USSC Authorizes Delayed Retroactive Sentence Reductions for Federal Drug Offenders

On July 18, 2014, the Commission voted unanimously to apply a reduction in the sentencing guideline levels applicable to most federal drug trafficking offenders retroactively. Unless Congress disapproves the amendment, beginning November 1, 2014, eligible offenders can ask courts to reduce their sentences. Offenders whose requests are granted by the courts can be released no earlier than November 1, 2015.

The press release and additional information is available at
http://www.ussc.gov/.

Habeas Petitioner Gains Remand for Court to Address Other Claims; State Could Not Take Back Admission the State Claims Were Exhausted

McCormick v. Parker, 2014 WL 3306546 (7/9/14) (Okl.) (unpub'd) - Everyone agrees the district court erred when it found its grant of relief vacating the Count II conviction---the child abuse charge---mooted Mr. McCormick's challenges to the Count I child sexual abuse charge. Mr. McCormick still had an interest in getting relief with respect to Count I. The state's statement in its response that Mr. McCormick had exhausted his state court remedies and its addressing of the merits of the petition constituted the express waiver that absolves a petitioner from having to exhaust his claims. This was not an inadvertent mistake. "The fact that the state now regrets its waiver is not a sufficient reason to allow rescision of the waiver." And by waiving exhaustion the state also waives a procedural default argument that Mr. McCormick could not raise the issues now in state court because he didn't raise them before in state court. On the other hand, the district court could consider on remand the state's argument that the claims were defaulted because the state post-conviction court found Mr. McCormick's issues could have been raised on direct appeal. The 10th refuses to address the merits, as the state requested, because their resolution is not beyond any doubt. Mr. McCormick raised Brady and ineffective assistance claims based on evidence the state witness who testified penetration was indicated by tearing and scarring of the child victim's hymen and anus lied about her qualifications. She claimed to be RN and SANE certified, but she had lost her RN and SANE certification almost 3 years before trial.

Descamps did not recognize new right for filing of habeas petitions

U.S. v. Montes, 2014 WL 3032185 (7/7/14) (N.M.) (unpub'd) - The 10th espouses a theory that would put the kibosh on almost all § 2255s relying on Descamps v. United States, 133 S.Ct. 2276 (2013). The 10th holds the § 2255 motion based on Descamps was not timely even though it was filed within one year of Descamps. Descamps simply applied existing precedent. It did not recognize a new right---a prerequisite under § 2255(f)(3) for restarting the running of the statute of limitations.

Habeas Petition Untimely Where Defendant Knew Witness Lied At Time of Trial

Taylor v. Martin, 2014 WL 3057197 (7/8/14) (Okl.) (Published) - Mr. Taylor's § 2254 petition was untimely even though it was filed within one year of his acquisition of a key prosecution witness's affidavit swearing the witness had lied at trial. This was not a newly discovered factual predicate triggering a restart of the statute of limitations under 28 U.S.C. § 2244(d)(1)(D). Mr. Taylor knew the witness was lying when the witness was testifying. He could have pursued his claim without the affidavit. The fact that Mr. Taylor couldn't possibly have succeeded on his claim without the affidavit doesn't seem to disturb the 10th.

Court committed Bruton error, but error was harmless

U.S. v. Shaw, 2014 WL 3377652 (7/11/14) (Kan.) (Published) - The 10th finds it violated the Confrontation Clause to admit an alleged accomplice's confession to police, although Mr. Shaw's name was replaced with a neutral pronoun. The district court thought the admission was okay under Bruton. But it was only okay under Bruton to stick in neutral pronouns in a joint trial where the statements were admissible against the confessor and an instruction is given to disregard the evidence with respect to the confessor's co-defendant. But here Mr. Shaw was on trial by himself and the evidence was used against him. But the error was harmless beyond a reasonable doubt because the offending statement only related to a bank robbery concerning which Mr. Shaw obtained an acquittal and the evidence regarding the other robberies was very strong.

The 10th also finds inadmissible brief testimony about an uncharged bank robbery. A witness testified Mr. Shaw asked him to pick up a man and later that day he learned there was a bank robbery in the same town. The evidence had too little relevance to be admissible. But the admission was harmless. The improper evidence so tenuously tied Mr. Shaw to a robbery that it couldn't have influenced the verdicts that were supported by strong evidence.

The 10th holds that a trial court does not abuse its discretion when it refuses to dismiss a juror who has in some way indicated she may not be impartial if she subsequently affirms her impartiality. Thus the 10th precludes virtually any juror bias challenge on appeal. In this case, Mr. Shaw mouthed the words "call me" and gestured to a juror as if he were holding a telephone to his ear. This upset the juror. Let's call her juror 121. [Mr. Shaw explained he was actually trying to gesture to a different juror. He obviously needs to refine his flirting technique]. 121 told the bailiff about Mr. Shaw's behavior in front of the other jurors. The court questioned all the jurors about this. One juror, 76, said the incident made her sick and she would have to make an effort to get the implanted event out of her mind. Eventually 76 said she thought could put the matter aside. The court excused 121, but refused to excuse 76. The 10th found this to be okay. The 10th also noted its concern about removing jurors as a result of a defendant's misconduct.

NBC's Dateline Search Was Government Action Where Dateline Cooperated with State

Brokers' Choice of America v. NBC Universal, Inc., 2014 WL 3307834 (7/9/14) (Col.) (Published) - The search by NBC's Dateline constituted state action where: both Alabama and NBC were interested investigating fraudulent sales of annuities to seniors; knowing the producers would use hidden cameras to record a training seminar for insurance brokers, Alabama officials supplied the producers with insurance licenses they could not otherwise obtain; the trainers restricted the seminar to those with such licenses; NBC agreed to share with Alabama the information and recordings it acquired during its investigation and did so after the seminar.

Nonetheless, no Fourth Amendment violation occurred. The trickery and deception used was not so extreme that it deprived the trainers of the ability to make a fair assessment of the need to surrender their privacy. Generally misrepresentation of official capacity is not beyond the Fourth Amendment's limits. What happened here was akin to undercover officers pretending to be drug dealers. There was no coercion involved. It didn't matter that the trainers specifically prohibited recording the seminars. While perhaps a breach of contract, the recording passed constitutional muster. Surreptitious recording is not violative of the Fourth Amendment if statements are made in the presence of outsiders. The 10th distinguished Alabama's conduct from that of the officers in Hanlon v. Berger, 526 U.S. 808 (1999) and Wilson v. Layne, 526 U.S. 603 (1999) where officers invited media along to observe the execution of warrants. In those cases the government used its coercive powers to gain access and the media did not serve any investigative purpose.

Unpublished Decisions

U.S. v. Marquez, 2014 WL 2978546 (7/3/14) (Kan.) (unpub'd) - Mr. Marquez's appeal waiver was enforceable even though he was surprised by the Sentencing Commission's post-sentence announcement of reductions in the offense levels for drug offenses.

Smith v. Howell, 2014 WL 2958785 (7/2/14) 9Kan.) (unpub'd) - It was not clearly established that Mr. Smith's 8th Amendment rights were violated by exposure to a "small" quantity of friable asbestos from a damaged pipe for "just" a few hours. So the prison employees are entitled to qualified immunity.

Kennedy v. Addison, 2014 WL 3361131 (7/10/14) (Okl.) (unpub'd) - A defendant's absence from individual voir dire in chambers was not enough to establish a constitutional error.

Claim that Sentencing Court was Guilty of Gender Bias Was Speculative

U.S. v. Johnson, 2014 WL 2958595 (7/2/14) (Kan.) (Published) - Ms. Johnson did not plainly show the district court was guilty of gender bias. In response to Ms. Johnson's contention that she committed the mail theft and fraud offenses in large part due to abuse by her boyfriend-co-defendant, the court said: "in most of those domestic violence situations,both parties are involved." Ms. Johnson argued that placing part of the blame for domestic violence on the victim was a recognized form of gender bias. The 10th found the bias allegation was too speculative. A further airing out of the issue below may or may not have exposed bias. But the failure to raise the issue before the district court doomed the chances for finding any plain error.

Agent's Error Regarding Plaintiff's Right to Bear Firearms was Negligent at Worst; No Relief for Civil Rights Plaintiff

Stonecipher v. Valles, 2014 WL 2937038 (7/1/14) (N.M.) (Published) - An unfavorable Franks decision in a § 1983 context. An ATF agent learned that Mr. Stonecipher might have firearms in his home. The agent also got a Missouri court document showing Mr. Stonecipher pleaded guilty to a misdemeanor domestic violence offense, received a suspended sentence, which required one year of probation, and that he was discharged from probation after one year. A background check report indicated Mr. Stonecipher had been denied the right to purchase a gun due to his domestic assault conviction, but it also indicated the denial had been overturned, that he had zero convictions and that suspended sentences are not convictions when probation is completed. The agent ran all this information by an AUSA, who concluded Mr. Stonecipher was not allowed to possess firearms under § 922(g)(9). Actually the Missouri adjudication was not considered a conviction under Missouri law due to the suspended sentence and the discharge and so it did not disqualify Mr. Stonecipher from possessing firearms. The agent's affidavit for a warrant to search Mr. Stonecipher's home did not mention the sentence suspension or that the denial status, which he did mention, was later overturned. In the midst of the ensuing search, Mr. Stonecipher read to the searching agents a letter from his attorney in the Missouri case that explained that once he served his probation the adjudication would not count as a conviction. The agents continued with the search. The lead agent, after consulting with the AUSA, filed a criminal complaint in federal district court. Five days later an AUSA had the complaint dismissed.

The 10th held that the nuances of Missouri law in combination with the facts and the ATF regulations, which incorporate state definitions of conviction, were not so obvious that the agent acted recklessly in failing to recognize Mr. Stonecipher was permitted to possess firearms. It was reasonable for a non-legally trained officer to assume a conviction and sentence are two separate things. The background reports indicated Mr. Stonecipher was convicted and not convicted. The overturning of the denial status didn't necessarily mean the conviction was overturned. In sum, at worst the agent was negligent. The consultations with the AUSA and provision of all the materials to the AUSA "undercut" any notion he acted recklessly. The agents were not required to forego arresting Mr. Stonecipher after he read his attorney's letter to them. The letter was not conclusive and there was no way at that time to verify its authenticity or accuracy.

District Court Failed to Make Proper Findings to Support Pretrial Detention

U.S. v. Gerkin, 2014 WL 2978549 (7/3/14) (Ut.) (unpub'd) - The 10th declares what we all know not be true in federal court that "liberty is the norm" when it comes to whether or not criminal defendants are released or detained. In this case, the district court erred when it detained Mr. Gerkin without deciding whether there were any conditions or combination of conditions that could reasonably assure Mr. Gerkin's appearance and the safety of the community. Moreover, the district court needed to explain why it shifted the rationale for detention from the magistrate judge's danger rationale to flight risk. It also had to make factual findings supporting its flight risk determination. Without the necessary findings the 10th could not properly review the detention decision. The 10th remanded for proper findings.

Completion of Sentence Did Not Moot Habeas Petition

Gonzales v. Garcia, 2014 WL 2871347 (6/25/14, NM) (unpub'd) - The district court erred when it dismissed as moot a 28 USC sec. 2254 habeas challenge to a New Mexico 7th DWI conviction because Mr. Gonzales had finished his sentence. The court failed to apply the presumption of collateral consequences of a felony conviction. The relevant consequences did not only derive from the N.M. DWI statutes, as the court thought.

No Habeas Relief Even Though Juror was Married to Prosecution's Expert

Benjamin v. Meyer, 2014 WL 2724636 (6/17/14) (Wyo.) (unpub'd) - No habeas relief in the following odd situation. A prospective juror who became an actual juror assured the trial court she could be impartial even though her husband was an expert for the prosecution. She noted she was an independent thinker and, [unlike most spouses], often disagreed with her husband. Defense counsel explained to the court he didn't seek her excusal because he "kind of liked her." During the trial, however, although the husband never testified, he did rush up to the prosecution table during cross of the defense expert, giving the impression he disagreed with that expert. The court denied the defense's request to remove the juror at that point. The 10th found no clearly established law that the juror was implicitly biased, nor that the trial court had a sua sponte duty to hold a hearing on the juror's actual bias. Ms. Benjamin failed to rebut the state court's finding that circumstances had not changed since voir dire such that the juror's impartiality would be affected.

Walkaway from Halfway Is "Escape" from Federal Custody

U.S. v. Foster, 2014 WL 2748502 (6/18/14) (Col.) (Published) - The 10th holds Mr. Foster escaped from custody under 18 U.S.C. § 751(a), when he left a residential reentry center where he was ordered to reside as a supervised release condition. The 10th reversed the district court which dismissed the indictment on the grounds that it imposed the half-way house condition only to prevent a recently-released prisoner's homelessness. "Any" custody in § 751(a) is not restricted to punitive custody, the 10th says. The custody's purpose doesn't matter. And direct physical restraint is not required. Halfway house restrictions are sufficiently limiting to constitute custody. Mr. Foster had fair notice he would violate § 751(a) if he left the halfway house.

Incorrect Sentencing Calculation Was Plain Error Even Though Sentencing Court Varied Based on Policy Disagreement with Reentry Guideline

U.S. v. Rosales-Miranda, 2014 WL 3033419 (decided 6/17/14, published at the request of the defense, 7/7/14) - A good case for the 3rd and 4th prongs of the plain error analysis in a sentencing context. Both parties agreed the district court committed plain error when it imposed a 16-level enhancement under § 2L1.2 based on misdemeanor domestic violence convictions. The court varied downward from a guideline range of 70 to 87 months to 36 months based on its policy disagreements with USSG § 2L1.2's double-counting of convictions and its lack of an empirical basis. There was a reasonable probability the error significantly affected the sentence. The range without the error would have been 30-37 or 33-41 months. The 10th noted the error more than doubled the guideline range, which the 10th stressed must be the starting point for any sentencing. The incorrect range then exerted its force on the judge, even though the ultimate sentence was within the correct range. And the policy reasons the court gave for varying downward from the wrong range would justify varying downward from the correct range. The 8-level bump for Mr. R-M's aggravated felony would warrant a complaint about double-counting. The 10th held that, although U.S. v. Hoskins, 654 F.3d 1086, 1099 (10th Cir. 2011), might dictate a different 3rd- prong determination, earlier precedent, which controls in a precedent-conflict situation, allowed for reversal even if the ultimate sentence fell within the correct range. The government was wrong to say the district court so hated the § 2L1.2 guidelines it would have ignored the correct range. The 4th-fairness-integrity-public-reputation prong was met because the court made a "patent, egregious" calculation error and there was a strong possibility the error had made a significant difference in the sentence imposed. Sentence reversed.

Nervousness, Air Fresheners, and "Jesus" on the License Plate Ring Did Not Provide Probable Cause for Car Search

Felders v. Malcolm, 2014 WL 2782368 (6/20/14) (Ut.) (Published) - In this § 1983 case, it was clearly established the officers did not have probable cause to search Ms. Felders' car in the following circumstances after a traffic stop for speeding. According to one officer, Ms. Felders was nervous and would not maintain eye contact. There was a strong odor of air freshener and, most suspicious of all, affixed to the car was a license plate ring with "Jesus" written on it. Also the officer perceived inconsistencies between the passengers' and Ms. Felders' versions of their trip details. The circumstances did not show probable cause of drug involvement or lying to an officer under Utah law. The story inconsistencies did not indicate an intent to hinder an investigation---an element of the Utah offense. It was not objectively reasonable for the canine officer to rely on the detaining officer's belief in probable cause where the facts the detaining officer relayed did not amount to probable cause. This type of holding could be important in the future if courts start applying the good faith exception to the 4th Amendment in these non-warrant types of situations.

There was sufficient evidence the officers facilitated the drug-sniffing dog's entry into the car. This would be unconstitutional absent probable cause. The officers decided to get all the occupants out of the car. A tape of the events showed one officer preventing the rear passenger from closing the door and the officers agreeing it was nice of another passenger to leave the back hatch door open. While on a leash, "Duke", [the dog, not the officer], almost immediately jumped through the open rear passenger door and alerted to the center console which contained two bags of jerky. Unlike in our cases, no drugs were found.

ICE Officials Lacked Reasonable Suspicion to Detain Defendant; Fingerprints and A-File Must Be Suppressed

U.S. v. Achana-Suaso, 2014 WL 2782365 (6/20/14) (Col.) (unpub'd) - Olivares-Rangel victory continues to do good. In this case, the government conceded ICE officers had no reasonable suspicion to continue Mr. Achana-Suaso's detention based on his lack of familiarity with English and his presence in a drug-dealing area. The government also conceded there was a factual nexus between the constitutional violation and the taking of Mr. Achana-Suaso's fingerprints and the subsequent retrieval of his A-file. The 10th held the district court clearly erred when it found the prints and A-file were obtained for routine booking purposes [which would make the prints admissible] where the government presented no evidence regarding booking procedures and the acquisition of the prints and the A-file. Mr. Achana-Suaso's admission following his illegal seizure that he entered this country illegally was insufficient to show he was not fingerprinted for an investigatory purpose. Otherwise, "widespread unconstitutional conduct" would be condoned. Impressively, the 10th refused to afford the government an opportunity to present the missing booking evidence. Olivares-Rangel, the 10th asserts, "is now well-established precedent." The government should have known it had the burden to prove the purpose of the print-taking. The prints and the A-file must be suppressed, the 10th orders.

Habeas Petition Improperly Dismissed as Moot

Gonzales v. Garcia, 2014 WL 2871347 (6/25/14, NM) (unpub'd) - The district court erred when it dismissed as moot a 28 U.S.C. 2254 habeas challenge to a New Mexico 7th DWI conviction because Mr. Gonzales had finished his sentence. The court failed to apply the presumption of collateral consequences of a felony conviction. The relevant consequences did not only derive from the N.M. DWI statutes, as the court thought.

Sentencing court can consider length of mandatory gun sentences when determining a reasonable sentence

U.S. v. Smith, -- F.3d --, 2014 WL 2922703 (10th Cir. 6/30/14) - district courts may consider the length of mandatory gun count sentences when imposing sentence for an underlying crime of violence. Mr. Smith received a 35-year prison term under § 924(c) for use of a gun during two robberies--meaning he would be 55 years old by the time he's eligible for release. The Tenth rejects the government's argument that the district court could not take that into account when sentencing for the underlying crime and remands for resentencing.

Probation-related searches can be based on less-reliable information than other searches

Leatherwood v. Welker, No. 13-6152, 2014 WL 3057194, ---- F.3d --- (10th Cir. 7/8/14): Employees of the Oklahoma Dept. of Corrections Probation and Parole Division who searched Leatherwood's house are entitled to qualified immunity. Leatherwood was a probationer. His probation officer, Welker, received a a phone call from his ex-wife alleging that Leatherwood had raped his current girlfriend and that Leatherwood might have firearms. Welker also received an email from an assistant DA who had received it from a confidential source alleging personal knowledge that Leatherwood had alcohol and sexual materials in his home. Leatherwood's conditions prohibited possession of pornography or sexually oriented materials. Welker and the other defendants conducted a warrantless search of Leatherwood's home and found firearms. The Court held that, because Leatherwood was a probationer, the search was reasonable if supported by reasonable suspicion. Probation searches may be premised on less reliable information than what is required in other contexts. The phone call from the wife and the email were sufficiently reliable under these circumstances.