Unpublished Decisions
Perez v. Dowling, 2015 WL 8750538 (12/15/15) (Okl.) (unpub'd) - A holding regarding Rodriguez v. U.S., 135 S. Ct. 1609 (2015) [officers can't prolong a traffic stop longer than necessary for the stop's purpose] that is possibly helpful to us, although a bad thing for Mr. Perez's § 2254 chances. Mr. Perez argued his petition was not untimely because he filed the petition within one year of the day Rodriguez was decided. The 10th holds Rodriguez is not a new rule and so didn't extend Mr. Perez's deadline for filing the petition. This holding can be used to counter a government argument that officers relied in good faith on pre-Rodriguez law that justified their conduct. See Davis v. U.S., 564 U.S. 229 (2011) (no suppression for search in violation of Arizona v. Gant, 556 U.S. 332 (2009), where police relied on binding pre-Gant appellate precedent allowing the search). Also no equitable tolling where the pro se petitioner explained: "I can't speak English. I'm Mexican-Latino. I'm not American. I can't get help here a lot." He also alleged his lawyer took advantage of him because he was Latino. The 10th "can sympathize with" Mr. Perez's difficulty, but being a non-English speaker is not an extraordinary circumstance external to Mr. Perez that would justify equitable tolling, the 10th concludes..
U.S. v. Villegas, 2015 WL 8593429 (12/14/15) (N.M.) (unpub'd) - The 10th affirms a traffic-stop suppression denial and the government's refusal to seek a 3E1.1(b) reduction. The 10th finds the officer had reasonable suspicion to believe Ms. Villegas violated New Mexico's lane-maintaining statute, N.M. Stat. 66-7-317. The officer claimed he saw her go onto the shoulder once while she was watching the officer in her rear-view mirror. The 10th assumes the statute required the presence of a safety concern. It rules the district court did not clearly err in finding such a concern based on the officer's testimony that he just happened to see tire debris on the shoulder, although he couldn't specify its proximity to Ms. Villegas's car. The 10th also finds the traffic-stop encounter became consensual when the officer returned Ms. Villegas's paperwork, said she was "good to go," she reached for the door of the patrol car she was sitting in , the officer asked if he could ask her more questions and she agreed. Her reaching for the door showed she knew she could leave. Being enclosed in a patrol car didn't render involuntary her consent to further questioning and subsequent consent to search.
After the denial of the suppression motion, defense counsel sought a conditional plea agreement, but the prosecutors refused. Counsel sought a bench trial. The prosecutors insisted on a jury trial. Both parties filed pretrial motions in limine and other typical pleadings. At trial counsel presented a "minimal defense" in the 10th's words. The district court gave Ms Villegas the 2-level reduction for acceptance of responsibility, but the government refused to move for the additional level under § 3E1.1(b). The 10th says the district court did not clearly err in denying the one level because, unlike other defendants in cases Ms. Villegas cited, she did not plead guilty after her motion to suppress was denied. Irritatingly, the 10th doesn't address the fact that Ms. Villegas offered to enter a conditional plea. According to the 10th, she "forced the government to present its case at trial," and do extra work, such as filing motions and responding to defense motions.
U.S. v. Jones, 2015 WL 8757254 (12/15/15) (N.M.) (unpub'd) - The 10th suggests that, a defendant can never obtain § 3582(c)(2) relief in a case involving an 11(c)(1)C) plea agreement, absent a specific reference to the defendant's criminal history category.
U.S. v. Stanfiel, 2015 WL 9014182 (12/16/15) (Okl.) (unpub'd) - The 10th affirms the denial of 3582(c)(2) relief because of less than an ounce of meth. In 1997 Mr. Stanfiel's offense level was 36. The district court added 135.9 grams of actual meth to 89 % of 55 ounces of meth, i.e., 48.95 ounces of actual meth. With reference to the latter calculation, the district court found Mr. Stanfiel was involved with "approximately 48 ounces or 48 and a fraction" of actual meth. At that time the .95 ounce made no difference for guideline purposes. Under amendment 782, Mr. Stanfiel stays in offense level 36 if the 48.95 figure applies because added with the 136.9 grams the total is just above 1.5 kilograms. Mr. Stanfiel argued the court should use the "approximately 48 ounces" finding. Using that finding leads to a total of 1.497 kilograms, just barely in offense level 34. The 10th says the "district court's failure to specify the precise fraction does not preclude us from using the numbers provided in the findings to determine the quantity equals 48.95." The 10th also rejects Mr. Stanfiel's ex post facto argument relating to the drug equivalency tables. The 10th says cases arising under § 3582(c)(2) have no bearing on the ex post facto clause because they cannot increase the defendant's punishment."
U.S. v. Bayatyan, 2015 WL 8600018 (12/14/15) (Okl.) (unpub'd) - The 10th proffers another reason to reject an ex post facto clause argument in a § 3582(c)(2) case. Mr. Bayatyan received a downward variance at his first sentencing hearing. This meant that under the current § 1B1.10 he could not get any reduction in sentence because his amended guideline range was above the variant sentence he got. Under the § 1B1.10 in effect at the time of his sentencing, a district court could subtract from the amended guideline range the amount of the original variance. Mr. Bayatyan argued the ex post facto clause required use of the version of § 1B1.10 at the time of his original sentencing. However, the 10th says there's no ex post facto clause problem because the old § 1B1.10 did not include the 2014 amendment 782 So, the old § 1B1.10 didn't require retroactive application of the new amendment. So Mr. Bayatyan is not any worse off than he was in 1997.
U.S. v. Mullins, 2015 WL 9244908 (12/18/15) (Okl.) (unpub'd) - The 10th holds it does not violate due process to use remote-in-time (25-30 years ago) prior sexual abuse to impose a pattern-of-abuse enhancement under § 2G2.2(b)(5) in a child porn case. Troublingly the 10th justifies its conclusion in part on the ground that there is an increased risk of recidivism associated with sexual abuse and exploitation of children. As we know, the opposite is true. Nonetheless, the 10th's "reasoning" suggests that maybe the use of very old non-sex-abuse crimes for enhancement may violate due process. The 10th also finds evidence of the prior sex abuse reliable enough. Officers could assess the credibility of Mr. Mullins' now-adult stepson based on an in-person interview. Mr. Mullins' wife reported the stepson had confronted Mr,. Mullins about the abuse. And, the 10th says "perhaps most significantly," at the sentencing hearing, Mr. Mullins did not deny the abuse nor call the stepson to testify or confront him even though the stepson attended the hearing.
U.S. v. Welch, 2015 WL 9009948 (12/16/15) (N.M.) (unpub'd) - The 10th holds the government was not bound by its post-plea-agreement oral promises regarding Ms. Welch's sentence. Ms. Welch helped 3 men escape from an Arizona prison. During the subsequent fleeing and hiding out, an Oklahoma couple was killed in Quay County. To avoid the death penalty, she entered a plea agreement in which she agreed to cooperate with the prosecution. The government promised to move for a § 3E1.1(b) reduction, dismiss certain counts, refrain from further charges & consider filing a § 5K1.1 motion. Ms. Welch fulfilled her part of the bargain, testifying at John McClusky's death penalty trial [he was convicted, but the jury did not unanimously vote for the death penalty]. Ms. Welch alleged that 2 weeks before sentencing, the government promised not to oppose a 20-year sentence and to defer to the district court's sentencing discretion. It doesn't seem like the government denied that something like that happened. At sentencing, the government disagreed with Ms. Welch's request for a 20-year sentence and argued a 40-year sentence satisfied the § 3553(a) requirements because she made a decision to kill and lacked a moral compass. The district court imposed a 40 year prison term.
The 10th holds the government was only obligated to fulfill its written promises, which it did. The 10th is impressed by the fact that the government's § 5K1.1 motion led to a reduction from a guideline sentence of about 125 years all the way down to 40 years for a woman in her mid-40's. The 10th finds the plea agreement did not allow for oral modifications. The 10th acknowledges that an oral modification might be enforceable anyway. But it didn't happen here, the 10th says, because Ms. Welch did not give any new consideration for the promises. She had already done what she could do for the government. There was no detrimental reliance. Finally, for the same reasons noted above, the 10th rules the district court did not clearly err when it found the government did not act in bad faith when it made those oral promises.
Patrick v. Patton, 2015 WL 9239238 (12/17/15) (Okl.) (unpub'd) - The 10th says cruel and unusual punishment analysis focuses on the sentence imposed for each specific crime, not on the cumulative sentence for multiple crimes. That principle justifies rejecting Mr. Patrick's contention that it was a violation of the Eighth Amendment to run his sentences cumulatively for a total 55-year sentence for a single incident involving multiple crimes.
U.S. v. Villegas, 2015 WL 8593429 (12/14/15) (N.M.) (unpub'd) - The 10th affirms a traffic-stop suppression denial and the government's refusal to seek a 3E1.1(b) reduction. The 10th finds the officer had reasonable suspicion to believe Ms. Villegas violated New Mexico's lane-maintaining statute, N.M. Stat. 66-7-317. The officer claimed he saw her go onto the shoulder once while she was watching the officer in her rear-view mirror. The 10th assumes the statute required the presence of a safety concern. It rules the district court did not clearly err in finding such a concern based on the officer's testimony that he just happened to see tire debris on the shoulder, although he couldn't specify its proximity to Ms. Villegas's car. The 10th also finds the traffic-stop encounter became consensual when the officer returned Ms. Villegas's paperwork, said she was "good to go," she reached for the door of the patrol car she was sitting in , the officer asked if he could ask her more questions and she agreed. Her reaching for the door showed she knew she could leave. Being enclosed in a patrol car didn't render involuntary her consent to further questioning and subsequent consent to search.
After the denial of the suppression motion, defense counsel sought a conditional plea agreement, but the prosecutors refused. Counsel sought a bench trial. The prosecutors insisted on a jury trial. Both parties filed pretrial motions in limine and other typical pleadings. At trial counsel presented a "minimal defense" in the 10th's words. The district court gave Ms Villegas the 2-level reduction for acceptance of responsibility, but the government refused to move for the additional level under § 3E1.1(b). The 10th says the district court did not clearly err in denying the one level because, unlike other defendants in cases Ms. Villegas cited, she did not plead guilty after her motion to suppress was denied. Irritatingly, the 10th doesn't address the fact that Ms. Villegas offered to enter a conditional plea. According to the 10th, she "forced the government to present its case at trial," and do extra work, such as filing motions and responding to defense motions.
U.S. v. Jones, 2015 WL 8757254 (12/15/15) (N.M.) (unpub'd) - The 10th suggests that, a defendant can never obtain § 3582(c)(2) relief in a case involving an 11(c)(1)C) plea agreement, absent a specific reference to the defendant's criminal history category.
U.S. v. Stanfiel, 2015 WL 9014182 (12/16/15) (Okl.) (unpub'd) - The 10th affirms the denial of 3582(c)(2) relief because of less than an ounce of meth. In 1997 Mr. Stanfiel's offense level was 36. The district court added 135.9 grams of actual meth to 89 % of 55 ounces of meth, i.e., 48.95 ounces of actual meth. With reference to the latter calculation, the district court found Mr. Stanfiel was involved with "approximately 48 ounces or 48 and a fraction" of actual meth. At that time the .95 ounce made no difference for guideline purposes. Under amendment 782, Mr. Stanfiel stays in offense level 36 if the 48.95 figure applies because added with the 136.9 grams the total is just above 1.5 kilograms. Mr. Stanfiel argued the court should use the "approximately 48 ounces" finding. Using that finding leads to a total of 1.497 kilograms, just barely in offense level 34. The 10th says the "district court's failure to specify the precise fraction does not preclude us from using the numbers provided in the findings to determine the quantity equals 48.95." The 10th also rejects Mr. Stanfiel's ex post facto argument relating to the drug equivalency tables. The 10th says cases arising under § 3582(c)(2) have no bearing on the ex post facto clause because they cannot increase the defendant's punishment."
U.S. v. Bayatyan, 2015 WL 8600018 (12/14/15) (Okl.) (unpub'd) - The 10th proffers another reason to reject an ex post facto clause argument in a § 3582(c)(2) case. Mr. Bayatyan received a downward variance at his first sentencing hearing. This meant that under the current § 1B1.10 he could not get any reduction in sentence because his amended guideline range was above the variant sentence he got. Under the § 1B1.10 in effect at the time of his sentencing, a district court could subtract from the amended guideline range the amount of the original variance. Mr. Bayatyan argued the ex post facto clause required use of the version of § 1B1.10 at the time of his original sentencing. However, the 10th says there's no ex post facto clause problem because the old § 1B1.10 did not include the 2014 amendment 782 So, the old § 1B1.10 didn't require retroactive application of the new amendment. So Mr. Bayatyan is not any worse off than he was in 1997.
U.S. v. Mullins, 2015 WL 9244908 (12/18/15) (Okl.) (unpub'd) - The 10th holds it does not violate due process to use remote-in-time (25-30 years ago) prior sexual abuse to impose a pattern-of-abuse enhancement under § 2G2.2(b)(5) in a child porn case. Troublingly the 10th justifies its conclusion in part on the ground that there is an increased risk of recidivism associated with sexual abuse and exploitation of children. As we know, the opposite is true. Nonetheless, the 10th's "reasoning" suggests that maybe the use of very old non-sex-abuse crimes for enhancement may violate due process. The 10th also finds evidence of the prior sex abuse reliable enough. Officers could assess the credibility of Mr. Mullins' now-adult stepson based on an in-person interview. Mr. Mullins' wife reported the stepson had confronted Mr,. Mullins about the abuse. And, the 10th says "perhaps most significantly," at the sentencing hearing, Mr. Mullins did not deny the abuse nor call the stepson to testify or confront him even though the stepson attended the hearing.
U.S. v. Welch, 2015 WL 9009948 (12/16/15) (N.M.) (unpub'd) - The 10th holds the government was not bound by its post-plea-agreement oral promises regarding Ms. Welch's sentence. Ms. Welch helped 3 men escape from an Arizona prison. During the subsequent fleeing and hiding out, an Oklahoma couple was killed in Quay County. To avoid the death penalty, she entered a plea agreement in which she agreed to cooperate with the prosecution. The government promised to move for a § 3E1.1(b) reduction, dismiss certain counts, refrain from further charges & consider filing a § 5K1.1 motion. Ms. Welch fulfilled her part of the bargain, testifying at John McClusky's death penalty trial [he was convicted, but the jury did not unanimously vote for the death penalty]. Ms. Welch alleged that 2 weeks before sentencing, the government promised not to oppose a 20-year sentence and to defer to the district court's sentencing discretion. It doesn't seem like the government denied that something like that happened. At sentencing, the government disagreed with Ms. Welch's request for a 20-year sentence and argued a 40-year sentence satisfied the § 3553(a) requirements because she made a decision to kill and lacked a moral compass. The district court imposed a 40 year prison term.
The 10th holds the government was only obligated to fulfill its written promises, which it did. The 10th is impressed by the fact that the government's § 5K1.1 motion led to a reduction from a guideline sentence of about 125 years all the way down to 40 years for a woman in her mid-40's. The 10th finds the plea agreement did not allow for oral modifications. The 10th acknowledges that an oral modification might be enforceable anyway. But it didn't happen here, the 10th says, because Ms. Welch did not give any new consideration for the promises. She had already done what she could do for the government. There was no detrimental reliance. Finally, for the same reasons noted above, the 10th rules the district court did not clearly err when it found the government did not act in bad faith when it made those oral promises.
Patrick v. Patton, 2015 WL 9239238 (12/17/15) (Okl.) (unpub'd) - The 10th says cruel and unusual punishment analysis focuses on the sentence imposed for each specific crime, not on the cumulative sentence for multiple crimes. That principle justifies rejecting Mr. Patrick's contention that it was a violation of the Eighth Amendment to run his sentences cumulatively for a total 55-year sentence for a single incident involving multiple crimes.
posted by Anonymous at 3:26 PM
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