Tuesday, July 21, 2015

Unpublished decisions

U.S. v. Lunnin, 2015 WL 3429360 (5/29/15) (Kan.) (unpub'd) - The district court erred when it rejected Mr. Lunnin's request for a minimal-role adjustment on the grounds that he could not receive such a reduction because he was held accountable under the guidelines only for the drug quantity he was personally involved with. That reasoning directly conflicts with ยง 3B1.2, cmt. n. 3(A). But the error is harmless because Mr. Lunnin could not possibly qualify for a reduction due to his loaning of $22,500 to a co-conspirator for the drug business, expecting a $10,000 profit. This showed he understood the scope of the enterprise. Troublingly, the 10th holds that, by asking for a departure only to Level 32, Mr. Lunnin must have recognized the drug quantity required a 10-year mandatory minimum sentence. So he waived any challenge to the district court's quantity findings that resulted in a 10-year mandatory minimum.

U.S. v. Ortiz, 2015 WL 3407443 (5/28/15) (Kan.) (unpub'd) - The 10th concludes that any two-offense-level guideline error would be harmless because the district court imposed a sentence that was 50 % of the low-end of the possibly wrong guideline range.

Florentino-Francisco v. Lynch, 2015 WL 3389987 (5/27/15) (unpub'd) - Solicitation of prostitution is a crime involving moral turpitude ("CIMT") because prostitution is a CIMT. You can't have the prostitute without the john. The 10th rejects the alien's contention that societal views have changed about the morality of prostitution. It's still "inherently wrong," the 10th responds.

U.S. v. Garcia-Chihuahua, 2015 WL 3372149 (5/26/15) (Kan.) (unpub'd) - The 10th finds a due-process, plea-challenge argument preserved where Mr. Garcia-Chihuahua apparently did not mention the phrase "due process," but did argue he wasn't fully apprised of the consequences of his guilty plea. Unfortunately, Mr. G-C challenged his 2013 guilty plea, which involved an appeal waiver, in an appeal of his supervised-release-revocation relating to a 2008 case. The 10th didn't think he could do that. But it did mention he could have challenged his plea in an appeal of the case with the appeal waiver because an unknowing plea would undermine the appeal waiver as well as the plea.

Vreeland v. Schwartz
, 2015 WL 3372139 (5/26/15) (Col.) (unpub'd) - The 10th reverses dismissal of a prisoner complaint. Mr. Vreeland sufficiently alleged retaliation for exercising his protected rights and properly joined a bunch of prison employee defendants. Mr. Vreeland alleged he was denied and fired from inmate job assignments and his right to grieve was denied or impeded due to his filing of a complaint against the prison legal assistant who opened his private mail. It was enough that the prison employees' conduct would "chill a person of ordinary firmness," As long as the ordinary person would be chilled, it didn't matter that Mr. Vreeland was more determined than most and wasn't chilled.