Friday, September 30, 2016

Unpublished decisions

U.S. v. Aguilar-Ramos, 2016 WL 1599775 (4/21/16) (N.M.) (unpub'd) - The 10th holds that California robbery in violation of Cal Penal Code § 211 is a "crime of violence" under § 2L1.2, even under the force part of § 211. The 10th rejects Mr. Aguilar-Ramos's attempt to distinguish the 10th's previous unfavorable decision regarding § 211 in U.S. v. Castillo, 811 F.3d 342 (10th Cir. 2015), on the grounds that Castillo only addressed § 211's fear part. The 10th said "all crimes under § 211 were crimes of violence under § 2L1.2," so end of story. Anyway, the 10th thinks the force argument is unpersuasive. Mr. Aguilar-Ramos relied on the notion that § 211 did not require enough force under the 2010 Johnson case, 559 U.S. 133. But the 10th notes it is talking about generic robbery and generic extortion, not the physical force clause. Possibly helpfully for our robbery/physical-force-clause arguments, Judge McHugh concurs. She observes that generic robbery only requires sufficient force to overcome a victim's resistance, which implies that generic robbery force may not be as much as the 2010 Johnson case requires.

U.S. v. Bowman, 2016 WL 1598745 (4/21/16) (Okl.) (unpub'd) - The 10th holds a defendant cannot challenge a career offender designation based on Johnson in a § 3582(c)(2) motion.

Banks v. Katzenmeyer, 2016 WL 1598669 (4/21/16) (Col.) (unpub'd) - The 10th reverses a district court's dismissal of a prisoner's First Amendment retaliation claim. Mr. Banks alleged that he told Captain Kazenmeyer he planned to pursue legal action against the captain for "certain hostile actions." According to Mr. Banks, the captain responded that the captain would instruct the staff to write up Mr. Banks at random. Lo and behold, the staff did write up "multiple fabricated reports" within six days. These accusations were enough to allege: the engagement in a constitutionally protected activity; a sufficient injury, (even though Mr. Banks did not say what happened following the reports); and that the reports would not have been made but for Mr. Banks' announcement that he intended to pursue legal action.


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