Tuesday, August 26, 2014

Court affirms district court's refusal to allow meth defendant to withdraw guilty plea; 295-month sentence affirmed

U.S. v. Sanchez-Leon, 2014 WL 4178302 (10th Cir. 8/25/14) (published) - The district court properly denied Mr. Sanchez-Leon's motion to withdraw his guilty plea on meth distribution charges. He did not assert innocence and his responses at the change-of-plea hearing indicated he understood the charges, consulted with counsel, and entered the plea voluntarily. His 295-month sentence was procedurally reasonable. Although the district court erroneously concluded it could not consider deportability as a possible variance factor, the error was harmless in light of statements by the court that it would have given the same sentence even if it had considered Mr. Sanchez-Leon's deportability and the court's expression of concern that a variance based on factors such as deportability would give rise to sentencing disparity between similarly situated defendants. The district court did not treat the Guidelines as mandatory by presuming a Guidelines recommendation would be reasonable during sentencing; it correctly treated the Guidelines range as just one of many factors it should consider. The Tenth concludes from the record that the sentence was substantively reasonable as well.

Thursday, August 21, 2014

USCourts article: Criminal Justice Act: At 50 Years, a Landmark in the Right to Counsel

Yesterday marked the 50th anniversary of the signing of the Criminal Justice Act of 1964, which established the system for providing indigent defendants in federal courts with paid counsel. An article at USCourts.gov sets out a brief history of the right to counsel. It begins:

Fifty years ago—August 20, 1964—the President signed into law the Criminal Justice Act (CJA), which for the first time assured professional legal counsel in federal courts by paying an hourly fee for court appointed lawyers. Six years later, Congress established a full-time federal defender service within the judicial branch.

Together, the measures created the modern federal defenders system, and helped secure a right that Americans now take for granted: meaningful legal representation even for those who can't afford it.

Many defenders and judges call the CJA a shining success. "It's been called the gold standard of public defense," said U.S. District Judge Catherine C. Blake, chair of the Judicial Conference's Defender Services Committee. "The Criminal Justice Act and the right to counsel have greatly strengthened the fairness and integrity of our system of justice."

The article, which also includes some videos and other links about the right to counsel, is continued here.

Friday, August 15, 2014

IRS issuing refund pursuant to fraudulent tax return does not support jury instruction on entrapment by estoppel

U.S. v. Rampton, 2014 WL 3882564 (8/8/14) (Ut.) (Published) - Ms. Rampton was not entitled to an entrapment-by-estoppel instruction. She was involved in a 1099-OID tax-return scheme. She contended that the refund check from the IRS validated her belief that her scheme was legit because it was just a way to get money like the banks were getting. Ms. Rampton did not satisfy the estoppel requirement that her reliance be reasonable. This requirement was necessary because otherwise the "Ill-educated and the naive" would be able to get away with all those tax refunds, while educated folks would get convicted. In this case Ms. Rampton fabricated the forms and provided false information, such as that more than $200,000 had been withheld to cover her income taxes. No one would reasonably infer the IRS audited her forms for accuracy, discovered her deceit and still decided she was due a refund. And besides, she knew the IRS told a friend of hers doing the same thing that the scheme was bogus.

Monday, August 11, 2014

Continuances Did Not Violate Speedy Trial Act; Exclusion of Defense Expert Testimony OK'd

U.S. v. Banks, -- F.3d --, 2014 WL 3805481 (8/4/14) (Colo.) - the Tenth affirms multiple mail fraud and wire fraud convictions in a multi-defendant case. Defendants' speedy trial rights were not violated under 18 U.S.C. § 3161(c)(1) or the Sixth Amendment by several continuances granted by the district court. Although the length of the delay (greater than a year) weighed in defendants' favor, the balancing of the remaining three factors did not. The district court properly weighed the applicable factors and supported its rulings with detailed factual findings.

The district court did not compel co-defendant Barnes to take the stand in violation of his Fifth Amendment privilege against self-incrimination; he took the stand voluntarily. And the district court's curative instructions to the jury in this regard did not violate defendants' Sixth Amendment right to a fair trial. Defendants rejected the court's first proposed curative instruction and failed to object to either the substance or the timing of the second curative instruction. Defendants did not demonstrate any error by the district court, much less plain error.

The district court did not abuse its discretion by excluding testimony from defendants' expert witnesses on account of defendants' failure to make proper disclosure of the witnesses under Fed. R. Crim. P. 16 and 702. Defendants offered no legitimate reasons for failing to comply with the disclosure requirements and the government would have been prejudiced in its ability to effectively cross-examine the experts about their qualifications and conclusions if defendants had been allowed to call their expert witnesses on day 9 of trial. The district court's refusal of a continuance was appropriate because the government had already rested its case.

AEDPA Filing Deadline Is Tolled While State Petition is Pending, No Matter How Dilatory State Courts Are

Fisher v. Raemisch, 2014 WL 3827163; No. 13-1144 (Colo.)(published): The court reverses a district court decision to dismiss a habeas petition. The district court dismissed Fisher’s petition because it felt that he had abandoned a state post-conviction petition which made his federal petition untimely. The 10th Circuit said that AEDPA’s one year filing limitation period is tolled while an application for post-conviction relief is pending in state court. Here, the state court took 8 years to rule on Fisher’s post-conviction petition. The 10th Circuit said that wasn’t his fault. It rejected the argument of the respondent and the lower court that Fisher had abandoned the post-conviction proceedings because he didn’t ask for an expeditious ruling. The court held that the limitations period is tolled while a post-conviction application works its way through the state courts.

Object, Object, and Object Again

United States v. Gonzalez-Perez, 2014 WL 3827586; No. 13-2147 (N.M.)(unpublished): another opinion that points out why it is important to object and preserve in the lower court. Gonzalez raised numerous compelling issues. First, he argued that his 5th and 6th Amendment rights were violated when the government let a material witness be “voluntarily deported” before defense counsel could speak with him. Gonzalez asked the court to adopt the rule developed by the 9th Circuit in Leal del Carmen, 679 F.3d 964, 970 (9th Cir. 2012). There the Court found that when the government interviews a witness or has other information suggesting that he could offer exculpatory evidence, the government may not deport him without giving defense counsel a chance to interview him. The panel rejected that rule but said the “more prudent practice” would have been to hold the witness until defense counsel could talk to him. Still, the agent who let him go was merely negligent - he didn’t do that in bad faith.

Gonzalez next argued that his right to confrontation was violated when the court let an agent tell the jury about the missing witness’s statements. Gonzalez had successfully moved pretrial to exclude the witness’s statements about his immigration status. At trial the government brought them in anyway and defense counsel didn’t object. On appeal the parties agree defense counsel had preserved the issue. That is the Court’s decision, said the panel. It then explained it would review the issue for plain, not harmless error, because even the granting of a pretrial limine motion does not relieve the party from objecting when the excluded evidence is admitted. Gonzalez couldn’t satisfy this standard because there was abundant other evidence of Gonzalez’s immigration status.

Finally, Gonzalez said that the court shouldn’t have allowed an agent to give an opinion on his mental state at the time of the alleged offense. Here again the court commented it had some concern with how the government manipulated the agent’s testimony but since Gonzalez didn’t object he couldn’t meet his burden of proving plain error.

Monday, August 04, 2014

District Court Can't Revisit Sentencing Issues Unaffected by Guideline Amendment in Resentencing Procedure

U.S. v. Washington, 2014 WL 3537842 (7/18/14) (Kan.) (Published) - A defendant cannot use § 3582(c)(2) to have the 10th resolve a dispute previously unresolved on appeal. In this case on direct appeal Mr. Washington challenged the district court's crack quantity calculations in 2 respects: (1) the estimation that he and his co-conspirators bought a certain amount of crack with pooled money and (2) the conversion of money into an amount of crack. The 10th elected not to resolve issue (2) because when it resolved issue (1) Mr. Washington was stuck in the same offense level regardless of the resolution of issue (2). By & by the crack guidelines change and now Mr. Washington would be in a different offense level under the new guidelines if issue (2) were resolved in his favor. He filed a § 3582(c)(2) motion which recognized the district court was stuck with its previous ruling on issue (2), but asked the court to deny the claim on law-of- the-case grounds and move the case along to the 10th, which hopefully would resolve issue (2) in his favor, rendering him eligible for relief.

On the positive side, taking the side of the 9th over the 6th, the 10th holds it is bound by Hahn [the infamous appeal waiver case] to conclude it had jurisdiction to hear the case under 28 U.S.C. § 1291. This is so even if there wasn't jurisdiction under § 3742(a), given the case didn't precisely fit under any of the appeal categories listed, e.g. "imposed sentence in violation of law" [where the district court followed the law of the case]. Nor did the 10th buy the government argument that Mr. Washington wasn't aggrieved by the lower court decision. He didn't seek denial of his motion. He simply conceded the district court's lack of power to help him. But in the end Mr. Washington gets no relief. § 3582(c)(2) and § 1B1.10 don't allow courts to revisit aspects of a sentence unaffected by the retroactively applicable guideline amendment. The 10th distinguishes U.S. v. Battle, 706 F.3d 1313 (10th 2013), where the 10th allowed the district court to resolve a disputed drug quantity issue in a § 3582(c)(2) case. In Battle the contemplated procedure flowed directly from the original record, memos and previously-made factual findings. Here, what Mr. Washington asked for doesn't flow from a legal determination made on the previous appeal. And Mr. Washington didn't ask the 10th to resolve issue (2) based on the briefs in the prior appeal. Those briefs only argued the issue in a couple of sentences whereas he took 12 pages on this appeal. Mr. Washington could try to seek a recall of the mandate. But the 10th didn't think that would be too fruitful, especially given the skimpy original briefing on issue (2).

Upward Variance to 16 Years (From 57 Months) Affirmed in Involuntary Manslaughter Case

U.S. v. Lente, 2014 WL 3537830 (7/18/14) (N.M.) (Published) - In the 3rd sentencing appeal in this case, the 10th affirms the district court's 16 year sentence---an upward variance from 57 months--- for a young woman who, while driving drunk, drove head-on into a pickup after her passenger tried to pull the steering wheel from her and she jerked it. Three people - two kids and an 18-year-old - died and another young adult was seriously injured.

First, the 10th declared the procedural-error arguments were really challenges to the substantive reasonableness of the sentence. The claim that it was irrational to refuse to consider the mitigating fact of the passenger's actions causing the accident was really a challenge to the weight given. The claim that the district court didn't consider the Sentencing Commission's careful consideration of the multi-victim circumstance was considered by the court and so the complaint was really substantive.

Next the 10th found permissible the district court's primary reason for the variance: a policy disagreement with the Commission regarding how much extra punishment should be associated with multiple victims of involuntary manslaughter. The Guidelines say use the grouping rules. The 10th says the court's disagreement was specifically attached to the "rare" facts of this case: multiple involuntary manslaughter convictions involving people who just happened to be in the wrong place at the wrong time, rather than passengers of the drunk defendant . So the "closer review" that Kimbrough suggested might be needed for pure policy disagreements was not necessary. The 10th noted Commission Groups and courts have expressed dissatisfaction with the involuntary manslaughter guidelines and in particular, the grouping rule application. The 10th was unimpressed by the notion that it was unfair to punish so severely for consequences that were substantially the result of happenstance. The 10th was unwilling to look at how unlikely the consequences were of Ms. Lente's conduct. Instead it said Ms. Lente's extreme recklessness justified disregarding the happenstance factor. The 10th found permissible the district court's finding of extreme recklessness based on: (1) a .21 BAC two hours after the accident where the average BAC in a fatality is .16; (2) State Road 47 was a well-traveled road that was designated as unusually significant to its metropolitan area with 500-600 vehicles per hour at the time of Ms. Lente's drive; (3) Ms. Lente had no driver's license. The 10th acknowledged (2) & (3) didn't show extraordinary recklessness. But together with the BAC it was okay to find Ms. Lente extra reckless. It was permissible to vary due to Ms. Lente's tribal criminal history of two disorderly conducts and an assault and battery over the course of 3 or 4 years. The court could conclude these showed a repeated willingness to abuse alcohol and engage in violent and reckless behavior. The 10th noted less than 10 % of vehicular homicide defendants had assault & battery priors. Zero criminal history points "clearly" understated her criminal history, the 10th says. The 10th found Ms. Lente's prison conduct, which included use of controlled substances,a statement she wanted to get drunk when she got out and refusal to take her headphones off during drug education class, supported the district court's conclusion Ms. Lente was a high risk for recidivism. Pepper not only allows post-sentence rehabilitation evidence but also post-sentence evidence showing the defendant was not rehabilitated.

There was no unwarranted disparity. The 10th found Ms. Lente's mitigating evidence unconvincing. Her horrible childhood, her youth, and mental health issues were counteracted by the fact she hadn't rehabilitated herself. And such mitigating evidence is a "double-edged sword" because it means she's dangerous. The 10th consoled Ms. Lente with its opinion that she is not beyond hope of recovery. The 10th expressed its "sincere hope" she obtains the treatment she needs. Ms. Lente's passenger's role in the accident meant nothing. As the district court said, the going into the wrong lane was just a small action that could be ignored. She and the passenger together caused the crash and in her guilty plea she acknowledged she acted with the reasonable foreseeabilty she was imperiling the lives of others. "There is nothing irrational about considering the harm caused by that decision, even if other factors contributed to the result.

The 10th affirms the sentence "not without some pause." The 10th worried sentences could be widely divergent if one judge thinks harm is the most important and another thinks the lack of bad mens rea is important. The 10th stressed the role of the "extensive record" in this case that helped justify the extreme variance. It ended the opinion by assuring us "appellate review continues to have an important role to play and must not be regarded as a rubber stamp." On the bright side for those other than Ms. Lente, this case will make it all the harder for the government to overturn a substantial downward variance.