Monday, December 22, 2014

Unpublished decisions

U.S. v. McClung, 2014 WL 6892687 (12/9/14) (Col.) (unpub'd) - Something to keep in mind when our clients want to apologize. The 10th says it was okay for the d. ct. to consider as a factor against Mr. McClung that, although he wrote a nice letter of apology to the court on the eve of sentencing, he never apologized earlier to the victims when he had the chance.

U.S. v. Greenwood, 2014 WL 6980914 (12/11/14) (Col.) (unpub'd) - The 10th finds no entrapment as a matter of law. The jury acquitted Mr. Greenwood of the first drug transaction, but convicted him of the 2nd and 3rd transactions. Mr. Greenwood argued any predisposition to sell drugs on the later occasions was the product of improper government conduct with respect to the first transaction. But the 10th found sufficient differences between the first and the later transactions in terms of where and when [11 and 19 days later] they occurred such that the first deal was not part of a continuous course of conduct. The 10th refuses to adopt a rule that once entrapment occurs a defendant is immune from culpability thereafter. The 10th also noted Mr. Greenwood had a prior drug-sale conviction, multiple cell phones, large amounts of cash, guns, drugs and drug paraphernalia.

Sanders v. Dowling, 2014 WL 7003775 (12/12/14) (Okl.) (unpub'd) - The Supreme Court's decision in Missouri v. McKneely, 133 S. Ct. 1552 (2013), which required a warrant for a DWI blood draw under certain circumstances, did not restart the statute of limitations. The time limit would restart only if the decision would apply retroactively. Teague prevents the decision from being retroactive. It's a procedural rule that is not a watershed rule, since it does not decrease the risk of an inaccurate conviction.

U.S. v. Oyegoke-Eniola, 2014 WL 6980976 (12/11/14) (Kan.) (unpub'd) - The 10th says it construes pro se pleadings liberally even if the pro se person is highly educated, in this case, with a B.S. in computer engineering. In this case, the d. ct. said at sentencing: "I have seen all kinds of people coming through court from foreign countries but not with your education and intelligence and level of living your life committing crimes," and also: "Of all people coming to the U.S. to get into good schools, you didn't deserve that, so I'm going to do everything to get you out of the country permanently." Assuming this evidenced reliance on the impermissible factor of alienage, there's no relief under the plain error standard of review because there was no effect on Mr. Oyegoke-Eniola's substantial rights, according to the 10th, given the sentence of time-served and a supervised release term within the guideline range. Although the special condition of handing him over to immigration officials upon completion of prison might seem like it affects his substantial rights, it's not an unusual condition. In other words, no plain error relief if a defendant gets the usual within-guideline treatment.

Pinson v. Berkebile, 2014 WL 6892179 (12/9/14) (Col.) (unpub'd) - A procedural victory for a prisoner in a ยง 1983 civil rights suit. Mr. Pinson alleged he could not exhaust his remedies in the federal prison system because the prison told him he couldn't fill out the grievance form until he received a disciplinary hearing officer (DHO) report and he never received a DHO report. The d. ct. was wrong to find a lack of exhaustion based on BOP's claim that he did get the DHO report and the policy that he receive such a report. It was not proper for the court to simply accept BOP's word over the prisoner's that he received the DHO report. That the rules require providing the report doesn't mean the rules were followed in Mr. Pinson's case. Also, the court should consider whether exhaustion is waived because the prison didn't provide Mr. Pinson with staff representation to help him exhaust.