Tuesday, September 13, 2016

US v. Black, 2016 WL 3996994 (10th Cir. 7/25/2016). Mr. Black was convicted of conspiracy to distribute cocaine, use of a telephone during the conspiracy, and possessing with intent to distribute cocaine, after a jury trial in April 2012. The case began in 2007, and between the time the charges were first brought and the trial, the government filed four superseding indictments, and twice dismissed the case --- once to pursue an interlocutory appeal and once to avoid dismissal of the cocaine conspiracy charge. Mr. Black asserted that his Sixth Amendment right to a speedy trial was violated on appeal. The Tenth Circuit rejects the claim. It exhaustively parses the record and ultimately decides that the length of the delay weighs against the government, the reason for the delay does not weigh against the government, the assertion of the right factor weighs heavily against Black (because he was late and not real vigorous in asserting the right), and there was no prejudice to him, so he did not show a Sixth Amendment violation.
However, he wins resentencing. He contended that the district court erroneously calculated the advisory GL range as 360 to life and, accordingly, an offense level of 37 under USSG 4B1.1(b)(1). This was plain error. Because Mr. Black was charged under 21 USC 841(a)(1) and 846, his offense was punishable by a maximum of 30 years, so the correct total offense level should have been 34, resulting in an advisory range of 262-327 months.

A.M. v. Holmes, 2016 WL 3999756 (10th Cir. 7/25/16). The Tenth Circuit affirms the trial court's grant of qualified immunity and dismissal of lawsuits brought against a middle school principal, assistant principal and school cop. The officer contended he had probable cause to arrest the student (F.M.) for interfering with the educational process in violation of NMSA 1978, 30-20-13(D) where the student's fake burping, laughter, etc. prevented the teacher from controlling her class and the officer's observation that, when he responded to the call, there was no more teaching going on because the teacher was monitoring the A.M. in the hallway. The Tenth decides it need not decide this question because, it concludes, an officer could have reasonably believed that he had probable cause to arrest and the district court correctly determined that the officer was entitled to qualified immunity. In footnote 15, the Court states it is "neither oblivious or unsympathetic to 'the potential future consequences'" to a child of an arrest or other law enforcement sanction for seemingly non-egregious classroom misconduct, but "[i]t is ultimately not our place to question or undermine the New Mexico legislature's policy choice to criminalize interference with the educational process and, more specifically, to (at least arguably) proscribe the kind of classroom misconduct that led to F.M.'s arrest." The Court also affirmed the grant of summary judgment in relation to the officer's handcuffing of F.M. because the clearly established law at the time of the arrest would not have apprised a similarly situated reasonable officer that handcuffing the student was excessive force. At a later incident, F.M. was searched, which was the basis for the claims against the assistant principal and principal. Summary judgment on qualified immunity grounds was properly granted because the search was justified at its inception by another student anonymously reporting seeing F.M. participate in an alleged drug transaction on school grounds and her subsequent viewing of security camera footage at the time and location provided by the reporting student. The film showed F.M. standing in a closed circle of students, apparently holding a roll of money and passing something to other students. She then called the students in the video to her office. Two of the four said they had seen someone with marijuana at school that day; another said F.M. was carrying cash; three said the circle incident involved marijuana. The Court was satisfied that this information provided reasonable grounds for a search. The scope of the search -- of F.M.'s backpack and the removal and search of his outer layers of clothing (but not his underwear, athletic shorts and one shirt) -- was not unreasonable. Finally, the district court properly granted summary judgment to the assistant principal on the claims that the search was in retaliation for comments made to the media by F.M.'s mother, A.M., regarding the prior incident and on the equal protection claim (that F.M. was more intrusively searched). A.M. didn't produce enough evidence to support those claims.