; the defendant traveled to the Philippines, leaving behind at his residence some personal possessions, including his car; he returned several months later to Hobbs and notified the Hobbs sheriff of his change of residence from Mesquite to Hobbs. The 10th finds sufficient evidence of a knowing failure to report a change in residence because the evidence supported the notion that the defendant abandoned his living place, rather than as the defense contended, taking an extended vacation. A sex offender has an obligation to report a residence change even if he doesn't establish a new residence. The government's evidence indicated the defendant was asked to leave the residence and engaged in various activities in the Philippines consistent with establishing a residence. The defendant's leaving possessions at the old residence and visiting that residence for a couple of days or a week in the interim did not necessarily establish a reasonable doubt, although the defendant's argument was "not entirely unreasonable." The government offered evidence showing the defendant knew he was required to update his registration in light of any change in his address, i.e., he acknowledged receipt of an instructional registration document and, in the category of no good deed goes unpunished, notified the Hobbs sheriff of his address change. In a footnote the 10th explicitly notes the defendant was not claiming he had to know his conduct violated SORNA, while citing case law holding that SORNA does not require such knowledge.

It was okay to refuse to instruct the jury that residence depends on intent and a person has not effectively abandoned his current residence by traveling. The jury instructions the court gave properly communicated that there is a change in residence that must be reported where the defendant no longer habitually lives at the same residence as the one listed in the register. The 10th finds there was no basis to conclude the government presented two different ways for the defendant to be convicted, i.e., moving to Hobbs soon after leaving the Mesquite residence or going to the Philippines. Its sole theory was that the defendant failed to update his registration when he left Mesquite. Evidence about where he went later on was offered merely to show he did not intend to return to Mesquite.

The defendant's prior Ohio offense of gross sexual imposition is a tier III offense. Its elements are "comparable" to "abusive sexual contact under 18 U.S.C. § 2244 against a minor who has not attained the age of 13 years" under 42 U.S.C. § 169114)(A)(ii). The 10th says it's far from clear the categorical approach applies when determining tier levels, but uses that approach in this case because it works well enough to reject the defendant's contentions. The only difference the 10th sees is that the Ohio statute applies to victims under 13 whereas § 2244 applies only to those under 12. The 10th notes the statutes only have to be "comparable" not identical and the § 16911 definition includes victims under 13. Both statutes punished sexually-oriented touching, whether directly or through clothing, of an erogenous zone. That the jurisdictional elements differ [in U.S. jurisdictions vs. in Ohio] is immaterial. And the district court didn't clearly err when it refused to apply a downward adjustment under § 2A3.5(b)(2) for the defendant voluntarily correcting his failure to register by updating his registration in Hobbs. The d ct. could find that the defendant's corrective action wasn't genuine and free from guile because he told the sheriff he was moving from Mesquite to Hobbs and didn't mention the Philippines, thus perpetuating the false claim that he had been living in Mesquite the last several months. And also the defendant didn't really correct his registration record because he didn't mention his travels to the Philippines.

Tenth's First Discussion of Descamps Results in Divided Panel

U.S. v. Armendariz-Perez, 2013 WL 6130673 (11/22/13) (Col.) (unpub'd) - A divided 10th affirms a USSG § 2L1.2 Texas burglary-of-a-dwelling 16-level enhancement, but suggests an interpretation of Descamps that could really help our clients in the categorical-approach world. Without any objection from defense counsel, the district court imposed the enhancement based on the defendant's Texas conviction for burglary of a habitation. Texas' definition of "habitation" includes structures "appurtenant to" a residence or dwelling, including unenclosed structures, sheds, detached garages and other buildings not intended for overnight accommodation.. On appeal the defendant initially argued the modified categorical approach applied, he submitted the applicable state documents to the 10th [they were not before the d. ct.] and noted the documents did not indicate whether he had been convicted of burglarizing a dwelling or an appurtenant structure. So, he contended, the government hadn't proved the conviction was for burglary of a dwelling. After Descamps, the defendant argued the Texas statute is not divisible and the modified categorical approach does not apply, meaning he was not convicted of burglary of a dwelling, but rather of burglary of a dwelling and appurtenances, a category too broad to qualify for an enhancement.

The 10th first rejected the government's argument that any error was invited. Although the plea agreement indicated the prior conviction was for a crime of violence, it also indicated the defendant was subject to a 12-level enhancement and that the government would later decide if the conviction was for a crime of violence. This ambiguity prevented a finding of an intentional waiver. Plain error review applied. But any error, the 10th ruled, was not plain. Oddly, the 10th relies in part on the defense's failure to dispute the crime-of-violence characterization, not alerting the district court to the error, as a reason for the lack of plain error. The 10th also finds any error not plain because no circuit court has ever ruled a district court erred in holding a violation of the Texas statute to be a crime of violence. Troublingly, the 10th finds other circuit courts' analysis of other state burglary statutes to be immaterial, apparently no matter how similar those statutes might be to the Texas statute. But, most importantly and on the promising side, the 10th strongly suggests Descamps means the Texas statute is indivisible and so can never be a crime of violence under § 2L1.2. The 10th uses its conclusion in this regard against the defendant here, saying that, in light of Descamps, the district court couldn't be faulted for failing to apply the modified categorical approach, as the defendant initially suggested the district court should have done.

The dissent by our newest 10th Circuit judge, Judge Phillips, takes the opposite tack. He says U.S. v. Ventura-Perez, 666 F.3d 670 (10th Cir. 2012) held that the Texas statute was divisible and therefore the modified categorical approach applies. Appurtenant structures could be structures that are not dwellings under the dwelling definition of U.S. v. Rivera-Oros, 590 F.3d 1123 (10th Cir. 2009). Since the Shepard documents did not prove the defendant necessarily was convicted of burglary of a dwelling, the district court committed plain error. The judge disagrees with the majority's interpretation of Descamps, which, according to the judge, doesn't preclude finding the Texas statute divisible. In any event, the judge points out that even under the majority's interpretation of Descamps the defendant is entitled to relief. Does all of this give us hope that Judge Phillips might be an independent voice? Stay tuned.