Unpublished Decisions
U.S. v. Deppish, 2014 WL 521262 (2/11/14) (Kan.) (unpub'd) - The 10th affirms the curfew and electronic-monitoring pretrial conditions of a child porn defendant. Rather than decide whether it was okay for 18 U.S.C. § 3142(c)(a) to mandate those conditions in all cases, the 10th decided it was okay to impose them in this case, given that Mr. Deppish was alleged to have posted sexually suggestive photos of a minor family member on the internet. The conditions removed the opportunities for undetected prohibited contact with minors. Even if one factor that was required to be considered, in this case Mr. Deppish's history and characteristics, argued against the conditions, other factors clearly outweighed that factor.
U.S. v. Chaidez, 2014 WL 553584 (2/13/14) (Okl.) (unpub'd) - The government conceded the district court committed plain error when it imposed a 4-year supervised release term under the mistaken impression that it was the mandatory minimum. Since Mr. Chaidez qualified for the safety valve, he was subject to the guideline range of 2 to 5 years supervised release. But the 10th says Mr. Chaidez did not prove it was reasonably probable the district court would have imposed a lesser term had the court known it could do so. .The district court's downward variance and imposition of a sentence at the lowest end of the reduced range did not convince the 10th otherwise. The 10th found no indication in the transcript that the district court would change its sentence, which the 10th admitted was probably because the district court didn't know it had a choice. The 4th plain-error prong (fairness-integrity- public-reputation) was not met, not only because Mr. Chaidez didn't show the sentence would have been different but also because the 10th doesn't feel being on supervised release is that big a deal and it would cause the government a lot of money to transport Mr. Chaidez for resentencing. And, besides, all of this could have been avoided if counsel would have just timely objected.
U.S. v. Saavedra-Villasenor, 2014 WL 542016 (2/12/14) (N.M.) (unpub'd) - For supervised release revocation sentencing purposes, Mr. Saavedra's violation of 8 U.S.C. § 1325 in another district constituted a Grade B violation since it was "punishable" by up to two years, given his prior violation of § 1325, It didn't matter that he was only sentenced to a year for his most recent § 1325 offense. The grade is based on the actual conduct not the actual sentence imposed.
U.S. v. Williams, 2014 WL 503545 (2/10/14) (Okl.) (unpub'd) - The district court's imposition of supervised release conditions prohibiting Mr. Williams from possessing pornography and entering strip clubs and requiring him to submit to reasonable searches were sufficiently related to keeping him from becoming a pimp, the offense for which he had been convicted.
U.S. v. Johnson, 2014 WL 542061 (2/13/14) (Kan.) (unpub'd) - The 10th affirms an upward variance from 70-87 months to 147 months for traveling to promote unlawful activity and felon-in-possession. It was not plain error to refer to Mr. Johnson's children as "illegitimate" when explaining the variance. The district court's focus was on Mr. Johnson's failure to pay support for his children, not on the parents' failure to marry. It was okay to vary upward for the support-failure as well as for Mr. Johnson's long-term unemployment, the increasing seriousness of his crimes and the failure of prior punishments to deter him.
Thiam v. Holder, 2014 WL 503472 (2/10/14) (unpub'd) - The Board of Immigration Appeals failed to adequately consider whether it was reasonable for Mr. Thiam in particular to relocate in Senegal to avoid persecution for political reasons, given evidence that Mr. Thiam had no family in the part of Senegal the Board of Immigration Appeals suggested he could go.
He v. Holder, 2014 WL 521409 (2/11/14) (unpub'd) - The Chinese government detaining Ms. He for one week, interrogating her twice, beating her, resulting in minor injuries, and prohibiting her from attending an underground church was not egregious enough to amount to persecution so as to justify asylum or restriction on removal.
U.S. v. Rayford, 2014 WL 503477 (2/10/14) (Kan.) (unpub'd) - Counsel did not act unreasonably when counsel failed to challenge the use of GPS devices. It was not reasonable to expect counsel to anticipate the United States Supreme Court would decide the way it subsequently did in Jones. The courts were divided on the issue at the time counsel was representing Mr. Rayford.
U.S. v. Chaidez, 2014 WL 553584 (2/13/14) (Okl.) (unpub'd) - The government conceded the district court committed plain error when it imposed a 4-year supervised release term under the mistaken impression that it was the mandatory minimum. Since Mr. Chaidez qualified for the safety valve, he was subject to the guideline range of 2 to 5 years supervised release. But the 10th says Mr. Chaidez did not prove it was reasonably probable the district court would have imposed a lesser term had the court known it could do so. .The district court's downward variance and imposition of a sentence at the lowest end of the reduced range did not convince the 10th otherwise. The 10th found no indication in the transcript that the district court would change its sentence, which the 10th admitted was probably because the district court didn't know it had a choice. The 4th plain-error prong (fairness-integrity- public-reputation) was not met, not only because Mr. Chaidez didn't show the sentence would have been different but also because the 10th doesn't feel being on supervised release is that big a deal and it would cause the government a lot of money to transport Mr. Chaidez for resentencing. And, besides, all of this could have been avoided if counsel would have just timely objected.
U.S. v. Saavedra-Villasenor, 2014 WL 542016 (2/12/14) (N.M.) (unpub'd) - For supervised release revocation sentencing purposes, Mr. Saavedra's violation of 8 U.S.C. § 1325 in another district constituted a Grade B violation since it was "punishable" by up to two years, given his prior violation of § 1325, It didn't matter that he was only sentenced to a year for his most recent § 1325 offense. The grade is based on the actual conduct not the actual sentence imposed.
U.S. v. Williams, 2014 WL 503545 (2/10/14) (Okl.) (unpub'd) - The district court's imposition of supervised release conditions prohibiting Mr. Williams from possessing pornography and entering strip clubs and requiring him to submit to reasonable searches were sufficiently related to keeping him from becoming a pimp, the offense for which he had been convicted.
U.S. v. Johnson, 2014 WL 542061 (2/13/14) (Kan.) (unpub'd) - The 10th affirms an upward variance from 70-87 months to 147 months for traveling to promote unlawful activity and felon-in-possession. It was not plain error to refer to Mr. Johnson's children as "illegitimate" when explaining the variance. The district court's focus was on Mr. Johnson's failure to pay support for his children, not on the parents' failure to marry. It was okay to vary upward for the support-failure as well as for Mr. Johnson's long-term unemployment, the increasing seriousness of his crimes and the failure of prior punishments to deter him.
Thiam v. Holder, 2014 WL 503472 (2/10/14) (unpub'd) - The Board of Immigration Appeals failed to adequately consider whether it was reasonable for Mr. Thiam in particular to relocate in Senegal to avoid persecution for political reasons, given evidence that Mr. Thiam had no family in the part of Senegal the Board of Immigration Appeals suggested he could go.
He v. Holder, 2014 WL 521409 (2/11/14) (unpub'd) - The Chinese government detaining Ms. He for one week, interrogating her twice, beating her, resulting in minor injuries, and prohibiting her from attending an underground church was not egregious enough to amount to persecution so as to justify asylum or restriction on removal.
U.S. v. Rayford, 2014 WL 503477 (2/10/14) (Kan.) (unpub'd) - Counsel did not act unreasonably when counsel failed to challenge the use of GPS devices. It was not reasonable to expect counsel to anticipate the United States Supreme Court would decide the way it subsequently did in Jones. The courts were divided on the issue at the time counsel was representing Mr. Rayford.
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