Unpublished decisions
U.S. v. Pinson, 2014 WL 7019664 (12/15/14) (Okl.) (unpub'd) - The 10th interprets Fed. R. Crim. Pro. 36, which allows a court to correct a clerical error in a judgment at any time, in a defendant's favor. Mr. Pinson asserted in his Rule 36 motion that the district court expressed a recommendation that he be incarcerated at the Federal Medical Center (FMC) in Butner to address his mental health issues. But the judgment said "FCI Butner." Mr. Pinson contended this resulted in his placement in a facility that didn't address his psychiatric needs. The 10th holds that, if the transcript indeed reflects the judge's FMC recommendation, Rule 36 provides the remedy to correct the judgment appropriately. Even though BOP doesn't have to follow the recommendation, it will then have the judge's considered judgment, which the BOP must consider under 18 U.S.C. § 3621(b)(4)(B).
U.S. v. Bong, 2014 WL 7210999 (12/18/14) (Kan.) (unpub'd) - If you thought, as I did, that Mr. Bong was convicted of a dope offense, you would be wrong. It's a firearm case. The 10th holds that an officer's knowledge that a suspect is presently armed is sufficient standing alone to justify a protective frisk to search for other weapons. In this case Mr. Bong's possession of a folded-up pocket knife clipped to the outside of his pant's pocket justified the frisk. And for added measure, Mr. Bong's prior arrest for weapons and drug charges, the fact that he had driven away from a house under observation for drug trafficking and his "evasive body positioning" - keeping the right side of his body away from the officer, also created a reasonable suspicion Mr. Bong was armed and dangerous. The officers' subsequent use of force was reasonable where: Mr Bong backed up from the car on which an officer had ordered him to put his hands; the officer tried to maintain control of Mr. Bong's hands; they struggled; the officer gave Mr. Bong a hip toss to the ground; when it appeared Mr. Bong was about to stand, the officer kicked Mr. Bong several times in the stomach, dislodging what the officer believed to be a gun; and another officer entered the fray to restrain Mr. Bong. With respect to the admission of evidence at trial, the 10th refuses to consider Mr. Bong's plain error argument because he did not adequately argue the third and fourth prongs of the plain-error-reversal standard. He just asserted the evidence was "prejudicial." That didn't cut it.
U.S. v. Storey, 2014 WL 7172363 (12/17/14) (Okl.) (unpub'd) - The 10th finds the Fourth Amendment did not apply to FedEx employees' search of a package, even though some of the search occurred in front of the police. The officers didn't instigate, encourage or aid the search. The FedEx employees did not become government agents despite their intent to help the police and the fact that one enthusiastic employee had summoned the police about suspicious packages as many as a hundred times. Private folks are free to choose to help the government without becoming agents. There was insufficient evidence that an impending California indictment of FedEx for trafficking misbranded prescription drugs for internet pharmacies placed so much pressure on the company to cooperate that it was effectively coerced to assist the government. On the sentencing front, the 10th indicates it might be possible for a district court not to hold a defendant responsible under the guidelines for all the drugs received in a package. But here it was okay for the court to do so. Some packing warning arises from this case. The enthusiastic FedEx employee found the searched package suspicious in part because it had "an awful lot of tape" on it. Apparently drug dealers are notoriously inefficient packagers.
U.S. v. Mendoza-Haro, 2014 WL 7181235 (12/18/14) (Col.) (unpub'd) - A cautionary tale for § 5K1.1 defendants who testify. The 10th says it was okay for the district court to consider Ms. Mendoza-Haro's testimony at trial that she helped move a hundred pounds of meth over the course of 4 years. She did not testify under a grant of immunity and her § 5K1.1 plea agreement did not imply the court couldn't use her testimony in sentencing her. And the court can consider such aggravating § 3553(a) factors to limit the extent of a § 5K1.1 departure. The guidelines only preclude using § 3553(a) factors to further decrease a sentence beyond what a defendant's substantial assistance has earned--which becomes essentially the new mandatory minimum. It was okay for the Sentencing Commission to circumscribe the court's discretion in only one direction. The 10th noted it was error for the district court to refuse to consider the safety risk of Ms. Mendoza-Haro testifying. But no relief because that wasn't raised as an issue.
U.S. v. Morain, 2014 WL 7181542 (12/18/14) (Kan.) (unpub'd) - The 10th is untroubled by a 151-month sentence for a child pornography defendant. It is unmoved by the argument that the child porn guidelines are not empirical and overly harsh due to the imposition of enhancements for typical conduct. A sentence near the middle of the statutory 5-20-year range for a typical child porn defendant did not strike the 10th as unfair. Nor did the 10th think it was problematic that almost two-thirds of child porn sentences are below the guideline range. This meant one-third of such sentences were within the guideline range. So this low-end sentence was not so severe as to be substantively unreasonable.
U.S. v. Tenderholt, 2014 WL 7146025 (12/16/14) (Wyo.) (unpub'd) - Descamps does not restart the statute-of-limitations clock for filing a § 2255, the 10th declares. Descamp did not make new law that would trigger a new limitations period. Rather it only corrected the 9th Circuit's misunderstanding of the Supreme Court's prior opinions.
Hughes v. Oliver, 2014 WL 7019002 (12/15/14) (Col.) (unpub'd) - It was not a violation of due process for the state to reincarcerate Mr. Hughes after mistakenly releasing him about 18 years too early and leaving him at liberty for over a year. Generally there's no constitutional problem if the prisoner is recommitted before his sentence would have expired if the prisoner had remained in prison. What happened was not conscience-shocking. The 10th ruled that such matters are "simply part of life"; "mistaken releases resulting in reincarceration occur too frequently to raise any presumption of arbitrariness." And there was no affirmative government misconduct to constitute estoppel, despite erroneous advice given at Mr Hughes' unit-team meeting that his upcoming release was lawful. The 10th suggests that under common law Mr. Hughes might be entitled to credit against his prison term for the time he was unconfined. But Mr. Hughes didn't raise that point.
Rackley v. Blevins, 2014 WL 7210783 (12/19/14) (Okl.) (unpub'd) - One of those cases where the 10th is "sympathetic," but can't find a way to help out. Mr. Rackley was denied visitation by his wife based on what the 10th describes as procedures "reminiscent of a Kafkaesque Catch-22." Mr. Rackley was denied visitation at one facility. After he was transferred, he was told the only person who could restore visitation was the warden of his former facility. That warden declined to restore visitation because Mr. Rackley was no longer at his facility. Unfortunately, the 10th says inmates have no liberty interest in visitation and so cannot get visitation through § 1983.
U.S. v. Bong, 2014 WL 7210999 (12/18/14) (Kan.) (unpub'd) - If you thought, as I did, that Mr. Bong was convicted of a dope offense, you would be wrong. It's a firearm case. The 10th holds that an officer's knowledge that a suspect is presently armed is sufficient standing alone to justify a protective frisk to search for other weapons. In this case Mr. Bong's possession of a folded-up pocket knife clipped to the outside of his pant's pocket justified the frisk. And for added measure, Mr. Bong's prior arrest for weapons and drug charges, the fact that he had driven away from a house under observation for drug trafficking and his "evasive body positioning" - keeping the right side of his body away from the officer, also created a reasonable suspicion Mr. Bong was armed and dangerous. The officers' subsequent use of force was reasonable where: Mr Bong backed up from the car on which an officer had ordered him to put his hands; the officer tried to maintain control of Mr. Bong's hands; they struggled; the officer gave Mr. Bong a hip toss to the ground; when it appeared Mr. Bong was about to stand, the officer kicked Mr. Bong several times in the stomach, dislodging what the officer believed to be a gun; and another officer entered the fray to restrain Mr. Bong. With respect to the admission of evidence at trial, the 10th refuses to consider Mr. Bong's plain error argument because he did not adequately argue the third and fourth prongs of the plain-error-reversal standard. He just asserted the evidence was "prejudicial." That didn't cut it.
U.S. v. Storey, 2014 WL 7172363 (12/17/14) (Okl.) (unpub'd) - The 10th finds the Fourth Amendment did not apply to FedEx employees' search of a package, even though some of the search occurred in front of the police. The officers didn't instigate, encourage or aid the search. The FedEx employees did not become government agents despite their intent to help the police and the fact that one enthusiastic employee had summoned the police about suspicious packages as many as a hundred times. Private folks are free to choose to help the government without becoming agents. There was insufficient evidence that an impending California indictment of FedEx for trafficking misbranded prescription drugs for internet pharmacies placed so much pressure on the company to cooperate that it was effectively coerced to assist the government. On the sentencing front, the 10th indicates it might be possible for a district court not to hold a defendant responsible under the guidelines for all the drugs received in a package. But here it was okay for the court to do so. Some packing warning arises from this case. The enthusiastic FedEx employee found the searched package suspicious in part because it had "an awful lot of tape" on it. Apparently drug dealers are notoriously inefficient packagers.
U.S. v. Mendoza-Haro, 2014 WL 7181235 (12/18/14) (Col.) (unpub'd) - A cautionary tale for § 5K1.1 defendants who testify. The 10th says it was okay for the district court to consider Ms. Mendoza-Haro's testimony at trial that she helped move a hundred pounds of meth over the course of 4 years. She did not testify under a grant of immunity and her § 5K1.1 plea agreement did not imply the court couldn't use her testimony in sentencing her. And the court can consider such aggravating § 3553(a) factors to limit the extent of a § 5K1.1 departure. The guidelines only preclude using § 3553(a) factors to further decrease a sentence beyond what a defendant's substantial assistance has earned--which becomes essentially the new mandatory minimum. It was okay for the Sentencing Commission to circumscribe the court's discretion in only one direction. The 10th noted it was error for the district court to refuse to consider the safety risk of Ms. Mendoza-Haro testifying. But no relief because that wasn't raised as an issue.
U.S. v. Morain, 2014 WL 7181542 (12/18/14) (Kan.) (unpub'd) - The 10th is untroubled by a 151-month sentence for a child pornography defendant. It is unmoved by the argument that the child porn guidelines are not empirical and overly harsh due to the imposition of enhancements for typical conduct. A sentence near the middle of the statutory 5-20-year range for a typical child porn defendant did not strike the 10th as unfair. Nor did the 10th think it was problematic that almost two-thirds of child porn sentences are below the guideline range. This meant one-third of such sentences were within the guideline range. So this low-end sentence was not so severe as to be substantively unreasonable.
U.S. v. Tenderholt, 2014 WL 7146025 (12/16/14) (Wyo.) (unpub'd) - Descamps does not restart the statute-of-limitations clock for filing a § 2255, the 10th declares. Descamp did not make new law that would trigger a new limitations period. Rather it only corrected the 9th Circuit's misunderstanding of the Supreme Court's prior opinions.
Hughes v. Oliver, 2014 WL 7019002 (12/15/14) (Col.) (unpub'd) - It was not a violation of due process for the state to reincarcerate Mr. Hughes after mistakenly releasing him about 18 years too early and leaving him at liberty for over a year. Generally there's no constitutional problem if the prisoner is recommitted before his sentence would have expired if the prisoner had remained in prison. What happened was not conscience-shocking. The 10th ruled that such matters are "simply part of life"; "mistaken releases resulting in reincarceration occur too frequently to raise any presumption of arbitrariness." And there was no affirmative government misconduct to constitute estoppel, despite erroneous advice given at Mr Hughes' unit-team meeting that his upcoming release was lawful. The 10th suggests that under common law Mr. Hughes might be entitled to credit against his prison term for the time he was unconfined. But Mr. Hughes didn't raise that point.
Rackley v. Blevins, 2014 WL 7210783 (12/19/14) (Okl.) (unpub'd) - One of those cases where the 10th is "sympathetic," but can't find a way to help out. Mr. Rackley was denied visitation by his wife based on what the 10th describes as procedures "reminiscent of a Kafkaesque Catch-22." Mr. Rackley was denied visitation at one facility. After he was transferred, he was told the only person who could restore visitation was the warden of his former facility. That warden declined to restore visitation because Mr. Rackley was no longer at his facility. Unfortunately, the 10th says inmates have no liberty interest in visitation and so cannot get visitation through § 1983.
posted by Anonymous at 1:49 PM
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