Unpublished Decisions
U.S. v. Gutierrez-Borjas, 2014 WL 5151975 (10/15/14) (Col.) (unpub'd) - Imposing the 4-level enhancement for possessing a firearm in connection with another felony offense under ยง 2K2.1(b)(6)(B) was not plain error where Mr. Gutierrez-Borjas carried a gun hidden in his waistband while he broke into a home where his recently estranged wife was staying. It didn't matter that he didn't openly hold the gun. It is enough to violate Colorado's felony menacing statute that the defendant engaged in actions that, if discovered, would place the victim in fear. The victim does not have to actually be aware she is being threatened. The 10th acknowledged Mr. Gutierrez-Borjas's argument had "some force." So maybe the argument could be successful if preserved in district court.
Saleh v. U.S., 2014 WL 5293687 (10/17/14) (Col.) (unpub'd) - Another statement of the scary notion that if a defendant does not argue in the opening brief an error satisfies the plain error reversal standard then the defendant has waived such an argument even if the defendant raises it in the reply brief after the government claims the error was not preserved. In other words, we may have to argue plain error in our opening briefs even if we believe the issue was preserved if there's the slightest chance the 10th might see things differently.
U.S. v. Brown, 2014 WL 5304891 (10/17/14) (Ut.) (unpub'd) - In the course of rejecting Mr. Brown's claim that counsel was deficient in failing to make a particular argument against the loss amount under the fraud guidelines, the 10th says: "Counsel is expected to test problematic aspects of the government's case, but cannot be expected to run to ground every factual anomaly, particularly one retrieved post hoc from the bowels of the record."
Saleh v. U.S., 2014 WL 5293687 (10/17/14) (Col.) (unpub'd) - Another statement of the scary notion that if a defendant does not argue in the opening brief an error satisfies the plain error reversal standard then the defendant has waived such an argument even if the defendant raises it in the reply brief after the government claims the error was not preserved. In other words, we may have to argue plain error in our opening briefs even if we believe the issue was preserved if there's the slightest chance the 10th might see things differently.
U.S. v. Brown, 2014 WL 5304891 (10/17/14) (Ut.) (unpub'd) - In the course of rejecting Mr. Brown's claim that counsel was deficient in failing to make a particular argument against the loss amount under the fraud guidelines, the 10th says: "Counsel is expected to test problematic aspects of the government's case, but cannot be expected to run to ground every factual anomaly, particularly one retrieved post hoc from the bowels of the record."
posted by Anonymous at 5:10 PM
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