Alien DQ'd from Cancellation of Removal Because of Prior 180+ Day Stint in Jail

Garcia-Mendoza v. Holder, 2014 WL 2443003 (6/2/14) (Published) - Mr. Garcia-Mendoza was disqualified from cancellation of removal because he was not of good moral character due to his spending more than 180 days "confined as a result of a conviction." It didn't matter that the state court that had imposed the sentence, in response to Mr. Garcia-Mendoza's complaint that his counsel hadn't advised him about the 180-day deal, later issued a nunc pro tunc order imposing a 166-day sentence. Under the language of the relevant statute all that matters is the amount of days confined, which includes the days confined before the sentence is imposed, This is different from the definition of aggravated felony, which may depend on the amount of the sentence imposed. Presumably there would have been a different result if the state court invalidated the conviction on ineffective assistance grounds. But that didn't happen.

Wrong house? No problem. Officer gets qualified immunity.

Wigley v. City of Albuquerque, 2014 WL 2503756 (6/4/14) (N.M.) (unpub'd) - The 10th affirms the district court's ruling that qualified immunity applied to an Albuquerque Police Department SWAT member. There was no clearly established law requiring that the officer, who did not initiate the search of the Wigleys' home, had a duty to read the warrant or affidavit he was executing and then assess whether he should detain and handcuff the Wigleys. The warrant was for robbery suspects, body armor and a gun. The affidavit indicated the confidential informant said the gun had been moved to some other house. It didn't matter that the informant had identified the wrong house and a deputy sheriff said he knew as soon as they got there that it was the wrong house, but the officers searched and detained for an hour or more. There was no evidence the particular officer in question knew about the deputy's assessment or played any role in deciding how long to detain people. Troubling but irrelevant to the holding: officers put a 5-year-old child in a patrol car with the child's handcuffed, baby-sitting grandparents, but refused to tell the child's parents for 45 minutes after they arrived where their child was.

Unpublished Decisions

U.S. v. Donaldson, 2014 WL 2535402 (6/6/14) (Wyo.) (unpub'd)- Mr. Donaldson was not deprived of his right to a fair trial even though a juror on the first day of trial requested to speak to the court and asked the court: "If the defendant is guilty, has admitted guilt, what am I judging?" The district court told the juror the juror had to keep an open mind throughout the proceedings and the juror promised to do so. The juror remained on the jury. The court's procedure was enough to ensure a fair trial. It was also okay for a dismissed alternate juror to have lunch with the other jurors after they were sent to deliberate. After questioning the jurors, the court determined deliberations had not begun until after lunch.

Side note: the bank robbery resulted in a haul of $140,750, more than usual for a bank robbery. The robber threatened the bank manager that drug cartel members would kill the manager - worked like a charm.

Adams v. Berkebile, 2014 WL 2523396 (6/5/14) (Col.) (unpub'd) - The 10th denies Mr. Adams' request to be given 30 honey buns, two for each meal over a period of five days.

Tenth Circuit Has Opening for Circuit CJA Case-Budgeting Attorney

The Tenth Circuit is seeking applications for the full-time position of Circuit CJA Case-Budgeting Attorney. The position is open until filled; preference will be given to applications received by July 18, 2014. Additional information about the job duties, requirements, salary, etc. is available here.

Career offender sentence reversed

U.S. v. Brooks, 2014 WL 2443032 (10th Cir. 6/2/14) (Kan.) (Published) - Mr. Brooks was erroneously sentenced as a career offender. In U.S. v. Hill, 539 F.3d 1213 (10th Cir. 2008), the Court held that the calculation of the maximum term of imprisonment prescribed by law included the most severe recidivist increase possible. That holding was abrogated by the Supreme Court in Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), which held that a recidivist increase can only apply to the extent a particular defendant was found to be a recidivist. The maximum sentence Mr. Brooks could have received for his prior conviction of eluding a police officer was seven months' imprisonment. Because he could not have received a year in prison, the prior offense was not a felony under USSG § 4B1.1(a).

Passenger lacked standing to object to GPS device on car; Rosemond aiding-and-abetting argument rejected

U.S. v. Davis, 2014 WL 1797834 (5/7/14) (Kan.) (Published) - Mr. Davis did not have standing to contest the placement of a GPS device on his co-defendant's car, even though the GPS evidence led to stopping the car in which Mr. Davis was an occupant. The alleged 4th Amendment violation did not invade Mr. Davis's expectation of privacy. "Because the poisonous tree was planted in someone else's orchard, Mr. Davis lacked standing to challenge its fruits," the 10th sums up. Inauspiciously, in the course of its discussion on the matter, the 10th footnotes that all the circuits deciding the issue so far have held the good faith exception applies to GPS searches conducted before Jones (which held attaching a GPS to a car is a search governed by the 4th Amendment).

The 10th also applied the recent Supreme Court aiding-and-abetting decision in Rosemond v. U.S., 134 S. Ct. 1240 (2014). The 10th refused to accept the government's concession of error in the instructions. First, the 10th rejected Mr. Davis's contention that his actions had to facilitate the entire § 924(c) offense, including the carrying of the gun. Rosemond made clear a defendant need only facilitate an element of the offense. Second, the instructions were good enough with respect to Rosemond's requirement of advance knowledge of use of the gun. "We do not require jury instructions to be perfect, merely adequate," the 10th assures us. Here, unlike in the Rosemond case where the instructions allowed a conviction if the defendant found out later that the co-defendant had used the gun, here the instructions required Mr. Davis to share his co-defendant's knowledge about the § 924(c) violation, which meant, according to the 10th, the jury implicitly found Mr. Davis had advance knowledge of the firearm.

Judge Hartz concurred in the result on this issue. He felt Mr. Davis's claim should have been denied on the grounds that Mr. Davis had not met the third prejudice prong of the plain error test. Mr. Davis admitted he saw the gun before he drove the getaway car away, escape is part of the robbery and the co-defendant made no threatening gesture that would make Mr. Davis believe he couldn't withdraw from the robbery once he saw the gun. Troublingly, Judge Hartz does not think a jury has to be instructed that the defendant discovered the gun was being used when he had a realistic opportunity to quit the crime. All the jury need be told is that the defendant knew all the elements before he participated in the offense as in something he wished to bring about.

Unpublished Decisions

U.S. v. Ceballos, 2014 WL 1887617 (5/13/14) (Kan.) (unpub'd) - The court did not plainly err when it justified its variance for a supervised release violation from the top end of 11 months to 30 months by: calling Mr. Ceballos a coward who beats up women; complaining about the low sentence the municipal court imposed for his battery on his girlfriend; and saying the municipal court would probably give probation to a Nazi war criminal.

U.S. v. Yazzie, 2014 WL 1870618 (5/9/14) (N.M.) (unpub'd) - Defense counsel never raised in district court or in briefing before the 10th the claim that Mr. Yazzie received a supervised release violation sentence above the maximum allowed. The 10th on its own asked for supplemental briefing on the issue. The 10th holds that the 32-month sentence [way above the guideline range] the district court imposed for a supervised release violation was above the two years allowed under § 3583(e)(3). The original offense was assault resulting in serious bodily injury, which carries a maximum sentence of ten years. It was therefore a Class C felony. Two years in prison is the maximum a defendant may receive for a supervised release violation if the original offense was a Class C felony.

U.S. v. Prieto, 2014 WL 1778147 (5/6/14) (Col.) (unpub'd) - In a felon-in-possession case, it was okay to admit evidence that there was a pipe in the car Mr. Prieto was driving. The officer believed the pipe was used for consuming meth. The officer also saw a gun between the passenger seat and the passenger door. The evidence was admissible as res gestae. The pipe explained why the officer called for backup and the gun explained why the officer pointed his gun at Mr. Prieto. The evidence wasn't too prejudicial because no witness was allowed to testify the pipe was in fact a meth pipe and the gun was identified as the passenger's gun. Mr. Prieto was convicted of possessing another gun found by the driver's seat.

U.S. v. Platero, 2014 WL 1677976 (4/29/14) (N.M.) (unpub'd) - Mr. Platero was not entitled to reversal of his sentence even though the 10th conceded he may very well have been subjectively confused about the district court's offer of an opportunity to allocute. All that mattered was that the court gave an objectively clear invitation to allocute. At the beginning of the hearing Judge Vazquez told Mr. Platero he would be given an opportunity to speak on his own behalf after the lawyers discussed the issues. Later the judge asked: "Mr. Platero, what do you have to say?" Mr. Platero responded that he didn't know what to say. He apparently thought he was being asked to comment on the enhancement the lawyers had been arguing about. The judge then imposed sentence. Counsel told the court Mr. Platero was confused about the court's allocution offer. He then was allowed to talk at length. The judge imposed the same sentence. Although the standard of review didn't matter to resolution of the issue, it's of some import for preservation purposes that the 10th found counsel had not properly preserved the allocution issue. Counsel should have told the court it didn't believe affording Mr. Platero a post-sentence allocution opportunity was meaningful.

Bruner-McMahon v. Jameson, 2014 WL 1798469 (5/7/14) (Kan.) (unpub'd) - The 10th affirms a summary judgment in favor of jail employees. It was not sufficient to establish a constitutional violation that the employees observed that Mr. Bruner appeared to have the flu or was acting in a strange way that might have been related to a mental health condition. The evidence did not establish the employees appreciated Mr. Bruner had a risk of a fatal medical condition that they chose to disregard. It turned out Mr Bruner had bacterial meningitis due to an untreated liver disease. If antibiotics had been administered six hours earlier than they were, which was several days after Mr. Bruner entered the jail, Mr. Bruner probably would have survived. That there were "significant and tragic shortcomings in training and procedure at the jail and the medical clinic" did not entitle the plaintiffs to relief. It was okay to have on the jury someone who had heard publicity about the case and was "somewhat slanted" towards the jail defendants. She kept saying she could be fair and that negated an actual bias claim.

U.S. v. Quinn, 2014 WL 1801735 (5/7/14) (Kan.) (unpub'd) - Ms. Quinn was guilty of failing to pay her employment taxes in violation of 26 U.S.C. § 7202, even though she eventually paid them. There is a deadline. Once the deadline is missed the crime is complete. No withdrawal from the crime is possible.

Jail employees who negligently allowed decedent to commit suicide nonetheless entitled to summary judgment

Bame v. Iron County, 2014 WL 1887605 (5/13/14) (Ut.) (unpub'd) - The 10th reverses the denial of summary judgment to jail employees where an inmate committed suicide. The lawyer for Mr. Jorgensen obtained an extension of a furlough for him due to his wife dying while he was in jail. But the lawyer failed to document the extension. So Mr. Jorgenseon was rearrested. He was placed on suicide watch. But no one checked in on him for 80 minutes. During that time he pulled a capped-off water pipe from the wall and used the hem of his suicide blanket as a ligature to hang himself. Mr. Jorgensen failed to show the jail folks acted with the requisite deliberate indifference. They took anti-suicide precautions beforehand. There was no evidence they knew Mr. Jorgensen would be able to pull the pipe out of the wall and kill himself the way he did. They were negligent in not following jail policies and not keeping better watch, but negligence doesn't warrant relief. There is no legal authority requiring a surveillance camera in a suicide cell. "Jailers are not constitutionally obligated to watch every inmate at every minute of every day," the 10th declares.

Substance proved to be cocaine without lab test

U.S. v. Yankey, 2014 WL 1887616 (5/13/14) (Kan.) (unpub'd) - There was sufficient evidence to establish the substance Mr. Yankey possessed was cocaine, despite the absence of a scientific test, where: an officer testified the substance had the same color and consistency as cocaine; the substance's price matched the high price of cocaine; the transactions were conducted with secrecy; the undercover officer referred to the substance as cocaine in Mr. Yankey's presence; and Mr. Yankey referred to the substance as "drugs."

Tenth applies modified categorical approach to Minnesota statute for career offender purposes

U.S. v. Wright, 2014 WL 1924605 (5/15/14) (Kan.) (unpub'd) - The 10th applies the modified categorical approach to a separate definitional statute. Descamps did not deal with such a situation and so it did not abrogate the 10th's prior decision in U.S. v. Ventura-Perez, 666 F.3d 670 (10th Cir. 2012), which did apply the modified categorical approach in that situation. The Minnesota provision that defined "sell" was divisible since its definitions were in the alternative. Using the modified categorical approach, it was okay to examine the police officer's description of the facts contained in a complaint, which would ordinarily not be proper to consider, because under Minnesota law the complaint is part of the charging document. Only by reading the complaint page, which was attached to the counts recitation (p. 2) and the judge finding of probable cause (p. 3), could the 10th determine the charge was under the "sell" clause of the "sell" definition, not the "offer to sell" part. So Mr. Wright is a career offender.

Reversal required because trial court refused to review in camera information about informant

U.S. v. Arechiga-Mendoza, 2014 WL 1876244 (5/12/14) (Col.) (unpub'd) - Reversals and remands with respect to a couple of issues that might ultimately benefit Mr. Arechiga-Mendoza (hereinafter "Mr. A-M" with sincere apologies to Mr. A-M and his family). The court abused its discretion when it refused to conduct an in camera review of information regarding the compensation [in terms of money and leniency for her son-in-law] the government gave the CI. Since Mr. A-M already knew who the CI was and where she lived, the government couldn't justify its refusal to disclose based on the need to keep the CI's ID confidential. It didn't matter that the government did not present the CI as a witness. The defense called the CI and her testimony conflicted with that of Mr. A-M, who asserted an entrapment defense. The CI's compensation is material to resolving the dispute between the witnesses. On remand the court must review the information in camera and balance the public interest in protecting informants against Mr. A-M's right to mount a defense. The 10th ordered that, if the district court determines disclosure is required, the drug conviction must be vacated.

The district court also erred when it imposed an enhancement for illegal firearm trafficking under § 2K2.1(b)(5) solely based on the notion that exporting firearms into Mexico is always unlawful. In fact, firearms can be legally exported to Mexico. On remand the court is free to consider whether Mr. A-M knew or had reason to believe the men to whom he gave the shotguns intended to take them to Mexico unlawfully.

Tenth rejects Brady claim; creates circuit split on firearm guidelines definition

U.S. v. Hoyle, 2014 WL 1887613 (5/13/14) (Kan.) (Published) - There was no Brady violation with respect to two officer disciplinary letters and a prior conviction. One letter did not relate to the officer's honesty. Mr. Hoyle did not put the contents of the other letter in the record. And Mr. Hoyle didn't show the government intentionally kept itself ignorant of the conviction. Contrary to the 9th Circuit's holding on the issue, the 10th holds the firearm guidelines don't have to define prior convictions the same way as § 921(a)(20) does. So, even though Mr. Hoyle's prior convictions were expunged and all his civil rights restored with respect to those convictions so that they didn't count for § 922 or ACCA purposes, the guidelines could count them. The different definitions of "felony convictions" served different purposes. Congress's definition did not control the Guidelines'. It was okay for the court to believe a witness whose testimony established Mr. Hoyle committed the felony of criminal threat with the firearm, justifying an enhancement for using the gun in a felony.

Defendant who chose musical "career" over steady job gets convicted for failure to pay child support

U.S. v. Fuller, 2014 WL 1887584 (5/13/14) (Kan.) (Published) - There was sufficient evidence to support Mr. Fuller's conviction for willfully failing to pay child support in violation of 18 U.S.C. § 228(a)(1), even though he did not have the ability to pay support. He earned less than $600 a year, but there was sufficient evidence he willfully refused to obtain paying jobs and instead pursued his less lucrative musical "career." Bringing children into the world usually limits life choices and one of those choices children might preclude is making music rather than getting a steady job. The government did not have to prove Mr. Fuller deprived himself of earnings with the motive to deprive his children of support. It was enough to show Mr. Fuller could have earned more money to pay down his obligation but he intentionally avoided doing so. The government doesn't have to show he could have earned enough to pay the entire obligation; some of the obligation is sufficient. In this case there was evidence Mr. Fuller used to work at a steady job and he satisfied all employment-related demands on those rare occasions when he was hired to play music [even gaining some acclaim]. So he could have gotten a real job if he wanted to.

Upward Variance for Bank Robber Affirmed

US v. Adams, No. 13-3207 (Kan), 5/15/14 (Published) - Upward variance in bank robbery case sentence affirmed. Held: (1) defendant was not entitled to minor participant offense level reduction because, even though he was a lookout and never entered the bank, he helped plan the robbery, and all who plan and participate in the robbery are equally culpable; (2) record clearly showed that court varied rather than departed upward, which would have been reviewed under a stricter standard; and (3) variance was not an abuse of discretion, mainly in light of defendant’s extensive criminal history.

Unpublished Decisions

U.S. v. Rayford, 2014 WL 1408893 (4/14/14) (Kan.) (unpub'd) - Rule 11 allowed Mr. Rayford to file a motion to withdraw his guilty plea where through a § 2255 motion he had successfully challenged his sentence. It was not a 2d § 2255 motion, as the government argued, because he was in the same position as he was before he was initially sentenced. But the d. ct. correctly refused to allow withdrawal of the plea. Newly discovered evidence that police placed a GPS monitor on a car he drove wouldn't have been grounds for suppression because, among other things, the car was stolen and the GPS didn't work.

U.S. v. Smith, 2014 WL 1408892 (4/14/14) (Kan.) (unpub'd) - It was okay for the district court to sentence Mr. Smith to three years in prison for violating his supervised release even though he was told at his original plea proceeding that he could only face two years if he violated. He did not show he would not have pleaded guilty had he known the real maximum. Mr. Smith made the unusual argument that he would not have violated if he had known the maximum was 5 instead of 2 years. The 10th was not impressed, especially since Mr. Smith did violate after being told subsequently about the real maximum. It was not plain error for the district judge to sentence based on the judge feeling "personally betrayed."

Williams v. Weber County, 2014 WL 1424510 (4/15/14) (Ut.) (unpub'd) - The 10th turns aside a § 1983 challenge to the fixed-price, appointed contract counsel system of Weber County. The plaintiffs say counsel only spoke with them one or two times for a few minutes, never gave them a copy of the charges or discovery, told them they had no defense without investigating, never let them ask questions about the charges, and coerced them into pleading guilty. The 10th rules the plaintiffs should file habeas petitions. A § 1983 suit for damages is not appropriate when the suit essentially challenges the validity of the convictions. In a similar case in Washington where plaintiffs prevailed, unlike in this case, they only sought injunctive relief and had not been convicted.

Court Acknowledges Child Porn Guideline Criticisms, But Holds 260-year Sentence Was Not Unreasonable

U.S. v. Grigsby, 2014 WL 1424547 (4/15/14) (Kan.) (Published) - The 10th relates the criticisms of the child pornography guidelines without taking a position on those criticisms. It did note the Sentencing Commission's Report on the child porn guidelines essentially endorsed the 2d Circuit's view in Dorvee that the non-production sentencing scheme needs to better reflect a growing body of knowledge about the offense and better account for degrees of culpability and dangerousness. The 10th acknowledges that authorities Mr. Grigsby cited say district courts should carefully apply the guidelines and be mindful of their discretion under § 3553(a). The 10th even said maybe the porn production guidelines, which applied in this case, are also defective. But none of that means any application of the child porn guidelines results in an unreasonable sentence. Even if the Commission did not use an empirical approach for a guideline, that does not make a sentence within the guideline range unreasonable. The 10th rejects a categorical challenge to the child porn guidelines and affirms a 260-year sentence, the statutory maximum.

Step-parent of Adult Child Validly Consented to Search of Child's Bedroom

U.S. v. Romero, 2014 WL 1424529 (4/15/14) (N.M.) (Published) - The presumption that when a child lives with a parent the parent has control for most purposes over the home, including the child's bedroom, applies in the step-parent/step-child situation, even where the child is an adult. Although a step-parent/ step-child relationship might be less loving, it might be more so and the 10th was "not about to insist on an examination of the extent of ties of affection." Helpfully for future defendants, the 10th says if the agents had known the stepfather who granted permission to search the house never entered Mr. Romero's bedroom and that there was a lock on the bedroom door, they might not have been justified in relying on the stepfather's consent. Here the agents claimed not to know either fact, and they had no obligation to investigate those matters. They could just rely on the parent-child presumption. Judge Browning helped out the government below by coming up with the apparent authority argument the government had not raised. That was good enough to preserve that argument for appeal.
There was probable cause to obtain a warrant to search a car for evidence of a murder where: the victim's body was found in an arroyo two miles from where the victim's friend had last seen him 16 hours before in a car with Mr. Romero and others; the victim was shot at close range with a shotgun and the friend had seen a "long rifle-type gun" in the car; Mr. Romero had been stopped months earlier with a shotgun in his car; and the license plate number was not in doubt because the men had been seen in the car on video. The 10th opined: "The Fourth Amendment does not require the abandonment of common sense."

Rehearing Granted on 924(c) Issue

U.S. v. Rentz, 735 F.3d 1245 (11/18/13) (Ut.) (Published) - The 10th grants a defendant's petition for rehearing en banc. The panel felt bound by bad 10th Circuit precedent on the issue. The 10th will reconsider the issue "whether a defendant can be charged with two violations of 18 U.S.C. § 924(c) based on two separate crimes of violence based on the single use of a firearm." In this case the defendant fired one shot, which killed one person and seriously injured another.