Thursday, January 14, 2016

Unpublished decisions

U.S. v. Hendrix, 2015 WL 2015 WL 6500602 (10/28/15) (Kan.) (unpub'd) - Mr. Hendrix avoids supervised release, although for how long is not clear. The same Kansas judge who has a penchant for upward variances imposed a prison term for a supervised release violation, but did not impose a term of supervised release. Two hours and 40 minutes after the adjournment of the hearing, the court reconvened and imposed a supervised release term that he said he had forgotten to pronounce. A divided 10th rules the district court did not have jurisdiction to change the orally pronounced sentence. The sentence became final once there was a formal break in the proceedings. Rule 35 did not authorize a change in the final judgment because there was no "clear error." Rather, adding a supervised release term was a substantive, discretionary decision. 18 U.S.C. § 3583(e)(2), which allows a district court, at any time prior to expiration or termination of a supervised release term, to extend a supervised release term if less than the maximum authorized term was previously imposed, did not justify the judgment modification because the district court did not say it relied on that provision when it added the term. The district court said it was "clarifying" the sentence, not extending the supervised release term. The error could not be harmless because this was a jurisdictional matter. Nor does the 10th think it could affirm on the alternative ground that § 3583(e)(2) justifies the additional term. An extension under that provision is a discretionary matter that is best left to the district court to consider, the 10th says. The 10th indicates Mr. Hendrix's success may be short-lived. The 10th notes it's up to the lower court to consider invoking its jurisdiction under § 3583(e)(2). Judge Lucero dissents. He thinks the district court was just correcting an obvious error by failing to rule on Mr. Hendrix's argument that he should receive an additional supervised release term in lieu of imprisonment. I suspect Mr. Hendrix was not asking for more supervised release on top of a prison term. But, nonetheless Judge Lucero feels the district court just committed a clear oversight that there should be some tolerance for correcting. It wasn't like the court changed its mind, which could not be the basis for assuming jurisdiction, Judge Lucero opines,

U.S. v. Camargo-Chavez, 2015 WL 6517849 (10/29/15) (Okl.) (unpub'd) - An illustration of an unfortunate work-around for the wonderful case of U.S. v. Osage, 235 F.3d 518 (10th Cir. 2000), in which the 10th held destroying a tamale can was beyond the scope of consent to searching the bag that contained the tamale can. In this case, Mr. Camargo-Chavez consented to a search of his car. The officers ended up tearing open a sealed case of beer that seemed unusually light and covered with excess glue. The 10th finds probable cause to search and destroy the beer case based on its unusual features plus: confidential-source information; past meth-selling history; being parked in a drug-dealing location; and a knife with glue on it, despite Mr. Camargo-Chavez's denial that he had a knife or other weapons in the car.

U.S. v. Collins, 2015 WL 6535318 (10/29/15) (Okl.) (unpub'd) - The 10th rejects an ineffective assistance claim on the grounds that Mr. Collins did not show that, had counsel acted competently, he "likely" would have received a lower sentence. Thus, the 10th ignores that the defendant's burden is only to show an undermining in the confidence of the outcome, which the Supreme Court has made clear is less than a preponderance standard. The district court said it imposed a sentence at the bottom of what the guideline range would be absent Mr. Collins' career-offender status, given the oppressiveness of that guideline. The court imposed 168 months in prison. But the bottom of the guideline range, absent career-offender status, was actually 120 months under the PSR calculations. So perhaps an extra 4 years in prison for Mr. Collins due to bad math or misreading the sentence table.

U.S. v. Palmer, 2015 WL 6467951 (10/27/15) (Ut.) (unpub'd) - The 10th rejects Mr. Palmer's contention that his child-porn guilty plea was involuntary because his emotions overcame him when counsel persuaded him to enter the plea based on their shared [unspecified] religious beliefs. The 10th notes that child porn cases are always loaded with emotion. If it granted Mr. Palmer's argument, every child porn plea would be suspect and chaos would reign. In any event, a religious belief would be a self-imposed coercive element that would not render a plea involuntary.

U.S. v. Garcia-Jimenez, 2015 WL 6445705 (10/26/15) (Okl.) (unpub'd) - The 10th rejects the notion that USSG § 5G1.3(b), which requires a sentence adjustment for already-served state prison time, applies in this case where there was no undischarged prison term But the 10th also notes the district court applied note 8 of § 2L1.2, which suggests a downward departure where the defendant is "found" while serving state time and § 5G1.3(b) doesn't apply. In a footnote, the 10th bemoans the fact that, Mr. Garcia-Jimenez had committed a number of drug and firearm crimes and been removed three times before he was charged with illegal reentry. The 10th calls this lack of prosecution "tragic."