Unpublished Decisions

U.S. v. Mitchell, 2014 WL 1151455 (3/24/14) (okl.) (unpub'd) - The 10th rejects a preindictment delay claim. The government indicted Mr. Mitchell for a bank robbery 9 days before the 5-year statute of limitations would have run. In the meantime Mr. Mitchell served state prison time for a drug store robbery, got out early due to exemplary behavior in prison, found a job, passed all his drug tests, began to repay court costs and began taking care of his mother who was suffering with stage 4 cancer. Despite what the 10th refers to as "this apparent reformation," the government insisted on its pound of flesh [in this case 21 months in prison]. Mr. Mitchell didn't show enough prejudice to warrant a finding of a due process violation, even though he was deprived of serving his state sentence concurrently due to the delay, because he only lost the opportunity to request concurrent sentencing. He was not entitled to concurrency and so the claimed prejudice was speculative. His prosecution was not presumptively vindictive retaliation for his assertion of his Miranda rights. The government only charged him with offenses he was guilty of. So no problem. On the helpful side, the 10th made clear a presumption of vindictiveness could arise in the pretrial context. It just hasn't seen it happen yet.

U.S. v. Webb, 2014 WL 1259600 (3/28/14) (Col.) (unpub'd) - The 10th implies substantive-reasonableness sentencing review shouldn't involve independent weighing of § 3553(a) factors by the court of appeals. While certainly the 10th is supposed to give deference to the district court's balancing, substantive-reasonableness review would be completely meaningless if the 10th couldn't say a district court gave an unreasonable amount of weight to a particular factor.