Unpublished Decisions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.
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.
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