Unpublished Decisions

U.S. v. Lake, 2014 WL 715809 (2/26/14) (Okl.) (unpub'd) - This case involves the son of the defendant in the prior Lake case where the 10th Circuit accepted the government's concession that increasing the guideline range based on a judicial finding of fact violated the Sixth Amendment as interpreted in the S. Ct's Alleyne decision. In this case the son raised the same issue, but now the government believes it was wrong to make the concession it made in the father's case. This panel, which is different from the one in the father's case, refuses to decide whether the other panel was wrong. Instead it applies the law of the case, which applies to co-defendants. To disregard the law of the case the prior decision must be manifestly erroneous and manifestly unjust. The 10th Circuit says that, even if the prior decision was manifestly erroneous [which it unfortunately was], it was not manifestly unjust. So Mr. Lake Jr. gets another sentencing.

U.S. v. James, 2014 WL 762694 (2/27/14) (Col.) (unpub'd) - In this mortgage scam case the 10th Circuit previously remanded for the district court to make loss findings regarding 10 mortgagers. In the end the district court ended up only finding losses with respect to 6 mortgagers. Mr. James argued the district court should have eliminated the enhancement for 10 or more victims. But the 10th, while saying its rules about what a district court can address on remand are more expansive than some circuits, holds that the prior mandate only allowed the district court to address the loss issue. So tough luck on the victim enhancement issue. The 10th Circuit affirms the district court's loss findings, which the 10th Circuit holds were based on the mortgagers' best estimate of their actual losses pursuant to accurate instructions. In the last paragraph the 10th Circuit complains that Mr. James benefited from a "ridiculously small" restitution order and concludes: "The result here may not be ultimately fair, but any unfairness was visited on others, not James."

U.S. v. Sim, 2014 WL 783139 (2/28/14) (Col.) (unpub'd) - The 10th Circuit refuses to find the district court applied the guidelines in mandatory fashion even though the district court said: "The defendant argues this court should exercise discretion considering that the guidelines are advisory. It's still not clear to this court what that actually means because the few times I've tried to read more flexibility into the guidelines I've been reversed by the 10th Circuit." At another point during the sentencing hearing the district court acknowledged the guidelines were advisory and that was enough to absolve the district court for its problematic remarks.

It was not unreasonable to impose a sentence at the high end of the guideline range where Mr. Sim robbed two banks on the day he was released from prison after having been sent to prison for committing a bank robbery.

Green v. Hininger, 2014 WL 685382 (2/24/14) (Okl.) (unpub'd) - The prisoner did not allege facts that entitled him to relief under § 1983 where he alleged: before lancing a boil on his back the doctor described a movie where the warden allowed prison officials to torture inmates whom the administration disliked; the prisoner believed the doctor disliked him; the doctor told the prisoner the doctor would not use an anesthetic; the prisoner started to "reject the procedure"; the doctor went ahead and lanced the boil; the prisoner screamed in terrible pain; the doctor didn't care and continued with the procedure, while an observing guard laughed the entire time. This was not deliberate indifference to the prisoner's medical needs. Medical care was provided. The prisoner was just disagreeing with a medical decision, which cannot be a ground for relief.