Wednesday, March 29, 2017

United States v. Snyder, 2017 WL 1149077 (March 28, 2017) (WY)

In a terse opinion, the panel says that after Beckles, a conviction for voluntary manslaughter is a crime of violence as defined in USSG § 4B1.2(a)(2)’s residual clause. It pointed out that Madrid, 805 F.3d 1204, was “partially abrogated” by Beckles. It also noted that the guidelines are not vulnerable to a Due Process challenge because Beckles said “the advisory guidelines do not fix the permissible range of sentences . . . .they merely guide the exercise of a court’s discretion in choosing an appropriate sentence within the statutory range.” (Editor's note: There is some question as to the applicability of Beckles to sentences imposed prior to Booker, when the guidelines were mandatory.)

Budder v. Addison, 2017 WL 1056094 (March 21, 2017) (OK)

The panel grants Budder’s habeas petition and vacates his three consecutive life sentences. Relying on Graham v. Florida, 560 U.S. 48 (2010), the panel finds that Budder’s consecutive life sentences imposed when he was a juvenile violate the Eighth Amendment. It reasons that Graham imparted a categorical rule that the Eighth Amendment is violated in any case in which a juvenile offender who did not commit homicide receives a sentence that would deny him a realistic opportunity to be released. Although, Oklahoma had already amended Budder’s sentences from life without parole to life with parole, because his sentences were consecutive he would have to serve 131.75 years before he would be eligible for parole. Naturally, that term is too long to offer him a realistic opportunity to obtain release. Therefore, the panel held that in light of the clearly established federal law announced in Graham, the state court’s judgment sustaining Budder’s sentences was unjustified.

Monday, March 27, 2017

US v. Holcomb, Docket No. 16-2077 (10th Cir. 3/23/17) (unpublished)

Mr. Holcomb obtained a reduced sentence in 2016 under 18 USC § 3582 pursuant to the the "drugs minus 2" reductions to the drugs sentencing guidelines. He argued that he also was entitled to a further proportionate reduction under USSG 1B1.10(b)(2)(B) for the criminal history overrepresentation departure he was awarded at his original sentencing in 2002. Under the version of 1B1.10 in effect in 2002, he would have been eligible for that reduction. Under the version in effect in 2016, he was not because the Commission amended the guideline in 2011 to reduce eligiblity. The Court rejects Mr. Holcomb's arguments that application of the 2016 version of the guideline violated the ex post facto clause, exceeded the Commission's statutory authority, and usurped the judiciary's authority to determine an appropriate sentence.

Monday, March 20, 2017

United States v. Wireman

United States v. Wireman, 2017 WL 765769 (February 28, 2017)(KS)(published): This case is notable because of Judge McKay’s concurrence. The panel reviews how much a district court must say when rejecting nonfrivilous arguments asking for a variance based on policy critiques of a pertinent guideline provision. (Here, Wireman attacked USSG § 2G2.2). According to the majority, when a district court sentences the accused within the recommended imprisonment range, not much needs to be said. A court does not have to explicitly address the accused’s arguments as long as the “context and the record make clear” the court’s reasoning for rejecting those arguments. An accused will almost certainly lose a procedural unreasonableness argument if he does not object to the “method by which” the court arrived at its sentence. This means he must tell the court it has not adequately explained the sentence imposed if he wants to the court to use de novo review on appeal.

Judge McKay disagrees with the majority’s procedural unreasonableness analysis because it “has not required enough of the district court.” He writes that the court should have explained why it rejected Wireman’s policy argument because “policy critiques . . . are different and deserve more attention.” Since the guidelines “anchor a sentencing” they set “the starting point”; the parties then “argue whether the facts and circumstances” call for “a different endpoint.” Challenging the guidelines “is more like rejecting the starting point. If the applicable Guidelines do not reflect a sound judgment it stands to reason that they should not anchor the sentencing. And because the anchoring effect of the Guidelines is so strong, a winning policy argument would have an outsized effect on the sentencing proceedings.” Judge McKay also notes that when the accused has a reasoned argument for challenging the soundness of a particular guideline, the appellate court should not presume a sentence is reasonable even if it falls within the recommended imprisonment range. Still, Wireman loses because he cannot overcome plain error review.

Monday, March 06, 2017

U.S. v. Lopez, 2017 WL 743982 (2/27/17)(Kan.)

The Tenth reverses the defendants' methamphetamine-conspiracy convictions, holding that the district court should have granted their motion to suppress. A Kansas Highway Patrol Trooper stopped the defendants for speeding, gave them a warning, questioned them about their travel plans, and then asked them for consent to search the car. They refused. The trooper detained them anyway, waiting on a drug dog. This detention was illegal, despite the trooper's claim that the defendants were nervous, said suspicious things, and had suspicious travel plans, and that the driver had only a temporary paper license (giving the trooper probable cause to arrest her for driving without a license).

Some lessons from Lopez:

Nervousness: "[W]e have consistently assigned this factor limited significance because its measure is so subjective and innocent people can vary widely in how they respond to an encounter with police . . . . Only extreme nervousness can substantially contribute to reasonable suspicion."

Travel plans: "[W]e have generally been reluctant to give weight in the reasonable-suspicion analysis to unusual travel purposes, at least absent lies, inconsistencies, or the like."

Driver's license: The driver had a printed license receipt from the California DMV rather than an actual license. But the dispatcher confirmed for the trooper that the driver had a valid license. Once he had this information, the trooper should have known that the driver could not have been arrested for driving without a license. Kansas law prohibits convictions of that crime if the arrested person later produces a valid license. "An officer does not have probable cause to arrest a person for a crime when he knows she could not be convicted. See Brown v. Fisher, 251 F. App’x 527, 534 (10th Cir. 2007) (expressing doubt that officer could arrest driver for violation of this very statute when officer knew that driver was licensed); see also United States v. Edwards, 632 F.3d 633, 640 (10th Cir. 2001) (‘If the police learn information that destroys their probable cause to arrest a defendant, the arrest may become illegal.’)."

U.S. v. John, 2017 WL 743976 (2/27/17)(NM)

The Tenth Circuit rejects confrontation, jury instruction, and lesser-included-offense claims re: aggravated sex abuse and aggravated sexual contact convictions. The district court properly refused to permit cross-examination of the victim about a bizarre incident in which the victim made dubious claims about her sister coercing her to consume alcohol and the victim subsequently slit her wrists and was hospitalized and evaluated for mental health disorders. The Tenth decides none of this is relevant to her ability to perceive, remember, or relate the events she testified about at trial. The three challenged jury instructions were just fine. The instruction that the victim's testimony could be believed without corroboration did not suggest the victim was especially credible. It was proper to give an instruction that an attorney's communication with a witness does not reflect on the truth of the witness's testimony--despite the fact that during the trial, the prosecutor called for a recess after its witness testified untruthfully, then was permitted to return to the stand and change her testimony. An instruction that the jury can infer a person intends the natural and probable consequences of acts is ok so long as the instructions as a whole tell the jury of the government's burden to prove the necessary intent beyond a reasonable doubt. A simple assault instruction was appropriately denied because there was no reasonable basis to conclude the charged assault occurred without sexual intent.