Unpublished Decisions
U.S. v. Franco, 2015 WL 8538121 (12/11/15) (N.M.) (unpub'd) - The 10th contradicts the suggestion in the Garcia-Escalera case reported in the a previous update regarding the changes in Fed. R. Crim. P. 12. . This panel says in a footnote that the elimination of the word "waiver" from Rule 12(e) made no substantive change. This is what the advisory notes say, says the 10th. So when counsel doesn't raise a specific suppression claim below then the issue is waived, not just forfeited, in the 10th. In this case, Mr. Franco contended that the police lacked reasonable suspicion to stop him when he stopped in the middle of the road with the car's lights off and then backed up. On appeal, Mr. Franco argued the officer unreasonably interpreted N.M. Stat. 66-7-349. This wasn't part of Mr. Franco's argument below. Mr. Franco argued below he was legally parked. The 10th refuses to consider the argument on waiver grounds. Mr. Franco had 10th Circuit law on his side to challenge the officer's interpretation before the district court, but he didn't take advantage of that, the 10th claims. There was no good cause to fail to make the argument.
U.S. v. Mata-Rodriguez, 2015 WL 7973799 (12/7/15) (Kan.) (unpub'd) - The 10th holds that, not only was the district court not required to order a new PSR and hold an evidentiary hearing with respect to Mr. Mata-Rodriguez's § 3582(c)(2) motion, it would have been legally improper to do so. Mr. Mata-Rodriguez wanted to present evidence of his rehabilitation. The district court denied that opportunity and imposed the highest end of Mr. Mata-Rodriguez's amended guideline range, just as the court had imposed the highest end at the first sentencing when a higher range applied. The 10th goes on and on about how a § 3582(c)(2) sentencing is not a full resentencing.
U.S. v. Campos-Lucas, 2015 WL 8288101 (12/9/15) (Col.) (unpub'd) - The 10th affirms an upward variance in a reentry supervised-release revocation case. The Colorado judge imposed a below-guideline range sentence of 4 months for an illegal reentry. During the sentencing Mr. Campos-Lucas promised not to return. Four months after he was removed, he was found in Arizona. He received a 6-month sentence for illegal reentry there. . The sentence range for his supervised release violation was 5 to 11 months. At the revocation hearing, the judge exclaimed: "This is a first in my experience to have a defendant promise not to return under oath only to reenter within such a short time after that solemn pledge. The conduct here represents the ultimate expression of abject disrespect and contempt for our judicial system and this court [that is, me]." So the court imposed an 18-month sentence. That sentence was not substantively unreasonable, the 10th rules, since breach of trust is the gravamen of revocation sentencing and Mr. Campos-Lucas got an apparently unwarranted break when he previously received a downward variance.
U.S. v. Taylor, 2015 WL 7975854 (12/7/15) (Okl.) (unpub'd) - The 10th relies on U.S. v. Madrid, 805 F.3d 1204 (10th Cir. 2014), to vacate a sentence relying on the crime-of-violence residual clause for an enhancement under § 2K2.1(a)(2) firearms. Mr. Taylor showed sufficient prejudice to satisfy the 3rd & 4th prongs of the plain error standard because his guideline range was reduced from 100-120 months to 70-87. months.
Griffin v. Scnurr, 2015 WL 8479630 (12/10/15), amended in an irrelevant way at 2016 WL 158718 (1/14/16) (Kan.) (unpub'd) - The 10th is unimpressed by Mr. Griffin's contention that his procedural default problem is overcome by his innocence. It doesn't matter if he may be innocent under the state's new interpretation of the intent requirement for second-degree murder. Procedural default cannot be overcome through innocence based on judicial opinions issued after a defendant's trial.
Moore v. Diggins, 2015 WL 8479678 (12/10/15) (Col.) (unpub'd) - The 10th reverses a summary judgment grant to a Denver jail nurse and doctor. Mr. Moore alleged as follows. At intake Mr. Moore told the nurse he needed a cane or walker because of stability issues. Without adequate support, he told her, he was in tremendous pain standing, sitting and walking She responded: " don't have time to verify your request because I have 40 other inmates to deal with. You'll have to deal with it upstairs," where he would be staying. She refused Mr. Moore's request to see her supervisor. Once upstairs a deputy told Mr. Moore the medical unit was closed for the day. The next day, after Mr. Moore filed a grievance, he saw a doctor who confirmed that Mr. Moore had been prescribed a cane or walker, but said he didn't currently have a cane or walker. In response to Mr. Moore's request to call other medical departments to see if they had what he needed, the doctor responded: "not right now." Despite Mr. Moore's complaints of tremendous pain, the doctor sent Mr. Moore away without a cane or walker. During Mr. Moore's 2d day in jail, his left hip gave out. He collapsed to the floor, causing additional pain. Since then he's been in tremendous pain, even though the jail gave him a walker, which mysteriously appeared 3 hours after the fall. The 10th holds Mr. Moore alleged enough to establish sufficient harm and deliberate indifference to his medical needs.
U.S. v. Mata-Rodriguez, 2015 WL 7973799 (12/7/15) (Kan.) (unpub'd) - The 10th holds that, not only was the district court not required to order a new PSR and hold an evidentiary hearing with respect to Mr. Mata-Rodriguez's § 3582(c)(2) motion, it would have been legally improper to do so. Mr. Mata-Rodriguez wanted to present evidence of his rehabilitation. The district court denied that opportunity and imposed the highest end of Mr. Mata-Rodriguez's amended guideline range, just as the court had imposed the highest end at the first sentencing when a higher range applied. The 10th goes on and on about how a § 3582(c)(2) sentencing is not a full resentencing.
U.S. v. Campos-Lucas, 2015 WL 8288101 (12/9/15) (Col.) (unpub'd) - The 10th affirms an upward variance in a reentry supervised-release revocation case. The Colorado judge imposed a below-guideline range sentence of 4 months for an illegal reentry. During the sentencing Mr. Campos-Lucas promised not to return. Four months after he was removed, he was found in Arizona. He received a 6-month sentence for illegal reentry there. . The sentence range for his supervised release violation was 5 to 11 months. At the revocation hearing, the judge exclaimed: "This is a first in my experience to have a defendant promise not to return under oath only to reenter within such a short time after that solemn pledge. The conduct here represents the ultimate expression of abject disrespect and contempt for our judicial system and this court [that is, me]." So the court imposed an 18-month sentence. That sentence was not substantively unreasonable, the 10th rules, since breach of trust is the gravamen of revocation sentencing and Mr. Campos-Lucas got an apparently unwarranted break when he previously received a downward variance.
U.S. v. Taylor, 2015 WL 7975854 (12/7/15) (Okl.) (unpub'd) - The 10th relies on U.S. v. Madrid, 805 F.3d 1204 (10th Cir. 2014), to vacate a sentence relying on the crime-of-violence residual clause for an enhancement under § 2K2.1(a)(2) firearms. Mr. Taylor showed sufficient prejudice to satisfy the 3rd & 4th prongs of the plain error standard because his guideline range was reduced from 100-120 months to 70-87. months.
Griffin v. Scnurr, 2015 WL 8479630 (12/10/15), amended in an irrelevant way at 2016 WL 158718 (1/14/16) (Kan.) (unpub'd) - The 10th is unimpressed by Mr. Griffin's contention that his procedural default problem is overcome by his innocence. It doesn't matter if he may be innocent under the state's new interpretation of the intent requirement for second-degree murder. Procedural default cannot be overcome through innocence based on judicial opinions issued after a defendant's trial.
Moore v. Diggins, 2015 WL 8479678 (12/10/15) (Col.) (unpub'd) - The 10th reverses a summary judgment grant to a Denver jail nurse and doctor. Mr. Moore alleged as follows. At intake Mr. Moore told the nurse he needed a cane or walker because of stability issues. Without adequate support, he told her, he was in tremendous pain standing, sitting and walking She responded: " don't have time to verify your request because I have 40 other inmates to deal with. You'll have to deal with it upstairs," where he would be staying. She refused Mr. Moore's request to see her supervisor. Once upstairs a deputy told Mr. Moore the medical unit was closed for the day. The next day, after Mr. Moore filed a grievance, he saw a doctor who confirmed that Mr. Moore had been prescribed a cane or walker, but said he didn't currently have a cane or walker. In response to Mr. Moore's request to call other medical departments to see if they had what he needed, the doctor responded: "not right now." Despite Mr. Moore's complaints of tremendous pain, the doctor sent Mr. Moore away without a cane or walker. During Mr. Moore's 2d day in jail, his left hip gave out. He collapsed to the floor, causing additional pain. Since then he's been in tremendous pain, even though the jail gave him a walker, which mysteriously appeared 3 hours after the fall. The 10th holds Mr. Moore alleged enough to establish sufficient harm and deliberate indifference to his medical needs.
posted by Anonymous at 3:30 PM
<< Home